[Federal Register: January 12, 2001 (Volume 66, Number 9)]
[Proposed Rules]
[Page 2959-3008]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja01-37]
[[Page 2959]]
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Part II
Environmental Protection Agency
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40 CFR Parts 122 and 412
National Pollutant Discharge Elimination System Permit Regulation and
Effluent Limitations Guidelines and Standards for Concentrated Animal
Feeding Operations; Proposed Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 122 and 412
[FRL-6921-4]
RIN 2040-AD19
National Pollutant Discharge Elimination System Permit Regulation
and Effluent Limitations Guidelines and Standards for Concentrated
Animal Feeding Operations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Today the Environmental Protection Agency proposes to revise
and update two regulations that address the impacts of manure,
wastewater, and other process waters generated by concentrated animal
feeding operations (CAFOs) on water quality. These two regulations are
the National Pollutant Discharge Elimination System (NPDES) provisions
that define which operations are CAFOs and establish permit
requirements, and the Effluent Limitations Guidelines for feedlots
(beef, dairy, swine and poultry subcategories), which establish the
technology-based effluent discharge standards for CAFOs. EPA is
proposing revisions to these regulations to address changes that have
occurred in the animal industry sectors over the last 25 years, to
clarify and improve implementation of CAFO permit requirements, and to
improve the environmental protection achieved under these rules.
Environmental concerns being addressed by this rule include both
ecological and human health effects. Manure from stockpiles, lagoons,
or excessive land application can reach waterways through runoff,
erosion, spills, or via groundwater. These discharges can result in
excessive nutrients (nitrogen, phosphorus, and potassium), oxygen-
depleting substances, and other pollutants in the water. This pollution
can kill fish and shellfish, cause excess algae growth, harm marine
mammals, and contaminate drinking water.
Today's action co-proposes two alternatives for how to structure
the revised NPDES program for CAFOs; the alternatives offer comparable
environmental benefits but differ in their administrative approach. EPA
also requests comment on two other alternatives that the Agency is
considering and may pursue after evaluating the comments.
EPA is also proposing to revise effluent guidelines applicable to
beef, dairy, swine, and poultry operations that are defined as CAFOs,
pursuant to the NPDES revisions. The proposed effluent guidelines
include regulations for both new and existing animal feeding operations
that meet the definition of a CAFO. Today's effluent guidelines
revisions do not alter the requirements for horses, ducks, sheep or
lambs.
DATES: Comments must be received or postmarked on or before midnight
May 2, 2001.
ADDRESSES: Public comments regarding this proposed rule should be
submitted by mail to: Concentrated Animal Feeding Operation Proposed
Rule, Office of Water, Engineering and Analysis Division (4303), USEPA,
1200 Pennsylvania Avenue, NW., Washington, DC 20460. Hand deliveries
(including overnight mail) should be submitted to the Concentrated
Animal Feeding Operation Proposed Rule, USEPA, Waterside Mall, West
Tower, Room 611, 401 M Street, SW., Washington, DC 20460. You also may
submit comments electronically to CAFOS.comments@epa.gov. Please submit
any references cited in your comments. Please submit an original and
three copies of your written comments and enclosures. For additional
information on how to submit comments, see ``SUPPLEMENTARY INFORMATION,
How May I Submit Comments?''
FOR FURTHER INFORMATION CONTACT: For additional technical information
contact Karen Metchis or Jan Goodwin at (202) 564-0766.
SUPPLEMENTARY INFORMATION:
What Entities Are Potentially Regulated by This Action?
This proposed rule would apply to new and existing animal feeding
operations that meet the definition of a concentrated animal feeding
operation, or which are designated by the permitting authority as such.
Concentrated animal feeding operations are defined by the Clean Water
Act as point sources for the purposes of the NPDES program. (33 U.S.C.
Sec. 1362).
The following table lists the types of entities that are
potentially subject to this proposed rule. This table is not intended
to be exhaustive, but rather provides a guide for readers regarding
entities likely to be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility would be regulated by this action, you should carefully
examine the applicability criteria proposed at Sec. 122.23(a)(2) of the
rule. If you have questions regarding the applicability of this action
to a particular entity, consult one of the persons listed for technical
information in the preceding FOR FURTHER INFORMATION CONTACT section.
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Examples of regulated North American Standard Industrial
Category entities Industry Code (NAIC) Classification Codes
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Federal, State and Local Government
Industry........................... ........................... See below............. See below
Operators of animal
production operations that
meet the definition of a
concentrated animal
feeding operation.
Beef cattle feedlots..... 112112................ 0211
Hogs..................... 11221................. 0213
Sheep and goats.......... 1241, 11242........... 0214
General livestock, except 11299................. 0219
dairy and poultry.
Dairy farms.............. 112111, 11212......... 0241
Broilers, fryers, and 11232................. 0251
roaster chickens.
Chicken eggs............. 11231................. 0252
Turkey and turkey eggs... 11233................. 0253
Poultry hatcheries....... 11234................. 0254
Poultry and eggs, NEC.... 11239................. 0259
Ducks.................... 112390................ 0259
Horses and other equines. 11292................. 0272
[[Page 2961]]
Meat packing or poultry
processing companies that
may be a potential co-
permittee because of
substantial operational
control over a CAFO.
Animal Slaughtering and 3116.................. 02
Processing.
Owners or operators of crop
production operations that
may receive CAFO manure
for use as a fertilizer
substitute.
Crop Production.......... 111................... 01
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How May I Review the Public Record?
The record (including supporting documentation) for this proposed
rule is filed under docket number OW-00-27 (proposed rule). The record
is available for inspection from 9 a.m. to 4 p.m. on Monday through
Friday, excluding legal holidays, at the Water Docket, Room EB 57,
USEPA Headquarters, 401 M Street, SW, Washington, DC 20460. For access
to docket materials, please call (202) 260-3027 to schedule an
appointment during the hours of operation stated above.
How May I Submit Comments?
To ensure that EPA can read, understand, and therefore properly
respond to comments, the Agency requests that you cite, where possible,
the paragraph(s) or sections in the preamble, rule, or supporting
documents to which each comment refers. You should use a separate
paragraph for each issue discussed.
If you want EPA to acknowledge receipt of your comments, enclose a
self-addressed, stamped envelope. No faxes will be accepted. Comments
may also be submitted electronically to CAFOS.comments@epa.gov.
Electronic comments must be submitted as an ASCII, WordPerfect 5.1,
WP6.1, or WP8 file avoiding the use of special characters and forms of
encryption. Electronic comments must be identified by the docket number
OW-00-27. EPA will accept comments and data on disks in WordPerfect
5.1, 6.1, or 8 format or in ASCII file format. Electronic comments on
this notice may be filed on-line at many Federal depository libraries.
Table of Contents
I. Legal Authority.
II. Purpose and Summary of the Proposed Regulation.
III. Background.
A. The Clean Water Act.
B. History of EPA Actions to Address CAFOs.
C. Which Requirements Apply to CAFOs.
D. How Do Today's Proposed Revisions Compare to the Unified
National AFO Strategy?
IV. Why is EPA Changing the Effluent Guidelines for Feedlots and the
NPDES CAFO Regulations?
A. Main Reasons for Revising the Existing Regulations.
B. Water Quality Impairment Associated with Manure Discharge and
Runoff.
C. Recent Changes in the Livestock and Poultry Industry.
D. Improve Effectiveness of Regulations.
V. What Environmental and Human Health Impacts are Potentially
Caused by CAFOs?
A. Which Pollutants Do CAFOs Have the Potential to Discharge and
Why are They of Concern?
B. How Do These Pollutants Reach Surface Waters?
C. What are the Potential and Observed Impacts?
VI. What are Key Characteristics of the Livestock and Poultry
Industries?
A. Introduction and Overview.
B. Beef Subcategory.
C. Dairy Subcategory.
D. Hog Subcategory.
E. Poultry Subcategory.
VII. What Changes to the NPDES CAFO Regulations are Being Proposed?
A. Summary of Proposed NPDES Regulations.
B. What Size AFOs Would be Considered CAFOs?
C. Changes to the NPDES Regulations.
D. Land Application of CAFO-generated Manure.
E. What are the Terms of an NPDES Permit?
F. What Type of NPDES Permit is Appropriate for CAFOs?
VIII.What Changes to the Feedlot Effluent Limitations Guidelines are
Being Proposed?
A. Expedited Guidelines Approach.
B. Changes to Effluent Guidelines Applicability.
C. Changes to Effluent Limitations and Standards.
IX. Implementation of Revised Regulations.
A. How do the Proposed Changes Affect State CAFO Programs?
B. How Would EPA's Proposal to Designate CAFOs Affect NPDES
Authorized States?
C. How and When Will the Revised Regulations be Implemented?
D. How Many CAFOs are Likely to be Permitted in Each State and
EPA Region?
E. Funding Issues.
F. What Provisions are Made for Upset and Bypass?
G. How Would an Applicant Apply for Variances and Modifications
to Today's Proposed Regulation?
X. What are the Costs and Economic Impacts of the Proposed
Revisions?
A. Introduction and Overview.
B. Data Collection Activities.
C. Method for Estimating Compliance Costs.
D. Method for Estimating Economic Impacts.
E. Estimated Annual Costs of the Proposed Regulatory Options/
Scenarios.
F. Estimated Economic Impacts of the Proposed Regulatory
Options/Scenarios.
G. Additional Impacts.
H. Cost-Effectiveness Analysis.
I. Cost-Benefit Analysis.
J. Initial Regulatory Flexibility Analysis.
XI. What are the Environmental Benefits of the Proposed Revisions?
A. Non-Water Quality Environmental Impacts.
B. Quantitative and Monetized Benefits.
XII. Public Outreach.
A. Introduction and Overview.
B. Joint USDA/EPA Unified AFO Strategy Listening Sessions.
C. Advisory Committee Meeting.
D. Farm Site Visits.
E. Industry Trade Associations.
F. CAFO Regulation Workgroup.
G. Small Business Advocacy Review Panel.
XIII. Administrative Requirements.
A. Executive Order 12866: ``Regulatory Planning and Review''.
B. Regulatory Flexibility Act (RFA) as Amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5
U.S.C. 601 et seq.
C. Unfunded Mandates Reform Act.
D. Executive Order 13045: ``Protection of Children from
Environmental Health Risks and Safety Risks''.
E. Executive Order 13084: Consultation and Coordination with
Indian Tribal Governments.
F. Paperwork Reduction Act.
G. Executive Order 13132: ``Federalism''.
H. Executive Order 12898: ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations''.
I. National Technology Transfer and Advancement Act.
XIV. Solicitation of Comments.
A. Specific Solicitation of Comment and Data.
B. General Solicitation of Comment.
I. Legal Authority
Today's proposed rule is issued under the authority of sections
301, 304, 306, 307, 308, 402, and 501 of the Clean
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Water Act (CWA), 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, and
1361.
II. Purpose and Summary of the Proposed Regulation
Today, the Environmental Protection Agency proposes to revise and
update two regulations that address the impacts on water quality from
manure, wastewater, and other process waters generated by concentrated
animal feeding operations (CAFOs). The National Pollutant Discharge
Elimination System (NPDES) provisions in 40 CFR Part 122 define which
operations are CAFOs and establish permit requirements for those
operation. The Effluent Limitations Guidelines (ELG), or effluent
guidelines, for feedlots in 40 CFR Part 412 establish technology-based
effluent discharge standards that are applied to CAFOs. Both
regulations were originally promulgated in the 1970s. EPA is proposing
revisions to these regulations to address changes that have occurred in
the animal industry sectors over the last 25 years, to clarify and
improve implementation of CAFO permit requirements, and to improve the
environmental protection achieved under these rules.
