[Federal Register: January 12, 2001 (Volume 66, Number 9)]
[Proposed Rules]
[Page 3009-3058]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja01-38]
[[pp. 3009-3058]] National Pollutant Discharge Elimination System Permit Regulation
and Effluent Limitations Guidelines and Standards for Concentrated
Animal Feeding Operations
[[Continued from page 3008]]
[[Page 3009]]
the basis that they do not discharge or discharge only in the event of
a 25-year, 24-hour storm. Second, EPA is proposing to clarify that land
application areas are part of the CAFO and any associated discharge
from these areas is subject to permitting.
While these two proposed changes would help address the ``duty to
apply'' issue, EPA does not believe they would go far enough. Even with
eliminating the 25-year, 24-hour storm exemption from the CAFO
definition, EPA is concerned that operations would still seek to avoid
permitting by claiming they are ``zero dischargers.'' Specifically, EPA
has encountered a further zero discharge conundrum: A facility claims
that by controlling its discharge down to zero--the very level that a
permit would require--it has effectively removed itself from CWA
jurisdiction, because the CWA simply prohibits discharging without a
permit, so a facility that does not discharge does not need a permit.
EPA believes this would be an incorrect reading of the CWA and would
not be a basis for claiming an exemption from permitting (as explained
directly below). Therefore, it is important to clarify in the
regulations that even CAFOs that claim to be zero dischargers must
apply for a permit.
To round out the basis for this proposed revision, EPA is proposing
a regulatory presumption in the regulations that all CAFOs have a
potential to discharge to the waters such that they should be required
to apply for a permit. EPA believes this would be a reasonable
presumption on two grounds. First, the Agency believes this is
reasonable from a factual standpoint, as is fully discussed in section
V of today's preamble.
This factual finding would become even more compelling under
today's proposals to eliminate the 25-year, 24-hour storm exemption
from the CAFO definition and to clarify that discharges from on-site
land application areas, are considered CAFO point source discharges. If
these two proposals were put in place, EPA believes, many fewer
operations would be claiming that they do not discharge.
Second, a presumption that all CAFOs have a potential to discharge
would be reasonable because of the need for clarity on the issues
described above and the historical inability under the current
regulations to effectuate CAFO permitting. Under today's proposal, the
duty would be for each CAFO to apply for a permit, not necessarily to
obtain one. A CAFO that believes it does not have a potential to
discharge could seek to demonstrate as much to the permitting authority
in lieu of submitting a full permit application. (To avoid submitting a
completed permit application, a facility would need to receive a ``no
potential to discharge'' determination from the permit authority prior
to the deadline for applying for a permit. See section VII.F.3 below.)
If the demonstration were successful, the permitting authority would
not issue a permit. Therefore, the duty to apply would be based on a
rebuttable presumption that each facility has a potential to discharge.
Without this rebuttable presumption, EPA believes it could not
effectuate proper permitting of CAFOs because of operations that would
claim to be excluded from the CWA because they do not discharge.
CWA authority for a duty to apply. In pre-proposal discussions,
some stakeholders have questioned EPA's authority under the Clean Water
Act to impose a duty for all CAFOs to apply for a permit. EPA believes
that the CWA does provide such authority, for the following reasons.
Section 301(a) of the CWA says that no person may discharge without
an NPDES permit. The Act is silent, however, on the requirement for
permit applications. It does not explicitly require anyone to apply for
a permit, as some stakeholders have pointed out. But neither does the
Act expressly prohibit EPA from requiring certain facilities to submit
an NPDES permit application or from issuing an NPDES permit without
one. Section 402(a) of the Act says simply that the Agency may issue an
NPDES permit after an opportunity for public hearing.
Indeed, finding that EPA could not require permitting of CAFOs
would upset the legislative scheme and render certain provisions of the
Act meaningless. Section 301(b)(2)(A), which sets BAT requirements for
existing sources and thus is at the heart of the statutory scheme,
states that EPA shall establish BAT standards that ``require the
elimination of discharges of all pollutants if the Administrator finds
* * * that such elimination is technologically and economically
achievable.* * *'' In other words, Congress contemplated that EPA could
set effluent standards going down to zero discharge where appropriate.
