Revised National Pollutant Discharge Elimination System Permit Regulations for Concentrated Animal Feeding Operations; Supplemental Notice of Proposed Rulemaking, 12321-12340 [E8-4504]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 73, Number 46 (Friday, March 7, 2008)]
[Proposed Rules]
[Pages 12321-12340]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-4504]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[EPA-HQ-OW-2005-0037; FRL-8539-9]
RIN 2040-AE94


Revised National Pollutant Discharge Elimination System Permit 
Regulations for Concentrated Animal Feeding Operations; Supplemental 
Notice of Proposed Rulemaking

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: This action is a supplemental notice of proposed rulemaking 
(SNPRM) to EPA's June 30, 2006, notice of proposed rulemaking (NPRM) 
revising the National Pollutant Discharge Elimination System (NPDES) 
permitting requirements for concentrated animal feeding operations 
(CAFOs), in response to the order issued by the U.S. Court of Appeals 
for the Second Circuit in Waterkeeper Alliance et al. v. EPA, 399 F.3d 
486 (2d Cir. 2005). In the June 2006 NPRM, EPA proposed to require only 
CAFOs that discharge or propose to discharge to seek coverage under a 
permit. In this SNPRM, EPA is proposing a voluntary option for CAFOs to 
certify that the CAFO does not discharge or propose to discharge based 
on an objective assessment of the CAFO's design, construction, 
operation, and maintenance. The June 2006 proposal also discussed the 
terms of the nutrient management plan (NMP) that would need to be 
incorporated into NPDES permits. This SNPRM proposes a framework for 
identifying the terms of the NMP and three alternative approaches for 
addressing rates of application of manure, litter, and process 
wastewater when identifying terms of the NMP to be included in the 
permit. This supplemental proposal focuses solely on certification and 
terms of the NMP and is not opening any other provisions of the June 
2006 proposal and existing NPDES regulations or

[[Page 12322]]

Effluent Limitations Guidelines and Standards for public comment.

DATES: Comments must be received on or before April 7, 2008.

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 online 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 2822T, 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, EPA Docket 
Center, EPA West, Room 3334, 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: Rebecca Roose, Water Permits Division, 
Office of Wastewater Management (4203M), Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone 
number: (202) 564-0758; e-mail address: roose.rebecca@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
III. This Proposal
    A. No Discharge Certification
    B. Terms of Nutrient Management Plan
    C. Compliance Deadlines
IV. 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), included as point sources in section 502(14) of the Clean 
Water Act and defined 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
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                                                                                       North         Standard
                                                                                     American       industrial
                  Category                      Examples of regulated entities     industry code  classification
                                                                                      (NAIC)           code
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Federal, State, and Local Government:
    Industry...............................  Operators of animal production
                                              operations that meet the
                                              definition of a CAFO:
                                                Beef cattle feedlots (including           112112            0211
                                                 veal).
                                                Beef cattle ranching and farming          112111            0212
                                                Hogs............................           11221            0213
                                                Sheep...........................    11241, 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

[[Page 12323]]

 
                                                Ducks...........................          112390            0259
                                                Horses and other equines........           11292            0272
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    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 may be 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

    Congress enacted 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'' 
(CWA section 101(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. (CWA section 402). 
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).
    EPA began regulating wastewater and manure from CAFOs in the 1970s. 
EPA initially issued national effluent limitations guidelines and 
standards for feedlots on February 14, 1974 (39 FR 5,704), and NPDES 
CAFO regulations on March 18, 1976 (41 FR 11,458).
    In February 2003, EPA issued revisions to these regulations, 
focusing on the 5% of the nation's animal feeding operations (AFOs) 
that present the highest risk of impairing water quality and public 
health (68 FR 7,176) (``the 2003 CAFO rule''). The 2003 CAFO rule 
required the owners or operators of all CAFOs \1\ with a potential to 
discharge to apply for an NPDES permit. A number of 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 several 
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 (2d Cir. 2005). 
Provisions of the 2003 CAFO rule that were challenged by the 
petitioners but upheld by the court include the Agency's land 
application regulatory framework and interpretation of ``agricultural 
stormwater,'' and the Agency's determination regarding effluent 
limitations guidelines pertaining to groundwater controls and best 
available technology for waste management. The court vacated the 2003 
rule requirement that all CAFOs must apply for permits or demonstrate 
that they do not have the potential to discharge. The court also found 
that the terms of the nutrient management plan (NMP) are themselves 
``effluent limitations'' and, therefore, must be made part of the 
permit and be enforceable as required by CWA sections 301 and 402, made 
subject to public comment, and reviewed and approved by the permitting 
authority. The court also remanded several aspects of the 2003 CAFO 
rule for further clarification and analysis.
    On June 30, 2006, EPA published a proposed rule to revise several 
aspects of the Agency's regulations governing discharges from CAFOs in 
response to