Environmental concerns being addressed by this rule include both
ecological and human health effects. Manure from stockpiles, lagoons,
or excessive land application rates can reach waterways through runoff,
erosion, spills, or via groundwater. These discharges can result in
excessive nutrients (nitrogen, phosphorus, and potassium), oxygen-
depleting substances, and other pollutants in the water. This pollution
can kill fish and shellfish, cause excess algae growth, harm marine
mammals, and contaminate drinking water.
On October 30, 1989, Natural Resources Defense Council, Inc., and
Public Citizen, Inc., filed an action against EPA in which they
alleged, among other things, that EPA had failed to comply with CWA
section 304(m). Natural Resources Defense Council, Inc., et al. v.
Reilly, Civ. No. 89-2980 (RCL) (D.D.C.). Plaintiffs and EPA agreed to a
settlement of that action in a consent decree entered on January 31,
1992. The consent decree, which has been modified several times,
established a schedule by which EPA is to propose and take final action
for eleven point source categories identified by name in the decree and
for eight other point source categories identified only as new or
revised rules, numbered 5 through 12. After completing a preliminary
study of the feedlots industry under the decree, EPA selected the swine
and poultry portion of the feedlots industry as the subject for New or
Revised Rule #8, and the beef and dairy portion of that industry as the
subject for New or Revised Rule #9. Under the decree, as modified, the
Administrator was required to sign a proposed rule for both portions of
the feedlots industry on or before December 15, 2000, and must take
final action on that proposal no later than December 15, 2002. As part
of EPA's negotiations with the plaintiffs regarding the deadlines for
this rulemaking, EPA entered into a settlement agreement dated December
6, 1999, under which EPA agreed, by December 15, 2000, to also propose
to revise the existing NPDES permitting regulations under 40 C.F.R.
part 122 for CAFOs. EPA also agreed to perform certain evaluations,
analyses or assessments and to develop certain preliminary options in
connection with the proposed CAFO rules. (The Settlement Agreement
expressly provides that nothing in the Agreement requires EPA to select
any of these options as the basis for its proposed rule.)
The existing regulation defines facilities with 1,000 animal units
(``AU'') or more as CAFOs. The regulation also states that facilities
with 300-1000 AU are CAFOs if they meet certain conditions. The term AU
is a measurement established in the 1970 regulations that attempted to
equalize the characteristics of the wastes among different animal
types.
Today's proposals presents two alternatives for how to structure
the revised NPDES program for CAFOs. The first alternative is a ``two-
tier structure'' that simplifies the definition of CAFOs by
establishing a single threshold for each animal sector. This
alternative would establish a single threshold at the equivalent of 500
AU above which operations would be defined as CAFOs and below which
facilities would become CAFOs only if designated by the permit
authority. The 500 AU equivalent for each animal sector would be as
follows.
500 cattle excluding mature dairy or veal cattle
500 veal cattle
350 mature dairy cattle (whether milked or dry)
1,250 mature swine weighing over 55 pounds
5,000 immature swine weighing 55 pounds or less
50,000 chickens
27,500 turkeys
2,500 ducks
250 horses
5,000 sheep or lambs
The second proposal would retain the ``three-tier structure'' of
the existing regulation. Under this alternative, all operations with
1,000 AU or more would be defined as CAFOs; those with 300 AU to 1,000
AU would be CAFOs only if they meet certain conditions or if designated
by the permit authority; and those with fewer than 300 AU would only be
CAFOs if designated by the permit authority. These conditions are
detailed in section VII of this preamble and differ from those in the
current rule. Facilities with 300 AU to 1,000 AU would certify that
they do not meet the conditions for being defined as a CAFO or apply
for a permit. The 300 AU and 1,000 AU equivalent number of animals for
each sector would be as follows:
------------------------------------------------------------------------
1,000 AU 300 AU
equivalent equivalent
Animal type (no. of (no. of
animals) animals)
------------------------------------------------------------------------
Cattle excluding mature dairy or veal 1,000 300
cattle.................................
Veal.................................... 1,000 300
Mature Dairy Cattle..................... 700 200
Swine weighing more than 55 pounds...... 2,500 750
Swine weighing 55 pounds or less........ 10,000 3,000
Chickens................................ 100,000 30,000
Turkeys................................. 55,000 16,500
Ducks................................... 5,000 1,500
Horses.................................. 500 150
Sheep or Lambs.......................... 10,000 3,000
------------------------------------------------------------------------
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The Agency is also taking comment on two other alternatives that
the Agency is considering and may pursue after evaluating comments.
Today's proposal would also expand the regulatory definition of
CAFOs to include all types of poultry operations regardless of the type
of manure handling system or watering system they use, and also would
include standalone immature swine and heifer operations.
Under the two-tier proposal, EPA is proposing to simplify the
criteria for being designated as a CAFO by eliminating two specific
criteria that have proven difficult to implement, the ``direct
contact'' criterion and the ``man made device'' criterion. Under the
three-tier proposal, EPA is proposing to retain those criteria for
designating operations which have less than 300 AU. Both proposals
retain the existing requirement for the permit authority to consider a
number of factors to determine whether the facility is a significant
contributor of pollution to waters of the U.S., and the requirement for
an on-site inspection prior to designation. EPA is also proposing to
clarify that EPA has the authority to designate CAFOs both in states
where EPA is the permit authority and in States with NPDES authorized
programs.
EPA is proposing to eliminate the 25-year, 24-hour storm event
permit exclusion and to impose a broader, more explicit duty for all
CAFOs to apply for a permit (with one exception as described below).
Under the current regulations, facilities are excluded from being
defined as, and thus subject to permitting as, CAFOs if they discharge
only in the event of a 25-year, 24-hour storm. This exclusion has
proven to be problematic in practice, as described below, and
ultimately unnecessary. There are many operations that currently may be
avoiding permitting by an inappropriate reliance on this exclusion. The
Agency believes there is no reason to retain this exclusion from the
definition of a CAFO. However, EPA is proposing to retain the 25-year,
24-hour storm standard as a design standard in the effluent guidelines
for certain sectors (specifically, the beef and dairy sectors). CAFOs
in those sectors would need to obtain permits, but the permits would
allow certain discharges as long as the facility met the 25-year, 24-
hour storm design standard.
In sum, under today's proposal, all operations that meet the
definition of a CAFO under either of the two alternative structures (as
well as all operations that are designated as CAFOs) would be required
to apply for a permit. There would, however, be one exception to this
requirement, as described in more detail below: If the operator could
demonstrate to the permitting authority that the facility has ``no
potential to discharge,'' then a permit application and a permit would
not be required.
Under the two-tier structure, the net effect of the revisions for
determining which facilities are CAFOs is to require approximately
26,000 operations to apply for a NPDES permit. Under the three-tier
structure, EPA estimates that approximately 13,000 operations would be
required to apply for a permit, and an additional 26,000 operations
could either certify that they are not a CAFO or apply for a permit.
Under the existing regulation, EPA estimates that about 12,000
facilities should be permitted but only 2,530 have actually applied for
a permit.
Today's proposal would clarify the definition of a CAFO as
including both the production areas (animal confinement areas, manure
storage areas, raw materials storage areas and waste containment areas)
and the land application areas that are under the control of the CAFO
owner or operator. As the industry trend is to larger, more specialized
feedlots with less cropland needing the manure for fertilizer, EPA is
concerned that manure is being land applied in excess of agricultural
uses and, therefore, being managed as a waste product, and that this
practice is causing runoff or leaching to waters of the U.S. The permit
would address practices at the production area as well as the land
application area, and would impose record keeping and other
requirements with regard to transfer of manure off-site.
EPA is further proposing to clarify that entities that exercise
``substantial operational control'' over the CAFO are ``operators'' of
the CAFO and thus would need to obtain a permit along with the CAFO
owner or operator. The trend toward specialized animal production under
contract with processors, packers and other integrators has
increasingly resulted in concentrations of excess manure beyond
agricultural needs in certain geographic areas. Especially in the
poultry and swine sector, the processor provides the animals, feed,
medication and/or specifies growing practices. EPA believes that
clarifying that both parties are liable for compliance with the terms
of the permit as well as responsible for the excess manure generated by
CAFOs will lead to better management of manure.
The proposed effluent guidelines revisions would apply only to
beef, dairy, swine, poultry and veal operations that are defined or
designated as CAFOs under either of the two alternative structures and
that are above the threshold for the effluent guideline. For those
CAFOs below the threshold for being subject to the effluent guidelines,
the permit writer would use best professional judgment (BPJ) to develop
the site-specific permit conditions.
Today's proposed effluent guidelines revisions would not alter the
existing effluent guideline regulations for horses, ducks, sheep or
lambs. In these sectors, only facilities with 1,000 AU or more are
subject to the effluent guidelines. Permits for operations in these
subcategories with fewer than 1,000 AU would continue to be developed
based on the best professional judgement of the permit writer.
The proposed effluent guidelines regulations for beef, dairy,
swine, poultry and veal operations will establish the Best Practicable
Control Technology (BPT), Best Conventional Pollutant Control
Technology (BCT), and the Best Available Technology (BAT) limitations
as well as New Source Performance Standards, including specific best
management practices which ensure that manure storage and handling
systems are inspected and maintained adequately. A description of these
requirements is in Section III.
Under the BPT requirements for all of the subcategories, EPA is
proposing to require zero discharge from the production area except
that an overflow due to catastrophic or chronic storms would be allowed
if the CAFO met a certain design standard for its containment
structures. If a CAFO uses a liquid manure handling system, the storage
structure or lagoon would be required to be designed, constructed and
maintained to capture all process wastewater and manure, plus all the
storm water runoff from the 25-year, 24-hour storm.
The proposed BPT limitations also include specific requirements on
the application of manure and wastewater to land that is owned or under
the operational control of the CAFO. EPA is proposing to require that
CAFOs apply their manure at a rate calculated to meet the requirements
of the crop for either nitrogen or phosphorus (depending on the soil
conditions for phosphorus). Livestock manure tends to be phosphorus
rich, meaning that if manure is applied to meet the nitrogen
requirements of a crop, then phosphorus is being applied at rates
higher than needed by the crop. Repeated application of manure on a
nitrogen basis may build up phosphorus levels in
[[Page 2964]]
the soil, and potentially result in saturation, thus contributing to
the contamination of surface waters through erosion, snow melt and
rainfall events. Therefore, EPA is also proposing that manure must be
applied to cropland at rates not to exceed the crop requirements for
nutrients and the ability of the soil to absorb any excess phosphorus.
BPT establishes specific record keeping requirements associated with
ensuring the achievement of the zero discharge limitation for the
production area and that the application of manure and wastewater is
done in accordance with land application requirements. EPA also
proposes to require the CAFO operator to maintain records of any excess
manure that is transported off-site.
BAT limitations for the beef and dairy subcategories would include
all of the BPT limitations described above and, in addition, would
require CAFOs to achieve zero discharge to ground water beneath the
production area that has a direct hydrologic connection to surface
water. In addition, the proposed BAT requirements for the swine, veal
and poultry subcategories would eliminate the provision for overflow in
the event of a chronic or catastrophic storm. CAFOs in the swine, veal
and poultry subcategories typically house their animals under roof
instead of in open areas, thus avoiding or minimizing the runoff of
contaminated storm water and the need to contain storm water.
