[Federal Register: June 30, 2006 (Volume 71, Number 126)]
[Proposed Rules]
[Page 37743-37787]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jn06-23]
[[Page 37743]]
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Part IV
Environmental Protection Agency
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40 CFR Parts 122 and 412
Revised National Pollutant Discharge Elimination System Permit
Regulation and Effluent Limitation Guidelines for Concentrated Animal
Feeding Operations in Response to Waterkeeper Decision; Proposed Rule
[[Page 37744]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 122 and 412
[EPA-HQ-OW-2005-0037; FRL-8189-7]
RIN 2040-AE80
Revised National Pollutant Discharge Elimination System Permit
Regulation and Effluent Limitation Guidelines for Concentrated Animal
Feeding Operations in Response to Waterkeeper Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to revise the National Pollutant Discharge
Elimination System (NPDES) permitting requirements and Effluent
Limitations Guidelines and Standards (ELGs) for concentrated animal
feeding operations (CAFOs) in response to the order issued by the
Second Circuit Court of Appeals in Waterkeeper Alliance et al. v. EPA,
399 F.3d 486 (2nd Cir. 2005). This proposed rule responds to the court
order while furthering the statutory goal of restoring and maintaining
the nation's water quality and effectively ensuring that CAFOs properly
manage manure generated by their operations.
This proposal would revise several aspects of EPA's current
regulations governing discharges from CAFOs. First, EPA proposes to
require only the owners and operators of those CAFOs that discharge or
propose to discharge to seek coverage under a permit. Second, EPA
proposes to require CAFOs seeking coverage under a permit to submit
their nutrient management plan (NMP) with their application for an
individual permit or notice of intent to be authorized under a general
permit. Permitting authorities would be required to review the plan and
provide the public with an opportunity for meaningful public review and
comment. Permitting authorities would also be required to incorporate
terms of the NMP as NPDES permit conditions. Third, this action
proposes to authorize permit writers, upon request by a CAFO, to
establish best management, zero discharge effluent limitations when the
facility demonstrates that it has designed an open containment system
that will comply with the no discharge requirements.
This proposed rule also responds to the court's remand orders
regarding water-quality based effluent limitations (WQBELs) and
pathogens. EPA proposes to clarify that WQBELs are available in permits
with respect to production area discharges and non-precipitation
related discharges from land application, but are statutorily
unavailable in permits for Large CAFOs with respect to precipitation
related land application discharges because the only allowable
discharge from a land application area is due to agricultural storm
water which is by statute exempt from permitting requirements. Finally,
EPA proposes to clarify its selection of BCT technologies for pathogens
(fecal coliform), and reaffirm its decision to set the BCT limitations
for fecal coliform to be equal to the BPT limits established in the
2003 CAFO rule.
DATES: Comments on this proposed action must be received on or before
August 14, 2006.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2005-0037 by one of the following methods:
(1) http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
(2) E-mail: ow-docket@epa.gov, Attention Docket ID No. EPA-HQ-OW-
2005-0037.
(3) Mail: Send the original and three copies of your comments to:
Water Docket, Environmental Protection Agency, Mail code 4203M, 1200
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No.
OW-2005-0037.
(4) Hand Delivery: Deliver your comments to: EPA Docket Center, EPA
West, Room B102, 1301 Constitution Avenue, NW., Washington, DC,
Attention Docket ID No. OW-2005-0037. Such deliveries are only accepted
during the Docket's normal hours of operation and special arrangements
should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2005-
0037. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-mail.
The http://www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Water Docket in the EPA
Docket Center, EPA West, Room B102, 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744, and the telephone
number for the Water Docket is (202) 566-2426.
FOR FURTHER INFORMATION CONTACT: For additional information contact
Kawana Cohen, Water Permits Division, Office of Wastewater Management
(4203M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: (202) 564-2345, e-mail address:
cohen.kawana@epa.gov or Paul Shriner, Engineering and Analysis
Division, Office of Science and Technology (4303T), Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
telephone number: 202-566-1076, e-mail address: shriner.paul@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
B. What Should I Consider as I Prepare My Comments for EPA?
II. Background
A. The Clean Water Act
B. History of Actions to Address CAFOs under the NPDES
Permitting Program
[[Page 37745]]
C. Ruling by the U.S. Court of Appeals for the Second Circuit
1. Issues Upheld by the Court
2. Issues Vacated by the Court
3. Issues Remanded by the Court
D. What Requirements Still Apply to CAFOs?
E. Status of EPA's Response to the Waterkeeper Decision
III. This Proposal
A. Duty to Apply for a Permit
B. Nutrient Management Plans
C. Remand Concerning Water Quality Based Effluent Limitations
D. New Source Performance Standards for Subpart D Facilities
E. Remand Concerning Pathogens for BCT
IV. Impact Analysis
V. Cross Media Approaches
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
I. General Information
A. Does This Action Apply to Me?
This action applies to concentrated animal feeding operations
(CAFOs) as defined in section 502(14) of the Clean Water Act and in the
NPDES regulations at 40 CFR 122.23. The following table provides a list
of standard industrial codes for operations covered under this revised
rule.
Table 1.--Entities Potentially Regulated by this Rule
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Standarial
North American industrial
Category Examples of regulated entities industry code classification
(NAIC) code
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Federal, State, and Local Government:
Industry................................ Operators of animal production
operations that meet the
definition of a CAFO.
Beef cattle feedlots 112112 0211
(including veal).
Beef cattle ranching and 112111 0212
farming.
Hogs.......................... 11221 0213
Sheep......................... 1241, 11242 0214
General livestock except dairy 11299 0219
and poultry.
Dairy farms................... 11212 0241
Broilers, fryers, and roaster 11232 0251
chickens.
Chicken eggs.................. 11231 0252
Turkey and turkey eggs........ 11233 0253
Poultry hatcheries............ 11234 0254
Poultry and eggs.............. 11239 0259
Ducks......................... 112390 0259
Horses and other equines...... 11292 0272
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility is regulated under this rulemaking, you should carefully
examine the applicability criteria in 40 CFR 122.23. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting Confidential Business Information. Do not submit this
information to EPA through http://www.regulations.gov or e-mail. Clearly mark
the part or all of the information that you claim to be CBI. For CBI
information in a disk or CD-ROM that you mail to EPA, mark the outside
of the disk or CD-ROM as CBI and then identify electronically within
the disk or CD-ROM the specific information that is claimed as CBI. In
addition to one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket. Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR Part 2.
2. Tips for Preparing Your Comments. It will be helpful if you
follow these guidelines as you prepare your written comments:
i. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
ii. Follow directions--The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information
and/or data that you used.
v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
vi. Provide specific examples to illustrate your concerns, and
suggest alternatives.
vii. Explain your views as clearly as possible.
viii. Make sure to submit your comments by the comment period
deadline identified.
II. Background
A. The Clean Water Act
Congress passed the Federal Water Pollution Control Act (1972),
also known as the Clean Water Act (CWA), to ``restore and maintain the
chemical, physical, and biological integrity of the nation's waters''
(33 U.S.C. 1251(a)). Among the core provisions, the CWA establishes the
NPDES permit program to authorize and regulate the discharge of
pollutants from point sources to waters of the U.S. 33 U.S.C. 1342.
[[Page 37746]]
Section 502(14) of the CWA specifically includes CAFOs in the
definition of the term ``point source.'' Section 502(12) defines the
term ``discharge of a pollutant'' to mean ``any addition of any
pollutant to navigable waters from any point source'' (emphasis added).
EPA has issued comprehensive regulations that implement the NPDES
program at 40 CFR Part 122. The Act also provides for the development
of technology-based and water quality-based effluent limitations that
are imposed through NPDES permits to control the discharge of
pollutants from point sources. CWA sections 301(a) and (b).
B. History of Actions to Address CAFOs under the NPDES Permitting
Program
EPA's regulation of wastewater and manure from CAFOs dates to the
1970s. EPA initially issued national effluent limitations guidelines
and standards for feedlots on February 14, 1974 (39 FR 5704), and NPDES
CAFO regulations on March 18, 1976 (41 FR 11458).
In February 2003, EPA issued revisions to these regulations that
focused on the 5% of the nation's animal feeding operations (AFOs) that
presented the highest risk of impairing water quality and public health
(68 FR 7176) (``the 2003 CAFO rule''). The 2003 CAFO rule required the
owners or operators of all CAFOs \1\ to seek coverage under an NPDES
permit. CAFO industry organizations (American Farm Bureau Federation,
National Pork Producers Council, National Chicken Council, and National
Turkey Federation (NTF), although NTF later withdrew its petition) and
environmental groups (Waterkeeper Alliance, Natural Resources Defense
Council, Sierra Club, and American Littoral Society) filed petitions
for judicial review of certain aspects of the 2003 CAFO rule. This case
was brought before the U.S. Court of Appeals for the Second Circuit. On
February 28, 2005, the court ruled on these petitions and upheld most
provisions of the 2003 rule but vacated and remanded others.
Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005). The
court's decision, which applies nationally, is described in detail
below.
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\1\ The Clean Water Act regulates the conduct of persons, which
includes the owners and operators of CAFOs, rather than the
facilities or their discharges. To improve readability in this
preamble, reference is made to ``CAFOs'' as well as ``owners and
operators of CAFOs.'' No change in meaning is intended.
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The revisions to the 2003 CAFO rule being proposed today relate
directly to the changes required by the court's decision and continue
to maintain the focus on regulating discharges from the universe of
high-risk AFOs.
C. Ruling by the U.S. Court of Appeals for the Second Circuit
The Second Circuit's decision in Waterkeeper upheld certain
challenged provisions of the 2003 rule and vacated or remanded others,
as follows.
1. Issues Upheld by the Court
This section discusses provisions of the 2003 CAFO rule that were
challenged by either industry or environmental petitioners, but were
upheld by the Waterkeeper court and therefore remain unchanged. EPA is
not proposing to revise any of these provisions and is not soliciting
comment on them.
(a) Land Application Regulatory Framework and Interpretation of
``Agricultural Storm Water''
The Waterkeeper court upheld EPA's authority to regulate, through
NPDES permits, the discharge of manure, litter, and process wastewater
that CAFOs apply to crop or forage land. The court rejected the
industry petitioners' claim that land application runoff must be
channelized before it can be considered to be a point source discharge
subject to permitting. The court noted that the CWA expressly defines
the term ``point source'' to include ``any * * * concentrated animal
feeding operation * * * from which pollutants are or may be
discharged,'' and found that the Act ``not only permits, but demands''
that land application discharges be construed as discharges ``from'' a
CAFO. Waterkeeper Alliance et al. v. EPA, 399 F.3d at 510.
The Waterkeeper court also upheld EPA's determination in the 2003
CAFO rule that precipitation-related discharges of manure, litter, or
process wastewater from land application areas under the control of a
CAFO qualify as ``agricultural stormwater'' only where the CAFO has
applied the manure in accordance with nutrient management practices
that ensure ``appropriate agricultural utilization'' of the manure,
litter, and process wastewater nutrients. EPA's interpretation of the
Act in this regard was reasonable, the court found, in light of
Congressional intent in excluding agricultural stormwater from the
meaning of the term ``point source'' and given the precedent set in an
earlier Second Circuit case, Concerned Area Residents for the
Environment v. Southview Farm, 34 F.3d 114 (2d Cir. 1994). Waterkeeper
Alliance et al. v. EPA, 399 F.3d at 508-09.
(b) Effluent Guidelines
--Identification of best available technologies. The court rejected the
environmental organizations' claim that when EPA chose the pollution
control technologies on which to base effluent guidelines for CAFOs,
the Agency did not meet its duty to identify the single CAFO with the
best-performing technology. The court found that EPA had collected
extensive data on the waste management systems at CAFOs and had
considered approximately 11,000 public comments on the proposed CAFO
rule, and on those bases, EPA had adequately justified its selection of
``best available technologies'' on which to base the regulations.
