[Federal Register: February 12, 2003 (Volume 68, Number 29)]
[Rules and Regulations]
[Page 7175-7274]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12fe03-8]
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Part II
Environmental Protection Agency
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40 CFR Parts 9, 122, 123, and 412
National Pollutant Discharge Elimination System Permit Regulation and
Effluent Limitation Guidelines and Standards for Concentrated Animal
Feeding Operations (CAFOs); Final Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 122, 123 and 412
[FRL-7424-7]
RIN 2040-AD19
National Pollutant Discharge Elimination System Permit Regulation
and Effluent Limitation Guidelines and Standards for Concentrated
Animal Feeding Operations (CAFOs)
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: Today's final rule revises and clarifies the Environmental
Protection Agency's (EPA) regulatory requirements for concentrated
animal feeding operations (CAFOs) under the Clean Water Act. This final
rule will ensure that CAFOs take appropriate actions to manage manure
effectively in order to protect the nation's water quality.
Despite substantial improvements in the nation's water quality
since the inception of the Clean Water Act, nearly 40 percent of the
Nation's assessed waters show impairments from a wide range of sources.
Improper management of manure from CAFOs is among the many contributors
to remaining water quality problems. Improperly managed manure has
caused serious acute and chronic water quality problems throughout the
United States.
Today's action strengthens the existing regulatory program for
CAFOs. The rule revises two sections of the Code of Federal Regulations
(CFR), the National Pollutant Discharge Elimination System (NPDES)
permitting requirements for CAFOs (Sec. 122) and the Effluent
Limitations Guidelines and Standards (ELGs) for CAFOs (Sec. 412).
The rule establishes a mandatory duty for all CAFOs to apply for an
NPDES permit and to develop and implement a nutrient management plan.
The effluent guidelines being finalized today establish performance
expectations for existing and new sources to ensure appropriate storage
of manure, as well as expectations for proper land application
practices at the CAFO. The required nutrient management plan would
identify the site-specific actions to be taken by the CAFO to ensure
proper and effective manure and wastewater management, including
compliance with the Effluent Limitation Guidelines. Both sections of
the rule also contain new regulatory requirements for dry-litter
chicken operations.
This improved regulatory program is also designed to support and
complement the array of voluntary and other programs implemented by the
United States Department of Agriculture (USDA), EPA and the States that
help the vast majority of smaller animal feeding operations not
addressed by this rule. This rule is an integral part of an overall
federal strategy to support a vibrant agriculture economy while at the
same time taking important steps to ensure that all animal feeding
operations manage their manure properly and protect water quality.
EPA believes that these regulations will substantially benefit
human health and the environment by assuring that an estimated 15,500
CAFOs effectively manage the 300 million tons of manure that they
produce annually. The rule also acknowledges the States' flexibility
and range of tools to assist small and medium-size AFOs.
DATES: These final regulations are effective on April 14, 2003.
ADDRESSES: The administrative record is available for inspection and
copying at the Water Docket, located at the EPA Docket Center (EPA/DC)
in the basement of the EPA West Building, Room B-102, at 1301
Constitution Ave., NW., Washington, DC. The administrative record is
also available via EPA Dockets (Edocket) at http://www.epa.gov/edocket
under Edocket number OW-2002-0025. The rule and key supporting
materials are also electronically available on the Internet at http://www.epa.gov/npdes/caforule
.
FOR FURTHER INFORMATION CONTACT: Gregory Beatty, U.S. EPA, Office of
Water, Office of Wastewater Management (4203M), 1200 Pennsylvania
Avenue NW., Washington, DC 20460, 202-564-0724, for information
pertaining to the NPDES Regulations (Part 122) or Paul Shriner, U.S.
EPA, Office of Water, Office of Science and Technology (4303T), 1200
Pennsylvania Avenue NW., Washington, DC 20460, 202-566-1076, for
information pertaining to the Effluent Guideline (Part 412).
SUPPLEMENTARY INFORMATION:
A. General Information
1. What entities are potentially regulated by this final rule?
2. How Can I Get Copies of This Document and Other Related
Information?
B. Under what legal authority is this final rule issued?
C. How is this preamble organized?
D. What is the Comment Response Document?
E. What other information is available to support this final rule?
I. Background Information
A. What is the context for this rule?
B. Why is EPA revising the existing effluent guidelines and
NPDES regulations for CAFOs?
C. What are the environmental and human health concerns
associated with improper management of manure and wastewater at
CAFOs?
1. How do the amounts of animal manure compare to human waste?
2. What are ``excess manure nutrients'' and why are they an
indication of environmental concern?
3. What pollutants are present in animal manure and wastewater?
4. How do these pollutants reach surface water?
5. How is water quality impaired by animal manure and
wastewater?
6. What ecological and human health impacts have been caused by
CAFO manure and wastewater?
D. What are the roles of the key entities involved in the final
rule?
1. CAFOs.
2. States.
3. EPA.
4. USDA.
5. Other stakeholders.
6. The public.
E. What principles have guided EPA's decisions embodied in this
rule?
F. What are the major elements of this final rule? Where do I
find the specific requirements?
1. NPDES Regulations for CAFOs.
2. Effluent Limitations Guidelines requirements for CAFOs.
II. What Events Have Led to This Rule?
A. The Clean Water Act
1. The National Pollutant Discharge Elimination System (NPDES)
permit program
2. Effluent limitations guidelines and standards
3. Effluent guidelines planning process--Section 304(m)
requirements
B. Existing Clean Water Act requirements applicable to CAFOs
1. Scope and requirements of the 1976 NPDES regulations for
CAFOs
2. Scope and requirements of the 1974 feedlot effluent
guidelines
C. USDA-EPA Unified National Strategy for Animal Feeding
Operations
III. How Was This Final Rule Developed?
A. Small Business Advocacy Review (SBAR) Panel
B. Proposed Rule
C. 2001 Notice of Data Availability
D. 2002 Notice of Data Availability
E. Public Comments
F. Public outreach
1. Pre-proposal activities
2. Post-proposal activities
IV. CAFO Roles and Responsibilities
A. Who is affected by this rule?
1. What is an AFO?
2. What is a CAFO?
3. What types of animals are covered by today's rule?
4. Is my AFO a CAFO if it discharges only during large storm
events?
5. How are land application discharges of manure and process
wastewaters at CAFOs covered by this rule?
6. How is EPA applying the Agricultural Storm Water Exemption
with respect to Land Application of CAFO Manure and Process
Wastewaters?
[[Page 7177]]
7. When and how is an AFO designated as a CAFO?
8. Can EPA designate an AFO as a CAFO where the State is the
permitting authority?
9. How can States use non-NPDES programs to prevent medium and
small operations from being defined or designated as CAFOs?
10. What CAFOs are new sources?
B. Who needs a permit and when?
1. Who needs to seek coverage under an NPDES permit?
2. How can a CAFO make a demonstration of no potential to
discharge?
3. When must CAFOs seek coverage under a NPDES permit?
4. What are the different types of permits?
5. How does a CAFO apply for a permit?
6. What are the minimum required elements of an NOI or
application for an individual permit?
C. What are the requirements and conditions in an NPDES permit?
1. What are the different types of effluent limitations that may
be in a CAFO permit?
2. Effluent limitations guidelines for Large CAFOs
3. What technology-based limitations apply to Small and Medium
CAFOs?
4. Will CAFOs be required to develop and implement a Nutrient
Management Plan?
5. Does EPA require nutrient management plans to be developed or
reviewed by a certified planner?
6. What are the special conditions applicable to all NPDES CAFO
permits?
7. Standard conditions applicable to all NPDES CAFO permits
D. What records and reports must be kept on-site or submitted?
V. States' Roles and Responsibilities
A. What are the key roles of the States?
B. Who will implement these new regulations?
C. When and how must a State revise its NPDES permit program?
D. When must States issue new CAFO NPDES permits?
E. What types of NPDES permits are appropriate for CAFOs?
F. What flexibility exists for States to use other programs to
support the achievement of the goals of this regulation?
VI. Public Role and Involvement
A. How can the public get involved in the revision and approval
of State NPDES Programs?
B. How can the public get involved if a State fails to implement
its CAFO NPDES permit program?
C. How can the public get involved in NPDES permitting of CAFOs?
D. What information about CAFOs is available to the public?
VII. Environmental Benefits of the Final Rule
A. Summary of the environmental benefits
B. What pollutants are present in manure and other CAFO wastes,
and how do they affect human health and the environment?
1. What pollutants are present in animal waste?
2. How do these pollutants reach surface waters?
3. How is water quality impaired by animal wastes?
4. What ecological and human health impacts have been caused by
CAFO wastes?
C. How will water quality and human health be improved by this
rule?
1. What reductions in pollutant discharges will result from this
rule?
2. Approach for determining the benefits of this rule
3. Benefits from improved surface water quality
4. Benefits from improved ground water quality
D. Other (non-water quality) environmental impacts and benefits
VIII. Costs and Economic Impacts
A. Costs of the final rule
1. Method for estimating the costs of this rule
2. Estimated annual costs of the final CAFO regulations
B. Economic Effects
1. Effects on the CAFO operation
2. Market analysis
C. Cost-Benefit and Cost-Effectiveness Analyses
1. Cost-Benefit Analysis
2. Cost-Effectiveness Analysis
IX. Coordination With Other Federal Programs
A. How does today's rule function in relation to other EPA
programs?
1. Water quality trading
2. Total Maximum Daily Load (TMDL)
3. Watershed permitting
4. Coastal Zone Act Reauthorization Amendments of 1990 (CZARA)
5. Clean Water Act section 319 Program
6. Source Water Protection Program
7. What is EPA's position regarding Environmental Management
Systems?
B. How is EPA coordinating with other federal agencies?
X. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
1. Background
2. Summary of Final Regulatory Flexibility Analysis
3. Compliance guide
4. Use of Alternative Definition
D. Unfunded Mandates Reform Act
1. Private costs
2. State Local and Tribal Government Costs
3. Funding and technical assistance available to CAFOs
4. Funding available to States
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
Appendix--Form 2B
A. General Information
1. What Entities Are Potentially Regulated by This Final Rule?
This final rule applies to new and existing animal feeding
operations (AFOs) that meet the definition of a concentrated animal
feeding operation (CAFO), or AFOs that are designated as CAFOs by the
permitting authority. CAFOs are defined by the Clean Water Act as point
sources for the purposes of the National Pollutant Discharge
Elimination System (NPDES) program. (33 U.S.C. 1362). The rule also
applies to States and Tribes with authorized NPDES Programs.
Table 1 lists the types of entities EPA is now aware could
potentially be regulated by this final rule. This table is not intended
to be exhaustive, but rather provides a guide for readers regarding
entities likely to be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility is regulated by this action, you should carefully examine
the definitions and other provisions of 40 CFR 122.23 and the
provisions of 40 CFR Part 412, including the applicability criteria at
40 CFR 412.1. If you have questions regarding the applicability of this
action to a particular entity, consult one of the persons listed in the
preceding For Further Information Contact section.
Table 1.--Entities Potentially Regulated by this Rule
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Examples of regulated North American industry Standard industrial
Category entities code (NAIC) classification code
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Federal, State, and Local
Government:
Industry................... ....................... See below................. See below
[[Page 7178]]
Operators of animal ..........................
production operations
that meet the
definition of a CAFO:
Beef cattle feedlots 112112.................... 0211
(including veal).
Beef cattle ranching 112111.................... 0212
and farming.
Hogs................ 11221..................... 0213
Sheep............... 1241, 11242............... 0214
General livestock, 11299..................... 0219
except dairy and
poultry.
Dairy farms......... 11212..................... 0241
Broilers, fryers, 11232..................... 0251
and roaster
chickens.
Chicken eggs........ 11231..................... 0252
Turkey and turkey 11233..................... 0253
eggs.
Poultry hatcheries.. 11234..................... 0254
Poultry and eggs.... 11239..................... 0259
Ducks............... 112390.................... 0259
Horses and other 11292..................... 0272
equines.