EPA is also proposing to revise New Source Performance Standards
(NSPS) based on the same technology requirements as BAT for the beef
and dairy subcategories. For the swine, veal and poultry subcategories,
EPA proposes revised NSPS based on the same technology as BAT with the
additional requirement that there be no discharge of pollutants through
ground water beneath the production area that has a direct hydrological
connection to surface waters. Both the BAT and NSPS requirements have
the same land application and record keeping requirements as proposed
for BPT.
Today's proposal would make several other changes to the existing
regulation, which would:
require the CAFO operator to develop a Permit Nutrient
Plan for managing manure and wastewater at both the production area and
the land application area;
require certain record keeping, reporting, and monitoring;
revise the definition of an animal feeding operation (AFO)
to more clearly exclude areas such as pastures and rangeland that
sustain crops or forage during the entire time that animals are
present;
eliminate the mixed-animal type calculation for
determining which AFOs are CAFOs; and
require permit authorities to include the following
conditions in permits to:
(1) require retention of a permit until proper facility closure;
(2) establish the method for operators to calculate the allowable
manure application rate; (3) specify restrictions on timing and methods
of application of manure and wastewater to assure use for an
agricultural purpose (e.g., certain applications to frozen, snow
covered or saturated land) to prevent impairment of water quality; (4)
address risk of contamination via groundwater with a direct
hydrological connection to surface water; (5) address the risk of
improper manure application off-site by either requiring that the CAFO
operator obtain from off-site recipients a certification that they are
land applying CAFO manure according to proper agricultural practices or
requiring the CAFO to provide information to manure recipients and keep
appropriate records of off-site transfers, or both; and (6) establish
design standards to account for chronic storm events.
Today's proposal would also:
clarify EPA's interpretation of the agricultural storm
water exemption and its implications for land application of manure
both at the CAFO and off-site; and
clarify application of the CWA to dry weather discharges
at AFOs.
EPA is seeking comment on the entire proposal. Throughout the
preamble, EPA identifies specific components of the proposed rule on
which comment is particularly sought.
III. 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. Sec. 1251(a)). The CWA establishes a comprehensive program
for protecting our nation's waters. Among its core provisions, the CWA
prohibits the discharge of pollutants from a point source to waters of
the U.S. except as authorized by a National Pollutant Discharge
Elimination System (NPDES) permit. The CWA establishes the NPDES permit
program to authorize and regulate the discharges of pollutants to
waters of the U.S. EPA has issued comprehensive regulations that
implement the NPDES program at 40 CFR Part 122. The CWA also provides
for the development of technology-based and water quality-based
effluent limitations that are imposed through NPDES permits to control
discharges of pollutants.
1. The National Pollutant Discharge Elimination System (NPDES) Permit
Program
Under the NPDES permit program, all point sources that directly
discharge pollutants to waters of the U.S. must apply for a NPDES
permit and may only discharge pollutants in compliance with the terms
of that permit. Such permits must include any nationally established,
technology based effluent discharge limitations (i.e., effluent
guidelines) (discussed below, in subsection III.A.2). In the absence of
national effluent limitations, NPDES permit writers must establish
technology based limitations and standards on a case-by-case basis,
based on their ``best professional judgement (BPJ).''
Water quality-based effluent limits also are included in a permit
where technology-based limits are not sufficient to ensure compliance
with State water quality standards that apply to the receiving water or
where required to implement a Total Maximum Daily Load (TMDL). Permits
may also include specific best management practices to achieve effluent
limitations and standards, typically included as special conditions. In
addition, NPDES permits normally include monitoring and reporting
requirements, and standard conditions (i.e., conditions that apply to
all NPDES permits, such as the duty to properly operate and maintain
equipment and treatment systems).
NPDES permits may be issued by EPA or a State, Territory, or Tribe
authorized by EPA to implement the NPDES program. Currently, 43 States
and the Virgin Islands are authorized to administer the base NPDES
program (the base program includes the federal requirements applicable
to AFOs and CAFOs). Alaska, Arizona, the District of Columbia, Idaho,
Maine, Massachusetts, New Hampshire, and New Mexico are not currently
authorized to implement the NPDES program. In addition, Oklahoma, while
authorized to administer the NPDES program, does not have CAFO
regulatory authority. No tribe is currently authorized.
A NPDES permit may be either an individual permit tailored for a
single facility or a general permit applicable to multiple facilities
within a specific category. Prior to the issuance of an individual
permit, the owner or operator submits a permit application with
facility-specific information to the
[[Page 2965]]
permit authority, who reviews the information and prepares a draft
permit. The permit authority prepares a fact sheet explaining the draft
permit, and publishes the draft permit and fact sheet for public review
and comment. Following consideration of public comments by the permit
authority, a final permit is issued. Specific procedural requirements
apply to the modification, revocation and reissuance, and termination
of a NPDES permit. NPDES permits are subject to a maximum 5-year term.
General NPDES permits are available to address a category of
discharges that involve similar operations with similar wastes. General
permits are not developed based on facility-specific information.
Instead, they are developed based on data that characterize the type of
operations being addressed and the pollutants being discharged. Once a
general permit is drafted, it is published for public review and
comment accompanied by a fact sheet that explains the permit. Following
EPA or State permit authority consideration of public comments, a final
general permit is issued. The general permit specifies the type or
category of facilities that may obtain coverage under the permit. Those
facilities that fall within this category then must submit a ``notice
of intent'' (NOI) to be covered under the general permit to gain permit
coverage. [Under 40 CFR 122.28(b)(2)(vi), the permit authority also may
notify a discharger that it is covered under a general permit even
where that discharger has not submitted a notice of intent to be
covered by the permit.] EPA anticipates that the Agency and authorized
States will use general NPDES permits to a greater extent than
individual permits to address CAFOs.
2. Effluent Limitation Guidelines and Standards
Effluent limitation guidelines and standards (which we also refer
to today as ``effluent guidelines'' or ``ELG'') are national
regulations that establish limitations on the discharge of pollutants
by industrial category and subcategory. These limitations are
subsequently incorporated into NPDES permits. The effluent guidelines
are based on the degree of control that can be achieved using various
levels of pollution control technology, as outlined below. The effluent
guidelines may also include non-numeric effluent limitations in the
form of best management practices requirements or directly impose best
management practices as appropriate.
a. Best Practicable Control Technology Currently Available (BPT)--
Section 304(b)(1) of the CWA. In the guidelines for an industry
category, EPA defines BPT effluent limits for conventional, toxic, and
non-conventional pollutants. In specifying BPT, EPA looks at a number
of factors. EPA first considers the cost of achieving effluent
reductions in relation to the effluent reduction benefits. The Agency
also considers the age of the equipment and facilities, the processes
employed and any required process changes, engineering aspects of the
control technologies, non-water quality environmental impacts
(including energy requirements), and such other factors as the Agency
deems appropriate (CWA 304(b)(1)(B)). Traditionally, EPA establishes
BPT effluent limitations based on the average of the best performances
of facilities within the industry of various ages, sizes, processes or
other common characteristics. Where existing performance is uniformly
inadequate, EPA may require higher levels of control than currently in
place in an industrial category if the Agency determines that the
technology can be practically applied.
b. Best Available Technology Economically Achievable (BAT)--Section
304(b)(2) of the CWA. In general, BAT effluent limitations represent
the best existing economically achievable performance of direct
discharging plants in the industrial subcategory or category. The
factors considered in assessing BAT include the cost of achieving BAT
effluent reductions, the age of equipment and facilities involved, the
processes employed, engineering aspects of the control technology,
potential process changes, non-water quality environmental impacts
(including energy requirements), and such factors as the Administrator
deems appropriate. The Agency retains considerable discretion in
assigning the weight to be accorded to these factors. An additional
statutory factor considered in setting BAT is economic achievability.
Generally, the achievability is determined on the basis of the total
cost to the industrial subcategory and the overall effect of the rule
on the industry's financial health. BAT limitations may be based on
effluent reductions attainable through changes in a facility's
processes and operations. As with BPT, where existing performance is
uniformly inadequate, BAT may be based on technology transferred from a
different subcategory within an industry or from another industrial
category. BAT may be based on process changes or internal controls,
even when these technologies are not common industry practice.
c. Best Conventional Pollutant Control Technology (BCT)--Section
304(b)(4) of the CWA. The 1977 amendments to the CWA required EPA to
identify effluent reduction levels for conventional pollutants
associated with BCT technology for discharges from existing industrial
point sources. BCT is not an additional limitation, but replaces Best
Available Technology (BAT) for control of conventional pollutants. In
addition to other factors specified in Section 304(b)(4)(B), the CWA
requires that EPA establish BCT limitations after consideration of a
two part ``cost-reasonableness'' test. EPA explained its methodology
for the development of BCT limitations in July 1986 (51 FR 24974).
Section 304(a)(4) designates the following as conventional pollutants:
biochemical oxygen demand (BOD5), total suspended solids
(TSS), fecal coliform, pH, and any additional pollutants defined by the
Administrator as conventional. The Administrator designated oil and
grease as an additional conventional pollutant on July 30, 1979 (44 FR
44501).
d. New Source Performance Standards (NSPS)--Section 306 of the CWA.
NSPS reflect effluent reductions that are achievable based on the best
available demonstrated control technology. New facilities have the
opportunity to install the best and most efficient production processes
and wastewater treatment technologies. As a result, NSPS should
represent the greatest degree of effluent reduction attainable through
the application of the best available demonstrated control technology
for all pollutants (i.e., conventional, non-conventional, and priority
pollutants). In establishing NSPS, EPA is directed to take into
consideration the cost of achieving the effluent reduction and any non-
water quality environmental impacts and energy requirements.
B. History of EPA Actions to Address CAFOs
EPA's regulation of wastewater and manure from CAFOs dates to the
1970s. The existing NPDES CAFO regulations were issued on March 18,
1976 (41 FR 11458). The existing national effluent limitations
guideline and standards for feedlots were issued on February 14, 1974
(39 FR 5704).
By 1992, it became apparent that the regulation and permitting of
CAFOs needed review due to changes in the livestock industry,
specifically the consolidation of the industry into fewer, but larger
operations. In 1992, the Agency established a workgroup
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composed of representatives of State agencies, EPA regional staff and
EPA headquarters staff to address issues related to CAFOs. The
workgroup issued The Report of the EPA/State Feedlot Workgroup in 1993.
One of the workgroup's recommendations was that the Agency should
provide additional guidance on how CAFOs are regulated under the NPDES
permit program. The Agency issued such guidance, entitled Guide Manual
On NPDES Regulations For Concentrated Animal Feeding Operations, in
December 1995.
Massive spills of hog manure (see Section V.B.1.c) and Pfiesteria
outbreaks (see Section V.C.1.a.), continued industry consolidation, and
increased public awareness of the potential environmental and public
health impacts of animal feeding operations resulted in EPA taking more
comprehensive actions to improve existing regulatory and voluntary
programs. In 1997, dialogues were initiated between EPA and the poultry
and pork livestock sectors. On December 12, 1997, the Pork Dialogue
participants, including representatives from the National Pork
Producers Council (NPPC) and officials from EPA, U.S. Department of
Agriculture (USDA), and several States, issued a Comprehensive
Environmental Framework for Pork Production Operations. Continued
discussions between EPA and the NPPC led to development of a Compliance
Audit Program Agreement (CAP Agreement) that is available to any pork
producer who participates in NPPC's environmental assessment program.