--Groundwater controls. The court upheld EPA's decision in the 2003
rule relating to groundwater controls. In the 2003 rule EPA stated that
the Agency believed that requirements limiting the discharge of
pollutants to surface water via groundwater that has a direct
hydrologic connection to surface water were beyond the scope of the
ELGs promulgated in the rule. The Agency also stated that nothing in
the 2003 rule was to be construed to expand, diminish, or otherwise
affect the jurisdiction of the CWA over discharges to surface water via
groundwater that has a direct hydrologic connection to surface water.
--Economic methodologies. The court upheld the analytic methodologies
that EPA used for determining whether the technology-based permit
requirements for CAFOs set in the 2003 rule would be economically
achievable by the industry as a whole.
2. Issues Vacated by the Court
The following are the elements of the 2003 rule that the
Waterkeeper court found to be unlawful and therefore vacated.
(a) Duty to Apply
The CAFO industry organizations argued that the EPA exceeded its
statutory authority by requiring all CAFOs to either apply for NPDES
permits or demonstrate that they have no potential to discharge. The
court agreed with the CAFO industry petitioners on this issue and
therefore vacated the ``duty to apply'' provision of the 2003 CAFO
rule.
The court found that the duty to apply, which the Agency had based
on a presumption that most CAFOs have at least a potential to
discharge, was invalid, because the CWA subjects only actual discharges
to permitting
[[Page 37747]]
requirements rather than potential discharges. The court acknowledged
EPA's policy considerations for seeking to impose a duty to apply but
found that the Agency lacked statutory authority to do so.
(b) Nutrient Management Plans
The environmental organizations argued that the 2003 CAFO rule was
unlawful because: (1) The rule empowered permitting authorities to
issue permits without any meaningful review of a CAFO's NMP, (2) the
rule failed to require that the terms of the nutrient management plan
be included in the NPDES permit, and (3) the permitting approach
established by the rule violated the Clean Water Act's public
participation requirements. The court agreed with the environmental
petitioners on these three issues.
The court relied on provisions of the Act that authorize point
source discharges only where NPDES permits ``ensure that every
discharge of pollutants will comply with all applicable effluent
limitations and standards,'' citing CWA sections 402(a)(1), (a)(2), and
(b). Because the 2003 CAFO rule did not provide for permitting
authority review of a CAFO's nutrient management plan before the permit
was issued, the court found that the rule did not ensure that each
Large CAFO's discharges comply with these CWA provisions. In addition,
the court found that by not making the NMPs part of the permit and
available to the public for review, the 2003 CAFO rule violated public
participation requirements in sections 101(e) and 402 of the Act. The
court also found that the terms of the NMPs themselves are ``effluent
limitations'' as that term is defined in the Act and therefore must be
made part of the permit and enforceable as required under CWA sections
301 and 402.
3. Issues Remanded by the Court
The Waterkeeper court also remanded other aspects of the CAFO rule
to EPA ``for further clarification and analysis,'' as follows:
(a) Water Quality-Based Effluent Limits
The court agreed with EPA that agricultural stormwater is excluded
from the meaning of the term ``point source'' and therefore is not
subject to water quality-based effluent limitations in permits.
However, the court directed EPA to ``clarify the statutory and
evidentiary basis for failing to promulgate water quality-based
effluent limitations for discharges other than agricultural stormwater
discharges as that term is defined in 40 CFR 122.23(e),'' and to
``clarify whether States may develop water quality-based effluent
limitations on their own.''
(b) New Source Performance Standards--100-Year Storm Standard
The 2003 CAFO rule set the new source performance standards (NSPS)
for swine, poultry, and veal CAFOs at a level of zero discharge. A CAFO
in these categories could fulfill this requirement by showing that
either (1) its production area was designed to contain all manure,
litter, process wastewater, and precipitation from the 100-year, 24-
hour storm, or (2) it would comply with ``voluntary superior
environmental performance standards'' based on innovative technologies,
under which a discharge from the production area would be allowed if it
was accompanied by an equivalent or greater reduction in the quantity
of pollutants released to other media (e.g., air emissions). The court
found that EPA had neither justified in the record nor provided an
adequate opportunity for public comment with respect to either of these
provisions. As a result, the court remanded these provisions to EPA to
clarify, via a process that adequately involves the public, the
statutory and evidentiary basis for them.
(c) BCT Effluent Guidelines for Pathogens
The court held that the 2003 CAFO rule violated the CWA because EPA
had not made an affirmative finding that the BCT-based Effluent
Limitations Guidelines (ELGs)--i.e., the ``best conventional
technology'' guidelines for conventional pollutants such as fecal
coliform--do in fact represent BCT technology. The court remanded this
issue to EPA to make such a finding based on the BAT/BPT technologies
EPA studied or to establish specific BCT limitations for pathogens
based on some other technology.
D. What Requirements Still Apply to CAFOs?
The Waterkeeper decision either upheld or did not address most
provisions of the 2003 CAFO rule. This section describes certain key
portions of the rule that were not challenged in Waterkeeper. These
unchallenged provisions are not addressed in or affected by today's
proposal, except to provide background information. EPA has not
reconsidered its initial decision regarding these provisions and is not
soliciting comment on them.
The definitions provided in 40 CFR 122.23(b) of the 2003 CAFO rule
remain in effect and are unchanged. First, an operation must be defined
as an animal feeding operation (AFO) before it can be defined as a
concentrated animal feeding operation (CAFO). 40 CFR 122.23. The term
``animal feeding operation'' is defined by EPA regulation as a ``lot or
facility'' where animals ``have been, are or will be stabled or
confined and fed or maintained for a total of 45 days or more in any 12
month period and crops, vegetation, forage growth, or post harvest
residues are not sustained in the normal growing season over any
portion of the lot or facility.''
Whether an AFO is a CAFO depends primarily on the number of animals
confined, which is also unchanged. Large CAFOs are AFOs that confine
more than the threshold number of animals detailed in 40 CFR
122.23(b)(4). Medium CAFOs confine fewer animals than Large CAFOs and
also: (1) Discharge pollutants into waters of the U.S. through a man-
made ditch, flushing system, or other similar man-made device; or (2)
discharge pollutants directly into waters of the U.S. which originate
outside of and pass over, across, or through the facility or otherwise
come into direct contact with the confined animals. 40 CFR
122.23(b)(6)(ii). The NPDES permitting authority also may, on a case-
by-case basis, designate any AFO, including small AFOs, as a CAFO after
conducting an on-site inspection and finding that the facility ``is a
significant contributor of pollutants to waters of the United States.''
40 CFR 122.23(c). The permitting authority may not exercise its
authority to designate a Small CAFO unless pollutants are discharged
into waters of the U.S. through a man-made ditch, flushing system, or
other similar man-made device, or are discharged directly into waters
of the U.S. which originate outside of the facility and pass over,
across, or through the facility or otherwise come into direct contact
with the animals confined in the operation. 40 CFR 122.23(c)(3).
Although the Waterkeeper decision invalidated the duty to apply
provision promulgated in the CAFO regulations at 40 CFR 122.23(d),
there remains in the NPDES regulations a different duty to apply
provision, at 40 CFR 122.21(a), that applies to point sources in
general, including CAFOs. While the CAFO provision in Sec. 122.23(d)
would have required all CAFOs to apply for a permit, Sec. 122.21(a)
requires only a person who ``discharges or proposes to discharge
pollutants'' to apply. The Waterkeeper decision did not invalidate
Sec. 122.21(a), nor is this provision's continued application to CAFOs
inconsistent with the decision in Waterkeeper. Therefore, under Sec.
122.21(a), CAFOs currently are
[[Page 37748]]
required to apply for an NPDES permit if they discharge or propose to
discharge pollutants other than agricultural stormwater, which is not a
point source discharge.
It should also be noted that the definitions of both ``Medium
CAFO'' and ``Small CAFO'' in the regulations include only those
facilities that have an actual discharge. Thus, under Sec. 122.21(a),
all Medium and Small CAFOs must apply for a permit.
Nutrient management planning requirements for permitted CAFOs
established in the 2003 CAFO rule also were unaffected by the court's
ruling. All permitted CAFOs must develop and implement an NMP that
meets the requirements of 40 CFR 122.42(e) and, for Large CAFOs subject
to 40 CFR Part 412, subpart C or D, 40 CFR 412.4. The NMP identifies
the necessary actions to ensure that runoff is eliminated or minimized
through proper and effective manure, litter, and wastewater management,
including compliance with the ELGs. Permitted CAFOs must comply with
all applicable recordkeeping and reporting requirements, including
those specified in 40 CFR 122.42(e).
ELG requirements for existing Large CAFOs also are unaffected by
the court decision, with the exception of changes to the NMP compliance
dates and BCT. ELG requirements ensure the appropriate storage of
manure, litter, and process wastewater and proper land application
practices. They vary depending upon the types of animals confined:
Subpart A for horses and sheep; Subpart B for ducks; Subpart C for
dairy cattle, heifers, steers, and bulls; and Subpart D for swine,
poultry, and veal calves. (40 CFR Part 412). Additionally, New Source
requirements for beef and dairy operations remain unchanged (40 CFR
412.35).
Permitted small and medium CAFOs are not subject to the ELGs
specified in part 412. Rather, they must comply with technology-based
requirements developed by the permitting authority on a case-by-case
basis (i.e., Best Professional Judgment (BPJ)).
E. Status of EPA's Response to the Waterkeeper Decision
In addition to the changes made through this proposed rule, EPA
extended certain deadlines in the NPDES permitting requirements and
ELGs in a separate rulemaking in order to allow the Agency adequate
time to complete this rulemaking in response to the Waterkeeper
decision in advance of those deadlines. (71 FR 6978). That rule revised
dates established in the 2003 CAFO rule by which facilities newly
defined as CAFOs were required to seek permit coverage and by which all
CAFOs were required to have nutrient management plans developed and
implemented. EPA extended the date by which operations defined as CAFOs
as of April 14, 2003, who were not defined as CAFOs prior to that date,
must seek NPDES permit coverage, from February 13, 2006, to July 31,
2007. EPA also amended the date by which operations that become defined
as CAFOs after April 14, 2003, due to operational changes that would
not have made them a CAFO prior to April 14, 2003, and that are not new
sources, must seek NPDES permit coverage, from April 13, 2006, to July
31, 2007. Finally, EPA extended the deadline by which CAFOs are
required to develop and implement nutrient management plans, from
December 31, 2006, to July 31, 2007. That rulemaking revised all
references to the date by which NMPs must be developed and implemented
as specified in the 2003 CAFO rule.
III. This Proposal
This proposed rule is in response to the Second Circuit Court's
vacature and remand orders. EPA intends to make only those changes
necessary to address the court's decision.
A. Duty To Apply for a Permit
1. Provisions in the 2003 CAFO Rule
(a) Duty To Apply
The 2003 CAFO rule required all CAFOs to seek coverage under an
NPDES permit unless the Director determined that the CAFO has no
potential to discharge. The breadth of this duty to apply was based on
EPA's presumption that most CAFOs have a potential to discharge
pollutants into waters of the United States. Therefore, all CAFOs were
required to apply for a permit, except where the Director determined a
CAFO had no potential to discharge.
(b) ``No Potential To Discharge'' Determination
The 2003 CAFO rule included a process for CAFOs to seek a ``no
potential to discharge'' determination by the Director. Where the
Director determined, based on information supplied by the CAFO
operator, that a CAFO had no potential to discharge manure, litter, or
process wastewater, the CAFO operator had no duty to apply for a
permit, unless circumstances at the facility changed such that the
facility would have the potential to discharge. Examples of facilities
that possibly would have qualified for this exemption included
facilities in very arid areas, facilities that are downslope from
waters of the United States, and facilities with completely enclosed
operations.