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2. How Can I Get Copies of This Document and Other Related Information?
a. Docket. EPA has established an official public docket for this
action under Docket ID No. W-00-27. The official public docket consists
of the documents specifically referenced in this action, any public
comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. The official public docket
is the collection of materials that is available for public viewing at
the Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room
B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket
Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Reading Room is (202) 566-1744, and the telephone number for the Water
Docket is (202) 566-2426.
b. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments,
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the docket facility identified in section
A.2.a. Once in the system, select ``search,'' then key in the
appropriate docket identification number (OW-2002-0025).
B. Under What Legal Authority Is This Final Rule Issued?
Today's final rule is issued under the authority of Sections 301,
304, 306, 307, 308, 402, and 501 of the Clean Water Act, 33 U.S.C.
1311, 1314, 1316, 1317, 1318, 1342, and 1361.
C. How Is This Preamble Organized?
Below is an outline for the preamble to the final rule. It is
written in a question-and-answer format that is designed to help the
reader understand the information in the rule. Each question is
followed by a concise answer, a brief summary of what was proposed, the
key comments that the Environmental Protection Agency (EPA) received on
the proposed rule, and the principal rationale for EPA's decision.
List of Acronyms
AFO--animal feeding operation
BAT--best available technology economically achievable
BCT--best conventional pollutant control technology
BOD--biochemical oxygen demand
BPJ--best professional judgment
BMP--best management practice
BPT--best practicable control technology currently available
CAFO--concentrated animal feeding operation
CFR--Code of Federal Regulations
CFU--colony forming units
CNMP--comprehensive nutrient management plan
CSREES--USDA's Cooperative State Research, Education, and Extension
Service
CWA--Clean Water Act
CZARA--Coastal Zone Act Reauthorization Amendments
ELG--effluent limitations guideline
EMS--environmental management system
EPA--Environmental Protection Agency
EQIP--Environmental Quality Incentives Program
FAPRI--Food and Agricultural Policy Research Institute
FR--Federal Register
ICR--Information Collection Request
NODA--Notice of Data Availability
NOI--notice of intent
NPDES--National Pollutant Discharge Elimination System
NRCS--USDA's Natural Resources Conservation Service
NRDC--Natural Resources Defense Council
NSPS--new source performance standards
NTTAA--National Technology Transfer and Advancement Act
NWPCAM--National Water Pollution Control Assessment Model
OMB--U.S. Office of Management and Budget
POTW--publicly owned treatment works
RFA--Regulatory Flexibility Act
SBA--U.S. Small Business Administration
SBAR (panel)--Small Business Advocacy Review Panel
SBREFA--Small Business Regulatory Enforcement Fairness Act
SRF--State Revolving Fund
TMDL--total maximum daily load
TSS--total suspended solids
UMRA--Unfunded Mandates Reform Act
USDA--United States Department of Agriculture
WWTP--wastewater treatment plant
D. What Is the Comment Response Document?
EPA received more than 11,000 comments on the proposed rule and on
the two supplemental Notices of Data
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Availability. EPA evaluated all the significant comments submitted and
prepared a Comment Response Document containing the Agency's responses
to those comments. The Comment Response Document complements and
supplements this preamble by providing more detailed explanations of
EPA's final actions. The Comment Response Document is available at the
Water Docket. See Section E below for additional information.
E. What Other Information Is Available to Support This Final Rule?
In addition to this preamble, today's final rule is supported by
extensive other information that is part of the administrative record,
such as the Comment Response Document, and the key supporting documents
listed below. These supporting documents and the administrative record
are available at the Water Docket and via e-Docket.
[sbull] ``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). Hereafter referred to as the Technical Development
Document, this document presents EPA's technical conclusions concerning
the rule. EPA describes, among other things, the data collection
activities in support of the rule, the wastewater treatment technology
options, wastewater characterization, and the estimated costs to the
industry.
[sbull] ``Economic Analysis of the Final Revisions to the National
Pollutant Discharge Elimination System Regulation and the Effluent
Guidelines for Concentrated Animal Feeding Operations'' (EPA 821-R-03-
002). Hereafter referred to as the Economic Analysis, this document
presents the methodology employed to assess economic impacts of the
final rule and the results of the analysis.
[sbull] ``Cost Methodology for the Final Revisions to the National
Pollutant Discharge Elimination System Regulation and the Effluent
Guidelines for Concentrated Animal Feeding Operations'' (EPA 821-R-03-
004). Hereafter referred to as the Cost Support Document, this document
presents the methodology employed to estimate costs that will be borne
by CAFOs to comply with the requirements of the final rule.
[sbull] ``Environmental and Economic Benefit Analysis of the Final
Revisions to the National Pollutant Discharge Elimination System
Regulation and the Effluent Guidelines for Concentrated Animal Feeding
Operations'' (EPA 821-R-03-003). Hereafter referred to as the Benefits
Analysis, this document presents the methodologies and results of
analyses used to assess environmental impacts of the final rule.
[sbull] ``Environmental Assessment of Proposed Revisions to the
National Pollutant Discharge Elimination System Regulation and the
Effluent Guidelines for Concentrated Animal Feeding Operations'' (EPA
821-R-01-002). Hereafter referred to as the Environmental Assessment,
this document illustrates the environmental impacts associated with
animal agriculture.
[sbull] ``Information Collection Request for Final Revisions to the
National Pollutant Discharge Elimination System Regulation and the
Effluent Limitations Guidelines for Concentrated Animal Feeding
Operations'' (EPA ICR No. 1989-02). Hereafter referred to as the ICR,
this document presents estimates of the labor and capital costs
associated with the recordkeeping and reporting requirements of the
final rule.
I. Background Information
A. What Is the Context for This Rule?
Nationally, there are an estimated 1.3 million farms with
livestock. About 238,000 of these farms are considered animal feeding
operations (AFOs)--agriculture enterprises where animals are kept and
raised in confinement. AFOs annually produce more than 500 million tons
of animal manure that, when improperly managed, can pose substantial
risks to the environment and public health. EPA and the United States
Department of Agriculture (USDA) are committed to a comprehensive
national approach to ensure that manure and wastewater from AFOs are
properly managed. EPA and USDA are relying on a comprehensive suite of
voluntary programs (e.g. technical assistance, training, funding, and
outreach) and regulatory programs to ensure that AFOs establish
appropriate site-specific comprehensive nutrient management plans
(CNMPs) that will protect the environment and public health. Today's
rule is a part of this suite of actions. It ensures that the largest of
these operations, CAFOs, are required to develop and implement a
nutrient management plan as a condition of an NPDES permit. The
requirement in this rule to develop and implement a nutrient management
plan can generally be fulfilled by developing and implementing a CNMP.
Congress passed the Clean Water Act to ``restore and maintain the
chemical, physical, and biological integrity of the nation's waters.''
(33 U.S.C. 1251(a)). The Clean Water Act establishes a comprehensive
program for protecting our Nation's waters. Among its core provisions,
the Act prohibits the discharge of pollutants from a point source to
waters of the United States except as authorized by an NPDES permit.
The Clean Water Act also requires EPA to establish national technology-
based effluent limitations guidelines and standards (ELGs) for
different categories of sources. Section 502 of the Clean Water Act
specifically defines the term ``point source'' to include CAFOs. In
1974 and 1976, EPA promulgated regulations that established ELGs for
large feedlots (CAFOs) and established permitting regulations for
CAFOs. Today's final rule revises the more than 25-year old
requirements that apply to CAFOs. This regulatory action, which applies
primarily to the largest CAFOs, is an important component of the
overall effort to ensure effective management of manure.
Focusing EPA's regulatory program on the largest operations, which
present the greatest potential risk to water quality, is consistent
with the Unified National Strategy for Animal Feeding Operations
jointly developed by EPA and USDA (USEPA/USDA, March 1999). The
Strategy specifies that the vast majority of operations that confine
animals are and will continue to be addressed through locally focused
voluntary programs. The Strategy defines a national objective for all
AFOs to develop CNMPs to minimize impacts on water quality and public
health from AFOs. The vast majority (estimated to be about 95%) of
these CNMPs will be developed under voluntary programs. The requirement
in today's rule that the largest of these operations develop and
implement a nutrient management plan is consistent with the objective
of the Strategy.
B. Why Is EPA Revising the Existing Effluent Guidelines and NPDES
Regulations for CAFOs?
Despite more than 25 years of regulation of CAFOs, reports of
discharge and runoff of manure and manure nutrients from these
operations persist. Although these conditions are in part due to
inadequate compliance with and enforcement of existing regulations, EPA
believes that the regulations themselves also need revision. The final
regulations being announced today will reduce discharges that impair
water quality by strengthening the permitting requirements and
performance standards for CAFOs. These changes are
[[Page 7180]]
expected to mitigate future water quality impairment and the associated
human health and ecological risks by reducing pollutant discharges from
facilities that confine a large number of animals in a single location.
EPA's revisions to the existing regulations also address the
changes that have occurred in the animal production industries in the
United States since the development of the existing regulations. The
continued trend toward fewer but larger operations, coupled with
greater emphasis on more intensive production methods and
specialization, is concentrating more manure nutrients and other animal
waste constituents within some geographic areas. These large operations
often do not have sufficient land to effectively use the manure as
fertilizer. Furthermore, there is limited land acreage near the CAFO to
effectively use the manure. This trend has coincided with increased
reports of large-scale discharges from CAFOs, as well as continued
runoff that is contributing to the significant increase in nutrients
and resulting impairment of many U.S. water bodies.
Finally, EPA's revisions to the existing regulations will make the
regulations more effective for the purpose of protecting or restoring
water quality. The revisions will also make the regulations easier to
understand and better clarify the conditions under which an AFO is a
CAFO and, therefore, subject to the regulatory requirements of today's
final regulations.
C. What Are the Environmental and Human Health Concerns Associated With
Improper Management of Manure and Wastewater at CAFOs?
This section provides a brief summary of the environmental and
human health concerns associated with the improper management of manure
and wastewater at CAFOs. It is intended to provide the necessary
context for discussions in subsequent sections of this preamble.
Information is provided on the amount of manure generated by animal
agriculture and the areas of the country where the amount of manure
generated by these operations is considered excess at the farm and
county levels as defined in analyses by USDA. This information is
critical to framing the action EPA is taking today. A detailed
discussion of the environmental and human health impacts is presented
in Section VII of this preamble, entitled Environmental Benefits of the
Final Rule.
Livestock and poultry manure, if not properly handled and managed
by the CAFO, can contribute pollutants to the environment and pose a
risk to human and ecological health. EPA's administrative record for
this final rule includes estimates of the amount of manure and excess
nutrients generated each year by CAFOs and provides information on the
types of pollutants known to be present in animal manure and
wastewater. The administrative record also documents the potential
environmental problems associated with CAFOs, based on States reporting
water quality impairment attributable to agricultural and animal
production, survey data that show human and ecological health risks
associated with these pollutants, and documented cases linking these
risks to the discharge and runoff of pollutants from livestock and
poultry facilities. More information is provided in the 2001 proposed
rule (66 FR 2972-2974 and 66 FR 2976-2984) and other support documents
referenced in the proposal and in the administrative record for this
final rule. The administrative record contains information on the
scientific and technical literature, as well as available survey and
monitoring data, to corroborate the Agency's findings.
1. How Do the Amounts of Animal Manure Compare to Human Waste?
USDA estimates that operations that confine livestock and poultry
animals generate about 500 million tons of manure annually (as
excreted). This compares to EPA estimates of about 150 million tons
(wet weight) of human sanitary waste produced annually in the United
States, assuming a U.S. population of 285 million and an average waste
generation of about 0.518 tons per person per year. By this estimate,
all confined animals generate 3 times more raw waste than is generated
by humans in the U.S. As a result of today's action, EPA is regulating
close to 60 percent of all manure generated by operations that confine
animals. Of the estimated amount of nutrients generated by these
operations that is in excess of cropland needs, EPA's regulation will
account for nearly 70 percent of manure generated by these operations.