[[Page 12324]]

the Waterkeeper decision. 71 FR 37,744. EPA is briefly describing the 
proposed revisions to the 2003 CAFO here for context only. The proposed 
provisions in response to the Waterkeeper decision are beyond the scope 
of this final rule, and EPA is not addressing those provisions in this 
final rule.
    In summary, EPA proposed to require only owners or operators of 
those CAFOs that discharge or propose to discharge to seek 
authorization to discharge under a permit. Second, EPA proposed to 
require CAFOs seeking authorization to discharge under individual 
permits to submit their NMPs with their permit applications or, under 
general permits, with their notices of intent. Permitting authorities 
would be required to review the NMP 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. The proposed rule also addressed the remand of 
issues for further clarification and analysis. These issues concern 
clarifications regarding the applicability of water quality-based 
effluent limitations (WQBELs); new source performance standards for 
swine, poultry, and veal CAFOs; and ``best conventional technology'' 
effluent limitations guidelines for fecal coliform.
    In addition to the proposed revisions in the 2006 proposed rule, 
EPA has extended certain deadlines in the NPDES permitting requirements 
and ELGs in two separate rulemakings in order to allow the Agency 
adequate time to complete this rulemaking in response to the 
Waterkeeper decision, in advance of those deadlines. The first 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 permitted CAFOs were required to develop and implement 
nutrient management plans. 71 FR 6978. Because EPA was unable to 
complete this final rule prior to July 31, 2007, EPA again revised the 
compliance dates on July 24, 2007, further extending those dates from 
July 31, 2007, to February 27, 2009. 72 FR 40248.

III. This Proposal

    This notice supplements the 2006 proposed rule by proposing 
additional options being considered by EPA for inclusion in the 
rulemaking to respond to the Second Circuit's decision in the 
Waterkeeper case. EPA is only seeking comment on the issues presented 
in this supplemental proposal. No provisions promulgated in the 2003 
final rule are affected or reopened by this supplemental proposal, nor 
is EPA reopening the comment period on the 2006 proposed rule. In 
addition, EPA is taking comment on the compliance deadlines established 
in the second date change rule.
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    \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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A. No Discharge Certification

    In this notice, the Agency is proposing a new provision that would 
allow CAFOs to voluntarily certify that the CAFO does not discharge or 
propose to discharge. This supplemental proposal seeks comment on this 
voluntary certification option, described below.
1. Background
    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. 68 FR 7176 (Feb. 12, 2003). This duty to apply 
for a permit based on a potential discharge was successfully 
challenged. Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 
2005). 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 requirements rather than potential discharges. 
Waterkeeper, 399 F.3d at 506. The court acknowledged EPA's policy 
considerations for seeking to impose a duty to apply solely on the 
basis of a CAFO's potential to discharge but found that the Agency 
lacked statutory authority to do so.
    In June 2006, in response to the Waterkeeper decision, EPA proposed 
to amend the duty to apply provision for CAFOs, found at 40 CFR 
122.23(d), to require all CAFOs that ``discharge or propose to 
discharge'' to seek NPDES permit coverage. 71 FR 37744 (June 30, 2006). 
As discussed in the preamble to the 2006 proposed rule, the CAFO 
operator would decide whether or not to apply for a permit. 71 FR 
37749. EPA received several hundred comments on the 2006 proposed rule 
related to how a CAFO operator would decide whether to seek permit 
coverage. In particular, many commenters asked EPA to specify 
conditions at a CAFO that would clearly trigger the requirement to 
apply for a permit, while others stated the position that there is no 
``duty to apply'' for CAFOs in advance of any discharge because an 
NPDES permit is only required for actual discharges. In response to 
these comments EPA has developed an option that would allow a CAFO that 
determines it does not need to seek permit coverage to certify to the 
Director that the operation does not discharge or propose to discharge. 
The proposal would establish clear criteria, described in detail below, 
that a CAFO must meet in order to be eligible for the certification. 
The certification option proposed in this notice would not change the 
duty to apply requirement proposed in 2006 that CAFOs that discharge or 
propose to discharge would be required to seek permit coverage. It 
would, however, provide a structured process for CAFOs that wish to 
certify to establish that they do not discharge or propose to 
discharge. EPA believes that such a structured process would be helpful 
to CAFOs as they determine whether or not to seek permit coverage. 
Furthermore, a CAFO with a valid no discharge certification would not 
be subject to liability for violation of the duty to apply at 122.23(d) 
in the unlikely event that a discharge should occur, though it would 
still be liable for violation of the prohibition on unpermitted 
discharges in CWA section 301. EPA wishes to emphasize that submission 
of a no discharge certification is voluntary. Only CAFOs that discharge 
or propose to discharge would be subject to NPDES permit requirements, 
whether or not they submit a certification.
2. Overview of Certification
    EPA is proposing a voluntary option for CAFOs to certify to the 
Director that the CAFO does not discharge or propose to discharge based 
on an objective assessment of the CAFO's design, construction, 
operation, and maintenance. This objective assessment would take into 
account the CAFO's production area design and construction and its 
operating parameters as described in its nutrient management plan 
(NMP). The CAFO operator would certify that the CAFO does not discharge 
or propose to discharge by signing and submitting a certification 
statement to the Director. A CAFO's no discharge certification would 
not be subject to approval by the permitting authority and there would 
not be an opportunity for the public to comment and request a hearing 
regarding the certification. The proposed eligibility requirements, 
submission requirements, and conditions for a valid certification are 
discussed in detail below.
3. Certification Eligibility Criteria
    EPA is proposing to establish specific eligibility criteria for 
CAFO certification at 40 CFR 122.23(h)(2). Meeting these criteria would 
establish that the CAFO does not ``discharge or propose to discharge'' 
for purposes of proposed Sec.  122.23(d), for as long as the 
certification is valid. The two proposed