Section 306, concerning new sources, contains similar language
indicating that zero discharge may be an appropriate standard for some
new sources. Section 402 puts these standards into effect by requiring
EPA to issue NPDES permits that apply these standards and ensure
compliance with them. Thus, the Act contemplates the issuance of NPDES
permits that require zero discharge. These provisions are underscored
by Section 101(a) of the Act, which sets a national goal of not just
reducing but eliminating the discharge of pollutants to the waters.
This statutory scheme would be negated if facilities were allowed
to avoid permitting by claiming that they already meet a zero discharge
standard that is established in the CAFO regulations and that a permit
would require. Issuing a zero discharge standard would be an act of
futility because it could not be implemented through a permit. Under a
contrary interpretation, a CAFO could repeatedly discharge and yet
avoid permitting by claiming that it does not intend to discharge
further. EPA does not believe that Congress intended to tie the
Agency's hands in this manner. To be sure, in no other area of the
NPDES program are industrial operations allowed to avoid permitting by
claiming that they already meet the limits that a permit would require.
That would be a plainly wrong view of the Act; Section 301(a) states
unequivocally that no person may discharge at all without a permit. The
Act does not contemplate a different system for facilities that are
subject to a zero discharge standard, and it is the unique nature of
the zero discharge standard that makes it appropriate for EPA to
require CAFOs to apply for permits.
EPA also finds authority to require NPDES permit applications from
CAFOs in Section 308 of the Act. Under Section 308, the Administrator
may require point sources to provide information ``whenever required to
carry out the objective of this chapter,'' for purposes, among other
things, of determining whether any person is in violation of effluent
limitations, or to carry out Section 402 and other provisions. Because
EPA proposes a presumption that all CAFOs have a potential to discharge
pollutants, it is important, and within EPA's authority, to collect
information from CAFOs in order to determine if they are in violation
of the Act or otherwise need a permit.
EPA solicits comment on the proposed duty to apply.
e. The Definitions of AFO and CAFO Would Include the Land Areas
Under the Control of the Operator on Which Manure is Applied. In
today's proposal, EPA defines an AFO to include both the animal
production areas of the operation and the land areas, if any, under the
control of the owner or operator, on which manure and associated waste
waters are applied. See proposed Sec. 122.23(a)(1). The definition of a
CAFO is based on the AFO definition and thus would include the
[[Page 3010]]
land application areas as well. Accordingly, a CAFO's permit would
include requirements to control not only discharges from the production
areas but also those discharges from the land application areas. Under
the existing regulations, discharges from a CAFO's land application
areas that result from improper agricultural practices are already
considered to be discharges from the CAFO and therefore, are subject to
the NPDES permitting program. However, EPA believes it would be helpful
to clarify the regulations on this point.
By the term ``production area,'' EPA means the animal confinement
areas, the manure storage areas (e.g. lagoon, shed, pile), the feed
storage areas (e.g., silo, silage bunker), and the waste containment
areas (e.g., berms, diversions). The land application areas include any
land to which a CAFO's manure and wastewater is applied (e.g., crop
fields, fields, pasture) that is under the control of the CAFO owner or
operator, whether through ownership or a lease or contract. The land
application areas do not include areas that are not under the CAFO
owner's or operator's control. For example, where a nearby farm is
owned and operated by someone other than the CAFO owner or operator and
the nearby farm acquires the CAFO's manure or wastewater, by contract
or otherwise, and applies those wastes to its own crop fields, those
crop fields are not part of the CAFO.
The definition of an AFO under the existing regulations refers to a
``lot or facility'' that meets certain conditions, including that
``[c]rops, vegetation[,] forage growth, or post-harvest residues are
not sustained in the normal growing season over any portion of the lot
or facility.'' 40 CFR 122.23(b)(1). In addition, the regulations define
``discharge of a pollutant'' as the addition of any pollutant to waters
of the United States from any point source. 40 CFR 122.2. EPA
interprets the current regulations to include discharges of CAFO-
generated manure and wastewaters from improper land application to
areas under the control of the CAFO as discharges from the CAFO itself.
Otherwise, a CAFO could simply move its wastes outside the area of
confinement, and over apply or otherwise improperly apply those wastes,
which would render the CWA prohibition on unpermitted discharges of
pollutants from CAFOs meaningless. Moreover, the pipes and other
manure-spreading equipment that convey CAFO manure and wastewaters to
land application areas under the control of the CAFO are an integral
part of the CAFO. Under the existing regulations, this equipment should
be considered part of the CAFO, and discharges from this equipment that
reach the waters of the United States as a result of improper land
application should be considered discharges from the CAFO for this
reason as well. In recent litigation brought by citizens against a
dairy farm, a federal court reached a similar conclusion. See CARE v.