The CAP Agreement for pork producers was issued by the Agency on
November 24, 1998. Under the agreement, pork producers that voluntarily
have their facilities inspected are eligible for reduced penalties for
any CWA violations discovered and corrected. The Poultry Dialogue
produced a report in December 1998 that established a voluntary program
focused on promoting protection of the environment and water quality
through implementation of litter management plans and other actions:
Environmental Framework and Implementation Strategy: A Voluntary
Program Developed and adopted by the Poultry Industry, Adopted at the
December 8-9, 1998 meeting of the Poultry Industry Environmental
Dialogue (U.S. Poultry and Egg Association).
President Clinton and Vice President Gore announced the Clean Water
Action Plan (CWAP) on February 19, 1998. The CWAP describes the key
water quality problems our nation faces today and suggests both a broad
plan and specific actions for addressing these problems. The CWAP
indicated that polluted runoff is the greatest source of water quality
problems in the United States today and that stronger polluted runoff
controls are needed. The CWAP goes on to state that one important
aspect of such controls is the expansion of CWA permit controls,
including those applicable to large facilities such as CAFOs.
The CWAP included two key action items that address animal feeding
operations (AFOs). First, it stated that EPA should publish and, upon
considering public comments, implement an AFO strategy for important
and necessary EPA actions on standards and permits. EPA published a
Draft Strategy for Addressing Environmental and Public Health Impacts
from Animal Feeding Operations in March 1998 (draft AFO Strategy). In
accordance with EPA's draft AFO Strategy, EPA's Office of Enforcement
and Compliance Assurance (OECA) also issued the Compliance Assurance
Implementation Plan for Animal Feeding Operations in March 1998. This
plan describes compliance and enforcement efforts being undertaken to
ensure that CAFOs comply with existing CWA regulations. Second, the
CWAP stated that EPA and USDA should jointly develop a unified national
strategy to minimize the water quality and public health impacts of
AFOs. EPA and USDA jointly published a draft Unified National Strategy
for Animal Feeding Operations (hereinafter Unified National AFO
Strategy) on September 21, 1998 and, after sponsoring and participating
in 11 public listening sessions and considering public comments on the
draft strategy, published a final Unified National AFO Strategy on
March 9, 1999. This joint strategy was generally consistent with and
superceded EPA's draft AFO Strategy.
The Unified National AFO Strategy establishes national goals and
performance expectations for all AFOs. The general goal is for AFO
owners and operators to take actions to minimize water pollution from
confinement facilities and land where manure is applied. To accomplish
this goal, the AFO Strategy established a national performance
expectation that all AFOs should develop and implement technically
sound, economically feasible, and site-specific comprehensive nutrient
management plans (CNMPs) to minimize impacts on water quality and
public health.
The Unified National AFO Strategy identified seven strategic issues
that should be addressed to better resolve concerns associated with
AFOs. These include: (1) fostering CNMP development and implementation;
(2) accelerating voluntary, incentive-based programs; (3) implementing
and improving the existing regulatory program; (4) coordinating
research, technical innovation, compliance assistance, and technology
transfer; (5) encouraging industry leadership; (6) increasing data
coordination; and (7) establishing better performance measures and
greater accountability. Today's proposed rule primarily addresses
strategic issue three: implementing and improving the existing AFO
regulatory program.
The Unified National AFO Strategy observed that, for the majority
of AFOs (estimated in the AFO Strategy as 95 percent), voluntary
efforts founded on locally led conservation, education, and technical
and financial assistance would be the principal approach for assisting
owners and operators in developing and implementing site-specific CNMPs
and reducing water pollution and public health risks. Future regulatory
programs would focus permitting and enforcement priorities on high risk
operations, which were expected to constitute the remaining 5 percent.
EPA estimates that today's proposal would result in permit coverage for
approximately 7 percent of AFOs under the two-tier structure, and
between 4.5 percent and 8.5 percent of AFOs under the three-tier
structure.
Following publication of the Unified National AFO Strategy, EPA
issued on August 6, 1999 the Draft Guidance Manual and Example NPDES
Permit for CAFOs for a 90-day public comment period. EPA undertook
development of this new guidance manual in order to provide permit
writers with improved guidance on applying the existing regulations to
a changing industry. While the guidance manual has not been finalized,
many of the issues discussed in the draft guidance manual are also
addresses in today's preamble. EPA expects to issue final, revised
permitting guidance to reflect the revised CAFO regulations when they
are published in final form.
C. What Requirements Apply to CAFOs?
The discussion below provides an overview of the scope and
requirements imposed under the existing NPDES CAFO regulations and
feedlot effluent limitations guidelines. It also explains the
relationship of these two regulations, and summarizes other federal and
State regulations that potentially affect AFOs.
[[Page 2967]]
1. What are the Scope and Requirements of the Existing NPDES
Regulations for CAFOs?
Under existing 40 CFR 122.23, an operation must be defined as an
animal feeding operation (AFO) before it can be defined as a
concentrated animal feeding operation (CAFO). The term ``animal feeding
operation'' is defined in EPA regulations 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.'' This definition is intended to enable the NPDES authorized
permitting authority to regulate facilities where animals are stabled
or confined and waste is generated.
Once a facility meets the AFO definition, its size, based upon the
total numbers of animals confined, is a key factor in determining
whether it is a CAFO. To define these various livestock sectors, EPA
established the concept of an ``animal unit'' (AU), which varies
according to animal type. Each livestock type, except poultry, is
assigned a multiplication factor to facilitate determining the total
number of AU at a facility with more than one animal type. These
multiplication factors are as follows: Slaughter and feeder cattle--
1.0, Mature dairy cattle--1.4, Swine weighing over 25 kilograms
(approximately 55 pounds)--0.4, Sheep--0.1, Horses--2.0. There are
currently no animal unit conversions for poultry operations. The
regulations, however, define the total number of animals (subject to
waste handling technology restrictions) for specific poultry types that
make these operations subject to the regulation. (40 CFR Part 122,
Appendix B).
Under the existing regulations, an animal feeding operation is a
concentrated animal feeding operation if it meets the regulatory CAFO
definition or if it is designated as a CAFO. The regulations
automatically define an AFO to be a CAFO if either more than 1,000 AU
are confined at the facility, or more than 300 AU are confined at the
facility and: (1) pollutants are discharged into navigable waters
through a manmade ditch, flushing system, or other similar man-made
device; or (2) pollutants are discharged directly into waters that
originate outside of and pass over, across, or through the facility or
come into direct contact with the confined animals. However, no animal
feeding operation is defined as a CAFO if it discharges only in the
event of a 25-year, 24-hour storm event (although it sill may be
designated as a CAFO). Although they are not automatically defined as a
CAFO, facilities still may be designated as a CAFO even if they
discharge only in a 25-year, 24-hour storm event.
An AFO can also become a CAFO through designation. The NPDES
permitting authority may, on a case-by-case basis, after conducting an
on-site inspection, designate any AFO as a CAFO based on a finding that
the facility ``is a significant contributor of pollution to the waters
of the United States.'' (40 CFR 122.23(c)). Pursuant to 40 CFR
122.23(c)(1)(i)-(v) the permitting authority shall consider several
factors making this determination, including: (1) the size of the
operation, and amount of waste reaching waters of the U.S.; (2) the
location of the operation relative to waters of the U.S.; (3) the means
of conveyance of animal waste and process waste waters into waters of
the U.S.; and (4) the slope, vegetation, rainfall and other factors
affecting frequency of discharge. A facility with 300 animal units or
less, however, may not be designated as a 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.
Once defined or designated as a CAFO, the operation is subject to
NPDES permitting. As described above, a permit contains the specific
technology-based effluent limitations (whether based on the effluent
guidelines or BPJ); water quality-based limits if applicable; specific
best management practices; monitoring and reporting requirements; and
other standard NPDES conditions.
2. What are the Scope and Requirements of the Existing Feedlot Effluent
Guidelines?
In 1974, EPA promulgated effluent limitations guidelines applicable
to CAFOs (40 CFR Part 412) and established in those regulations the
technology-based effluent discharge standards for the facilities
covered by the guidelines. The effluent guidelines for the feedlots
point source category have two subparts: Subpart B for ducks, and
Subpart A for all other feedlot animals. Under the existing regulation,
Subpart A covers: beef cattle; dairy cattle; swine; poultry; sheep; and
horses. Further, the effluent guidelines apply only to facilities with
1,000 AU or greater. Today's revisions to the effluent guidelines
affect only the guidelines for the beef, dairy, swine, poultry and veal
subcategories, while the NPDES revisions are applicable to all confined
animal types.
The current feedlot effluent guidelines based on BAT prohibit
discharges of process wastewater pollutants to waters of the U.S.
except when chronic or catastrophic storm events cause an overflow from
a facility designed, constructed, and operated to hold process-
generated wastewater plus runoff from a 25-year, 24-hours storm event.
Animal wastes and other wastewater that must be controlled include: (1)
spillage or overflow from animal or poultry watering systems, washing,
cleaning, or flushing pens, barns, manure pits, or other feedlot
facilities, direct contact swimming, washing, or spray cooling of
animals, and dust control; and (2) precipitation (rain or snow) which
comes into contact with any manure, litter, or bedding, or any other
raw material or intermediate or final material or product used in or
resulting from the production of animals or poultry or direct products
(e.g., milk or eggs). 40 CFR 412.11.
As described above, in those cases where the feedlot effluent
guidelines do not apply to a CAFO (i.e., the operation confines fewer
than 1,000 animal units), the permit writer must develop, for inclusion
in the NPDES permit, technology-based limitations based on best
professional judgement (BPJ).
3. What Requirements May be Imposed on AFOs Under the Coastal Zone Act
Reauthorization Amendments of 1990 (CZARA)?
In the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA),
Congress required States with federally-approved coastal zone
management programs to develop and implement coastal nonpoint pollution
control programs. Thirty-three (33) States and Territories currently
have federally approved Coastal Zone Management programs. Section
6217(g) of CZARA called for EPA, in consultation with other federal
agencies, to develop guidance on ``management measures'' for sources of
nonpoint source pollution in coastal waters. In January 1993, EPA
issued its Guidance Specifying Management Measures for Sources of
Nonpoint Pollution in Coastal Waters which addresses five major source
categories of nonpoint pollution: urban runoff, agriculture runoff,
forestry runoff, marinas and recreational boating, and
hydromodification.
[[Page 2968]]
Within the agriculture runoff nonpoint source category, the EPA
guidance specifically included management measures applicable to all
new and existing ``confined animal facilities.'' The guidance
identifies which facilities constitute large and small confined animal
facilities based solely on the number of animals or animal units
confined (the manner of discharge is not considered). Under the CZARA
guidance: a large beef feedlot contains 300 head or more, a small
feedlot between 50-299 head; a large dairy contains 70 head or more, a
small dairy between 20-69 head; a large layer or broiler contains
15,000 head or more, a small layer or broiler between 5,000-14,999
head; a large turkey facility contains 13,750 head or more, a small
turkey facility between 5,000-13,749 head; and a large swine facility
contains 200 head or more, a small swine facility between 100-199 head.
The thresholds in the CZARA guidance for identifying large and
small confined animal facilities are lower than those established for
defining CAFOs under the current NPDES regulations. Thus, in coastal
States the CZARA management measures potentially apply to a greater
number of small facilities than the existing CAFO definition. Despite
the fact that both the CZARA management measures for confined animal
facilities and the NPDES CAFO regulations address similar operations,
these programs do not overlap or conflict with each other. Any CAFO
facility, defined by 40 CFR Part 122, Appendix B, that has a NPDES CAFO
permit is exempt from the CZARA program. If a facility subject to CZARA
management measures is later designated a CAFO by a NPDES permitting
authority, the facility is no longer subject to CZARA. Thus, an AFO
cannot be subject to CZARA and NPDES permit requirements at the same
time.
