Revised National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines for Concentrated Animal Feeding Operations in Response to Waterkeeper Decision, 37744-37787 [06-5773]
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Federal Register / Vol. 71, No. 126 / Friday, June 30, 2006 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122 and 412
[EPA–HQ–OW–2005–0037; FRL–8189–7]
RIN 2040–AE80
Revised National Pollutant Discharge
Elimination System Permit Regulation
and Effluent Limitation Guidelines for
Concentrated Animal Feeding
Operations in Response to
Waterkeeper Decision
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
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AGENCY:
SUMMARY: EPA is proposing to revise the
National Pollutant Discharge
Elimination System (NPDES) permitting
requirements and Effluent Limitations
Guidelines and Standards (ELGs) for
concentrated animal feeding operations
(CAFOs) in response to the order issued
by the Second Circuit Court of Appeals
in Waterkeeper Alliance et al. v. EPA,
399 F.3d 486 (2nd Cir. 2005). This
proposed rule responds to the court
order while furthering the statutory goal
of restoring and maintaining the
nation’s water quality and effectively
ensuring that CAFOs properly manage
manure generated by their operations.
This proposal would revise several
aspects of EPA’s current regulations
governing discharges from CAFOs. First,
EPA proposes to require only the
owners and operators of those CAFOs
that discharge or propose to discharge to
seek coverage under a permit. Second,
EPA proposes to require CAFOs seeking
coverage under a permit to submit their
nutrient management plan (NMP) with
their application for an individual
permit or notice of intent to be
authorized under a general permit.
Permitting authorities would be
required to review the plan and provide
the public with an opportunity for
meaningful public review and comment.
Permitting authorities would also be
required to incorporate terms of the
NMP as NPDES permit conditions.
Third, this action proposes to authorize
permit writers, upon request by a CAFO,
to establish best management, zero
discharge effluent limitations when the
facility demonstrates that it has
designed an open containment system
that will comply with the no discharge
requirements.
This proposed rule also responds to
the court’s remand orders regarding
water-quality based effluent limitations
(WQBELs) and pathogens. EPA proposes
to clarify that WQBELs are available in
permits with respect to production area
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discharges and non-precipitation related
discharges from land application, but
are statutorily unavailable in permits for
Large CAFOs with respect to
precipitation related land application
discharges because the only allowable
discharge from a land application area
is due to agricultural storm water which
is by statute exempt from permitting
requirements. Finally, EPA proposes to
clarify its selection of BCT technologies
for pathogens (fecal coliform), and
reaffirm its decision to set the BCT
limitations for fecal coliform to be equal
to the BPT limits established in the 2003
CAFO rule.
DATES: Comments on this proposed
action must be received on or before
August 14, 2006.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OW–2005–0037 by one of the following
methods:
(1) https://www.regulations.gov:
Follow the on-line instructions for
submitting comments.
(2) E-mail: ow-docket@epa.gov,
Attention Docket ID No. EPA–HQ–OW–
2005–0037.
(3) Mail: Send the original and three
copies of your comments to: Water
Docket, Environmental Protection
Agency, Mail code 4203M, 1200
Pennsylvania Ave., NW., Washington,
DC 20460, Attention Docket ID No. OW–
2005–0037.
(4) Hand Delivery: Deliver your
comments to: EPA Docket Center, EPA
West, Room B102, 1301 Constitution
Avenue, NW., Washington, DC,
Attention Docket ID No. OW–2005–
0037. Such deliveries are only accepted
during the Docket’s normal hours of
operation and special arrangements
should be made for deliveries of boxed
information.
Instructions: Direct your comments to
Docket ID No. EPA–HQ–OW–2005–
0037. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or e-mail. The www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
which means EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an e-mail
comment directly to EPA without going
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through www.regulations.gov, your email address will be automatically
captured and included as part of the
comment that is placed in the public
docket and made available on the
Internet. If you submit an electronic
comment, EPA recommends that you
include your name and other contact
information in the body of your
comment and with any disk or CD–ROM
you submit. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
EPA may not be able to consider your
comment. Electronic files should avoid
the use of special characters, any form
of encryption, and be free of any defects
or viruses. For additional information
about EPA’s public docket visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the Water Docket in the EPA Docket
Center, EPA West, Room B102, 1301
Constitution Ave., NW., Washington,
DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1744,
and the telephone number for the Water
Docket is (202) 566–2426.
FOR FURTHER INFORMATION CONTACT: For
additional information contact Kawana
Cohen, Water Permits Division, Office of
Wastewater Management (4203M),
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460; telephone number: (202)
564–2345, e-mail address:
cohen.kawana@epa.gov or Paul Shriner,
Engineering and Analysis Division,
Office of Science and Technology
(4303T), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone
number: 202–566–1076, e-mail address:
shriner.paul@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
B. What Should I Consider as I Prepare My
Comments for EPA?
II. Background
A. The Clean Water Act
B. History of Actions to Address CAFOs
under the NPDES Permitting Program
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C. Ruling by the U.S. Court of Appeals for
the Second Circuit
1. Issues Upheld by the Court
2. Issues Vacated by the Court
3. Issues Remanded by the Court
D. What Requirements Still Apply to
CAFOs?
E. Status of EPA’s Response to the
Waterkeeper Decision
III. This Proposal
A. Duty to Apply for a Permit
B. Nutrient Management Plans
C. Remand Concerning Water Quality
Based Effluent Limitations
D. New Source Performance Standards for
Subpart D Facilities
E. Remand Concerning Pathogens for BCT
IV. Impact Analysis
V. Cross Media Approaches
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination with Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children from Environmental Health and
Safety Risks
H. Executive Order 13211: Actions
Concerning Regulations That
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Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
I. General Information
A. Does This Action Apply to Me?
This action applies to concentrated
animal feeding operations (CAFOs) as
defined in section 502(14) of the Clean
Water Act and in the NPDES regulations
at 40 CFR 122.23. The following table
provides a list of standard industrial
codes for operations covered under this
revised rule.
TABLE 1.—ENTITIES POTENTIALLY REGULATED BY THIS RULE
Category
Federal, State, and Local Government:
Industry ........................................
Operators of animal production operations that meet the definition
of a CAFO.
Beef cattle feedlots (including veal) ..............................................
Beef cattle ranching and farming ..................................................
Hogs ..............................................................................................
Sheep ............................................................................................
General livestock except dairy and poultry ...................................
Dairy farms ....................................................................................
Broilers, fryers, and roaster chickens ............................................
Chicken eggs .................................................................................
Turkey and turkey eggs .................................................................
Poultry hatcheries ..........................................................................
Poultry and eggs ...........................................................................
Ducks .............................................................................................
Horses and other equines .............................................................
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
regulated by this action. This table lists
the types of entities that EPA is now
aware could potentially be regulated by
this action. Other types of entities not
listed in the table could also be
regulated. To determine whether your
facility is regulated under this
rulemaking, you should carefully
examine the applicability criteria in 40
CFR 122.23. If you have questions
regarding the applicability of this action
to a particular entity, consult the person
listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
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B. What Should I Consider as I Prepare
My Comments for EPA?
1. Submitting Confidential Business
Information. Do not submit this
information to EPA through
www.regulations.gov or e-mail. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI
information in a disk or CD–ROM that
you mail to EPA, mark the outside of the
disk or CD–ROM as CBI and then
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North American
industry code
(NAIC)
Examples of regulated entities
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identify electronically within the disk or
CD–ROM the specific information that
is claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR Part 2.
2. Tips for Preparing Your Comments.
It will be helpful if you follow these
guidelines as you prepare your written
comments:
i. Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
ii. Follow directions—The Agency
may ask you to respond to specific
questions or organize comments by
referencing a Code of Federal
Regulations (CFR) part or section
number.
iii. Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
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112112
112111
11221
1241, 11242
11299
11212
11232
11231
11233
11234
11239
112390
11292
Standarial industrial classification
code
0211
0212
0213
0214
0219
0241
0251
0252
0253
0254
0259
0259
0272
iv. Describe any assumptions and
provide any technical information and/
or data that you used.
v. If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
vi. Provide specific examples to
illustrate your concerns, and suggest
alternatives.
vii. Explain your views as clearly as
possible.
viii. Make sure to submit your
comments by the comment period
deadline identified.
II. Background
A. The Clean Water Act
Congress passed the Federal Water
Pollution Control Act (1972), also
known as the Clean Water Act (CWA),
to ‘‘restore and maintain the chemical,
physical, and biological integrity of the
nation’s waters’’ (33 U.S.C. 1251(a)).
Among the core provisions, the CWA
establishes the NPDES permit program
to authorize and regulate the discharge
of pollutants from point sources to
waters of the U.S. 33 U.S.C. 1342.
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Section 502(14) of the CWA specifically
includes CAFOs in the definition of the
term ‘‘point source.’’ Section 502(12)
defines the term ‘‘discharge of a
pollutant’’ to mean ‘‘any addition of any
pollutant to navigable waters from any
point source’’ (emphasis added). EPA
has issued comprehensive regulations
that implement the NPDES program at
40 CFR Part 122. The Act also provides
for the development of technologybased and water quality-based effluent
limitations that are imposed through
NPDES permits to control the discharge
of pollutants from point sources. CWA
sections 301(a) and (b).
B. History of Actions to Address CAFOs
under the NPDES Permitting Program
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EPA’s regulation of wastewater and
manure from CAFOs dates to the 1970s.
EPA initially issued national effluent
limitations guidelines and standards for
feedlots on February 14, 1974 (39 FR
5704), and NPDES CAFO regulations on
March 18, 1976 (41 FR 11458).
In February 2003, EPA issued
revisions to these regulations that
focused on the 5% of the nation’s
animal feeding operations (AFOs) that
presented the highest risk of impairing
water quality and public health (68 FR
7176) (‘‘the 2003 CAFO rule’’). The 2003
CAFO rule required the owners or
operators of all CAFOs 1 to seek
coverage under an NPDES permit.
CAFO industry organizations (American
Farm Bureau Federation, National Pork
Producers Council, National Chicken
Council, and National Turkey
Federation (NTF), although NTF later
withdrew its petition) and
environmental groups (Waterkeeper
Alliance, Natural Resources Defense
Council, Sierra Club, and American
Littoral Society) filed petitions for
judicial review of certain aspects of the
2003 CAFO rule. This case was brought
before the U.S. Court of Appeals for the
Second Circuit. On February 28, 2005,
the court ruled on these petitions and
upheld most provisions of the 2003 rule
but vacated and remanded others.
Waterkeeper Alliance et al. v. EPA, 399
F.3d 486 (2nd Cir. 2005). The court’s
decision, which applies nationally, is
described in detail below.
The revisions to the 2003 CAFO rule
being proposed today relate directly to
the changes required by the court’s
decision and continue to maintain the
1 The Clean Water Act regulates the conduct of
persons, which includes the owners and operators
of CAFOs, rather than the facilities or their
discharges. To improve readability in this preamble,
reference is made to ‘‘CAFOs’’ as well as ‘‘owners
and operators of CAFOs.’’ No change in meaning is
intended.
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focus on regulating discharges from the
universe of high-risk AFOs.
C. Ruling by the U.S. Court of Appeals
for the Second Circuit
The Second Circuit’s decision in
Waterkeeper upheld certain challenged
provisions of the 2003 rule and vacated
or remanded others, as follows.
1. Issues Upheld by the Court
This section discusses provisions of
the 2003 CAFO rule that were
challenged by either industry or
environmental petitioners, but were
upheld by the Waterkeeper court and
therefore remain unchanged. EPA is not
proposing to revise any of these
provisions and is not soliciting
comment on them.
(a) Land Application Regulatory
Framework and Interpretation of
‘‘Agricultural Storm Water’’
The Waterkeeper court upheld EPA’s
authority to regulate, through NPDES
permits, the discharge of manure, litter,
and process wastewater that CAFOs
apply to crop or forage land. The court
rejected the industry petitioners’ claim
that land application runoff must be
channelized before it can be considered
to be a point source discharge subject to
permitting. The court noted that the
CWA expressly defines the term ‘‘point
source’’ to include ‘‘any * * *
concentrated animal feeding operation
* * * from which pollutants are or may
be discharged,’’ and found that the Act
‘‘not only permits, but demands’’ that
land application discharges be
construed as discharges ‘‘from’’ a CAFO.
Waterkeeper Alliance et al. v. EPA, 399
F.3d at 510.
The Waterkeeper court also upheld
EPA’s determination in the 2003 CAFO
rule that precipitation-related
discharges of manure, litter, or process
wastewater from land application areas
under the control of a CAFO qualify as
‘‘agricultural stormwater’’ only where
the CAFO has applied the manure in
accordance with nutrient management
practices that ensure ‘‘appropriate
agricultural utilization’’ of the manure,
litter, and process wastewater nutrients.
EPA’s interpretation of the Act in this
regard was reasonable, the court found,
in light of Congressional intent in
excluding agricultural stormwater from
the meaning of the term ‘‘point source’’
and given the precedent set in an earlier
Second Circuit case, Concerned Area
Residents for the Environment v.
Southview Farm, 34 F.3d 114 (2d Cir.
1994). Waterkeeper Alliance et al. v.
EPA, 399 F.3d at 508–09.
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(b) Effluent Guidelines
—Identification of best available
technologies. The court rejected the
environmental organizations’ claim
that when EPA chose the pollution
control technologies on which to base
effluent guidelines for CAFOs, the
Agency did not meet its duty to
identify the single CAFO with the
best-performing technology. The court
found that EPA had collected
extensive data on the waste
management systems at CAFOs and
had considered approximately 11,000
public comments on the proposed
CAFO rule, and on those bases, EPA
had adequately justified its selection
of ‘‘best available technologies’’ on
which to base the regulations.
—Groundwater controls. The court
upheld EPA’s decision in the 2003
rule relating to groundwater controls.
In the 2003 rule EPA stated that the
Agency believed that requirements
limiting the discharge of pollutants to
surface water via groundwater that
has a direct hydrologic connection to
surface water were beyond the scope
of the ELGs promulgated in the rule.
The Agency also stated that nothing
in the 2003 rule was to be construed
to expand, diminish, or otherwise
affect the jurisdiction of the CWA
over discharges to surface water via
groundwater that has a direct
hydrologic connection to surface
water.
—Economic methodologies. The court
upheld the analytic methodologies
that EPA used for determining
whether the technology-based permit
requirements for CAFOs set in the
2003 rule would be economically
achievable by the industry as a whole.
2. Issues Vacated by the Court
The following are the elements of the
2003 rule that the Waterkeeper court
found to be unlawful and therefore
vacated.
(a) Duty to Apply
The CAFO industry organizations
argued that the EPA exceeded its
statutory authority by requiring all
CAFOs to either apply for NPDES
permits or demonstrate that they have
no potential to discharge. The court
agreed with the CAFO industry
petitioners on this issue and therefore
vacated the ‘‘duty to apply’’ provision of
the 2003 CAFO rule.
The court found that the duty to
apply, which the Agency had based on
a presumption that most CAFOs have at
least a potential to discharge, was
invalid, because the CWA subjects only
actual discharges to permitting
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requirements rather than potential
discharges. The court acknowledged
EPA’s policy considerations for seeking
to impose a duty to apply but found that
the Agency lacked statutory authority to
do so.
(b) Nutrient Management Plans
The environmental organizations
argued that the 2003 CAFO rule was
unlawful because: (1) The rule
empowered permitting authorities to
issue permits without any meaningful
review of a CAFO’s NMP, (2) the rule
failed to require that the terms of the
nutrient management plan be included
in the NPDES permit, and (3) the
permitting approach established by the
rule violated the Clean Water Act’s
public participation requirements. The
court agreed with the environmental
petitioners on these three issues.
The court relied on provisions of the
Act that authorize point source
discharges only where NPDES permits
‘‘ensure that every discharge of
pollutants will comply with all
applicable effluent limitations and
standards,’’ citing CWA sections
402(a)(1), (a)(2), and (b). Because the
2003 CAFO rule did not provide for
permitting authority review of a CAFO’s
nutrient management plan before the
permit was issued, the court found that
the rule did not ensure that each Large
CAFO’s discharges comply with these
CWA provisions. In addition, the court
found that by not making the NMPs part
of the permit and available to the public
for review, the 2003 CAFO rule violated
public participation requirements in
sections 101(e) and 402 of the Act. The
court also found that the terms of the
NMPs themselves are ‘‘effluent
limitations’’ as that term is defined in
the Act and therefore must be made part
of the permit and enforceable as
required under CWA sections 301 and
402.
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3. Issues Remanded by the Court
The Waterkeeper court also remanded
other aspects of the CAFO rule to EPA
‘‘for further clarification and analysis,’’
as follows:
(a) Water Quality-Based Effluent Limits
The court agreed with EPA that
agricultural stormwater is excluded
from the meaning of the term ‘‘point
source’’ and therefore is not subject to
water quality-based effluent limitations
in permits. However, the court directed
EPA to ‘‘clarify the statutory and
evidentiary basis for failing to
promulgate water quality-based effluent
limitations for discharges other than
agricultural stormwater discharges as
that term is defined in 40 CFR
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122.23(e),’’ and to ‘‘clarify whether
States may develop water quality-based
effluent limitations on their own.’’
(b) New Source Performance
Standards—100-Year Storm Standard
The 2003 CAFO rule set the new
source performance standards (NSPS)
for swine, poultry, and veal CAFOs at a
level of zero discharge. A CAFO in these
categories could fulfill this requirement
by showing that either (1) its production
area was designed to contain all
manure, litter, process wastewater, and
precipitation from the 100-year, 24-hour
storm, or (2) it would comply with
‘‘voluntary superior environmental
performance standards’’ based on
innovative technologies, under which a
discharge from the production area
would be allowed if it was accompanied
by an equivalent or greater reduction in
the quantity of pollutants released to
other media (e.g., air emissions). The
court found that EPA had neither
justified in the record nor provided an
adequate opportunity for public
comment with respect to either of these
provisions. As a result, the court
remanded these provisions to EPA to
clarify, via a process that adequately
involves the public, the statutory and
evidentiary basis for them.
(c) BCT Effluent Guidelines for
Pathogens
The court held that the 2003 CAFO
rule violated the CWA because EPA had
not made an affirmative finding that the
BCT-based Effluent Limitations
Guidelines (ELGs)—i.e., the ‘‘best
conventional technology’’ guidelines for
conventional pollutants such as fecal
coliform—do in fact represent BCT
technology. The court remanded this
issue to EPA to make such a finding
based on the BAT/BPT technologies
EPA studied or to establish specific BCT
limitations for pathogens based on some
other technology.
D. What Requirements Still Apply to
CAFOs?
The Waterkeeper decision either
upheld or did not address most
provisions of the 2003 CAFO rule. This
section describes certain key portions of
the rule that were not challenged in
Waterkeeper. These unchallenged
provisions are not addressed in or
affected by today’s proposal, except to
provide background information. EPA
has not reconsidered its initial decision
regarding these provisions and is not
soliciting comment on them.
The definitions provided in 40 CFR
122.23(b) of the 2003 CAFO rule remain
in effect and are unchanged. First, an
operation must be defined as an animal
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feeding operation (AFO) before it can be
defined as a concentrated animal
feeding operation (CAFO). 40 CFR
122.23. The term ‘‘animal feeding
operation’’ is defined by EPA regulation
as a ‘‘lot or facility’’ where animals
‘‘have been, are or will be stabled or
confined and fed or maintained for a
total of 45 days or more in any 12 month
period and crops, vegetation, forage
growth, or post harvest residues are not
sustained in the normal growing season
over any portion of the lot or facility.’’
Whether an AFO is a CAFO depends
primarily on the number of animals
confined, which is also unchanged.
Large CAFOs are AFOs that confine
more than the threshold number of
animals detailed in 40 CFR 122.23(b)(4).
Medium CAFOs confine fewer animals
than Large CAFOs and also: (1)
Discharge pollutants into waters of the
U.S. through a man-made ditch,
flushing system, or other similar manmade device; or (2) discharge pollutants
directly into waters of the U.S. which
originate outside of and pass over,
across, or through the facility or
otherwise come into direct contact with
the confined animals. 40 CFR
122.23(b)(6)(ii). The NPDES permitting
authority also may, on a case-by-case
basis, designate any AFO, including
small AFOs, as a CAFO after conducting
an on-site inspection and finding that
the facility ‘‘is a significant contributor
of pollutants to waters of the United
States.’’ 40 CFR 122.23(c). The
permitting authority may not exercise
its authority to designate a Small CAFO
unless pollutants are discharged into
waters of the U.S. through a man-made
ditch, flushing system, or other similar
man-made device, or are discharged
directly into waters of the U.S. which
originate outside of the facility and pass
over, across, or through the facility or
otherwise come into direct contact with
the animals confined in the operation.
40 CFR 122.23(c)(3).
Although the Waterkeeper decision
invalidated the duty to apply provision
promulgated in the CAFO regulations at
40 CFR 122.23(d), there remains in the
NPDES regulations a different duty to
apply provision, at 40 CFR 122.21(a),
that applies to point sources in general,
including CAFOs. While the CAFO
provision in § 122.23(d) would have
required all CAFOs to apply for a
permit, § 122.21(a) requires only a
person who ‘‘discharges or proposes to
discharge pollutants’’ to apply. The
Waterkeeper decision did not invalidate
§ 122.21(a), nor is this provision’s
continued application to CAFOs
inconsistent with the decision in
Waterkeeper. Therefore, under
§ 122.21(a), CAFOs currently are
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required to apply for an NPDES permit
if they discharge or propose to discharge
pollutants other than agricultural
stormwater, which is not a point source
discharge.
It should also be noted that the
definitions of both ‘‘Medium CAFO’’
and ‘‘Small CAFO’’ in the regulations
include only those facilities that have an
actual discharge. Thus, under
§ 122.21(a), all Medium and Small
CAFOs must apply for a permit.
Nutrient management planning
requirements for permitted CAFOs
established in the 2003 CAFO rule also
were unaffected by the court’s ruling.
All permitted CAFOs must develop and
implement an NMP that meets the
requirements of 40 CFR 122.42(e) and,
for Large CAFOs subject to 40 CFR Part
412, subpart C or D, 40 CFR 412.4. The
NMP identifies the necessary actions to
ensure that runoff is eliminated or
minimized through proper and effective
manure, litter, and wastewater
management, including compliance
with the ELGs. Permitted CAFOs must
comply with all applicable
recordkeeping and reporting
requirements, including those specified
in 40 CFR 122.42(e).
ELG requirements for existing Large
CAFOs also are unaffected by the court
decision, with the exception of changes
to the NMP compliance dates and BCT.
ELG requirements ensure the
appropriate storage of manure, litter,
and process wastewater and proper land
application practices. They vary
depending upon the types of animals
confined: Subpart A for horses and
sheep; Subpart B for ducks; Subpart C
for dairy cattle, heifers, steers, and bulls;
and Subpart D for swine, poultry, and
veal calves. (40 CFR Part 412).
Additionally, New Source requirements
for beef and dairy operations remain
unchanged (40 CFR 412.35).
Permitted small and medium CAFOs
are not subject to the ELGs specified in
part 412. Rather, they must comply with
technology-based requirements
developed by the permitting authority
on a case-by-case basis (i.e., Best
Professional Judgment (BPJ)).
E. Status of EPA’s Response to the
Waterkeeper Decision
In addition to the changes made
through this proposed rule, EPA
extended certain deadlines in the
NPDES permitting requirements and
ELGs in a separate rulemaking in order
to allow the Agency adequate time to
complete this rulemaking in response to
the Waterkeeper decision in advance of
those deadlines. (71 FR 6978). That rule
revised dates established in the 2003
CAFO rule by which facilities newly
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defined as CAFOs were required to seek
permit coverage and by which all
CAFOs were required to have nutrient
management plans developed and
implemented. EPA extended the date by
which operations defined as CAFOs as
of April 14, 2003, who were not defined
as CAFOs prior to that date, must seek
NPDES permit coverage, from February
13, 2006, to July 31, 2007. EPA also
amended the date by which operations
that become defined as CAFOs after
April 14, 2003, due to operational
changes that would not have made them
a CAFO prior to April 14, 2003, and that
are not new sources, must seek NPDES
permit coverage, from April 13, 2006, to
July 31, 2007. Finally, EPA extended the
deadline by which CAFOs are required
to develop and implement nutrient
management plans, from December 31,
2006, to July 31, 2007. That rulemaking
revised all references to the date by
which NMPs must be developed and
implemented as specified in the 2003
CAFO rule.
III. This Proposal
This proposed rule is in response to
the Second Circuit Court’s vacature and
remand orders. EPA intends to make
only those changes necessary to address
the court’s decision.
A. Duty To Apply for a Permit
1. Provisions in the 2003 CAFO Rule
(a) Duty To Apply
The 2003 CAFO rule required all
CAFOs to seek coverage under an
NPDES permit unless the Director
determined that the CAFO has no
potential to discharge. The breadth of
this duty to apply was based on EPA’s
presumption that most CAFOs have a
potential to discharge pollutants into
waters of the United States. Therefore,
all CAFOs were required to apply for a
permit, except where the Director
determined a CAFO had no potential to
discharge.
(b) ‘‘No Potential To Discharge’’
Determination
The 2003 CAFO rule included a
process for CAFOs to seek a ‘‘no
potential to discharge’’ determination by
the Director. Where the Director
determined, based on information
supplied by the CAFO operator, that a
CAFO had no potential to discharge
manure, litter, or process wastewater,
the CAFO operator had no duty to apply
for a permit, unless circumstances at the
facility changed such that the facility
would have the potential to discharge.
Examples of facilities that possibly
would have qualified for this exemption
included facilities in very arid areas,
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facilities that are downslope from
waters of the United States, and
facilities with completely enclosed
operations.
2. Summary of the Second Circuit Court
Decision
The Second Circuit Court of Appeals
vacated the provision that required all
CAFO owners or operators to apply for
an NPDES permit. The court held that
the Clean Water Act authorizes EPA to
require permits for the actual discharge
of pollutants, but not for mere potential
discharges. Because the 2003 CAFO rule
imposed an obligation on all CAFOs to
either apply for an NPDES permit or
affirmatively demonstrate that they have
no potential to discharge, the court
ruled that it exceeded EPA’s authority
under the Clean Water Act.
3. This Proposal
To address the court’s decision on the
duty to apply, EPA is proposing changes
to the 2003 CAFO rule in two areas:
• Revising the requirement that all
CAFOs apply for an NPDES permit; and
• Eliminating the procedures for a no
potential to discharge determination.
EPA also seeks to clarify how
unpermitted CAFOs may meet the
agricultural stormwater exemption
when they land apply manure, litter, or
process wastewater.
(a) Requirement That All CAFOs With a
Discharge Seek Permit Coverage
EPA is proposing to delete the ‘‘duty
to apply’’ requirement adopted in the
2003 rule, which states that all CAFO
owners or operators must seek coverage
under an NPDES permit (40 CFR
122.21(a)(1) and 40 CFR 122.23(a) and
(d)(1)).
Today’s proposed rule would replace
the ‘‘duty to apply’’ requirement of the
2003 rule with a requirement that all
CAFOs that ‘‘discharge or propose to
discharge’’ must seek coverage under an
NPDES permit. This proposed change
would address the Waterkeeper court’s
ruling and would hold CAFO owners
and operators to the same ‘‘duty to
apply’’ requirement as already exists for
point sources under 40 CFR
122.21(a)(1).
The result of this proposed revision is
that only owners and operators of those
CAFOs that discharge or propose to
discharge would be required to seek
coverage under an NPDES permit. This
revised duty to apply applies to all
owners and operators that discharge or
propose to discharge, regardless of the
volume or duration of the discharge
except for discharges of agricultural
stormwater (see below). A facility may
seek permit coverage in one of two
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ways, by submitting an application for
an individual permit or by submitting a
notice of intent to be covered by a
general permit that has been issued by
the permitting authority. Generally,
under this proposal, it would be the
CAFO’s responsibility to decide
whether or not to seek permit coverage
based on whether they discharge or
propose to discharge. This is how the
NPDES program operates for other point
sources. Any CAFO that discharged or
proposed to discharge and failed to
obtain an NPDES permit would be in
violation of the NPDES regulatory
requirement to seek coverage under an
NPDES permit. A facility with an actual
discharge would also be in violation of
the CWA prohibition against
discharging without an NPDES permit
(33 U.S.C. 1311(a)).
Any discharge from a CAFO, even one
that is unplanned or accidental, is
illegal unless it is authorized by the
terms of a permit. Many CAFOs have
conditions that may result in a
discharge. For example, manure
structures that are improperly designed
or, for other reasons, have insufficient
capacity (e.g., due to facility expansion)
may discharge. In addition, discharges
can occur from a properly designed
containment structure that is
improperly operated and maintained or
as a result of precipitation that exceeds
the operating capacity of the structure.
In the absence of an actual discharge or
proposed discharge, CAFOs with such
conditions are not required under the
terms of today’s proposed rule to obtain
an NPDES permit. However, the owner
or operator of a CAFO that fails to
obtain an NPDES permit and has a
discharge is subject to State or federal
enforcement, as well as liability from
citizen suits under CWA Section 505(a).
Because discharges are prohibited
from unpermitted CAFOs, NPDES
permit coverage reduces CAFO operator
risk and provides certainty to CAFO
operators regarding activities and
actions that are necessary to comply
with the Clean Water Act. Compliance
with the permit is deemed compliance
with the CWA and thus acts as a shield
against EPA enforcement or citizen suits
under CWA Section 402(k).
Furthermore, under the 2003 rule, most
CAFO NPDES permits will incorporate
ELG provisions that allow for discharge
when precipitation causes an overflow
from a structure that is properly
designed, constructed, operated, and
maintained, in accordance with the
applicable design standards. Finally,
upset provisions can protect permittees
from legal liability when emergencies or
natural disasters cause discharges
beyond the permittee’s reasonable
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control, as provided in § 122.41(n). This
protection is not available to
unpermitted CAFOs.
There are many factors a CAFO owner
or operator should consider in
determining whether to seek permit
coverage. For example, if the CAFO is
in a flood plain, subject to high annual
precipitation, or subject to lengthy rainy
seasons, it is likely to have a discharge
if the CAFO drains to a water of the
United States. Other factors likely to
result in a discharge include runoff from
open feed bunkers, field storage, or
other stockpiles exposed to
precipitation; lagoons that are not
sufficiently pumped down for the
upcoming winter season; holding of
process wastewater for summer
irrigation that precludes adequate
capacity for chronic rainfalls; and
inadequate containment due to
unavailability of land for manure, litter,
or process wastewater application due
to timing constraints associated with,
for example, saturated ground or
imminent rain. In addition, a discharge
may occur from land application due to
improper maintenance or operation of
manure handling equipment that may
lead to spills, and application of
manure, litter or process wastewater to
land in such a way that it does not
qualify for the agricultural stormwater
exemption (see below).
EPA recognizes that some CAFOs
have a higher likelihood of actually
discharging due to certain geographic
and physiographic conditions. In order
to guide CAFOs in making a decision on
whether or not to seek permit coverage,
EPA suggests that Large CAFOs falling
into one or more of these categories
should consider seeking permit
coverage (this list is not intended to be
exhaustive):
1. Where a CAFO is located in close
proximity to waters of the United States
with land classified in USDA Land Use
Capability Classes III through VIII 2;
2 Land capability classification is a system of
grouping soils primarily on the basis of their
capability to produce common cultivated crops and
pasture plants without deteriorating over a long
period of time. Soil survey map units contained in
United States Department of Agriculture (USDA)
soil surveys typically are assigned a land capability
classification. The eight classes are defined as
follows: Class 1 soils have slight limitations that
restrict their use; Class 2 soils have moderate
limitations that reduce the choice of plants or
require moderate conservation practices; Class 3
soils have severe limitations that reduce the choice
of plants or require special conservation practices,
or both; Class 4 soils have very severe limitations
that restrict the choice of plants or require very
careful management, or both; Class 5 soils have
little or no hazard of erosion but have other
limitations, impractical to remove, that limit their
use mainly to pasture, range, forestland, or wildlife
food and cover; Class 6 soils have severe limitations
that make them generally unsuited to cultivation
and that limit their use mainly to pasture, range,
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37749
2. Where the CAFO’s production area
is not designed and operated for zero
discharge, including where the
containment structure is not designed or
maintained to contain all manure, litter,
process wastewater, precipitation and
runoff that may accumulate during
periods when the facility is unable to
land apply in accordance with a
nutrient management plan;
3. Where a CAFO that land applies
does not have or is not implementing
nutrient management planning that is
designed to ensure that any land
application runoff qualifies for the
agricultural stormwater exemption; and
4. Where the CAFO has had a
discharge in the past and has not
corrected the factors that caused the
discharge to occur.