2. Summary of the Second Circuit Court Decision
The Second Circuit Court of Appeals vacated the provision that
required all CAFO owners or operators to apply for an NPDES permit. The
court held that the Clean Water Act authorizes EPA to require permits
for the actual discharge of pollutants, but not for mere potential
discharges. Because the 2003 CAFO rule imposed an obligation on all
CAFOs to either apply for an NPDES permit or affirmatively demonstrate
that they have no potential to discharge, the court ruled that it
exceeded EPA's authority under the Clean Water Act.
3. This Proposal
To address the court's decision on the duty to apply, EPA is
proposing changes to the 2003 CAFO rule in two areas:
Revising the requirement that all CAFOs apply for an NPDES
permit; and
Eliminating the procedures for a no potential to discharge
determination.
EPA also seeks to clarify how unpermitted CAFOs may meet the
agricultural stormwater exemption when they land apply manure, litter,
or process wastewater.
(a) Requirement That All CAFOs With a Discharge Seek Permit Coverage
EPA is proposing to delete the ``duty to apply'' requirement
adopted in the 2003 rule, which states that all CAFO owners or
operators must seek coverage under an NPDES permit (40 CFR 122.21(a)(1)
and 40 CFR 122.23(a) and (d)(1)).
Today's proposed rule would replace the ``duty to apply''
requirement of the 2003 rule with a requirement that all CAFOs that
``discharge or propose to discharge'' must seek coverage under an NPDES
permit. This proposed change would address the Waterkeeper court's
ruling and would hold CAFO owners and operators to the same ``duty to
apply'' requirement as already exists for point sources under 40 CFR
122.21(a)(1).
The result of this proposed revision is that only owners and
operators of those CAFOs that discharge or propose to discharge would
be required to seek coverage under an NPDES permit. This revised duty
to apply applies to all owners and operators that discharge or propose
to discharge, regardless of the volume or duration of the discharge
except for discharges of agricultural stormwater (see below). A
facility may seek permit coverage in one of two
[[Page 37749]]
ways, by submitting an application for an individual permit or by
submitting a notice of intent to be covered by a general permit that
has been issued by the permitting authority. Generally, under this
proposal, it would be the CAFO's responsibility to decide whether or
not to seek permit coverage based on whether they discharge or propose
to discharge. This is how the NPDES program operates for other point
sources. Any CAFO that discharged or proposed to discharge and failed
to obtain an NPDES permit would be in violation of the NPDES regulatory
requirement to seek coverage under an NPDES permit. A facility with an
actual discharge would also be in violation of the CWA prohibition
against discharging without an NPDES permit (33 U.S.C. 1311(a)).
Any discharge from a CAFO, even one that is unplanned or
accidental, is illegal unless it is authorized by the terms of a
permit. Many CAFOs have conditions that may result in a discharge. For
example, manure structures that are improperly designed or, for other
reasons, have insufficient capacity (e.g., due to facility expansion)
may discharge. In addition, discharges can occur from a properly
designed containment structure that is improperly operated and
maintained or as a result of precipitation that exceeds the operating
capacity of the structure. In the absence of an actual discharge or
proposed discharge, CAFOs with such conditions are not required under
the terms of today's proposed rule to obtain an NPDES permit. However,
the owner or operator of a CAFO that fails to obtain an NPDES permit
and has a discharge is subject to State or federal enforcement, as well
as liability from citizen suits under CWA Section 505(a).
Because discharges are prohibited from unpermitted CAFOs, NPDES
permit coverage reduces CAFO operator risk and provides certainty to
CAFO operators regarding activities and actions that are necessary to
comply with the Clean Water Act. Compliance with the permit is deemed
compliance with the CWA and thus acts as a shield against EPA
enforcement or citizen suits under CWA Section 402(k). Furthermore,
under the 2003 rule, most CAFO NPDES permits will incorporate ELG
provisions that allow for discharge when precipitation causes an
overflow from a structure that is properly designed, constructed,
operated, and maintained, in accordance with the applicable design
standards. Finally, upset provisions can protect permittees from legal
liability when emergencies or natural disasters cause discharges beyond
the permittee's reasonable control, as provided in Sec. 122.41(n).
This protection is not available to unpermitted CAFOs.
There are many factors a CAFO owner or operator should consider in
determining whether to seek permit coverage. For example, if the CAFO
is in a flood plain, subject to high annual precipitation, or subject
to lengthy rainy seasons, it is likely to have a discharge if the CAFO
drains to a water of the United States. Other factors likely to result
in a discharge include runoff from open feed bunkers, field storage, or
other stockpiles exposed to precipitation; lagoons that are not
sufficiently pumped down for the upcoming winter season; holding of
process wastewater for summer irrigation that precludes adequate
capacity for chronic rainfalls; and inadequate containment due to
unavailability of land for manure, litter, or process wastewater
application due to timing constraints associated with, for example,
saturated ground or imminent rain. In addition, a discharge may occur
from land application due to improper maintenance or operation of
manure handling equipment that may lead to spills, and application of
manure, litter or process wastewater to land in such a way that it does
not qualify for the agricultural stormwater exemption (see below).
EPA recognizes that some CAFOs have a higher likelihood of actually
discharging due to certain geographic and physiographic conditions. In
order to guide CAFOs in making a decision on whether or not to seek
permit coverage, EPA suggests that Large CAFOs falling into one or more
of these categories should consider seeking permit coverage (this list
is not intended to be exhaustive):
1. Where a CAFO is located in close proximity to waters of the
United States with land classified in USDA Land Use Capability Classes
III through VIII \2\;
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\2\ Land capability classification is a system of grouping soils
primarily on the basis of their capability to produce common
cultivated crops and pasture plants without deteriorating over a
long period of time. Soil survey map units contained in United
States Department of Agriculture (USDA) soil surveys typically are
assigned a land capability classification. The eight classes are
defined as follows: Class 1 soils have slight limitations that
restrict their use; Class 2 soils have moderate limitations that
reduce the choice of plants or require moderate conservation
practices; Class 3 soils have severe limitations that reduce the
choice of plants or require special conservation practices, or both;
Class 4 soils have very severe limitations that restrict the choice
of plants or require very careful management, or both; Class 5 soils
have little or no hazard of erosion but have other limitations,
impractical to remove, that limit their use mainly to pasture,
range, forestland, or wildlife food and cover; Class 6 soils have
severe limitations that make them generally unsuited to cultivation
and that limit their use mainly to pasture, range, forestland, or
wildlife food and cover; Class 7 soils have very severe limitations
that make them unsuited to cultivation and that restrict their use
mainly to grazing, forestland, or wildlife; and Class 8 soils and
miscellaneous areas (areas dominated by disturbed soil) have
limitations that preclude their use for plant production and limit
their use to recreation, wildlife, or water supply or for esthetic
purposes.
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2. Where the CAFO's production area is not designed and operated
for zero discharge, including where the containment structure is not
designed or maintained to contain all manure, litter, process
wastewater, precipitation and runoff that may accumulate during periods
when the facility is unable to land apply in accordance with a nutrient
management plan;
3. Where a CAFO that land applies does not have or is not
implementing nutrient management planning that is designed to ensure
that any land application runoff qualifies for the agricultural
stormwater exemption; and
4. Where the CAFO has had a discharge in the past and has not
corrected the factors that caused the discharge to occur.
EPA seeks comment on the completeness and accuracy of the above
list of situations where a discharge may occur to further assist CAFOs
in their decisions regarding whether or not to seek permit coverage.
EPA also solicits comment on its proposal to replace the duty to
apply provision promulgated in the 2003 CAFO rule with the narrower
duty to apply provision described above.
(b) ``No Potential to Discharge'' Determination
EPA is proposing to delete the regulatory provisions adopted in the
2003 CAFO rule allowing CAFOs to demonstrate that they have no
potential to discharge and authorizing the Director to make such a
determination. 40 CFR 122.23(d)(2) and 122.23(f). Such a designation
would be irrelevant because the proposed rule requires only those CAFOs
that discharge or propose to discharge to seek coverage under a permit.
(c) Agricultural Storm Water
The discharge of manure, litter, or process wastewater from a land
application area under the control of a CAFO is a discharge subject to
NPDES permit requirements, unless the discharge is agricultural
stormwater, which is excluded from the meaning of the term ``point
source'' under 33 U.S.C. 1362(14).
As described in the preamble to the 2003 rule, EPA recognized that
manure, litter, or process wastewater applied in accordance with
practices designed to
[[Page 37750]]
ensure appropriate agricultural utilization of nutrients fulfills an
important agricultural purpose, namely the fertilization of crops,
while reducing the potential for a subsequent discharge of pollutants
to waters of the U.S. However, EPA also recognized that some runoff may
occur during rainfall events even when a CAFO applies manure, litter,
or process wastewater in accordance with practices designed to ensure
appropriate agricultural utilization of nutrients. EPA believed that
the potential for runoff and water quality impairments would be
minimized where a CAFO implemented a site-specific NMP in conformance
with 40 CFR 122.42(e)(1)(vi)-(ix) and, for Large CAFOs, the additional
management practices required in 40 CFR 412.4(c).
In the 2003 rule, EPA promulgated a definition of agricultural
stormwater that included compliance with 40 CFR 122.42(e)(1)(vi-ix).
The referenced regulatory text includes requirements for edge-of-field
buffers, testing of manure and soil, land application at agronomic
rates, and record keeping. While not explicitly included in the
definition, Large CAFOs were also required under the effluent
guidelines to comply with technical standards established by the
Director, in accordance with 40 CFR 412.4(c). These more specific
limitations implemented the general requirements at 40 CFR
122.42(e)(1)(vi-ix), and because all CAFOs with a potential to
discharge were required to obtain permits, virtually all Large CAFOs
were required to comply with them.
Under today's proposed rulemaking, Large CAFOs that have only
agricultural stormwater discharges from their land application area,
and no other discharges or proposed discharges from their production or
land application areas, would no longer be required to seek permit
coverage. (See 40 CFR 122.23(e).) However, precipitation-related
discharges from CAFO land application areas would be considered
agricultural stormwater only where the CAFO land applies in accordance
with nutrient management practices that meet the requirements of 40 CFR
122.42(e)(1)(vi)-(ix). EPA believes that, in order for the owner or
operator of a CAFO to qualify for the statutory agricultural stormwater
exemption, manure, litter, and process wastewater must be applied in
compliance with technical standards that are, in significant part,
intended to ensure the appropriate agricultural utilization of the
nutrients contained in the manure, litter, and process wastewater.
The Second Circuit upheld EPA's definition of agricultural
stormwater, and EPA is not proposing to change the definition at this
time, or requesting comment on such a change. However, EPA is
considering requiring explicitly that Large CAFOs that are not
permitted because they do not discharge or propose to discharge comply
with the technical standards for land application established by the
Director (in addition to meeting the requirements of 40 CFR
122.42(e)(1)(vi-ix)) in order for runoff from their fields to be
considered agricultural stormwater (which is exempt from permitting
requirements). Even if EPA does not adopt this requirement explicitly,
EPA believes that unpermitted Large CAFOs should incorporate the
technical standards established by the Director into their NMPs. EPA
also recommends that small or medium AFOs use nutrient management
practices consistent with 40 CFR 122.42(e)(1)(vi-ix) and comply with
the applicable technical standards in their land application of manure,
litter, or process wastewater. EPA requests comment on this issue.
Unpermitted CAFOs that land apply manure, litter, or process
wastewater must document that they are land applying in accordance with
the requirements described above in order to qualify for the statutory
exclusion for agricultural stormwater. (See 40 CFR 122.42(e)(1)(ix).)
The documentation required includes both the nutrient planning and the
additional recordkeeping necessary to demonstrate that the CAFO
properly land applied manure, litter, or process wastewater in
accordance with 40 CFR 122.42(e)(1)(vi)-(ix), including the technical
standards used to translate these requirements into specific land
application rates and practices. EPA believes that an appropriate
approach to planning and documenting such practices is by preparing a
comprehensive nutrient management plan in accordance with guidance
provided by USDA and the appropriate technical standards. Whatever form
the documentation takes, it must be maintained on site. This
documentation is crucial in determining whether the CAFO is land
applying manure, litter, or process wastewater in a manner that ensures
the appropriate agricultural utilization of nutrients and, as a result,
is not illegally discharging pollutants from land application areas.