EPA's CZARA guidance provides that new confined animal facilities
and existing large confined animal facilities should limit the
discharge of facility wastewater and runoff to surface waters by
storing such wastewater and runoff during storms up to and including
discharge caused by a 25-year, 24-hour frequency storm. Storage
structures should have an earthen or plastic lining, be constructed
with concrete, or constitute a tank. All existing small facilities
should design and implement systems that will collect solids, reduce
contaminant concentrations, and reduce runoff to minimize the discharge
of contaminants in both facility wastewater and in runoff caused by
storms up to and including a 25-year, 24-hour frequency storm. Existing
small facilities should substantially reduce pollutant loadings to
ground water. Both large and small facilities should also manage
accumulated solids in an appropriate waste utilization system. Approved
State CZARA programs have management measures in conformity with this
guidance and enforceable policies and mechanisms as necessary to assure
their implementation.
In addition to the confined animal facility management measures,
the CZARA guidance also includes a nutrient management measure that is
intended to be applied by States to activities associated with the
application of nutrients to agricultural lands (including the
application of manure). The goal of this management measure is to
minimize edge of field delivery of nutrients and minimize the leaching
of nutrients from the root zone.
The nutrient management measures provide for the development,
implementation, and periodic updating of a nutrient management plan.
Such plans should address: application of nutrients at rates necessary
to achieve realistic crop yields; improved timing of nutrient
application; and the use of agronomic crop production technology to
increase nutrient use efficiency. Under this management measure,
nutrient management plans include the following core components: farm
and field maps showing acreage, crops, and soils; realistic yield
expectations for the crops to be grown; a summary of the nutrient
resources available to the producer; an evaluation of field limitations
based on environmental hazards or concerns; use of the limiting
nutrient concept to establish the mix of nutrient sources and
requirements for the crop based on realistic crop expectations;
identification of timing and application methods for nutrients; and
provisions for proper calibration and operation of nutrient application
equipment.
4. How Are CAFOs Regulated By States?
NPDES permits may be issued by EPA or a State authorized by EPA to
implement the NPDES program. Currently, 43 States and the Virgin
Islands are authorized to administer the NPDES program. Oklahoma,
however, has not been authorized to administer the NPDES program for
CAFOs.
To become an authorized NPDES state, the State's requirements must,
at a minimum, be as stringent as the requirements imposed under the
federal NPDES program. States, however, may impose requirements that
are broader in scope or more stringent than the requirements imposed at
the federal level. In States not authorized to implement the NPDES
program, the appropriate EPA Regional office is responsible for
implementing the program.
State efforts to control pollution from CAFOs have been
inconsistent to date for a variety of reasons. Many States have only
recently focused attention on the environmental challenges posed by the
emergence of increasing consolidation of CAFOs into larger and larger
operations. Others have traditionally viewed AFOs as agriculture, and
the reluctance to regulate agriculture has prevented programs from
keeping pace with a changing industry. Many states have limited
resources for identifying which facilities are CAFOs, or which may be
inappropriately claiming the 25-year, 24-hour storm permit exclusion.
Some states with a large number of broiler and laying operations do not
aggressively try to permit these facilities under NPDES because the
technology requirements for these operations in the existing regulation
are outdated.
Another reason States may not have issued NPDES permits to CAFOs is
the concern over potentially causing operations to lose cost-share
money available under EPA's Section 319 Nonpoint Source Program and
other assistance under USDA's Environmental Quality Incentive Program
(EQIP). Once a facility is considered a point source under NPDES, the
operation is not eligible for cost sharing under the Section 319
nonpoint source program. The USDA EQIP program, however, is available
to most facilities, and being a permitted CAFO is not a reason for
exclusion from the EQIP program. Although EQIP funds may not be used to
pay for construction of storage facilities at operations with greater
than 1,000 USDA animal units (USDA uses a different definition of
animal units than EPA); EQIP is available to these facilities for
technical assistance and financial assistance for other practices.
To gather information on State activities concerning AFOs, EPA
assembled information into a report entitled, ``State Compendium:
Programs and Regulatory Activities Related to Animal Feeding
Operations, Final Report,'' dated December 1999, and continues to
update information concerning state operations (see ``Profile of NPDES
Permits and CNMP Permit Requirements for CAFOs,'' updated
periodically). The following discussion draws on information from these
reports.
EPA estimates that, under the existing EPA regulations,
approximately 9,000 operations with more than 1,000 AU are CAFOs and
should be permitted, and
[[Page 2969]]
approximately 4,000 operations with 300 AU to 1,000 AU should be
permitted. However, only an estimated 2,520 CAFOs are currently covered
under either a general permit or an individual permit. The 43 states
authorized to implement the NPDES program for CAFOs have issued
coverage for approximately 2,270 facilities, of which about 1,150
facilities are under general permits and about 1,120 facilities are
under individual permits. Of these states, 32 states administer their
NPDES CAFO program in combination with some other State permit,
license, or authorization program. Often, this additional State
authorization is a construction or operating permit. Eight of the
states regulate CAFOs exclusively under their State NPDES authority,
while three others have chosen to regulate CAFOs solely under State
non-NPDES programs. EPA information indicates that, as of December,
1999, seventeen of the 43 states authorized to administer the NPDES
program for CAFOs have never issued an NPDES permit to a CAFO.
Of the seven states not authorized to administer the NPDES program,
four rely solely on federal NPDES permits to address CAFOs. As of
December 1998, EPA has issued coverage for approximately 250 facilities
under general NPDES permits.
Virtually all NPDES authorized states use the federal CAFO
definition in their State NPDES CAFO program. Most states also use the
federal definition for State non-NPDES CAFO programs. Five States,
however, have developed unique definitions for their non-NPDES
livestock regulatory programs that do not follow the federal
definition. These five States typically base their definition on the
number of animals confined, weight of animals and design capacity of
waste control system, or gross income of agricultural operation. For
example, Alabama's new general State NPDES permit covers all operations
with at least 250 animal units. Similarly, Minnesota issues State (non-
NPDES) feedlot permits to facilities with more than 10 animal units.
Minnesota also issues individual NPDES permits to CAFOs as defined
under the existing federal regulations.
The regulation of CAFOs is challenging, in part, because of the
large number of facilities across the country. There are approximately
376,000 AFOs. Regulating, for example, 5 percent of AFOs would result
in some 18,800 permittees. One way of reducing the administrative
burden associated with permitting such large numbers of facilities is
through the use of general permits. NPDES regulations provide that
general permits may be issued to cover a category of dischargers that
involves similar operations with similar wastes. Operations subject to
the same effluent limitations and operating conditions, and requiring
similar monitoring are the types of facilities most appropriately
regulated under a general permit. EPA and some authorized States are
using general permits to regulate CAFOs, and this trend appears to be
increasing.
As mentioned, seventeen of the 43 States authorized to issue NPDES
CAFO permits have never issued an NPDES permit to a CAFO, although many
regulate CAFOs under non-NPDES programs. Under current regulations, an
animal feeding operation that discharges only in the event of a 25-
year, 24-hour storm event is not considered to meet the definition of a
CAFO (although it may still be designated as a CAFO). EPA believes that
many of these facilities have in fact discharged in circumstance other
than the 25-year/24-hour storm and should be required to obtain a
permit.
The number of non-NPDES permits issued to AFOs greatly exceeds the
number of NPDES permits issued. Although the information may be
incomplete on the number of state permits issued, more than 45,000 non-
NPDES permits or formal authorizations are known to have been issued
through state AFO programs. The non-NPDES State authorizations often
are only operating permits or approvals required for construction of
waste disposal systems. While some impose terms and conditions on
discharges from the CAFO, EPA believes that many would not meet the
standards for approval as NPDES permits. Because these are not NPDES
permits, none meet the requirement for federal enforceability.
Minnesota alone has issued nearly 25,000 State feedlot permits.
Kansas has issued more than 2,400 State permits, of which 1,500 have
been to facilities with more than 300 animal units. Indiana has issued
more than 4,000 letters of approval to AFOs within the State. South
Carolina has issued 2,000 construction permits.
With regard to the discharge standards included in permits, 28
NPDES authorized States have adopted the federal feedlot effluent
guidelines, while five authorized States use a more stringent limit.
These more stringent limits partially or totally prohibit discharges
related to storm events. For example, Arkansas regulations prohibit
discharges from liquid waste management systems, including those
resulting from periods of precipitation greater than the 25-year, 24-
hour storm event. In addition, California and North Carolina rules
provide for no discharge from new waste control structures even during
100 year storms. Numerous State CAFO permit programs also impose
requirements that are broader in scope than the existing federal CAFO
regulations.
Twenty-two States have adopted laws that their environmental
regulations cannot be more restrictive than the specific requirements
in the federal regulations. Should any of these states experience
environmental problems with CAFOs, they must rely on appropriate state
regulations no more stringent than the federal rules.
Thirty-four States explicitly impose at least some requirements
that address land application of manure and wastewater as part of
either their NPDES or non-NPDES program. The most common requirements
among these States is that CAFO manure and wastewater, when managed
through land application, be land applied in accordance with agronomic
rates and that the operator develop and use a waste management plan.
Although some States do not address how agronomic rates should be
determined, many base it on the nitrogen needs of crops, while some
require consideration of phosphorus as well. The complexity of waste
management plans also varies between states. Some states have very
detailed requirements for content of waste management plans, while
others do not. Generally, CAFO operators are asked to address estimates
of annual nutrient value of waste, schedules for emptying and applying
wastes, rates and locations for applying wastes, provisions for
determining agronomic rates, and provisions for conducting required
monitoring and reporting.
Although data was not available for all States, State agency staff
dedicated to AFOs has increased over the last five years. In general,
State staff dedicated to AFOs is relatively small, with average staff
numbers being below four full-time employees. Several States do not
have any staff specifically assigned to manage water quality impacts
from AFOs. However, States such as Arkansas, Minnesota, Wisconsin, and
Nebraska doubled their staff commitment to AFOs within the last five
years. The most notable increases in State staff assigned to address
AFOs were in Iowa and North Carolina. Kansas, Minnesota, and North
Carolina have the largest AFO staffs in the country, with each having
more than 20 full time employees.
One indication that States have an increasing interest in expanding
their efforts to control water quality impacts from AFOs is the
promulgation of new
[[Page 2970]]
State AFO regulations and program initiatives. At least twelve states
have developed new regulations related to AFOs since 1996. (AL, IN, KS,
KY, MD, MS, NC, OK, PA, VT, WA, WY). Kansas, Kentucky, North Carolina,
and Wyoming passed legislation regarding swine facilities, with
Kentucky and North Carolina imposing moratoriums on the expansion of
hog AFOs until State management/regulatory plans could be developed.
Similarly, Mississippi also has imposed a 2-year moratorium on any new
CAFOs. Alabama's recent efforts include developing an NPDES general
permitting rule and a Memorandum of Agreement with EPA outlining State
agency responsibilities as they relate to CAFOs. Washington's Dairy Law
subjects all dairy farms with more than 300 animal units to permitting
and requires each facility to develop nutrient management plans
approved by the National Conservation Resource Service. Indiana's
Confined Feeding Control Law also requires AFOs to develop waste
management plans and receive State approval for operating AFOs.