[[Page 12325]]

criteria are as follows: (1) An objective evaluation of the production 
area design, construction, operation, and maintenance, which shows that 
the production area will not discharge, and (2) development, 
implementation, and maintenance on-site of a nutrient management plan 
(NMP) that addresses the elements set forth in 40 CFR 122.42(e)(1) and 
412.37(c), including operation and maintenance practices for the 
production area and land application areas under the control of the 
CAFO. While a description of how the CAFO meets the eligibility 
criteria would be required to be submitted to the Director, this 
proposed rule would not require that the documents necessary to meet 
the eligibility criteria be submitted to the permitting authority, nor 
would they be subject to permitting authority approval. However, during 
the certification period a properly certified CAFO would be required to 
maintain such documents on site or make them readily available, along 
with any associated records created to support the basis for the 
certification. Certified CAFOs, like any other permitted or unpermitted 
CAFO, would be subject to potential inspection by EPA or State 
inspectors, during which they could be required to produce the 
documentation showing that the CAFO meets the eligibility criteria, 
including that the CAFO has been and is being operated and maintained 
in accordance with the NMP.
    The first proposed eligibility criterion for valid certification 
would cover the design, construction, operation, and maintenance of the 
CAFO's production area. Proposed Sec.  122.23(h)(2)(i) would require 
the CAFO to maintain documentation on site to demonstrate that the 
CAFO's production area is designed, constructed, operated, and 
maintained so as not to discharge. This demonstration would be the same 
as the demonstration provided for in proposed 40 CFR 412.46 (71 FR 
37786), which would allow swine, poultry, and veal calf operations 
subject to new source performance standards (NSPS) to demonstrate that 
there will be no discharge from their production area. However, the no 
discharge certification would be available to all unpermitted CAFOs 
that do not discharge or propose to discharge, not just new sources in 
the swine, poultry and veal calf sectors with open storage. Due to the 
variations in production area design based on the type of containment 
system used at the operation, the proposed regulatory text for the 
first eligibility criterion has two parts: the first for open manure 
storage structures and the second for any part of the production area 
not considered to be open containment.
    EPA is proposing that any CAFO with an open surface manure storage 
structure seeking to certify that it does not discharge or propose to 
discharge would be required to perform a technical evaluation. This 
evaluation would include the same elements as the technical evaluation 
required for open storage new source swine, poultry and veal calf 
operations seeking to demonstrate no discharge under 40 CFR 
412.46(a)(1). In the 2006 proposed rule, EPA proposed to revise the 
provisions at 40 CFR 412.46(a)(1) to allow such new sources with open 
containment to meet the no discharge requirement for their NPDES permit 
using best management practices based in part on a rigorous site-
specific technical evaluation that includes use of the Soil Plant Air 
Water (SPAW) Hydrology Tool or equivalent model. See the 2006 proposed 
regulation at 71 FR 37786-87 and corresponding preamble discussion at 
71 FR 37760-62. Under this proposed certification, any unpermitted CAFO 
with open storage seeking to certify its operation as no discharge, not 
just new source swine, poultry, and veal calf operations, would be 
required to undertake a technical evaluation in accordance with the 
elements of the technical evaluation in Sec.  412.46(a)(1)(i)-(vii) to 
demonstrate that it meets the production area requirement for 
certification under proposed Sec.  122.23(h)(2)(i)(A). Today's proposed 
rule does not reopen for additional comment the 2006 proposed revisions 
to section 412.46 relating to NSPS. The comment period on the revised 
NSPS requirements is closed. Rather, EPA is now seeking comment on 
whether the elements of the technical evaluation set forth in proposed 
Sec.  412.46(a)(1)(i)-(vii) provide an appropriate basis for an 
unpermitted CAFO to certify, on the basis of its design, construction, 
operation, and maintenance, that its open surface manure storage 
structure will not discharge.
    In order to meet the second part of the first eligibility 
criterion, this proposed rule would require, in Sec.  
122.23(h)(2)(i)(B), that any certifying CAFO must demonstrate that all 
of its production area, as defined at 40 CFR 122.23(b)(8), not just 
open surface containment structures, is designed, constructed, 
operated, and maintained such that there will be no discharge of 
manure, litter, process wastewater, or raw materials, such as feed, to 
surface waters. For a CAFO without open containment, this provision 
would require a demonstration of no discharge from the entire 
production area. For a CAFO that has an open containment structure, 
this provision would require a demonstration that the remainder of the 
production area (other than the open containment structure subject to 
the demonstration in 122.23(h)(2)(i)(A)), also will not discharge. 
Because of the special risk of discharge from open manure storage 
structures, greater specificity is provided regarding the elements of 
the demonstration in 122.23(h)(2)(i)(A); however, the demonstration in 
122.23(h)(2)(i)(B) must also be technically sound and must be adequate 
to demonstrate that the production area is designed, constructed, 
operated and maintained for no discharge. This demonstration must be 
based on an evaluation of site-specific characteristics, including, 
among others, the amount of manure generated during the storage period, 
the size of the storage structure, control measures to ensure diversion 
of clean water, and seasonal restrictions on land application. Some 
CAFOs may have a combination of open manure storage structures and 
covered structures, while others will house all animals and store all 
manure, feed and by-products under cover. In either case, all parts of 
the production area will need to be covered by the demonstrations 
required under Sec.  122.23(h)(2)(i)(A) and (B). In addition, like 
permitted new source swine, poultry, and veal calf operations, any 
unpermitted CAFO seeking to certify no discharge would be required to 
implement the measures set forth in 40 CFR 412.37(a) and (b) for the 
production area. These additional measures pertain to operation and 
maintenance and include provisions for visual inspections, depth 
markers for all open surface liquid impoundments, corrective action, 
mortality handling and recordkeeping. Since both these permitted new 
source operations and unpermitted certified CAFOs would need to ensure 
no discharge from the production area under the permit and 
certification requirements, respectively, EPA believes it is 
appropriate to rely, in part, on those provisions to establish 
eligibility criteria for no discharge certification. The documents that 
would be necessary to satisfy this eligibility requirement would 
include design documentation and all recordkeeping and operation and 
maintenance planning necessary to address the elements of proposed 
Sec.  122.23(h)(2)(i), which includes the measures set forth in Sec.  
412.37(a) and (b). EPA is considering developing a recordkeeping 
checklist for use by certified CAFOs. Such a checklist would be made 
available to all CAFO