2. What Are ``Excess Manure Nutrients'' and Why Are They an Indication
of Environmental Concern?
An analysis developed by USDA provides a means to consider the
potential environmental risk from confined livestock and poultry manure
based on the amount of ``excess'' manure nutrients generated by CAFOs.
USDA defines ``excess manure nutrients'' on a confined livestock farm
as manure nutrient production that exceeds the capacity of the crop to
assimilate the nutrients. USDA's analysis of 1997 Census of Agriculture
data indicates that a considerable portion of the manure nutrients
generated at larger animal production facilities exceeds the crop
nutrient needs, both at the farm and local county levels. Given
consolidation trends in the industry toward larger-sized operations
that tend to have less available land on which to spread manure, the
amount of excess manure nutrients being produced has been rising.
Among the principal reasons for the farm-level excess of nutrients
generated is inadequate land for utilizing manure. USDA data show that
the amount of nutrients, and the amount of excess nutrients, produced
by confined animal operations rose about 20 percent from 1982 to 1997.
During that same period, cropland and pastureland controlled by these
farms declined from an average of 3.6 acres in 1982 to 2.2 acres per
1,000 pounds live weight of animals in 1997. The combination of these
factors has contributed to an increase in the amount of excess
nutrients produced at these operations. Larger-sized operations with
1,000 or more animals exceeding 1,000 pounds accounted for the largest
share of excess nutrients in 1997. Roughly 60 percent of the nitrogen
and 70 percent of the phosphorus generated by these operations must be
transported off-site.
By sector, USDA estimates that operations that confine poultry
account for the majority of on-farm excess nitrogen and phosphorus.
Poultry operations account for nearly one-half of the total recoverable
nitrogen, but on-farm use is able to absorb less than 10 percent of
that amount. In 1997 poultry operations accounted for about two-thirds
of the total excess on-farm nitrogen. About half of the estimated on-
farm excess phosphorus was generated by poultry. This is attributable
to not only the limited land area for manure application but also the
generally higher nutrient content of poultry manure compared to the
manure of most other farm animals, as reported in the scientific
literature. Dairies and hog operations are the other dominant livestock
types shown to contribute to excess on-farm nutrients, particularly
phosphorus.
The regions of the United States that show the largest increase in
excess nutrients between 1982 and 1997 are the Southeast and the Mid-
Atlantic. The excess amounts are mostly the result of the number and
concentration of large poultry and hog operations in those regions.
These operations generate high nutrient concentrations and often have
the smallest land area per animal unit
[[Page 7181]]
for manure application in the United States.
USDA's analysis also indicates which counties have the potential
for excess manure nutrients defined as manure nutrients produced in a
county in excess of the assimilative capacity of crop and pastureland
in that county. (The analysis includes counties that have nutrient
levels that exceed the assimilative capacity for all of the crop and
pastureland in the county, as well as those counties where half of the
county's total nitrogen or phosphorus could be provided by manure from
confined animal operations.) The counties with potential excess manure
nitrogen totaled 165 counties across the United States in 1997; the
counties with potential excess manure phosphorus totaled 374 counties.
The areas of particular concern for potential county-level excess
manure nutrients are in North Carolina, Georgia, Alabama, Mississippi,
Arkansas, California, Maryland, Delaware, Pennsylvania, Virginia, and
Washington. If current trends in the livestock and poultry industry
continue, more manure will be produced in areas without the physical
capacity to agronomically use all the nutrients contained in that
manure.
USDA's analysis is reported in ``Confined Animal Production and
Manure Nutrients'' (Agriculture Information Bulletin 771) and also in
``Confined Animal Production Poses Manure Management Problems'' in the
September 2001 issue of USDA's Agricultural Outlook. Both are available
at USDA's Web site at http://www.ers.usda.gov/. Additional
documentation on how this analysis was conducted is in USDA's ``Manure
Nutrients Relative to the Capacity of Cropland and Pastureland to
Assimilate Nutrients: Spatial and Temporal Trends for the United
States,'' December 2000, available at http://www.nhq.nrcs.usda.gov/land/pubs/manntr.html.
These documents are also available in the
administrative record for today's final rule (i.e. docket number W-00-
27).
3. What Pollutants Are Present in Animal Manure and Wastewater?
Pollutants most commonly associated with animal waste include
nutrients (including ammonia), organic matter, solids, pathogens, and
odorous compounds. Animal waste can also be a source of salts and
various trace elements (including metals), as well as pesticides,
antibiotics, and hormones. These pollutants can be released into the
environment through discharge or runoff if manure and wastewater are
not properly handled and managed.
4. How Do These Pollutants Reach Surface Water?
Pollutants in animal waste and manure can enter the environment
through a number of pathways. These include surface runoff and erosion,
overflows from lagoons, spills and other dry-weather discharges,
leaching into soil and ground water, and volatilization of compounds
(e.g., ammonia) and subsequent redeposition on the landscape. As
documented in the administrative record, pollutants from animal manure
and wastewater can be released from an operation's animal confinement
area, treatment and storage lagoons, and manure stockpiles, and from
cropland where manure is often land-applied.
5. How Is Water Quality Impaired by Animal Manure and Wastewater?
Agricultural operations, including CAFOs, now account for a
significant share of the remaining water pollution problems in the
United States, as reported in the National Water Quality Inventory:
2000 Report (hereafter the ``2000 Inventory''). This report, prepared
every 2 years under Section 305(b) of the Clean Water Act, summarizes
States' reports of impairment to their water bodies and the suspected
sources of those impairments. A more comprehensive discussion of the
results of the 2000 Inventory is included in Section VII of this
preamble.
EPA's 2000 Inventory data indicate that the agricultural sector
including crop production, pasture and range grazing, concentrated and
confined animal feeding operations, and aquaculture is the leading
contributor of pollutants to identified water quality impairments in
the Nation's rivers and streams. This sector is also the leading
contributor in the nation's lakes, ponds, and reservoirs. Agriculture
is also identified as the fifth leading contributor to identified water
quality impairments in the nation's estuaries. The inventory does not
allow a comprehensive breakout of water quality impairments
attributable to CAFOs, but EPA's data show that water quality concerns
tend to be greatest in regions where crops are intensively cultivated
and where livestock operations are concentrated.
The leading pollutants impairing surface water quality in the
United States as identified in the 2000 survey data include nutrients,
pathogens, sediment/siltation, and oxygen depleting substances. These
pollutants can originate from a variety of sources, including the
animal production industry.
The 2000 Inventory provides a general indication of national
surface water quality. While concerns have sometimes been raised about
the comparability and consistency of these data across States, the
report highlights in a general way the magnitude of water quality
impairment from agriculture and the relative contribution compared to
other sources. Moreover, the findings of this report are consistent
with other reports and studies conducted by government and independent
researchers that identify CAFOs as an important contributor of surface
water pollution, as summarized in the administrative record for this
rulemaking.
6. What Ecological and Human Health Impacts Have Been Caused by CAFO
Manure and Wastewater?
Among the reported environmental problems associated with animal
manure are surface water (e.g., lakes, streams, rivers, and reservoirs)
and ground water quality degradation, adverse effects on estuarine
water quality and resources in coastal areas and effects on soil and
air quality. The scientific literature, which spans more than 30 years,
documents how this degradation can contribute to increased risk to
aquatic and wildlife ecosystems; an example is the large number of fish
kills in recent years. Human and livestock animal health can also be
affected by excessive nitrate levels in drinking water and exposure to
waterborne human pathogens and other pollutants in manure. The
administrative record provides more detailed information on the
scientific and technical research to support these findings.
Section VII of this document provides additional information
concerning the adverse impacts of pollutants associated with manure in
surface water. Both ecological and human health impacts are addressed.
D. What Are the Roles of the Key Entities Involved in the Final Rule?
EPA recognizes the role of many interested parties in the
development of and, ultimately, the successful implementation of this
final rule. To the greatest extent possible, EPA has attempted to
strike a reasonable balance among the many interests. A short summary
of their broad roles is provided below.
1. CAFOs
Entities that are defined or designated as CAFOs have clear and
binding legal obligations under this regulation. In general, all CAFOs
have a mandatory duty to apply for an NPDES permit and
[[Page 7182]]
must comply with the technology and water quality-based limitations in
the permit as defined by the permitting authority. Only CAFOs that have
successfully demonstrated no potential to discharge may avoid a permit.
Each permitted CAFO must also develop and implement a site-specific
nutrient management plan. EPA fully expects that a CNMP that is
properly developed and implemented, consistent with USDA guidance, will
satisfy the nutrient management requirements of this rule.
2. States
The States, including their environmental, agriculture, and
conservation agencies, have the key leadership role in implementing
programs to ensure that AFOs take the important steps needed to
implement sound management practices that protect water quality. State
regulatory agencies will play a central role in implementing today's
final rule while supporting the voluntary efforts of other State
programs and agencies.
3. EPA
EPA's statutory obligation is to establish national regulations
that protect and restore the chemical, physical, and biological
integrity of the Nation's waters. EPA has undertaken an extensive
outreach process to promote understanding of the science, policy, and
economic issues surrounding animal agriculture. The Agency will
continue to work effectively with the varied interest groups to ensure
effective implementation, compliance assistance, and enforcement of
these regulations.
4. USDA
USDA is EPA's partner in working collaboratively to ensure that
USDA's voluntary programs and EPA's regulatory programs complement each
other to support effective nutrient management by AFOs. EPA and USDA
will continue to coordinate the development and implementation of tools
to support agriculture, in ways that respect the different roles of the
two agencies.
5. Other Stakeholders
A host of other entities, such as research and educational
institutions, soil and water conservation districts, watershed groups,
and many others, can contribute to the use of sound agricultural
practices and protection of water quality. The private sector plays an
important role in ensuring that CAFOs have the tools and expertise
available to protect water quality while enhancing production and
remaining profitable. For example, the private sector in partnership
with educational institutions and other stakeholders can explore
innovative technologies for the management and utilization of animal
manure and provide the needed expertise to support development of
sound, site-specific, and technically based nutrient management plans.
6. The Public
The public has had, and continues to demonstrate, a keen interest
in many aspects of animal agriculture. This final rule establishes
obligations for CAFOs to protect water quality and affirms the public's
role and involvement throughout the regulatory program.
E. What Principles Have Guided EPA's Decisions Embodied in This Rule?
EPA has considered the implementation of the existing regulations
which are more than 25 years old, changes in the industry, the
extensive comments on the proposed rule and supplemental notices of
data availability, and countless studies, reports, and data in
developing this final rule. At the same time, EPA has tried to embody
some important principles throughout the final rule. The Agency strives
to ensure its rules are based on sound science and economics, promote
emerging technologies, and protect watersheds. In addition, the
following principles have guided this rulemaking:
Simplicity and Clarity
EPA has tried to make this final rule as simple and easy to
understand as possible. This rule provides a clear understanding of who
is covered and what they are expected to do.
Emphasis on Large CAFOs
This rule focuses on the operations that pose the greatest risk to
water quality. These operations are predominantly large CAFOs and some
smaller CAFOs that pose a high risk to water quality.
Flexibility for States
This rule establishes a strong and consistent national expectation
for CAFOs, yet provides flexibility for States to address site-specific
situations.
Sound Nutrient Management Planning
This rule embodies the goal of developing site-specific nutrient
management plans to ensure that animal manure is used consistent with
proper agriculture practices that protect water quality.
F. What Are the Major Elements of This Final Rule? Where Do I Find the
Specific Requirements?
This section provides a very brief summary of the major elements of
this final rule and a brief index on where each of the requirements is
located in the final regulations. The regulations for the NPDES permit
program are in Part 122 of Title 40 of the Code of Federal Regulations.
These NPDES regulations include requirements that apply to all point
sources, including CAFOs. The national effluent limitations guidelines
for CAFOs are in Part 412 of Title 40 of the Code of Federal
Regulations. This summary is not a replacement for the actual
regulations.