In conclusion, the implementation of CAFO programs varies from
state-to-state, as does the implementation of NPDES programs for CAFOs
by NPDES authorized states. As animal production continues to become
more industrialized nationwide, a coherent and systematic approach to
implementing minimum standards is needed to ensure consistent
protection of water quality. Today's proposal will continue to promote
a systematic approach to establishing industry standards that are
protective of human health and the environment.
D. How Do Today's Proposed Revisions Compare to the Unified National
AFO Strategy?
As described in section III.B, on March 9, 1999, EPA and the U.S.
Department of Agriculture jointly issued the Unified National Strategy
for Animal Feeding Operations (Unified AFO Strategy), which outlined
USDA and EPA's plans for achieving better control of pollution from
animal agriculture under existing regulations. The following is a
comparison chart that illustrates how the proposed rule compares to the
Unified AFO Strategy. Table 3-1 compares the proposed CAFO rule
requirements with the Unified AFO Strategy and identifies whether the
proposed requirements are consistent with or not addressed by the
Unified AFO Strategy. The table further shows that, overall, the
proposed rule meets the intent of the Unified AFO Strategy.
Table 3-1.--Proposed Rule/Unified National AFO Strategy Comparison
----------------------------------------------------------------------------------------------------------------
Not
Consistent addressed
Summary of proposed rule with Unified in Unified Comment
AFO AFO
Strategy Strategy
----------------------------------------------------------------------------------------------------------------
Proposed Revisions to NPDES Regulations
----------------------------------------------------------------------------------------------------------------
Definition of AFO (122.23(a)(2))--AFO The Unified AFO Strategy states CNMPs
includes land application area; Clarifies should address land application of
crop language. manure. (Sec. 3.1 and 3.2)
Crop language not explicitly
addressed in Unified AFO Strategy.
Definition of CAFO (122.23(a)(3))--Change ............ Alternative thresholds not explicitly
1,000 animal unit threshold to 500. addressed in Unified AFO Strategy,
although Strategy does state EPA
will explore alternative ways of
defining CAFOs. (Sec. 5, Issue 3,
Item 2.B.).
The Unified AFO Strategy states that
regulatory revisions will consider
risk, burden, statutory
requirements, enforceability, and
ease of implementation (i.e.,
clarity of requirements). (Sec. 5,
Issue 3, Item 2).
The Unified AFO Strategy states that
5 percent of the AFOs will be
subject to the regulatory program,
however, this estimate is provided
for the existing regulatory program
(see Figure 2). No specific
percentage is specified in the
Strategy for the revised
regulations.
Definition of CAFO (122.23(a)(3))--Include ............ The Unified AFO Strategy states that
dry poultry operations. in revising regulations EPA intends
to consider defining ``...large
poultry operations, consistent with
the size for other animal sectors,
as CAFOs, regardless of the type of
watering or manure handling
system.'' (Sec. 5, Issue 3, Item
2.B.).
Definition of CAFO (122.23(a)(3))--Include ............ Immature animals not explicitly
immature animals. addressed in Unified AFO Strategy.
Definition of CAFO (122.23)--Removes 25 year/ ............ The Unified AFO Strategy states EPA
24-hour storm provision from definition of will consider ``requiring CAFOs to
CAFO. have an NPDES permit even if they
only discharge during a 25-year, 24-
hour or larger storm event.'' (Sec.
5, Issue 3, Item 2.B.).
Definition of Operation (122.23(a)(5))-- ............ The Unified AFO Strategy states EPA
Includes a person who exercises substantial will ``explore alternative
operational control over a CAFO. approaches to ensuring that
corporate entities support the
efforts of individual CAFOs to
comply with permits and develop and
implement CNMPs.'' (Sec. 5, Issue 3,
Item 2.B.).
Designation as a CAFO (122.23(b))--In ............ The Unified AFO Strategy states EPA
authorized States EPA may designate an AFO will consider ``who may designate
as a CAFO. No inspection required a and the criteria for designating
designate facility that was previously certain AFOs as CAFOs.'' (Sec. 5,
defined or designated as a CAFO. Issue 3, Item 2.B.).
Who must apply for an NPDES permit ............ The Unified AFO Strategy states ``the
(122.23(c))--CAFOs must either apply for a NPDES authority will issue a permit
permit or seek a determination of no unless it determines that the
potential to discharge. facility does not have a potential
to discharge. (Sec. 4.2).
[[Page 2971]]
Co-Permitting (122.23(c)(3))--Operators, ............ The Unified AFO Strategy states EPA
including any person who exercises will ``explore alternative
substantial operational control over a CAFO, approaches to ensuring that
must either apply for a permit or seek a corporate entities support the
determination of no potential to discharge. efforts of individual CAFOs to
comply with permits and develop and
implement CNMPs.'' (Sec. 5, Issue 3,
Item 2.B.).
Issuance of permit (122.23(d))--Director must ............ The Unified AFO Strategy states ``the
issue permit unless s/he determines no NPDES authority will issue a permit
potential to discharge. unless it determines that the
facility does not have a potential
to discharge. (Sec. 4.2.).
No potential to discharge (122.23(e))-- ............ The Unified AFO Strategy establishes
Determination must consider discharge from a national performance expectation
production area, land application area, and that all AFOs should develop and
via ground waters that have a direct implement CNMPs, and that such CNMPs
hydrologic connection to surface waters. should address land application of
manure. (Sec. 3.1 and 3.2).
The Unified AFO Strategy states ``EPA
believes that pollution of
groundwater may be a concern around
CAFOs. EPA has noted in other
documents that a discharge via
hydrologically connected groundwater
to surface waters may be subject to
NPDES requirements.'' (Sec. 4.2.).
The Unified AFO Strategy states EPA
will consider protecting ``sensitive
or highly valuable water bodies such
as Outstanding Natural Resources,
sole source aquifers, wetlands,
ground water recharge areas, zones
of significant ground/surface water
interaction, and other areas.''
(Sec. 5, Issue 3, Item 2.B.).
AFOs not defined or designated (122.23(g))-- ............ The Unified AFO Strategy states EPA
AFOs subject to NPDES permitting will consider ``clarifying whether
requirements if they have a discrete and under what conditions AFOs may
conveyance (i.e., point source) discharge be subject to NPDES requirements.''
from production or land application that is (Sec. 5, Issue 3, Item 2.B.).
not entirely storm water.
Non-AFO land application (122.23(h))--Land ............ The Unified AFO Strategy states EPA
application inconsistent with practices in will consider ``clarifying
412.31(b) and that result in point source requirements for effective
discharge of pollutants to Waters of the US management of manure and wastewater
may be designated under 122.26(a)(1)(v). from CAFOs whether they are handled
on-site or off-site.'' (Sec. 5,
Issue 3, Item 2. B.).
Agricultural Storm Water Exemption-- ............ The Unified AFO Strategy states EPA
Discharges from land application area if has in the past and will in the
manure is not applied in quantities that future assume that discharges from
exceed the land application rates calculated the majority of agricultural
using one of the methods specified in 40 CFR operations are exempt, but that the
412.31(b)(1)(iv). agricultural storm water exemption
would not apply where the discharge
is associated with the land disposal
of manure or wastewater from a CAFO
and the discharge is not the result
of proper agricultural practices.
(Sec. 4.4).
CAFO permit requirement (122.23(i)(2))--CAFOs ............ The Unified AFO Strategy states the
subject to effluent guidelines if applicable. effluent guidelines revisions will
be closely coordinated with any
charges to the NPDES permitting
regulations. (Sec. 5, Issue 3, Item
2. A.).
CAFO permit requirement (122.23(j))-- ............ The Unified AFO Strategy provides
Prohibits land application of manure that that all AFOs should develop and
would not serve agricultural purpose and implement CNMPs, and that such CNMPs
would likely result in pollutant discharge should address land application of
to waters of the U.S. manure to minimize impacts on water
quality and public health. (Sec. 3.1
and 3.2).
CAFO permit requirement (122.23(j)(4))-- ............ The Unified AFO Strategy states EPA
Permittee must either provide information to will consider ``clarifying
recipient or, under one co-proposal option, requirements for effective
obtain certification that recipient will management of manure and wastewater
land apply per Permit Nutrient Plan (PNP), from CAFOs whether they are handled
obtain permit, use for other purpose, or on-site or off-site.'' (Sec. 5,
transfer to 3rd party. Issue 3, Item 2. B.).
CAFO permit requirement (122.23(j)(5))-- ............ The Unified AFO Strategy states EPA
Permit must require specified recordkeeping. will consider ``establishing
specific monitoring and reporting
requirements for permitted
facilities.'' (Sec. 5, Issue 3, Item
2. B.).
The Unified AFO Strategy provides
records should be kept when manure
leaves the CAFO. (Sec.3.3).
Closure (122.23(i)(3))--AFO must maintain ............ Not explicitly addressed in Unified
permit until it no longer has wastes AFO Strategy.
generated while it was a CAFO.
[[Page 2972]]
Public access (122.23(l)--Requires public ............ Not explicitly addressed in Unified
access to list of NOIs, list of CAFOs that AFO Strategy.
have prepared PNPs, and access to executive
summary of PNP upon request.
General Permits (122.28)--Notice of Intent NOI requirements not explicitly
must include topographic map and statement addressed in Unified AFO Strategy.
re PNP; additional criteria specified for The Unified AFO Strategy states EPA
when individual permits may be required. will consider ``requiring individual
permits for CAFOs in some
situations.'' (Sec. 5, Issue 3, Item
2. B.).
----------------------------------------------------------------------------------------------------------------
Proposed Revisions to Feedlot Effluent Guidelines Regulations
----------------------------------------------------------------------------------------------------------------
Production Area--Beef/Dairy (412.33(a): No The Unified AFO Strategy indicates
discharge except when designed for 25 year, the existing effluent guidelines is
24-hour storm, also inspect/ correct/ pump- no discharge when designed for 25
out, manage mortalities. Swine/Poultry year, 24-hour storm. (Sec. 5, Issue
(412.43(a)): No discharge. 3, Item 2. A).
Strategy states that in developing
the revised effluent guidelines EPA
is to assess different management
practices that minimize the
discharge of pollutants. (Sec. 5,
Issue 3, Item 2. A).
Land Application (412.33(b) and 412.43(b))-- ............ PNP has been identified as a specific
Develop and Implement PNP covering the land subset of a CNMP applicable to AFOs
application areas under the control of the subject to the regulation. In this
CAFO. Also include Best Management Practices. manner it is consistent with the
Strategy. It also reinforces that
the CNMP is applicable to all AFOs
(regulatory/voluntary) while the PNP
is only applicable to those that
fall under the regulatory program.
It makes a clear distinction between
the regulatory and voluntary
programs addressed in the Strategy.
Land Application (412.31(b)(1)(ii))--PNP ............ The PNP is a subset of the CNMP. The
Approved by Certified Specialist. Strategy identified that CNMPs
``developed to meet the requirements
of the NPDES program in general must
be developed by a certified
specialist, ....''. (Sec. 4.6).
New Source Performance Standards (412.35/45): ............ Strategy states that in developing
Various additional requirements. the revised effluent guidelines EPA
is to evaluate the need for
different requirements for new or
expanding operations. (Sec. 5, Issue
3, Item 2. A).
Additional Measures (412.37)--Inspect/ ............ Strategy states that in developing
correct/ pump-out, manage mortalities; Land the revised effluent guidelines EPA
application BMPs, sampling, training, is to assess different management
recordkeeping. practices that minimize the
discharge of pollutants. (Sec. 5,
Issue 3, Item 2. A).