[[Page 12326]]

operators through EPA guidance published subsequent to issuance of the 
final CAFO rule. EPA requests comment on whether such a checklist would 
be useful.
    The second eligibility criterion would require the CAFO to develop, 
implement, and maintain on site an NMP that addresses, at a minimum, 
the elements set forth in 40 CFR 122.42(e)(1) and 40 CFR 412.37(c), and 
addresses all operation and maintenance practices necessary to ensure 
that the CAFO will not discharge. The NMP would include provisions 
regarding nutrient management in the production area as well as in all 
land application areas under the control of the CAFO where the CAFO 
will land-apply manure. EPA believes that implementation of an NMP is 
an essential component of any CAFO's efforts to ensure that it will not 
discharge from its production or land application areas. EPA notes that 
a comprehensive nutrient management plan (CNMP), developed in 
accordance with Natural Resources Conservation Service (NRCS) technical 
guidance for CNMPs,\2\ would be sufficient to meet this eligibility 
criterion as long as the CNMP addresses the minimum elements set forth 
in 40 CFR 122.42(e)(1) and Sec.  412.37(c), and the CAFO addresses all 
the necessary operation and maintenance protocols either in the CNMP or 
one or more operation and maintenance plans. It is common for an 
operation to have one or more operation and maintenance plans in order 
to properly implement a number of NRCS conservation practice standards 
simultaneously. Also, to the extent that the necessary operation and 
maintenance requirements to implement any provision of the NMP are not 
included in the NMP itself, those requirements would need to be 
included in an operation and maintenance plan to be implemented and 
maintained on site.
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    \2\ Technical Guidance for Developing Comprehensive Nutrient 
Management Plans, USDA Natural Resources Conservation Service 
(2003), available at https://policy.nrcs.usda.gov/
viewerFS.aspx?id=3073.
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    Proper certification would require the CAFO to revise its NMP if 
any of the design specifications, practices or other NMP provisions 
changed over time. For example, if the CAFO decided to land-apply 
manure on a field that was not included in the NMP, the CAFO would need 
to calculate rates of application in accordance with the protocols 
required by Sec.  122.42(e)(1)(viii) and revise the NMP to include the 
new field and the corresponding application rates. Because valid 
certification would require the CAFO to at all times be designed, 
constructed, operated, and maintained such that it meets the 
eligibility criteria to establish that the operation does not discharge 
or propose to discharge (see proposed Sec.  122.23(h)(4), discussed 
below), to maintain a valid certification, a CAFO should make the 
adjustments necessary to accommodate a change in circumstances, before 
the circumstances change. For example, if an increase in animals would 
cause the operation to exceed the existing storage capacity for 
precipitation, manure and process wastewater required for no discharge, 
to remain certified the CAFO would need to remedy the storage capacity 
problem prior to bringing the additional animals to the operation.
    EPA would encourage a CAFO preparing the documents necessary for 
the proposed certification to consult with a professional engineer and 
an NRCS-certified technical service provider (TSP) or other qualified 
nutrient management planner. Any professional consulted by the CAFO 
should have the requisite training, experience and expertise to conduct 
and/or substantively review the required analyses, and to advise the 
owner or operator as to whether the CAFO is, in fact, designed, 
constructed, operated, and maintained such that it will not discharge.
4. Submitting the Certification
    Under the proposed certification option, a CAFO seeking to certify 
that it does not discharge or propose to discharge would be required to 
submit the certification to the permitting authority. Under proposed 
Sec.  122.23(h)(3), the submission to the Director would include: (1) 
The CAFO owner or operator's name, address and phone number; (2) 
information regarding the CAFO's location, including latitude and 
longitude; (3) a description of the manner in which the CAFO satisfies 
the eligibility requirements of Sec.  122.23(h)(2); (4) the 
certification statement set forth in proposed Sec.  122.23(h)(3)(iv); 
and (5) an official signature that meets the signatory requirements of 
40 CFR 122.22. The signed certification would make the CAFO legally 
responsible for its representations to the Director regarding the 
design, construction, operation, and maintenance of the CAFO. The 
language regarding legal liability for making a false statement under 
the proposed option is consistent with language in 40 CFR 122.26(g) 
which applies to facilities seeking to obtain a ``no exposure'' 
exclusion for industrial storm water.
    Today's proposed rule would make no changes to the existing 
regulations concerning how CAFOs may make Confidential Business 
Information (CBI) claims with respect to information they must submit 
to the permitting authority and how those claims will be evaluated. A 
facility may make a claim of confidentiality under the existing 
regulations at 40 CFR part 2, subpart B.
    The third item the Agency is proposing for submission to the 
Director, as listed above, is a statement describing the manner in 
which the CAFO satisfies the certification eligibility criteria. EPA 
believes that, at a minimum, the description to be submitted to the 
Director should include: (1) The type and number of animals; (2) the 
type and capacity of manure and wastewater storage and/or containment; 
(3) storm size used as basis for containment design; (4) whether the 
CAFO consulted with a professional engineer or TSP; (5) identification 
of the documents maintained on site in accordance with the eligibility 
criteria; and (6) any technical standards, tools (e.g., RUSLE and 
Phosphorus Index) and formulas used to calculate application rates of 
manure, litter, and process wastewater. EPA seeks comment on whether 
this is the scope and type of information that should be submitted, as 
well as suggestions of other information that should be included in the 
eligibility description submitted for certification.
    The authority given to the permitting authority under section 308 
of the CWA to conduct inspections at point source operations would not 
be affected by this proposed rule. Therefore, any CAFO, whether it is 
certified, permitted, or neither, may be subject to an information 
gathering request or inspection, at the Director's discretion and for 
any of the reasons provided by section 308 of the Clean Water Act. 33 
U.S.C. 1318.
    Under the proposal, the certification would become effective upon 
submission to the Director. The proposed rule would require the use of 
certified mail or equivalent method of documentation for identifying 
the date of submission.
5. Limitations on Certification
    This proposed rule also includes several limitations on 
certification related to the term of a valid certification, reporting, 
and re-certification when a certification becomes invalid. EPA proposes 
that the certification would be valid for five years from the date of 
certification or would terminate when the CAFO has either discharged or 
ceases to be