Sid Koopman Dairy, et al., 54 F. Supp. 2d 976 (E.D. Wash., 1999).
One of the goals of revising the existing CAFO regulations is to
make the regulations clearer and more understandable to the regulated
community and easier for permitting authorities to implement. EPA
believes that amending the definition of an AFO (and, by extension,
CAFO) to expressly include land application areas will help achieve
this clarity and will enable permitting authorities to both more
effectively implement the proposed effluent guidelines and to more
effectively enforce the CWA's prohibition on discharging without a
permit. It would be clear under this revision that the term ``CAFO''
means the entire facility, including land application fields and other
areas under the CAFO's control to which it applies its manure and
wastewater. By proposing to include land application areas in the
definition of an AFO, and therefore, a CAFO, discharges from those
areas would, by definition, be discharges from a point source--i.e.,
the CAFO. There would not need to be a separate showing of a
discernible, confined, and discrete conveyance such as a ditch.
While the CWA includes CAFOs within the definition of a point
source, it does not elaborate on what the term CAFO means. EPA has
broad discretion to define the term CAFO. Land application areas are
integral parts of many or most CAFO operations. Land application is
typically the end point in the cycle of manure management at CAFOs.
Significant discharges to the waters in the past have been attributed
to the land application of CAFO-generated manure and wastewater. EPA
does not believe that Congress could have intended to exclude the
discharges from a CAFO's land application areas from coverage as
discharges from the CAFO point source. Moreover, defining CAFOs in this
way is consistent with EPA's effluent limitations guidelines for other
industries, which consider on-site waste treatment systems to be part
of the production facilities in that the regulations restrict
discharges from the total operation. Thus, it is reasonable for EPA to
revise the regulations by including land application areas in the
definition of an AFO and CAFO.
While the proposal would include the land application areas as part
of the AFO and CAFO, it would continue to count only those animals that
are confined in the production area when determining whether a facility
is a CAFO.
EPA is also considering today whether it is reasonable to interpret
the agricultural storm water exemption as not applicable to any
discharges from CAFOs. See section VII.D.2. If EPA were to adopt that
interpretation, all discharges from a CAFO's land application areas
would be subject to NPDES requirements, regardless of the rate or
manner in which the manure has been applied to the land.
Please refer to section VII.D for a full discussion of land
application, including EPA's proposal with regard to land application
of CAFO manure by non-CAFOs.
EPA is requesting comment on this approach.
f. What Types of Poultry Operations are CAFOs? EPA is proposing to
revise the CAFO regulations to include all poultry operations with the
potential to discharge, and to establish the threshold for AFOs to be
defined as CAFOs at 50,000 chickens and 27,500 turkeys. See proposed
Sec. 122.23(a)(3)(i)(H) and (I). The proposed revision would remove the
limitation on the type of manure handling or watering system employed
at laying hen and broiler operations and would, therefore, address all
poultry operations equally. This approach would be consistent with
EPA's objective of better addressing the issue of water quality impacts
associated with both storage of manure at the production area and land
application of manure while simultaneously simplifying the regulation.
The following discussion focuses on the revisions to the threshold for
chickens under each of the co-proposed regulatory alternatives.
The existing NPDES CAFO definition is written such that the
regulations only apply to laying hen or broiler operations that have
continuous overflow watering or liquid manure handling systems
(i.e.,``wet'' systems). (40 CFR Part 122, Appendix B.) EPA has
interpreted this language to include poultry operations in which dry
litter is removed from pens and stacked in areas exposed to rainfall,
or piles adjacent to a watercourse. These operations may be considered
to have established a crude liquid manure system (see 1995 NPDES
Permitting Guidance for CAFOs). The existing CAFO regulations also
specify different thresholds for determining which AFOs
[[Page 3011]]
are CAFOs depending on which of these two types of systems the facility
uses (e.g., 100,000 laying hens or broilers if the facility has
continuous overflow watering; 30,000 laying hens or boilers if the
facility has a liquid manure system). When the NPDES CAFO regulations
were promulgated, EPA selected these thresholds because the Agency
believed that most commercial operations used wet systems (38 FR 18001,
1973).