1. NPDES Regulations for CAFOs
Overall, this final rule maintains many of the basic features and
the overall structure of the 1976 NPDES regulations with some important
exceptions. First, all CAFOs have a mandatory duty to apply for an
NPDES permit, which removes the ambiguity of whether a facility needs
an NPDES permit, even if it discharges only in the event of a large
storm. In the event that a Large CAFO has no potential to discharge,
today's rule provides a process for the CAFO to make such a
demonstration in lieu of obtaining a permit. The second significant
change is that large poultry operations are covered, regardless of the
type of waste disposal system used or whether the litter is managed in
wet or dry form.
Third, under this final rule, all CAFOs covered by an NPDES permit
are required to develop and implement a nutrient management plan. The
plan would identify practices necessary to implement the ELG and any
other requirements in the permit and would include requirements to land
apply manure, litter, and process wastewater consistent with site
specific nutrient management practices that ensure appropriate
agricultural utilization of the nutrients.
2. Effluent Limitations Guidelines Requirements for CAFOs
a. Existing sources. The final ELGs published today will continue
to apply to only Large CAFOs, historically referred to as operations
with 1,000 or more animal units, although the requirements for existing
sources and new sources are different for certain animal sectors. In
the case of existing sources, the ELGs will continue to prohibit the
discharge of manure and other process wastewater pollutants, except for
allowing the discharge of process wastewater whenever rainfall
[[Page 7183]]
events cause an overflow from a facility designed, constructed, and
operated to contain all process wastewaters plus the runoff from a 25-
year, 24-hour rainfall event. In addition, the ELGs that require land
application at the CAFO must be at rates that minimize phosphorus and
nitrogen transport from the field to surface waters in compliance with
technical standards for nutrient management established by the
Director. The ELGs also establish certain best management practice
(BMP) requirements that apply to the production and land application
areas.
b. New sources. For new large beef and dairy operations, the ELGs
establish production area requirements that are the same as those for
existing sources. In the case of large swine, veal, and poultry
operations that are new sources, a new zero discharge standard is
established. The rule also clarifies that where waste management and
storage facilities are designed, constructed, operated and maintained
to contain all manure, litter and process wastewater, including the
runoff and direct precipitation from a 100-year, 24-hour rainfall
event, and is operated in accordance with certain other requirements,
this will satisfy the new standard. Land application requirements for
both groups are identical to those established for existing sources.
Table 1.1 provides an annotated summary of the key elements of
these final regulations as well as the specific regulatory citation for
each change. The chart is intended only to provide a summary and
roadmap to the regulations and is not a definitive description of all
regulatory requirements. Table 1.2 provides a summary of the time
frames for the implementation and complying with the requirements of
today's rulemaking.
Table 1.1.--Regulatory Summary
------------------------------------------------------------------------
Topic Regulatory cite (40 CFR)
------------------------------------------------------------------------
Definitions
------------------------------------------------------------------------
Animal Feeding Operation (AFO)........... 122.23(b)(1)
Concentrated Animal Feeding Operation 122.23(b)(2)
(CAFO).
Production Area.......................... 122.23(b)(8)/412.2(h)
Land Application Area.................... 122.23(b)(3)/412.2(e)
Large CAFOs.............................. 122.23(b)(4)
Manure................................... 122.23(b)(5)
Medium CAFOs............................. 122.23(b)(6)
Process Wastewater....................... 122.23(b)(7)/412.2(d)
Overflow................................. 412.2(g)
10-year, 24-hour and 25-year, 24-hour 412.2(i)
storm.
Setback.................................. 412.4(b)(1)
Vegetated buffer......................... 412.4(b)(2)
Multi-year phosphorus application........ 412.4(b)(3)
------------------------------------------
Who Needs an NPDES Permit?
------------------------------------------------------------------------
Designated CAFOs......................... 122.23(c)
Duty to apply............................ 122.23(d)
Land application discharges from a CAFO 122.23(e)
are subject to NPDES requirements.
No Potential to Discharge determinations. 122.23(f)
------------------------------------------
When Must CAFOs Apply for Coverage Under an NPDES Permit?
------------------------------------------------------------------------
Sources covered under prior regulations.. 122.23(g)(1)
Newly covered CAFOs...................... 122.23(g)(2)
New sources and new dischargers.......... 122.23(g)(3) and (4)
Designated CAFOs......................... 122.23(g)(5)
------------------------------------------
How Do CAFOs Apply for an NPDES Permit?
------------------------------------------------------------------------
Permit application requirements-- 122.21(i)(1) and
Individual or general permits. 122.28(b)(2)(ii)
------------------------------------------
What Is Required in NPDES Permits Issued to CAFOs?
------------------------------------------------------------------------
Effluent limitations..................... 122.42(e)(1)
Requirements for CAFOs subject to the
ELGs (Part 412):
Subpart C--Dairy and Beef Cattle 412.30
Other Than Veal.
Subpart C--Dairy and Beef Cattle 412.31
Other Than Veal: Effluent
limitations attainable by the
application of the best practicable
control technology currently
available (BPT).
Subpart C--Dairy and Beef Cattle 412.32
Other Than Veal: Effluent
limitations attainable by the
application of the best control
technology for conventional
pollutants (BCT).
Subpart C--Dairy and Beef Cattle 412.33
Other Than Veal: Effluent
limitations attainable by the
application of the best available
control technology economically
achievable (BAT).
Subpart C--Dairy and Beef Cattle 412.35
Other Than Veal: New source
performance standards (NSPS).
Subpart D--Swine, Poultry, and Veal.. 412.40
Subpart D--Swine, Poultry, and Veal: 412.43
Effluent limitations attainable by
the application of the best
practicable control technology
currently available (BPT).
Subpart D--Swine, Poultry, and Veal: 412.44
Effluent limitations attainable by
the application of the best control
technology for conventional
pollutants (BCT).
[[Page 7184]]
Subpart D--Swine, Poultry, and Veal: 412.45
Effluent limitations attainable by
the application of the best
available control technology
economically achievable (BAT).
Subpart D--Swine, Poultry, and Veal 412.46
New source performance standards
(NSPS).
Subparts C and D--Required Land 412.4(c)
Application Best Management
Practices.
Subparts C and D--Inspection and 412.37 and 412.47
Record Keeping Requirements.
Additional NPDES CAFO permit
requirements:
Nutrient management plan development 122.42(e)(1)
and Implementation.
Record-keeping....................... 122.42(e)(2)
Transfer of manure................... 122.42(e)(3)
Annual reporting requirement......... 122.42(e)(4)
------------------------------------------------------------------------
Table 1.2.--Consolidated Time Line for Implementing Today's Rulemaking
------------------------------------------------------------------------
Time Frame
------------------------------------------------------------------------
Milestone:
Effective date of regulation....... April 14, 2003.
Effective date of Effluent June 12, 2003.
Guideline requirements for the
production area applicable to
Large CAFOs.
Effective date of Effluent By December 31, 2006.
Guideline requirements for the
land application area applicable
to Large CAFOs.
Effective date for all CAFOs to By December 31, 2006, except
develop and implement nutrient for Large CAFOs that are new
management plans. sources, by date of commencing
operations.
Duty to Apply:
Operations defined as CAFOs prior Must have applied by the date
to April 14, 2003. required in 40 CFR 122.21(c).
Operations defined as CAFOs as of As specified by the permitting
April 14, 2003, and that were not authority, but no later than
defined as CAFOs prior to that April 13, 2006.
date.
Operations that become defined as (a) Newly constructed
CAFOs after April 14, 2003, but operations: 180 days prior to
which are not new sources. the time the CAFO commences
operation. (b) Other
operations (e.g., increase in
number of animals): As soon as
possible but no later than 90
days after becoming defined as
a CAFO, except that, if the
operational change that causes
the operation to be defined as
a CAFO would not have caused
it to be defined as a CAFO
prior to April 13, 2003, the
operation must apply no later
than April 13, 2006 or 90 days
after becoming defined as a
CAFO, whichever is later.
New sources........................ 180 days prior to the time the
CAFO commences operation.
Designated CAFOs................... 90 days after receiving notice
of designation.
State Program Revision:
No statutory changes needed to April 12, 2004.
revise NPDES Program.
Statutory changes needed to revise April 13, 2005.
NPDES Program.
------------------------------------------------------------------------
II. What Events Have Led to This Rule?
The revisions to the National Pollutant Discharge Elimination
System (NPDES) and Effluent Limitation Guidelines Programs specified in
this final rule are focused on those livestock and poultry operations
that are defined or designated as CAFOs. CAFOs are defined as point
sources under the Clean Water Act. Following is a brief historical
context of key regulatory, legal, and policy actions which have
collectively led to today's action.
A. The Clean Water Act
Congress passed the Clean Water Act to ``restore and maintain the
chemical, physical, and biological integrity of the Nation's waters.''
(33 U.S.C. 1251(a)). The Clean Water Act establishes a comprehensive
program for protecting and restoring our Nation's waters. Among its
core provisions, the Clean Water Act prohibits the discharge of
pollutants from a point source to waters of the United States except as
authorized by an NPDES permit. The Clean Water Act establishes the
NPDES permit program to authorize and regulate the discharges of
pollutants to waters of the United States. EPA has issued comprehensive
regulations that implement the NPDES program at 40 CFR part 122. The
Clean Water Act also provides for the development of technology-based
and water quality-based effluent limitations that are implemented
through NPDES permits to control discharges of pollutants.
1. The National Pollutant Discharge Elimination System (NPDES) Permit
Program
Under the NPDES permit program, all point sources that discharge
pollutants to waters of the United States must apply for an NPDES
permit and may discharge pollutants only in compliance with the terms
of that permit. Such permits must include any nationally established,
technology-based effluent discharge limitations (effluent guidelines--
discussed below, in subsection II.A.2). In the absence of an applicable
national effluent guideline, NPDES permit writers may establish
technology-based requirements as determined by the permitting authority
on a case-by-case basis, based on their ``best professional judgment''
(BPJ). Water quality-based effluent requirements are also included in
permits where technology-based requirements are not sufficient to
ensure compliance with State water quality standards or where required
to implement a Total Maximum Daily Load (TMDL). For information on
TMDLs see section IX.A.2 of this preamble.
Technology- and water quality-based requirements may be in the form
of
[[Page 7185]]
numeric effluent limitations or in the form of specific BMPs or other
non-numeric effluent limitations and standards. In addition, NPDES
permits normally include reporting, record-keeping, and other
requirements and standard conditions (conditions that apply to all
NPDES permits, such as the duty to properly operate and maintain
equipment and treatment systems).
NPDES permits may be issued by EPA or a State, Territory, or Tribe
authorized by EPA to implement the NPDES program. Currently, 45 States
and the Virgin Islands are authorized to administer the NPDES program.
This means that most CAFOs will obtain NPDES permits from State
governments, not from EPA. Alaska, Arizona, the District of Columbia,
Idaho, Massachusetts, New Hampshire, New Mexico, and Puerto Rico and
other territories are not currently authorized to implement the NPDES
program. In addition, Oklahoma, although authorized to administer the
NPDES program, does not have CAFO regulatory authority. No Tribe is
currently authorized to implement the NPDES program. This means that
CAFOs located in the above-named jurisdictions or in Indian Country
will obtain their NPDES permits from EPA.
An NPDES permit may be either an individual permit tailored for a
single facility or a general permit applicable to multiple facilities.
Before an individual permit is issued, the owner or operator must
submit a permit application with facility-specific information to the
permitting authority, which reviews the information and prepares a
draft permit. The permitting authority prepares a fact sheet explaining
the draft permit and publishes the draft permit and fact sheet for
public review and comment. Following the permitting authority's
consideration of public comments, a final permit is issued. Specific
procedural requirements apply to the modification, revocation and
reissuance, and termination of an NPDES permit. NPDES permits are
subject to a maximum 5-year term and may be renewed when their term
expires.