B. Nutrient Management Plans
1. Provisions in the 2003 CAFO Rule Affected by the Court Decision
(a) Requirement to Develop and Implement a Nutrient Management Plan
Under the 2003 CAFO rule, NPDES permits for all CAFOs must include
a requirement for the permittee to develop and implement a nutrient
management plan. At a minimum, the NMP must include BMPs and procedures
necessary to achieve effluent limitations and standards. The plan must,
to the extent applicable, include the minimum elements established at
40 CFR 122.42(e)(1)(i)-(ix). For Large CAFOs in the cattle, swine,
poultry, and veal subcategories, the NMP must also meet the more
detailed requirements in the Part 412 effluent limitations guidelines.
For Small and Medium CAFOs, or other operations not otherwise subject
to Part 412 requirements for land application, the required elements of
a nutrient management plan would be further specified in the permit
based on the best professional judgment (BPJ) of the permitting
authority. The Second Circuit's decision did not affect these
provisions and EPA is not revisiting them or soliciting comments.
(b) Due Dates for Developing and Implementing Nutrient Management Plans
The 2003 CAFO rule required all CAFOs to develop and implement an
NMP by December 31, 2006, except that CAFOs seeking to obtain coverage
under a permit subsequent to that date were required to have an NMP
developed and implemented upon the date of permit coverage. This timing
was consistent with the dates for the implementation of the ELG, which
required existing Large CAFOs to implement the land application
requirements at 40 CFR 412.4(c) by December 31, 2006. (Following the
court decision these dates were extended to July 31, 2007, to give EPA
time to complete the current rulemaking (see Section II.E).)
As discussed in the preamble to the 2003 CAFO rule, EPA believed
that these dates were reasonable given that operations would have had
three and a half years from the time the 2003 rule was issued to
conduct the necessary planning and construction to implement an NMP.
For Large CAFOs that are new sources (i.e., those commencing
construction after the effective date of the 2003 CAFO rule), the land
application requirements at 40 CFR 412.4(c) apply immediately.
EPA concluded that this timeframe also allowed States to update
their
[[Page 37751]]
NPDES programs and issue permits to reflect the NMP requirements of the
2003 CAFO rule and provided flexibility for permit authorities to
establish permit schedules based on specific circumstances, including
prioritization of nutrient management plan development and
implementation based on site-specific water quality risks and the
availability of technical expertise for development of NMPs.
2. Summary of the Second Circuit Court of Appeals Decision on Nutrient
Management Plans
As previously discussed, the Second Circuit Court of Appeals found
that the terms of the NMPs were effluent limitations and vacated the
2003 CAFO rule insofar as the rule allowed permitting authorities to
issue NPDES permits to CAFOs without: reviewing the terms of the
nutrient management plans, providing for adequate public participation
in the development, revision, and enforcement of the nutrient
management plans, and including the terms of the nutrient management
plan in the permit.
The decision did not affect the required contents of nutrient
management plans established at 40 CFR 122.42(e)(1) and 40 CFR
412.4(c)(1) in the 2003 CAFO rule.
The Second Circuit court decision did not vacate any NPDES permits
issued pursuant to the 2003 CAFO rule. Therefore, such permits already
issued to CAFOs by States or EPA prior to June 27, 2005 (the effective
date of the court's decision), are not directly affected by the court
decision and the nutrient management plan requirements in those permits
remain in effect until and unless the permits are modified, revoked and
reissued, or terminated in accordance with State regulations.
3. This Proposal
To address the court's decision, EPA is proposing regulatory
revisions to the 2003 CAFO rule and other provisions of the NPDES
regulations to provide for:
Receipt and review of the nutrient management plan by the
permitting authority prior to issuing an individual permit or granting
coverage under a general permit;
Procedures to provide opportunity for adequate public
participation prior to issuing an individual permit or granting
coverage under a general permit; and
Incorporation of the terms of the nutrient management plan
into the NPDES permit.
In proposing these revisions, EPA has devoted particular attention
to the process for issuance of general permits, because most CAFOs are
expected to be covered by general permits and, for those that will be
permitted under individual permits, the individual permitting process
already allows for review of NMPs by the permitting authority, public
review of an NMP as part of the individual permit application process,
and incorporation of the terms of the NMP into the individual permit
consistent with the CWA. Further, EPA proposes a process to address
changes to the NMP once permit coverage is granted, for both individual
and general permits. To effectuate these changes, EPA is proposing
regulatory revisions to 40 CFR 122.21, 122.23, 122.28, 122.42, 122.62,
and 122.63. In addition, in a separate rulemaking EPA extended the
deadlines set in the 2003 CAFO rule for NMP development and
implementation, as well as for newly defined CAFOs to seek permit
coverage. (71 FR 6978.)
The preamble discussion that follows is divided into six sections
to separately address each of the following issues:
CAFO permit application and notice of intent requirements;
Procedures for permitting authority review;
Procedures for public review and comment;
Incorporation of nutrient management plan terms in NPDES
permits;
Changes to nutrient management plans; and
Required dates to seek coverage under a permit and submit
an NMP.
(a) CAFO Permit Application or Notice of Intent Requirements for
Nutrient Management Plans
In order to satisfy the court's requirements that the terms of a
nutrient management plan must be publicly reviewed and incorporated
into the permit, EPA is proposing to revise 40 CFR 122.21(i)(1)(x) to
require the applicant to submit, as part of its permit application or
notice of intent (NOI), a nutrient management plan developed in
accordance with the provisions of 40 CFR 122.42(e)(1) and 40 CFR
412.4(c)(1), as applicable. Although this proposed change would be
codified in the section of the regulations applicable to individual
permit applications (40 CFR 122.21(i)(1)), it would also apply to
notices of intent to be covered by a general permit, because 40 CFR
122.28(b)(2)(ii), the regulation governing notices of intent for
general permits, incorporates the requirements of 40 CFR 122.21(i)(1)
by reference. EPA Application Form 2B will also be revised to reflect
these changes. The revised form is provided as Appendix A to this
notice.
This approach is consistent with the decision of the Second Circuit
Court of Appeals, which left undisturbed the basic substantive
requirements for nutrient management plans in the 2003 CAFO rule. The
proposed revisions would not change the required contents of the NMP,
but would now require CAFOs to submit the plan with the application or
the notice of intent rather than only at the request of the Director.
The permitting authority would then make the nutrient management plan
available for review prior to developing an individual permit or
providing coverage under an NPDES general permit.
(b) Procedures for Permitting Authority Review
Once the permitting authority receives an application or an NOI
from a CAFO seeking permit coverage, it would be the responsibility of
the permitting authority to review the application or NOI to ensure
that the nutrient management plan meets the requirements of 40 CFR
122.42(e)(1) and, for Large CAFOs, the applicable requirements of 40
CFR 412.4(c). As part of that process, the Director would review the
NMP for completeness and sufficiency. EPA believes that this review
process responds to the Waterkeeper decision by providing for
permitting authority review of the NMP.
For individual permits, the NMP would be submitted and reviewed as
part of the permit application. The decision-making procedures in 40
CFR Part 124 continue to apply to the Director's review of the
application, which now would include the NMP. Part 124 requires review
of the completeness and sufficiency of the permit, includes an
opportunity for the CAFO to modify the plan or provide additional
information to the permitting authority, and provides for a final
decision by the Director after an opportunity for public comment and a
public hearing.
While the review process for NMPs in individual permits is already
established in existing NPDES regulations, there are gaps in the
requirements for general permitting of CAFOs that EPA proposes to fill
in order to address the Second Circuit Court decision. Specifically,
EPA is proposing new regulatory provisions to establish permitting
authority review of NMPs for CAFO general permits. These procedures are
in the proposed new Paragraph (d) to be added to 40 CFR 122.28.
Proposed 40 CFR 122.28(d) would require the Director to review the
NMP submitted with the NOI and to take
[[Page 37752]]
appropriate steps to ensure that the NMP meets the requirements of the
regulations. If upon review the permitting authority determines that
additional information is necessary to complete the notice of intent or
clarify, modify, or supplement previously submitted material, the
Director would notify the CAFO owner or operator and request the
appropriate information be provided. When the NOI is complete the
permitting authority would notify the public of its receipt and of the
terms of the nutrient management plan proposed to be incorporated into
the existing general permit as terms and conditions applicable to that
CAFO. Following an opportunity for public comment and public hearing,
the permitting authority would decide whether to authorize coverage
under the general permit and incorporate the terms of the NMP into the
general permit for that CAFO.
EPA is considering the use of a template which could be used as a
voluntary tool to facilitate completion of the NMP by CAFO applicants,
as well as to facilitate review by the permitting authority. Such a
template would help to systematically organize the information
necessary to satisfy the NMP requirements in the regulation. The
template could, for example, be used as a form, that when completed by
the operator, and approved by the permitting authority, could suffice
as the NMP itself. Alternatively, it could also be used as a checklist
that the operator and/or permitting authority could use to organize the
information in the NMP and to assist in assessing its adequacy (see
Section III.B.3.d, below). It would be up to the permitting authority's
discretion as to how to incorporate the terms of the NMP into the
permit and permitting authorities might need to tailor any template to
their permit process and technical requirements, including the
technical standards established by the Director.
EPA has developed a draft template for public review that is
intended to be user friendly. It follows the requirements for an NMP
identified in 40 CFR 122.42(e) relating to: manure storage; management
of animal mortalities; diversion of clean water; prevention of direct
contact of animals with waters of the US; chemical handling; site-
specific conservation practices; protocols for testing manure, litter,
process wastewater and soil; protocols for land application; and
recordkeeping. This draft template is in the public record for this
rulemaking at http://www.regulations.gov under docket EPA-HQ-OW-
2005-0037 and is also available on the EPA Web site at http://www.epa.gov. EPA
is interested in receiving feedback on the form and content of the
template.
(c) Procedures for Public Participation Prior to Permit Coverage
As noted above, the regulatory procedures for public participation
in the issuance of individual permits are already established. (See
generally, 40 CFR Part 124.) Because the NMP would be part of the
individual permit application, it would be subject to existing
regulations requiring public participation, including the requirement
for public notice (40 CFR 124.10) and the opportunity for the public to
provide comments and request a public hearing (40 CFR 124.11). Because
of the proposed regulatory change requiring nutrient management plans
to be submitted with the permit application (see discussion at
II.B.3.i.; 40 CFR 122.21 and 122.28), the public would have access to
the nutrient management plan prior to permit issuance and would also
have full opportunity to comment on the adequacy of the plan and on the
nutrient management terms and conditions of the draft NPDES permit
developed for the specific CAFO facility. EPA believes that this
process responds to the court's decision.
The general permit issuance process differs from the individual
permitting process discussed above in the way in which a permit is
developed and the means by which individual facilities obtain coverage
under the permit. A general permit is developed by the permitting
authority to cover multiple facilities without the need to receive
individual permit applications from facilities in advance of the
development of the permit. Once the draft general permit is developed,
the public (including potential future permittees) is provided the
opportunity to review the permit, submit comments, and request a
hearing. After considering any comments submitted, the permitting
authority then finalizes the general permit. Once the final general
permit is issued, facilities may submit a notice of intent (NOI)
seeking coverage under the permit. Typically, the permitting authority
then grants coverage, without the need for further public notice and
comment, or requires the facility to seek coverage under an individual
permit.
Following the Waterkeeper decision, general permits for CAFOs must
be modified, once issued, to include the terms of an NMP applicable to
a specific CAFO. Moreover, Waterkeeper requires that the public have an
opportunity to comment on the incorporation of NMP requirements into
the permit. Thus, a second round of public notice and comment is
necessary when providing coverage for CAFOs under a general permit.
There is no provision in the existing regulations that explicitly
addresses incorporation of site-specific requirements into a general
permit when a CAFO seeks coverage or any additional public process for
such incorporation.