In the 25 years since the CAFO regulations were promulgated, the
poultry industry has changed many of its production practices. Many
changes to the layer production process have been instituted to keep
manure as dry as possible. Consequently, the existing effluent
guidelines do not apply to many broiler and laying hen operations,
despite the fact that chicken production poses risks to surface water
and ground water quality from improper storage of dry manure, and
improper land application. It is EPA's understanding that continuous
overflow watering has been largely discontinued in lieu of more
efficient watering methods (i.e., on demand watering), and that liquid
manure handling systems represent perhaps 15 percent of layer
operations overall, although in the South approximately 40 percent of
operations still have wet manure systems.
Despite the CAFO regulations, nutrients from large poultry
operations continue to contaminate surface water and ground water due
to rainfall coming in contact with dry manure that is stacked in
exposed areas, accidental spills, etc. In addition, land application
remains the primary management method for significant quantities of
poultry litter (including manure generated from facilities using
``dry'' systems). Many poultry operations are located on smaller
parcels of land in comparison to other livestock sectors, oftentimes
owning no significant cropland or pasture, placing increased importance
on the proper management of the potentially large amounts of manure
that they generate. EPA also believes that all types of livestock
operations should be treated equitably under the revised regulation.
As documented in the Environmental Impact Assessment, available in
the rulemaking Record, poultry production in concentrated areas such as
in the Southeast, the Delmarva Peninsula in the mid-Atlantic, and in
key Midwestern States has been shown to cause serious water quality
impairments. For example, the Chesapeake Bay watershed's most serious
water quality problem is caused by the overabundance of nutrients (e.g.
nitrogen and phosphorus). EPA's Chesapeake Bay Program Office estimates
that poultry manure is the largest source of excess nitrogen and
phosphorous reaching the Chesapeake Bay from the lower Eastern Shore of
Maryland and Virginia, sending more than four times as much nitrogen
into the Bay as leaky septic tanks and runoff from developed areas, and
more than three times as much phosphorus as sewage treatment plants.
These discharges of nutrients result from an over-abundance of manure
relative to land available for application, as well as the management
practices required to deal with the excess manure. The State of
Maryland has identified instances where piles of chicken litter have
been stored near ditches and creeks that feed tributaries of the Bay.
Soil data also suggest that in some Maryland counties with poultry
production the soils already contain 90 percent or more of the
phosphorus needed by crops. The State of Maryland has surveyed the
Pocomoke, Transquaking, and Manokin river systems and has concluded
that 70-87 percent of all nutrients reaching those waters came from
farms (though not all from AFOs). Based on EPA data, phosphorus
concentrations in the Pocomoke Sound have increased more than 25
percent since 1985, suffocating sea grasses that serve as vital habitat
for fish and crabs. In 1997, poultry operations were found to be a
contributing cause of Pfiesteria outbreaks in the Pokomoke River and
Kings Creek (both in Maryland) and in the Chesapeake Bay, in which tens
of thousands of fish were killed. Other examples of impacts from
poultry manure are discussed in section V of today's proposal.
Dry manure handling is the predominant practice in the broiler and
other meat type chicken industries. Birds are housed on dirt or
concrete floors that have been covered with a bedding material such as
wood shavings. Manure becomes mixed with this bedding to form a litter,
which is removed from the house in two ways. After each flock of birds
is removed from the house a portion of litter, referred to as cake, is
removed. Cake is litter that has become clumped, usually below the
watering system, although it can also be formed by a concentration of
manure. In addition, the operator also removes all of the litter from
the house periodically. The frequency of the ``whole house'' clean-out
varies but commonly occurs once each year, unless a breach of
biosecurity is suspected.
Broiler operations generally house between five and six flocks of
birds each year, which means there are between five or six ``cake-
outs'' each year. Roasters have fewer flocks, and small fryers have
more flocks, but the volume of ``cake-out'' removed in a year is
comparable. ``Cake-outs'' will sometimes occur during periods when it
is not possible to land apply the litter (e.g. in the middle of the
growing season or during the winter when field conditions may not be
conducive to land application). Consequently, it is usually necessary
to store the dry litter after removal until it can be land applied.
Depending on the time of year it occurs, ``whole house'' clean-out
may also require the operator to store the dry manure until it can be
land applied. If the manure is stored in open stockpiles over long
periods of time, usually greater than a few weeks, runoff from the
stockpile may contribute pollutants to surface water and/or ground
water that is hydrologically connected to surface water.
The majority of egg laying operations use dry manure handling,
although there are operations with liquid manure handling systems.