General NPDES permits are available to address categories of
discharges that involve similar operations with similar wastes. Once a
general permit is drafted, it is published for public review and
comment accompanied by a fact sheet that explains the permit. Following
EPA's or the State permitting authority's consideration of public
comments, a final general permit is issued. The general permit
specifies the type or category of facilities that may obtain coverage
under the permit. To gain permit coverage, facilities generally must
submit a ``notice of intent'' (NOI) to be covered under the general
permit. Both general permits and individual permits are used to
implement the same pollution control standards.
2. Effluent Limitations Guidelines and Standards
Effluent limitations guidelines and standards (``effluent
guidelines'' or ``ELGs'') are national regulations that establish
limitations on the discharge of pollutants by industrial category and
subcategory. For each category and subcategory guidelines address three
classes of pollutants: (1) Conventional pollutants (i.e., total
suspended solids (TSS), oil and grease, biochemical oxygen demand
(BOD), fecal coliform bacteria, and pH); (2) toxic pollutants (e.g.,
toxic metals such as lead and zinc; toxic organic pollutants such as
benzene); and (3) non-conventional pollutants (e.g., phosphorus). These
technology-based requirements are subsequently incorporated into NPDES
permits. The Clean Water Act provides that effluent guidelines may
include numeric or non-numeric limitations. Non-numeric limitations are
usually in the form of BMPs. The effluent guidelines are based on the
degree of control that can be achieved using various levels of
pollution control technology, as outlined below.
a. Best Practicable Control Technology Currently Available (BPT) --
Section 304(b)(1) of the Clean Water Act. In the guidelines for an
industry category, EPA defines BPT effluent limits for conventional,
toxic, and non-conventional pollutants. Traditionally, EPA establishes
BPT effluent limitations based on the average of the best performances
of facilities within the industry of various ages, sizes, processes or
other common characteristics. Where existing performance is uniformly
inadequate, EPA may require higher levels of control than those
currently in place in an industrial category if the Agency determines
that the technology can be practically applied. In specifying BPT, EPA
looks at a number of factors. EPA first considers the cost of achieving
effluent reductions in relation to the effluent reduction benefits. The
Agency also considers the age of the equipment and facilities, the
processes employed and any required process changes, engineering
aspects of the control technologies, non-water quality environmental
impacts (including energy requirements), and such other factors as the
Agency deems appropriate (33 U.S.C. 304(b)(1)(B)).
b. Best Available Technology Economically Achievable (BAT)--Section
304(b)(2) of the Clean Water Act. In general, BAT represents the best
existing economically achievable performance of direct discharging
facilities in the industrial category or subcategory. The factors
considered in assessing BAT are the cost of achieving BAT effluent
reductions, the age of equipment and facilities involved, the processes
employed, engineering aspects of the control technology, potential
process changes, non-water quality environmental impacts (including
energy requirements), and such factors as the Administrator deems
appropriate. The Agency retains considerable discretion in assigning
the weight to be accorded to these factors. An additional statutory
factor considered in setting BAT is economic achievability. Generally,
the achievability is determined on the basis of the total cost to the
industrial subcategory and the overall effect of the rule on the
industry's financial health. BAT requirements may be based on effluent
reductions attainable through changes in a facility's processes and
operations. As with BPT, where existing performance is uniformly
inadequate, BAT may be based on technology transferred from a different
subcategory within an industry or from another industrial category. BAT
may be based on process changes or internal controls, even when these
technologies are not common industry practice.
c. Best Conventional Pollutant Control Technology (BCT)--Section
304(b)(4) of the Clean Water Act. The 1977 amendments to the Clean
Water Act required EPA to identify effluent reduction levels for
conventional pollutants associated with BCT technology for discharges
from existing industrial point sources. In addition to other factors
specified in Section 304(b)(4)(B), the Clean Water Act requires that
EPA establish BCT requirements after considering a two-part ``cost-
reasonableness'' test. EPA explained its methodology for the
development of BCT limitations in July 1986 (51 FR 24974). Section
304(a)(4) designates the following as conventional pollutants: BOD,
TSS, fecal coliform bacteria, pH, and any additional pollutants defined
by the Administrator as conventional. The Administrator designated oil
and grease as an additional conventional pollutant on July 30, 1979 (44
FR 44501).
d. New Source Performance Standards (NSPS)--Section 306 of the
Clean Water Act. New Source Performance Standards (NSPS) reflect
effluent reductions that are achievable based on the best available
demonstrated control technology. New facilities have the opportunity to
install
[[Page 7186]]
the best and most efficient production processes and wastewater
treatment technologies. As a result, NSPS represents the greatest
degree of effluent reduction attainable through the application of the
best available demonstrated control technology for all pollutants
(conventional, non-conventional, and priority pollutants). In
establishing NSPS, EPA is directed by the Clean Water Act to take into
consideration the cost of achieving the effluent reduction and any non-
water quality environmental impacts and energy requirements.
3. Effluent Guidelines Planning Process--Section 304(m) Requirements
Section 304(m) of the Clean Water Act, added by the Water Quality
Act of 1987, requires EPA to establish schedules for (1) reviewing and
revising existing effluent limitations guidelines and standards and (2)
promulgating new effluent guidelines. On May 28, 1998, EPA published a
Notice of Proposed Effluent Guidelines Plan (63 FR 102) that
established schedules for developing new and revised effluent
guidelines for several industry categories. One of the industries for
which the Agency established a schedule was ``Feedlots'' (swine,
poultry, dairy and beef cattle).
a. Clean Water Act Section 304(m) consent decree. The Natural
Resources Defense Council (NRDC) and Public Citizen, Inc. filed suit
against the Agency, alleging violation of section 304(m) and other
statutory authorities that require promulgation of effluent guidelines
(NRDC et al. v. Whitman, Civ. No. 89-2980 (D.D.C.)). Under the terms of
the consent decree in that case, as amended, EPA agreed, among other
things, to propose effluent guidelines for swine, poultry, beef and
dairy portions of the animal industry by December 15, 2000, and to take
final action by December 15, 2002.
B. Existing Clean Water Act Requirements Applicable to CAFOs
EPA's regulation of CAFOs dates to the 1970s. The existing NPDES
CAFO regulations were issued on March 18, 1976 (41 FR 11458). The
existing national effluent limitations guidelines and standards for
feedlots were issued on February 14, 1974 (39 FR 5704). The discussion
below provides an overview of the scope and requirements imposed under
the existing NPDES CAFO regulations and feedlot effluent guidelines. It
also explains the relationship of these two regulations, and it briefly
summarizes other federal and State regulations that potentially affect
AFOs.
1. Scope and Requirements of the 1976 NPDES Regulations for CAFOs
This section provides a simplified summary of the previous NPDES
regulation to provide context for today's action. The previous NPDES
CAFO regulations promulgated in 1976, determined which AFOs were
defined or could be designated as CAFOs under the Clean Water Act and
therefore subject to NPDES permit regulations. Under those regulations,
CAFOs were defined as AFOs that confined more than 1,000 animal units
(AU). In addition, an AFO that confined 300 to 1,000 AU was defined as
a CAFO if it discharged pollutants through a man-made device or if
pollutants were discharged to waters of the United States that ran
through the facility or otherwise came into contact with the confined
animals. AFOs were not defined as CAFOs, however, if they discharged
only during a 25-year, 24-hour storm. Under the 1976 NPDES CAFO
regulations, the permitting authority could also designate any AFO a
CAFO, including those with fewer than 300 AU, if it met the discharge
criteria specified above and was determined to be a significant
contributor of pollution.
2. Scope and Requirements of the 1974 Feedlot Effluent Guidelines
This section provides a simplified summary of the previous effluent
guidelines to provide context for today's action. EPA uses the effluent
guidelines to establish national requirements limiting discharges to
waters of the United States. EPA established the effluent guidelines
for feedlots in 1974 based on the best available technology that was
economically achievable for the industry. The guidelines were
applicable to those facilities in specified sectors (or subcategories)
with as many as or more than 1,000 AU that were to be issued an NPDES
permit. The 1974 effluent guidelines did not allow discharges of
pollutants from CAFOs into the Nation's waters except when a chronic or
catastrophic storm caused an overflow from a facility that had been
designed, constructed, and operated to contain manure, process
wastewater and runoff resulting from a 25-year, 24-hour storm. For
permitted facilities where the ELGs did not apply (those with fewer
than 1,000 AU), technology-based discharge limits were established
using the permit writer's best professional judgment.
C. USDA-EPA Unified National Strategy for Animal Feeding Operations
In 1998, EPA and USDA jointly developed a unified national strategy
to minimize the water quality and public health impacts of AFOs. EPA
and USDA jointly published a draft Unified National Strategy for Animal
Feeding Operations on September 21, 1998. After sponsoring and
participating in 11 public listening sessions and considering public
comments on the draft strategy, a final Unified National Strategy for
Animal Feeding Operations was published on March 9, 1999. A copy of the
Strategy is available on the EPA and USDA web sites. The Unified
National Strategy for Animal Feeding Operations established national
goals and performance expectations for all AFOs. The general goal is
for AFO owners and operators to take actions to minimize water
pollution from confinement facilities and land where manure is applied.
To accomplish this goal, the Strategy established a national
performance expectation that all AFOs should develop and implement
technically sound, economically feasible, and site-specific CNMPs to
minimize impacts on water quality and public health.
The Unified National Strategy for Animal Feeding Operations
identified seven strategic issues that should be addressed to better
resolve concerns associated with AFOs. These are (1) fostering CNMP
development and implementation; (2) accelerating voluntary, incentive-
based programs; (3) implementing and improving the existing regulatory
program; (4) coordinating research, technical innovation, compliance
assistance, and technology transfer; (5) encouraging industry
leadership; (6) increasing data coordination; and (7) establishing
better performance measures and greater accountability. Today's action
addresses the third strategic issue-- implementing and improving the
existing regulatory program.
III. How Was This Final Rule Developed?
The preamble to the proposed rule presented a detailed discussion
of the history of EPA actions addressing CAFOs, including issuance of
the original NPDES CAFO regulations and effluent limitations guidelines
(ELGs) for feedlots, development of the EPA/State Feedlot Workgroup
Report (1993), outreach dialogues with representatives of the pork
industry and poultry industry, EPA AFO strategy development, and
collaboration with USDA on the development of the
[[Page 7187]]
Unified National Strategy for Animal Feeding Operations (66 FR 2965).
The discussion below briefly summarizes the key events that have been
part of the process of preparing today's final rule.
A. Small Business Advocacy Review (SBAR) Panel
To address small business concerns, EPA's Small Business Advocacy
Chairperson convened a Small Business Advocacy Review (SBAR) Panel
under section 609(b) of the Regulatory Flexibility Act (RFA) as amended
by the Small Business Regulatory Enforcement Fairness Act (SBREFA).
Participants included representatives of EPA, the Small Business
Administration (SBA) and the Office of Management and Budget (OMB).
``Small Entity Representatives'' (SERs), who advised the Panel,
included small business livestock and poultry producers as well as
representatives of the major commodity and agricultural trade
associations. Information on the Panel's proceedings and
recommendations is in the April 7, 2000, Final Report of the Small
Business Advocacy Review Panel on EPA's Planned Proposed Rule on
National Pollutant Discharge Elimination System (NPDES) and Effluent
Limitations Guideline (Effluent Guidelines) Regulations for
Concentrated Animal Feeding Operations (hereinafter called the ``Panel
Report''), along with other supporting documentation included as part
of the Panel process. The Panel Report details the process that EPA
followed, provides meeting summaries, and offers other information,
including the composition of both the panel and the SERs.
The report also includes the Panel's recommendations on specific
issues concerning the NPDES CAFO regulation and ELGs. Key panel
recommendations were to: streamline reporting requirements; minimize
burden of any required certifications and testing requirements; and
carefully weigh the costs and benefits of removing the 25-year, 24-hour
storm exemption for operations with less than 1,000 animal units and of
modifying the specific criteria for defining medium-sized AFOs as
CAFOs. The entire SBAR report is available in the administrative record
for this rulemaking, which is available for public review.
B. Proposed Rule
On January 12, 2001, EPA published a proposal to revise and update
two regulations to ensure that manure, wastewater, and other process
waters generated by CAFOs do not impair water quality (66 FR 2959).