Today, in proposed 40 CFR 122.28(d), EPA proposes to establish new
procedures applicable to the general permitting process that would
allow the incorporation of the site-specific NMPs into CAFO general
permits and provide an opportunity for public review of a CAFO's NOI
(including the entire NMP) before the CAFO receives coverage under a
general permit. The proposed procedures would also allow the public to
review and comment on those terms of the nutrient management plan to be
incorporated into the permit, and to request a public hearing before a
CAFO receives coverage under a general permit. The discussion that
follows describes the process for public participation that EPA is
proposing. Further discussion of incorporation of the terms of the NMP
into the general permit is provided below in section III.B.3.d of this
preamble.
The proposed Sec. 122.28(d) would provide specific procedures for
public participation. The proposed rule would require that, for each
facility submitting a completed NOI, the permitting authority must
notify the public of the following: (1) That it has received a complete
NOI; (2) that the permitting authority is proposing to allow coverage
under the general permit; and (3) that the nutrient management plan is
available for public review, along with the terms of the nutrient
management plan proposed to be incorporated into the permit by the
permitting authority.
Today's proposed rule would allow the permitting authority
discretion as to how best to provide such public notification in the
general permit context. For example, public notification could be
provided on the permitting authority's web page or through other
electronic means. Another alternative would be to use the notice or
fact sheet for the general permit to establish a procedure allowing any
person to request notice by mail or electronically of the receipt of an
NOI, the permitting authority's proposed action, and the terms of the
nutrient management plan proposed to be incorporated into the permit.
EPA believes that these are appropriate ways to balance the competing
concerns of providing adequate notification to the public, providing
flexibility to the permitting authority, and ensuring the practicality
of general permits. The
[[Page 37753]]
permitting authority should describe the process to be used to give the
public notice of and comment opportunities on site-specific NMPs in the
draft and final general permit to ensure meaningful public
participation. EPA solicits comment on the methodology for providing
public notice.
Under today's proposal, the Director would also have discretion to
establish an appropriate period of time for public review of the NOI
and proposed permit conditions incorporating the terms of the NMP into
the permit. For example, the Director might establish a period of 30
days, depending upon a variety of factors. Factors to consider might
include the number of NOIs being publicly noticed at any one time, the
complexity of the material made available for public review, expected
level of public interest based on prior notices of CAFOs seeking
coverage, the relative availability of NOIs to the public (e.g., on the
internet), the opportunity for the public to extend the comment period
for one or more facilities, and whether individuals can request and
receive individual notification of CAFOs seeking coverage in a timely
fashion. Because this proposal would not mandate a 30-day public notice
period as currently required in 40 CFR 124.10, EPA would require that
the Director establish a time frame for public review by regulation or
propose the time frame for public notice in the draft general permit
and include it as a provision in the final permit. This would allow the
public and other interested parties an opportunity to comment on the
sufficiency of the time allotted for public notice. EPA solicits
comment on this approach, as well as on fixed minimum time frames for
public review, such as 7 days, 15 days, 21 days, and 30 days.
The Director would also have to provide an opportunity for the
public to request a hearing. EPA further proposes that the procedures
for requesting and holding a hearing on the terms of the NMP to be
incorporated into the general permit would be the same as those for
draft individual permits, which are provided in Sec. Sec. 124.11
through 124.13. When granting permit coverage, the permitting authority
would be required to respond to all significant public comments.
EPA believes that the proposed processes will provide adequate
notice to affected States. CWA section 402(b)(3) provides that the
Administrator, in approving State programs, shall make sure adequate
authority exists to ensure notice to ``any other State the waters of
which may be affected'' and Section 402(b)(5) provides that the
Administrator must insure that any State ``whose waters may be affected
by the issuance of a permit may submit written recommendations to the
permitting State'' and that if those recommendations are rejected that
the permitting State notify the affected State in writing of the
reasons for the rejection. Although today's proposal does not include
provisions specifically intended to address these requirements, EPA
believes that the public notice provisions are sufficient to notify
affected States. Additionally, the permitting authority's response to
all significant comments would include responses to comments from
affected States. EPA solicits comment from States and other interested
parties as to whether this approach is adequate or whether there are
specific requirements for review by affected States that should be
added to this proposal.
The proposed rule seeks to balance several competing concerns in
crafting the public participation procedures for general permitting of
CAFOs. First, EPA believes that the proposed rule would maintain the
utility of a general permit program as a resource-efficient method by
which to authorize multiple dischargers under an NPDES permit while
meeting the court's directive to ``provide for adequate public
participation'' in the development of site-specific effluent
limitations. Waterkeeper Alliance et al. v. EPA, 399 F.3d at 524.
Second, EPA believes the proposed rule would provide sufficient
flexibility for State permitting authorities to adopt their own
procedures while ensuring they meet the public participation
requirements of the Clean Water Act. EPA is attempting to implement the
Second Circuit decision in a way that would not have the effect of
eliminating the use of general permits for CAFOs. Because of the large
number of CAFOs that may seek permit coverage, the Agency considers it
appropriate to develop procedures that would allow and encourage
permitting authorities to continue the use of NPDES general permits as
a means for applying Clean Water Act limitations and standards to CAFOs
on a timely basis. Of course, the Director may always require a
facility to apply for an individual permit instead of allowing coverage
under a general permit (even after coverage under a general permit has
been granted) under already existing regulations.
EPA seeks comment on the approach taken in today's proposal
concerning public participation in the general permitting process.
Specifically, the Agency is interested in comment as to whether the
procedures strike an appropriate balance between the above mentioned
competing concerns.
(d) Incorporation of Nutrient Management Plan Terms in NPDES Permits
EPA is proposing to modify the language of 40 CFR 122.42(e)(1) to
require that any individual or general permit issued to a CAFO contain
the terms of the NMP. In the 2003 CAFO rule, the Agency finalized
regulations that required each CAFO permit to include requirements to
develop and implement a nutrient management plan that met the
conditions specified in 40 CFR 122.42(e)(1)(i)-(ix) and, for Large
CAFOs, that also fulfilled the requirements of 40 CFR 412.4(c). The
Second Circuit decision did not affect these requirements and EPA is
not revisiting its decision with respect to the contents of the
nutrient management plan. The NMP must continue to include the elements
in 40 CFR 122.42(e)(1)(i) through (x) and the elements required by the
effluent limitation guideline at 40 CFR 412.4(c), where applicable.
However, the proposal would ensure that the terms of the NMP become
terms and conditions of the permit, as required by the Second Circuit.
The Waterkeeper decision requires the permitting authority to
include the terms of a CAFO's nutrient management plan in the NPDES
permit issued to the CAFO. The court's opinion appeared to distinguish
between the ``nutrient management plan,'' which must be submitted by
the CAFO to the permitting authority for review (as discussed above),
and the ``terms'' of the nutrient management plan, which must be
incorporated into the permit following the public review process
described above. In light of the court's opinion, EPA is proposing to
require the permitting authority to incorporate the terms of the NMP
into the permit as enforceable terms and conditions of the permit. At a
minimum, the terms of the NMP must meet the requirements specified in
40 CFR 122.42(e)(1)(i)-(ix) and 412.4(c) (for Large CAFOs, as
applicable). Thus, the terms of the NMP would need to ensure, for
example, adequate storage of manure, litter, and process wastewater,
proper management of mortalities, and diversion of clean water. The
terms of the NMP would identify site-specific conservation practices to
be implemented by the CAFO and establish site-specific requirements for
proper land application of manure, litter, and process wastewater,
including application rates.
[[Page 37754]]
EPA expects that a submitted NMP, as a whole, will include data,
calculations, and other information that provide a basis for the terms
of the NMP and any other planning decisions encompassed in an NMP. The
data, calculations, and additional information are generally analogous
to both the information contained in a permit application and the
assumptions, calculations, and other determinations typically provided
as part of the fact sheet that is prepared for every draft NPDES
permit. On the other hand, the terms of the NMP are the sort of
requirements normally found as terms and conditions in a permit. In
other words, whereas a fact sheet (or, in this case, the supplemental
information provided in the NMP) contains the information that forms
the basis of the requirements included in a permit, the permit itself
contains the actual requirements applicable to the permitted facility.
A complete NMP contains both the requirements applicable to the
facility (``the terms of the NMP'') and the background information
(assumptions, data, calculations, etc.) which provide the basis for
those requirements.
This relationship is well illustrated when considering rates of
application for land applying manure, which, for Large CAFOs, must be
developed consistent with technical standards for nutrient management
established by the Director in accordance with 40 CFR 123.36. These
technical standards typically require application rates to be
calculated using the Phosphorous Index or its equivalent established by
the State. The calculations in turn are derived from data from fields
where land application is to occur and predictions for nutrient
utilization based upon crops to be planted in those fields. In
preparing an NMP, a CAFO would include both the data necessary to
determine the application rates in accordance with the applicable
technical standards and the calculations it used to determine those
rates.
EPA believes that it is appropriate to allow the permitting
authority discretion as to how to incorporate the terms of an NMP that
meets the regulatory requirements of 40 CFR 122.42(e) and 412.4 into
the permit. For example, the permitting authority could simply attach
the whole NMP to the permit and require implementation of the terms of
the NMP as a condition of the permit. Alternatively, the permitting
authority could identify and extract the terms of the NMP from the
larger document and incorporate only the extracted terms into the
permit. Another possibility is that the software used by some nutrient
management planners to develop NMPs could be modified to generate a
separate form that would clearly identify the terms of the NMP when
generating the whole NMP report. As mentioned above, the Agency is
considering the use of a model or template for identification of the
terms of the NMP. The Agency solicits comment on these various
approaches to identify the terms of the NMP that would be included in
the permit.
EPA also seeks comments on a modified approach as an alternative to
the process described above for incorporating nutrient management terms
and conditions into general permits. It is premised on EPA's
recognition that some NMP requirements may be broadly applicable to all
of the CAFOs covered by a general permit. Under this approach there
would be three possible categories of permit conditions. The first
category would include permit conditions that can be established in the
general permit itself so as to apply to all CAFOs seeking coverage
under that permit. The second category would allow for flexibility in
some broadly applicable requirements. Conditions falling into this
category would lend themselves to a default requirement set by the
permitting authority, with the option for facilities to substitute
alternative measures in their NMPs that are equivalent or more
effective in achieving the same objective. In such instances, of
course, it would be necessary for the permitting authority to review
the NMP submitted by each CAFO that chooses such alternative measures
to determine whether the selected measures satisfy the relevant
regulatory requirement(s). The third category would include those
requirements for which a broadly applicable condition in the general
permit would not be possible because they are of necessity facility-
specific. A prime example of this third category is the requirement for
field-specific rates of application.
Under this alternative approach, for the first category of
conditions, the permitting authority would have the discretion to
incorporate some NMP requirements into the terms and conditions of the
general permit itself so they are applicable to all CAFOs covered by
the permit. Examples of requirements that might lend themselves to the
first category include, 40 CFR 122.42(e)(1)(iii) (diversion of clean
water), (iv) (prevent contact of confined animals with waters of the
United States), and (v) (proper disposal of chemicals), and 40 CFR
412.37(a)(4) (mortality management)).
During the comment period on the draft general permit, the public
would have the opportunity to comment and request a hearing on the
broadly applicable nutrient management terms and conditions proposed by
the permitting authority. If after notice and comment the permitting
authority included these conditions in the final permit, the permitting
authority would be free to focus greater attention on those terms of a
facility's nutrient management plan that were actually site-specific
(i.e., those conditions in the second and third categories, described
below, specified in the facility's NMP). Of course, the public would
still have the opportunity to review each CAFO's nutrient management
plan (as well as the terms of the NMP that would be included in the
general permit) to ensure that the plan complied with all conditions of
the general permit. EPA seeks comment on the feasibility of utilizing
this approach under a general permit.