EPA seeks comment on the
completeness and accuracy of the above
list of situations where a discharge may
occur to further assist CAFOs in their
decisions regarding whether or not to
seek permit coverage.
EPA also solicits comment on its
proposal to replace the duty to apply
provision promulgated in the 2003
CAFO rule with the narrower duty to
apply provision described above.
(b) ‘‘No Potential to Discharge’’
Determination
EPA is proposing to delete the
regulatory provisions adopted in the
2003 CAFO rule allowing CAFOs to
demonstrate that they have no potential
to discharge and authorizing the
Director to make such a determination.
40 CFR 122.23(d)(2) and 122.23(f). Such
a designation would be irrelevant
because the proposed rule requires only
those CAFOs that discharge or propose
to discharge to seek coverage under a
permit.
(c) Agricultural Storm Water
The discharge of manure, litter, or
process wastewater from a land
application area under the control of a
CAFO is a discharge subject to NPDES
permit requirements, unless the
discharge is agricultural stormwater,
which is excluded from the meaning of
the term ‘‘point source’’ under 33 U.S.C.
1362(14).
As described in the preamble to the
2003 rule, EPA recognized that manure,
litter, or process wastewater applied in
accordance with practices designed to
forestland, or wildlife food and cover; Class 7 soils
have very severe limitations that make them
unsuited to cultivation and that restrict their use
mainly to grazing, forestland, or wildlife; and Class
8 soils and miscellaneous areas (areas dominated by
disturbed soil) have limitations that preclude their
use for plant production and limit their use to
recreation, wildlife, or water supply or for esthetic
purposes.
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ensure appropriate agricultural
utilization of nutrients fulfills an
important agricultural purpose, namely
the fertilization of crops, while reducing
the potential for a subsequent discharge
of pollutants to waters of the U.S.
However, EPA also recognized that
some runoff may occur during rainfall
events even when a CAFO applies
manure, litter, or process wastewater in
accordance with practices designed to
ensure appropriate agricultural
utilization of nutrients. EPA believed
that the potential for runoff and water
quality impairments would be
minimized where a CAFO implemented
a site-specific NMP in conformance
with 40 CFR 122.42(e)(1)(vi)–(ix) and,
for Large CAFOs, the additional
management practices required in 40
CFR 412.4(c).
In the 2003 rule, EPA promulgated a
definition of agricultural stormwater
that included compliance with 40 CFR
122.42(e)(1)(vi–ix). The referenced
regulatory text includes requirements
for edge-of-field buffers, testing of
manure and soil, land application at
agronomic rates, and record keeping.
While not explicitly included in the
definition, Large CAFOs were also
required under the effluent guidelines to
comply with technical standards
established by the Director, in
accordance with 40 CFR 412.4(c). These
more specific limitations implemented
the general requirements at 40 CFR
122.42(e)(1)(vi–ix), and because all
CAFOs with a potential to discharge
were required to obtain permits,
virtually all Large CAFOs were required
to comply with them.
Under today’s proposed rulemaking,
Large CAFOs that have only agricultural
stormwater discharges from their land
application area, and no other
discharges or proposed discharges from
their production or land application
areas, would no longer be required to
seek permit coverage. (See 40 CFR
122.23(e).) However, precipitationrelated discharges from CAFO land
application areas would be considered
agricultural stormwater only where the
CAFO land applies in accordance with
nutrient management practices that
meet the requirements of 40 CFR
122.42(e)(1)(vi)–(ix). EPA believes that,
in order for the owner or operator of a
CAFO to qualify for the statutory
agricultural stormwater exemption,
manure, litter, and process wastewater
must be applied in compliance with
technical standards that are, in
significant part, intended to ensure the
appropriate agricultural utilization of
the nutrients contained in the manure,
litter, and process wastewater.
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The Second Circuit upheld EPA’s
definition of agricultural stormwater,
and EPA is not proposing to change the
definition at this time, or requesting
comment on such a change. However,
EPA is considering requiring explicitly
that Large CAFOs that are not permitted
because they do not discharge or
propose to discharge comply with the
technical standards for land application
established by the Director (in addition
to meeting the requirements of 40 CFR
122.42(e)(1)(vi–ix)) in order for runoff
from their fields to be considered
agricultural stormwater (which is
exempt from permitting requirements).
Even if EPA does not adopt this
requirement explicitly, EPA believes
that unpermitted Large CAFOs should
incorporate the technical standards
established by the Director into their
NMPs. EPA also recommends that small
or medium AFOs use nutrient
management practices consistent with
40 CFR 122.42(e)(1)(vi–ix) and comply
with the applicable technical standards
in their land application of manure,
litter, or process wastewater. EPA
requests comment on this issue.
Unpermitted CAFOs that land apply
manure, litter, or process wastewater
must document that they are land
applying in accordance with the
requirements described above in order
to qualify for the statutory exclusion for
agricultural stormwater. (See 40 CFR
122.42(e)(1)(ix).) The documentation
required includes both the nutrient
planning and the additional
recordkeeping necessary to demonstrate
that the CAFO properly land applied
manure, litter, or process wastewater in
accordance with 40 CFR
122.42(e)(1)(vi)–(ix), including the
technical standards used to translate
these requirements into specific land
application rates and practices. EPA
believes that an appropriate approach to
planning and documenting such
practices is by preparing a
comprehensive nutrient management
plan in accordance with guidance
provided by USDA and the appropriate
technical standards. Whatever form the
documentation takes, it must be
maintained on site. This documentation
is crucial in determining whether the
CAFO is land applying manure, litter, or
process wastewater in a manner that
ensures the appropriate agricultural
utilization of nutrients and, as a result,
is not illegally discharging pollutants
from land application areas.
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B. Nutrient Management Plans
1. Provisions in the 2003 CAFO Rule
Affected by the Court Decision
(a) Requirement to Develop and
Implement a Nutrient Management Plan
Under the 2003 CAFO rule, NPDES
permits for all CAFOs must include a
requirement for the permittee to develop
and implement a nutrient management
plan. At a minimum, the NMP must
include BMPs and procedures necessary
to achieve effluent limitations and
standards. The plan must, to the extent
applicable, include the minimum
elements established at 40 CFR
122.42(e)(1)(i)–(ix). For Large CAFOs in
the cattle, swine, poultry, and veal
subcategories, the NMP must also meet
the more detailed requirements in the
Part 412 effluent limitations guidelines.
For Small and Medium CAFOs, or other
operations not otherwise subject to Part
412 requirements for land application,
the required elements of a nutrient
management plan would be further
specified in the permit based on the best
professional judgment (BPJ) of the
permitting authority. The Second
Circuit’s decision did not affect these
provisions and EPA is not revisiting
them or soliciting comments.
(b) Due Dates for Developing and
Implementing Nutrient Management
Plans
The 2003 CAFO rule required all
CAFOs to develop and implement an
NMP by December 31, 2006, except that
CAFOs seeking to obtain coverage under
a permit subsequent to that date were
required to have an NMP developed and
implemented upon the date of permit
coverage. This timing was consistent
with the dates for the implementation of
the ELG, which required existing Large
CAFOs to implement the land
application requirements at 40 CFR
412.4(c) by December 31, 2006.
(Following the court decision these
dates were extended to July 31, 2007, to
give EPA time to complete the current
rulemaking (see Section II.E).)
As discussed in the preamble to the
2003 CAFO rule, EPA believed that
these dates were reasonable given that
operations would have had three and a
half years from the time the 2003 rule
was issued to conduct the necessary
planning and construction to implement
an NMP. For Large CAFOs that are new
sources (i.e., those commencing
construction after the effective date of
the 2003 CAFO rule), the land
application requirements at 40 CFR
412.4(c) apply immediately.
EPA concluded that this timeframe
also allowed States to update their
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NPDES programs and issue permits to
reflect the NMP requirements of the
2003 CAFO rule and provided flexibility
for permit authorities to establish permit
schedules based on specific
circumstances, including prioritization
of nutrient management plan
development and implementation based
on site-specific water quality risks and
the availability of technical expertise for
development of NMPs.
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2. Summary of the Second Circuit Court
of Appeals Decision on Nutrient
Management Plans
As previously discussed, the Second
Circuit Court of Appeals found that the
terms of the NMPs were effluent
limitations and vacated the 2003 CAFO
rule insofar as the rule allowed
permitting authorities to issue NPDES
permits to CAFOs without: reviewing
the terms of the nutrient management
plans, providing for adequate public
participation in the development,
revision, and enforcement of the
nutrient management plans, and
including the terms of the nutrient
management plan in the permit.
The decision did not affect the
required contents of nutrient
management plans established at 40
CFR 122.42(e)(1) and 40 CFR 412.4(c)(1)
in the 2003 CAFO rule.
The Second Circuit court decision did
not vacate any NPDES permits issued
pursuant to the 2003 CAFO rule.
Therefore, such permits already issued
to CAFOs by States or EPA prior to June
27, 2005 (the effective date of the court’s
decision), are not directly affected by
the court decision and the nutrient
management plan requirements in those
permits remain in effect until and
unless the permits are modified,
revoked and reissued, or terminated in
accordance with State regulations.
3. This Proposal
To address the court’s decision, EPA
is proposing regulatory revisions to the
2003 CAFO rule and other provisions of
the NPDES regulations to provide for:
• Receipt and review of the nutrient
management plan by the permitting
authority prior to issuing an individual
permit or granting coverage under a
general permit;
• Procedures to provide opportunity
for adequate public participation prior
to issuing an individual permit or
granting coverage under a general
permit; and
• Incorporation of the terms of the
nutrient management plan into the
NPDES permit.
In proposing these revisions, EPA has
devoted particular attention to the
process for issuance of general permits,
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because most CAFOs are expected to be
covered by general permits and, for
those that will be permitted under
individual permits, the individual
permitting process already allows for
review of NMPs by the permitting
authority, public review of an NMP as
part of the individual permit application
process, and incorporation of the terms
of the NMP into the individual permit
consistent with the CWA. Further, EPA
proposes a process to address changes to
the NMP once permit coverage is
granted, for both individual and general
permits. To effectuate these changes,
EPA is proposing regulatory revisions to
40 CFR 122.21, 122.23, 122.28, 122.42,
122.62, and 122.63. In addition, in a
separate rulemaking EPA extended the
deadlines set in the 2003 CAFO rule for
NMP development and implementation,
as well as for newly defined CAFOs to
seek permit coverage. (71 FR 6978.)
The preamble discussion that follows
is divided into six sections to separately
address each of the following issues:
• CAFO permit application and
notice of intent requirements;
• Procedures for permitting authority
review;
• Procedures for public review and
comment;
• Incorporation of nutrient
management plan terms in NPDES
permits;
• Changes to nutrient management
plans; and
• Required dates to seek coverage
under a permit and submit an NMP.
(a) CAFO Permit Application or Notice
of Intent Requirements for Nutrient
Management Plans
In order to satisfy the court’s
requirements that the terms of a nutrient
management plan must be publicly
reviewed and incorporated into the
permit, EPA is proposing to revise 40
CFR 122.21(i)(1)(x) to require the
applicant to submit, as part of its permit
application or notice of intent (NOI), a
nutrient management plan developed in
accordance with the provisions of 40
CFR 122.42(e)(1) and 40 CFR
412.4(c)(1), as applicable. Although this
proposed change would be codified in
the section of the regulations applicable
to individual permit applications (40
CFR 122.21(i)(1)), it would also apply to
notices of intent to be covered by a
general permit, because 40 CFR
122.28(b)(2)(ii), the regulation governing
notices of intent for general permits,
incorporates the requirements of 40 CFR
122.21(i)(1) by reference. EPA
Application Form 2B will also be
revised to reflect these changes. The
revised form is provided as Appendix A
to this notice.
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This approach is consistent with the
decision of the Second Circuit Court of
Appeals, which left undisturbed the
basic substantive requirements for
nutrient management plans in the 2003
CAFO rule. The proposed revisions
would not change the required contents
of the NMP, but would now require
CAFOs to submit the plan with the
application or the notice of intent rather
than only at the request of the Director.
The permitting authority would then
make the nutrient management plan
available for review prior to developing
an individual permit or providing
coverage under an NPDES general
permit.
(b) Procedures for Permitting Authority
Review
Once the permitting authority
receives an application or an NOI from
a CAFO seeking permit coverage, it
would be the responsibility of the
permitting authority to review the
application or NOI to ensure that the
nutrient management plan meets the
requirements of 40 CFR 122.42(e)(1)
and, for Large CAFOs, the applicable
requirements of 40 CFR 412.4(c). As part
of that process, the Director would
review the NMP for completeness and
sufficiency. EPA believes that this
review process responds to the
Waterkeeper decision by providing for
permitting authority review of the NMP.
For individual permits, the NMP
would be submitted and reviewed as
part of the permit application. The
decision-making procedures in 40 CFR
Part 124 continue to apply to the
Director’s review of the application,
which now would include the NMP.
Part 124 requires review of the
completeness and sufficiency of the
permit, includes an opportunity for the
CAFO to modify the plan or provide
additional information to the permitting
authority, and provides for a final
decision by the Director after an
opportunity for public comment and a
public hearing.
While the review process for NMPs in
individual permits is already
established in existing NPDES
regulations, there are gaps in the
requirements for general permitting of
CAFOs that EPA proposes to fill in
order to address the Second Circuit
Court decision. Specifically, EPA is
proposing new regulatory provisions to
establish permitting authority review of
NMPs for CAFO general permits. These
procedures are in the proposed new
Paragraph (d) to be added to 40 CFR
122.28.
Proposed 40 CFR 122.28(d) would
require the Director to review the NMP
submitted with the NOI and to take
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appropriate steps to ensure that the
NMP meets the requirements of the
regulations. If upon review the
permitting authority determines that
additional information is necessary to
complete the notice of intent or clarify,
modify, or supplement previously
submitted material, the Director would
notify the CAFO owner or operator and
request the appropriate information be
provided. When the NOI is complete the
permitting authority would notify the
public of its receipt and of the terms of
the nutrient management plan proposed
to be incorporated into the existing
general permit as terms and conditions
applicable to that CAFO. Following an
opportunity for public comment and
public hearing, the permitting authority
would decide whether to authorize
coverage under the general permit and
incorporate the terms of the NMP into
the general permit for that CAFO.
EPA is considering the use of a
template which could be used as a
voluntary tool to facilitate completion of
the NMP by CAFO applicants, as well
as to facilitate review by the permitting
authority. Such a template would help
to systematically organize the
information necessary to satisfy the
NMP requirements in the regulation.
The template could, for example, be
used as a form, that when completed by
the operator, and approved by the
permitting authority, could suffice as
the NMP itself. Alternatively, it could
also be used as a checklist that the
operator and/or permitting authority
could use to organize the information in
the NMP and to assist in assessing its
adequacy (see Section III.B.3.d, below).
It would be up to the permitting
authority’s discretion as to how to
incorporate the terms of the NMP into
the permit and permitting authorities
might need to tailor any template to
their permit process and technical
requirements, including the technical
standards established by the Director.
EPA has developed a draft template
for public review that is intended to be
user friendly. It follows the
requirements for an NMP identified in
40 CFR 122.42(e) relating to: manure
storage; management of animal
mortalities; diversion of clean water;
prevention of direct contact of animals
with waters of the US; chemical
handling; site-specific conservation
practices; protocols for testing manure,
litter, process wastewater and soil;
protocols for land application; and
recordkeeping. This draft template is in
the public record for this rulemaking at
www.regulations.gov under docket #
EPA–HQ–OW–2005–0037 and is also
available on the EPA Web site at
www.epa.gov. EPA is interested in
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receiving feedback on the form and
content of the template.
(c) Procedures for Public Participation
Prior to Permit Coverage
As noted above, the regulatory
procedures for public participation in
the issuance of individual permits are
already established. (See generally, 40
CFR Part 124.) Because the NMP would
be part of the individual permit
application, it would be subject to
existing regulations requiring public
participation, including the requirement
for public notice (40 CFR 124.10) and
the opportunity for the public to
provide comments and request a public
hearing (40 CFR 124.11). Because of the
proposed regulatory change requiring
nutrient management plans to be
submitted with the permit application
(see discussion at II.B.3.i.; 40 CFR
122.21 and 122.28), the public would
have access to the nutrient management
plan prior to permit issuance and would
also have full opportunity to comment
on the adequacy of the plan and on the
nutrient management terms and
conditions of the draft NPDES permit
developed for the specific CAFO
facility. EPA believes that this process
responds to the court’s decision.
The general permit issuance process
differs from the individual permitting
process discussed above in the way in
which a permit is developed and the
means by which individual facilities
obtain coverage under the permit. A
general permit is developed by the
permitting authority to cover multiple
facilities without the need to receive
individual permit applications from
facilities in advance of the development
of the permit. Once the draft general
permit is developed, the public
(including potential future permittees)
is provided the opportunity to review
the permit, submit comments, and
request a hearing. After considering any
comments submitted, the permitting
authority then finalizes the general
permit. Once the final general permit is
issued, facilities may submit a notice of
intent (NOI) seeking coverage under the
permit. Typically, the permitting
authority then grants coverage, without
the need for further public notice and
comment, or requires the facility to seek
coverage under an individual permit.
Following the Waterkeeper decision,
general permits for CAFOs must be
modified, once issued, to include the
terms of an NMP applicable to a specific
CAFO. Moreover, Waterkeeper requires
that the public have an opportunity to
comment on the incorporation of NMP
requirements into the permit. Thus, a
second round of public notice and
comment is necessary when providing
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coverage for CAFOs under a general
permit. There is no provision in the
existing regulations that explicitly
addresses incorporation of site-specific
requirements into a general permit
when a CAFO seeks coverage or any
additional public process for such
incorporation.
Today, in proposed 40 CFR 122.28(d),
EPA proposes to establish new
procedures applicable to the general
permitting process that would allow the
incorporation of the site-specific NMPs
into CAFO general permits and provide
an opportunity for public review of a
CAFO’s NOI (including the entire NMP)
before the CAFO receives coverage
under a general permit. The proposed
procedures would also allow the public
to review and comment on those terms
of the nutrient management plan to be
incorporated into the permit, and to
request a public hearing before a CAFO
receives coverage under a general
permit. The discussion that follows
describes the process for public
participation that EPA is proposing.
Further discussion of incorporation of
the terms of the NMP into the general
permit is provided below in section
III.B.3.d of this preamble.
The proposed § 122.28(d) would
provide specific procedures for public
participation. The proposed rule would
require that, for each facility submitting
a completed NOI, the permitting
authority must notify the public of the
following: (1) That it has received a
complete NOI; (2) that the permitting
authority is proposing to allow coverage
under the general permit; and (3) that
the nutrient management plan is
available for public review, along with
the terms of the nutrient management
plan proposed to be incorporated into
the permit by the permitting authority.
Today’s proposed rule would allow
the permitting authority discretion as to
how best to provide such public
notification in the general permit
context. For example, public
notification could be provided on the
permitting authority’s web page or
through other electronic means. Another
alternative would be to use the notice or
fact sheet for the general permit to
establish a procedure allowing any
person to request notice by mail or
electronically of the receipt of an NOI,
the permitting authority’s proposed
action, and the terms of the nutrient
management plan proposed to be
incorporated into the permit. EPA
believes that these are appropriate ways
to balance the competing concerns of
providing adequate notification to the
public, providing flexibility to the
permitting authority, and ensuring the
practicality of general permits. The
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permitting authority should describe the
process to be used to give the public
notice of and comment opportunities on
site-specific NMPs in the draft and final
general permit to ensure meaningful
public participation. EPA solicits
comment on the methodology for
providing public notice.
Under today’s proposal, the Director
would also have discretion to establish
an appropriate period of time for public
review of the NOI and proposed permit
conditions incorporating the terms of
the NMP into the permit. For example,
the Director might establish a period of
30 days, depending upon a variety of
factors. Factors to consider might
include the number of NOIs being
publicly noticed at any one time, the
complexity of the material made
available for public review, expected
level of public interest based on prior
notices of CAFOs seeking coverage, the
relative availability of NOIs to the
public (e.g., on the internet), the
opportunity for the public to extend the
comment period for one or more
facilities, and whether individuals can
request and receive individual
notification of CAFOs seeking coverage
in a timely fashion. Because this
proposal would not mandate a 30-day
public notice period as currently
required in 40 CFR 124.10, EPA would
require that the Director establish a time
frame for public review by regulation or
propose the time frame for public notice
in the draft general permit and include
it as a provision in the final permit. This
would allow the public and other
interested parties an opportunity to
comment on the sufficiency of the time
allotted for public notice. EPA solicits
comment on this approach, as well as
on fixed minimum time frames for
public review, such as 7 days, 15 days,
21 days, and 30 days.
The Director would also have to
provide an opportunity for the public to
request a hearing. EPA further proposes
that the procedures for requesting and
holding a hearing on the terms of the
NMP to be incorporated into the general
permit would be the same as those for
draft individual permits, which are
provided in §§ 124.11 through 124.13.
When granting permit coverage, the
permitting authority would be required
to respond to all significant public
comments.
EPA believes that the proposed
processes will provide adequate notice
to affected States. CWA section
402(b)(3) provides that the
Administrator, in approving State
programs, shall make sure adequate
authority exists to ensure notice to ‘‘any
other State the waters of which may be
affected’’ and Section 402(b)(5) provides
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that the Administrator must insure that
any State ‘‘whose waters may be
affected by the issuance of a permit may
submit written recommendations to the
permitting State’’ and that if those
recommendations are rejected that the
permitting State notify the affected State
in writing of the reasons for the
rejection. Although today’s proposal
does not include provisions specifically
intended to address these requirements,
EPA believes that the public notice
provisions are sufficient to notify
affected States. Additionally, the
permitting authority’s response to all
significant comments would include
responses to comments from affected
States. EPA solicits comment from
States and other interested parties as to
whether this approach is adequate or
whether there are specific requirements
for review by affected States that should
be added to this proposal.
The proposed rule seeks to balance
several competing concerns in crafting
the public participation procedures for
general permitting of CAFOs. First, EPA
believes that the proposed rule would
maintain the utility of a general permit
program as a resource-efficient method
by which to authorize multiple
dischargers under an NPDES permit
while meeting the court’s directive to
‘‘provide for adequate public
participation’’ in the development of
site-specific effluent limitations.
Waterkeeper Alliance et al. v. EPA, 399
F.3d at 524. Second, EPA believes the
proposed rule would provide sufficient
flexibility for State permitting
authorities to adopt their own
procedures while ensuring they meet
the public participation requirements of
the Clean Water Act. EPA is attempting
to implement the Second Circuit
decision in a way that would not have
the effect of eliminating the use of
general permits for CAFOs. Because of
the large number of CAFOs that may
seek permit coverage, the Agency
considers it appropriate to develop
procedures that would allow and
encourage permitting authorities to
continue the use of NPDES general
permits as a means for applying Clean
Water Act limitations and standards to
CAFOs on a timely basis. Of course, the
Director may always require a facility to
apply for an individual permit instead
of allowing coverage under a general
permit (even after coverage under a
general permit has been granted) under
already existing regulations.
EPA seeks comment on the approach
taken in today’s proposal concerning
public participation in the general
permitting process. Specifically, the
Agency is interested in comment as to
whether the procedures strike an
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appropriate balance between the above
mentioned competing concerns.
(d) Incorporation of Nutrient
Management Plan Terms in NPDES
Permits
EPA is proposing to modify the
language of 40 CFR 122.42(e)(1) to
require that any individual or general
permit issued to a CAFO contain the
terms of the NMP. In the 2003 CAFO
rule, the Agency finalized regulations
that required each CAFO permit to
include requirements to develop and
implement a nutrient management plan
that met the conditions specified in 40
CFR 122.42(e)(1)(i)–(ix) and, for Large
CAFOs, that also fulfilled the
requirements of 40 CFR 412.4(c). The
Second Circuit decision did not affect
these requirements and EPA is not
revisiting its decision with respect to
the contents of the nutrient management
plan. The NMP must continue to
include the elements in 40 CFR
122.42(e)(1)(i) through (x) and the
elements required by the effluent
limitation guideline at 40 CFR 412.4(c),
where applicable. However, the
proposal would ensure that the terms of
the NMP become terms and conditions
of the permit, as required by the Second
Circuit.
The Waterkeeper decision requires
the permitting authority to include the
terms of a CAFO’s nutrient management
plan in the NPDES permit issued to the
CAFO. The court’s opinion appeared to
distinguish between the ‘‘nutrient
management plan,’’ which must be
submitted by the CAFO to the
permitting authority for review (as
discussed above), and the ‘‘terms’’ of the
nutrient management plan, which must
be incorporated into the permit
following the public review process
described above. In light of the court’s
opinion, EPA is proposing to require the
permitting authority to incorporate the
terms of the NMP into the permit as
enforceable terms and conditions of the
permit. At a minimum, the terms of the
NMP must meet the requirements
specified in 40 CFR 122.42(e)(1)(i)–(ix)
and 412.4(c) (for Large CAFOs, as
applicable). Thus, the terms of the NMP
would need to ensure, for example,
adequate storage of manure, litter, and
process wastewater, proper management
of mortalities, and diversion of clean
water. The terms of the NMP would
identify site-specific conservation
practices to be implemented by the
CAFO and establish site-specific
requirements for proper land
application of manure, litter, and
process wastewater, including
application rates.
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EPA expects that a submitted NMP, as
a whole, will include data, calculations,
and other information that provide a
basis for the terms of the NMP and any
other planning decisions encompassed
in an NMP. The data, calculations, and
additional information are generally
analogous to both the information
contained in a permit application and
the assumptions, calculations, and other
determinations typically provided as
part of the fact sheet that is prepared for
every draft NPDES permit. On the other
hand, the terms of the NMP are the sort
of requirements normally found as
terms and conditions in a permit. In
other words, whereas a fact sheet (or, in
this case, the supplemental information
provided in the NMP) contains the
information that forms the basis of the
requirements included in a permit, the
permit itself contains the actual
requirements applicable to the
permitted facility. A complete NMP
contains both the requirements
applicable to the facility (‘‘the terms of
the NMP’’) and the background
information (assumptions, data,
calculations, etc.) which provide the
basis for those requirements.
This relationship is well illustrated
when considering rates of application
for land applying manure, which, for
Large CAFOs, must be developed
consistent with technical standards for
nutrient management established by the
Director in accordance with 40 CFR
123.36. These technical standards
typically require application rates to be
calculated using the Phosphorous Index
or its equivalent established by the
State. The calculations in turn are
derived from data from fields where
land application is to occur and
predictions for nutrient utilization
based upon crops to be planted in those
fields. In preparing an NMP, a CAFO
would include both the data necessary
to determine the application rates in
accordance with the applicable
technical standards and the calculations
it used to determine those rates.
EPA believes that it is appropriate to
allow the permitting authority
discretion as to how to incorporate the
terms of an NMP that meets the
regulatory requirements of 40 CFR
122.42(e) and 412.4 into the permit. For
example, the permitting authority could
simply attach the whole NMP to the
permit and require implementation of
the terms of the NMP as a condition of
the permit. Alternatively, the permitting
authority could identify and extract the
terms of the NMP from the larger
document and incorporate only the
extracted terms into the permit. Another
possibility is that the software used by
some nutrient management planners to
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develop NMPs could be modified to
generate a separate form that would
clearly identify the terms of the NMP
when generating the whole NMP report.
As mentioned above, the Agency is
considering the use of a model or
template for identification of the terms
of the NMP. The Agency solicits
comment on these various approaches
to identify the terms of the NMP that
would be included in the permit.
EPA also seeks comments on a
modified approach as an alternative to
the process described above for
incorporating nutrient management
terms and conditions into general
permits. It is premised on EPA’s
recognition that some NMP
requirements may be broadly applicable
to all of the CAFOs covered by a general
permit. Under this approach there
would be three possible categories of
permit conditions. The first category
would include permit conditions that
can be established in the general permit
itself so as to apply to all CAFOs
seeking coverage under that permit. The
second category would allow for
flexibility in some broadly applicable
requirements. Conditions falling into
this category would lend themselves to
a default requirement set by the
permitting authority, with the option for
facilities to substitute alternative
measures in their NMPs that are
equivalent or more effective in
achieving the same objective. In such
instances, of course, it would be
necessary for the permitting authority to
review the NMP submitted by each
CAFO that chooses such alternative
measures to determine whether the
selected measures satisfy the relevant
regulatory requirement(s). The third
category would include those
requirements for which a broadly
applicable condition in the general
permit would not be possible because
they are of necessity facility-specific. A
prime example of this third category is
the requirement for field-specific rates
of application.
Under this alternative approach, for
the first category of conditions, the
permitting authority would have the
discretion to incorporate some NMP
requirements into the terms and
conditions of the general permit itself so
they are applicable to all CAFOs
covered by the permit. Examples of
requirements that might lend
themselves to the first category include,
40 CFR 122.42(e)(1)(iii) (diversion of
clean water), (iv) (prevent contact of
confined animals with waters of the
United States), and (v) (proper disposal
of chemicals), and 40 CFR 412.37(a)(4)
(mortality management)).
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During the comment period on the
draft general permit, the public would
have the opportunity to comment and
request a hearing on the broadly
applicable nutrient management terms
and conditions proposed by the
permitting authority. If after notice and
comment the permitting authority
included these conditions in the final
permit, the permitting authority would
be free to focus greater attention on
those terms of a facility’s nutrient
management plan that were actually
site-specific (i.e., those conditions in the
second and third categories, described
below, specified in the facility’s NMP).
Of course, the public would still have
the opportunity to review each CAFO’s
nutrient management plan (as well as
the terms of the NMP that would be
included in the general permit) to
ensure that the plan complied with all
conditions of the general permit. EPA
seeks comment on the feasibility of
utilizing this approach under a general
permit.
For the second category of permit
conditions in this modified approach,
the permitting authority might establish
broadly-applicable permit terms that
could be implemented through specific
NMP measures, while allowing for
flexibility as previously noted. For
example, the permitting authority could
set a minimum requirement for
adequate storage of manure (40 CFR
122.42(e)(1)(i)) by specifying the
number of days of storage capacity for
each facility type. In such an instance,
a facility wishing to take an alternative
approach would need to describe, for
example, the alternative measures it
would take that would justify a shorter
period of storage capacity. Other
broadly applicable requirements that so
many qualifiers could lend themselves
to site-specific alternatives might
include permit conditions requiring
conservation practices to reduce soil
erosion from land application areas to
the tolerable rate (‘‘T’’) as a standard to
ensure adequate conservation practices,
as required by 40 CFR 122.42(e)(1)(vi),
or requiring CAFOs to address the
timing of land application (40 CFR
412.4(c)(2)(i)) in part by prohibiting
surface application of manure on frozen
or snow-covered land that is upslope
from waters of the United States. EPA
solicits comment on such an approach,
the sort of measures that might lend
themselves to such an approach, and the
sort of alternative measures that might
qualify as site-specific substitutions.
Under this alternative methodology
for establishing some terms of the NMP,
the permitting authority would still
need to identify the third category of
facility-specific terms of the nutrient
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management plan to be incorporated
into the permit. For example, the
permitting authority would need to
identify the manure, litter, and process
wastewater application rates in each
CAFO’s nutrient management plan on a
site-specific basis and incorporate those
rates as terms and conditions of the
permit before the permitting authority
could authorize coverage of the CAFO
under the permit. The public would
have the opportunity to review and
comment and request a hearing on these
site-specific terms and conditions, as
well as on the NMP’s adequacy to
satisfy any generally applicable permit
requirements, as provided by the
procedures in today’s proposal.