These two regulations were (1) the NPDES provisions that define which
operations are CAFOs and establish permit requirements and (2) the
ELGs, or effluent guidelines, for feedlots (beef, dairy, swine and
poultry subcategories), which establish the technology-based effluent
discharge standards for CAFOs. Key proposed changes that would affect
the CAFO definition included options for establishing either two or
three size categories of CAFOs, the thresholds for different size
operations defined as CAFOs, criteria applicable to medium operations,
inclusion of dry chicken operations that meet specified size
thresholds, and potential revisions to the designation criteria and
process. In addition, the proposed rule also presented options for co-
permitting entities that exercise substantial operational control over
a CAFO, ensuring appropriate public participation in permitting, and
encouraging proper management of excess manure that is transferred off-
site. Key proposed changes to the ELGs for feedlots included updating
the guidelines based on current practices and technologies, the
increased use of BMPs, and application of technology options to both
the CAFO production area and the land application area (including
nutrient management planning).
C. 2001 Notice of Data Availability
On November 21, 2001, EPA published a Notice of Data Availability
(hereinafter referred to as the ``2001 Notice'') that presented a
summary of new data and information submitted to EPA during the public
comment period on the proposed CAFO regulations, including data
received from USDA (66 FR 58556). The notice had four main components:
(1) Discussion of new data and changes EPA was considering to refine
its cost and economics model; (2) discussion of new data and changes
EPA was considering to refine its nutrient loading and benefits
analysis; (3) new data and changes EPA was considering to the proposed
NPDES permit program regulations; and (4) new data and changes EPA was
considering to the proposed ELG regulations. EPA's 2001 Notice also
discussed options that the Agency was considering to enhance
flexibility for the use of State NPDES and non-NPDES CAFO programs,
including implementation of environmental management systems (EMS).
D. 2002 Notice of Data Availability
On July 23, 2002, EPA published a second Notice of Data
Availability (hereinafter referred to as the ``2002 Notice'') that
presented a summary of new data and information submitted to EPA during
the public comment period on the proposed CAFO regulations, including
data received after publication of the 2001 Notice. The 2002 Notice had
three main components: (1) A discussion of alternative regulatory
thresholds for chicken operations using dry litter management
practices; (2) the potential creation of alternative performance
standards to encourage CAFOs to implement new technologies; and (3)
financial data and changes EPA was considering to refine its economic
analysis models. The 2002 Notice made these data and potential changes
available for public review and comment.
E. Public Comments
A general summary of public comments is included in the discussions
of the various issues addressed in this preamble. EPA has prepared a
Comment Response Document that includes responses to comments submitted
for the proposed rule and both notices. All of the comments including
supporting documents submitted on today's action are available for
public review in the administrative record for this final rule which is
filed under docket number W-00-27.
The proposed regulations were published in the Federal Register on
January 12, 2001 (66 FR 2959), and the comment period closed on July
30, 2001. EPA received approximately 11,000 comments in total on the
proposed rule. EPA received comments from a multitude of sources,
including private citizens, facility owners and operators,
environmental groups, local and State agencies, members of the academic
community, banks and insurance companies, congressional
representatives, and representatives (including trade associations)
from each of the animal sectors (beef, dairy, swine, poultry, horses,
ducks, turkey, and others). The comments are addressed in the Comment
Response Document prepared by EPA in support of today's final rule.
The comment period for the 2001 Notice was from November 21, 2001,
through January 15, 2002 (66 FR 58556). Approximately 300 comments were
received on the 2001 Notice. Responses to each of these comments are
also included in the Comment Response Document.
EPA prepared and published in the Federal Register a second notice
(2002 Notice) during the development of today's final rule. The comment
period
[[Page 7188]]
for the 2002 Notice was from July 23, 2002, through August 22, 2002.
Approximately 150 comments were received on the 2002 Notice. Responses
to each of these comments are also included in the Comment Response
Document.
In addition to the public comments received on the proposal and the
two Notices, approximately 200 additional comments on the two Notices
were received from various stakeholders. Responses to each of these
comments are included in the Comment Response Document.
F. Public Outreach
In support of both the proposed rule and today's final rule, EPA
has conducted extensive outreach activities. These activities are
documented in the administrative record for the final rule, which is
available for public review under docket number W-00-27. The discussion
that follows is focused on key outreach activities that EPA has
conducted.
1. Pre-Proposal Activities
During the development of the proposed regulations for CAFOs, EPA
met with many members of the stakeholder community through meetings,
conferences, and site visits. EPA convened a SBAR Panel to address
small entity concerns, provided outreach materials to and met with
several national organizations representing State and local
governments, and conducted approximately 110 site visits to collect
information on waste management practices at livestock and poultry
operations. EPA also established a workgroup that included
representatives from USDA, seven States, EPA regions, and EPA
headquarters. More detailed information on EPA's public outreach
efforts was published in section XII of the Federal Register notice for
the proposed rule (66 FR 3120).
2. Post-Proposal Activities
a. Public meetings and stakeholder outreach. Following publication
of the proposed rulemaking, EPA conducted nine public outreach meetings
on the proposed CAFO regulations. In addition, EPA continued to meet
with representatives of various stakeholder groups, including
representatives from various industry trade associations and
environmental groups, as well as researchers from select land grant
universities and research organizations. The land grant university
staff consulted on this rulemaking included researchers at the Food and
Agricultural Policy Research Institute (FAPRI) at the University of
Missouri and researchers at The National Center for Manure and Animal
Waste Management, composed of researchers from 16 land grant
universities supported by USDA-Cooperative State Research, Education
and Extension Service (CSREES). EPA has also consulted with State and
local governments and several national associations representing State
governments. A more detailed account of these efforts is provided in
the 2001 Notice (66 FR 58557-58558).
b. USDA-EPA Workgroup meetings. In April 2001 USDA initiated a
process to review the proposed revisions to EPA's CAFO rule and
identify issues and concerns posed by the rule. USDA identified 15
specific areas of concern and a number of overarching issues. As a
follow-up to this process, USDA and EPA's Office of Water initiated
monthly meetings on issues of significance for agriculture and the
environment, specifically water quality. The goal was to foster greater
communication between the two agencies to provide better information to
the public and policy makers on areas of mutual concern related to
agriculture and water quality, and to facilitate informed decisions on
approaches and needs to address the key agriculture and environment
issues. In July 2001 EPA and USDA convened a joint workgroup to address
the issues identified by the two agencies and begin to develop options
for EPA leadership to consider in developing the final rule. The
collaboration fostered increased understanding on the part of both
agencies with respect to the issues, data, and analyses used to
finalize today's CAFO rule.
c. Other outreach activities. As part of the development of this
rulemaking, EPA used several additional means to provide outreach to
stakeholders. Most notably, EPA has managed a number of Web sites that
post information related to these regulations. Supporting documents for
the proposed rule were posted to these sites, including the Technical
Development Document, Economic Analysis, Environmental Assessment,
Environmental and Economic Benefit Analysis of the proposed CAFO
regulations, and cost methodology reports and guidance related to
Permit Nutrient Plans. These are available at http://www.epa.gov/guide/cafo/.
Other outreach materials are available at http://www.epa.gov/
npdes/caforule and include brochures describing the proposed CAFO
regulations, a compendium of AFO-related State program information, and
various materials related to permitting issues to facilitate an
understanding of the NPDES program and development of comments on the
proposed rule by the public.
IV. CAFO Roles and Responsibilities
A. Who Is Affected by This Rule?
1. What Is an AFO?
In today's final rule, EPA is retaining the definition of an animal
feeding operation (AFO) as it was defined in the 1976 regulation at 40
CFR 122.23(b)(1). An animal feeding operation means a lot or facility
(other than an aquatic animal production facility) where the following
conditions are met: (1) Animals have been, 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 (2) crops, vegetation, forage growth, or post-
harvest residues are not sustained in the normal growing season over
any portion of the lot or facility. (Note: EPA is making a
typographical correction to the AFO definition. The comma between
vegetation and forage growth had been inadvertently dropped from the
1976 final rule in subsequent printings of the Federal Register).
What did EPA propose? In the January 12, 2001, proposed rule, the
Agency proposed to change the definition of an AFO, intending to
eliminate ambiguities about which facilities and operations would be
defined as AFOs in certain circumstances where the animals strip the
ground of vegetation. The proposal stated that `` * * * Animals are not
considered to be stabled or confined when they are in areas such as
pastures or rangeland that sustain crops or forage growth during the
entire time that animals are present * * *.''
What were the key comments? While it was EPA's intent to clarify
the existing AFO definition, the proposed new regulatory language
created substantial confusion. For example, many commenters from the
beef cattle industry and others strongly believed that the proposed
language would include pastures, rangeland, and unconfined wintering
operations as AFOs and, in essence, would bring the entire beef
industry under the regulations, none of which was intended. These
commenters strongly recommended that the existing regulations should be
kept intact to avoid new ambiguity. The view of commenters from the
dairy sector and the Sustainable Agriculture Coalition was that the
exclusion of pastureland and rangeland from the AFO definition was
clear in the proposed rule and they found the proposed language
acceptable. Other livestock sectors and environmental groups generally
did not comment extensively on this issue.
[[Page 7189]]
Rationale. Based on public comment and further consideration, EPA
concludes that the proposal to revise the AFO definition to exclude
areas ``that sustain crops or forage growth during the entire time that
animals are present'' created further concern and confusion, rather
than clarification. EPA's intent was to make a minor change to the AFO
definition to clarify how it would apply to wintering/grazing
operations and to incidental vegetation that may exist in the area of
confinement. EPA is retaining the existing definition for animal
feeding operation because of the widespread familiarity that exists
with the existing definition and because EPA's desired clarification
can be achieved through preamble language rather than a change to the
rule.
In an attempt to address some of the public comments and confusion
created by the proposal, EPA is clarifying three topics in this
preamble. First, EPA is reiterating that true pasture and rangeland
operations are not considered AFOs, because operations are not AFOs
where the animals are in areas such as pastures, croplands or
rangelands that sustain crops or forage growth during the normal
growing season. In some pasture based operations, animals may freely
wander in and out of particular areas for food or shelter; this is not
considered confinement. However, pasture and grazing-based operations
may also have confinement areas (e.g. feedlots, barns, pens) that may
qualify as an AFO. Second, incidental vegetation in a clear area of
confinement, such as a feedlot or pen, would not exclude an operation
from meeting the definition of an AFO. Third, in the case of a winter
feedlot, the ``no vegetation'' criterion in the AFO definition is meant
to be evaluated during the winter, when the animals are confined.
Therefore, use of a winter feedlot to grow crops or other vegetation
during periods of the year when animals are not confined would not
exclude the feedlot from meeting the definition of an AFO. Note that
animals must be stabled or confined for at least 45 days out of any 12
month period to qualify the operation as an AFO. EPA assumes that AFOs
and permitting authorities will use common sense and sound judgement in
applying this definition.
2. What Is a CAFO?
In today's final rule, EPA is retaining the existing structure for
determining which AFOs are CAFOs, as well as retaining the existing
conditions for defining Medium CAFOs. EPA is also retaining the
existing conditions for designation of AFOs as CAFOs. Large facilities
are considered CAFOs if they fall within the size range provided in
Sec. 123.23(b)(4). Medium AFOs are defined as CAFOs only if they fall
within the size range provided in Sec. 122.23(b)(6) and they meet one
of the two specific criteria governing the method of discharge: (1)
Pollutants are discharged into waters of the United States through a
man-made ditch, flushing system, or other similar man-made device; or
(2) pollutants are discharged directly into waters of the United States
that originate outside the facility and pass over, across, or through
the facility or otherwise come into direct contact with the confined
animals. Small facilities are CAFOs only if they are so designated by
EPA or the State NPDES permitting authority. Refer to Table 4.1 in
section IV.A.3 of this preamble for explicit definitions of Large,
Medium, and Small CAFOs in each animal sector. Also, as proposed, EPA
is no longer using the term ``animal units'' to define size classes in
this final rule. Instead, EPA is setting thresholds by specifying the
actual number of animals. EPA believes that using the number of animals
at an operation to define thresholds more simply illustrates which
operations are regulated. Using the number of animals also eliminates
any confusion caused by the difference between EPA's and USDA's
definitions of the term ``animal unit.''