For the second category of permit conditions in this modified
approach, the permitting authority might establish broadly-applicable
permit terms that could be implemented through specific NMP measures,
while allowing for flexibility as previously noted. For example, the
permitting authority could set a minimum requirement for adequate
storage of manure (40 CFR 122.42(e)(1)(i)) by specifying the number of
days of storage capacity for each facility type. In such an instance, a
facility wishing to take an alternative approach would need to
describe, for example, the alternative measures it would take that
would justify a shorter period of storage capacity. Other broadly
applicable requirements that so many qualifiers could lend themselves
to site-specific alternatives might include permit conditions requiring
conservation practices to reduce soil erosion from land application
areas to the tolerable rate (``T'') as a standard to ensure adequate
conservation practices, as required by 40 CFR 122.42(e)(1)(vi), or
requiring CAFOs to address the timing of land application (40 CFR
412.4(c)(2)(i)) in part by prohibiting surface application of manure on
frozen or snow-covered land that is upslope from waters of the United
States. EPA solicits comment on such an approach, the sort of measures
that might lend themselves to such an approach, and the sort of
alternative measures that might qualify as site-specific substitutions.
Under this alternative methodology for establishing some terms of
the NMP, the permitting authority would still need to identify the
third category of facility-specific terms of the nutrient
[[Page 37755]]
management plan to be incorporated into the permit. For example, the
permitting authority would need to identify the manure, litter, and
process wastewater application rates in each CAFO's nutrient management
plan on a site-specific basis and incorporate those rates as terms and
conditions of the permit before the permitting authority could
authorize coverage of the CAFO under the permit. The public would have
the opportunity to review and comment and request a hearing on these
site-specific terms and conditions, as well as on the NMP's adequacy to
satisfy any generally applicable permit requirements, as provided by
the procedures in today's proposal.
EPA believes the alternative described above has the potential to
speed the pace at which unpermitted CAFOs receive authorization under
general permits while being consistent with the Second Circuit
decision. In seeking comments, EPA specifically asks States to comment
on the possible workload burden associated with the procedures proposed
today as well as the alternative described immediately above.
For either approach discussed above, EPA is proposing that the
permitting authority would be required to respond to all significant
comments received during the comment period. As necessary, the Director
would require a CAFO owner or operator to make revisions to the CAFO's
NMP in order to address issues raised during the review process. Once
the Director determines that the process for the development of a
CAFO's NMP has been completed, the Director must make a final decision
whether to grant permit coverage to the CAFO under the general permit.
If coverage is granted, the Director must incorporate the relevant
terms of the NMP into the general permit and inform the CAFO owner or
operator of the terms of the NMP that have been incorporated as permit
conditions.
Under today's proposal, incorporation of the terms of a particular
CAFO's NMP into a general permit would not be a permit modification
subject to 40 CFR 122.62. Rather, EPA views this as an extension of the
CAFO general permitting process itself. As discussed above, EPA intends
the process proposed in 40 CFR 122.28(d)(1) to generally parallel the
procedures in 40 CFR Part 124. A person who objects to the
incorporation of the terms of an individual CAFO's NMP into a general
permit could appeal the permit decision to the Environmental Appeals
Board pursuant to 40 CFR 124.19, when EPA is the permitting authority.
EPA seeks comment on today's proposed process for incorporation of
the terms of a CAFO's NMP into NPDES permits. EPA specifically seeks
comment from States on the workload implications of requiring the
permitting authority to respond to all significant comments on each
individual CAFO's NOI (including the NMP) and the terms of the NMP to
be incorporated into the permit.
(e) Changes to Nutrient Management Plans
When a CAFO obtains coverage under an NPDES permit, as proposed in
today's notice, it would be the CAFO's responsibility to implement the
terms and conditions of the nutrient management plan as incorporated
into the permit, as of the date of permit coverage. Because
agricultural operations sometimes modify their nutrient management and
farming practices as a normal part of their operations, and because
such alterations may require changes to NMPs after a permit is issued,
EPA is proposing a permit revision process to specifically address
these circumstances.
The Agency does not, however, believe that such a process is
necessary for all operating changes at a CAFO. Most routine changes at
a facility should not require changes to the NMP itself because of the
way NMPs are developed. Nutrient management plans are dynamic documents
and are developed to accommodate routine variations, for example
changes resulting from anticipated crop rotation or climatic
variability inherent in agricultural operations, as well as changes in
numbers of animals and volume of manure, litter or process wastewater
resulting from normal fluctuations or a facility's planned expansion.
Nevertheless, as discussed in the preamble to the 2003 CAFO rule,
changes to a nutrient management plan will be necessary under some
circumstances; for example, when there is a substantial increase in the
number of animals, or a major change in the CAFO's cropping program not
anticipated in the original NMP.
EPA encourages CAFO operators to develop, at the outset, NMPs that
thoughtfully anticipate, to the extent feasible, all contingencies and
changes in operations that may occur over the term of the permit. The
NMP should provide information on possible crop rotations or other
alterations in cropping patterns with accompanying field-specific
calculations for manure, litter, and process wastewater application
rates based on realistic crop yield goals, soil characteristics,
weather, and other site-specific field conditions. In this way, the
public will have the opportunity to review all anticipated operational
scenarios and associated field-specific manure, litter, and process
wastewater application rates, including the calculation on which these
rates were based. In this manner, NMPs and associated permit conditions
can address most year-to-year changes in nutrient management practices
during the term of the permit and greatly reduce the need for NMP and
associated permit modifications as a range of potential operational
scenarios will have already been accounted for.
For example, the NMP could specify: (1) The maximum amount of
manure that the CAFO may apply to land application areas under its
control, based on its total available land application area and the
capacity of its waste storage and treatment facilities, as well as
manure and soil test results; (2) the maximum amount of manure that may
be transferred to other persons (see Sec. 122.42(e)(3)) by the CAFO,
given limitations on available markets, the cost of transporting
wastes, etc.; (3) a complete inventory of all of the fields under the
CAFO's control that might receive manure, with the associated acreage,
soil types, soil tests and testing protocols, setbacks, and other soil
conservation measures; (4) a list of all of the crops the CAFO may wish
to grow on each of those fields, with a matrix of the associated
realistic yield expectations and land application rates consistent with
the various field conditions; and/or (5) plans to address contingencies
(e.g., a spill or especially heavy rainfall event), including
consultation with the permitting authority as appropriate.
The NMP should indicate calculations necessary to determine rates
of application for the array of crops most likely to be planted in
accordance with the cropping system utilized by the CAFO operator,
including likely fallback scenarios. For Large CAFOs, the land
application rates must comply with the ELG requirements of 40 CFR
412.4. The NMP may also identify other crops that could be planted and
other fields that might be utilized for land application, thus allowing
the CAFO to utilize a mix of fields and crops different from the most
likely or preferred combinations. Nevertheless, the NMP should
reasonably forecast the practices most likely to be utilized by the
CAFO. EPA solicits comment on the degree of flexibility that should be
allowed in NMPs. Greater flexibility would minimize the need for
subsequent permit revisions, but will also increase the up-front work
load, both for the permittee and for the
[[Page 37756]]
permitting authority, and provide the permitting authority and the
public with less certainty as to which practices the CAFO will actually
utilize.
Even when a CAFO owner or operator develops an NMP that encompasses
a significant degree of flexibility, it nevertheless may be necessary
to revise the NMP during a CAFO's term of permit coverage. EPA believes
that, due to the issues associated with agricultural operations and the
variables associated with nutrient management planning, including
seasonal variations, weather, soil and slope variation, and
availability of feed, seed, and other resources, it is necessary to
provide flexibility in the best management practice requirements for
CAFOs beyond that typically available for other permit conditions.
Consistent with this objective, EPA is proposing to establish specific
protocols to allow changes to an NMP after permit coverage has been
granted.
EPA is proposing formal public notice and comment procedures that
the permitting authority would be required to follow for permit
modification when a CAFO is seeking to make substantial changes to its
NMP. EPA is proposing that substantial changes would include, but are
not limited to: (1) Changes that could result in an increase in runoff
of manure, litter, or process wastewater from the facility; (2) an
increase in the rate of nutrients from manure, litter, or process
wastewater applied to the land application area that is significant in
relation to technical standards established by the Director; (3) a
significant change in the nutrient balance at the CAFO caused by: (i)
An increase in the ratio of animals, manure, litter, or process
wastewater to the available land application acreage or storage
capacity; (ii) changes in the CAFO's procedures for handling, storage,
treatment, or land application of manure, litter, or process
wastewater; (iii) a significant increase in the number of animals; or
(iv) a significant reduction of manure, litter, or process wastewater
hauled off site when there is no equivalent decrease in the amount of
manure, litter, or process wastewater produced; and (4) the addition of
land application areas not previously included in the nutrient
management plan. Specific examples of such changes would include
changes to the method of land application from injection to surface
application, changes in timing from spring to late fall or winter
application, and installation of new drainage systems that would
increase runoff from land application fields. The proposed new
paragraph 40 CFR 122.42(e)(5)(iv) identifies what would constitute
substantial changes to the facility's NMP that would trigger this
process for permit revisions.
For these types of changes, EPA is proposing to create new
procedures in 40 CFR 122.42(e)(5) to allow CAFOs to change their
nutrient management plans after the Director has incorporated the terms
of the NMP into the permit. These procedures, which would be available
to CAFOs operating under both individual and general permits, would be
nearly identical to those for CAFOs seeking coverage in the first
place. The Agency believes that such a process satisfies the need for
the permitting authority and the public to have ample opportunity to
review and comment on changes to a facility's NMP, while allowing the
CAFO the flexibility it needs.
In addition, there may be changes at a facility that were not
contemplated in the currently applicable NMP that do not require
substantial changes to the terms of the NMP in the permit. In these
instances, while a revised NMP would need to be submitted to the
Director, the Director should not need to seek public comment on the
revised NMP. Such changes might include, for example, changes in
cropping patterns not anticipated in the original NMP where they are
managed consistent with the original plan and properly documented. In
such instances, today's proposal would require the CAFO owner or
operator to provide the revised NMP, along with appropriate
documentation to reflect changed conditions, to the permitting
authority. The better the documentation of the terms in the NMP,
including calculations, the easier it will be for a permitted facility
to demonstrate that changes in its nutrient management practices are
non-substantial modifications of its NMP.
Today's proposal (see proposed 40 CFR 122.42(e)(5)) would require
that, whenever a CAFO makes any change to its NMP, the owner or
operator would provide the Director with the revised NMP and identify
the changes from the previous version submitted to the permitting
authority. The Director would then review the changes to ensure that
the NMP still meets the requirements of 40 CFR 122.42(e)(1)(i) through
(x) and, for Large CAFOs, 40 CFR 412.4(c) and technical standards
developed by the Director. If the changes are not substantial, the
Director would simply modify the permit as necessary and notify the
public of such modification (and not seek public comment). If the
changes are substantial, the nutrient management plan would be revised
using procedures similar to those proposed for the initial
incorporation of an NMP into a general permit. Thus, today's proposed
rule would require the Director to notify the public of substantial
changes, and provide an opportunity for public notice and comment.
Moreover, the appeals process would be the same as that for
incorporation of NMPs into a general permit. EPA solicits comment on
the approach proposed to deal with NMP revisions, as well as on the
conditions concerning what constitutes a substantial change to an NMP.
Because the process in 40 CFR 122.42(e)(5) would allow for public
review of changes to the terms of nutrient management plans and the
underlying data and calculations, EPA proposes that the incorporation
of changes to the permit through this process would be treated as a
minor permit modification, under Sec. 122.63(h), and not require
additional review. EPA considered requiring any change to the NMP to be
considered a permit modification requiring procedures under Sec.
122.62, but rejected this option as it would significantly burden
permitting authorities and CAFO operators' ability to make necessary
and timely minor changes to NMPs as discussed above.
