[Code of Federal Regulations]

[Title 40, Volume 21]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR122.23]



[Page 168-172]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 122_EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 

DISCHARGE ELIMINATION SYSTEM--Table of Contents

 

   Subpart B_Permit Application and Special NPDES Program Requirements

 

Sec.  122.23  Concentrated animal feeding operations (applicable to State 

NPDES programs, see Sec.  123.25).



    (a) Permit requirement for CAFOs. Concentrated animal feeding 

operations, as defined in paragraph (b) of this section, are point 

sources that require NPDES permits for discharges or potential 

discharges. Once an operation is defined as a CAFO, the NPDES 

requirements for CAFOs apply with respect to all animals in confinement 

at the operation and all manure, litter and process wastewater generated 

by those animals or the production of those animals, regardless of the 

type of animal.

    (b) Definitions applicable to this section:

    (1) Animal feeding operation (``AFO'') means a lot or facility 

(other than an aquatic animal production facility) where the following 

conditions are met:

    (i) Animals (other than aquatic animals) have been, are, or will be 

stabled or confined and fed or maintained for a total of 45 days or more 

in any 12-month period, and

    (ii) Crops, vegetation, forage growth, or post-harvest residues are 

not sustained in the normal growing season over any portion of the lot 

or facility.

    (2) Concentrated animal feeding operation (``CAFO'') means an AFO 

that is defined as a Large CAFO or as a Medium CAFO by the terms of this 

paragraph, or that is designated as a CAFO in accordance with paragraph 

(c) of this section. Two or more AFOs under common ownership are 

considered to be a single AFO for the purposes of determining the number 

of animals at an operation, if they adjoin each other or if they use a 

common area or system for the disposal of wastes.

    (3) The term land application area means land under the control of 

an AFO owner or operator, whether it is owned, rented, or leased, to 

which manure, litter or process wastewater from the production area is 

or may be applied.

    (4) Large concentrated animal feeding operation (``Large CAFO''). An 

AFO is defined as a Large CAFO if it stables or confines as many as or 

more than the numbers of animals specified in any of the following 

categories:

    (i) 700 mature dairy cows, whether milked or dry;

    (ii) 1,000 veal calves;

    (iii) 1,000 cattle other than mature dairy cows or veal calves. 

Cattle includes but is not limited to heifers, steers, bulls and cow/

calf pairs;

    (iv) 2,500 swine each weighing 55 pounds or more;

    (v) 10,000 swine each weighing less than 55 pounds;

    (vi) 500 horses;

    (vii) 10,000 sheep or lambs;

    (viii) 55,000 turkeys;

    (ix) 30,000 laying hens or broilers, if the AFO uses a liquid manure 

handling system;



[[Page 169]]



    (x) 125,000 chickens (other than laying hens), if the AFO uses other 

than a liquid manure handling system;

    (xi) 82,000 laying hens, if the AFO uses other than a liquid manure 

handling system;

    (xii) 30,000 ducks (if the AFO uses other than a liquid manure 

handling system); or

    (xiii) 5,000 ducks (if the AFO uses a liquid manure handling 

system).

    (5) The term manure is defined to include manure, bedding, compost 

and raw materials or other materials commingled with manure or set aside 

for disposal.

    (6) Medium concentrated animal feeding operation (``Medium CAFO''). 

The term Medium CAFO includes any AFO with the type and number of 

animals that fall within any of the ranges listed in paragraph (b)(6)(i) 

of this section and which has been defined or designated as a CAFO. An 

AFO is defined as a Medium CAFO if:

    (i) The type and number of animals that it stables or confines falls 

within any of the following ranges:

    (A) 200 to 699 mature dairy cows, whether milked or dry;

    (B) 300 to 999 veal calves;

    (C) 300 to 999 cattle other than mature dairy cows or veal calves. 