Laying hens are kept in cages and manure drops below the cages in both
dry and liquid manure handling systems. Most of the dry manure
operations are constructed as high rise houses where the birds are kept
on the second floor and the manure drops to the first floor, which is
sometimes referred to as the pit. Ventilation flows through the house
from the roof down over the birds and into the pit over the manure
before it is forced out through the sides of the house. The ventilation
dries the manure as it piles up into cones. Manure can usually be
stored in high rise houses for up to a year before requiring removal.
Problems can occur with dry manure storage in a high rise house
when drinking water systems are not properly designed or maintained.
For example, improper design or maintenance of the water system can
result in excess water spilling into the pit below, which raises the
moisture content of the manure, resulting in the potential for spills
and releases of manure from the building.
Concerns with inadequate storage or improper design and maintenance
contribute to concerns over dry manure systems for laying hens. As with
broiler operations, open stockpiles of litter stored over long periods
of time (e.g., greater than a few weeks) may contribute to pollutant
discharge from contaminated runoff and leachate leaving the stockpile.
Laying hens operations may also use a liquid manure handling system.
The system is similar to the dry manure system except that
[[Page 3012]]
the manure drops below the cages into a channel or shallow pit and
water is used to flush this manure to a lagoon.
The existing regulation already applies to laying hen and broiler
operations with 100,000 birds when a continuous flow watering system is
used, and to 30,000 birds when a liquid manure handling system is used.
In revising the threshold for poultry operations, EPA evaluated several
methods for equating poultry to the existing definition of an animal
unit. EPA considered laying hens, pullets, broilers, and roasters
separately to reflect the differences in size, age, production, feeding
practices, housing, waste management, manure generation, and nutrient
content of the manure. Manure generation and pollutant parameters
considered include: nitrogen, phosphorus, BOD5, volatile solids, and
COD. Analysis of these parameters consistently results in a threshold
of 70,000 to 140,000 birds as being equivalent to 1,000 animal units.
EPA also considered a liveweight basis for defining poultry. The
liveweight definition of animal unit as used by USDA defines 455,000
broilers and pullets and 250,000 layers as being representative of
1,000 animal units. EPA data indicates that using a liveweight basis at
1,000 AU would exclude virtually all broiler operations from the
regulation.
Consultations with industry indicated EPA should evaluate the
different sizes (ages) and purposes (eggs versus meat) of chickens
separately. However, when evaluating broilers, roasters, and other
meat-type chickens, EPA concluded that a given number of birds capacity
represented the same net annual production of litter and nutrients. For
example, a farm producing primarily broilers would raise birds for 6-8
weeks with a final weight of 3 to 5 pounds, a farm producing roasters
would raise birds for 9-11 weeks with a final weight of 6 to 8 pounds,
whereas a farm producing game hens may only keep birds for 4-6 weeks
and at a final weight of less than 2 pounds. The housing, production
practices, waste management, and manure nutrients and process wastes
generated in each case is essentially the same. Layers are typically
fed less than broilers of equivalent size, and are generally maintained
as a smaller chicken. However, a laying hen is likely to be kept for a
year of egg production. The layer is then sold or molted for several
weeks, followed by a second period of egg production. Pullets are
housed until laying age of approximately 18 to 22 weeks. In all cases
manure nutrients and litter generated results in a threshold of 80,000
to 130,000 birds as being the equivalent of 1,000 animal units.
Today's proposed NPDES and effluent guidelines requirements for
poultry eliminate the distinction between how manure is handled and the
type of watering system that is used. EPA is proposing this change
because it believes there is a need to control poultry operations
regardless of the manure handling or watering system. EPA believes that
improper storage as well as land application rates which exceed
agricultural use have contributed to water quality problems, especially
in areas with large concentrations of poultry production. Inclusion of
poultry operations in the proposed NPDES regulation is intended to be
consistent with the proposed effluent guidelines regulation, discussed
in section VIII of today's preamble. EPA is proposing that 100,000
laying hens or broilers be considered the equivalent of 1,000 animal
units.
Consequently EPA proposes to establish the threshold under the two-
tier alternative structure that defines which operations are CAFOs at
500 animal units as equivalent to 50,000 birds. Facilities that are
subject to designation are those with fewer than 50,000 birds. This
threshold would address approximately 10 percent of all chicken AFOs
nationally and more than 70 percent of all manure generated by
chickens. On a sector specific basis, this threshold would address
approximately 28 percent of all broiler operations (including all meat-
type chickens) while addressing more than 70 percent of manure
generated by broiler operations. For layers (including pullets) the
threshold would address less than 5 percent of layer operations while
addressing nearly 80 percent of manure generated by layer operations.