EPA believes the alternative described
above has the potential to speed the
pace at which unpermitted CAFOs
receive authorization under general
permits while being consistent with the
Second Circuit decision. In seeking
comments, EPA specifically asks States
to comment on the possible workload
burden associated with the procedures
proposed today as well as the
alternative described immediately
above.
For either approach discussed above,
EPA is proposing that the permitting
authority would be required to respond
to all significant comments received
during the comment period. As
necessary, the Director would require a
CAFO owner or operator to make
revisions to the CAFO’s NMP in order
to address issues raised during the
review process. Once the Director
determines that the process for the
development of a CAFO’s NMP has been
completed, the Director must make a
final decision whether to grant permit
coverage to the CAFO under the general
permit. If coverage is granted, the
Director must incorporate the relevant
terms of the NMP into the general
permit and inform the CAFO owner or
operator of the terms of the NMP that
have been incorporated as permit
conditions.
Under today’s proposal, incorporation
of the terms of a particular CAFO’s NMP
into a general permit would not be a
permit modification subject to 40 CFR
122.62. Rather, EPA views this as an
extension of the CAFO general
permitting process itself. As discussed
above, EPA intends the process
proposed in 40 CFR 122.28(d)(1) to
generally parallel the procedures in 40
CFR Part 124. A person who objects to
the incorporation of the terms of an
individual CAFO’s NMP into a general
permit could appeal the permit decision
to the Environmental Appeals Board
pursuant to 40 CFR 124.19, when EPA
is the permitting authority.
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EPA seeks comment on today’s
proposed process for incorporation of
the terms of a CAFO’s NMP into NPDES
permits. EPA specifically seeks
comment from States on the workload
implications of requiring the permitting
authority to respond to all significant
comments on each individual CAFO’s
NOI (including the NMP) and the terms
of the NMP to be incorporated into the
permit.
(e) Changes to Nutrient Management
Plans
When a CAFO obtains coverage under
an NPDES permit, as proposed in
today’s notice, it would be the CAFO’s
responsibility to implement the terms
and conditions of the nutrient
management plan as incorporated into
the permit, as of the date of permit
coverage. Because agricultural
operations sometimes modify their
nutrient management and farming
practices as a normal part of their
operations, and because such alterations
may require changes to NMPs after a
permit is issued, EPA is proposing a
permit revision process to specifically
address these circumstances.
The Agency does not, however,
believe that such a process is necessary
for all operating changes at a CAFO.
Most routine changes at a facility should
not require changes to the NMP itself
because of the way NMPs are
developed. Nutrient management plans
are dynamic documents and are
developed to accommodate routine
variations, for example changes
resulting from anticipated crop rotation
or climatic variability inherent in
agricultural operations, as well as
changes in numbers of animals and
volume of manure, litter or process
wastewater resulting from normal
fluctuations or a facility’s planned
expansion. Nevertheless, as discussed in
the preamble to the 2003 CAFO rule,
changes to a nutrient management plan
will be necessary under some
circumstances; for example, when there
is a substantial increase in the number
of animals, or a major change in the
CAFO’s cropping program not
anticipated in the original NMP.
EPA encourages CAFO operators to
develop, at the outset, NMPs that
thoughtfully anticipate, to the extent
feasible, all contingencies and changes
in operations that may occur over the
term of the permit. The NMP should
provide information on possible crop
rotations or other alterations in cropping
patterns with accompanying fieldspecific calculations for manure, litter,
and process wastewater application
rates based on realistic crop yield goals,
soil characteristics, weather, and other
site-specific field conditions. In this
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way, the public will have the
opportunity to review all anticipated
operational scenarios and associated
field-specific manure, litter, and process
wastewater application rates, including
the calculation on which these rates
were based. In this manner, NMPs and
associated permit conditions can
address most year-to-year changes in
nutrient management practices during
the term of the permit and greatly
reduce the need for NMP and associated
permit modifications as a range of
potential operational scenarios will
have already been accounted for.
For example, the NMP could specify:
(1) The maximum amount of manure
that the CAFO may apply to land
application areas under its control,
based on its total available land
application area and the capacity of its
waste storage and treatment facilities, as
well as manure and soil test results; (2)
the maximum amount of manure that
may be transferred to other persons (see
§ 122.42(e)(3)) by the CAFO, given
limitations on available markets, the
cost of transporting wastes, etc.; (3) a
complete inventory of all of the fields
under the CAFO’s control that might
receive manure, with the associated
acreage, soil types, soil tests and testing
protocols, setbacks, and other soil
conservation measures; (4) a list of all of
the crops the CAFO may wish to grow
on each of those fields, with a matrix of
the associated realistic yield
expectations and land application rates
consistent with the various field
conditions; and/or (5) plans to address
contingencies (e.g., a spill or especially
heavy rainfall event), including
consultation with the permitting
authority as appropriate.
The NMP should indicate calculations
necessary to determine rates of
application for the array of crops most
likely to be planted in accordance with
the cropping system utilized by the
CAFO operator, including likely
fallback scenarios. For Large CAFOs, the
land application rates must comply with
the ELG requirements of 40 CFR 412.4.
The NMP may also identify other crops
that could be planted and other fields
that might be utilized for land
application, thus allowing the CAFO to
utilize a mix of fields and crops
different from the most likely or
preferred combinations. Nevertheless,
the NMP should reasonably forecast the
practices most likely to be utilized by
the CAFO. EPA solicits comment on the
degree of flexibility that should be
allowed in NMPs. Greater flexibility
would minimize the need for
subsequent permit revisions, but will
also increase the up-front work load,
both for the permittee and for the
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permitting authority, and provide the
permitting authority and the public with
less certainty as to which practices the
CAFO will actually utilize.
Even when a CAFO owner or operator
develops an NMP that encompasses a
significant degree of flexibility, it
nevertheless may be necessary to revise
the NMP during a CAFO’s term of
permit coverage. EPA believes that, due
to the issues associated with agricultural
operations and the variables associated
with nutrient management planning,
including seasonal variations, weather,
soil and slope variation, and availability
of feed, seed, and other resources, it is
necessary to provide flexibility in the
best management practice requirements
for CAFOs beyond that typically
available for other permit conditions.
Consistent with this objective, EPA is
proposing to establish specific protocols
to allow changes to an NMP after permit
coverage has been granted.
EPA is proposing formal public notice
and comment procedures that the
permitting authority would be required
to follow for permit modification when
a CAFO is seeking to make substantial
changes to its NMP. EPA is proposing
that substantial changes would include,
but are not limited to: (1) Changes that
could result in an increase in runoff of
manure, litter, or process wastewater
from the facility; (2) an increase in the
rate of nutrients from manure, litter, or
process wastewater applied to the land
application area that is significant in
relation to technical standards
established by the Director; (3) a
significant change in the nutrient
balance at the CAFO caused by: (i) An
increase in the ratio of animals, manure,
litter, or process wastewater to the
available land application acreage or
storage capacity; (ii) changes in the
CAFO’s procedures for handling,
storage, treatment, or land application of
manure, litter, or process wastewater;
(iii) a significant increase in the number
of animals; or (iv) a significant
reduction of manure, litter, or process
wastewater hauled off site when there is
no equivalent decrease in the amount of
manure, litter, or process wastewater
produced; and (4) the addition of land
application areas not previously
included in the nutrient management
plan. Specific examples of such changes
would include changes to the method of
land application from injection to
surface application, changes in timing
from spring to late fall or winter
application, and installation of new
drainage systems that would increase
runoff from land application fields. The
proposed new paragraph 40 CFR
122.42(e)(5)(iv) identifies what would
constitute substantial changes to the
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facility’s NMP that would trigger this
process for permit revisions.
For these types of changes, EPA is
proposing to create new procedures in
40 CFR 122.42(e)(5) to allow CAFOs to
change their nutrient management plans
after the Director has incorporated the
terms of the NMP into the permit. These
procedures, which would be available to
CAFOs operating under both individual
and general permits, would be nearly
identical to those for CAFOs seeking
coverage in the first place. The Agency
believes that such a process satisfies the
need for the permitting authority and
the public to have ample opportunity to
review and comment on changes to a
facility’s NMP, while allowing the
CAFO the flexibility it needs.
In addition, there may be changes at
a facility that were not contemplated in
the currently applicable NMP that do
not require substantial changes to the
terms of the NMP in the permit. In these
instances, while a revised NMP would
need to be submitted to the Director, the
Director should not need to seek public
comment on the revised NMP. Such
changes might include, for example,
changes in cropping patterns not
anticipated in the original NMP where
they are managed consistent with the
original plan and properly documented.
In such instances, today’s proposal
would require the CAFO owner or
operator to provide the revised NMP,
along with appropriate documentation
to reflect changed conditions, to the
permitting authority. The better the
documentation of the terms in the NMP,
including calculations, the easier it will
be for a permitted facility to
demonstrate that changes in its nutrient
management practices are nonsubstantial modifications of its NMP.
Today’s proposal (see proposed 40
CFR 122.42(e)(5)) would require that,
whenever a CAFO makes any change to
its NMP, the owner or operator would
provide the Director with the revised
NMP and identify the changes from the
previous version submitted to the
permitting authority. The Director
would then review the changes to
ensure that the NMP still meets the
requirements of 40 CFR 122.42(e)(1)(i)
through (x) and, for Large CAFOs, 40
CFR 412.4(c) and technical standards
developed by the Director. If the
changes are not substantial, the Director
would simply modify the permit as
necessary and notify the public of such
modification (and not seek public
comment). If the changes are
substantial, the nutrient management
plan would be revised using procedures
similar to those proposed for the initial
incorporation of an NMP into a general
permit. Thus, today’s proposed rule
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would require the Director to notify the
public of substantial changes, and
provide an opportunity for public notice
and comment. Moreover, the appeals
process would be the same as that for
incorporation of NMPs into a general
permit. EPA solicits comment on the
approach proposed to deal with NMP
revisions, as well as on the conditions
concerning what constitutes a
substantial change to an NMP.
Because the process in 40 CFR
122.42(e)(5) would allow for public
review of changes to the terms of
nutrient management plans and the
underlying data and calculations, EPA
proposes that the incorporation of
changes to the permit through this
process would be treated as a minor
permit modification, under § 122.63(h),
and not require additional review. EPA
considered requiring any change to the
NMP to be considered a permit
modification requiring procedures
under § 122.62, but rejected this option
as it would significantly burden
permitting authorities and CAFO
operators’ ability to make necessary and
timely minor changes to NMPs as
discussed above.
For substantial changes, the Agency
also proposes to expressly allow the
facility, at the Director’s discretion, to
proceed in implementing the change for
up to 180 days before completion of
public review and permitting authority
approval, so long as the change is not
likely to result in increased runoff of
manure, litter or process wastewater
from the facility. Given the importance
of timing in farming, EPA recognizes
that CAFOs may be unable to delay the
implementation of a substantial change
to their nutrient management plan to
allow for public review and still
implement the change in a timely
fashion.
EPA believes that it would be
reasonable to allow the Director to
temporarily allow substantial changes
so long as certain conditions are met.
First, the approval would be temporary,
allowing the CAFO to implement the
changes for only 180 days. Second, the
facility would need to provide to the
Director documentation to demonstrate
that the change would not result in
increased runoff of manure, litter, or
process wastewater from the facility.
Third, the Director would have to
review the documentation and conclude
that the changes would not result in
increased runoff of manure, litter, or
process wastewater from the facility.
Finally, the Director would have to
include such expedited decisions with
the permit in the public record and
notify the public of its decision.
Moreover, by the end of the 180 day
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period, these changes would need to
undergo the public review procedures
required for all substantial changes and
be incorporated into the CAFO’s permit
by the Director. Changes EPA intends to
encompass within this provision
include the addition of new fields for
land application where the Director
determines that such additional or
replacement fields have equivalent
phosphorous ratings (based on the
Phosphorous Index, for example) for
nutrient uptake as the fields they are
supplementing or replacing, whichever
may be the case. EPA is interested in
commenters’ views concerning this
proposed provision. EPA specifically
solicits comment on whether a change
that would result in increased rates of
land application of manure, litter, or
process wastewater in addition to those
changes likely to result in increased
runoff, should also be precluded from
expedited implementation during the
180 day period.
EPA is also interested in taking
comment on an approach that might
allow greater flexibility for CAFO
operators in making cropping decisions
while assuring permitting authorities
and the public that they are complying
substantively with the terms of the NMP
as incorporated into the permit, even if
the CAFO modifies its practices
somewhat from those articulated in the
NMP and the permit. Under this
approach, the Agency would modify the
annual report requirements for
permitted CAFOs in 40 CFR 122.42(e)(4)
to require all CAFOs to submit
information with the annual report
indicating how the CAFO achieved
substantive compliance with the terms
of the NMP as set forth in the permit.
If the CAFO implemented any cropping
options not included in the calculations
provided in the NMP, the CAFO would
document the procedures and nutrient
management practices utilized,
including crops grown and fields
planted, together with nutrient
management calculations that governed
its land application practices for the
prior calendar year, and explain how
the modified cropping options as
implemented continued to comply with
the substantive terms of the NMP
incorporated into the permit. Under this
option, EPA would include guidance in
either rule or preamble text on which
types of deviations from the NMP would
be allowed, and what would be required
to demonstrate in the annual report that
these deviations substantively complied
with the permit terms. The Agency
solicits comment on whether such an
approach would be practical and the
extent to which it could allow greater
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flexibility for CAFOs to meet the NMP
requirements incorporated into their
permits, while still ensuring appropriate
permitting authority and public
oversight of permit compliance.
(f) Required Dates
In a separate rulemaking, EPA revised
the dates in the 2003 CAFO rule by
which CAFOs were required to develop
and implement their NMPs. (71 FR
6978.) The 2003 CAFO rule required
newly defined CAFOs to seek coverage
under an NPDES permit by February 13,
2006, but required the development and
implementation of a nutrient
management plan by December 31,
2006. This would have conflicted with
today’s proposal that CAFOs submit
their NMPs with their permit
applications or notices of intent, as
required by the Second Circuit Court’s
decision. The new rule requires CAFO
owners and operators to submit their
NMPs at the time of the permit
application by extending the deadline
for both to July 31, 2007. EPA extended
these deadlines in a separate rulemaking
so as to provide the Agency sufficient
time to develop the regulatory revisions
proposed in this rulemaking that more
broadly respond to the Waterkeeper
decision.
C. Remand Concerning Water Quality
Based Effluent Limitations
Water quality-based effluent
limitations (WQBELs) are one of two
fundamental types of limitations
imposed in NPDES permits. The other is
technology-based limitations.
Technology-based limitations are
required in all NPDES permits, unless
the permit writer imposes more
stringent WQBELs in the permit where
necessary to ensure that water quality
standards are attained in the receiving
waters. (See CWA Section 301(b)(1)(c),
33 U.S.C. 1311(b)(1)(c), and 40 CFR
122.44(d).) Where WQBELs are
necessary, the permit writer establishes
them without consideration of the
availability or effectiveness of treatment
technologies or the costs that
dischargers would incur to meet those
water quality-based limits. (See
Arkansas v. Oklahoma, 112 S.Ct. 1046,
1054 (1992); Westvaco v. EPA, 899 F.2d
1383 (4th Cir. 1990).)
The environmental petitioners
claimed that the 2003 CAFO rule
violated both the Clean Water Act and
the Administrative Procedure Act
because it failed to promulgate WQBELs
for CAFO discharges and also barred
States from doing so. The Second
Circuit agreed in part with this claim, as
described in Section II.D.3 above, and
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37757
remanded this issue to EPA for further
clarification.
The terms of the 2003 CAFO rule
itself do not contain any requirements
concerning WQBELs, but EPA
addressed the subject of WQBELs in the
preamble. In fact, there was only one
WQBELs issue that EPA addressed or
intended to address in the preamble—
whether WQBELs can be imposed for
land application discharges of
agricultural stormwater—and on that
issue, the court expressly agreed with
EPA’s discussion. What appears to have
troubled the court were certain
statements in the preamble that the
court thought might also address how
WQBELs apply to other types of
discharges. EPA therefore offers the
following clarification.
1. The Application of WQBELs to CAFO
Discharges Under the 2003 CAFO Rule
How WQBELs apply to a CAFO’s land
application runoff is different from how
they apply to discharges from a CAFO’s
production areas, as explained below.
(a) Land Application Discharges
In the 2003 rule, to determine how
WQBELs apply to land application
discharges at CAFOs, EPA first had to
consider the statutory exclusion for
agricultural stormwater. In the Clean
Water Act, the definition of ‘‘point
source’’ specifically includes CAFOs but
excludes agricultural stormwater
discharges. (See CWA Section 502(14).)
In the 2003 CAFO rule, EPA interpreted
how this exclusion applies to discharges
from land application at CAFOs. EPA
found that where a CAFO applies
manure, litter, or process wastewater to
its fields, the resulting discharges from
those fields are regulated by the Clean
Water Act as point source discharges
except where they qualify as
agricultural stormwater. EPA
determined that land application
discharges qualify as agricultural
stormwater only where manure, litter, or
process wastewater has been applied in
accordance with site-specific nutrient
management practices that ensure
appropriate agricultural utilization of
the nutrients in the manure, litter or
process wastewater, as specified in
§ 122.42 (e)(1)(vi)–(ix). (See 40 CFR
122.23(e).) Where a CAFO has not
followed such practices, EPA concluded
that any resulting precipitation-related
discharge was not intended by Congress
to be excluded from the Act as
agricultural stormwater and is therefore
subject to NPDES requirements.
The land application requirements of
the 2003 CAFO rule reflected this
interpretation by EPA of the agricultural
stormwater exclusion in the Act. EPA
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found that where a CAFO follows these
practices, any and all precipitationrelated discharges of manure, litter, or
process wastewater that occur from land
application fields would be covered by
the agricultural stormwater exclusion
and would thus be considered nonpoint
source runoff. (68 FR 7198.) In other
words, a CAFO that follows the
requirements in the 2003 rule eliminates
all precipitation-related point source
discharges from its land application
fields. While physically there may still
be some runoff from the fields related to
precipitation, the CAFO has no
discharge of regulated precipitationrelated runoff, since any remaining
precipitation runoff is agricultural
stormwater.
Because the CAFO effluent
guidelines—the technology-based
regulations—already prohibit all
precipitation-related land application
discharges that are subject to regulation,
EPA noted in the 2003 rule that it is not
possible for a CAFO permit writer to
add any other permit limitations on
these discharges that are more stringent
than the CAFO effluent guidelines,
including any water quality-based
limitations. (See 68 FR at 7198.) Only
discharges of agricultural stormwater,
which are nonpoint source discharges,
remain. The Second Circuit agreed that
the rule ‘‘does not present a problem to
the extent that [it] fails to promulgate—
and bars States from promulgating—
WQBELs for any ‘agricultural
stormwater discharge’ * * *
Agricultural storm water discharges are,
after all, statutorily exempt from any
effluent limitations, including WQBELs,
because they are non-point source
discharges.’’ Waterkeeper, 399 F.3d at
522.
It should be noted that the key point
of this discussion—that water qualitybased effluent limits are not available to
limit land application discharges that
are agricultural stormwater—involves,
in the first instance, only precipitationrelated land application discharges,
since only precipitation-related
discharges can be agricultural
stormwater. Water quality-based
effluent limits are available to the
permit writer to limit any nonprecipitation related (i.e., dry-weather)
discharges that occur at land application
areas to levels that are more stringent
than the technology-based limitations
(effluent guidelines), and EPA never
intended to indicate otherwise. As EPA
stated in the 2003 rule, ‘‘any dry
weather discharge of manure or process
wastewater resulting from its
application to land area under the
control of a CAFO would not be
considered an agricultural stormwater
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discharge and would thus be subject to
Clean Water Act requirements.’’ 68 FR
7198. To be sure, in most instances, a
CAFO’s requirement to meet
technology-based permit limits that
require manure to be applied at
appropriate agronomic rates should
itself eliminate all or most dry weather
discharges. Nevertheless, if such
discharges remain, the need for
additional water quality-based effluent
limits to control them will be
determined by the permit writer based
on the circumstances of each particular
case.
(b) Production Area Discharges
In contrast to precipitation-related
land application discharges, under the
2003 rule, WQBELs can be applied by
permit writers in appropriate cases to
further limit discharges from CAFO
production areas (except for new source
CAFOs in the swine and poultry sectors,
as discussed below). WQBELs can be
imposed on these production area
discharges, where appropriate, because
the effluent guidelines do not, by
themselves, prohibit all ‘‘regulatable’’
discharges from the production area.
The effluent guidelines allow occasional
overflow discharges from properly
designed, operated, and maintained
lagoons and storage ponds. It is possible
that WQBELs might be necessary in a
particular permit to further limit these
discharges beyond the levels that are
authorized under the CAFO effluent
guidelines. It should also be noted that
the exclusion for agricultural
stormwater does not apply to discharges
from the CAFO production area, as EPA
stated in the 2003 rule. (See 40 CFR
122.23(e) and 68 FR 7198). Thus, the
agricultural stormwater exclusion does
not serve to limit how WQBELs may be
imposed to control production area
discharges.
For new source CAFOs in the swine
and poultry sectors, however, no
WQBELs can be imposed in permits for
the production areas. This is because
the effluent guidelines already prohibit
all production area discharges from
these new sources. (See 40 CFR
412.46(a).)
2. Discussion
The Second Circuit expressed two
concerns with EPA’s discussion of how
WQBELs apply at CAFOs. First, the
court found that it was ‘‘unclear * * *
why the CAFO Rule exempts discharges
other than agricultural storm water
discharges from WQBELs.’’ (See 399
F.3d at 522.) EPA had indicated its
intention, the court found, ‘‘not to
promulgate any WQBELs whatsoever.’’
As an initial matter, WQBELs for CAFOs
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are derived, where appropriate, on a
case-by-case basis for individual
permits, not promulgated in EPA
regulations. EPA never intended to
‘‘promulgate’’ any WQBELs in the 2003
rule, but simply to discuss how
WQBELs might apply once a CAFO
applied for a permit.
Specifically, the court was concerned
by EPA’s preamble statement that ‘‘EPA
does not expect that water quality-based
effluent limitations will be established
for CAFO discharges resulting from the
land application of manure, litter, or
process wastewater.’’ 399 F.3d at 522,
citing 68 FR 7207. The court may have
been concerned that EPA was
exempting from the application of
WQBELs not only agricultural
stormwater discharges from CAFO land
application areas (which the court
agreed are not subject to WQBELs) but
also any other discharges from land
application areas or even production
areas. (See 399 F.3d at 522 (‘‘EPA has
* * * only justified its determination
not to impose WQBELs * * * only
insofar as agricultural stormwater
discharges are concerned * * * The
EPA has not attempted, in any way, to
explain its failure to promulgate
WQBELs for CAFO discharges other
than agricultural stormwater discharges
* * *’’).) This was not EPA’s intent.
EPA intended only to affirm that where
the precipitation-related discharge from
land application areas has been limited
to only agricultural stormwater,
WQBELs are not available as further
limitations on those discharges.
Based on its understanding, the court
directed EPA ‘‘to explain whether or
not, and why, WQBELs are needed to
assure that CAFO discharges will not
‘interfere with the attainment or
maintenance of that water quality in a
specific portion of the navigable waters
which shall assure protection of public
health, public water supplies,
agricultural and industrial uses, and the
protection and propagation of a
balanced population of shellfish, fish
and wildlife, and allow recreational
activities in and on the water,’ ’’ citing
33 U.S.C. 1312(a). 399 F.3d at 523. In
response, EPA clarifies that WQBELs are
not available for permits with respect to
precipitation-related land application
discharges for CAFOs. However, water
quality-based effluent limits can be
included in permits as necessary with
respect to non-precipitation-related land
application discharges and with respect
to production area discharges, as
discussed above. For example, with
respect to production area discharges,
under the effluent guidelines, a CAFO
may be subject to a permit requirement
that allows production area discharges
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only if the CAFO designs and operates
its lagoon or pond to contain all process
wastewater plus any storm water runoff
resulting from the 25-year, 24-hour
storm. But water quality considerations
may lead the permit writer to impose a
more stringent permit requirement such
as allowing discharges only if the lagoon
or pond is designed and operated to
contain water from an even bigger
storm.
The court’s second concern was that
the 2003 rule preamble was ‘‘ambiguous
about whether States may promulgate
WQBELs for discharges other than
agricultural stormwater discharges.’’ 399
F.3d at 523. The court directed EPA to
explain this issue more clearly on
remand. In response, the reasoning
described above applies to State-issued
as well as EPA-issued NPDES permits.
Permit writers in NPDES-authorized
States can include WQBELs as
necessary with respect to nonprecipitation-related land application
discharges and with respect to
production area discharges.
There are two additional
considerations, however, with respect to
State-issued permits. First, the effluent
guidelines require CAFOs to limit their
land application of wastes to levels that
comport with State technical standards
for manure management. In the 2003
rule preamble, EPA encouraged States to
address water quality protection issues
in setting those technical standards for
appropriate land application practices.
(See 399 F.3d at 523, citing 68 FR 7198).
Thus, although the effluent guidelines
are by their nature technology-based,
EPA encouraged the States to address
water quality concerns in setting their
technical standards for manure
management. But this does not change
the basic regulatory scheme under
which, once those technology-based
standards are applied in a permit, the
only remaining precipitation-related
runoff is agricultural stormwater, for
which water quality-based effluent
limitations are not available.
Second, it is possible that a State can
have additional requirements under its
own State regulatory authorities that
would go beyond the requirements of
the federal NPDES program. Thus,
where the only runoff from a CAFO’s
land application area is agricultural
stormwater, that remaining runoff,
though not subject to further NPDES
regulation, could be subject to
additional State requirements that are
broader in scope, including additional
requirements related to water quality. 33
U.S.C. 1370 and 40 CFR 123.1 and
123.25. These requirements, however,
would not be federally enforceable.
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D. New Source Performance Standards
for Subpart D Facilities
1. Provisions in the 2003 CAFO Rule
(a) 100-Year, 24-Hour Rainfall Event
Design Standards
The Clean Water Act requires EPA to
promulgate New Source Performance
Standards (NSPS) for new, as opposed
to already existing, sources of pollution.
(See 33 U.S.C. 1316.) The Act provides
that these standards must ‘‘reflect the
greatest degree of effluent reduction
which the Administrator determines to
be achievable through application of the
best available demonstrated control
technology, processes, operating
methods, or other alternatives,
including, where practicable, a standard
permitting no discharge of pollutants.’’
33 U.S.C. 1316(a)(1). The Act further
requires that EPA ‘‘take into
consideration the cost of achieving such
effluent reduction, and any non-water
quality, environmental impact and
energy requirements.’’ 33 U.S.C.
1316(b)(1)(B). EPA is given considerable
discretion to weigh and balance the
various factors required by statute to set
NSPS. Riverkeeper, Inc. v. EPA, 358 F.
3d 174, 195 (2d Cir. 2004).
The 2003 CAFO rule effluent
guidelines for new Subpart D (swine,
poultry, and veal) operations prohibit
the discharge of any pollutants from
CAFO production areas. It is common
for new poultry, veal, and swine
operations to confine the animals so that
they are never exposed to rainfall or
storm water runoff. In addition, many
new operations employ manure
handling systems that greatly reduce or
eliminate the use of water as a
conveyance or handling mechanism for
the manure, and typically contain
manure in covered or indoor facilities.
(See 68 FR 7219 and Chapter 8 of the
‘‘Technical Development Document for
the Final Revisions to the National
Pollutant Discharge Elimination System
Regulation and the Effluent Guidelines
for Concentrated Animal Feeding
Operations’’ (EPA–821–R–03–001) or
‘‘TDD’’ for more information.) Based on
these technologies, EPA determined that
a no discharge standard was
technologically feasible.
EPA recognized that CAFOs may use
different technologies to meet the no
discharge standard and that these
technologies may have slightly different
vulnerabilities to extreme weather
events. Therefore, the 2003 CAFO rule
would have allowed CAFOs to meet the
no discharge standard by using waste
management and storage facilities
designed, constructed, operated, and
maintained to contain all manure and
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process wastewater including the runoff
and precipitation from a 100-year, 24hour rainfall event.3 The 100-year, 24hour rainfall event is a statistical event
defined as the amount of rainfall that
has a one percent chance of being
exceeded in a 24-hour period in any
given year. Thus, a facility that was
adequate to contain both the process
wastewater generated at the facility and
the runoff and precipitation from the
100-year event would not discharge in
circumstances resulting in runoff and
precipitation less than that produced in
the 100-year event, when properly
operated and maintained. EPA provided
the 100-year, 24-hour rainfall event
criteria to provide clarity to the
regulated community about how to
design, operate and maintain their
manure handling systems to achieve the
no discharge standard.
(b) Superior Alternative Performance
Standards
The 2003 CAFO rule also allows
existing CAFOs in Subparts C and D,
and new beef, dairy, and heifer CAFOs
to voluntarily participate in the
Voluntary Alternative Performance
Standards program. The alternative
performance provisions allow CAFOs to
request that the Director establish
alternate permit effluent limitations in
place of the 25-year, 24-hour storm
standard that would otherwise apply.
This provision enables CAFOs to
implement new technologies and
management practices that perform as
well as or better than the baseline
effluent guidelines at reducing pollutant
discharges to surface waters from the
production area. To demonstrate that an
alternative control technology would
achieve equivalent or better pollutant
reductions than the baseline effluent
guidelines, the CAFO must submit a
technical analysis, which first calculates
the pollutant discharges based on the
site-specific modeled performance of a
system designed to comply with the
baseline effluent guidelines and then
demonstrates that the proposed
alternate limitations would result in
equal or lower discharges. The
minimum specific components of the
technical analysis were included in the
ELGs at 40 CFR 412.31(a)(2).
For new Large swine, poultry, and
veal CAFOs (new sources under Subpart
D), the 2003 rule had a similar provision
for alternative permit limitations—the
‘‘Voluntary Superior Environmental
Performance Standards’’ provision. This
NSPS provision empowered permitting
3 All storage structures must be operated in
accordance with the additional measures specified
in the regulations at 40 CFR 412.37(a) and (b).
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authorities to establish site-specific
alternative performance standards that
allow production area discharges, so
long as such discharges were
accompanied by reductions of pollutant
discharges to other media. (See 40 CFR
412.46(d).) Specifically, the quantity of
pollutants discharged from the
production area had to be accompanied
by an equivalent or greater reduction in
the quantity of pollutants released to
other media from the production area
(e.g., air emissions from housing and
storage), the land application areas for
all manure, litter, and process
wastewater at on-site and off-site
locations, or both. The Director was
given the discretion to request
supporting information to supplement
such a request.
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2. Summary of the Second Circuit Court
Decision Concerning Remanded Issues
The Second Circuit Court of Appeals
remanded several elements of the 2003
CAFO rule related to new sources.
Specifically, the court directed EPA to
clarify the statutory and evidentiary
basis for allowing subpart D CAFOs to
comply with the NSPS requirements by
either the 100-year storm standard or
the alternative performance standards.
With respect to the 100-year storm
standard, the Court noted that while
certain studies showed that the
production area BMPs adopted by the
2003 CAFO rule would have
substantially prevented the production
area discharges documented in the
record, the court explicitly stated that
substantially preventing discharges is
not the same as prohibiting them
outright. With respect to the alternative
performance standards, the court held
that EPA had not justified its decision
to allow compliance with the no
discharge standard through an
alternative standard permitting
production area discharges so long as
the aggregate pollution to all media is
equivalent to or lower than that
resulting from the baseline standards.
The court further held that EPA did not
provide adequate notice for either of
these provisions under the Clean Water
Act’s public participation requirements.