[[Page 12327]]

designed, constructed, operated and maintained in accordance with the 
documentation supporting the certification (i.e., its production area 
design documentation and nutrient management plan), whichever is 
sooner. See proposed Sec.  122.23(h)(4). EPA is proposing that a valid 
certification would need to be renewed, if desired by the CAFO, every 
five years. This is the maximum statutory term of an NPDES permit. The 
permit renewal process provides the opportunity for operations of a 
permitted CAFO to be reviewed to ensure that they still meet the 
requirements of the Clean Water Act and for new conditions to be 
imposed as necessary. EPA believes that a five-year term for no 
discharge certifications will similarly prompt the CAFO to periodically 
reevaluate whether it is designed, constructed, operated, and 
maintained so as not to discharge and make adjustments to operations 
where necessary. EPA seeks comment on whether five years is an 
appropriate length of time for a no discharge certification.
    In the unlikely event of a discharge from a certified CAFO, the 
CAFO operator, although subject to liability for the discharge itself, 
would not be liable for a violation of the duty to apply in Sec.  
122.23(d), but the certification would cease to be valid. Similarly, 
should a CAFO fail to continue to meet any of the eligibility criteria, 
the CAFO's certification would no longer be valid. Circumstances that 
could result in the certification becoming invalid would include, for 
example, an increase in animals that exceeds the capacity of the 
production area for manure storage and handling, a loss of land 
application areas such that the assumptions in the NMP concerning land 
application would no longer be appropriate, and a discharge of 
pollutants to waters of the United States (other than discharges of 
agricultural stormwater from the land application area, which is exempt 
from permitting requirements).
    Once a certification ceased to be valid, the operator would not be 
able to rely on it if an enforcement action were brought for a 
subsequent violation of the duty to apply for a permit. In sum, a 
discharge by the CAFO or failure of a certified CAFO to continue to be 
designed, constructed, operated, and maintained in accordance with the 
eligibility criteria and certification statement would render the 
certification invalid and put the CAFO in the same position as any 
other unpermitted and uncertified CAFO.
    Failure to continue to meet the eligibility requirements for 
certification in proposed Sec.  122.23(h)(2) would not, in and of 
itself, be a violation of any regulatory requirement, since 
certification would be strictly voluntary. For example, failure to 
implement the measures set forth in Sec.  412.37(a)-(b), which would be 
required for no discharge certification eligibility under proposed 
Sec.  122.23(h)(2)(i), would not be a violation of Sec.  412.37(a)-(b) 
but would render the certification invalid.
    Under proposed Sec.  122.23(h)(5) a CAFO could withdraw its 
certification at anytime by notifying the Director, by certified mail 
or equivalent method of documentation, that it was withdrawing its 
certification. The certification would be withdrawn on the date the 
notification was submitted to the Director. If a CAFO certification 
becomes invalid, proposed Sec.  122.23(h)(5) would require the CAFO 
operator to withdraw its certification within three days of the date on 
which the CAFO's no discharge certification became invalid.
    The CAFO operator would not be required to notify the Director of 
the reason for withdrawing the certification, or even if it was 
withdrawn because some change in circumstances had rendered it invalid 
or merely because the operator no longer chooses to maintain it. For 
example, an operator might decide that particular recordkeeping 
requirements needed for certification were more burdensome than the 
certification was worth, and choose to withdraw the certification so as 
not to have to keep such records. While EPA believes it is important 
for permitting authorities to have an accurate and up-to-date record of 
which unpermitted CAFOs have a valid no discharge certification, and 
thus to require operators to withdraw any certification which ceases to 
be valid, EPA also wishes to emphasize that certification is strictly 
voluntary, and can be withdrawn by the operator without explanation at 
any time.
    If a certification is withdrawn because it ceases to be valid, the 
operator could seek to re-certify that the CAFO does not discharge or 
propose to discharge by revising its operations to address the 
deficiency and submitting a new certification statement. If the 
certification was rendered invalid by a discharge, under proposed Sec.  
122.23(h)(5), in order to re-certify, a CAFO would have to submit to 
the Director the information required under Sec.  122.23(h)(3) and 
additional information describing the discharge, including the time, 
date, cause, and approximate volume of the discharge, and the steps 
taken by the CAFO to permanently address the cause of the discharge, 
i.e., to ensure that no discharge from this cause occurs in the future. 
While review and approval of the technical basis for certification by 
the permitting authority is not generally required, EPA believes it is 
appropriate in situations where a certified CAFO has in fact discharged 
and still believes that it can certify that it does not discharge or 
propose to discharge, for the operator to provide sufficient 
information to assure the Director that the cause of the discharge has 
been adequately addressed to ensure that there will not be future such 
discharges. EPA would generally consider a recurring discharge as 
evidence that a CAFO is not eligible for certification or re-
certification and would need to seek permit coverage.
6. Additional Rationale
    As stated above, under the 2006 proposed revisions to 40 CFR 
122.23(d)(1), a CAFO that does not discharge or propose to discharge 
would not be subject to the duty to apply for an NPDES permit. However, 
as discussed in the preamble to the 2006 proposed rule, if an 
unpermitted CAFO discharges, the CAFO would be in violation of section 
301(a) of the CWA due to the unpermitted discharge and could be in 
violation of the duty to apply if the CAFO could have reasonably 
foreseen that the discharge would occur and did not seek permit 
coverage prior to discharge. A valid certification, however, would 
document the CAFO operator's basis for making an informed decision not 
to seek permit coverage because the CAFO does not discharge or propose 
to discharge, and would protect the CAFO from being held liable for not 
applying for the permit prior to discharge. In the unlikely event that 
a properly certified CAFO discharges, the CAFO would not be subject to 
liability for failure to seek permit coverage prior to discharge in 
violation of 40 CFR 122.23(d) and section 308 of the CWA. However, any 
discharge even from a properly certified CAFO would be an unpermitted 
discharge in violation of CWA section 301 subject to applicable 
injunctive relief and penalties.
    EPA believes that providing protection from liability for violation 
of 40 CFR 122.23(d) and section 308 for a properly certified CAFO is 
reasonable and justified. Certification would require a CAFO owner or 
operator to undertake and document a rigorous analysis of the 
operation's structure and design, and to be committed to operation and 
maintenance protocols designed to ensure no discharge. As stated above, 
certification is entirely voluntary for a CAFO that does not discharge 
or propose to discharge. EPA