What did EPA propose? EPA co-proposed two alternative ways to
structure the NPDES regulations for defining which AFOs are CAFOs. The
first alternative was a ``two-tier structure,'' and the second was a
``three-tier structure.'' In the first alternative, EPA proposed that
all AFOs with the equivalent of 500 animal units or more would be
defined as CAFOs, and those with fewer than the equivalent of 500
animal units would be CAFOs only if they are designated as such by EPA
or the State NPDES permitting authority. In the second alternative, EPA
proposed to retain a three-tier structure whereby all large operations
are CAFOs, medium operations are CAFOs if they meet specified risk-of-
discharge criteria, and small operations are CAFOs only if they are so
designated by EPA or the State NPDES permitting authority. EPA also
proposed to significantly revise the conditions whereby a medium AFO
could be defined as a CAFO. Finally, EPA proposed to require all medium
AFOs to certify to the permitting authority that they do not meet any
of the conditions for being defined a CAFO.
What were the key comments? The predominance of public comment did
not support the two-tier structure, as proposed, whereby all operations
with the equivalent of 500 animal units or more would be CAFOs. Many
commenters opposed such a low threshold as imposing unnecessary
permitting and engineering costs on small operations and on operations
that do not discharge, and would very likely cause many small operators
to go out of business. Opponents also indicated that the proposal did
not recognize geographic differences such as arid regions. Many of
those same comments were, however, supportive of a two-tier structure
if the regulatory threshold was set at the equivalent of 1,000 animal
units or even 750 animal units, leaving discretion for the permitting
authority to address all operations below that threshold. Conversely,
some commenters indicated that 500 animal units was too high, because
it did not address the pollution from smaller operations in their
region. There was some preference for a two-tier structure that
regulates all facilities above the equivalent of 300 AU, believing that
all those operations pose risk to the environment and should be
regulated as CAFOs.
Many commenters, including many State agencies, preferred to retain
the existing three-tier structure because so many of their existing
programs are based on the three-tier structure established in the 1976
regulations. They believe it would be very disruptive to their ongoing
programs to have to change the basic structure of the regulations that
define who is a CAFO.
Additionally, there was little support among the commenters for the
three-tier structure, as proposed, with the new set of broad conditions
that were proposed for redefining which of the medium facilities would
be CAFOs. Many commenters believed that the existing conditions were
adequate for addressing risk of discharge from medium facilities, and
that the proposed new conditions would be an unnecessary expansion of
who would be considered CAFOs. Further, many commenters indicated that
the revised conditions did not add clarity and would not improve
implementation. For example, many commenters indicated that one of the
proposed conditions, whether an AFO was within 100 feet of waters of
the United States, did not take into account facilities that are
implementing BMPs to control runoff. The condition for evidence of
discharge in the last five years did not take into account operations
that may have instituted new practices or corrected problems to prevent
future discharges, especially in light of the fact that, in the last
two or three years, there has been heightened
[[Page 7190]]
awareness of the impacts of AFOs and renewed effort by States to
implement both regulatory and non-regulatory AFO programs. The
condition defining a facility as a CAFO if it transferred excess manure
to off-site recipients also did not correlate closely enough to whether
a facility had a risk of discharging, especially in arid regions.
The SBAR Panel did not make a recommendation specifically on the
structure of the CAFO regulations. The Panel noted that some States
already have effective permitting programs for CAFOs in place and
recommended that EPA consider the impact of any new requirements on
existing State programs and include in the proposed rule sufficient
flexibility to accommodate such programs where they meet the minimum
requirements of federal NPDES regulations. The Panel further
recommended that EPA continue to consult with States in an effort to
promote compatibility between federal and State programs.
Rationale. The Clean Water Act specifically lists CAFOs as point
sources, and EPA has broad discretion under the Act to define that
term. In the proposal, EPA noted a range of different factors that it
considered relevant to determining which operations should be defined
as CAFOs.
EPA has concluded that a three-tier structure is preferable to a
two-tier structure because it is better suited to identifying those
operations that, through a combination of size, concentration and
potential to discharge, are more industrial and point source-like in
nature and pose the greatest risk to water quality and therefore are
appropriate to define as CAFOs. Another important reason to retain a
three-tier structure is that changing to a two-tier structure at this
point in time would be unnecessarily disruptive in the number of States
that currently have three-tier CAFO programs in place. Many of these
States have had these programs in place for over two decades, and they
have many years of practical experience in operating their programs and
issuing permits based on this existing definition. Changing to a two-
tier structure not only would be disruptive to the States that are
carrying out existing programs but would also create an unnecessary
need to build a new understanding of the regulations in the CAFO
industry. For these reasons, a three-tier structure is preferable even
though it does not have the simplicity of a two-tier structure.
Establishing a two-tier structure at a low threshold, e.g., at
either 300 animal units or 500 animal units would be highly burdensome
to permit authorities and AFO operators. While some parts of the
country experience problems from concentrations of small facilities,
this would impose significant costs on the regulated community and
permit authorities in all parts of the country, including those areas
that do not experience these problems. On the other hand, while it
might seem desirable to provide flexibility for States with effective
non-NPDES programs by establishing a threshold on the higher end, say
at 750 or 1,000 animal units, using such a high threshold across-the-
board would apply equally in States that do not have fully developed
and effective programs to address water quality risks posed by
operations with fewer than 1,000 animal units. This could lead to a
definition that would not appropriately identify those operations that
are large and concentrated enough and pose enough of a risk of
discharge (taking into account the absence of effective State non-NPDES
programs in some areas) that they should be identified as CAFOs. A high
threshold might also undercut the ability of some permit authorities to
address water quality problems associated with smaller facilities,
especially in States that have restrictions on imposing CAFO NPDES
requirements that are stricter than federal requirements.
Although the final rule retains the three-tier structure for
defining who is a CAFO, after consideration of the public comments, EPA
has not adopted the new set of conditions that were proposed for
defining which medium operations are CAFOs. Instead, EPA is retaining
the two conditions in the existing regulations. After careful
consideration of the comments, EPA agrees with those commenters who
believe that the new set of conditions proposed under the three-tier
structure for determining when a medium facility is a CAFO would not
necessarily have improved the clarity, effectiveness or enforceability
of the regulations, which were the Agency's intended goals. The
proposed new conditions were an attempt to better identify those medium
operations that are of sufficient size and concentration and pose
enough of a risk of discharge that they should be defined as CAFOs.
While these conditions may have been environmentally protective on the
whole, they were not finely targeted enough to identify the operations
that meet these criteria; instead, EPA now believes that they would
have caused substantial permitting burden and imposed costs on
essentially all operations above 300 animal units.
For example, many commenters indicated that one of the proposed
conditions, whether an AFO was within 100 feet of waters of the Unites
States, did not take into account facilities that are implementing BMPs
to control runoff. The condition for evidence of discharge in the last
five years did not take into account operations that may have
instituted new practices or corrected problems to prevent future
discharges, especially in light of the fact that, in the last two or
three years, there has been heightened awareness of the impacts of AFOs
and renewed effort by States to implement both regulatory and non-
regulatory AFO programs. The conditions defining a facility as a CAFO
if it did not have a permit nutrient plan or if it transferred excess
manure to off-site recipients also did not correlate closely enough to
whether a facility had a risk of discharging, especially in arid
regions.
EPA has concluded that retaining the existing two criteria provide
an appropriate basis for defining which medium-size operations are
CAFOs, while maintaining flexibility for States to tailor NPDES and
non-NPDES programs for more comprehensive risk factors that may vary
from State to State and even watershed to watershed.
3. What Types of Animals Are Covered by Today's Rule?
Today's revisions to the CAFO effluent guidelines address beef,
dairy, swine, veal calves and poultry operations and do not change the
effluent guidelines regulations for sheep, horses or ducks. On the
other hand, today's final revisions to the NPDES permit regulations
generally apply to all CAFOs regardless of species, and specifically
address the size thresholds for defining which beef, dairy, swine, veal
calves, poultry, sheep, horses, and duck operations are CAFOs. The
following sections discuss changes made to the size thresholds for
defining which operations in these sectors are CAFOs.
Although the following discussion focuses primarily on
circumstances where an AFO is defined as a CAFO, it is important to
note that small and medium-size AFOs can be designated as CAFOs by EPA
or an NPDES authorized State. Refer to section IV.A.7 and 8 for a
discussion of designation.
The thresholds for defining Large, Medium, and Small CAFOs in each
sector are summarized in Table 4.1 below.
[[Page 7191]]
Table 4.1.--Summary of CAFO Size Thresholds for All Sectors
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sector Large Medium \1\ Small \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cattle or cow/calf pairs......... 1,000 or more......................... 300-999............................... Less than 300.
Mature dairy cattle.............. 700 or more........................... 200-699............................... Less than 200.
Veal calves...................... 1,000 or more......................... 300-999............................... Less than 300.
Swine (weighing over 55 pounds).. 2,500 or more......................... 750-2,499............................. Less than 750.
Swine (weighing less than 55 10,000 or more........................ 3,000-9,999........................... Less than 3,000.
pounds).
Horses........................... 500 or more........................... 150-499............................... Less than 150
Sheep or lambs................... 10,000 or more........................ 3,000-9,999........................... Less than 3,000.
Turkeys.......................... 55,000 or more........................ 16,500-54,999......................... Less than 16,500.
Laying hens or broilers (liquid 30,000 or more........................ 9,000-29,999.......................... Less than 9,000.
manure handling system).
Chickens other than laying hens 125,000 or more....................... 37,500-124,999........................ Less than 37,500.
(other than a liquid manure
handling system).
Laying hens (other than a liquid 82,000 or more........................ 25,000-81,999......................... Less than 25,000.
manure handling system).
Ducks (other than a liquid manure 30,000 or more........................ 10,000-29,999......................... Less than 10,000.
handling system).
Ducks (liquid manure handling 5,000 or more......................... 1,500-4,999........................... Less than 1,500.
system).
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\1\ Must also meet one of two ``method of discharge'' criteria to be defined as a CAFO or may be designated.
\2\ Never a CAFO by regulatory definition, but may be designated as a CAFO on a case-by-case basis.
A facility confining any other animal type that is not explicitly
mentioned in the NPDES and effluent guidelines regulations is still
subject to NPDES permitting requirements if it meets the definition of
an AFO and if the permitting authority designates it as a CAFO. See
Sec. 122.23(c) for a discussion of designation.
a. Chickens. In today's action, EPA is revising the CAFO definition
to include chicken operations that use manure handling systems other
than liquid manure handling systems (see 40 CFR Part 122, Appendix B of
the 1976 regulation). EPA has also eliminated the condition for
continuous overflow watering system from the CAFO definition. This
action establishes that dry litter chicken operations of specified
sizes will need to seek coverage under an NPDES CAFO permit. EPA is
establishing size thresholds for dry chicken operations based on the
phosphorus content of the manure, and is therefore distinguishing
between broiler and layer operations. EPA is not changing the existing
threshold for chicken operations using liquid manure systems. The size
thresholds for large, medium, and small chicken operations under
today's regulations are as follows:
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Large Medium Small
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Chickens other than laying hens 125,000 or more......................... 37,500-124,999.......................... <37,500
(other than liquid manure
handling).
Laying hens (other than liquid 82,000 or more.......................... 25,000-81,999........................... <25,000
manure handling).
Laying hens or broilers (liquid 30,000 or more.......................... 9,000-29,999............................ < 9,000
manure handling).