(See 33 U.S.C. 1251(e) (‘‘Public
participation in the development,
revision, and enforcement of any
regulation, standard, effluent limitation,
plan, or program established by the
Administrator or any State under this
Act shall be provided for, encouraged,
and assisted by the Administrator and
the States’’).)
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3. This Proposal
(a) 100-Year Storm Containment
Structure
EPA has reconsidered the NSPS in
light of the Second Circuit decision. As
a result of its review, EPA is proposing
to delete 40 CFR 412.46(a)(1), the
provision allowing CAFOs to meet the
no discharge standard through the use
of a 100-year, 24-hour rain event
containment structure. If EPA adopts
this change, all discharge of manure,
litter, and process wastewater would be
prohibited from the production area for
new source swine, poultry, and veal calf
operations. The land application
requirements would remain unchanged.
Regulatory language implementing the
proposed change may be found in
today’s proposed rule text.
As part of this approach, EPA also
proposes to modify Section 412.37(a)(2)
by removing the requirement that all
surface liquid impoundments at new
sources have a depth marker indicating
the minimum capacity to contain the
runoff and direct precipitation from a
100-year, 24-hour rain event. The
removal of the 100-year storm
containment structure provision for new
sources makes this provision irrelevant.
Although the Agency proposes to delete
the 100-year, 24-hour depth marker
requirement, EPA recognizes that a
marker indicating depth can be an
excellent means of displaying how
much storage a CAFO has, and whether
it is time to pump down levels in the
lagoon or pond. EPA believes depth
markers are a useful tool to help with
the management of any facility, and
proposes to maintain, in 412.37(a), the
depth marker requirement in the rule,
even though EPA removed the 100-year,
24 hour rainfall specification. EPA
solicits comment on this provision of
the ELGs.
Additionally, EPA is proposing an
alternative that would authorize the
NPDES Program Director to establish no
discharge best management practice
effluent limitations based upon a sitespecific evaluation for an individual
CAFO. Compliance with such
limitations would provide an alternate
approach for CAFOs to meet the zero
discharge requirement. Specifically,
EPA is proposing to authorize permit
writers, upon request by a CAFO, to
establish best management, zero
discharge effluent limitations on a caseby-case basis when a facility
demonstrates through a rigorous
modeling analysis that it has designed
an open containment system that will
comply with the no discharge
requirements. If a facility has complied
with all of the specified site-specific
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design, construction, operation, and
maintenance components of such a
system demonstrated to meet the zero
discharge requirement, it would be
deemed to be in compliance with the no
discharge requirement even in the event
of an unanticipated discharge.
EPA continues to recognize that
CAFOs may use different technologies
to meet the no discharge standard and
that these technologies may have
different vulnerabilities to extreme
weather events. While some CAFOs may
use closed containment systems to
ensure meeting the no discharge
requirements, EPA seeks to encourage
new source CAFOs to consider
implementation of anaerobic digesters,
multi-cell treatment lagoons, and
nitrification and/or denitrification
technologies. While these innovative
technologies should be able to achieve
zero discharge, and the operator must
demonstrate to the permit authority’s
satisfaction that the system will be
designed, operated and maintained to
do so, there may be greater uncertainty
in the performance of these systems
during exceptionally heavy rainfalls and
other rare weather conditions. To
address such situations, EPA believes it
appropriate to allow a facility to use an
upset/bypass defense under 40 CFR
122.41(m)–(n), for events that are
beyond the reasonable control of the
operator, including weather events as
well as other unforeseen or
uncontrollable conditions. However,
EPA recognizes that the upset and
bypass provisions do not provide
certainty to the operator that any
particular unpermitted discharge will be
excused. CAFOs operating innovative
technologies in particular may be
reluctant to rely on these provisions.
Therefore, in order to provide some
upfront assurance that the design,
construction, operation, and
maintenance of their system meets the
requirements of the new source effluent
guidelines, EPA is proposing to allow
permit writers to verify in advance that
the designed system is a zero discharge
system. EPA is proposing this
alternative approach in order to provide
this additional level of certainty and to
encourage the development of new and
innovative open system technologies.
While one component of preventing
discharge from an open system is to
provide adequate storage of manure and
wastewater during critical periods,
ensuring adequate physical capacity is
not sufficient. Rather, adequate storage
is based on a site-specific evaluation of
the CAFO’s entire waste handling
system. Adequate storage has to be
based on climate-specific variables that
define the appropriate storage volume,
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but of equal importance are the nutrient
management plan and other
management decisions that dictate
when and how the storage can be
emptied. The link between adequate
storage and land application practices is
one of the most critical considerations
in developing and implementing a sitespecific nutrient management plan. For
example, the amount of land available
for application, the hydraulic
limitations (ability of the land to handle
additional water without the occurrence
of runoff), geology, and soil properties
of the available land base can play an
important role. See Chapter 2 of EPA’s
technical guidance for CAFOs
‘‘Managing Manure Nutrients at
Concentrated Animal Feeding
Operations’’ (EPA–821–B–04–00) for
more information.
Given these considerations, EPA is
proposing requirements for approval of
site-specific management practices for
such open containment systems with
the expectation that a system designed
in accordance with these requirements
will meet the no discharge standard
within the limits of design and
operational foreseeability. EPA believes
that the design, operation and
maintenance elements and analytical
assessment required under this
alternative are sufficient for this
purpose. The assessment process was
previously described in two papers
delivered to the American Society of
Agricultural Engineers, available in
today’s record (Moffitt et al., (2003),
DCN 1–01233 and Moffitt and B.
Wilson, (2004), DCN 1–01224).
The first step is to gather information
about the specific operation to be
analyzed and the regulatory framework
in which it operates. The regulatory
framework could include: state
requirements for minimum storage
periods for rainy seasons or winter or
additional minimum capacity
requirements for chronic rainfall;
technical standards that prohibit or
otherwise limit land application to
frozen, saturated, or snow-covered
ground; standards that further limit land
application where there is a high risk of
nutrient transport; increased storage
requirements for manure intended to be
transferred to another recipient at a later
time; and any other special
requirements that would impact the size
of the storage facility. The operator’s
management options and needs should
also be included in the design and
evaluation, as discussed below. The
accuracy of this first step is critical to
designing and evaluating a manure
storage facility. A check sheet of
possible considerations based on 40
CFR 412.46(a)(1) may help ensure the
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right information is gathered, and EPA
solicits comment on what relevant
information must be included in the
analysis as a minimum.
The second step is the design of the
storage facility using design procedures
in the USDA Natural Resources
Conservation Service’s (NRCS)
‘‘Agricultural Waste Management Field
Handbook,’’ NEH–651. This will be
done using Animal Waste Management
(AWM) software, which is NRCS’s
manure storage and treatment planning/
design software tool for animal feeding
operations that can be used to estimate
the production of manure, bedding, and
process water and to determine the
appropriate size of storage/treatment
facilities. The Common Computing
Environment (CCE) version of AWM
2.10 is currently available on the web,
and planned software updates in the
near future are not expected to change
the general form of the tool. Site-specific
input to AWM includes climate data for
30 years consisting of historical average
monthly precipitation obtained from
local weather stations, and evaporation
values obtained from the National
Oceanic and Atmospheric
Administration (NOAA) handbook.
Additional inputs include animal
numbers and typical animal sizes/
weights, added water and bedding (if
any), and the size and condition of
outside areas exposed to rainfall and
contributing runoff to the storage
facility. AWM allows the user to specify
a storage period (months), and the
software will design for the series of
months with the most rainfall. The
program will not design a system in
excess of 12 months, as such designs are
not recommended. As an alternative, the
user can designate months when the
storage pond can be emptied, and AWM
sizes the pond based on the months
with the most precipitation between
pumping events. The output of this step
is the design of a waste storage facility.
AWM provides a series of reports
describing the storage facility and
providing a listing of the related
specifications including the dimensions
of the storage facility, daily manure and
wastewater additions, the size and
characteristics of the fields, and other
management assumptions such as
storage period.
The third step is an evaluation of the
adequacy of the AWM designed storage
facility using the Soil Plant Air Water
(SPAW) Hydrology Tool. The current
version of SPAW is 6.1. SPAW is a fieldlevel tool that uses a modified Soil
Conservation Service Curve Number
Method to develop water budgets for
agricultural fields. SPAW is used by
NRCS to evaluate the design procedure
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in the ‘‘Agricultural Waste Management
Field Handbook,’’ NEH–651 (DCN 1–
1231). Water budget processes are
evaluated by making daily adjustments
to crop canopy cover and antecedent
soil moisture. Field water budgets can
be used for evaluating runoff and
infiltration from precipitation events.
SPAW also provides an integrated pond
module to develop pond water budgets
that is ideal for assessing the adequacy
of an open containment system. Input to
SPAW includes daily precipitation,
temperature, and evaporation data;
storage facility dimensions and manure
related quantities extracted from AWM;
and the strategies for managing the
storage facility. For each user-specified
soil profile and crop rotation, SPAW
simulates possible runoff from fields as
well as the irrigation water needs of
fields receiving the storage effluent.
Hydrologic groups are used to rate soils
for potential to release excess water
down grade.
EPA notes that where AWM software
is used for design and SPAW is used for
evaluation, additional software for
nutrient management planning may be
appropriately linked and the NMP data
can then be imported. For example, see
6–12 of ‘‘Managing Manure’’ (EPA–821–
B–04–009) for a discussion of ‘‘Manure
Management Planner’’ or ‘‘MMP,’’ a
comprehensive Windows-based
planning tool for manure management.
SPAW is then run with the sitespecific historic rainfall records to see if
the open containment system (referred
to as a pond in SPAW) and associated
management and land application was
adequate to eliminate any discharge.
EPA has concluded that 100 years of
data is an adequate timeframe for
simulation purposes and will support a
reasonable finding of no discharge.
However, EPA is aware that 100 years
of continuous rainfall data may not be
available for many CAFOs. The SPAW
model can be run using actual rainfall
data where available, and then
simulated with a confidence interval
analysis over a period of 100 years. The
SPAW model shows not only that the
storage facility does not discharge, but
also that there is no runoff of
wastewater from fields during land
application activities, which is
necessary to ensure that the open
containment system is operated in a
way to meet the land application
requirements of the rule. In practice, if
the SPAW evaluation indicated any
level of discharge or any spillway flow,
the pond design volume could be
increased in size in AWM, the new
dimensions converted to SPAW input,
and the simulation done again. This
iterative procedure could continue until
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the pond simulation predicts no
discharge. If the facility shows no
discharge over the 100 year simulation,
then EPA has concluded that the lagoon
or pond has been designed to achieve
the requirement of no discharge.
EPA has obtained several case studies
using this approach to design. Example
CNMPs were obtained from Georgia,
South Carolina, Nebraska, North
Carolina, and Iowa. Each of these
CNMPs was used as the basis of design
for a new facility. The CNMPs were
used to get animal numbers and average
weights, crop acreage, location for
climate records, storage period, and
information about spreading of manure
and wastewater. The design volume is
generally pumped out of the storage
facility twice a year (once in the spring,
and once in the fall). These are large
pump down events, and it is part of the
planning and design process to assure
that there is sufficient land and
pumping capacity to accomplish this
activity. These case studies allow two
weeks for this pump down to occur. In
the few instances when the storage
volume approaches the volume reserved
for precipitation and runoff, the
additional volume is pumped out of the
storage facility as soil conditions permit.
In some cases, wastewater removals for
irrigation were simulated based on crop
consumptive use capability. These are
small pump out events. The first case
study is a confinement swine operation
in Nebraska which had 1600 grower
pigs with an average weight of 140 lbs.
This example facility has the waste
storage pond emptied three times a year.
The storage pond has an emergency
spillway at nine feet and the depth of
storage for the design storm is six
inches. Several years within the
simulation, the storage volume did
reach the level reserved for the design
storm, but pump-out was able to occur
to restore the storage volume. See DCN
1–01225 for more information. The
second case study is a similar facility in
Georgia which uses a center pivot
irrigation system. In this particular case,
the landowner can irrigate almost year
round since the crop is a hayfield with
a winter small grain. This particular
facility is designed for a 150 day storage
period. This facility was simulated
using a two times per year pumpdown
schedule as well as a year-round
pumpdown, both resulting in a no
discharge system. Additional case
studies may be found in EPA’s record
(DCN 1–01226.).
In these case studies, the AWM design
is simulated using SPAW with the result
of no predicted discharges. If the AWM
design does not result in a system that
would comply with the no discharge
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requirements, the CAFO could evaluate
different design and management
options (such as different storage
periods and dewatering schedules
consistent with the CAFO’s NMP) that
do not result in any predicted
discharges, or the CAFO could conclude
an open system is not appropriate for
the particular site being evaluated.
Under today’s proposal, EPA would
require certain specified information
regarding design, operation, and
maintenance of the system to be
included in the CAFOs NMP under 40
CFR 122.42(e)(1). This includes the key
user-defined inputs and model system
parameters. EPA proposes to require a
site-specific analysis and require certain
elements of the analysis be submitted to
the Director. (See 40 CFR 412.46(a)(1).)
These site-specific design, construction,
operation, and maintenance measures
would then become enforceable
requirements in the CAFO’s permit. As
long as the CAFO complies with these
requirements, the CAFO would
presumptively meet the no discharge
requirement. The burden would be on
the CAFO to demonstrate that any open
system it employed meets the new
source standard. EPA believes that this
would provide a clear and enforceable
standard for the CAFO as well as
provide assurance to the public that the
proposed system would comply with
the no discharge requirements.
Under today’s proposal, the Director
has the discretion to require additional
information from a new source Subpart
D CAFO owner or operator to support
site-specific effluent limitations. EPA is
aware that other peer-reviewed models
and programs have been or may be
developed that could be determined to
be equivalent to AWM and SPAW.
Therefore the proposed rule gives the
Director the discretion to approve
design software or procedures
equivalent to AWM and SPAW. EPA
solicits comment on this approach to
demonstrating that an open storage
system meets the no discharge
requirements and providing an alternate
approach for facilities that comply with
the enforceable design, construction,
operation and maintenance measures
developed under the approach.
The information, design, and
evaluation process in today’s proposal is
intended to allow CAFOs the flexibility
to demonstrate compliance with the no
discharge requirements for any type of
open storage facility. As a practical
consideration, EPA expects most CAFOs
selecting this compliance alternative
will submit designs for open manure
storage structures accompanied by a
narrow range of acceptable operation
and management practices. However,
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for a given type of storage facility design
(for example, a constant volume
anaerobic digester followed by an open
storage pond sized for 12 months
storage of treated manure), EPA believes
it is possible to conduct a series of
assessments for a specified geographic
area that fully encompass the range of
operational and management measures
that would be used across multiple
CAFOs with the specified storage
facility. In this case, SPAW could be run
to validate a wide range of NMP and
storage pond management scenarios.
The Director may then determine that
any CAFO using the specified facility
type and submitting a plan that falls
within the pre-approved range of
operational and management practices
would not need to conduct the
assessment step (i.e., the validation
using SPAW) individually. EPA solicits
comment on this approach to
streamlining the evaluation process for
those CAFOs submitting ‘‘preapproved’’ designs and operational
procedures.
EPA is proposing this compliance
option only for new Subpart D facilities
that employ open manure storage
structures, because EPA believes that
facilities employing other manure
handling technologies (e.g., under house
pits) will be able to ensure zero
discharge of manure, litter, and process
wastewater without having to employ
the detailed design, modeling, and
evaluation approach described here.
However, EPA recognizes that other
types of new Subpart D facilities
required to meet the zero discharge
standard might believe that such an
approach should be available to them as
well. EPA thus requests comment on
whether it should develop a comparable
provision for facilities other than those
employing open manure storage
structures under which a facility could
demonstrate in advance through a
rigorous modeling analysis that it was
designed, operated and maintained to
achieve zero discharge, and subsequent
compliance with the site-specific
design, construction, operation and
maintenance components of this
demonstration would then constitute
compliance with the no-discharge
requirement in the rule.
(b) Superior Alternative Performance
Standards
EPA proposes to delete 40 CFR
412.46(d) and remove the voluntary
superior performance standards
provision for new swine, poultry, and
veal sources. The court ruling states that
EPA cannot establish production area
standards that substantially prevent
discharges as equivalent to standards
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that prohibit discharges outright. In
accordance with this ruling, EPA is
proposing to withdraw this provision.
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E. Remand Concerning Pathogens for
BCT
1. What Were the BCT Provisions in the
2003 CAFO Rule?
The CWA requires compliance with
progressively more stringent
technology-based limitations. The Act
requires existing point sources to
comply with limitations achievable by
application of the ‘‘best practicable
control technology presently available’’
or ‘‘BPT.’’ These limitations control
conventional, priority, and/or
nonconventional pollutants, and are
typically based on the average pollutant
removal performance of the best
facilities examined by EPA. EPA also
bases limitations on the discharge of
toxic or non-conventional pollutants on
the ‘‘best available technology
economically achievable,’’ or ‘‘BAT.’’
The 1977 amendments to the CWA
required EPA to identify effluent
reduction levels for conventional
pollutants associated with ‘‘best
conventional pollutant control
technology’’ or ‘‘BCT’’ for discharges
from existing industrial point sources.
BCT is not an additional limitation, but
replaces BAT for control of
conventional pollutants. Effluent
limitations based on BCT may not be
less stringent than the limitations based
on BPT. Thus, BPT effluent limitations
are a ‘‘floor’’ below which BCT effluent
limitations cannot be established.
Section 304(a)(4) designates the
following as conventional pollutants:
biochemical oxygen demand (BOD),
total suspended solids (TSS), fecal
coliform (FC), pH, and any additional
pollutants defined by the Administrator
as conventional. The Administrator
designated oil and grease as an
additional conventional pollutant, on
July 30, 1979 (44 FR 44501).
The Clean Water Act Amendments
that created BCT also specify that the
cost associated with BCT effluent
limitations be ‘‘reasonable’’ with respect
to the effluent reductions. Accordingly,
the ‘‘BCT Methodology’’ was developed
to answer the question of whether it is
‘‘cost-reasonable’’ for industry to control
conventional pollutants at a level more
stringent than already required by BPT
effluent limitations. The BCT
methodology was originally published
on August 29, 1979, along with the
promulgation of BCT ELGs for 41
industry subcategories (44 FR 50732).
The crux of the methodology was a
comparison of the costs of removing
conventional pollutants for a candidate
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BCT technology within a particular
industry segment, to the costs of
removal for an average-sized publicly
owned treatment works (POTW). The
Fourth Circuit remanded the regulation,
and directed EPA to develop an
industry cost-effectiveness test in
addition to the POTW test. EPA
proposed a revised BCT methodology in
1982 (47 FR 49176) that addressed the
industry cost-effectiveness test (the
‘‘second’’ test). EPA proposed to base
the POTW benchmark on model plant
costs in a 1984 notice (49 FR 37046).
The final BCT methodology was
published on July 9, 1986 (51 FR
24974), maintaining the basic approach
of the 1982 proposed BCT methodology
and adopting the use of the new POTW
data.
In the 2003 CAFO rule, EPA
established BPT-based effluent
limitation guidelines or ‘‘ELGs’’ for large
beef, dairy, veal, swine, and poultry
CAFOs. These effluent limitation
guidelines prohibit the discharge of
manure, litter, or process wastewater
into waters of the U.S. from the
production areas at the CAFOs. (40 CFR
412.31(a).) However, when precipitation
causes a discharge of manure, litter, or
process wastewater, this may be allowed
provided certain conditions are met. (40
CFR 412.31(a)(1).) In order to qualify for
this allowance, the CAFO must have a
properly designed and constructed
storage structure with the capacity to
contain all manure, litter, and process
wastewater and the runoff and direct
precipitation from a 25-year, 24-hour
rainfall event. (40 CFR 412.31(a)(1)(i).)
In addition, the CAFO’s production area
must be operated in accordance with
specified best management practices
(BMPs). (40 CFR 412.31(a)(1)(ii).) The
rule also established other BMPs
governing CAFO wastes applied to land
under the control of the CAFO. (40 CFR
412.4.) EPA estimated that the ELGs will
achieve significant reductions in the
annual water pollutant load from Large
CAFOs nationwide, including 155
million pounds of nutrients (e.g.,
nitrogen and phosphorus), over two
billion pounds of sediments, and a 46
percent reduction in discharges of
pathogens including fecal coliform. (68
FR 7239, Table 7.2.)
In establishing the ELGs in the 2003
rulemaking, EPA also considered
reductions in conventional pollutants,
including BOD, fecal coliform, and TSS.
However, it was difficult for EPA to
assess fecal coliform loadings and
reductions because they vary greatly
depending on site characteristics.
Moreover, quantifying discharges of
conventional pollutants from land
application areas is difficult due to the
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challenges of: Distinguishing between
CAFO sources of pollutants and nonCAFO sources of pollutants;
determining what share of pollutants
reaching the edge of field reach surface
waters; and quantifying the potential for
regrowth of fecal coliform both after
treatment and after land application of
manure. Despite these challenges, EPA
estimated approximate reductions of
fecal coliform associated with the
following technology options
considered in the 2003 rule: Option 1
(nitrogen-based land application rates
and zero discharge from the production
area with an overflow allowance under
specified conditions); Option 2, the final
option selected (limiting nutrient-based
land application rates and zero
discharge from the production area with
an overflow allowance under specified
conditions); Option 3 (Option 2 plus
permeability limitations on lagoons and
ponds for protection of ground water
based on synthetic lagoon liners);
Option 5 (Option two except no
overflow allowance for swine and
poultry; Option 5a (Option 5 plus drier
manure management such as
composting for beef and dairy
operations); and Option 6 (Option 2
plus anaerobic digestion with energy
recovery for large swine and dairy
operations). Pollutant reduction
estimates for these options were
provided in the final rule. For beef and
dairy operations (subcategory C
facilities), EPA also evaluated BOD and
TSS reduction associated with Option 7
(Option 2 plus a national prohibition on
land application of manure to frozen,
snow-covered, or saturated ground), but
did not present the pollutant removal
estimates for this option.
Because of the difficulties associated
with quantifying reductions of
conventional pollutant discharges, EPA
relied primarily on sediment discharges
(as a surrogate for TSS) in establishing
BCT requirements. Following this
approach, EPA identified no BCT
technology option that achieves
significantly greater TSS removals than
the BPT requirements eventually
promulgated in 2003 except for Option
5. EPA determined Option 5 was not
economically achievable for subcategory
D (68 FR 7218). EPA therefore
concluded that there were no available
BCT technologies on which to base
limits for conventional pollutants that
were more stringent than BPT, and
established BCT requirements equal to
BPT in the 2003 CAFO rule (see 40 CFR
412.33 and 412.44). If EPA had
identified available technology options
that achieve greater reductions of
conventional pollutants than are
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achieved by BPT, then EPA would have
performed the two-part BCT cost test
required by CWA section 304(b)(4)(B).
(68 FR 7224).
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2. Summary of the Second Circuit Court
Decision
In its February 28, 2005, decision, the
Second Circuit Court of Appeals
remanded the 2003 CAFO rule’s BCT
standard for pathogens. In the court’s
view, the 2003 CAFO rule violated the
Clean Water Act because EPA did not
make an affirmative finding that the
BCT-based ELGs adopted in the CAFO
rule do in fact represent the best
conventional pollutant control
technology for reducing pathogens—
specifically, fecal coliform. The court
noted that EPA may well determine that
the ELGs otherwise adopted by the
CAFO rule do in fact represent the best
conventional pollutant control
technology for reducing pathogens. The
court further noted that EPA may
determine, after considering all the
relevant factors, that the ELGs otherwise
adopted by the 2003 CAFO rule will
directly—not just incidentally—reduce
pathogens and do so better than any
other pollutant control technology.
3. This Proposal
In today’s notice, EPA finds that the
BCT-based ELGs adopted in the 2003
CAFO rule do in fact represent the best
conventional pollutant control
technology for removal of pathogens,
including fecal coliform. First, EPA
discusses its evaluation of various
candidate technologies to assess
whether they are technologically
feasible for facilities in a subcategory
and would achieve greater reductions of
fecal coliform than the technologies
selected as the basis for BPT limitations
in the 2003 rule. Specifically, EPA
presents pathogen reductions associated
with technology Options 3, 5, 6 and 7
described previously and discussed in
the 2003 docket. EPA notes that these
regulatory options are discussed here
even though EPA has already
determined these options are either not
technologically feasible or not
economically achievable, because these
options may provide more reductions of
pathogens than the option selected for
the final 2003 CAFO ELGs. EPA did not
consider Options 1 and 4 because they
do not provide any further pollutant
reductions over the final selected
Option 2. Today, EPA also presents
additional candidate technologies for
pathogen reductions: Fluidized bed
incinerators; composting for poultry;
chemical addition for disinfection; and
additional storage to comply with a
national prohibition of land application
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to frozen, saturated, or snow-covered
ground (Option 7) for the swine
industry (Option 7 for the beef and dairy
industries was already presented in
2003).
Second, today’s proposal provides
results of the BCT cost-reasonableness
test for the candidate technology
options. EPA finds that none of these
candidate technologies would pass
either part of the BCT cost test.
Therefore, EPA has concluded that any
combination of these technologies
developed into a regulatory option for a
subcategory would also not pass the
BCT cost test. Finally, because the
traditional BCT cost test has been based
on pollutants other than fecal coliform,
today’s proposal presents an approach
to conducting the POTW cost test for
CAFOs that explicitly addresses fecal
coliform. Today’s notice presents the
results of applying this cost test to the
candidate BCT technology options
considered for CAFOs. None of the
candidate technology options would
pass the alternative BCT cost test. Each
of these analyses is described in more
detail below.
(a) Are There Technically Feasible
Candidate Technologies That Achieve
Greater Reductions for Fecal Coliform
Than Technologies Selected for BCT in
the 2003 Rule?
EPA evaluated numerous sources of
data on CAFO manure management
systems, including treatment
technologies and best management
practices (BMPs) for pollution
prevention, as well as for the handling,
storage, treatment, and land application
of wastes. These data sources included
available technical literature, over
11,000 comments submitted by industry
and other public commenters, and
insights gained from conducting over
116 site visits to CAFOs. EPA
specifically identified several
technologies and BMPs for the
reduction of fecal coliforms and other
pathogens, including digesters,
fluidized bed incinerators, chemical
addition for disinfection, composting,
and deep stacking of poultry litter (see
descriptions of these and other
technologies in Chapter 8 of the TDD).
Production area practices and land
application practices were also
evaluated. Each of these potential
candidate BCT technologies is
summarized below:
Anaerobic Digestion. EPA specifically
evaluated anaerobic digesters as a
candidate technology option in the 2003
rule, identified as Option 6 in the
preamble and supporting documents
(see Chapter 1 of the ‘‘Cost Methodology
for the Final Revisions to the NPDES
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and ELG for CAFOs’’ or ‘‘Cost Report,’’
EPA–821–R–03–004). However, EPA
rejected this technology for BCT because
anaerobic digesters are not
demonstrated to be technically feasible
at all CAFOs. Specifically, wastes from
beef, heifer, and poultry operations
would not support the operation of
these treatment systems. (68 FR 7217.)
Even for those types of CAFOs that
generate quantities and types of manure
and wastes more conducive to the
digestion process (e.g., dairy and swine
facilities above a minimum size), the
use of digesters does not necessarily
lead to significant reductions for many
of the pollutants present (e.g., nutrients,
metals).
There are three basic temperature
regimes for anaerobic digestion:
Psychrophilic, mesophilic, and
thermophilic. Psychrophilic, or lowtemperature, digestion is a natural
decomposition process at temperatures
typically found in lagoons. The
hydraulic retention time for stable
operation varies from 30 days to 90 days
depending on temperature. EPA notes
this same time-temperature relationship
occurs in typical manure storage
facilities, and results in some of the
reduction of pathogens (including fecal
coliform) that were estimated for the
2003 CAFO rule. Mesophilic digestion
reduces the retention period to 12 to 20
days. In some limited cases digesters
were shown to reduce fecal coliform by
as much as 99 percent, particularly by
thermophilic (higher temperatures in
the range of 135 to 155 degrees
Fahrenheit) digestion, but regrowth of
both fecal coliform and other pathogens
was shown to occur during effluent
storage. (68 FR 7217.) EPA did not
receive any public comments or data
during the 2003 rulemaking process that
provided a reliable means of either
quantifying this regrowth or
differentiating the performance of
digesters from the die-off and regrowth
that occurs in untreated manure storage
facilities. Most importantly, a digester
does not eliminate the need for the
CAFO to have liquid impoundments for
process wastewater, treated wastewater,
and storm water runoff. EPA previously
noted that the digester process may
stabilize manure, and may offer certain
other benefits (e.g., energy recovery,
control of methane emissions), but as a
result of the storage requirements (and
associated potential for regrowth) the
technology would not necessarily result
in decreased discharges of pollutants
(including pathogens) beyond the
selected BPT option. (68 FR 7217.) EPA
notes that digestion may also be
conducted aerobically, but this variation
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is rarely seen at CAFOs due to process
problems, design challenges, high
energy requirements, and
disproportionately high costs. (See
Table 8–14 of the TDD for a list of
aerobic digestion and activated sludge
processes.)
EPA further notes that digesters do
not reduce the total nutrients in animal
wastes. Most of the phosphorus
removed from the effluent is
concentrated in the digested solids,
which are often used for land
application. Other data show that
changes in pollutant composition,
particularly the soluble forms of
nitrogen, could result in increased
discharges of pollutants following land
application of digested manure,
specifically ammonia releases and other
emissions. (See Chapter 8 of the TDD.)
Similarly, metals are not reduced and
remain in the digester effluent and
solids. EPA further rejects this
technology as practical for all CAFOs
due to the high failure rate of these
systems at certain types of facilities (see
Cost Report, page 5–119), as well as the
substantial costs including significant
capital costs and the large uncertainty in
any potential annual cost offset due to
energy recovery. As of October 2002,
there were 40 CAFOs with operating
digesters out of several hundred
thousand AFOs nationwide, of which 35
were able to partially offset costs
through biogas recovery. In addition,
EPA continues to believe that
mandating the use of anaerobic digesters
could divert resources from or
complicate the installation of other
technologies that can potentially
achieve better performance overall. This
finding does not alter EPA’s previous
conclusion that the use of digesters by
CAFOs on a site-specific basis may be
appropriate in some circumstances (e.g.,
as part of a manure management system
to comply with the new source
requirements (see 68 FR 7220), but
today’s proposal concludes that the
technology is not an appropriate basis
for setting national BCT standards for
conventional pollutants.
Despite EPA’s conclusion that
digesters are not technologically feasible
for many CAFOs across a subcategory,
today EPA presents the BCT cost test for
those CAFOs where the digester
technology is most likely to be
feasible—large swine and dairy
facilities. This option includes
treatment in a mesophilic digester
(either a heated covered-lagoon digester,
plug flow, or complete mix digester,
with biogas recovery) prior to manure
storage. Treated manure is assumed to
be stored in the CAFOs existing manure
storage facility and land applied
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consistent with the BPT requirements of
40 CFR 412.
To evaluate costs and pollutant
reductions of all technologies presented
today, EPA used the same 1,600 farmbased cost models EPA used in the 2003
CAFO rule (68 FR 7243; also see
Chapters 2 and 5 of the Cost Report).
Digester costs were determined using
EPA’s AgStar Farmware (version 2). As
described above, quantifying pathogen
reductions is difficult. For purposes of
conducting the cost-reasonableness test,
EPA assumes the heated digester system
will reduce fecal coliforms in the stored
manure by 99 percent (atwolog order
reduction). EPA’s digester option costs
include cost-offsets due to biogas
recovery and energy recovery, and a
new storage pond for effluent storage if
the CAFO did not already utilize a
liquid storage structure. EPA’s costs also
include annual technical consultation
and services necessary to assure
effective digester system operation, and
optimal biogas generation and energy
recovery.