Strategy states that the regulatory
revision process will include the
establishment of specific monitoring
and reporting requirements for
permitted facilities.
----------------------------------------------------------------------------------------------------------------
IV. Why is EPA Changing the Effluent Guidelines for Feedlots and
the NPDES CAFO Regulations?
A. Main Reasons For Revising the Existing Regulations
Despite more than twenty years of regulation, there are persistent
reports of discharge and runoff of manure and manure nutrients from
livestock and poultry operations. While this is partly due to
inadequate compliance with existing regulations, EPA believes that the
regulations themselves also need revision. Today's proposed revisions
to the existing effluent guidelines and NPDES regulations for CAFOs are
expected to mitigate future water quality impairment and the associated
human health and ecological risks by reducing pollutant discharges from
the animal production industry.
EPA's proposed revisions also address the changes that have
occurred in the animal production industries in the United States since
the development of the existing regulations. The continued trend toward
fewer but larger operations, coupled with greater emphasis on more
intensive production methods and specialization, is concentrating more
manure nutrients and other animal waste constituents within some
geographic areas. This trend has coincided with increased reports of
large-scale discharges from these facilities, and continued runoff that
is contributing to the significant increase in nutrients and resulting
impairment of many U.S. waterways.
EPA's proposed revisions of the existing regulations will make the
regulations more effective for the purpose of protecting or restoring
water quality. The revisions will also make the regulations easier to
understand and better clarify the conditions under which an AFO is a
CAFO and, therefore, subject to the regulatory requirements of today's
proposed regulations.
B. Water Quality Impairment Associated with Manure Discharge and Runoff
EPA has made significant progress in implementing CWA programs and
in reducing water pollution. Despite such progress, however, serious
water quality problems persist throughout the country. Agricultural
operations, including CAFOs, are considered a significant source of
water pollution in the United States. The recently released National
Water Quality Inventory: 1998 Report to Congress was prepared under
Section 305(b) of the Clean Water Act. Under this section of the Act,
States report their impaired water bodies to EPA, including the
suspected sources of those impairments. The most recent report
indicates that the agricultural sector (including crop production,
pasture and range grazing, concentrated and confined animal feeding
operations, and aquaculture) is the leading contributor to identified
water quality impairments in the nation's rivers and
[[Page 2973]]
streams, and also the leading contributor in the nation's lakes, ponds,
and reservoirs. Agriculture is also identified as the fifth leading
contributor to identified water quality impairments in the nation's
estuaries. 1998 National Water Quality Inventory results are
illustrated in table 4-1 below.
Table 4-1.--Five Leading Sources of Water Quality Impairment in the
United States
------------------------------------------------------------------------
Rank Rivers Lakes Estuaries
------------------------------------------------------------------------
1.............. Agriculture (59%) Agriculture (31%) Municipal Point
Sources (28%)
2.............. Hydro Hydro Urban Runoff /
modification modification Storm Sewers
(20%). (15%). (28%)
3.............. Urban Runoff / Urban Runoff/ Atmospheric
Storm Sewers Storm Sewers Deposition (23%)
(11%). (12%).
4.............. Municipal Point Municipal Point Industrial
Sources (10%). Sources (11%). Discharges (15%)
5.............. Resource Atmospheric Agriculture (15%)
Extraction (9%). Deposition (8%).
------------------------------------------------------------------------
Source: National Water Quality Inventory: 1998 Report to Congress,
USEPA, 2000. Percentage of impairment attributed to each source is
shown in parentheses. For example, agriculture is listed as a source
of impairment in 59 percent of impaired river miles. The portion of
'agricultural'' impairment attributable to animal waste (as compared
to crop production, pasture grazing, range grazing, and aquaculture)
is not specified in this value. Figure totals exceed 100 percent
because water bodies may be impaired by more than one source.
Table 4-2 presents additional summary statistics of the 1998
National Water Quality Inventory. These figures indicate that the
agricultural sector contributes to the impairment of at least 170,000
river miles, 2.4 million lake acres, and almost 2,000 estuarine square
miles. Twenty-eight states and tribes identified specific agricultural
sector activities contributing to water quality impacts on rivers and
streams, and 16 states and tribes identified specific agricultural
sector activities contributing to water quality impacts on lakes,
ponds, and reservoirs. CAFOs are a subset of the agriculture category.
For rivers and streams, estimates from these states indicate that 16
percent of the total reported agricultural sector impairment is from
the animal feeding operation industry (including feedlots, animal
holding areas, and other animal operations), and 17 percent of the
agricultural sector impairment is from both range and pasture grazing.
For lakes, ponds, and reservoirs, estimates from these states indicate
that 4 percent of the total reported agricultural sector impairment is
from the animal feeding operation industry, and 39 percent of the
agricultural sector impairment is from both range and pasture grazing.
Impairment due specifically to land application of manure was not
reported.
Table 4-2.--Summary of U.S. Water Quality Impairment Survey
----------------------------------------------------------------------------------------------------------------
Quantity impaired by Quantity impaired by
Total quantity in U.S. Waters assessed all sources agriculture a
----------------------------------------------------------------------------------------------------------------
Rivers............................... 23% of total 35% of assessed 59% of impaired.
3,662,255 miles 840,402 miles 291,263 miles 170,750 miles.
----------------------------------------------------------------------------------------------------------------
Lakes, Ponds, and Reservoirs 42% of total 45% of assessed 31% of impaired.
41.6 million acres 17.4 million acres 7.9 million acres 2,417,801 acres.
----------------------------------------------------------------------------------------------------------------
Estuaries 32% of total 44% of assessed 15% of impaired.
90,465 square miles 28,687 square miles 12,482 square miles 1,827 square miles.
----------------------------------------------------------------------------------------------------------------
Source: National Water Quality Inventory: 1998 Report to Congress, USEPA, 2000.
aCAFOs are a subset of the agriculture category.
Table 4-3 below lists the leading pollutants impairing surface
water quality in the United States as identified in the 1998 National
Water Quality Inventory. The animal production industry is a potential
source of all of these, but is most commonly associated with nutrients,
pathogens, oxygen-depleting substances, and solids (siltation). Animal
production facilities are also a potential source of the other leading
causes of water quality impairment, such as metals and pesticides, and
can contribute to the growth of noxious aquatic plants due to the
discharge of excess nutrients. Animal production facilities may also
contribute loadings of priority toxic organic chemicals and oil and
grease, but to a lesser extent than other pollutants.
Table 4-3.--Five Leading Causes of Water Quality Impairment in the
United States
------------------------------------------------------------------------
Rank Rivers Lakes Estuaries
------------------------------------------------------------------------
1.............. Siltation (38%).. Nutrients (44%).. Pathogens (47%)
2.............. Pathogens (36%).. Metals (27%)..... Oxygen-Depleting
Substances (42%)
3.............. Nutrients (29%).. Siltation (15%).. Metals (27%)
4.............. Oxygen-Depleting Oxygen-Depleting Nutrients (23%)
Substances (23%). Substances (14%).
5.............. Metals (21%)..... Suspended Solids Thermal
(10%). Modifications
(18%)
------------------------------------------------------------------------
Source: National Water Quality Inventory: 1998 Report to Congress,
USEPA, 2000. Percent impairment attributed to each pollutant is shown
in parentheses. For example, siltation is listed as a cause of
impairment in 51 percent of impaired river miles. All of these
pollutants except thermal modifications are commonly associated with
animal feeding operations to varying degrees, though they are also
attributable to other sources. Figure totals exceed 100 percent
because water bodies may be impaired by more than one source.
[[Page 2974]]
Pollutants associated with animal production can also originate
from a variety of other sources, such as cropland, municipal and
industrial wastewater discharges, urban runoff, and septic systems. The
national analyses described in Section V of this preamble are useful in
assessing the significance of animal waste as a potential or actual
contributor to water quality degradation across the United States.
Section V also discusses the environmental impacts and human health
effects associated with the pollutants found in animal manure.
C. Recent Changes in the Livestock and Poultry Industry
EPA's proposed revisions of the existing effluent guidelines and
NPDES regulations take into account the major structural changes that
have occurred in the livestock and poultry industries since the 1970s
when the regulatory controls for CAFOs were first instituted. These
changes include:
Increased number of animals produced annually;
Fewer animal feeding operations and an increase in the
share of larger operations that concentrate more animals, manure and
wastewater in a single location;
Geographical shifts in where animals are produced; and
Increased coordination between animal feeding operations
and processing firms.
1. Increased Livestock and Poultry Production
Since the 1970s, total consumer demand for meat, eggs, milk and
dairy products has continued to increase. To meet this demand, U.S.
livestock and poultry production have risen sharply, resulting in an
increase in the number of animals produced and the amount of manure and
wastewater generated annually.
Increased sales from U.S. farms is particularly dramatic in the
poultry sectors, as reported in the Census of Agriculture (various
years). In 1997, turkey sales totaled 299 million birds. In comparison,
141 million turkeys were sold for slaughter in 1978. Broiler sales
totaled 6.4 billion chickens in 1997, up from 2.5 billion chickens sold
in 1974. The existing CAFO regulations effectively do not cover broiler
operations because they exclude operations that use dry manure
management systems. Red meat production also rose during the 1974-1997
period. The number of hogs and pigs sold increased from 79.9 million
hogs in 1974 to 142.6 million hogs in 1997. Sales data for fed cattle
(i.e., USDA's data category on ``cattle fattened on grain and
concentrates'') for 1975 show that 20.5 million head were marketed. By
1997, fed cattle marketings totaled 22.8 million head. The total number
of egg laying hens rose from 0.3 million birds in 1974 to 0.4 million
birds in 1997. The number of dairy cows on U.S. farms, however, dropped
from more than 10.7 million cows to 9.1 million cows over the same
period.
Not only are more animals produced and sold each year, but the
animals are also larger in size. Efficiency gains have raised animal
yields in terms of higher average slaughter weight. Likewise,
production efficiency gains at egg laying and dairy operations have
resulted in higher per-animal yields of eggs and milk. USDA reports
that the average number of eggs produced per egg laying hen was 218
eggs per bird in 1970 compared to 255 eggs per bird in 1997. The
National Milk Producers Federation reports that average annual milk
production rose from under 10,000 pounds per cow in 1970 to more than
16,000 pounds per cow in 1997. In the case of milk production, these
efficiency gains have allowed farmers to maintain or increase
production levels with fewer animals. Although animal inventories at
dairy farms may be lower, however, this may not necessarily translate
to reduced manure volumes generated because higher yields are largely
attributable to improved and often more intensive feeding strategies
that may exceed the animal's ability for uptake. This excess is not
always incorporated by the animal and may be excreted.
2. Increasing Share of Larger, More Industrialized Operations
The number of U.S. livestock and poultry operations is declining
due to ongoing consolidation in the animal production industry.
Increasingly, larger, more industrialized, highly specialized
operations account for a greater share of all animal production. This
has the effect of concentrating more animals, and thus more manure and
wastewater, in a single location, and raising the potential for
significant environmental damages unless manure is properly stored and
handled.
USDA reports that there were 1.1 million livestock and poultry
farms in the United States in 1997, about 40 percent fewer than the 1.7
million farms reported in 1974. Farms are closing, especially smaller
operations that cannot compete with large-scale, highly specialized,
often lower cost, producers. Consequently, the livestock and poultry
industries are increasingly dominated by larger operations. At the same
time, cost and efficiency considerations are pushing farms to become
more specialized and intensive. Steep gains in production efficiency
have allowed farmers to produce more with fewer animals because of
higher per-animal yields and quicker turnover of animals between farm
production and consumer market. As a result, annual production and
sales have increased, even though the number of animals on farms at any
one time has declined (i.e., an increase in the number of marketing
cycles over the course of the year allows operators to maintain
production levels with fewer animals at any given time, although the
total number of animals produced by the facility over the year may be
greater).