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What did EPA propose? EPA proposed to regulate chicken operations
regardless of the type of manure handling or watering system used. EPA
proposed to include broilers and layers in a single category with one
threshold number. Under the co-proposed three-tier structure, EPA
proposed to adopt a Large CAFO threshold of 100,000 chickens and a
Medium CAFO threshold of 30,000 chickens. In the co-proposed two-tier
structure, the regulatory threshold would have been 50,000 chickens.
Subsequently, EPA published a notice of data availability (FR 67,
48099, July 23, 2002) in which the Agency considered whether, under a
three-tier structure, the threshold for large broiler operations should
remain as proposed at 100,000 broilers, changed to 125,000 broilers, or
established at some other threshold. EPA also considered whether the
large threshold for laying hens should remain as proposed at 100,000
laying hens, or be changed to 82,000 laying hens. EPA also noted that
the thresholds in the 1976 CAFO regulations for chicken operations with
liquid manure handling systems or continuous overflow watering systems
may remain unchanged in the final rule.
What were the key comments? Comments from poultry industry
representatives and owners and operators of poultry operations stated
that dry operations (those not using continuous flow watering systems)
should not be defined as CAFOs under the NPDES regulations because the
absence of water or other liquids would not result in pollutants being
discharged through a discrete point source. Some industry
representatives asserted that dry and wet manure handling pose
different levels of risk and, therefore, EPA's CAFO regulations should
distinguish between wet and dry poultry operations. A few commenters
indicated that they felt that EPA was proposing to regulate dry poultry
operations to address insufficient storage issues at some operations.
These commenters believed that properly stored poultry litter would not
result in a discharge. In addition some commenters disagreed with EPA's
statement that many poultry operations did not have sufficient land to
apply litter at agronomic rates. Commenters from this sector also felt
that voluntary programs were working to address the excess manure
issue. A more limited number of commenters indicated that the inclusion
of dry poultry operations should be limited to what they described as
very large operations. Commenters defined very large as ranging from
more than six houses to more than 10,000 animal units (e.g., 300,000
birds).
Many other commenters supported regulating poultry operations
regardless of the watering systems they use because that approach
provides equity across all animal sectors and addresses potential risk
to water quality posed by dry operations. Some commenters
[[Page 7192]]
further stated that EPA should use manure phosphorus as the basis for
setting thresholds for such operations.
Rationale. Why is EPA including chicken operations with dry manure
and litter handling systems in today's regulations? For some time,
poultry operators have been replacing continuous overflow watering
systems by more efficient water conserving methods (e.g., on-demand
watering). Given this trend, liquid manure systems are used at
approximately 25 percent of layer operations and are not generally used
at broiler operations. As a result, most chicken operations are not
covered by the existing regulations.
For the reasons articulated in the proposed rulemaking (66 FR
3010), and after carefully reviewing the public comments, EPA has
determined that including chicken operations with dry manure handling
systems is justified to protect water quality. EPA believes that dry
poultry operations continue to contaminate surface water and ground
water because of rainfall coming in contact with dry manure and litter
that is stacked in exposed areas; accidental spills such as from egg-
wash facilities and drinking water lines; improper handling of large
numbers of mortalities; and improper land application of litter. In
addition, included within the coverage of the CAFO regulations are
other sectors that use dry technologies, such as ducks, turkeys, and
certain swine, beef, and dairy operations using total confinement
housing. Inclusion of dry poultry operations is consistent with the
regulation of both wet and dry operations within these other animal
sectors.
Why were the size thresholds selected? EPA believes that it is
appropriate to distinguish between potential risk of discharge posed by
wet versus dry handling systems, using the pollutant of most concern,
i.e. phosphorus, for establishing regulatory thresholds. For nitrogen
and BOD, the levels for broilers would result in similar thresholds
varying only by 1% to 3%. EPA agrees with commenters who asserted that
EPA should determine the chicken threshold values by evaluating
phosphorus content in the manure on an annual basis, which takes into
account that phosphorus production does not continue during the periods
of the year when no manure is generated (i.e., clean out time between
flocks when no broilers are present). Traditionally, layers were kept
through one year of egg production and sold for meat at 18 to 20 months
of age (see Section 4 of the Technical Development Document). Depending
on the relative price of eggs to hens, it has become increasingly
common to recycle layers through more than one year of production.
Flock recycling consists of stopping the flock's egg production,
allowing a suitable rest period, and then bringing the flock back into
production. The entire process is known as ``force-molting''. Some
producers now keep the birds through two or three complete cycles of
egg production. Laying hens are now typically kept for 94 weeks of
production. Since layers will continue to produce manure throughout the
year the daily phosphorus levels were used in setting thresholds for
laying hens. Therefore, EPA is establishing different thresholds based
first on wet versus dry manure systems and second on the broad type of
poultry, e.g., chickens for meat (broilers) and chickens for eggs
(layers) based on phosphorus content of manure generation.
b. Swine Nurseries and Heifer Operations. Today's rule regulates
swine nurseries and heifer operations that are defined as CAFOs.
Specifically, the Agency has adopted a Large CAFO threshold of 10,000
or more immature swine (i.e. weighing less than 55 pounds) and a Medium
CAFO threshold of 3,000 to 9,999 immature swine. For heifers, EPA has
adopted a Large CAFO threshold of 1,000 head or more and a Medium CAFO
threshold of 300 to 999 head.
What did EPA propose? EPA is adopting what was proposed for these
animal types in a three-tier structure.
What were the key comments? While a majority of commenters
supported the inclusion of immature swine and dairy cattle in the
proposed rule, a number of commenters opposed this change, and
preferred to retain the exemption for immature animals. A number of
commenters noted that many States already have programs at least as
strict as the one EPA is proposing, and that States should be allowed
the flexibility to determine if including operations with immature
animals would improve water quality.
Rationale. Immature swine were not a concern in the past because
they were usually part of operations that included mature animals and,
therefore, their manure was included in the permit requirements of the
CAFO. However, in recent years, these swine operations have become
increasingly specialized, increasing the number of large, separate
nurseries where only immature swine are raised.
Under the three-phase production pyramids used by most large swine
operations, specialized farrowing operations that house only sows and
piglets until weaned represent the first phase of raising swine. The
weaned piglets are transferred to a nursery at a separate location
until they reach about 55 to 60 pounds, at which time they are
transferred to a grow-finish facility at another site. EPA's thresholds
for swine weighing less than 55 lbs were established on the basis of
the average phosphorus excreted from immature swine in comparison to
the average phosphorus excreted from swine weighing more than 55
pounds. (Refer to the Technical Development Document for more details).
For dairies, immature heifers are often removed to a separate
location until they reach maturity. EPA data indicate that some of
these animals are confined, some are pastured, and some move back and
forth between confinement and pasture. The previous CAFO definition
considered only the mature milking cows in determining whether an
operation was a CAFO and did not address operations that separately
confine immature heifers. EPA believes that these separately confined
heifer operations should be included in the regulatory definition of a
CAFO because they may generate as much manure as a CAFO dairy given
that the animals are maintained until fully grown, and they confine the
animals in a manner very similar to CAFO beef feedlots.
EPA agrees that the number of immature animals kept in confinement
with mature animals varies greatly and should not be the basis for
determining whether an AFO is a CAFO. In situations where immature
animals (e.g. heifers and swine) are confined with mature animals, the
immature animals are not counted for purposes of determining whether an
AFO is defined as a CAFO based on the number of mature animals. Once an
AFO is defined as a CAFO, based on any of the threshold values provided
in table 4.1, manure and process wastewater generated by all immature
and mature animals in confinement would be subject to NPDES permit
requirements.
c. Horses. Today's rule retains the animal number thresholds for
defining which horse operations are CAFOs. AFOs with 500 or more horses
are defined as Large CAFOs, AFOs with 150 to 499 horses are defined as
Medium CAFOs under certain conditions (see Sec. 122.23(b)(7)), and
AFOs with fewer than 150 horses are Small CAFOs only if designated in
accordance with Sec. 122.23(c).
What did EPA propose? In the January, 2001 proposed rule, EPA did
not consider changing the CAFO definition thresholds for horses. As a
result of the comments and data received on the proposal, EPA
[[Page 7193]]
considered in a subsequent Notice of Data Availability (66 FR 58556,
November 21, 2001) two alternative options for revising the horse
thresholds. One option would retain the existing regulatory threshold
in a two-tier structure. For example, if the regulatory threshold was
dropped to 500 AU, EPA would retain 500 horses as the 500 AU
equivalent, and those with fewer than 500 horses would be CAFOs only if
so designated on a case-by-case basis. EPA suggested this option
because the Agency agreed with commenters that there was no need to
increase regulation of this sector; by maintaining the status quo EPA
would be neither increasing nor decreasing the regulated universe. In
the second option, EPA would have set one horse equal to one beef cow
thereby establish regulatory thresholds similar to those for beef
operations. As a result, in a three-tier structure, Large horse CAFOs
would have 1,000 animals or more, and Medium horse CAFOs would have
300-999 horses. EPA presented the second option after examining data
submitted by industry that suggested that a 1,000 pound horse may
generate similar manure as a 1,000 pound beef cow. However, because
that data did not differentiate thoroughbred race horses (typically on
high-energy feed which might alter manure composition) from other
horses, EPA requested more definitive data to justify the second
approach.
What were the key comments? A number of comments were submitted by
horse industry associations and individual horse operations requesting
that EPA not lower the threshold for horses, as the existing regulation
was adequate. They further suggested that this rulemaking would be an
opportunity to revisit the basis for the existing threshold, and
requested that EPA change it to one horse being equal to one beef
cattle, asserting that there is no scientific basis for making one
horse equal to two beef cattle (which is how the existing regulation
defines horse CAFOs). Industry representatives provided data on manure
content to support their position, although they did not provide manure
data specific to racehorses. The commenters also explained that the
horse industry is fundamentally different in how it is organized and
operated from the other sectors that focus on food production, and that
this sector has not seen the kinds of changes (e.g., expansion and
consolidation) that EPA is seeking to address in today's rule. Further,
they point out that most large racetracks are in urban areas and are
currently subject to a variety of EPA-initiated and State-administered
programs related to water pollution and storm water runoff control.
Some commenters requested that EPA not reduce the regulatory
thresholds, and asked EPA to retain the ability of permit writers to
use BPJ to establish site-specific BMPs. Industry representatives also
asked the Agency to clarify that confinement pertains to stalls or
similar structures in buildings and not to fenced areas, and that it
does not include short visits to stalls for shoeing, veterinary
evaluation, or related activities.
Rationale. It should be noted that the thresholds for the CAFO
definition refer only to horse operations where animals are confined
for 45 days (non-consecutive) over a 12 month period. Thus, to be
considered a Large CAFO, the operation would need to confine 500 horses
at one time for 45 days or longer in a 12-month period, and to be a
Medium CAFO at least 150 horses would need to be confined for 45 days
or longer in a 12-month period. The areas associated with confinement
at horse facilities would constitute the production area, and would not
include pastures and other unconfined areas. EPA notes the 1974 ELG for
horses assumed the majority of horse CAFOs were racetracks. Although
race tracks accounted for less than 0.1 percent of all horse operations
today, race tracks still account for more than 96% of all horse
operations with 500 horses or more. Boarding/training stables comprise
the remaining few operations with 500 horses or more. Such operations
would not be considered CAFOs unless all of the horses were kept in
confinement (as opposed to pasture). Data suggests most horse
operations confine their animals for short-term stabling or visits to
stalls for shoeing, veterinary evaluation, or related activities.
However, according to consultations with the American Horse Council, it
is unlikely that these visits would involve a number of horses large
enough to define the operation as a CAFO. For example, a ranch
maintaining over 500 horses would typically have fewer than 100 stalls
or stables (i.e. confinement areas). Therefore, those operations that
confine enough horses for a long enough period to be defined as CAFOs
are generally racetracks.
In the 1970s regulations, the Agency considered racetracks when
originally determining the size of an operation that must comply with
the effluent guidelines, and the records indicate the size of operation
was based on the manure generated by thoroughbred racehorses. Based on
some comments that EPA should re-evaluate the classification of horses
by bodyweight or manure content, EPA coll