Runoff of land applied manure was
simulated using the Groundwater
Loading Effects of Agricultural
Management Systems (GLEAMS)
models EPA developed for the 2003
CAFO rule (see III–19 of ‘‘Loads
Report’’). GLEAMS is a field-scale
model that simulates hydrologic
transport, erosion, biochemical
processes such as chemical
transformation and plant uptake, and
nutrient losses in surface runoff,
sediment, and groundwater leachate and
is described in the Loads Report. The
National Water Pollution Control
Assessment Model (NWPCAM) is a
national surface-water quality model
designed to characterize water quality
for the nation’s network of rivers,
streams, and lakes. In the 2003 CAFO
rule analysis, NWPCAM simulations
predicted that, on average nationwide,
75 percent of fecal coliform, 88 percent
of BOD5, and 79 percent of TSS that
reach the edge-of-field will reach
surface waters (all calculated at the RF3
storm reach level). EPA combined the
reduced discharges of conventional
pollutants from modeled production
area overflows (see Loads Report for
more information) with the reduced
land application discharges based on
the edge-of-field load analyses (the
GLEAMS simulations followed by
attenuation in the NWPCAM model) to
quantify reductions in conventional
pollutant discharges from both the
production area and the land
application area. EPA also conducted
sensitivity analyses on the range of costs
of this technology by considering
alternative cost offsets for biogas
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recovery for energy production. The
specific assumptions and resulting
model farm costs may be found in DCN
22177 and DCN 1–02001.
The incremental costs (annualized
costs in 2001 dollars) and pollutant
reductions are shown in Table E.2
which follows the discussion of
technology options analyzed. 2001
dollars are used for comparability with
POTW benchmark costs. The cost index
used to bring forward CAFO costs to
year 2001 is the same index that was
used to bring forward POTW benchmark
costs to year 2001 dollars. Since the
POTW cost test compares cost to
pollutant ratios for both industry and
POTWs, applying the same cost index to
both ratios would not change the overall
comparison of these ratios. For this
reason, EPA has determined that it is
not necessary to bring the 2001 costs
forward to current year dollars for any
technology option presented today.
Fluidized Bed Incinerators. This
technology was reviewed but not
considered as a technology option in the
2003 CAFO rule. Fluidized bed
incineration is a proven technology for
reducing waste volume and for
converting the waste to useful products
(e.g., energy, nutrient enriched ash), and
is being used at municipal waste
disposal facilities. However, even at
municipal operations, incineration can
be a costly method of disposal and
frequently requires co-combustion with
other feedstocks.
In addition, incinerators are not
widely used in the United States to
manage animal manure because they are
generally not affordable to individual
CAFOs. Application of this technology
has been attempted unsuccessfully by a
beef feedlot in the U.S., but the
incinerator thermal output could not be
sustained (TDD, 8–93 to 8–95).
Fluidized bed incinerators are also
sensitive to moisture content and fuel
particle size, limiting incinerator
effectiveness to those wastes that are no
more than 15–20 percent moisture.
Individual poultry CAFOs in the U.S.
do not currently use incineration as a
method of handling excess poultry
litter, although centralized incinerator
projects have been successfully
developed in the European Union in
selected geographic areas with a high
density of poultry operations, and
several similar systems have been
proposed in the U.S. These centralized
incinerators reduce pathogens in the
litter. However, large-scale, centralized
incineration plants have not yet
successfully translated into feasible,
smaller-scale units for individual CAFO
use. (See Chapter 8 of the TDD.)
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EPA is aware that it is also possible
to gasify manure solids on-farm, but this
technology is still in the pilot stage. EPA
is further aware of a demonstration
project that heats the manure in a
refractory oven, and uses the gasses to
replace propane in a mortality handling
system. EPA is not aware of any
individual CAFOs using incineration
due to fuel costs, the high capital costs
of the incineration unit, and the
inability to sustain the technology for
most animal manures. EPA therefore
rejects this technology as not
technologically feasible for individual
CAFOs.
Chemical Disinfection. Methods of
disinfection include chemical addition,
heat, mechanical methods, and
radiation. Various types of chemical
addition for the purpose of disinfection
were reviewed but not selected as part
of a technology option in the 2003
CAFO rule. (See Chapter 8 of the TDD
for more information.) Commonly used
disinfection technologies in the U.S.
include the addition of chemicals such
as chlorine, calcium hypochlorite,
sodium hypochlorite, lime, and ozone.
Chlorination has a history of select
pathogen destruction effectiveness and
is relatively inexpensive when used as
a polishing step for final incremental
removal of pathogens. The Occupational
Safety and Health Administration
(OSHA) has established intensive
training and safety measures for
chlorine use. (DCN 1–01198.) Organic
compounds present in typical CAFO
wastewater can combine with chlorine
to form chloroform (a documented
animal carcinogen), monochloramines,
and other toxic chloro-organic
compounds. Chlorine dioxide is widely
used as an alternative bactericide, but
requires expensive generating
equipment, and produces chlorate and
chlorite as potentially undesirable byproducts. Chemical addition is not
commonly practiced in the United
States for treatment of animal wastes. In
order for chlorination to be optimally
effective and to minimize the generation
of chlorinated by-products, the treated
wastewater should have low levels of
suspended solids—generally 30 to 50
mg/l or less. Therefore, to implement
chlorine-based disinfection, animal
wastewater would require primary and/
or biological treatment prior to
disinfection. Storage tanks, dosage
control equipment, and mixing
equipment would need to be retrofitted.
The capital investment to modify a
typical CAFO’s existing manure
management system would be costly
and operation of the system would
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require higher levels of maintenance
and operator skill.
Lime addition is used as a
disinfectant for animal wastes found in
barns and milking parlors. Lime
addition is a proven treatment
technology for achieving Class A and
Class B biosolids standards. To meet
Class B requirements using lime
stabilization, the pH of the biosolids
must be elevated to more than 12 for
two hours and subsequently maintained
at more than 11.5 for 22 hours. The
material also needs to be kept at high
temperature (70 degrees Celsius) for at
least 30 minutes, which would require
outside heating of the material to be
treated. EPA has very little data on the
scalability of the technology to
individual CAFOs. What data there is
suggests that the capital costs for
holding tanks, dosage tanks, mixing
equipment, and neutralization tanks
necessary for retrofitting this technology
at CAFOs would be high. The addition
of lime results in an increase in sludge
volume, although lime stabilization
generally requires less storage space
than alternatives such as composting.
Most high moisture CAFO wastes would
require some sort of digestion and/or
dewatering prior to stabilization. EPA
believes additional costs for operator
training, safety controls, chemical
purchases, and increased volume of
materials that must be hauled and land
applied may be another reason the
technology has not been adopted by
CAFOs given the successful application
of lime addition to biosolids. Lime
addition in poultry houses has been
shown to interfere with pesticide
functionality, and lime addition to
poultry litter has been shown to cause
a huge flush of ammonia emissions from
the litter. EPA further notes that the
addition of lime to organic wastes in
general has been shown to accelerate
ammonia emissions.
Ozone is a highly effective germicide
against a wide range of pathogenic
organisms, including bacteria, protozoa,
and viruses. Ozone use in U.S.
wastewater treatment is limited due to
high capital and operating costs and
intensive energy requirements.
Ozonation, like chlorination, requires a
wastewater that has relatively low levels
of solids to avoid regrowth of
microorganisms after disinfection and
limit costs associated with oxidizing
oxygen demanding solids. Ozone
disinfection technology is not
commonly used in the United States for
treatment of animal wastes. The
processes are costly and require higher
levels of maintenance and operator skill.
Efficient ozone disinfection requires a
pH of 6–10 and temperature of at least
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36 degrees Fahrenheit. (TDD, p. 8–117.)
To implement this technology, animal
wastewater would require primary and/
or biological treatment prior to
disinfection (DCN 1–01198). Therefore,
EPA rejected ozonation as impractical
due to high operation and maintenance
requirements, high operator skill
requirements, considerable worker
safety concerns, and overall high costs.
For the above reasons, EPA finds that
all of these chemical addition
technologies are not technically feasible
for individual CAFOs.
Deep Stacking and Composting of
Poultry Litter. Deep stacking consists of
piling litter in a conical pile or stack
after it is removed from a poultry house
and raising the temperature to a
maximum of 140 Fahrenheit (60
Celsius) by microbes. As with anaerobic
digestion, incineration, and in some
cases, chemical addition, the heat (high
temperature) reduces pathogens.
Although the practice of deep stacking
poultry litter enhances its potential
value as a feedstuff for ruminants by
reducing concern about possible
pathogen transmission, the stacked
poultry litter is not pathogen free. The
stacked litter is not mixed out of
concern that re-aeration will create the
potential for excessive heating. Thus,
outer regions of the deep stacked litter
do not reach the temperatures necessary
for pathogen destruction. In practice,
deep stacking may be considered a
specialized approach to composting in
which oxygen availability limits the
overall temperature and the degree to
which dry matter (‘‘volatile solids’’ or
‘‘VS’’) are destroyed. (TDD, p. 8–131 to
8–132.) Due to the lack of reliable data
on the overall effectiveness of the
technology in reducing fecal coliform,
the operational similarities to windrow
composting (an option already
evaluated), and limited applications to
limited types of poultry CAFOs, EPA
rejects deep stacking as not technically
feasible for consideration as a BCT
candidate.
For more general composting
practices (e.g., windrow composting),
EPA notes that the effectiveness of the
technology is weather dependent, it
requires a large amount of land, and
additional runoff controls and
wastewater storage, and its use would
impose a much higher operating cost on
CAFOs. (TDD, p. 8–102 to 8–110; Cost
Report, Section 5.12.) Not withstanding
these limitations, some CAFOs
successfully use composting
technologies. Windrow composting in
particular is available to a range of
CAFOs, and was included in technology
option 5a for beef and dairy operations
in the 2003 rule. Composting is also a
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technically feasible technology for
incremental pathogen removals at most
poultry operations. Composting was
therefore further evaluated for cost
reasonableness for beef, dairy, and
poultry operations as part of today’s
proposal.
As with the digester option, the model
farms used in the analysis were the
same as those used in the 2003 final
CAFO rule. Costs were based on
windrow composting, and include
turning equipment, labor, berms for
runoff controls, a storage pond for
collection of compost site effluent, and
solid-liquid separation for beef and
dairy facilities. For purposes of this
analysis, EPA assumes 99 percent
reduction of fecal coliform in the
manure or litter prior to overflows from
storage ponds or runoff from land
application of the manure. EPA is aware
that some composting operations today
offset their costs through sales of the
composted material. EPA believes
regulatory requirements that resulted in
all facilities in a geographical area
composting their manure would flood
the local market and significantly
reduce a CAFO’s ability to offset costs
through compost sales. For this reason,
compost sales cannot reliably be
included as cost offsets for this option.
Ground water controls. As discussed
above, the ground water option (2003
CAFO rule Option 3) may result in
decreased discharges of pollutants in
comparison to the final BPT
requirements. However, EPA concludes
the conventional pollutant reductions
for Option 3 are small. In analyzing this
option, soil permeability was used to
determine leakage values (a reflection of
the pollutant mobility in the soil under
the manure storage area). Estimated
costs included a retrofit installation of
synthetic liners plus monitoring wells
in the vicinity of manure storage
structures. EPA estimated national
pollutant reductions by first looking at
each geographical region’s probability
for ground water contamination. Factors
influencing potential for ground water
contamination include the presence of
sandy soils, shallow groundwater tables,
and the presence of karst or karst-like
terrain (see Table 29 in section III.G of
the Loads Report). Regional loads were
summed to generate a national load
estimate. The incremental costs and
pollutant reductions for this option in
the 2003 CAFO rule analysis are
presented in Table E.2.
No discharge option. As discussed
above, the no discharge option for
existing swine and poultry facilities
(2003 CAFO rule Option 5) would result
in decreased discharges of conventional
pollutants in comparison to the final
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BPT requirements. In the earlier
rulemaking, EPA rejected this option for
BAT because it was not found to be
economically achievable. Consequently,
this option is not an available BCT
technology. The incremental costs and
pollutant reductions from the 2003
CAFO rule analysis are presented in
Table E.2.
Production Area Management
Practices. One mechanism for pathogen
discharges to surface waters is
catastrophic spills. In the 2003 rule,
EPA required various production area
management practices to address
catastrophic spills, and has not
identified any additional production
area management practices that would
further reduce pathogen discharges from
the production area.
EPA expects that the 2003 rule
requirements for no discharge from the
production area, as well as routine
inspection and mandatory management
practices for the control of liquid
impoundment levels, will reduce
catastrophic spills (40 CFR 412.37(a)(1)
and (2)). At the production area,
operators are required to handle animal
mortalities in a manner so as to prevent
contamination of surface water (40 CFR
412.37(a)(4)). The proper use of manure
as a fertilizer is closely linked with
manure storage, typically resulting in
increased storage capacity and longer
retention times of both liquid and solid
manure allowing increased opportunity
for die-off of pathogens due to
competition, UV, and other factors. For
example, runoff from fields receiving
poultry litter that had been stored prior
to application showed no significant
difference in pathogen content from
runoff from control fields to which
manure had not been applied (GEIS,
1999), demonstrating that pathogen
reductions from lengthy storage times
are significant. (See Response to
Comments Document, CAFO400085–
16.)
Minimum storage periods, while sitespecific, are nonetheless necessary to
meet the land application requirements
of the 2003 CAFO rule (see ‘‘Cost
Methodology’’ report for more
information on typical storage periods;
see Chapter 2 of ‘‘Managing Manure’’ for
more information on the link between
adequate storage and land application
practices). Adequate storage, though not
specifically defined by the 2003 CAFO
rule, already accomplishes significant
pathogen reductions. (See ‘‘Loads
Report’’ for pollutant reduction
estimates attributed to storage and the
production area management practices
required by the final CAFO rules.) EPA
has not identified any additional
production area management practices
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that will result in additional reductions
of pathogens.
Land Application Practices. Although
the requirements of the 2003 rule
related to land application of manure
were not specifically designed to reduce
the pathogens in animal wastes, they are
effective at achieving reductions of
pathogens in CAFO discharges. In
addition to the production area
management practices described above,
CAFO discharges of pathogens are
further reduced by applying manure at
rates that ensure appropriate
agricultural utilization of nutrients and
establishing setbacks or buffers where
manure, litter, and other process
wastewater are not applied.
Accordingly, the final rule requirements
include several land application
practices, such as appropriate rates and
timing of application, overall
consideration of whether any land
application should occur, and
application setbacks and buffers. The
2003 CAFO rule also requires fieldspecific assessments of the potential for
nutrient transport for each field to
which manure may be land applied.
Such assessments must address the
source, form, timing, and method of
application. Application rates must
minimize phosphorus and nitrogen
transport from the field to surface
waters (40 CFR 412.4(c)(2)). Application
rate has been identified as the single
most important factor affecting
pollution of surface waters from fields
receiving manure. In one case study,
swine lagoon effluent applied to tile
drained fields at 1.1 inches showed no
difference in runoff quality from the
control fields, but application at three
times this rate yielded high levels of
fecal coliform in the adjacent surface
water.
The final selected option also
specifies that manure, litter, or other
process wastewaters are not to be
applied within 100 feet of any downgradient surface waters, open tile line
intake structures, sinkholes, agricultural
well heads, or other conduits to surface
waters (40 CFR 412.4(c)(5)). This
setback is an area where manure, litter,
or other process wastewaters are not
applied, but crops may continue to be
grown. The setback achieves pollutant
reductions by increasing the distance
pollutants have to travel to reach surface
waters. The transport of nutrients and
other pollutants (including pathogens)
in manure to surface waters and the rate
at which transport occurs is dependent
on the land use, geography, topography,
climate, amount and method of manure
application, and the nature and density
of vegetation in the area. As a
compliance alternative to the setbacks
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requirement, CAFOs may use vegetated
buffers (40 CFR 412.4(c)(5)). EPA’s
record shows numerous examples of
buffers with trapping efficiencies as
high as 91% (e.g., see DCNs 385026,
321083, 22374). Buffer strips stabilize
streambanks and shorelines, and
prevent loss of pollutants from bank
erosion and slumping. (Response to
Comments Document, CAFO400085–
16.) As indicated above, EPA considered
and selected nutrient management and
use of setbacks or buffers for the BPT
ELGs (see 40 CFR 412.4 and 412.37).
Because pathogen transport often occurs
through adherence to soil or other solid
particles, management practices that
reduce discharges of other pollutants,
particularly TSS, will also reduce
pathogen discharges.
As described previously, pathogen
die-off occurs during the period manure
is stored prior to land application, and
further die-off of pathogens occurs when
the animal waste is exposed to sunlight
following surface application to land.
Pathogenic bacteria in particular are
sensitive to changes in environmental
conditions. EPA applied the GLEAMS
model to estimate changes in pollutants
leaving the land application areas of
CAFO facilities. EPA also calculated
reductions in pathogen indicator
loadings from the production area of
facilities. (See Response to Comments
Document, Appendix A, Essay: CAFOs
as Sources of Pathogens and Related
Risks).
Additional factors affecting pathogen
content in the runoff from land
application areas include incorporation
methods, tillage practices, saturation of
the receiving field, and elapsed time
following application before a rainfall.
These factors are expected to be
addressed, where appropriate, in the
State technical standards required under
40 CFR 412.4(c)(2). For examples, see
‘‘Managing Manure,’’ 2–12 for a
discussion of additional storage capacity
for the winter season; Appendix L for
technical guidance on minimizing risks
of runoff of manure in the winter; and
Appendix M for guidance on estimating
the minimum level of rainfall at which
runoff begins.
In the 2003 CAFO rule, 40 CFR 412.4
requires technical standards for nutrient
management to address the form,
source, timing, and method of
application to each field. At the time
EPA evaluated, but did not select,
technology Option 7 (same as Option 2
plus prohibition of land application of
manure to frozen, snow-covered, or
saturated ground). The incremental
costs and pollutant reductions from the
2003 CAFO rule analysis for this option
for beef and dairy facilities are
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presented in Table E.3. Today, EPA also
presents the costs and conventional
pollutant reductions of this technology
option for swine facilities. To comply
with this requirement at swine facilities,
EPA has calculated the costs for
additional storage capacity (up to six
months additional storage in the
Midwest and Mid-Atlantic regions;
facilities in the Southern region were
assumed not to need additional
containment for manure storage over the
winter). In all other respects, the cost
models and model farms are the same as
those used in the 2003 CAFO rule. EPA
notes some incremental pollutant
reductions from the productions area
occur as a result of this requirement due
to a reduction in frequency of overflows
from manure storage areas, and that
minimal reductions occur from the land
application areas because the technical
standards and NMPs required by the
2003 CAFO rule, while not banning
application of manure to frozen, snow
covered and saturated fields outright,
already address timing issues associated
with application of manure. EPA did
not identify any additional land
application management practices that
will result in additional reductions of
pathogens.
(b) Do Any of These Technologies Pass
the BCT Cost-Reasonableness Test?
In addition to other factors specified
in Section 304(b)(4)(B), the CWA
requires that EPA establish BCT
limitations after consideration of a two
part ‘‘cost-reasonableness’’ test. The
‘‘cost reasonableness’’ test evaluates
‘‘the reasonableness of the relationship
between costs of attaining a reduction in
effluent and the effluent reduction
benefits derived, and the comparison of
the cost and level of reduction of such
pollutants from the discharge of POTWs
to the cost and level of reduction of
such pollutants from a class or category
of industrial sources * * *’’ EPA
explained its methodology for the
development of BCT limitations in July
1986 (51 FR 24974). In developing the
BCT methodology, EPA was guided by
legislative history of the Clean Water
Act, in particular, Congress’ concern
that controls for conventional pollutants
at levels more stringent than BPT were
likely to be unreasonably expensive in
some cases. The BCT methodology
answers the question of whether it is
‘‘cost-reasonable’’ for industry to control
conventional pollutants at a level more
stringent than BPT already requires.
Establishing BCT effluent limitations
for an industrial category or subcategory
begins by identifying technology
options that provide additional
conventional pollutant control beyond
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that provided by application of BPT
effluent limitations. EPA evaluates the
candidate technologies by applying the
two-part BCT cost test. To ‘‘pass’’ the
POTW test (the first part of the costreasonableness test), the cost per pound
of incremental conventional pollutant
removed in upgrading from BPT to the
candidate BCT must be less than the
cost per pound of incremental
conventional pollutant removed in
upgrading POTWs from secondary
treatment to advanced secondary
treatment. The second part of the test
that the ‘‘candidate’’ BCT technology
must pass is the industry costeffectiveness test, discussed below.
Historically, EPA has evaluated the
cost-reasonableness of each technology
option on a subcategory basis. However,
the candidate BCT technologies being
evaluated for CAFOs vary significantly
in costs and feasibility by animal type
within a subcategory of CAFOs (Cost
Methodology Report, EPA–821–R–03–
004). For CAFOs, the specific candidate
technologies are not universally
applicable. If EPA were to evaluate each
technology across a subcategory, there
would not be any technology that could
be applied to an entire subcategory to be
evaluated, and EPA would conclude no
technology exists that could be used to
potentially establish BCT limitations
more stringent than BPT. Therefore EPA
has evaluated each candidate
technology on a species-specific basis
(the animal species for which the
technology is believed to be
technologically available). These
species-specific results may then be
assembled into candidate technology
options that are practical for a
subcategory. This provides a meaningful
evaluation of cost-reasonableness for the
entire subcategory, and is therefore both
appropriate and necessary for applying
the BCT cost reasonableness
methodology to CAFOs.
As described in the 1986 BCT
methodology, the two conventional
pollutants used in calculating the
POTW pollutant removal benchmark are
BOD and TSS. As previously discussed,
EPA relied primarily on sediment
removals as an indicator of conventional
pollutant reductions. The models
available for simulating pollutant
reductions from land application
practices (GLEAMS, EPIC, and BASINS)
do not measure BOD, and EPA was not
able to quantify BOD loadings from land
application in the 2003 CAFO rule.
Runoff from land application areas
contains BOD from manure and process
wastewaters, but it also contains BOD
from organic matter including
background soil organic materials and
crop residues. In contrast to crop
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residues, manure BOD is highly
sensitive to moisture and aerobic
conditions, and quickly forms inorganic
materials and nutrients after land
application, as evidenced by significant
off-gassing (odor) as the manure
decomposes. (DCN 1–01230.) BOD
deliveries to surface water are also
highly variable, but current literature
suggests the timing of land application
in relation to future rainfall events is a
key parameter.
Since the 2003 CAFO rule, models
including WAM (Watershed Assessment
Model) and WMM (Watershed
Management Model) were developed
that have some watershed level BOD
modeling capability (for example, see
‘‘TMDLs for Nutrient, DO, and BOD for
Delaney Creek,’’ March 2005, DCN 1–
01222). The data required for the WMM
model include: Area of all the land use
categories and the area served by septic
tanks; percent impervious area for each
land use category; event mean
concentration of runoff (EMC) for each
pollutant type and land use category;
percent EMC of each pollutant type that
is in suspended form; and annual
precipitation. The lack of data/literature
to support estimation of national BOD
loadings from land applied manure is a
significant issue. EPA concludes the
capability is still not available to model
BOD runoff.
The 2003 CAFO rule prohibits dry
weather discharges from land
application areas, and the BPT land
application requirements (including
technical standards for timing, form,
and rate of application, as well as the
required vegetated buffer, setback, or
equivalent practices) already minimize
discharges of BOD from land
application areas. However, the
reductions in BOD in runoff from land
application areas, specifically the BOD
attributable to manure and process
wastewater, are minimal in comparison
to production area discharges of BOD.
Therefore EPA’s load reductions for
BOD include production area discharges
(overflows and runoff from manure
storage), but do not include land
application. (See the TDD for discussion
of EPA’s modeling of overflows from the
production area and runoff from land
application areas; also see ‘‘Loads
Report’.) Table E.1 provides a summary
of the costs and pollutant reductions of
the 2003 CAFO rule BPT.
TABLE E.1.—2003 CAFO RULE BPT COSTS AND POLLUTANT REMOVALS
Annualized costs
($2001, millions,
pre tax)
Sector
Beef ..........................................................................................
Dairy .........................................................................................
Swine .......................................................................................
Poultry ......................................................................................
Table E.2 provides incremental costs
and incremental pollutant removals of
candidate technologies in relation to
BPT. Incremental costs are the costs of
the technology option minus the BPT
TSS removed
(million pounds
sediment)
BOD removed
(million pounds)
86
128
25
41
0
0
0
6
costs from Table E.1. Incremental load
reductions are the pounds removed by
the technology option minus the BPT
load reductions from Table E.1. Total
incremental reductions include BOD
Total pounds
removed (million
pounds)
1201
99
113
181
1201
99
113
187
and TSS. See Section D.1(c) of today’s
preamble for additional discussion of
pathogens (fecal coliform) reductions.
TABLE E.2.—INCREMENTAL COSTS AND CONVENTIONAL POLLUTANT REMOVALS OF CANDIDATE TECHNOLOGIES
Candidate technology
Animal sector
Ground water Controls 1 ...........................................
Beef ..................
Dairy .................
Swine ................
Swine ................
Beef ..................
Dairy .................
Poultry ..............
Dairy .................
Swine ................
Beef ..................
Dairy .................
Swine ................
No Discharge ............................................................
Composting ...............................................................
Anaerobic Digestion ..................................................
Land Application Timing Restrictions .......................
jlentini on PROD1PC65 with PROPOSAL2
1 Only
Annualized
cost of candidate technology option ($2001,
millions,
pre-tax)
Incremental
costs
($2001, millions, pretax)
Incremental
BOD removed (million pounds)
Incremental
TSS removed (million pounds
sediment)
Total incremental reductions
(million
pounds)
231
316
61
133
1,367
277
508
505
79
112
318
37
145
188
36
108
1281
149
467
377
54
26
190
12
0
0
0
7
3
1
0
2
6
0
2
7
0
0
0
1
25
7
0
9
0
0
7
1
0
0
0
8
28
8
0
11
7
0
9
8
reduced discharges to surface waters via a hydrologic connection are included in this analysis.
The POTW upgrade cost is referred to
as the POTW benchmark; its derivation
is described in the 1986 final BCT
methodology notice (51 FR 24974). The
upgrade cost to industry must be less
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than the POTW benchmark of $0.25 per
pound (in 1976 dollars) or $0.65 per
pound (in 2001 dollars). Table E.3
provides the cost per pound of
conventional pollutants (BOD and TSS)
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removed by the candidate technology.
(See the Addendum to the TDD, DCN 1–
10227 for additional information on the
POTW benchmark.)
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Federal Register / Vol. 71, No. 126 / Friday, June 30, 2006 / Proposed Rules
TABLE E.3.—COST TEST PART ONE
[POTW test results]
Candidate technology
Animal sector
Ground water controls .....................................................................................................
Incremental cost
per pound removed by technology ($/lb)
Beef ..................
Dairy .................
Swine ................
Swine ................
Beef ..................
Dairy .................
Poultry ..............
Dairy .................
Swine ................
Beef ..................
Dairy .................
Swine ................
No discharge ....................................................................................................................
Composting ......................................................................................................................
Anaerobic Digestion .........................................................................................................
Land Application Timing Restrictions ..............................................................................
1 Values
1NC
NC
NC
13.55
46.39
17.84
NC
34.15
7.89
366.65
20.90
1.55
POTW test
result
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
were not calculated because no additional pollutant reductions to surface waters were expected for these options.
In all cases, the POTW benchmark is
lower than the cost per pound of
conventional pollutants removed by the
candidate technology. Since the
candidate technologies all fail the
POTW cost test, the candidate
technologies are not cost-reasonable.
EPA notes that even though a candidate
technology may be affordable for a
subcategory, the candidate technologies
must be cost-reasonable to be
considered as a basis for setting BCT
limitations.
EPA concludes that since all
candidate technologies fail the POTW
test for each species evaluated, any
technology option developed for
subcategories C or D utilizing a
combination of these candidate
technologies also fails the POTW test. In
addition, EPA believes the results
presented here for beef, dairy, swine,
and poultry operations are reasonably
extrapolated to veal calf operations
(which are typically total confinement
operations like swine) and heifer
operations (which use similar waste
management technologies to beef
feedlots). EPA notes veal calf and heifer
operations comprise approximately two
percent of all Large CAFOs. Once the
candidate technology fails the POTW
test, the candidate technology fails the
cost-reasonableness test. The industry
cost-effectiveness test (the second test
for determining cost reasonableness) is
only relevant if the POTW test (the first
test) is passed. The following discussion
of the industry cost-effectiveness test is
provided today for completeness.
The second test that the candidate
BCT technology must pass to be
considered cost-reasonable is the
industry cost-effectiveness test. To pass
the industry cost test, EPA computes a
ratio of two incremental costs. The first
incremental cost is the cost per pound
removed by the candidate technology
relative to BPT. The second incremental
cost is the cost per pound removed by
BPT relative to no treatment (i.e., raw
wasteload). As in the POTW test, the
ratio of the first cost divided by the
second cost is compared to an industry
cost benchmark. The industry cost
benchmark is the ratio of two
incremental costs: The cost per pound
to upgrade a POTW from secondary
treatment to advanced secondary
treatment is divided by the cost per
pound to initially achieve secondary
treatment. If the industry ratio is lower
than the benchmark, then the candidate
technology passes the cost test. The
industry cost benchmark is 1.29 (see 51
FR 24974; also see the Pulp and Paper
Final Rule Technical Development
Document, EPA–821–R–97–011). Table
E.4 shows the ratio of the incremental
costs for the candidate technology
options. (See Addendum to the TDD for
additional information on the cost ratio
calculations.)
TABLE E.4.—COST TEST PART TWO
[Industry cost-effectiveness test results]
Candidate technology
Animal sector
Ground water controls ...................................................................
Beef ..................
Dairy .................
Swine ................
Swine ................
Beef ..................
Dairy .................
Poultry ..............
Dairy .................
Swine ................
Beef ..................
Dairy .................
Swine ................
No discharge ..................................................................................
Composting ....................................................................................
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Anaerobic digestion .......................................................................
Land Application Timing Restrictions ............................................
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Candidate
technology cost
ratio
Industry cost
benchmark
NC
NC
NC
61.15
647.70
13.86
NC
26.52
35.63
5,119.52
16.23
6.99
E:\FR\FM\30JNP2.SGM
1.29
1.29
1.29
1.29
1.29
1.29
1.29
1.29
1.29
1.29
1.29
1.29
30JNP2
Industry cost
test result
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
Federal Register / Vol. 71, No. 126 / Friday, June 30, 2006 / Proposed Rules
In all cases, the candidate
technology’s cost ratio is higher than the
industry cost benchmark, and the
technology would fail the second test.
EPA concludes that since all candidate
technologies fail the industry costeffectiveness test for each species
evaluated, any technology option
developed for subcategories C or D
utilizing a combination of these
candidate technologies also fails the
industry cost test for similar reasons
described above.
(c) How Is EPA Evaluating Pathogens in
Its BCT Cost Reasonableness Analysis?
As stated above, EPA establishes BCT
effluent limitations for an industrial
category or subcategory by identifying
technology options that provide
additional conventional pollutant
control beyond that provided by
application of BPT technologies. EPA
evaluates candidate technologies by
applying the two-part BCT cost test
where one requirement is that the cost
per pound of conventional pollutant
removed in upgrading from BPT to the
candidate BCT must be less than the
cost per pound of conventional
pollutant removed in upgrading POTWs
from secondary treatment to advanced
secondary treatment. The two
conventional pollutants used in
calculating the POTW pollutant removal
benchmark are BOD and TSS.
For the candidate technology’s cost
comparison, the 1986 BCT methodology
describes the use of BOD and TSS, and
also oil and grease when appropriate in
the context of the industry and
technology being evaluated. When the
Agency promulgated the BCT
methodology (including descriptions of
how to apply the cost test), fecal
coliform and pH were not included in
the calculations because, unlike BOD
and TSS, these pollutants were not
measurable as ‘‘pounds removed.’’