The increase in animal densities at operations is evident by
comparing the average number of animals per operation between 1974 and
1997, as derived from Census of Agriculture data. In the poultry
sectors, the average number of birds across all operations is four to
five times greater in 1997 than in 1974. In 1997, the number of
broilers per operation averaged 281,700 birds, up from 73,300 birds in
1974. Over the same period, the average number of egg laying hens per
operation rose from 1,100 layers to 5,100 layers per farm, and the
average number of turkeys per operation rose from 2,100 turkeys to
8,600 turkeys. The average number of hogs raised per operation rose
from under 100 hogs to more than 500 hogs between 1974 and 1997. The
average number of fed cattle and dairy cows per operation more than
doubled during the period, rising to nearly 250 fed cattle and 80
milking cows by 1997.
This trend toward fewer, larger, and more industrialized operations
has contributed to large amounts of manure being produced at a single
geographic location. The greatest potential risk is from the largest
operations with the most animals given the sheer volume of manure
generated at these facilities. Larger, specialized facilities often do
not have an adequate land base for manure disposal through land
application. A USDA analysis of 1997 Census data shows that animal
operations with more than 1,000 AU account for more than 42 percent of
all confined animals but only 3 percent of cropland held by livestock
and poultry operations. As a result, large facilities need to store
significant volumes of manure and wastewater which have the potential,
if not properly handled, to cause significant water quality impacts. By
comparison, smaller operations manage fewer animals and tend to
concentrate less manure at a single farming location. Smaller
operations also tend to be more diversified, engaging in both animal
and
[[Page 2975]]
crop production. These operations often have sufficient cropland and
fertilizer needs to land apply manure generated by the farm's livestock
or poultry business, without exceeding that land's nutrient
requirements.
Another recent analysis from USDA confirms that as animal
production operations have become larger and more specialized
operations, the opportunity to jointly manage animal waste and crop
nutrients has decreased. Larger operations typically have inadequate
land available for utilizing manure nutrients. USDA estimates that the
amount of nitrogen from manure produced by confinement operations
increased about 20 percent between 1982 and 1997, while average acreage
on livestock and poultry farms declined. Overall, USDA estimates that
cropland controlled by operations with confined animals has the
assimilative capacity to absorb about 40 percent of the calculated
manure nitrogen generated by these operations. EPA expects this excess
will need to be transported offsite.
3. Geographic Shifts in Where Animals are Raised
During the 1970s, the majority of farming operations were
concentrated in rural, agricultural areas and manure nutrients
generated by animal feeding operations were readily incorporated as a
fertilizer for crop production. In an effort to reduce transportation
costs and streamline distribution between the animal production and
food processing sectors, livestock and poultry operations have tended
to cluster near slaughtering and manufacturing plants as well as near
end-consumer markets. Ongoing structural and technological change in
these industries also influences where facilities operate and
contributes to locational shifts from the more traditional farm
production regions to the more emergent regions.
Operations in more traditional producing states tend to grow both
livestock and crops and tend to have adequate cropland for land
application of manure. Operations in these regions also tend to be
smaller in size. In contrast, confinement operations in more emergent
areas, such as hog operations in North Carolina or dairy operations in
the Southwest, tend to be larger in size and more intensive types of
operations. These operations tend to be more specialized and often do
not have adequate land for application of manure nutrients. Production
is growing rapidly in these regions due to competitive pressures from
more specialized producers who face lower per-unit costs of production.
This may be shifting the flow of manure nutrients away from more
traditional agricultural areas, often to areas where these nutrients
cannot be easily absorbed.
As reported by Census data, shifts in where animals are grown is
especially pronounced in the pork sector. Traditionally, Iowa has been
the top ranked pork producing state. Between 1982 and 1997, however,
the number of hogs raised in that state remained relatively constant
with a year-end inventory average of about 14.2 million pigs. In
comparison, year-end hog inventories in North Carolina increased from
2.0 million pigs in 1982 to 9.6 million pigs in 1997. This locational
shift has coincided with reported nutrient enrichment of the waters of
the Pamlico Sound in North Carolina. Growth in hog production also
occurred in other emergent areas, including South Dakota, Oklahoma,
Wyoming, Colorado, Arizona, and Utah. Meanwhile, production dropped in
Illinois, Indiana, Wisconsin, and Ohio.
The dairy industry has seen similar shifts in where milk is
produced, moving from the more traditional Midwest and Northeast states
to the Pacific and Southwestern states. Between 1982 and 1997, the
number of milk cows in Wisconsin dropped from 1.9 million to 1.3
million. Milk cow inventories have also declined in other traditional
states, including Illinois, Indiana, Iowa, Minnesota, Missouri, New
York, Pennsylvania, Ohio, Connecticut, Maryland, and Vermont. During
the same period, milk cow inventories in California rose from 0.9
million in 1982 to 1.4 million in 1997. In 1994, California replaced
Wisconsin as the top milk producing state. Milk cow inventories have
also increased in Texas, Idaho, Washington, Oregon, Colorado, Arizona,
Nevada, and Utah. These locational shifts have coincided with reported
nutrient enrichment of waters, including the Puget Sound and Tillamook
Bay in the northwest, the Everglades in Florida, and Erath County in
Texas, and also elevated salinity levels due to excess manure near milk
production areas in southern California's Chino Basin.
4. Increased Linkages between Animal Production Facility and Food
Processors
Over the past few decades, closer ties have been forged between
growers and various industry middlemen, including packers, processors,
and cooperatives. Increased integration and coordination is being
driven by the competitive nature of agricultural production and the
dynamics of the food marketing system, in general, as well as seasonal
fluctuations of production, perishability of farm products, and the
inability to store and handle raw farm output. Closer ties between the
animal production facility and processing firms--either through
contractual agreement or through corporate ownership of CAFOs--raises
questions of who is responsible for ensuring proper manure disposal and
management at the animal feeding site. This is especially true given
the current trend toward larger animal confinement operations and the
resultant need for increased animal waste management. As operations
become larger and more specialized, they may contract out some phases
of the production process.
Farmers and ranchers have long used contracts to market
agricultural commodities. However, increased use of production
contracts is changing the organizational structure of the individual
industries. Under a production contract, a business other than the
feedlot where the animals are raised and housed, such as a processing
firm, feed mill, or animal feeding operation, may own the animals and
may exercise further substantial operational control over the
operations of the feedlot. In some cases, the processor may specify in
detail the production inputs used, including the genetic material of
the animals, the types of feed used, and the production facilities
where the animals are raised. The processor may also influence the
number of animals produced at a site. In general, these contracts do
not deal with management of manure and waste disposal. Recently,
however, some processors have become increasingly involved in how
manure and waste is managed at the animal production site.
The use of production contracts in the livestock and poultry
industries varies by commodity group. Information from USDA indicates
that production contracts are widely used in the poultry industry and
dominate broiler production. Production contracting is becoming
increasingly common in the hog sector, particularly for the finishing
stage of production in regions outside the Corn Belt.
Production contracting has played a critical role in the growth of
integrators in the poultry sectors. Vertical integration has progressed
to the point where large, multifunction producer-packer-processor-
distributor firms are the dominant force in poultry and egg production
and marketing. Data from USDA on animal ownership at U.S. farms
illustrates the use of production contracts in these sectors. In 1997,
USDA reported that 97 percent of all broilers raised on U.S. farms were
not owned by the farmer. In the turkey and
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egg laying sectors, use of production contracts is less extensive since
70 percent and 43 percent of all birds in these sectors, respectively,
were not owned by the farmer. In the hog sector, data from USDA
indicate that production contracting may account for 66 percent of hog
production among larger producers in the Southern and Mid-Atlantic
states. This differs from the Midwest, where production contracting
accounted for 18 percent of hog production in 1997.
By comparison, production contracts are not widely used in the beef
and dairy sectors. Data from USDA indicate that less than 4 percent of
all beef cattle and 1 percent of all milking cows were not owned by the
farmer in 1997. However, production contracts are used in these
industries that specialize in a single stage of livestock production,
such as to ``finish'' cattle prior to slaughter or to produce
replacement breeding stock. However, this use constitutes a small share
of overall production across all producers.
To further examine the linkages between the animal production
facility and the food processing firms, and to evaluate the
geographical implications of this affiliation, EPA conducted an
analysis that shows a relationship between areas of the country with an
excess of manure nutrients from animal production operations and areas
with a large number of meat packing and poultry slaughtering
facilities. This manure--if land applied--would be in excess of crop
uptake needs and result in over application and enrichment of
nutrients. Across the pork and poultry sectors, this relationship is
strongest in northwest Arkansas, where EPA estimates a high
concentration of excess manure nutrients and a large number of poultry
and hog processing facilities. By sector, EPA's analysis shows that
there is excess poultry manure nutrients and a large number of poultry
processing plants in the Delmarva Peninsula in the mid-Atlantic, North
Carolina, northern Alabama, and also northern Georgia. In the hog
sector, the analysis shows excess manure nutrients and a large number
of meat packing plants in Iowa, Nebraska and Alabama. The analysis also
shows excess manure nutrients from hogs in North Carolina, but
relatively fewer meat packing facilities, which is likely explained by
continuing processing plant closure and consolidation in that state.
More information on this analysis is provided in the rulemaking record.
D. Improve Effectiveness of Regulations
As noted in Section IV.B, reports of continued discharges and
runoff from animal production facilities have persisted in spite of
regulatory controls that were first instituted in the 1970s. EPA is
proposing to revise the effluent guidelines and NPDES regulations to
improve their effectiveness by making the regulations simpler and
easier to understand and implement. Another change intended to improve
the effectiveness of the regulations is clarification of the conditions
under which an AFO is a CAFO and is, therefore, subject to the NPDES
regulatory requirements. In addition, EPA is revising the existing
regulation to remove certain provisions that are no longer appropriate.
The existing regulations were designed to prohibit the release of
wastewater from the feedlot site, but did not specifically address
discharges that may occur when wastewater or solid manure mixtures are
applied to crop, pasture, or hayland. The proposed regulations address
the environmental risks associated with manure management. The proposed
revisions also are more reflective of current farm production practices
and waste management controls.
Today's proposed revised regulations also seek to improve the
effectiveness of the existing regulations by focusing on those
operations that produce the majority of the animal manure and
wastewater generated annually. EPA estimates that the proposed
regulations will regulate, as CAFOs, about 7 to 10 percent of all
animal confinement operations nationwide, and will capture between 64
percent and 70 percent of the total amount of manure generated at CAFOs
annually, depending on the proposed regulatory alternative (discussed
in more detail in Section VI.A). Under the existing regulations, few
operations have obtained NPDES permits. Presently, EPA and authorized
States have issued approximately 2,500 NPDES permits. This is less than
1 percent of the estimated 376,000 animal confinement operations in the
United States. EPA's proposed revisions are intended to ensure that all
CAFOs, as defined under the proposed regulations, will apply for and
obtain a permit.
V. What Environmental and Human Health Impacts Are Potentially
Caused by CAFOs?
The 1998 National Water Quality Inventory, prepared under Section
305(b) of the Clean Water Act, presents information on impaired water
bodies based on reports from the States. This recent report indicates
that the agricultural sector (wh