[[Page 12328]]

believes that a CAFO owner or operator that would make the effort and 
take the steps needed to certify no discharge should be afforded 
protection from enforcement for failure to have applied for a permit 
prior to discharge if, in the future, there is an unanticipated 
discharge from the CAFO, so long as there has been no lapse in the 
CAFO's eligibility for certification. The operator of an unpermitted 
CAFO choosing not to make and document this certification in accordance 
with each element listed in 40 CFR 122.23(h)(2)-(3) would not receive 
the liability protection provided by a no discharge certification.
    Unlike the 2003 rule that required all CAFOs to seek permit 
coverage in order to operate unless they obtained a determination of 
``no potential to discharge,'' the certification provision proposed 
here would be entirely voluntary. The purpose of the certification 
would be to provide a mechanism by which a CAFO can document that it 
does not discharge or propose to discharge and be assured that even if 
the CAFO does discharge in the future, it would not face an enforcement 
action for failure to apply for a permit. The certification process 
would not, in and of itself, establish whether the CAFO must apply for 
a permit. As proposed in 2006, the requirement for a CAFO to apply for 
a permit would be triggered only when a CAFO discharges or proposes to 
discharge. 71 FR 37,784. The decision to seek permit coverage or no 
discharge certification would be made by the operator based on an 
objective assessment of conditions at the facility, in contrast to the 
2003 rule, which required the operator either to seek permit coverage 
or prove to the satisfaction of the Director that the CAFO had no 
potential to discharge. Therefore, under this proposed rule and Sec.  
122.23(d)(1), the operator would decide whether (1) to obtain permit 
coverage; (2) to certify under the provisions at 122.23(h); or (3) to 
operate without either a permit or certification. EPA notes that a CAFO 
that chooses to operate without a permit implicitly faces more 
stringent requirements than permitted CAFOs because discharges in any 
size storm event are prohibited from unpermitted CAFOs, while certain 
exceptions may be applicable to permitted 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.