Section 304(b)(4)(B) authorizes EPA to
consider other appropriate factors in
establishing BCT. The 1986
methodology envisioned the need for
adjustments to the BCT cost test
methodology in future rulemakings to
account for lack of comparable data or
other industry-specific factors. (51 FR
24974, 24976 (July 9, 1986).) For
CAFOs, where pathogen reductions are
a factor to be considered, including fecal
coliform for the determination of BCT
cost reasonableness is an appropriate
application of such flexibility.
The Second Circuit directed EPA to
make an affirmative finding that the
BCT-based ELGs adopted in the 2003
37771
CAFO rule do in fact represent the best
conventional pollutant control
technology for reducing pathogens,
specifically fecal coliform. Although
fecal coliform is not typically used in
BCT cost calculations, in light of the
Second Circuit’s direction and the
flexibility inherent in the BCT
methodology, EPA developed
procedures to evaluate costreasonableness for fecal coliform
removal for this industry. Therefore,
today’s proposal includes an additional
set of cost comparisons to directly
account for pathogens by specifically
including fecal coliform, the only
conventional pollutant that is a possible
pathogen. EPA thus adds fecal coliform
to the BCT determination, which is an
appropriate adjustment to the BCT
methodology for the CAFO industry.
The proposed approach parallels the
two-part cost-reasonableness test
conducted above for pounds of
conventional pollutants, but here,
pounds of conventional pollutants is
replaced by colony forming units (CFU)
of fecal coliform. Table E.5 presents the
costs and fecal coliform (FC) removals
of the 2003 CAFO rule (BPT).
TABLE E.5.—2003 CAFO RULE BPT COSTS AND FC REMOVALS
Annualized costs
($2001, millions,
pre-tax)
Sector
Beef ..............................................................................................................................................................
Dairy .............................................................................................................................................................
Swine ...........................................................................................................................................................
Poultry ..........................................................................................................................................................
Table E.6 provides incremental costs
and incremental fecal coliform (FC)
removals of candidate technologies in
relation to BPT. In this analysis, EPA
has again evaluated the candidate
technologies first on a species-specific
basis. These results may then be
combined to form candidate technology
options that can be used to conduct the
cost-reasonableness test on a
subcategory wide basis. Costs are the
same as those presented in Table E.2.
86
128
25
41
FC removed
(million CFU)
10.56
0.97
0.42
6.74
×
×
×
×
1013
1013
1013
1013
Fecal coliform removals were
determined using the 2003 CAFO rule
methodology as described above in
section E.3(a).
TABLE E.6.—INCREMENTAL COSTS AND FC REMOVALS OF CANDIDATE TECHNOLOGIES
Animal sector
Ground water controls ..................................................................................................
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Candidate technology
Incremental
annualized cost
($2001, millions,
pre-tax)
Beef ..................
Dairy .................
Swine ................
Swine ................
Beef ..................
Dairy .................
Poultry ..............
Dairy .................
Swine ................
Beef ..................
Dairy .................
No discharge .................................................................................................................
Composting ...................................................................................................................
Anaerobic digestion ......................................................................................................
Land Application Timing Restriction .............................................................................
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145
188
36
108
1281
149
467
377
54
26
190
30JNP2
Incremental FC
removed
(million CFU)
1 ND
7.4
250
30.4
0.460
22.9
136
0.560
22.9
×
×
×
×
×
×
×
×
ND
ND
1013
1013
1013
1013
1013
1013
1013
1013
37772
Federal Register / Vol. 71, No. 126 / Friday, June 30, 2006 / Proposed Rules
TABLE E.6.—INCREMENTAL COSTS AND FC REMOVALS OF CANDIDATE TECHNOLOGIES—Continued
Candidate technology
Animal sector
Incremental
annualized cost
($2001, millions,
pre-tax)
Swine ................
1 Values
Incremental FC
removed
(million CFU)
136 × 1013
12
were non-zero, but too small to report in the indicated units.
EPA needed to develop a new
benchmark to use for this alternative
POTW part of the BCT cost test which
reflects the cost to reduce fecal coliform
at a POTW. To do this, EPA first
examined the costs of removal of fecal
coliform at secondary and advanced
secondary plants. EPA defined both
secondary and advanced secondary
plants in the same way as in the 1986
BCT cost methodology. Secondary
plants are assumed to be activated
sludge plants and advanced secondary
plants are activated sludge plants with
polymer addition. EPA reviewed the
POTW costs presented in the July 9,
1986, Federal Register Notice, and
confirmed that the costs reflect both
chlorination and biological treatment
(see 51 FR 24982). Performance data
show that the majority of fecal coliform
removal (90 to 98 percent) occurs during
secondary treatment and is
accomplished through removal of the
biosolids. Disinfection, such as through
chlorination or ultraviolet
decomposition, is used as a polishing
step to reduce fecal coliform to below
200 CFU/100 mL. EPA concludes that
the POTW benchmark must reflect the
cost of biological treatment as well as a
polishing step for disinfection.
Second, EPA evaluated the amount of
fecal coliform removed at POTWs. EPA
evaluated reported influent and effluent
fecal coliform data reported by POTWs
on their discharge monitoring reports
(as assembled in EPA’s Permit
Compliance System). EPA determined,
however, that there were insufficient
influent data to develop a representative
national influent concentration for fecal
coliform. Therefore, EPA used reference
data on typical domestic wastewater
concentrations of fecal coliform (Metcalf
and Eddy, Wastewater Engineering:
Treatment, Disposal, and Reuse (1991
3d ed.), DCN 1–01002.) EPA notes that
the limited PCS influent data falls
within the range of the domestic
wastewater reference data. (See DCN 1–
01002.)
Final effluent fecal coliform
concentration from POTWs with
secondary treatment was set at 200 CFU
per 100 mL (Ambient Water Quality
Criteria for Bacteria, DCN 1–01004).
EPA used data from EPA’s Permit
Compliance System to evaluate national
effluent concentrations of fecal coliform
from POTWs with advanced secondary
treatment. The data shows those POTWs
with advanced secondary treatment
generally achieved fecal coliform
effluent concentrations of 20 to 40 CFU/
100 mL, with a median effluent of 21
CFU per 100 mL. (See DCN 1–01005.)
Finally, EPA estimated the benchmark
cost to remove a trillion CFU per year
for each of the five flow categories
evaluated in the 1986 BCT cost
methodology, and weighted the costs by
total POTW flow for the category. The
resulting incremental cost per trillion
CFU removed was $0.33 (2001). (See
Addendum to the TDD for additional
information on the POTW benchmark
calculations.) Table E.7 shows the
POTW test results using this fecal
coliform POTW benchmark for
conducting part one of the costreasonableness test.
TABLE E.7.—FECAL COLIFORM COST TEST PART ONE
[POTW test results]
Candidate technology
Animal sector
Ground water controls .....................................................................................................
Beef ..................
Dairy .................
Swine ................
Swine ................
Beef ..................
Dairy .................
Poultry ..............
Dairy .................
Swine ................
Beef ..................
Dairy .................
Swine ................
No discharge ....................................................................................................................
Composting ......................................................................................................................
Anaerobic digestion .........................................................................................................
Land Application Timing Restrictions ..............................................................................
1 NC
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Cost per trillion
CFU removed by
technology
1 NC1
NC
NC
1.46
0.51
0.49
101.44
1.64
0.04
4.58
0.83
0.01
POTW
test result
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
Fail.
Pass.
Fail.
Fail.
Pass.
means not calculated.
For most sectors, the alternate POTW
benchmark is lower than the cost per
CFU removed by the candidate
technology. In these cases, the candidate
technologies fail the POTW test for fecal
coliform. The remaining candidate
technologies are assumed to pass the
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POTW test and move on to the second
cost test.
The second test that the candidate
BCT technology must pass to be
considered cost-reasonable is the
industry cost-effectiveness test. As
described previously, to pass the
industry cost test, EPA computes a ratio
of two incremental costs. In the
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alternative cost test, the fecal coliform
reductions are used in lieu of pounds of
TSS and BOD. The first incremental cost
is therefore the cost per trillion CFU
removed by the candidate technology
relative to BPT. This is divided by the
cost per trillion CFU removed by BPT
relative to no treatment (i.e., raw
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wasteload). The industry cost
benchmark is the ratio of two
incremental costs: The cost per trillion
CFU to upgrade a POTW from
secondary treatment to advanced
secondary treatment over the cost per
trillion CFU to initially achieve
secondary treatment. If the industry
ratio is lower than the benchmark, then
the candidate technology passes the cost
test. The industry cost benchmark is
0.04. Table E.8 shows the ratio of the
incremental costs for the candidate
technology options and the results of
the second test. (See Addendum to the
TDD for detailed calculations of the
industry cost benchmark.)
TABLE E.8.—COST TEST PART TWO
[Industry cost-effectiveness test results for the fecal coliform cost test]
Candidate technology
Animal sector
Anaerobic digestion .......................................................................
Land Application Timing Restrictions ............................................
Swine ................
Swine ................
In both cases, the industry cost ratio
is higher than the benchmark.
Therefore, none of the candidate
technologies pass the industry costeffectiveness test. Since all candidate
technologies fail the BCT cost test for
each species evaluated, any technology
option developed for subcategories C or
D utilizing a combination of these
candidate technologies also fails the
cost test. EPA notes the reductions in
fecal coliform achieved by the candidate
technologies (i.e., greater than 99
percent fecal coliform removal in the
case of digesters and composting)
represent the upper bound attainable by
any technology. Finally, EPA’s record
shows all candidate technologies would
fail the second test even under EPA’s
sensitivity analyses that assume
considerable cost-offsets and costsharing. (See Addendum to TDD for
additional information on the sensitivity
analysis for cost-offsets. EPA solicits
comment on all of these data and
analyses.)
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Candidate technology cost ratio
(d) What BCT Limitations Are Proposed
Today?
EPA found that the primary sources of
discharges from CAFOs were
production area overflows due to
inadequate operation and maintenance
of the infrastructure for containing and
transporting liquid manure and
wastewater, and discharges from the
application area due to agriculturally
improper application of manure, litter,
and process wastewater. EPA previously
concluded that the BPT standards
requiring operation, maintenance, and
record-keeping BMPs along with no
discharge from the production area, and
land application BMPs that require
appropriate agricultural utilization of
manure, litter, and process wastewater,
significantly reduce water pollutant
discharges, including pathogen loads.
The technologies already evaluated by
EPA generally show high removals (99
percent) of conventional pollutants. In
order to pass the cost-reasonableness
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6.63
1.48
test, EPA believes any additional
candidate technologies would need to
show similar pollutant removals and
significantly lower costs. EPA is also
aware of technologies that may, on a
site-specific basis, be used to provide
further reductions of conventional
pollutants. However, EPA’s record
shows these other technologies are not
available engineering alternatives for
most CAFOs, and they are therefore not
technologically feasible candidates. (See
Chapter 8 of the TDD and the docket
accompanying today’s proposal for
descriptions of these additional
technologies.) EPA further assumes
variations of the technologies evaluated
today (for example, plug-flow or
complete mix anaerobic digesters versus
activated sludge systems) will have
comparable or higher costs and
comparable pollutant reductions.
Therefore, EPA concludes that
variations of the candidate technologies
evaluated today will not pass the costreasonableness test. EPA solicits
comment on these findings.
In summary, EPA identified several
candidate technologies that can
potentially achieve greater removals of
conventional pollutants than the BPT
standards. EPA evaluated these
candidate technologies by conducting
the two-part cost reasonableness test. If
any candidate technologies are feasible
and pass both the POTW and the
industry cost test, then the most
stringent technology option among them
becomes the basis for setting BCT
effluent limitations. Alternatively, if no
candidate technology more stringent
than BPT passes, then BCT effluent
limitations are set equal to BPT effluent
limitations. Today EPA finds that all
candidate technologies fail the costreasonableness test. EPA also finds that
all candidate technologies fail the
alternative cost-reasonableness test that
is based on fecal coliform. Accordingly,
EPA proposes BCT effluent limitations
equal to the 2003 CAFO rule BPT
limitations, and affirms that the 2003
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Industry cost
benchmark
0.04
0.04
Industry cost
test result
Fail.
Fail.
CAFO rule BPT limitations do in fact
represent the best conventional
pollutant control technology. EPA
solicits comment on all aspects of the
cost-reasonableness analysis and the
alternative cost test presented today.
IV. Impact Analysis
A. Environmental Impacts
When EPA issued the revised CAFO
regulations on February 12, 2003, it
estimated annual pollutant reductions
for the rule at 56 million pounds of
phosphorus, 110 million pounds of
nitrogen, and two billion pounds of
sediment. The new proposed rule will
retain these environmental benefits
since the technical requirements for
facilities that discharge are not affected
and all facilities will still need to
control nutrient releases from the
production and land application areas.
The overall magnitude of the benefits
will increase over 2003 due to growth in
the industry, but the analysis for today’s
proposed rule does not recalculate these
effects since the increase is not due to
changes in the CAFO regulations.
The premise that environmental
benefits are retained is based in large
part on the assumption that facilities
that do not apply for permits will, in
fact, not discharge and will still manage
wastewater, manure and litter
appropriately at both production and
land application areas. The preamble for
the proposed rule makes clear that,
although it is not necessary for a CAFO
to be covered by an NPDES permit in
order to qualify for the agricultural
storm water exemption, it is the
Agency’s view that if a facility wants to
claim that precipitation-related
discharges from land-application areas
are agricultural storm water runoff, the
CAFO should be land-applying at
agronomic rates that correspond to the
requirements in 40 CFR
122.42(e)(1)(vi)–(ix) for land
application.
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The premise that benefits are retained
is also based on the conventional
modeling assumption of ‘‘full
compliance,’’ which in this case
involves assuming that all facilities that
discharge will seek permit coverage.
EPA is aware that the permitting history
of CAFOs to date could be viewed as
calling into question the validity of this
assumption. At the time of the 2003
CAFO rule, current estimates indicated
that only 4,000 CAFOs were permitted
out of a total universe of approximately
13,000 CAFOs potentially covered
under the pre-2003 CAFO regulations.
(See the Technical Development
Document for the 2003 rule, Chapter 9.)
This difference was driven by two key
factors. First, many operations claimed
the 25-year, 24-hour storm exemption
available under the old regulations.
Second, many authorized States were at
that point still developing their NPDES
CAFO programs and were using a
variety of mechanisms to control
discharges from CAFOs.
The ongoing reporting on NPDES
CAFO permitting completed by EPA
since passage of the 2003 rule continues
to augment information on CAFOs, and
indicates that the number of permitted
CAFOs is growing. Currently, EPA
estimates that approximately 8,500
CAFOs are covered by NPDES permits.
EPA plans to continue to work to ensure
full NPDES coverage for discharging
CAFOs by expanding its partnership
with industry stakeholders.
EPA seeks comment on its
assumptions regarding the benefits of
the rule (no change from the 2003 rule).
B. Administrative Burden Impacts
Since there is no change in technical
requirements, changes in impacts on
respondents are estimated to result
exclusively from changes in the
information collection burden. To
determine the administrative burden for
the Paperwork Reduction Act (PRA)
analysis for today’s proposed rule, the
Agency examined the two key
permitting changes resulting from the
Waterkeeper decision and how they
would be implemented under the
proposal. These two permitting features
are the change in the duty to apply for
CAFOs and the change to the NMPrelated provisions for CAFO permits.
The 2003 CAFO rule had a universal
duty to apply requirement which
required virtually all CAFOs to obtain
NPDES permit coverage. The supporting
analysis for the rule estimated that as a
result of this requirement,
approximately 15,500 CAFOs would
ultimately receive NPDES permits. (See
the Technical Development Document
for the 2003 rule, Chapter 9.) Today’s
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proposed rule changes the duty to apply
requirement so that only CAFOs that
discharge or propose to discharge would
need to seek NPDES coverage. To derive
the number of CAFOs that could
ultimately fall into this category, EPA
first estimated industry size for 2005 by
projecting industry growth from the
2003 estimates using both USDA 2002
Census of Agriculture statistics as well
as Agency-based sector expertise. This
exercise yielded an estimate of
approximately 18,800 total CAFOs for
2005. EPA then combined the 2005
projections for each animal sector with
information on standardized operational
profiles to anticipate the numbers of
facilities as of 2005 that might
experience discharges. For example,
when inclement weather precludes land
application or dewatering activities,
open lot type facilities, such as beef lots
and dairy operations, are more likely to
experience conditions that could result
in a discharge due to the use of open onsite lagoons common at many of these
facilities. Additionally, EPA assumed
that all dairies generate wastewater from
the production area and generally have
uncovered on-site lagoons. Thus, for
purposes of burden estimates, EPA
assumed that all dairies and most beef
feedlots would apply for permits.
Even though the industry grew to
roughly 18,800 CAFOs from 2002 to
2005 (an aggregate growth factor of
approximately 22% due to industry
expansion and the trend toward larger,
more concentrated facilities), the change
in the duty to apply requirement is
anticipated to reduce the number of
facilities needing permit coverage to
approximately 14,000 CAFOs. Based on
these updated figures, EPA estimates
that approximately 25 percent fewer
CAFOs would ultimately receive
permits under today’s proposed rule
than under the requirements of the 2003
rule. These projections are discussed in
more detail in documentation available
in the public record for today’s
proposal.
These figures may overestimate CAFO
NPDES permits in that they make
conservative categorical assumptions
about the likelihood of a discharge
based on broad operational profiles and
do not account for more subtle
stratifications within specific
operational categories. For instance,
although most dairies generate
washwater from the production area and
have on-site lagoons, there do, in fact,
exist dairies designed to be zerodischarge operations.
Using the CAFO universe numbers
discussed above, EPA projects that
CAFO operators will experience an
aggregate administrative burden
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reduction of nearly $15.5 million
annually as a result of the court decision
to vacate the duty to apply requirement
since fewer facilities will need to apply
and submit the paperwork for NPDES
permits. Similarly, permit authorities
(‘‘State respondents’’) will experience a
roughly $5.2 million reduction in
administrative burden due to the court
decision to vacate the duty to apply
requirement.
In contrast, the administrative burden
impacts from the NMP-related changes
made in response to the court ruling go
up. EPA is revising the permitting
process for both individual and general
permits to ensure that CAFOs seeking
permits submit their NMPs with their
permit application. (NMPs were already
required for all CAFOs under the 2003
rule.) EPA projects that facilities
collectively would only experience a
minimal increase in administrative
burden—nearly $111,000 for all
facilities annually—as a consequence of
this change. However, State permitting
authorities would face a $5.7 million
annual increase in administrative
burden as a result of the significant
effort needed to review the NMPs for
each permittee, arrange for public
review and conduct public hearings if
requested, respond to comments, and
incorporate the terms of the NMP into
the NPDES CAFO permit. For permit
authorities, these costs would more than
offset the burden reduction from the
change in the duty to apply and the
resulting decline in the number of
CAFO permits.
Table 1 below summarizes the
administrative burden changes expected
to occur as a result of the proposed rule.
Baseline A presents the costs to
facilities and permitting authorities of
implementing the 2003 CAFO rule as
described above. In addition, Table 1
provides an illustration in Baseline B of
the administrative burden costs in the
absence of EPA’s proposed rule. The
permit processing burden (‘‘duty to
apply’’) for State permitting authorities
in this scenario would increase rather
than decrease due to a lack of clarity on
the appropriate permitting processes for
implementing the court ruling.
Specifically, under this baseline, EPA
assumes that States would not be able
to realize time savings from the use of
general permits for CAFOs because of
the Court’s directive that CAFO permits
include facility-specific terms of the
CAFO’s NMP. EPA instead used burden
estimates associated with the individual
permit process when costing the burden
for CAFO permits under Baseline B. The
proposed rule provides a mechanism for
States to realize some time savings
through the use of general permits while
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still complying with the Court’s
directive.
BILLING CODE 6560–50–P
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V. Cross Media Approaches
Since 2003, EPA and some
stakeholders have been interested in
developing a framework to enable
CAFOs to pursue superior
environmental performance across all
media. We are aware that today some
CAFOs voluntarily conduct whole-farm
audits to evaluate releases of pollutants
to all media through Environmental
Management Systems, self-assessment
tools, EPA’s performance track, ISO
14001 certification, and state-approved
trade offs in reducing discharges to
water and emissions to air that
accomplish the best overall level of
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protection given state and local
conditions. EPA continues to believe
that the development of new and
emerging technologies offers the
potential to achieve equivalent or
greater pollutant reductions relative to
those achieved by the effluent
guidelines and standards. Many of these
are superior from a cross media
perspective, and EPA would like to
encourage superior cross media
solutions. These regulations regarding
nutrient management plans may provide
a unique opportunity for EPA to
encourage cross media approaches at
CAFOs. For example, the nutrient value
in the animal byproducts provides a
valuable source of fertilizer for crops.
However, inappropriate application can
lead to preventable discharges to water
and emissions to air. Optimal
application technologies and rates
reduce potential water quality and air
quality standards violations.
EPA would like to take comment on
the feasibility (including consideration
of legal, technical, and implementation
issues) of allowing flexibility in how
facilities can meet various programmatic
requirements, for instance those of the
Clean Air Act and the Clean Water Act,
in order to achieve greater cross-media
pollutant reductions. We are interested
in exploring this type of approach for
both existing and new CAFOs.
EPA continues to believe the
development of new and emerging
technologies offers the potential to
match or surpass the pollutant
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reductions achieved by today’s effluent
guidelines and standards. EPA does not
want to discourage approaches that are
superior from a cross media perspective.
Some CAFOs today voluntarily conduct
whole-farm audits to evaluate releases
of pollutants to all media. EPA plans to
consider future opportunities and
incentives for CAFOs to participate in
such activities. We are not currently
proposing such an approach through
this action. The development of any
such approach would proceed through
future notice and comment rulemaking.
VI. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
Under Executive Order 12866 (58 FR
51735 (October 4, 1993)) the Agency
must determine whether the regulatory
action is ‘‘significant’’ and therefore
subject to Office of Management and
Budget (OMB) review and the
requirements of the Executive Order.
The Order defines ‘‘significant
regulatory action’’ as one that is likely
to result in a rule that may:
1. Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
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Overall, under Baseline A as
previously described, the administrative
burden under the proposed rule (i.e., the
difference between Baseline A and the
proposed costs of the proposal) is
projected to decline to a total of
approximately $64 million, which
constitutes a reduction of roughly $15
million compared to the 2003 CAFO
rule. This burden impact estimate
accounts both for growth in the industry
and changes in labor rates since the
2003 rule was issued. In addition, the
changes are based on annualized
impacts, and assume a permit term of
five years as stipulated in the Clean
Water Act. More documentation on the
administrative burden impacts is
available in the public record for today’s
proposal in the supporting documents
for the Paperwork Reduction Act
analysis.
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2. Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
3. Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
4. Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order.
Pursuant to the terms of Executive
Order 12866, OMB has notified EPA
that it considers this a ‘‘significant
regulatory action’’ within the meaning
of the Executive Order. EPA has
submitted this action to OMB for
review. Changes made in response to
OMB suggestions or recommendations
will be documented in the public
record.
B. Paperwork Reduction Act
The information collection
requirements in this proposed rule have
been submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR)
document prepared by EPA has been
assigned EPA ICR number 1989.03.
Under the 2003 rule, all CAFOs were
required to apply for a permit and
develop and implement a nutrient
management plan. Today’s proposed
rule would reduce the universe of
CAFOs that are subject to these
requirements specifically to those
CAFOs that discharge or propose to
discharge.
Overall, the administrative burden
under the proposed rule is projected to
decline to a total of approximately $64
million, which constitutes a reduction
of approximately $15 million compared
to the 2003 CAFO rule. The overall
labor burden decreases by 777,366
hours. Much of this burden reduction
arises from the reduced burden to
facility respondents—i.e., those CAFOs
subject to permitting. EPA estimates that
these operations will experience an
aggregate administrative burden
reduction of nearly $15.5 million
annually (810,751 labor hours) as a
result of the portion of the court
decision that vacates the duty to apply
requirement since fewer facilities will
need to apply and submit the paperwork
for NPDES permits. However, State
permitting authorities would face an
increase in administrative burden as a
result of the significant effort needed to
review the NMPs for each permittee,
arrange for public review and conduct
public hearings if requested, respond to
comments, and incorporate the terms of
the NMP into the NPDES CAFO permit.
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This increase in burden to States offsets
the burden reduction experienced by
CAFOs, and is explained in more detail
in Section IV of the impact analysis for
today’s proposal.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a federal
agency. This includes the time needed
to review instructions; develop, acquire,
install, and utilize technology and
systems for the purposes of collecting,
validating, and verifying information,
processing and maintaining
information, and disclosing and
providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information.
An agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA’s regulations in 40
CFR are listed in 40 CFR Part 9.
To comment on the Agency’s need for
this information, the accuracy of the
provided burden estimates, and any
suggested methods for minimizing
respondent burden, including the use of
automated collection techniques, EPA
has established a public docket for this
rule, which includes this ICR, under
Docket ID number EPA–HQ–OW–2005–
0037. Submit any comments related to
the ICR for this proposed rule to EPA
and OMB. See ADRESSES section at the
beginning of this notice for where to
submit comments to EPA. Send
comments to OMB at the Office of
Information and Regulatory Affairs,
Office of Management and Budget, 725
17th Street, NW., Washington, DC
20503, Attention: Desk Office for EPA.
Since OMB is required to make a
decision concerning the ICR between 30
and 60 days after June 30, 2006, a
comment to OMB is best assured of
having its full effect if OMB receives it
by July 31, 2006. The final rule will
respond to any OMB or public
comments on the information collection
requirements contained in this proposal.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
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that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts
of today’s proposed rule on small
entities, small entity is defined as: (1) A
small business as defined by the Small
Business Administration (SBA) at 13
CFR 121.201 size standards; (2) a small
governmental jurisdiction that is a
government of a city, county, town,
school district or special district with a
population of less than 50,000; and (3)
a small organization that is any not-forprofit enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of today’s proposed rule on
small entities, I certify that this action
will not have a significant adverse
economic impact on a substantial
number of small entities since the
proposed rule involves a net burden
reduction compared to the burden
placed on facilities under the 2003
CAFO rule. Additionally, this proposed
rule would not affect small governments
as the permitting authorities are State or
federal agencies. We continue to be
interested in the potential impacts of the
proposed rule on small entities and
welcome comments on issues related to
such impacts.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
federal agencies to assess the effects of
their regulatory actions on State, local,
and tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with ‘‘Federal mandates’’ that may
result in expenditures to State, local,
and tribal governments, in the aggregate,
or to the private sector, of $100 million
or more in any one year. Before
promulgating an EPA rule for which a
written statement is needed, section 205
of UMRA generally requires EPA to
identify and consider a reasonable
number of regulatory alternatives and
adopt the least costly, most costeffective, 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
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Administrator publishes with the final
rule an explanation why that alternative
was not adopted. Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect small
governments, including tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
EPA has determined that this
proposed rule would not contain a
federal mandate that may result in
expenditures of $100 million or more
for State, local, and tribal governments,
in the aggregate, or the private sector in
any one year. The proposed rule would
increase the burden to the States by
$502,000 (30,300 hours) annually,
which reflects the fact that although
States will need to process fewer
permits, the effort associated with each
permit is greater. The proposed rule
would also decrease the burden to
CAFO respondents by nearly $15.4
million (807,659 hours) annually due to
the smaller number of facilities that will
need permits. In total, EPA estimates a
net reduction of $15 million annually
(777,366 hours) in the information
collection burden as a result of the
proposed rule. Thus, today’s proposed
rule is not subject to the requirements
of sections 202 and 205 of the UMRA.
For the same reason, EPA has
determined that this rule contains no
regulatory requirements that might
significantly or uniquely affect small
governments. Thus, today’s proposed
rule is not subject to the requirements
of section 203 of UMRA.
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E. Executive Order 13132: Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’
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Under section 6(b) of Executive Order
13132, EPA may not issue a regulation
that has federalism implications, that
imposes substantial direct compliance
costs, and that is not required by statute,
unless the federal government provides
the funds necessary to pay the direct
compliance costs incurred by State and
local governments, or EPA consults with
State and local officials early in the
process of developing the proposed
regulation. Under section 6(c) of
Executive Order 13132, EPA may not
issue a regulation that has federalism
implications and that preempts State
law, unless the Agency consults with
State and local officials early in the
process of developing the proposed
regulation.
EPA has concluded that this proposed
rule does not have federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. EPA estimates
that the average annual impact on all
authorized States together is $502,000.
EPA does not consider an annual impact
of this magnitude on States to be a
substantial effect. In addition, EPA does
not expect this rule to have any impact
on local governments.
Further, the revised regulations would
not alter the basic State-federal scheme
established in the Clean Water Act
under which EPA authorizes States to
carry out the NPDES permitting
program. EPA expects the revised
regulations to have little effect on the
relationship between, or the distribution
of power and responsibilities among,
the federal and State governments.
Thus, Executive Order 13132 does not
apply to this rule.
Consistent with EPA policy, EPA
nonetheless consulted with
representatives of State governments
early in the process of developing the
proposed regulation to permit them to
have meaningful and timely input into
its development. Through a variety of
meetings with State associations, States
have been apprized of the issues related
to addressing the court’s decisions.
States provided input during these
meetings. State concerns generally
focused on the process for incorporating
NMPs into permits and the related
public review process, and also on
guidance related to what is a discharge
from a CAFO given that the proposal
would now require only those
operations that have a discharge to
apply for a permit. These concerns have
been addressed in detail in this proposal
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in such a way as to build in flexibility,
yet accountability, for the new permit
application requirements and review
processes proposed herein today.
In the spirit of Executive Order 13132,
and consistent with EPA policy to
promote communications between EPA
and State and local governments, EPA
specifically solicits comment on this
proposed rule from State and local
officials.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled,
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
tribal officials in the development of
regulatory policies that have tribal
implications.’’
This proposed rule does not have
tribal implications. It will not have
substantial direct effects on tribal
governments, on the relationship
between the federal government and
Indian tribes, or on the distribution of
power and responsibilities between the
federal government and Indian tribes, as
specified in Executive Order 13175.
Thus, Executive Order 13175 does not
apply to this rule.
In the spirit of Executive Order 13175,
and consistent with EPA policy to
promote communications between EPA
and tribal governments, EPA
specifically solicits additional comment
on this proposed rule from tribal
officials.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
Executive Order 13045: ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997) applies to any rule that:
(1) Is determined to be ‘‘economically
significant’’ as defined under E.O.
12866, and (2) concerns an
environmental health or safety risk that
EPA has reason to believe may have a
disproportionate effect on children. If
the regulatory action meets both criteria,
the Agency must evaluate the
environmental health or safety effects of
the planned rule on children, and
explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives
considered by the Agency.
This regulation is not subject to
Executive Order 13045 because it is not
economically significant as defined
under E.O. 12866, and because the
Agency does not have reason to believe
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the environmental health and safety
risks addressed by this action present a
disproportionate risk to children. The
benefits analysis performed for the 2003
CAFO rule determined that the rule
would result in certain significant
benefits to children’s health. (Please
refer to the Benefits Analysis in the
record for the 2003 CAFO final rule.)
Today’s action does not affect the
environmental benefits of the rule.
jlentini on PROD1PC65 with PROPOSAL2
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This proposed rule is not subject to
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355 (May
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22, 2001)) because it is not a significant
regulatory action under Executive Order
12866.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Pub. L. 104–
113, Section 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standard bodies.
The NTTAA directs EPA to provide
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Congress, through OMB, explanations
when the Agency decides not to use
available and applicable voluntary
consensus standards.
Today’s proposal does involve the use
of technical standards for land
application of manure and elimination
of discharges from the production area.
However, the specific standards
applicable to a specific operator are
generally determined by the permitting
authority on a State-wide or site-specific
BPJ basis. EPA encourages the use by
permitting authorities of voluntary
consensus standards, such as those
developed by USDA, in establishing the
site-specific technical requirements in
CAFO permits.
BILLING CODE 6560–50–P
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37784
BILLING CODE 6560–50–C
OMB No. 2040–0250
List of Subjects
40 CFR Part 122
Administrative practice and
procedure, Hazardous substances,
Reporting and recordkeeping
requirements, Water pollution control.