Cattle includes but is not limited to heifers, steers, bulls and cow/

calf pairs;

    (D) 750 to 2,499 swine each weighing 55 pounds or more;

    (E) 3,000 to 9,999 swine each weighing less than 55 pounds;

    (F) 150 to 499 horses;

    (G) 3,000 to 9,999 sheep or lambs;

    (H) 16,500 to 54,999 turkeys;

    (I) 9,000 to 29,999 laying hens or broilers, if the AFO uses a 

liquid manure handling system;

    (J) 37,500 to 124,999 chickens (other than laying hens), if the AFO 

uses other than a liquid manure handling system;

    (K) 25,000 to 81,999 laying hens, if the AFO uses other than a 

liquid manure handling system;

    (L) 10,000 to 29,999 ducks (if the AFO uses other than a liquid 

manure handling system); or

    (M) 1,500 to 4,999 ducks (if the AFO uses a liquid manure handling 

system); and

    (ii) Either one of the following conditions are met:

    (A) Pollutants are discharged into waters of the United States 

through a man-made ditch, flushing system, or other similar man-made 

device; or

    (B) Pollutants are discharged directly into waters of the United 

States which originate outside of and pass over, across, or through the 

facility or otherwise come into direct contact with the animals confined 

in the operation.

    (7) Process wastewater means water directly or indirectly used in 

the operation of the AFO for any or all of the following: spillage or 

overflow from animal or poultry watering systems; washing, cleaning, or 

flushing pens, barns, manure pits, or other AFO facilities; direct 

contact swimming, washing, or spray cooling of animals; or dust control. 

Process wastewater also includes any water which comes into contact with 

any raw materials, products, or byproducts including manure, litter, 

feed, milk, eggs or bedding.

    (8) Production area means that part of an AFO that includes the 

animal confinement area, the manure storage area, the raw materials 

storage area, and the waste containment areas. The animal confinement 

area includes but is not limited to open lots, housed lots, feedlots, 

confinement houses, stall barns, free stall barns, milkrooms, milking 

centers, cowyards, barnyards, medication pens, walkers, animal walkways, 

and stables. The manure storage area includes but is not limited to 

lagoons, runoff ponds, storage sheds, stockpiles, under house or pit 

storages, liquid impoundments, static piles, and composting piles. The 

raw materials storage area includes but is not limited to feed silos, 

silage bunkers, and bedding materials. The waste containment area 

includes but is not limited to settling basins, and areas within berms 

and diversions which separate uncontaminated storm water. Also included 

in the definition of production area is any egg washing or egg 

processing facility, and any area used in the storage, handling, 

treatment, or disposal of mortalities.

    (9) Small concentrated animal feeding operation (``Small CAFO''). An 

AFO



[[Page 170]]



that is designated as a CAFO and is not a Medium CAFO.

    (c) How may an AFO be designated as a CAFO? The appropriate 

authority (i.e., State Director or Regional Administrator, or both, as 

specified in paragraph (c)(1) of this section) may designate any AFO as 

a CAFO upon determining that it is a significant contributor of 

pollutants to waters of the United States.

    (1) Who may designate?--(i) Approved States. In States that are 

approved or authorized by EPA under Part 123, CAFO designations may be 

made by the State Director. The Regional Administrator may also 

designate CAFOs in approved States, but only where the Regional 

Administrator has determined that one or more pollutants in the AFO's 

discharge contributes to an impairment in a downstream or adjacent State 

or Indian country water that is impaired for that pollutant.

    (ii) States with no approved program. The Regional Administrator may 

designate CAFOs in States that do not have an approved program and in 

Indian country where no entity has expressly demonstrated authority and 

has been expressly authorized by EPA to implement the NPDES program.

    (2) In making this designation, the State Director or the Regional 

Administrator shall consider the following factors:

    (i) The size of the AFO and the amount of wastes reaching waters of 

the United States;

    (ii) The location of the AFO relative to waters of the United 

States;

    (iii) The means of conveyance of animal wastes and process waste 

waters into waters of the United States;

    (iv) The slope, vegetation, rainfall, and other factors affecting 

the likelihood or frequency of discharge of animal wastes manure and 

process waste waters into waters of the United States; and

    (v) Other relevant factors.

    (3) No AFO shall be designated under this paragraph unless the State 

Director or the Regional Administrator has conducted an on-site 

inspection of the operation and determined that the operation should and 

could be regulated under the permit program. In addition, no AFO with 

numbers of animals below those established in paragraph (b)(6) of this 

section may be designated as a CAFO unless:

    (i) Pollutants are discharged into waters of the United States 

through a manmade ditch, flushing system, or other similar manmade 

device; or

    (ii) Pollutants are discharged directly into waters of the United 

States which originate outside of the facility and pass over, across, or 

through the facility or otherwise come into direct contact with the 

animals confined in the operation.