B. Terms of the Nutrient Management Plan

    In this notice, the Agency is proposing a framework for identifying 
the terms of the nutrient management plan (NMP) that must be 
enforceable requirements of a CAFO's NPDES permit. The proposed 
framework includes three alternative approaches for specifying terms of 
the NMP with respect to rates of application, which are needed to 
satisfy the requirement that the NMP include ``protocols to land apply 
manure, litter or process wastewater * * * that ensure appropriate 
agricultural utilization of the nutrients.'' 40 CFR 122.42(e)(1)(viii). 
For Large CAFOs, these proposed alternatives would also satisfy the 
requirements set forth in 40 CFR 412.4. The proposed framework would 
include supplemental annual reporting requirements for permitted CAFOs 
to accompany these proposed alternative approaches. In addition, this 
supplemental proposal includes two revisions to the 2006 proposed rule 
with respect to changes to a CAFO's NMP, including revisions to the 
proposed conditions that would constitute substantial change to the 
terms of the NMP. This supplemental proposal seeks comment on the 
proposed framework for specifying terms of the NMP to be included in an 
NPDES permit, and on the proposals for changes to the NMP included in 
this notice. No NMP provisions promulgated in the 2003 final rule are 
affected or reopened by this supplemental proposal, nor is EPA 
reopening the comment period on the 2006 proposed rule.
1. Background
    As discussed in the June 2006 proposed rule, the Waterkeeper court 
held that the ``terms of the NMP'' are effluent limitations that must 
be included in the permit. Waterkeeper Alliance v. EPA, 399 F.3d 486, 
502 (2d Cir. 2005). In the preamble to the proposed rule, EPA discussed 
how the ``terms'' of a CAFO's NMP could be identified and included in 
the permit. As stated in the June 2006 proposed rule, the terms of the 
NMP would need to address the nine minimum required elements in 40 CFR 
122.42(e)(1)(i)-(ix) and 412.4(c) (for Large CAFOs, as applicable). 71 
FR 37753.
    The 2006 proposed rule preamble identified a number of factors that 
are necessary to the development of an NMP, including: The maximum 
amount of manure that the CAFO may apply to land application areas 
under its control; an inventory of the fields for land application and 
the associated acreage, soil types, soil tests and testing protocols; 
setbacks and other conservation measures; and 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. 71 FR 37755. The 
Agency also stated that the NMP should include 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 and could include likely alternative scenarios for other crops 
that could be planted. In the Agency's view, listing alternative 
cropping plans would allow a CAFO some flexibility in utilizing 
different combinations of crops and crop rotations for land 
application. However, the Agency added that the NMP should reasonably 
forecast the practices most likely to be utilized by the CAFO. In the 
proposed rule preamble, EPA solicited comment on the degree of 
flexibility that should be allowed in NMPs, particularly regarding the 
terms of the NMP included as permit conditions, and highlighted the 
advantages and disadvantages of allowing some flexibility to the CAFO 
operator. 71 FR 37753-55.
    With respect to portions of the NMP that would be incorporated as 
permit terms, the Agency also proposed regulatory language for 
accommodating changes to the NMP that involve changes to the terms 
during the permit period. The proposed rule identified changes to the 
terms of the NMP that would be considered substantial changes and those 
that would be considered nonsubstantial changes. The items listed as 
constituting a substantial change to the terms of the NMP included 
changes that could result in an increase in runoff of manure, litter, 
or process wastewater from the facility and changes that could result 
in 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. 71 FR 
37,756.
    EPA received many comments on the NMP issues highlighted in the 
proposed rule preamble. Commenters stressed the complexity associated 
with nutrient management planning, particularly with respect to land 
application, and the need to address changes in operation as well as 
changes due to circumstances beyond the CAFO's control arising during 
the permit term, especially where such changes would lead to different 
rates of application of manure, litter, and process wastewater. Many

[[Page 12329]]