40 CFR Part 412
Feedlots, Livestock, Waste treatment
and disposal, Water pollution control.
Dated: June 22, 2006.
Stephen L. Johnson,
Administrator.
For the reasons set out in the
preamble, chapter I of title 40 of the
Code of Federal Regulations is proposed
to be amended as follows:
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 122
continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C.
1251 et seq.
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2. Section 122.21 is amended by
revising the last sentence in paragraph
(a)(1), and revising paragraph (i)(1)(x), to
read as follows:
§ 122.21 Application for a permit
(applicable to State programs, see § 123.25).
(a) * * *
(1) * * * The requirements for
concentrated animal feeding operations
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to seek coverage under an NPDES
permit are described in § 122.23(d).
*
*
*
*
*
(i) * * *
(1) * * *
(x) A nutrient management plan that
at a minimum satisfies the requirements
specified in § 122.42(e)(1). In addition,
the nutrient management plan for all
CAFOs subject to 40 CFR part 412,
subpart C or subpart D, must satisfy the
applicable requirements of 40 CFR
412.4(c).
*
*
*
*
*
3. Section 122.23 is amended by
revising paragraphs (a), (d)(1), (d)(2), (f),
and (g) and by removing paragraph (h)
to read as follows:
§ 122.23 Concentrated animal feeding
operations (applicable to State NPDES
programs, see § 123.25).
(a) Permit requirement for CAFOs.
Concentrated animal feeding operations,
as defined in paragraph (b) of this
section, are point sources. Once an
operation is defined as a CAFO, the
NPDES requirements for CAFOs that
discharge or propose to discharge
pollutants apply with respect to all
animals in confinement at the operation
and all manure, litter and process
wastewater generated by those animals
or the production of those animals,
regardless of the type of animal.
*
*
*
*
*
(d) * * *
(1) All owners or operators of a CAFO
that discharges or proposes to discharge
pollutants must apply for a permit. All
owners or operators of a CAFO that
discharges or proposes to discharge
pollutants must seek coverage under an
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NPDES permit. Specifically, the CAFO
owner or operator must either apply for
an individual NPDES permit or submit
a notice of intent for coverage under an
NPDES general permit. If the Director
has not made a general permit available
to the CAFO, the CAFO owner or
operator must submit an application for
an individual permit to the Director.
(2) Information to submit with permit
application. A permit application for an
individual permit must include the
information specified in § 122.21. A
notice of intent for a general permit
must include the information specified
in §§ 122.21 and 122.28.
*
*
*
*
*
(f) When must the owner or operator
of a CAFO seek coverage under an
NPDES permit? (1) Operations defined
or designated as CAFOs as of [the
effective date of the final rule]. The
owner or operator of a CAFO that
discharges or proposes to discharge
pollutants must seek to obtain coverage
under an NPDES permit by a date
specified by the Director, but no later
than July 31, 2007.
(2) Operations that become defined as
CAFOs after [the effective date of the
final rule], but which are not new
sources. For newly constructed AFOs
that discharge or propose to discharge
pollutants and AFOs that make changes
to their operations that result in
becoming defined as CAFOs for the first
time, after [the effective date of the final
rule], but are not new sources and that
discharge or propose to discharge
pollutants, the owner or operator must
seek to obtain coverage under an NPDES
permit, as follows:
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(i) For newly constructed operations
not subject to effluent limitations
guidelines, 180 days prior to the time
CAFO commences operation; or
(ii) For other operations (e.g.,
resulting from an increase in the
number of animals), as soon as possible,
but no later than 90 days after becoming
defined as a CAFO.
(3) New sources. The owner or
operator of a new source that discharges
or proposes to discharge pollutants must
seek to obtain coverage under a permit
at least 180 days prior to the time that
the CAFO commences operation.
(4) Operations that are designated as
CAFOs after [the effective date of the
final rule]. For operations designated as
a CAFO in accordance with paragraph
(c) of this section, the owner or operator
must seek to obtain coverage under a
permit no later than 90 days after
receiving notice of the designation.
(g) Duty to Maintain Permit Coverage.
No later than 180 days before the
expiration of the permit, or as provided
by the Director, the permittee must
submit an application to renew its
permit, in accordance with § 122.21(d),
unless permit coverage has been
terminated consistent with § 122.64(b).
4. Section 122.28 is amended by
adding a sentence before the last
sentence of paragraph (b)(2)(iv), and by
adding paragraph (d), to read as follows:
§ 122.28 General permits (applicable to
State NPDES programs, see § 123.25).
jlentini on PROD1PC65 with PROPOSAL2
*
*
*
*
*
(b) * * *
(2) * * *
(iv) * * * Except that CAFO owner or
operators seeking coverage under a
general permit must undertake the
process described in paragraph (d) of
this section. * * *
*
*
*
*
*
(d) Concentrated animal feeding
operations. (1) The Director must review
notices of intent submitted by CAFO
owners or operators to ensure that the
information meets the requirements of
§§ 122.21(i)(1) and 122.42(e)(1) and to
identify the terms of the nutrient
management plan to be incorporated
into the permit. When additional
information is necessary to complete the
notice of intent or clarify, modify, or
supplement previously submitted
material, the Director may request such
information from the owner or operator.
If the Director tentatively decides that
the notice of intent meets the
requirements of §§ 122.21(i)(1) and
122.42(e)(1), the Director must notify
the public of its receipt and make it
available for public review and
comment along with the identified
terms of the nutrient management plan
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to be incorporated into the permit. The
Director must specify by regulation or in
the permit an appropriate period of time
for the public to comment and request
a hearing on the information submitted
and the terms of the facility’s nutrient
management plan to be incorporated
into the permit. The hearing and public
comment process must follow the
procedures for draft permits set forth in
40 CFR 124.11 through 124.13. The
Director must respond to all significant
comments received during the comment
period, and, as appropriate, require the
CAFO owner or operator to revise the
terms of the nutrient management plan
to be incorporated into the permit.
When the Director grants permit
coverage to the CAFO owner or
operator, the draft terms of the nutrient
management plan, as revised by the
Director, shall become incorporated as
terms and conditions of the permit. The
Director must notify the owner or
operator of the terms and conditions
that are incorporated into the permit.
(2) For EPA-issued permits only.
Upon incorporation of the terms of the
nutrient management plan into the
general permit, any person who
submitted comments or participated in
the public hearing and who objects to
the incorporation of the terms of the
nutrient management plan into the
permit may appeal the permit decision
in accordance with the procedures of 40
CFR 124.19.
(3) Nothing in this paragraph (d) shall
affect the authority of the Director to
require an individual permit under
paragraph (b)(3) of this section.
5. Section 122.42 is amended by
revising paragraphs (e) introductory text
and (e)(1) introductory text, and by
adding paragraph (e)(5), to read as
follows:
§ 122.42 Additional conditions applicable
to specified categories of NPDES permits
(applicable to State NPDES programs, see
§ 123.25).
*
*
*
*
*
(e) Concentrated animal feeding
operations (CAFOs). Any permit issued
to a CAFO must include the
requirements in paragraphs (e)(1)
through (e)(4) of this section:
(1) Requirements of a nutrient
management plan. Any permit issued to
a CAFO must include and require the
CAFO owner or operator to implement
the terms of the most current version of
a facility-specific nutrient management
plan submitted in accordance with 40
CFR 122.21(i) that meets the
requirements of this paragraph and the
applicable effluent limitations and
standards of 40 CFR 412.4(c). At a
minimum, a nutrient management plan
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must include best management practices
and procedures necessary to implement
applicable effluent limitations and
standards, including, for CAFOs subject
to 40 CFR part 412, subpart C or subpart
D, the limitations and standards
specified in 40 CFR 412.4(c). The
nutrient management plan must, to the
extent applicable:
*
*
*
*
*
(5) Changes to a CAFO Nutrient
Management Plan. (i) When a CAFO
owner or operator changes a CAFO’s
nutrient management plan, the CAFO
owner or operator must provide the
permitting authority with the most
current version of the CAFO’s nutrient
management plan and identify changes
from the previous version. The Director
must review the submitted information
to ensure that it meets the requirements
of 40 CFR 122.42(e)(1) and 40 CFR
412.4(c) of this chapter and decide
whether to allow any changes to the
terms of the nutrient management plan
that have been incorporated into a
permit issued to the CAFO. If the
Director determines that the changes to
the nutrient management plan are not
substantial, the Director must include
the revised NMP in the permit record
and make any necessary revisions to the
terms of the nutrient management plan
incorporated into the permit. If the
Director determines that the changes to
the nutrient management plan are
substantial, the Director must modify
the permit to incorporate such changes
in accordance with the procedures
identified in paragraph (e)(5)(ii) of this
section. The Director must notify the
public of any changes to the terms of the
nutrient management plan that are
incorporated into the permit.
(ii) If the Director determines that the
changes to the nutrient management
plan are substantial, the Director must
notify the public of the substantial
changes; identify those changes to the
terms of the nutrient management plan
proposed to be incorporated into the
permit; and make the proposed changes
and the information submitted by the
CAFO owner or operator available for
public review and comment. The
Director must specify by regulation or in
the permit an appropriate period of time
for the public to comment and request
a hearing on the information submitted
and the revised terms of the facility’s
nutrient management plan to be
incorporated into the permit. The
hearing and public comment process
must follow the procedures for draft
permits set forth in 40 CFR 124.11
through 124.13. The Director must
respond to all significant comments
received during the comment period,
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and, as appropriate, require the CAFO
owner or operator to further revise the
terms of the nutrient management plan
to be incorporated into the permit. Once
the Director incorporates the revised
terms of the nutrient management plan
into the permit, the Director must notify
the owner or operator of the revised
terms and conditions of the permit.
(iii) For EPA-issued permits only.
Upon incorporation of the revised terms
of the nutrient management plan into
the permit, any person who submitted
comments or participated in the public
hearing and who objects to the
incorporation of the revised terms of the
nutrient management plan into the
permit may appeal the permit decision
in accordance with the procedures of 40
CFR 124.19.
(iv) Substantial changes to a nutrient
management plan include, but are not
limited to: changes that could result in
an increase in runoff of manure, litter,
or process wastewater from the facility
that would otherwise not occur under
the terms of the nutrient management
plan that were incorporated into the
permit; an increase in the rate of
nutrients from manure, litter, or process
wastewater applied to the land
application area that is significant in
relation to the technical standards
established by the Director; a significant
change in the nutrient balance at the
CAFO caused by an increase in the ratio
of animals or manure, litter, or process
wastewater to the available land
application acreage or storage capacity;
changes in the CAFO’s methods for
handling, storage, treatment, or land
application of manure, litter, or process
wastewater; a significant increase in the
number of animals; or a significant
reduction of manure, litter, or process
wastewater transferred to other persons
when there is no equivalent decrease in
the amount of manure, litter, or process
wastewater produced; and the addition
of land application areas not previously
included in the nutrient management
plan.
(v) Upon request by a CAFO owner or
operator to implement substantial
changes to the nutrient management
plan, the Director may allow an owner
or operator to implement such changes
before completion of the public
notification procedures identified in
paragraph (e)(5)(ii) of this section for no
more than 180 days if the Director
determines that the changes to a
nutrient management plan will not
result in increased runoff of manure,
litter, or process wastewater from the
CAFO. The Director must append such
changes to the CAFO’s permit and make
them publicly available so that other
persons have access to such
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information. Appropriate notice to the
public of such expedited decisions must
take place within 14 days of the
effective date.
6. Section 122.62 is amended by
adding paragraph (a)(17) to read as
follows:
§ 122.62 Modification or revocation and
reissuance of permits (applicable to State
programs, see § 122.25).
*
*
*
*
*
(a) * * *
(17) Nutrient Management Plans. The
incorporation of the terms of a CAFO
nutrient management plan into the
terms and conditions of a general permit
when a CAFO obtains coverage under a
general permit in accordance with
§ 122.28(d)(1) is not a cause for
modification pursuant to the
requirements of this section.
*
*
*
*
*
7. Section 122.63 is amended by
adding paragraph (h) to read as follows:
§ 122.63
Minor modification of permits.
*
*
*
*
*
(h) Incorporate changes to the terms of
a CAFO’s nutrient management plan
that have been revised in accordance
with the requirements of § 122.42(e)(5).
PART 412—CONCENTRATED ANIMAL
FEEDING OPERATIONS (CAFO) POINT
SOURCE CATEGORY
8. The authority citation for part 412
continues to read as follows:
Authority: 33 U.S.C. 1311, 1314, 1316,
1317, 1318, 1342, 1361.
9. Section 412.2 is amended by
revising paragraph (i) to read as follows:
§ 412.2
General definitions.
*
*
*
*
*
(i) Ten (10)-year, 24-hour rainfall
event and 25-year, 24-hour rainfall
event mean precipitation events with a
probable recurrence interval of once in
ten years, or twenty five years,
respectively, as defined by the National
Weather Service in Technical Paper No.
40, ‘‘Rainfall Frequency Atlas of the
United States,’’ May, 1961, or equivalent
regional or State rainfall probability
information developed from this source.
*
*
*
*
*
10. Section 412.37 is amended by
revising paragraph (a)(2) to read as
follows:
§ 412.37
Additional measures.
(a) * * *
(2) Depth marker. All open surface
liquid impoundments must have a
depth marker which clearly indicates
the minimum capacity necessary to
contain the runoff and direct
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precipitation of the 25-year, 24-hour
rainfall event.
*
*
*
*
*
11. Section 412.46 is amended by
revising paragraphs (a)(1), (a)(2) and (d)
to read as follows:
§ 412.46 New source performance
standards (NSPS).
*
*
*
*
*
(a) * * *
(1) Any CAFO subject to this subpart
may request that the Director establish
NPDES permit best management
practice effluent limitations designed to
ensure no discharge of manure, litter or
process wastewater based upon a sitespecific evaluation of the CAFO’s open
surface manure storage structure. In the
case of any CAFO using an open surface
manure storage structure for which the
Director establishes such effluent
limitations, ‘‘no discharge of manure,
litter, or process wastewater pollutants,’’
as used in this section, means that the
storage structure is designed, operated
and maintained in accordance with best
management practices established by
the Director on a site-specific basis after
a technical evaluation of the storage
structure. The technical evaluation must
include the following elements:
(i) Information to be used in the
design of an open manure storage
structure including but not limited to
minimum storage periods for rainy
seasons, additional minimum capacity
for chronic rainfalls, applicable
technical standards that prohibit or
otherwise limit land application to
frozen, saturated, or snow-covered
ground, planned emptying and
dewatering schedules consistent with
the CAFO’s Nutrient Management Plan,
adequate storage capacity for manure
intended to be transferred to another
recipient at a later time, and any other
factors that would impact the sizing of
the open manure storage structure.
(ii) The design of the open manure
storage structure as determined by the
most recent version of the National
Resource Conservation Service’s Animal
Waste Management (AWM) software.
CAFOs may use equivalent design
software or procedures as approved by
the Director.
(iii) All inputs used in the open
manure storage structure design
including actual climate data for the
previous 30 years consisting of
historical average monthly precipitation
and evaporation values, the number and
types of animals, anticipated animal
sizes or weights, any added water and
bedding, any other process wastewater,
and the size and condition of outside
areas exposed to rainfall and
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contributing runoff to the open manure
storage structure.
(iv) The planned minimum period of
storage in months. Alternatively the
CAFO may indicate months when the
storage pond will be emptied consistent
with the CAFO’s Nutrient Management
Plan.
(v) Site-specific predicted design
specifications including dimensions of
the storage facility, daily manure and
wastewater additions, the size and
characteristics of the land application
areas, and the total calculated storage
period in months.
(vi) An evaluation of the adequacy of
the designed manure storage structure
using the most recent version of the Soil
Plant Air Water (SPAW) Hydrology
Tool. The evaluation must include all
inputs to SPAW including but not
limited to daily precipitation,
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temperature, and evaporation data for
the previous 100 years, user-specified
soil profiles representative of the
CAFO’s land application areas, planned
crop rotations consistent with the
CAFO’s Nutrient Management Plan, and
the final modeled result of no overflows
from the designed open manure storage
structure. CAFOs may use equivalent
evaluation procedures as approved by
the Director.
(vii) Waste management and storage
facilities designed, constructed,
operated, and maintained consistent
with the site-specific analysis
conducted in paragraphs (a)(1)(i)
through (a)(1)(vi) of this section and
operated in accordance with the
additional measures and records
required by § 412.47(a) and (b), will
fulfill the requirements of this section.
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(2) The production area must be
operated in accordance with the
additional measures required by
§ 412.47(a) and (b).
*
*
*
*
*
(d) Any source subject to this subpart
that commenced discharging after April
14, 1993, and prior to [X# days from
effective date of the final rule], which
was a new source subject to the
standards specified in § 412.15, revised
as of [X# days from effective date of the
final rule], must continue to achieve
those standards for the applicable time
period specified in 40 CFR 122.29(d)(1).
Thereafter, the source must achieve the
standards specified in § 412.43(a) and
(b).
*
*
*
*
*
[FR Doc. 06–5773 Filed 6–29–06; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\30JNP2.SGM
30JNP2
Agencies
[Federal Register Volume 71, Number 126 (Friday, June 30, 2006)]
[Proposed Rules]
[Pages 37744-37787]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-5773]
[[Page 37743]]
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Part IV
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Parts 122 and 412
Revised National Pollutant Discharge Elimination System Permit
Regulation and Effluent Limitation Guidelines for Concentrated Animal
Feeding Operations in Response to Waterkeeper Decision; Proposed Rule
Federal Register / Vol. 71, No. 126 / Friday, June 30, 2006 /
Proposed Rules
[[Page 37744]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 122 and 412
[EPA-HQ-OW-2005-0037; FRL-8189-7]
RIN 2040-AE80
Revised National Pollutant Discharge Elimination System Permit
Regulation and Effluent Limitation Guidelines for Concentrated Animal
Feeding Operations in Response to Waterkeeper Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to revise the National Pollutant Discharge
Elimination System (NPDES) permitting requirements and Effluent
Limitations Guidelines and Standards (ELGs) for concentrated animal
feeding operations (CAFOs) in response to the order issued by the
Second Circuit Court of Appeals in Waterkeeper Alliance et al. v. EPA,
399 F.3d 486 (2nd Cir. 2005). This proposed rule responds to the court
order while furthering the statutory goal of restoring and maintaining
the nation's water quality and effectively ensuring that CAFOs properly
manage manure generated by their operations.
This proposal would revise several aspects of EPA's current
regulations governing discharges from CAFOs. First, EPA proposes to
require only the owners and operators of those CAFOs that discharge or
propose to discharge to seek coverage under a permit. Second, EPA
proposes to require CAFOs seeking coverage under a permit to submit
their nutrient management plan (NMP) with their application for an
individual permit or notice of intent to be authorized under a general
permit. Permitting authorities would be required to review the plan and
provide the public with an opportunity for meaningful public review and
comment. Permitting authorities would also be required to incorporate
terms of the NMP as NPDES permit conditions. Third, this action
proposes to authorize permit writers, upon request by a CAFO, to
establish best management, zero discharge effluent limitations when the
facility demonstrates that it has designed an open containment system
that will comply with the no discharge requirements.
This proposed rule also responds to the court's remand orders
regarding water-quality based effluent limitations (WQBELs) and
pathogens. EPA proposes to clarify that WQBELs are available in permits
with respect to production area discharges and non-precipitation
related discharges from land application, but are statutorily
unavailable in permits for Large CAFOs with respect to precipitation
related land application discharges because the only allowable
discharge from a land application area is due to agricultural storm
water which is by statute exempt from permitting requirements. Finally,
EPA proposes to clarify its selection of BCT technologies for pathogens
(fecal coliform), and reaffirm its decision to set the BCT limitations
for fecal coliform to be equal to the BPT limits established in the
2003 CAFO rule.
DATES: Comments on this proposed action must be received on or before
August 14, 2006.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2005-0037 by one of the following methods:
(1) https://www.regulations.gov: Follow the on-line instructions for
submitting comments.
(2) E-mail: ow-docket@epa.gov, Attention Docket ID No. EPA-HQ-OW-
2005-0037.
(3) Mail: Send the original and three copies of your comments to:
Water Docket, Environmental Protection Agency, Mail code 4203M, 1200
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No.
OW-2005-0037.
(4) Hand Delivery: Deliver your comments to: EPA Docket Center, EPA
West, Room B102, 1301 Constitution Avenue, NW., Washington, DC,
Attention Docket ID No. OW-2005-0037. Such deliveries are only accepted
during the Docket's normal hours of operation and special arrangements
should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2005-
0037. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at https://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Water Docket in the EPA
Docket Center, EPA West, Room B102, 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744, and the telephone
number for the Water Docket is (202) 566-2426.
FOR FURTHER INFORMATION CONTACT: For additional information contact
Kawana Cohen, Water Permits Division, Office of Wastewater Management
(4203M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: (202) 564-2345, e-mail address:
cohen.kawana@epa.gov or Paul Shriner, Engineering and Analysis
Division, Office of Science and Technology (4303T), Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
telephone number: 202-566-1076, e-mail address: shriner.paul@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
B. What Should I Consider as I Prepare My Comments for EPA?
II. Background
A. The Clean Water Act
B. History of Actions to Address CAFOs under the NPDES
Permitting Program
[[Page 37745]]
C. Ruling by the U.S. Court of Appeals for the Second Circuit
1. Issues Upheld by the Court
2. Issues Vacated by the Court
3. Issues Remanded by the Court
D. What Requirements Still Apply to CAFOs?
E. Status of EPA's Response to the Waterkeeper Decision
III. This Proposal
A. Duty to Apply for a Permit
B. Nutrient Management Plans
C. Remand Concerning Water Quality Based Effluent Limitations
D. New Source Performance Standards for Subpart D Facilities
E. Remand Concerning Pathogens for BCT
IV. Impact Analysis
V. Cross Media Approaches
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
I. General Information
A. Does This Action Apply to Me?
This action applies to concentrated animal feeding operations
(CAFOs) as defined in section 502(14) of the Clean Water Act and in the
NPDES regulations at 40 CFR 122.23. The following table provides a list
of standard industrial codes for operations covered under this revised
rule.
Table 1.--Entities Potentially Regulated by this Rule
----------------------------------------------------------------------------------------------------------------
Standarial
North American industrial
Category Examples of regulated entities industry code classification
(NAIC) code
----------------------------------------------------------------------------------------------------------------
Federal, State, and Local Government:
Industry................................ Operators of animal production
operations that meet the
definition of a CAFO.
Beef cattle feedlots 112112 0211
(including veal).
Beef cattle ranching and 112111 0212
farming.
Hogs.......................... 11221 0213
Sheep......................... 1241, 11242 0214
General livestock except dairy 11299 0219
and poultry.
Dairy farms................... 11212 0241
Broilers, fryers, and roaster 11232 0251
chickens.
Chicken eggs.................. 11231 0252
Turkey and turkey eggs........ 11233 0253
Poultry hatcheries............ 11234 0254
Poultry and eggs.............. 11239 0259
Ducks......................... 112390 0259
Horses and other equines...... 11292 0272
----------------------------------------------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility is regulated under this rulemaking, you should carefully
examine the applicability criteria in 40 CFR 122.23. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting Confidential Business Information. Do not submit this
information to EPA through www.regulations.gov or e-mail. Clearly mark
the part or all of the information that you claim to be CBI. For CBI
information in a disk or CD-ROM that you mail to EPA, mark the outside
of the disk or CD-ROM as CBI and then identify electronically within
the disk or CD-ROM the specific information that is claimed as CBI. In
addition to one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket. Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR Part 2.
2. Tips for Preparing Your Comments. It will be helpful if you
follow these guidelines as you prepare your written comments:
i. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
ii. Follow directions--The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information
and/or data that you used.
v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
vi. Provide specific examples to illustrate your concerns, and
suggest alternatives.
vii. Explain your views as clearly as possible.
viii. Make sure to submit your comments by the comment period
deadline identified.
II. Background
A. The Clean Water Act
Congress passed the Federal Water Pollution Control Act (1972),
also known as the Clean Water Act (CWA), to ``restore and maintain the
chemical, physical, and biological integrity of the nation's waters''
(33 U.S.C. 1251(a)). Among the core provisions, the CWA establishes the
NPDES permit program to authorize and regulate the discharge of
pollutants from point sources to waters of the U.S. 33 U.S.C. 1342.
[[Page 37746]]
Section 502(14) of the CWA specifically includes CAFOs in the
definition of the term ``point source.'' Section 502(12) defines the
term ``discharge of a pollutant'' to mean ``any addition of any
pollutant to navigable waters from any point source'' (emphasis added).
EPA has issued comprehensive regulations that implement the NPDES
program at 40 CFR Part 122. The Act also provides for the development
of technology-based and water quality-based effluent limitations that
are imposed through NPDES permits to control the discharge of
pollutants from point sources. CWA sections 301(a) and (b).
B. History of Actions to Address CAFOs under the NPDES Permitting
Program
EPA's regulation of wastewater and manure from CAFOs dates to the
1970s. EPA initially issued national effluent limitations guidelines
and standards for feedlots on February 14, 1974 (39 FR 5704), and NPDES
CAFO regulations on March 18, 1976 (41 FR 11458).
In February 2003, EPA issued revisions to these regulations that
focused on the 5% of the nation's animal feeding operations (AFOs) that
presented the highest risk of impairing water quality and public health
(68 FR 7176) (``the 2003 CAFO rule''). The 2003 CAFO rule required the
owners or operators of all CAFOs \1\ to seek coverage under an NPDES
permit. CAFO industry organizations (American Farm Bureau Federation,
National Pork Producers Council, National Chicken Council, and National
Turkey Federation (NTF), although NTF later withdrew its petition) and
environmental groups (Waterkeeper Alliance, Natural Resources Defense
Council, Sierra Club, and American Littoral Society) filed petitions
for judicial review of certain aspects of the 2003 CAFO rule. This case
was brought before the U.S. Court of Appeals for the Second Circuit. On
February 28, 2005, the court ruled on these petitions and upheld most
provisions of the 2003 rule but vacated and remanded others.
Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005). The
court's decision, which applies nationally, is described in detail
below.
---------------------------------------------------------------------------
\1\ The Clean Water Act regulates the conduct of persons, which
includes the owners and operators of CAFOs, rather than the
facilities or their discharges. To improve readability in this
preamble, reference is made to ``CAFOs'' as well as ``owners and
operators of CAFOs.'' No change in meaning is intended.
---------------------------------------------------------------------------
The revisions to the 2003 CAFO rule being proposed today relate
directly to the changes required by the court's decision and continue
to maintain the focus on regulating discharges from the universe of
high-risk AFOs.
C. Ruling by the U.S. Court of Appeals for the Second Circuit
The Second Circuit's decision in Waterkeeper upheld certain
challenged provisions of the 2003 rule and vacated or remanded others,
as follows.
1. Issues Upheld by the Court
This section discusses provisions of the 2003 CAFO rule that were
challenged by either industry or environmental petitioners, but were
upheld by the Waterkeeper court and therefore remain unchanged. EPA is
not proposing to revise any of these provisions and is not soliciting
comment on them.
(a) Land Application Regulatory Framework and Interpretation of
``Agricultural Storm Water''
The Waterkeeper court upheld EPA's authority to regulate, through
NPDES permits, the discharge of manure, litter, and process wastewater
that CAFOs apply to crop or forage land. The court rejected the
industry petitioners' claim that land application runoff must be
channelized before it can be considered to be a point source discharge
subject to permitting. The court noted that the CWA expressly defines
the term ``point source'' to include ``any * * * concentrated animal
feeding operation * * * from which pollutants are or may be
discharged,'' and found that the Act ``not only permits, but demands''
that land application discharges be construed as discharges ``from'' a
CAFO. Waterkeeper Alliance et al. v. EPA, 399 F.3d at 510.
The Waterkeeper court also upheld EPA's determination in the 2003
CAFO rule that precipitation-related discharges of manure, litter, or
process wastewater from land application areas under the control of a
CAFO qualify as ``agricultural stormwater'' only where the CAFO has
applied the manure in accordance with nutrient management practices
that ensure ``appropriate agricultural utilization'' of the manure,
litter, and process wastewater nutrients. EPA's interpretation of the
Act in this regard was reasonable, the court found, in light of
Congressional intent in excluding agricultural stormwater from the
meaning of the term ``point source'' and given the precedent set in an
earlier Second Circuit case, Concerned Area Residents for the
Environment v. Southview Farm, 34 F.3d 114 (2d Cir. 1994). Waterkeeper
Alliance et al. v. EPA, 399 F.3d at 508-09.
(b) Effluent Guidelines
--Identification of best available technologies. The court rejected the
environmental organizations' claim that when EPA chose the pollution
control technologies on which to base effluent guidelines for CAFOs,
the Agency did not meet its duty to identify the single CAFO with the
best-performing technology. The court found that EPA had collected
extensive data on the waste management systems at CAFOs and had
considered approximately 11,000 public comments on the proposed CAFO
rule, and on those bases, EPA had adequately justified its selection of
``best available technologies'' on which to base the regulations.
--Groundwater controls. The court upheld EPA's decision in the 2003
rule relating to groundwater controls. In the 2003 rule EPA stated that
the Agency believed that requirements limiting the discharge of
pollutants to surface water via groundwater that has a direct
hydrologic connection to surface water were beyond the scope of the
ELGs promulgated in the rule. The Agency also stated that nothing in
the 2003 rule was to be construed to expand, diminish, or otherwise
affect the jurisdiction of the CWA over discharges to surface water via
groundwater that has a direct hydrologic connection to surface water.
--Economic methodologies. The court upheld the analytic methodologies
that EPA used for determining whether the technology-based permit
requirements for CAFOs set in the 2003 rule would be economically
achievable by the industry as a whole.
2. Issues Vacated by the Court
The following are the elements of the 2003 rule that the
Waterkeeper court found to be unlawful and therefore vacated.
(a) Duty to Apply
The CAFO industry organizations argued that the EPA exceeded its
statutory authority by requiring all CAFOs to either apply for NPDES
permits or demonstrate that they have no potential to discharge. The
court agreed with the CAFO industry petitioners on this issue and
therefore vacated the ``duty to apply'' provision of the 2003 CAFO
rule.
The court found that the duty to apply, which the Agency had based
on a presumption that most CAFOs have at least a potential to
discharge, was invalid, because the CWA subjects only actual discharges
to permitting
[[Page 37747]]
requirements rather than potential discharges. The court acknowledged
EPA's policy considerations for seeking to impose a duty to apply but
found that the Agency lacked statutory authority to do so.
(b) Nutrient Management Plans
The environmental organizations argued that the 2003 CAFO rule was
unlawful because: (1) The rule empowered permitting authorities to
issue permits without any meaningful review of a CAFO's NMP, (2) the
rule failed to require that the terms of the nutrient management plan
be included in the NPDES permit, and (3) the permitting approach
established by the rule violated the Clean Water Act's public
participation requirements. The court agreed with the environmental
petitioners on these three issues.
The court relied on provisions of the Act that authorize point
source discharges only where NPDES permits ``ensure that every
discharge of pollutants will comply with all applicable effluent
limitations and standards,'' citing CWA sections 402(a)(1), (a)(2), and
(b). Because the 2003 CAFO rule did not provide for permitting
authority review of a CAFO's nutrient management plan before the permit
was issued, the court found that the rule did not ensure that each
Large CAFO's discharges comply with these CWA provisions. In addition,
the court found that by not making the NMPs part of the permit and
available to the public for review, the 2003 CAFO rule violated public
participation requirements in sections 101(e) and 402 of the Act. The
court also found that the terms of the NMPs themselves are ``effluent
limitations'' as that term is defined in the Act and therefore must be
made part of the permit and enforceable as required under CWA sections
301 and 402.
3. Issues Remanded by the Court
The Waterkeeper court also remanded other aspects of the CAFO rule
to EPA ``for further clarification and analysis,'' as follows:
(a) Water Quality-Based Effluent Limits
The court agreed with EPA that agricultural stormwater is excluded
from the meaning of the term ``point source'' and therefore is not
subject to water quality-based effluent limitations in permits.