    (d) Who must seek coverage under an NPDES permit?--(1) All CAFO 

owners or operators must apply for a permit. All CAFO owners or 

operators must seek coverage under an NPDES permit, except as provided 

in paragraph (d)(2) of this section. Specifically, the CAFO owner or 

operator must either apply for an individual NPDES permit or submit a 

notice of intent for coverage under an NPDES general permit. If the 

Director has not made a general permit available to the CAFO, the CAFO 

owner or operator must submit an application for an individual permit to 

the Director.

    (2) Exception. An owner or operator of a Large CAFO does not need to 

seek coverage under an NPDES permit otherwise required by this section 

once the owner or operator has received from the Director notification 

of a determination under paragraph (f) of this section that the CAFO has 

``no potential to discharge'' manure, litter or process wastewater.

    (3) Information to submit with permit application. A permit 

application for an individual permit must include the information 

specified in Sec.  122.21. A notice of intent for a general permit must 

include the information specified in Sec. Sec.  122.21 and 122.28.

    (e) Land application discharges from a CAFO are subject to NPDES 

requirements. The discharge of manure, litter or process wastewater to 

waters of the United States from a CAFO as a result of the application 

of that manure, litter or process wastewater by the CAFO to land areas 

under its control is a discharge from that CAFO subject to NPDES permit 

requirements, except where it is an agricultural storm water discharge 

as provided in 33 U.S.C.



[[Page 171]]



1362(14). For purposes of this paragraph, where the 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), a 

precipitation-related discharge of manure, litter or process wastewater 

from land areas under the control of a CAFO is an agricultural 

stormwater discharge.

    (f) ``No potential to discharge'' determinations for Large CAFOs--

(1) Determination by the Director. The Director, upon request, may make 

a case-specific determination that a Large CAFO has ``no potential to 

discharge'' pollutants to waters of the United States. In making this 

determination, the Director must consider the potential for discharges 

from both the production area and any land application areas. The 

Director must also consider any record of prior discharges by the CAFO. 

In no case may the CAFO be determined to have ``no potential to 

discharge'' if it has had a discharge within the 5 years prior to the 

date of the request submitted under paragraph (f)(2) of this section. 

For purposes of this section, the term ``no potential to discharge'' 

means that there is no potential for any CAFO manure, litter or process 

wastewater to be added to waters of the United States under any 

circumstance or climatic condition. A determination that there is ``no 

potential to discharge'' for purposes of this section only relates to 

discharges of manure, litter and process wastewater covered by this 

section.

    (2) Information to support a ``no potential to discharge'' request. 

In requesting a determination of ``no potential to discharge,'' the CAFO 

owner or operator must submit any information that would support such a 

determination, within the time frame provided by the Director and in 

accordance with paragraphs (g) and (h) of this section. Such information 

must include all of the information specified in Sec.  122.21(f) and 

(i)(1)(i) through (ix). The Director has discretion to require 

additional information to supplement the request, and may also gather 

additional information through on-site inspection of the CAFO.

    (3) Process for making a ``no potential to discharge'' 

determination. Before making a final decision to grant a ``no potential 

to discharge'' determination, the Director must issue a notice to the 

public stating that a ``no potential to discharge'' request has been 

received. This notice must be accompanied by a fact sheet which 

includes, when applicable: a brief description of the type of facility 

or activity which is the subject of the ``no potential to discharge'' 

determination; a brief summary of the factual basis, upon which the 

request is based, for granting the ``no potential to discharge'' 

determination; and a description of the procedures for reaching a final 

decision on the ``no potential to discharge'' determination. The 

Director must base the decision to grant a ``no potential to discharge'' 

determination on the administrative record, which includes all 

information submitted in support of a ``no potential to discharge'' 

determination and any other supporting data gathered by the permitting 

authority. The Director must notify any CAFO seeking a ``no potential to 

discharge'' determination of its final determination within 90 days of 

receiving the request.