commenters wanted clarification of the terms associated with land 
application, and a number of commenters suggested factors that should 
be included as terms of the NMP.
    In reviewing these comments, the Agency has determined that a 
provision specifically identifying the terms of the NMP required to be 
included in the permit would address a number of these concerns. In 
particular, the comments indicated a need to clarify what constitutes 
the terms of the NMP regarding rates of application, given the 
complexity of factors used to determine rates of application and the 
dynamics associated with such factors. This clarification would 
facilitate a common understanding of the terms of the NMP required in a 
CAFO's permit, and thereby reduce the likelihood of confusion and 
promote better awareness of what the permitting authority must do to 
ensure that the permit complies with the Clean Water Act and these 
regulations and of what a CAFO must do to comply with its permit. 
Moreover, specifically identifying the terms that must be included for 
each CAFO would enhance the public's ability to participate 
meaningfully in the development, revision, and enforcement of the terms 
of the NMP as called for by the Second Circuit in the Waterkeeper 
decision.
2. Supplemental Proposal for Terms of the NMP To Be Included in the 
Permit
    In light of these concerns, EPA is supplementing the June 2006 
proposed rule with a proposal to specify in the regulation what 
elements of the NMP would be terms of the NMP that would be required to 
be included as enforceable terms of a CAFO's NPDES permit. The rule 
would require that the terms of the NMP must include the information, 
protocols, best management practices, and other conditions identified 
in a CAFO's nutrient management plan and determined by the permitting 
authority to be necessary to meet the requirements of 40 CFR 
122.42(e)(1). For Large CAFOs subject to the land application 
requirements of the effluent limitations guideline, the terms would 
include the best management practices in 40 CFR 412.4(c) in addition to 
the requirements of part 122.
    The ``information, protocols, best management practices, and other 
conditions'' that would constitute the terms of the NMP would include 
what the CAFO operator would be required to do to properly implement 
its NMP and determinative conditions upon which such actions are based. 
For example, both the structural design capacity necessary to satisfy 
the storage requirement of Sec.  (e)(1)(i) and the associated 
operational and maintenance conditions necessary to ensure adequate 
storage, would be considered terms of the NMP. Likewise, the terms of 
the NMP would need to ensure, for example, proper management of 
mortalities and diversion of clean water. However, the number of 
animals confined would not necessarily need to be a term of the NMP 
because a CAFO operator would be required to properly operate and 
maintain the CAFO's storage facilities regardless of the number of 
animals or the volume of manure, litter, or process wastewater 
generated. On the other hand, the Director could, for example, include 
an upper limit on the number of animals as a term.
    For CAFOs that land apply manure, litter, and process wastewater, 
the fields the CAFO plans to use for land application would be a term 
of the NMP. Similarly, as discussed in greater detail below, field-
specific, crop-specific application rates would be terms of the NMP, as 
would certain factors needed to determine the rates. However, 
background information that is fixed and unchangeable, such as actual 
historic yields used in the development of an NMP, while important for 
determining rates of application, would not need to be terms of the 
NMP.
3. Rates of Application
    40 CFR 122.42(e)(1)(viii) requires the nutrient management plan to 
include ``protocols to land apply manure, litter or process wastewater 
in accordance with site specific nutrient management practices that 
ensure appropriate agricultural utilization of the nutrients in the 
manure, litter or process wastewater.'' As EPA noted in the June 2006 
proposed rule, the Waterkeeper court focused on rates of application as 
perhaps the most important term of the NMP, in particular the 
provisions of the effluent limitations guidelines in 40 CFR 412.4(c), 
and emphasized their site-specific nature. 71 FR 37753. In considering 
the elements of an NMP that should be identified as the minimum terms 
with respect to land application rates, in light of comments received 
on the 2006 proposed rule, two general principles emerged. First, rates 
of application depend on the information on which they are based, such 
as information about the field, crops, and nutrient content of the 
manure. Second, this information can change, and in order to address 
changing circumstances during the period of a permit (ordinarily five 
years), there is a need for some flexibility in establishing rates of 
application. The Agency proposes three alternative approaches, 
discussed below, which vary in the degree of flexibility with respect 
to expressing rates of application and factors to be included in the 
permit as terms of the NMP. However, all three approaches would ensure 
that legally-enforceable field- and crop-specific application rates are 
included in the permit.
    Rates of application are field-specific and are designed to ensure 
that crops receive sufficient nutrients to meet yield goals, while 
minimizing the amounts of nutrients that could be transported from the 
field. The total amount of plant available nutrients necessary to meet 
yield goals includes residual nutrients already in the field and the 
nutrients added for a particular crop. Residual nutrients are those in 
the soil or on the field remaining from prior applications of manure, 
litter, process wastewater, or chemical fertilizer, or from other 
sources such as crop residues and nitrogen fixing legumes. The addition 
of nutrients to a field includes application of chemical fertilizer, as 
well as application of manure, litter, or process wastewater.
    The NMP must consider the capacity of the field for manure, litter, 
or process wastewater application, generally depending on the capacity 
of the soil to retain phosphorus. State technical standards generally 
require the use of the phosphorus index or a similar tool for assessing 
the potential for nutrient transport from a field and for determining 
the limiting nutrient (phosphorus or nitrogen) for application of 
manure, litter, or process wastewater. The outcome of the assessment of 
the potential for phosphorus transport does not typically change from 
year to year. However, because soil phosphorus levels tend to change 
incrementally depending upon the buffering capacity of the soil, this 
assessment may limit the amount of phosphorus, and thus the amount of 
manure, litter, and process wastewater, that may be added to a field.
    Once the residual nutrients and potential for nutrient transport 
from the fields has been determined, the next step is to identify the 
crops to be planted, or other uses, for each field where land 
application will occur and the nitrogen and phosphorus needs of these 
crops or other uses. The NMP also must identify the realistic yield 
expected from the crop or crops planted in the field, in order to 
calculate the proper amount of nutrients to apply. A crop's nutrient 
needs are generally determined in accordance with the

[[Page 12330]]

nutrient recommendations for a given crop (or other planting, such as 
forage or pasture) and the per acre realistic yield goal for such crop, 
both of which are typically set by the State land grant university or 
based on equations provided by the land grant university. The realistic 
yield rate can also be based on historic field-specific yield data.
    Finally, the amount of manure, litter, or process wastewater, in 
tons or gallons, to be land applied in order to meet, but not exceed, 
crop nutrient needs (after considering residual nutrients and potential 
for nutrient transport from fields) depends on the nutrient content of 
the manure, litter, and process wastewater, as well as the source and 
form of nutrients to be land applied and the method and timing of land 
application. Whereas one CAFO operator may wish to follow the planned 
sequence of steps for planting crops and applying manure, litter, and 
process wastewater described in the NMP submitted to the Director, 
another operator may want or need to vary from that linear sequence of 
events, due to choices made in the course of normal operations, or in 
response to events or circumstances beyond the CAFO's control, such as 
weather, crop failure, or market conditions. EPA addressed these 
concerns in the preamble to the 2006 proposed rule, and stated that the 
proposed approach could accommodate such changes.
    In the proposed rule preamble discussion concerning changes to the 
terms of the nutrient management plan, EPA encouraged CAFO operators to 
develop NMPs that anticipate contingencies and changes in operations 
that may occur over the term of the permit. Such contingencies may 
include other potential crops that could be planted, or possible crop 
rotations or other alterations in cropping patterns with accompanying 
field-specific calculations for manure, litter, and process wastewater 
application rates based on realistic crop yield goals, soil 
characteristics, typical weather patterns, and other site-specific 
field conditions. The Agency noted that the public would then have the 
opportunity to review all anticipated operational scenarios and 
associated field-specific manure, litter, and process wastewater 
application rates, including the calculations on which these rates were 
based. The Agency viewed this approach as allowing an NMP to address 
most year-to-year changes in nutrient management practices anticipated 
during the period of permit coverage and greatly reduce the need for 
NMP and associated permit modifications, as the NMP would have already 
accounted for a range of potential operational scenarios.
    With respect to identifying annual rates of application as terms of 
the NMP, a number of commenters stated that it was unrealistic for EPA 
to expect all CAFOs to be able to establish rates of ap