However, the court directed EPA to ``clarify the statutory and
evidentiary basis for failing to promulgate water quality-based
effluent limitations for discharges other than agricultural stormwater
discharges as that term is defined in 40 CFR 122.23(e),'' and to
``clarify whether States may develop water quality-based effluent
limitations on their own.''
(b) New Source Performance Standards--100-Year Storm Standard
The 2003 CAFO rule set the new source performance standards (NSPS)
for swine, poultry, and veal CAFOs at a level of zero discharge. A CAFO
in these categories could fulfill this requirement by showing that
either (1) its production area was designed to contain all manure,
litter, process wastewater, and precipitation from the 100-year, 24-
hour storm, or (2) it would comply with ``voluntary superior
environmental performance standards'' based on innovative technologies,
under which a discharge from the production area would be allowed if it
was accompanied by an equivalent or greater reduction in the quantity
of pollutants released to other media (e.g., air emissions). The court
found that EPA had neither justified in the record nor provided an
adequate opportunity for public comment with respect to either of these
provisions. As a result, the court remanded these provisions to EPA to
clarify, via a process that adequately involves the public, the
statutory and evidentiary basis for them.
(c) BCT Effluent Guidelines for Pathogens
The court held that the 2003 CAFO rule violated the CWA because EPA
had not made an affirmative finding that the BCT-based Effluent
Limitations Guidelines (ELGs)--i.e., the ``best conventional
technology'' guidelines for conventional pollutants such as fecal
coliform--do in fact represent BCT technology. The court remanded this
issue to EPA to make such a finding based on the BAT/BPT technologies
EPA studied or to establish specific BCT limitations for pathogens
based on some other technology.
D. What Requirements Still Apply to CAFOs?
The Waterkeeper decision either upheld or did not address most
provisions of the 2003 CAFO rule. This section describes certain key
portions of the rule that were not challenged in Waterkeeper. These
unchallenged provisions are not addressed in or affected by today's
proposal, except to provide background information. EPA has not
reconsidered its initial decision regarding these provisions and is not
soliciting comment on them.
The definitions provided in 40 CFR 122.23(b) of the 2003 CAFO rule
remain in effect and are unchanged. First, an operation must be defined
as an animal feeding operation (AFO) before it can be defined as a
concentrated animal feeding operation (CAFO). 40 CFR 122.23. The term
``animal feeding operation'' is defined by EPA regulation as a ``lot or
facility'' where animals ``have been, are or will be stabled or
confined and fed or maintained for a total of 45 days or more in any 12
month period and crops, vegetation, forage growth, or post harvest
residues are not sustained in the normal growing season over any
portion of the lot or facility.''
Whether an AFO is a CAFO depends primarily on the number of animals
confined, which is also unchanged. Large CAFOs are AFOs that confine
more than the threshold number of animals detailed in 40 CFR
122.23(b)(4). Medium CAFOs confine fewer animals than Large CAFOs and
also: (1) Discharge pollutants into waters of the U.S. through a man-
made ditch, flushing system, or other similar man-made device; or (2)
discharge pollutants directly into waters of the U.S. which originate
outside of and pass over, across, or through the facility or otherwise
come into direct contact with the confined animals. 40 CFR
122.23(b)(6)(ii). The NPDES permitting authority also may, on a case-
by-case basis, designate any AFO, including small AFOs, as a CAFO after
conducting an on-site inspection and finding that the facility ``is a
significant contributor of pollutants to waters of the United States.''
40 CFR 122.23(c). The permitting authority may not exercise its
authority to designate a Small CAFO unless pollutants are discharged
into waters of the U.S. through a man-made ditch, flushing system, or
other similar man-made device, or are discharged directly into waters
of the U.S. which originate outside of the facility and pass over,
across, or through the facility or otherwise come into direct contact
with the animals confined in the operation. 40 CFR 122.23(c)(3).
Although the Waterkeeper decision invalidated the duty to apply
provision promulgated in the CAFO regulations at 40 CFR 122.23(d),
there remains in the NPDES regulations a different duty to apply
provision, at 40 CFR 122.21(a), that applies to point sources in
general, including CAFOs. While the CAFO provision in Sec. 122.23(d)
would have required all CAFOs to apply for a permit, Sec. 122.21(a)
requires only a person who ``discharges or proposes to discharge
pollutants'' to apply. The Waterkeeper decision did not invalidate
Sec. 122.21(a), nor is this provision's continued application to CAFOs
inconsistent with the decision in Waterkeeper. Therefore, under Sec.
122.21(a), CAFOs currently are
[[Page 37748]]
required to apply for an NPDES permit if they discharge or propose to
discharge pollutants other than agricultural stormwater, which is not a
point source discharge.
It should also be noted that the definitions of both ``Medium
CAFO'' and ``Small CAFO'' in the regulations include only those
facilities that have an actual discharge. Thus, under Sec. 122.21(a),
all Medium and Small CAFOs must apply for a permit.
Nutrient management planning requirements for permitted CAFOs
established in the 2003 CAFO rule also were unaffected by the court's
ruling. All permitted CAFOs must develop and implement an NMP that
meets the requirements of 40 CFR 122.42(e) and, for Large CAFOs subject
to 40 CFR Part 412, subpart C or D, 40 CFR 412.4. The NMP identifies
the necessary actions to ensure that runoff is eliminated or minimized
through proper and effective manure, litter, and wastewater management,
including compliance with the ELGs. Permitted CAFOs must comply with
all applicable recordkeeping and reporting requirements, including
those specified in 40 CFR 122.42(e).
ELG requirements for existing Large CAFOs also are unaffected by
the court decision, with the exception of changes to the NMP compliance
dates and BCT. ELG requirements ensure the appropriate storage of
manure, litter, and process wastewater and proper land application
practices. They vary depending upon the types of animals confined:
Subpart A for horses and sheep; Subpart B for ducks; Subpart C for
dairy cattle, heifers, steers, and bulls; and Subpart D for swine,
poultry, and veal calves. (40 CFR Part 412). Additionally, New Source
requirements for beef and dairy operations remain unchanged (40 CFR
412.35).
Permitted small and medium CAFOs are not subject to the ELGs
specified in part 412. Rather, they must comply with technology-based
requirements developed by the permitting authority on a case-by-case
basis (i.e., Best Professional Judgment (BPJ)).
E. Status of EPA's Response to the Waterkeeper Decision
In addition to the changes made through this proposed rule, EPA
extended certain deadlines in the NPDES permitting requirements and
ELGs in a separate rulemaking in order to allow the Agency adequate
time to complete this rulemaking in response to the Waterkeeper
decision in advance of those deadlines. (71 FR 6978). That rule revised
dates established in the 2003 CAFO rule by which facilities newly
defined as CAFOs were required to seek permit coverage and by which all
CAFOs were required to have nutrient management plans developed and
implemented. EPA extended the date by which operations defined as CAFOs
as of April 14, 2003, who were not defined as CAFOs prior to that date,
must seek NPDES permit coverage, from February 13, 2006, to July 31,
2007. EPA also amended the date by which operations that become defined
as CAFOs after April 14, 2003, due to operational changes that would
not have made them a CAFO prior to April 14, 2003, and that are not new
sources, must seek NPDES permit coverage, from April 13, 2006, to July
31, 2007. Finally, EPA extended the deadline by which CAFOs are
required to develop and implement nutrient management plans, from
December 31, 2006, to July 31, 2007. That rulemaking revised all
references to the date by which NMPs must be developed and implemented
as specified in the 2003 CAFO rule.
III. This Proposal
This proposed rule is in response to the Second Circuit Court's
vacature and remand orders. EPA intends to make only those changes
necessary to address the court's decision.
A. Duty To Apply for a Permit
1. Provisions in the 2003 CAFO Rule
(a) Duty To Apply
The 2003 CAFO rule required all CAFOs to seek coverage under an
NPDES permit unless the Director determined that the CAFO has no
potential to discharge. The breadth of this duty to apply was based on
EPA's presumption that most CAFOs have a potential to discharge
pollutants into waters of the United States. Therefore, all CAFOs were
required to apply for a permit, except where the Director determined a
CAFO had no potential to discharge.
(b) ``No Potential To Discharge'' Determination
The 2003 CAFO rule included a process for CAFOs to seek a ``no
potential to discharge'' determination by the Director. Where the
Director determined, based on information supplied by the CAFO
operator, that a CAFO had no potential to discharge manure, litter, or
process wastewater, the CAFO operator had no duty to apply for a
permit, unless circumstances at the facility changed such that the
facility would have the potential to discharge. Examples of facilities
that possibly would have qualified for this exemption included
facilities in very arid areas, facilities that are downslope from
waters of the United States, and facilities with completely enclosed
operations.
2. Summary of the Second Circuit Court Decision
The Second Circuit Court of Appeals vacated the provision that
required all CAFO owners or operators to apply for an NPDES permit. The
court held that the Clean Water Act authorizes EPA to require permits
for the actual discharge of pollutants, but not for mere potential
discharges. Because the 2003 CAFO rule imposed an obligation on all
CAFOs to either apply for an NPDES permit or affirmatively demonstrate
that they have no potential to discharge, the court ruled that it
exceeded EPA's authority under the Clean Water Act.
3. This Proposal
To address the court's decision on the duty to apply, EPA is
proposing changes to the 2003 CAFO rule in two areas:
Revising the requirement that all CAFOs apply for an NPDES
permit; and
Eliminating the procedures for a no potential to discharge
determination.
EPA also seeks to clarify how unpermitted CAFOs may meet the
agricultural stormwater exemption when they land apply manure, litter,
or process wastewater.
(a) Requirement That All CAFOs With a Discharge Seek Permit Coverage
EPA is proposing to delete the ``duty to apply'' requirement
adopted in the 2003 rule, which states that all CAFO owners or
operators must seek coverage under an NPDES permit (40 CFR 122.21(a)(1)
and 40 CFR 122.23(a) and (d)(1)).
Today's proposed rule would replace the ``duty to apply''
requirement of the 2003 rule with a requirement that all CAFOs that
``discharge or propose to discharge'' must seek coverage under an NPDES
permit. This proposed change would address the Waterkeeper court's
ruling and would hold CAFO owners and operators to the same ``duty to
apply'' requirement as already exists for point sources under 40 CFR
122.21(a)(1).
The result of this proposed revision is that only owners and
operators of those CAFOs that discharge or propose to discharge would
be required to seek coverage under an NPDES permit. This revised duty
to apply applies to all owners and operators that discharge or propose
to discharge, regardless of the volume or duration of the discharge
except for discharges of agricultural stormwater (see below). A
facility may seek permit coverage in one of two
[[Page 37749]]
ways, by submitting an application for an individual permit or by
submitting a notice of intent to be covered by a general permit that
has been issued by the permitting authority. Generally, under this
proposal, it would be the CAFO's responsibility to decide whether or
not to seek permit coverage based on whether they discharge or propose
to discharge. This is how the NPDES program operates for other point
sources. Any CAFO that discharged or proposed to discharge and failed
to obtain an NPDES permit would be in violation of the NPDES regulatory
requirement to seek coverage under an NPDES permit. A facility with an
actual discharge would also be in violation of the CWA prohibition
against discharging without an NPDES permit (33 U.S.C. 1311(a)).
Any discharge from a CAFO, even one that is unplanned or
accidental, is illegal unless it is authorized by the terms of a
permit. Many CAFOs have conditions that may result in a discharge. For
example, manure structures that are improperly designed or, for other
reasons, have insufficient capacity (e.g., due to facility expansion)
may discharge. In addition, discharges can occur from a properly
designed containment structure that is improperly operated and
maintained or as a result of precipitation that exceeds the operating
capacity of the structure. In the absence of an actual discharge or
proposed discharge, CAFOs with such conditions are not required under
the terms of today's proposed rule to obtain an NPDES permit. However,
the owner or operator of a CAFO that fails to obtain an NPDES permit
and has a discharge is subject to State or federal enforcement, as well
as liability from citizen suits under CWA Section 505(a).
Because discharges are prohibited from unpermitted CAFOs, NPDES
permit coverage reduces CAFO operator risk and provides certainty to
CAFO operators regarding activities and actions that are necessary to
comply with the Clean Water Act. Compliance with the permit is deemed
compliance with the CWA and thus acts as a shield against EPA
enforcement or citizen suits under CWA Section 402(k). Furthermore,
under the 2003 rule, most CAFO NPDES permits will incorporate ELG
provisions that allow for discharge when precipitation causes an
overflow from a structure that is properly designed, constructed,
operated, and maintained, in accordance with the applicable design
standards. Finally, upset provisions can protect permittees from legal
liability when emergencies or natural disasters cause discharges beyond
the permittee's reasonable control, as provided in Sec. 122.41(n).
This protection is not available to unpermitted CAFOs.
There are many factors a CAFO owner or operator should consider in
determining whether to seek permit coverage. For example, if the CAFO
is in a flood plain, subject to high annual precipitation, or subject
to lengthy rainy seasons, it is likely to have a discharge if the CAFO
drains to a water of the United States. Other factors likely to result
in a discharge include runoff from open feed bunkers, field storage, or
other stockpiles exposed to precipitation; lagoons that are not
sufficiently pumped down for the upcoming winter season; holding of
process wastewater for summer irrigation that precludes adequate
capacity for chronic rainfalls; and inadequate containment due to
unavailability of land for manure, litter, or process wastewater
application due to timing constraints associated with, for example,
saturated ground or imminent rain. In addition, a discharge may occur
from land application due to improper maintenance or operation of
manure handling equipment that may lead to spills, and application of
manure, litter or process wastewater to land in such a way that it does
not qualify for the agricultural stormwater exemption (see below).
EPA recognizes that some CAFOs have a higher likelihood of actually
discharging due to certain geographic and physiographic conditions. In
order to guide CAFOs in making a decision on whether or not to seek
permit coverage, EPA suggests that Large CAFOs falling into one or more
of these categories should consider seeking permit coverage (this list
is not intended to be exhaustive):
1. Where a CAFO is located in close proximity to waters of the
United States with land classified in USDA Land Use Capability Classes
III through VIII \2\;
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\2\ Land capability classification is a system of grouping soils
primarily on the basis of their capability to produce common
cultivated crops and pasture plants without deteriorating over a
long period of time. Soil survey map units contained in United
States Department of Agriculture (USDA) soil surveys typically are
assigned a land capability classification. The eight classes are
defined as follows: Class 1 soils have slight limitations that
restrict their use; Class 2 soils have moderate limitations that
reduce the choice of plants or require moderate conservation
practices; Class 3 soils have severe limitations that reduce the
choice of plants or require special conservation practices, or both;
Class 4 soils have very severe limitations that restrict the choice
of plants or require very careful management, or both; Class 5 soils
have little or no hazard of erosion but have other limitations,
impractical to remove, that limit their use mainly to pasture,
range, forestland, or wildlife food and cover; Class 6 soils have
severe limitations that make them generally unsuited to cultivation
and that limit their use mainly to pasture, range, forestland, or
wildlife food and cover; Class 7 soils have very severe limitations
that make them unsuited to cultivation and that restrict their use
mainly to grazing, forestland, or wildlife; and Class 8 soils and
miscellaneous areas (areas dominated by disturbed soil) have
limitations that preclude their use for plant production and limit
their use to recreation, wildlife, or water supply or for esthetic
purposes.
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2. Where the CAFO's production area is not designed and operated
for zero discharge, including where the containment structure is not
designed or maintained to contain all manure, litter, process
wastewater, precipitation and runoff that may accumulate during periods
when the facility is unable to land apply in accordance with a nutrient
management plan;
3. Where a CAFO that land applies does not have or is not
implementing nutrient management planning that is designed to ensure
that any land application runoff qualifies for the agricultural
stormwater exemption; and
4. Where the CAFO has had a discharge in the past and has not
corrected the factors that caused the discharge to occur.
EPA seeks comment on the completeness and accuracy of the above
list of situations where a discharge may occur to further assist CAFOs
in their decisions regarding whether or not to seek permit coverage.
EPA also solicits comment on its proposal to replace the duty to
apply provision promulgated in the 2003 CAFO rule with the narrower
duty to apply provision described above.
(b) ``No Potential to Discharge'' Determination
EPA is proposing to delete the regulatory provisions adopted in the
2003 CAFO rule allowing CAFOs to demonstrate that they have no
potential to discharge and authorizing the Director to make such a
determination. 40 CFR 122.23(d)(2) and 122.23(f). Such a designation
would be irrelevant because the proposed rule requires only those CAFOs
that discharge or propose to discharge to seek coverage under a permit.
(c) Agricultural Storm Water
The discharge of manure, litter, or process wastewater from a land
application area under the control of a CAFO is a discharge subject to
NPDES permit requirements, unless the discharge is agricultural
stormwater, which is excluded from the meaning of the term ``point
source'' under 33 U.S.C. 1362(14).
As described in the preamble to the 2003 rule, EPA recognized that
manure, litter, or process wastewater applied in accordance with
practices designed to
[[Page 37750]]
ensure appropriate agricultural utilization of nutrients fulfills an
important agricultural purpose, namely the fertilization of crops,
while reducing the potential for a subsequent discharge of pollutants
to waters of the U.S. However, EPA also recognized that some runoff may
occur during rainfall events even when a CAFO applies manure, litter,
or process wastewater in accordance with practices designed to ensure
appropriate agricultural utilization of nutrients. EPA believed that
the potential for runoff and water quality impairments would be
minimized where a CAFO implemented a site-specific NMP in conformance
with 40 CFR 122.42(e)(1)(vi)-(ix) and, for Large CAFOs, the additional
management practices required in 40 CFR 412.4(c).
In the 2003 rule, EPA promulgated a definition of agricultural
stormwater that included compliance with 40 CFR 122.42(e)(1)(vi-ix).
The referenced regulatory text includes requirements for edge-of-field
buffers, testing of manure and soil, land application at agronomic
rates, and record keeping. While not explicitly included in the
definition, Large CAFOs were also required under the effluent
guidelines to comply with technical standards established by the
Director, in accordance with 40 CFR 412.4(c). These more specific
limitations implemented the general requirements at 40 CFR
122.42(e)(1)(vi-ix), and because all CAFOs with a potential to
discharge were required to obtain permits, virtually all Large CAFOs
were required to comply with them.
Under today's proposed rulemaking, Large CAFOs that have only
agricultural stormwater discharges from their land application area,
and no other discharges or proposed discharges from their production or
land application areas, would no longer be required to seek permit
coverage. (See 40 CFR 122.23(e).) However, precipitation-related
discharges from CAFO land application areas would be considered
agricultural stormwater only where the CAFO land applies in accordance
with nutrient management practices that meet the requirements of 40 CFR
122.42(e)(1)(vi)-(ix). EPA believes that, in order for the owner or
operator of a CAFO to qualify for the statutory agricultural stormwater
exemption, manure, litter, and process wastewater must be applied in
compliance with technical standards that are, in significant part,
intended to ensure the appropriate agricultural utilization of the
nutrients contained in the manure, litter, and process wastewater.
The Second Circuit upheld EPA's definition of agricultural
stormwater, and EPA is not proposing to change the definition at this
time, or requesting comment on such a change. However, EPA is
considering requiring explicitly that Large CAFOs that are not
permitted because they do not discharge or propose to discharge comply
with the technical standards for land application established by the
Director (in addition to meeting the requirements of 40 CFR
122.42(e)(1)(vi-ix)) in order for runoff from their fields to be
considered agricultural stormwater (which is exempt from permitting
requirements). Even if EPA does not adopt this requirement explicitly,
EPA believes that unpermitted Large CAFOs should incorporate the
technical standards established by the Director into their NMPs. EPA
also recommends that small or medium AFOs use nutrient management
practices consistent with 40 CFR 122.42(e)(1)(vi-ix) and comply with
the applicable technical standards in their land application of manure,
litter, or process wastewater. EPA requests comment on this issue.
Unpermitted CAFOs that land apply manure, litter, or process
wastewater must document that they are land applying in accordance with
the requirements described above in order to qualify for the statutory
exclusion for agricultural stormwater. (See 40 CFR 122.42(e)(1)(ix).)
The documentation required includes both the nutrient planning and the
additional recordkeeping necessary to demonstrate that the CAFO
properly land applied manure, litter, or process wastewater in
accordance with 40 CFR 122.42(e)(1)(vi)-(ix), including the technical
standards used to translate these requirements into specific land
application rates and practices. EPA believes that an appropriate
approach to planning and documenting such practices is by preparing a
comprehensive nutrient management plan in accordance with guidance
provided by USDA and the appropriate technical standards. Whatever form
the documentation takes, it must be maintained on site. This
documentation is crucial in determining whether the CAFO is land
applying manure, litter, or process wastewater in a manner that ensures
the appropriate agricultural utilization of nutrients and, as a result,
is not illegally discharging pollutants from land application areas.
B. Nutrient Management Plans
1. Provisions in the 2003 CAFO Rule Affected by the Court Decision
(a) Requirement to Develop and Implement a Nutrient Management Plan
Under the 2003 CAFO rule, NPDES permits for all CAFOs must include
a requirement for the permittee to develop and implement a nutrient
management plan. At a minimum, the NMP must include BMPs and procedures
necessary to achieve effluent limitations and standards. The plan must,
to the extent applicable, include the minimum elements established at
40 CFR 122.42(e)(1)(i)-(ix). For Large CAFOs in the cattle, swine,
poultry, and veal subcategories, the NMP must also meet the more
detailed requirements in the Part 412 effluent limitations guidelines.
For Small and Medium CAFOs, or other operations not otherwise subject
to Part 412 requirements for land application, the required elements of
a nutrient management plan would be further specified in the permit
based on the best professional judgment (BPJ) of the permitting
authority. The Second Circuit's decision did not affect these
provisions and EPA is not revisiting them or soliciting comments.
(b) Due Dates for Developing and Implementing Nutrient Management Plans
The 2003 CAFO rule required all CAFOs to develop and implement an
NMP by December 31, 2006, except that CAFOs seeking to obtain coverage
under a permit subsequent to that date were required to have an NMP
developed and implemented upon the date of permit coverage. This timing
was consistent with the dates for the implementation of the ELG, which
required existing Large CAFOs to implement the land application
requirements at 40 CFR 412.4(c) by December 31, 2006. (Following the
court decision these dates were extended to July 31, 2007, to give EPA
time to complete the current rulemaking (see Section II.E).)
As discussed in the preamble to the 2003 CAFO rule, EPA believed
that these dates were reasonable given that operations would have had
three and a half years from the time the 2003 rule was issued to
conduct the necessary planning and construction to implement an NMP.
For Large CAFOs that are new sources (i.e., those commencing
construction after the effective date of the 2003 CAFO rule), the land
application requirements at 40 CFR 412.4(c) apply immediately.
EPA concluded that this timeframe also allowed States to update
their
[[Page 37751]]
NPDES programs and issue permits to reflect the NMP requirements of the
2003 CAFO rule and provided flexibility for permit authorities to
establish permit schedules based on specific circumstances, including
prioritization of nutrient management plan development and
implementation based on site-specific water quality risks and the
availability of technical expertise for development of NMPs.
2. Summary of the Second Circuit Court of Appeals Decision on Nutrient
Management Plans
As previously discussed, the Second Circuit Court of Appeals found
that the terms of the NMPs were effluent limitations and vacated the
2003 CAFO rule insofar as the rule allowed permitting authorities to
issue NPDES permits to CAFOs without: reviewing the terms of the
nutrient management plans, providing for adequate public participation
in the development, revision, and enforcement of the nutrient
management plans, and including the terms of the nutrient management
plan in the permit.
The decision did not affect the required contents of nutrient
management plans established at 40 CFR 122.42(e)(1) and 40 CFR
412.4(c)(1) in the 2003 CAFO rule.
The Second Circuit court decision did not vacate any NPDES permits
issued pursuant to the 2003 CAFO rule. Therefore, such permits already
issued to CAFOs by States or EPA prior to June 27, 2005 (the effective
date of the court's decision), are not directly affected by the court
decision and the nutrient management plan requirements in those permits
remain in effect until and unless the permits are modified, revoked and
reissued, or terminated in accordance with State regulations.
3. This Proposal
To address the court's decision, EPA is proposing regulatory
revisions to the 2003 CAFO rule and other provisions of the NPDES
regulations to provide for:
Receipt and review of the nutrient management plan by the
permitting authority prior to issuing an individual permit or granting
coverage under a general permit;
Procedures to provide opportunity for adequate public
participation prior to issuing an individual permit or granting
coverage under a general permit; and
Incorporation of the terms of the nutrient management plan
into the NPDES permit.
In proposing these revisions, EPA has devoted particular attention
to the process for issuance of general permits, because most CAFOs are
expected to be covered by general permits and, for those that will be
permitted under individual permits, the individual permitting process
already allows for review of NMPs by the permitting authority, public
review of an NMP as part of the individual permit application process,
and incorporation of the terms of the NMP into the individual permit
consistent with the CWA. Further, EPA proposes a process to address
changes to the NMP once permit coverage is granted, for both individual
and general permits. To effectuate these changes, EPA is proposing
regulatory revisions to 40 CFR 122.21, 122.23, 122.28, 122.42, 122.62,
and 122.63. In addition, in a separate rulemaking EPA extended the
deadlines set in the 2003 CAFO rule for NMP development and
implementation, as well as for newly defined CAFOs to seek permit
coverage. (71 FR 6978.)
The preamble discussion that follows is divided into six sections
to separately address each of the following issues:
CAFO permit application and notice of intent requirements;
Procedures for permitting authority review;
Procedures for public review and comment;
Incorporation of nutrient management plan terms in NPDES
permits;
Changes to nutrient management plans; and
Required dates to seek coverage under a permit and submit
an NMP.
(a) CAFO Permit Application or Notice of Intent Requirements for
Nutrient Management Plans
In order to satisfy the court's requirements that the terms of a
nutrient management plan must be publicly reviewed and incorporated
into the permit, EPA is proposing to revise 40 CFR 122.21(i)(1)(x) to
require the applicant to submit, as part of its permit application or
notice of intent (NOI), a nutrient management plan developed in
accordance with the provisions of 40 CFR 122.42(e)(1) and 40 CFR
412.4(c)(1), as applicable. Although this proposed change would be
codified in the section of the regulations applicable to individual
permit applications (40 CFR 122.21(i)(1)), it would also apply to
notices of intent to be covered by a general permit, because 40 CFR
122.28(b)(2)(ii), the regulation governing notices of intent for
general permits, incorporates the requirements of 40 CFR 122.21(i)(1)
by reference. EPA Application Form 2B will also be revised to reflect
these changes. The revised form is provided as Appendix A to this
notice.
This approach is consistent with the decision of the Second Circuit
Court of Appeals, which left undisturbed the basic substantive
requirements for nutrient management plans in the 2003 CAFO rule. The
proposed revisions would not change the required contents of the NMP,
but would now require CAFOs to submit the plan with the application or
the notice of intent rather than only at the request of the Director.
The permitting authority would then make the nutrient management plan
available for review prior to developing an individual permit or
providing coverage under an NPDES general permit.
(b) Procedures for Permitting Authority Review
Once the permitting authority receives an application or an NOI
from a CAFO seeking permit coverage, it would be the responsibility of
the permitting authority to review the application or NOI to ensure
that the nutrient management plan meets the requirements of 40 CFR
122.42(e)(1) and, for Large CAFOs, the applicable requirements of 40
CFR 412.4(c). As part of that process, the Director would review the
NMP for completeness and sufficiency. EPA believes that this review
process responds to the Waterkeeper decision by providing for
permitting authority review of the NMP.
For individual permits, the NMP would be submitted and reviewed as
part of the permit application. The decision-making procedures in 40
CFR Part 124 continue to apply to the Director's review of the
application, which now would include the NMP. Part 124 requires review
of the completeness and sufficiency of the permit, includes an
opportunity for the CAFO to modify the plan or provide additional
information to the permitting authority, and provides for a final
decision by the Director after an opportunity for public comment and a
public hearing.
While the review process for NMPs in individual permits is already
established in existing NPDES regulations, there are gaps in the
requirements for general permitting of CAFOs that EPA proposes to fill
in order to address the Second Circuit Court decision. Specifically,
EPA is proposing new regulatory provisions to establish permitting
authority review of NMPs for CAFO general permits. These procedures are
in the proposed new Paragraph (d) to be added to 40 CFR 122.28.
Proposed 40 CFR 122.28(d) would require the Director to review the
NMP submitted with the NOI and to take
[[Page 37752]]
appropriate steps to ensure that the NMP meets the requirements of the
regulations. If upon review the permitting authority determines that
additional information is necessary to complete the notice of intent or
clarify, modify, or supplement previously submitted material, the
Director would notify the CAFO owner or operator and request the
appropriate information be provided. When the NOI is complete the
permitting authority would notify the public of its receipt and of the
terms of the nutrient management plan proposed to be incorporated into
the existing general permit as terms and conditions applicable to that
CAFO. Following an opportunity for public comment and public hearing,
the permitting authority would decide whether to authorize coverage
under the general permit and incorporate the terms of the NMP into the
general permit for that CAFO.
EPA is considering the use of a template which could be used as a
voluntary tool to facilitate completion of the NMP by CAFO applicants,
as well as to facilitate review by the permitting authority. Such a
template would help to systematically organize the information
necessary to satisfy the NMP requirements in the regulation. The
template could, for example, be used as a form, that when completed by
the operator, and approved by the permitting authority, could suffice
as the NMP itself. Alternatively, it could also be used as a checklist
that the operator and/or permitting authority could use to organize the
information in the NMP and to assist in assessing its adequacy (see
Section III.B.3.d, below). It would be up to the permitting authority's
discretion as to how to incorporate the terms of the NMP into the
permit and permitting authorities might need to tailor any template to
their permit process and technical requirements, including the
technical standards established by the Director.
EPA has developed a draft template for public review that is
intended to be user friendly. It follows the requirements for an NMP
identified in 40 CFR 122.42(e) relating to: manure storage; management
of animal mortalities; diversion of clean water; prevention of direct
contact of animals with waters of the US; chemical handling; site-
specific conservation practices; protocols for testing manure, litter,
process wastewater and soil; protocols for land application; and
recordkeeping. This draft template is in the public record for this
rulemaking at www.regulations.gov under docket EPA-HQ-OW-
2005-0037 and is also available on the EPA Web site at www.epa.gov. EPA
is interested in receiving feedback on the form and content of the
template.
(c) Procedures for Public Participation Prior to Permit Coverage
As noted above, the regulatory procedures for public participation
in the issuance of individual permits are already established. (See
generally, 40 CFR Part 124.) Because the NMP would be part of the
individual permit application, it would be subject to existing
regulations requiring public participation, including the requirement
for public notice (40 CFR 124.10) and the opportunity for the public to
provide comments and request a public hearing (40 CFR 124.11). Because
of the proposed regulatory change requiring nutrient management plans
to be submitted with the permit application (see discussion at
II.B.3.i.; 40 CFR 122.21 and 122.28), the public would have access to
the nutrient management plan prior to permit issuance and would also
have full opportunity to comment on the adequacy of the plan and on the
nutrient management terms and conditions of the draft NPDES permit
developed for the specific CAFO facility. EPA believes that this
process responds to the court's decision.
The general permit issuance process differs from the individual
permitting process discussed above in the way in which a permit is
developed and the means by which individual facilities obtain coverage
under the permit. A general permit is developed by the permitting
authority to cover multiple facilities without the need to receive
individual permit applications from facilities in advance of the
development of the permit. Once the draft general permit is developed,
the public (including potential future permittees) is provided the
opportunity to review the permit, submit comments, and request a
hearing. After considering any comments submitted, the permitting
authority then finalizes the general permit. Once the final general
permit is issued, facilities may submit a notice of intent (NOI)
seeking coverage under the permit. Typically, the permitting authority
then grants coverage, without the need for further public notice and
comment, or requires the facility to seek coverage under an individual
permit.
Following the Waterkeeper decision, general permits for CAFOs must
be modified, onc