EPA believes this threshold is consistent with the threshold
established for the other livestock sectors.
Under this two-tier structure, today's proposed changes exclude
poultry operations with liquid manure handling systems if they have
between 30,000 and 49,999 birds. EPA estimates this to be few if any
operations nationally and believes these are relatively small
operations. EPA does not believe these few operations pose a
significant threat to water quality even in aggregation. EPA also notes
that the trend in laying hen operations (where liquid systems may
occur) has been to build new operations to house large numbers of
animals (e.g., usually in excess of 100,000 birds per house), which
frequently employ dry manure handling systems. Given the limited number
of existing operations with liquid manure handling systems and the
continuing trend toward larger operations, EPA believes the proposed
uniform threshold of 50,000 birds is appropriate.
Under the proposed alternative three-tier structure, any operation
with more than 100,000 chickens is automatically defined as a CAFO.
This upper tier reflects 4 percent of all chicken operations.
Additionally those poultry operations with 30,000 to 100,000 chickens
are defined as CAFOs if they meet the unacceptable conditions presented
in section VII.C. This middle tier would address an additional 10
percent of poultry facilities. By sector this middle tier would
potentially cover an additional 45 percent of broiler manure and 22
percent layer manure. In aggregate this scenario would address 14
percent of chicken operations and 86 percent of manure. See VI.A.2 for
the additional information regarding scope of the two proposed
regulatory alternatives.
EPA acknowledges that this threshold pulls in a substantial number
of chicken operations under the definition of a CAFO. Geographic
regions with high density of poultry production have experienced water
quality problems related to an overabundance of nutrients, to which the
poultry industry has contributed. For example northwestern Arkansas and
the Delmarva peninsula in the Mid-Atlantic tend to have smaller poultry
farms as compared to other regions. The chicken and turkey sectors also
have higher percentages of operations with insufficient or no land
under the control of the AFO on which to apply manure. Thus EPA
believes this threshold is appropriate to adequately control the
potential for discharges from poultry CAFOs.
g. How Would Immature Animals in the Swine and Dairy Sectors be
Counted? EPA is proposing to include immature swine and heifer
operations under the CAFO definition. See proposed
Sec. 122.23(a)(3)(i)(C) and (E). In the proposed two-tier structure,
EPA would establish the 500 AU threshold equivalent for defining which
operations are CAFOs as operations with 5000 or more swine weighing 55
pounds or less, and those with fewer than 5000 swine under 55 pounds
are AFOs which may be designated as CAFOs. Immature dairy cows, or
heifers, would be counted equivalent to beef cattle; that is, the 500
AU threshold equivalent for defining CAFOs would be operations with 500
or more heifers, and those with fewer than 500 could be designated as
CAFOs.
In the proposed three-tier structure, the 300 AU and 1,000 AU
equivalents,
[[Page 3013]]
respectively for each animal type would be: 3,000 head and 10,000 head
for immature swine; and 300 head and 1,000 head for heifers.
Only swine over 55 pounds and mature dairy cows are specifically
included in the current definition (although manure and wastewater
generated by immature animals confined at the same operation with
mature animals are subject to the existing requirements). Immature
animals were not a concern in the past because they were generally part
of operations that included mature animals and, therefore, their manure
was included in the permit requirements of the CAFO. However, in recent
years, these livestock industries have become increasingly specialized
with the emergence of increasing numbers of large stand-alone
nurseries. Further, manure from immature animals tends to have higher
concentrations of pathogens and hormones and thus poses greater risks
to the environment and human health.
Since the 1970s, the animal feeding industry has become more
specialized, especially at larger operations. When the CAFO regulations
were issued, it was typical to house swine from birth to slaughter
together at the same operation known as a farrow to finish operation.
Although more than half of swine production continues to occur at
farrow-to-finish operations, today it is common for swine to be raised
in phased production systems. As described in section VI, specialized
operations that only house sows and piglets until weaned represent the
first phase, called farrowing. The weaned piglets are transferred to a
nursery, either at a separate building or at a location remote from the
farrowing operation for biosecurity concerns. The nursery houses the
piglets until they reach about 55 to 60 pounds, at which time they are
transferred to another site, the grow-finish facility.