    (4) What is the deadline for requesting a ``no potential to 

discharge'' determination? The owner or operator must request a ``no 

potential to discharge'' determination by the applicable permit 

application date specified in paragraph (g) of this section. If the 

Director's final decision is to deny the ``no potential to discharge'' 

determination, the owner or operator must seek coverage under a permit 

within 30 days after the denial.

    (5) The ``no potential to discharge'' determination does not relieve 

the CAFO from the consequences of an actual discharge. Any unpermitted 

CAFO that discharges pollutants into the waters of the United States is 

in violation of the Clean Water Act even if it has received a ``no 

potential to discharge'' determination from the Director. Any CAFO that 

has received a determination of ``no potential to discharge,'' but who 

anticipates changes in circumstances that could create the potential for 

a discharge, should contact



[[Page 172]]



the Director, and apply for and obtain permit authorization prior to the 

change of circumstances.

    (6) The Director retains authority to require a permit. Where the 

Director has issued a determination of ``no potential to discharge,'' 

the Director retains the authority to subsequently require NPDES permit 

coverage if circumstances at the facility change, if new information 

becomes available, or if there is another reason for the Director to 

determine that the CAFO has a potential to discharge.

    (g) When must a CAFO seek coverage under an NPDES permit?--(1) 

Operations defined as CAFOs as of April 14, 2003, who were not defined 

as CAFOs prior to that date. For all CAFOs, the owner or operator of the 

CAFO must seek to obtain coverage under an NPDES permit by a date 

specified by the Director, but no later than July 31, 2007.

    (2) Operations defined as CAFOs as of April 14, 2003, who were not 

defined as CAFOs prior to that date. For all CAFOs, the owner or 

operator of the CAFO must seek to obtain coverage under an NPDES permit 

by a date specified by the Director, but no later than February 13, 

2006.

    (3) Operations that become defined as CAFOs after April 14, 2003, 

but which are not new sources. For newly constructed AFOs and AFOs that 

make changes to their operations that result in becoming defined as 

CAFOs for the first time, after April 14, 2003, but are not new sources, 

the owner or operator must seek to obtain coverage under an NPDES 

permit, as follows:

    (i) For newly constructed operations not subject to effluent 

limitations guidelines, 180 days prior to the time CAFO commences 

operation; or

    (ii) For other operations (e.g., resulting from an increase in the 

number of animals), as soon as possible, but no later than 90 days after 

becoming defined as a CAFO; except that

    (iii) If an operational change that makes the operation a CAFO would 

not have made it a CAFO prior to April 14, 2003, the operation has until 

July 31, 2007, or 90 days after becoming defined as a CAFO, whichever is 

later.

    (4) New sources. New sources must seek to obtain coverage under a 

permit at least 180 days prior to the time that the CAFO commences 

operation.

    (5) Operations that are designated as CAFOs. For operations 

designated as a CAFO in accordance with paragraph (c) of this section, 

the owner or operator must seek to obtain coverage under a permit no 

later than 90 days after receiving notice of the designation.

    (6) No potential to discharge. Notwithstanding any other provision 

of this section, a CAFO that has received a ``no potential to 

discharge'' determination in accordance with paragraph (f) of this 

section is not required to seek coverage under an NPDES permit that 

would otherwise be required by this section. If circumstances materially 

change at a CAFO that has received a NPTD determination, such that the 

CAFO has a potential for a discharge, the CAFO has a duty to immediately 

notify the Director, and seek coverage under an NPDES permit within 30 

days after the change in circumstances.

    (h) Duty to Maintain Permit Coverage. No later than 180 days before 

the expiration of the permit, the permittee must submit an application 

to renew its permit, in accordance with Sec.  122.21(g). However, the 

permittee need not continue to seek continued permit coverage or reapply 

for a permit if:

    (1) The facility has ceased operation or is no longer a CAFO; and

    (2) The permittee has demonstrated to the satisfaction of the 

Director that there is no remaining potential for a discharge of manure, 

litter or associated process wastewater that was generated while the 

operation was a CAFO, other than agricultural stormwater from land 

application areas.



[68 FR 7265, Feb. 12, 2003, as amended at 71 FR 6984, Feb. 10, 2006]