For substantial changes, the Agency also proposes to expressly
allow the facility, at the Director's discretion, to proceed in
implementing the change for up to 180 days before completion of public
review and permitting authority approval, so long as the change is not
likely to result in increased runoff of manure, litter or process
wastewater from the facility. Given the importance of timing in
farming, EPA recognizes that CAFOs may be unable to delay the
implementation of a substantial change to their nutrient management
plan to allow for public review and still implement the change in a
timely fashion.
EPA believes that it would be reasonable to allow the Director to
temporarily allow substantial changes so long as certain conditions are
met. First, the approval would be temporary, allowing the CAFO to
implement the changes for only 180 days. Second, the facility would
need to provide to the Director documentation to demonstrate that the
change would not result in increased runoff of manure, litter, or
process wastewater from the facility. Third, the Director would have to
review the documentation and conclude that the changes would not result
in increased runoff of manure, litter, or process wastewater from the
facility. Finally, the Director would have to include such expedited
decisions with the permit in the public record and notify the public of
its decision. Moreover, by the end of the 180 day
[[Page 37757]]
period, these changes would need to undergo the public review
procedures required for all substantial changes and be incorporated
into the CAFO's permit by the Director. Changes EPA intends to
encompass within this provision include the addition of new fields for
land application where the Director determines that such additional or
replacement fields have equivalent phosphorous ratings (based on the
Phosphorous Index, for example) for nutrient uptake as the fields they
are supplementing or replacing, whichever may be the case. EPA is
interested in commenters' views concerning this proposed provision. EPA
specifically solicits comment on whether a change that would result in
increased rates of land application of manure, litter, or process
wastewater in addition to those changes likely to result in increased
runoff, should also be precluded from expedited implementation during
the 180 day period.
EPA is also interested in taking comment on an approach that might
allow greater flexibility for CAFO operators in making cropping
decisions while assuring permitting authorities and the public that
they are complying substantively with the terms of the NMP as
incorporated into the permit, even if the CAFO modifies its practices
somewhat from those articulated in the NMP and the permit. Under this
approach, the Agency would modify the annual report requirements for
permitted CAFOs in 40 CFR 122.42(e)(4) to require all CAFOs to submit
information with the annual report indicating how the CAFO achieved
substantive compliance with the terms of the NMP as set forth in the
permit. If the CAFO implemented any cropping options not included in
the calculations provided in the NMP, the CAFO would document the
procedures and nutrient management practices utilized, including crops
grown and fields planted, together with nutrient management
calculations that governed its land application practices for the prior
calendar year, and explain how the modified cropping options as
implemented continued to comply with the substantive terms of the NMP
incorporated into the permit. Under this option, EPA would include
guidance in either rule or preamble text on which types of deviations
from the NMP would be allowed, and what would be required to
demonstrate in the annual report that these deviations substantively
complied with the permit terms. The Agency solicits comment on whether
such an approach would be practical and the extent to which it could
allow greater flexibility for CAFOs to meet the NMP requirements
incorporated into their permits, while still ensuring appropriate
permitting authority and public oversight of permit compliance.
(f) Required Dates
In a separate rulemaking, EPA revised the dates in the 2003 CAFO
rule by which CAFOs were required to develop and implement their NMPs.
(71 FR 6978.) The 2003 CAFO rule required newly defined CAFOs to seek
coverage under an NPDES permit by February 13, 2006, but required the
development and implementation of a nutrient management plan by
December 31, 2006. This would have conflicted with today's proposal
that CAFOs submit their NMPs with their permit applications or notices
of intent, as required by the Second Circuit Court's decision. The new
rule requires CAFO owners and operators to submit their NMPs at the
time of the permit application by extending the deadline for both to
July 31, 2007. EPA extended these deadlines in a separate rulemaking so
as to provide the Agency sufficient time to develop the regulatory
revisions proposed in this rulemaking that more broadly respond to the
Waterkeeper decision.
C. Remand Concerning Water Quality Based Effluent Limitations
Water quality-based effluent limitations (WQBELs) are one of two
fundamental types of limitations imposed in NPDES permits. The other is
technology-based limitations. Technology-based limitations are required
in all NPDES permits, unless the permit writer imposes more stringent
WQBELs in the permit where necessary to ensure that water quality
standards are attained in the receiving waters. (See CWA Section
301(b)(1)(c), 33 U.S.C. 1311(b)(1)(c), and 40 CFR 122.44(d).) Where
WQBELs are necessary, the permit writer establishes them without
consideration of the availability or effectiveness of treatment
technologies or the costs that dischargers would incur to meet those
water quality-based limits. (See Arkansas v. Oklahoma, 112 S.Ct. 1046,
1054 (1992); Westvaco v. EPA, 899 F.2d 1383 (4th Cir. 1990).)
The environmental petitioners claimed that the 2003 CAFO rule
violated both the Clean Water Act and the Administrative Procedure Act
because it failed to promulgate WQBELs for CAFO discharges and also
barred States from doing so. The Second Circuit agreed in part with
this claim, as described in Section II.D.3 above, and remanded this
issue to EPA for further clarification.
The terms of the 2003 CAFO rule itself do not contain any
requirements concerning WQBELs, but EPA addressed the subject of WQBELs
in the preamble. In fact, there was only one WQBELs issue that EPA
addressed or intended to address in the preamble--whether WQBELs can be
imposed for land application discharges of agricultural stormwater--and
on that issue, the court expressly agreed with EPA's discussion. What
appears to have troubled the court were certain statements in the
preamble that the court thought might also address how WQBELs apply to
other types of discharges. EPA therefore offers the following
clarification.
1. The Application of WQBELs to CAFO Discharges Under the 2003 CAFO
Rule
How WQBELs apply to a CAFO's land application runoff is different
from how they apply to discharges from a CAFO's production areas, as
explained below.
(a) Land Application Discharges
In the 2003 rule, to determine how WQBELs apply to land application
discharges at CAFOs, EPA first had to consider the statutory exclusion
for agricultural stormwater. In the Clean Water Act, the definition of
``point source'' specifically includes CAFOs but excludes agricultural
stormwater discharges. (See CWA Section 502(14).) In the 2003 CAFO
rule, EPA interpreted how this exclusion applies to discharges from
land application at CAFOs. EPA found that where a CAFO applies manure,
litter, or process wastewater to its fields, the resulting discharges
from those fields are regulated by the Clean Water Act as point source
discharges except where they qualify as agricultural stormwater. EPA
determined that land application discharges qualify as agricultural
stormwater only where manure, litter, or process wastewater has been
applied in accordance with site-specific nutrient management practices
that ensure appropriate agricultural utilization of the nutrients in
the manure, litter or process wastewater, as specified in Sec. 122.42
(e)(1)(vi)-(ix). (See 40 CFR 122.23(e).) Where a CAFO has not followed
such practices, EPA concluded that any resulting precipitation-related
discharge was not intended by Congress to be excluded from the Act as
agricultural stormwater and is therefore subject to NPDES requirements.
The land application requirements of the 2003 CAFO rule reflected
this interpretation by EPA of the agricultural stormwater exclusion in
the Act. EPA
[[Page 37758]]
found that where a CAFO follows these practices, any and all
precipitation-related discharges of manure, litter, or process
wastewater that occur from land application fields would be covered by
the agricultural stormwater exclusion and would thus be considered
nonpoint source runoff. (68 FR 7198.) In other words, a CAFO that
follows the requirements in the 2003 rule eliminates all precipitation-
related point source discharges from its land application fields. While
physically there may still be some runoff from the fields related to
precipitation, the CAFO has no discharge of regulated precipitation-
related runoff, since any remaining precipitation runoff is
agricultural stormwater.
Because the CAFO effluent guidelines--the technology-based
regulations--already prohibit all precipitation-related land
application discharges that are subject to regulation, EPA noted in the
2003 rule that it is not possible for a CAFO permit writer to add any
other permit limitations on these discharges that are more stringent
than the CAFO effluent guidelines, including any water quality-based
limitations. (See 68 FR at 7198.) Only discharges of agricultural
stormwater, which are nonpoint source discharges, remain. The Second
Circuit agreed that the rule ``does not present a problem to the extent
that [it] fails to promulgate--and bars States from promulgating--
WQBELs for any `agricultural stormwater discharge' * * * Agricultural
storm water discharges are, after all, statutorily exempt from any
effluent limitations, including WQBELs, because they are non-point
source discharges.'' Waterkeeper, 399 F.3d at 522.
It should be noted that the key point of this discussion--that
water quality-based effluent limits are not available to limit land
application discharges that are agricultural stormwater--involves, in
the first instance, only precipitation-related land application
discharges, since only precipitation-related discharges can be
agricultural stormwater. Water quality-based effluent limits are
available to the permit writer to limit any non-precipitation related
(i.e., dry-weather) discharges that occur at land application areas to
levels that are more stringent than the technology-based limitations
(effluent guidelines), and EPA never intended to indicate otherwise. As
EPA stated in the 2003 rule, ``any dry weather discharge of manure or
process wastewater resulting from its application to land area under
the control of a CAFO would not be considered an agricultural
stormwater discharge and would thus be subject to Clean Water Act
requirements.'' 68 FR 7198. To be sure, in most instances, a CAFO's
requirement to meet technology-based permit limits that require manure
to be applied at appropriate agronomic rates should itself eliminate
all or most dry weather discharges. Nevertheless, if such discharges
remain, the need for additional water quality-based effluent limits to
control them will be determined by the permit writer based on the
circumstances of each particular case.
(b) Production Area Discharges
In contrast to precipitation-related land application discharges,
under the 2003 rule, WQBELs can be applied by permit writers in
appropriate cases to further limit discharges from CAFO production
areas (except for new source CAFOs in the swine and poultry sectors, as
discussed below). WQBELs can be imposed on these production area
discharges, where appropriate, because the effluent guidelines do not,
by themselves, prohibit all ``regulatable'' discharges from the
production area. The effluent guidelines allow occasional overflow
discharges from properly designed, operated, and maintained lagoons and
storage ponds. It is possible that WQBELs might be necessary in a
particular permit to further limit these discharges beyond the levels
that are authorized under the CAFO effluent guidelines. It should also
be noted that the exclusion for agricultural stormwater does not apply
to discharges from the CAFO production area, as EPA stated in the 2003
rule. (See 40 CFR 122.23(e) and 68 FR 7198). Thus, the agricultural
stormwater exclusion does not serve to limit how WQBELs may be imposed
to control production area discharges.
For new source CAFOs in the swine and poultry sectors, however, no
WQBELs can be imposed in permits for the production areas. This is
because the effluent guidelines already prohibit all production area
discharges from these new sources. (See 40 CFR 412.46(a).)
2. Discussion
The Second Circuit expressed two concerns with EPA's discussion of
how WQBELs apply at CAFOs. First, the court found that it was ``unclear
* * * why the CAFO Rule exempts discharges other than agricultural
storm water discharges from WQBELs.'' (See 399 F.3d at 522.) EPA had
indicated its intention, the court found, ``not to promulgate any
WQBELs whatsoever.'' As an initial matter, WQBELs for CAFOs are
derived, where appropriate, on a case-by-case basis for individual
permits, not promulgated in EPA regulations. EPA never intended to
``promulgate'' any WQBELs in the 2003 rule, but simply to discuss how
WQBELs might apply once a CAFO applied for a permit.
Specifically, the court was concerned by EPA's preamble statement
that ``EPA does not expect that water quality-based effluent
limitations will be established for CAFO discharges resulting from the
land application of manure, litter, or process wastewater.'' 399 F.3d
at 522, citing 68 FR 7207. The court may have been concerned that EPA
was exempting from the application of WQBELs not only agricultural
stormwater discharges from CAFO land application areas (which the court
agreed are not subject to WQBELs) but also any other discharges from
land application areas or even production areas. (See 399 F.3d at 522
(``EPA has * * * only justified its determination not to impose WQBELs
* * * only insofar as agricultural stormwater discharges are concerned
* * * The EPA has not attempted, in any way, to explain its failure to
promulgate WQBELs for CAFO discharges other than agricultural
stormwater discharges * * *'').) This was not EPA's intent. EPA
intended only to affirm that where the precipitation-related discharge
from land application areas has been limited to only agricultural
stormwater, WQBELs are not available as further limitations on those
discharges.
Based on its understanding, the court directed EPA ``to explain
whether or not, and why, WQBELs are needed to assure that CAFO
discharges will not `interfere with the attainment or maintenance of
that water quality in a specific portion of the navigable waters which
shall assure protection of public health, public water supplies,
agricultural and industrial uses, and the protection and propagation of
a balanced population of shellfish, fish and wildlife, and allow
recreational activities in and on the water,' '' citing 33 U.S.C.
1312(a). 399 F.3d at 523. In response, EPA clarifies that WQBELs are
not available for permits with respect to precipitation-related land
application discharges for CAFOs. However, water quality-based effluent
limits can be included in permits as necessary with respect to non-
precipitation-related land application discharges and with respect to
production area discharges, as discussed above. For example, with
respect to production area discharges, under the effluent guidelines, a
CAFO may be subject to a permit requirement that allows production area
discharges
[[Page 37759]]
only if the CAFO designs and operates its lagoon or pond to contain all
process wastewater plus any storm water runoff resulting from the 25-
year, 24-hour storm. But water quality considerations may lead the
permit writer to impose a more stringent permit requirement such as
allowing discharges only if the lagoon or pond is designed and operated
to contain water from an even bigger storm.
The court's second concern was that the 2003 rule preamble was
``ambiguous about whether States may promulgate WQBELs for discharges
other than agricultural stormwater discharges.'' 399 F.3d at 523. The
court directed EPA to explain this issue more clearly on remand. In
response, the reasoning described above applies to State-issued as well
as EPA-issued NPDES permits. Permit writers in NPDES-authorized States
can include WQBELs as necessary with respect to non-precipitation-
related land application discharges and with respect to production area
discharges.
There are two additional considerations, however, with respect to
State-issued permits. First, the effluent guidelines require CAFOs to
limit their land application of wastes to levels that comport with
State technical standards for manure management. In the 2003 rule
preamble, EPA encouraged States to address water quality protection
issues in setting those technical standards for appropriate land
application practices. (See 399 F.3d at 523, citing 68 FR 7198). Thus,
although the effluent guidelines are by their nature technology-based,
EPA encouraged the States to address water quality concerns in setting
their technical standards for manure management. But this does not
change the basic regulatory scheme under which, once those technology-
based standards are applied in a permit, the only remaining
precipitation-related runoff is agricultural stormwater, for which
water quality-based effluent limitations are not available.
Second, it is possible that a State can have additional
requirements under its own State regulatory authorities that would go
beyond the requirements of the federal NPDES program. Thus, where the
only runoff from a CAFO's land application area is agricultural
stormwater, that remaining runoff, though not subject to further NPDES
regulation, could be subject to additional State requirements that are
broader in scope, including additional requirements related to water
quality. 33 U.S.C. 1370 and 40 CFR 123.1 and 123.25. These
requirements, however, would not be federally enforceable.
D. New Source Performance Standards for Subpart D Facilities
1. Provisions in the 2003 CAFO Rule
(a) 100-Year, 24-Hour Rainfall Event Design Standards
The Clean Water Act requires EPA to promulgate New Source
Performance Standards (NSPS) for new, as opposed to already existing,
sources of pollution. (See 33 U.S.C. 1316.) The Act provides that these
standards must ``reflect the greatest degree of effluent reduction
which the Administrator determines to be achievable through application
of the best available demonstrated control technology, processes,
operating methods, or other alternatives, including, where practicable,
a standard permitting no discharge of pollutants.'' 33 U.S.C.
1316(a)(1). The Act further requires that EPA ``take into consideration
the cost of achieving such effluent reduction, and any non-water
quality, environmental impact and energy requirements.'' 33 U.S.C.
1316(b)(1)(B). EPA is given considerable discretion to weigh and
balance the various factors required by statute to set NSPS.
Riverkeeper, Inc. v. EPA, 358 F. 3d 174, 195 (2d Cir. 2004).
The 2003 CAFO rule effluent guidelines for new Subpart D (swine,
poultry, and veal) operations prohibit the discharge of any pollutants
from CAFO production areas. It is common for new poultry, veal, and
swine operations to confine the animals so that they are never exposed
to rainfall or storm water runoff. In addition, many new operations
employ manure handling systems that greatly reduce or eliminate the use
of water as a conveyance or handling mechanism for the manure, and
typically contain manure in covered or indoor facilities. (See 68 FR
7219 and Chapter 8 of the ``Technical Development Document for the
Final Revisions to the National Pollutant Discharge Elimination System
Regulation and the Effluent Guidelines for Concentrated Animal Feeding
Operations'' (EPA-821-R-03-001) or ``TDD'' for more information.) Based
on these technologies, EPA determined that a no discharge standard was
technologically feasible.
EPA recognized that CAFOs may use different technologies to meet
the no discharge standard and that these technologies may have slightly
different vulnerabilities to extreme weather events. Therefore, the
2003 CAFO rule would have allowed CAFOs to meet the no discharge
standard by using waste management and storage facilities designed,
constructed, operated, and maintained to contain all manure and process
wastewater including the runoff and precipitation from a 100-year, 24-
hour rainfall event.\3\ The 100-year, 24-hour rainfall event is a
statistical event defined as the amount of rainfall that has a one
percent chance of being exceeded in a 24-hour period in any given year.
Thus, a facility that was adequate to contain both the process
wastewater generated at the facility and the runoff and precipitation
from the 100-year event would not discharge in circumstances resulting
in runoff and precipitation less than that produced in the 100-year
event, when properly operated and maintained. EPA provided the 100-
year, 24-hour rainfall event criteria to provide clarity to the
regulated community about how to design, operate and maintain their
manure handling systems to achieve the no discharge standard.
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\3\ All storage structures must be operated in accordance with
the additional measures specified in the regulations at 40 CFR
412.37(a) and (b).
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(b) Superior Alternative Performance Standards
The 2003 CAFO rule also allows existing CAFOs in Subparts C and D,
and new beef, dairy, and heifer CAFOs to voluntarily participate in the
Voluntary Alternative Performance Standards program. The alternative
performance provisions allow CAFOs to request that the Director
establish alternate permit effluent limitations in place of the 25-
year, 24-hour storm standard that would otherwise apply. This provision
enables CAFOs to implement new technologies and management practices
that perform as well as or better than the baseline effluent guidelines
at reducing pollutant discharges to surface waters from the production
area. To demonstrate that an alternative control technology would
achieve equivalent or better pollutant reductions than the baseline
effluent guidelines, the CAFO must submit a technical analysis, which
first calculates the pollutant discharges based on the site-specific
modeled performance of a system designed to comply with the baseline
effluent guidelines and then demonstrates that the proposed alternate
limitations would result in equal or lower discharges. The minimum
specific components of the technical analysis were included in the ELGs
at 40 CFR 412.31(a)(2).
For new Large swine, poultry, and veal CAFOs (new sources under
Subpart D), the 2003 rule had a similar provision for alternative
permit limitations--the ``Voluntary Superior Environmental Performance
Standards'' provision. This NSPS provision empowered permitting
[[Page 37760]]
authorities to establish site-specific alternative performance
standards that allow production area discharges, so long as such
discharges were accompanied by reductions of pollutant discharges to
other media. (See 40 CFR 412.46(d).) Specifically, the quantity of
pollutants discharged from the production area had to be accompanied by
an equivalent or greater reduction in the quantity of pollutants
released to other media from the production area (e.g., air emissions
from housing and storage), the land application areas for all manure,
litter, and process wastewater at on-site and off-site locations, or
both. The Director was given the discretion to request supporting
information to supplement such a request.
2. Summary of the Second Circuit Court Decision Concerning Remanded
Issues
The Second Circuit Court of Appeals remanded several elements of
the 2003 CAFO rule related to new sources. Specifically, the court
directed EPA to clarify the statutory and evidentiary basis for
allowing subpart D CAFOs to comply with the NSPS requirements by either
the 100-year storm standard or the alternative performance standards.
With respect to the 100-year storm standard, the Court noted that while
certain studies showed that the production area BMPs adopted by the
2003 CAFO rule would have substantially prevented the production area
discharges documented in the record, the court explicitly stated that
substantially preventing discharges is not the same as prohibiting them
outright. With respect to the alternative performance standards, the
court held that EPA had not justified its decision to allow compliance
with the no discharge standard through an alternative standard
permitting production area discharges so long as the aggregate
pollution to all media is equivalent to or lower than that resulting
from the baseline standards. The court further held that EPA did not
provide adequate notice for either of these provisions under the Clean
Water Act's public participation requirements. (See 33 U.S.C. 1251(e)
(``Public participation in the development, revision, and enforcement
of any regulation, standard, effluent limitation, plan, or program
established by the Administrator or any State under this Act shall be
provided for, encouraged, and assisted by the Administrator and the
States'').)
3. This Proposal
(a) 100-Year Storm Containment Structure
EPA has reconsidered the NSPS in light of the Second Circuit
decision. As a result of its review, EPA is proposing to delete 40 CFR
412.46(a)(1), the provision allowing CAFOs to meet the no discharge
standard through the use of a 100-year, 24-hour rain event containment
structure. If EPA adopts this change, all discharge of manure, litter,
and process wastewater would be prohibited from the production area for
new source swine, poultry, and veal calf operations. The land
application requirements would remain unchanged. Regulatory language
implementing the proposed change may be found in today's proposed rule
text.
As part of this approach, EPA also proposes to modify Section
412.37(a)(2) by removing the requirement that all surface liquid
impoundments at new sources have a depth marker indicating the minimum
capacity to contain the runoff and direct precipitation from a 100-
year, 24-hour rain event. The removal of the 100-year storm containment
structure provision for new sources makes this provision irrelevant.
Although the Agency proposes to delete the 100-year, 24-hour depth
marker requirement, EPA recognizes that a marker indicating depth can
be an excellent means of displaying how much storage a CAFO has, and
whether it is time to pump down levels in the lagoon or pond. EPA
believes depth markers are a useful tool to help with the management of
any facility, and proposes to maintain, in 412.37(a), the depth marker
requirement in the rule, even though EPA removed the 100-year, 24 hour
rainfall specification. EPA solicits comment on this provision of the
ELGs.
Additionally, EPA is proposing an alternative that would authorize
the NPDES Program Director to establish no discharge best management
practice effluent limitations based upon a site-specific evaluation for
an individual CAFO. Compliance with such limitations would provide an
alternate approach for CAFOs to meet the zero discharge requirement.
Specifically, EPA is proposing to authorize permit writers, upon
request by a CAFO, to establish best management, zero discharge
effluent limitations on a case-by-case basis when a facility
demonstrates through a rigorous modeling analysis that it has designed
an open containment system that will comply with the no discharge
requirements. If a facility has complied with all of the specified
site-specific design, construction, operation, and maintenance
components of such a system demonstrated to meet the zero discharge
requirement, it would be deemed to be in compliance with the no
discharge requirement even in the event of an unanticipated discharge.
EPA continues to recognize that CAFOs may use different
technologies to meet the no discharge standard and that these
technologies may have different vulnerabilities to extreme weather
events. While some CAFOs may use closed containment systems to ensure
meeting the no discharge requirements, EPA seeks to encourage new
source CAFOs to consider implementation of anaerobic digesters, multi-
cell treatment lagoons, and nitrification and/or denitrification
technologies. While these innovative technologies should be able to
achieve zero discharge, and the operator must demonstrate to the permit
authority's satisfaction that the system will be designed, operated and
maintained to do so, there may be greater uncertainty in the
performance of these systems during exceptionally heavy rainfalls and
other rare weather conditions. To address such situations, EPA believes
it appropriate to allow a facility to use an upset/bypass defense under
40 CFR 122.41(m)-(n), for events that are beyond the