The proposed thresholds for swine are established on the basis of
the average phosphorus excreted from immature swine in comparison to
the average phosphorus excreted from swine over 55 pounds. A similar
threshold would be obtained when evaluating live-weight manure
generation, nitrogen, COD and volatile solids (VS). See the Technical
Development Document for more details.
Dairies often remove immature heifers to a separate location until
they reach maturity. These off-site operations may confine the heifers
in a manner that is very similar to a beef feedlot or the heifers may
be placed on pasture. The existing CAFO definition does not address
operations that only confine immature heifers. EPA acknowledges that
dairies may keep heifers and calves and a few bulls on site. EPA data
indicates some of these animals are in confinement, some are pastured,
and some moved back and forth between confinement, open lots, and
pasture. The current CAFO definition considers only the mature milking
cows. This has raised some concerns that many dairies with significant
numbers of immature animals could be excluded from the regulatory
definition even though they may generate as much manure as a dairy with
a milking herd large enough to be a CAFO. The proportion of immature
animals maintained at dairies can vary significantly with a high being
a one to one ratio. Industry-wide there are 0.6 immature animals for
every milking cow.
EPA considered options for dairies that would take into account all
animals maintained in confinement, including calves, bulls and heifers
when determining whether a dairy is a CAFO or not. EPA examined two
approaches for this option, one that would count all animals equally
and another based on the proportion of heifers, calves, and bulls
likely to be present at the dairy. EPA is not proposing to adopt either
of these options.
The milking herd is usually a constant at a dairy, but the
proportion of immature animals can vary substantially among dairies and
even at a given dairy over time. Some operations maintain their
immature animals on-site, but keep them on pasture most of the time.
Some operations keep immature animals on-site, and maintain them in
confinement all or most of the time. Some operations may also have one
or two bulls on-site, which can also be kept either in confinement or
on pasture, while many keep none on-site. Some operations do not keep
their immature animals on-site at all, instead they place them offsite,
usually in a stand-alone heifer operation. Because of the variety of
practices at dairies, it becomes very difficult to estimate how many
operations have immature animals on-site in confinement. EPA believes
that basing the applicability on the numbers of immature animals and
bulls would make implementing the regulation more difficult for the
permit authority and the CAFO operator. However, EPA requests comment
on this as a possible approach.
EPA also requests comments on using only mature milking cows as the
means for determining applicability of the size thresholds. Under the
two-tier structure, EPA's proposed requirements for dairies would apply
to 3 percent of the dairies nationally and will control 37 percent of
the CAFO manure generated by all dairies nationally. This is
proportionally lower than other livestock sectors, largely due to the
dominance of very small farms in the dairy industry. There are similar
trends in the dairy industry as in the other livestock sectors,
indicating that the number of large operations is increasing while the
number of small farms continues to decline. Under the three-tier
structure, EPA's proposed requirements would apply to 6 percent of the
dairies nationally, and will control 43 percent of all manure generated
at dairy CAFOs annually. See Section VI.A.1.
Inclusion in the proposed NPDES definition of immature swine and
heifers is intended to be consistent with the proposed effluent
guidelines regulation, described in section VIII of today's preamble.
P. What Other Animal Sectors Does Today's Proposal Affect? EPA is
proposing to lower the threshold for defining which AFOs are CAFOs to
the equivalent of 500 AU in the horse, sheep, lamb and duck sectors
under the two-tier structure. See proposed Sec. 122.23(a)(3)(i). This
action is being taken to be consistent with the NPDES proposed
revisions for beef, dairy, swine and poultry. Under the three-tier
structure, the existing thresholds would remain as they are under the
existing regulation.
The animal types covered by the NPDES program are defined in the
current regulation (Part 122 Appendix B). The beef, dairy, swine,
poultry and veal sectors are being addressed by both today's effluent
guidelines proposal and today's NPDES proposal. However, today's
proposal would not revise the effluent guidelines for any animal sector
other than beef, dairy, swine, poultry and veal. Therefore, under
today's proposal, any facility in the horse, sheep, lamb and duck
sectors with 500 to 1,000 AU that is defined as a CAFO, and any
facility in any sector below 500 AU that is designated as a CAFO, will
not be subject to the effluent guidelines, but will have NPDES permits
developed on a best professional judgment (BPJ) basis.
Table 7-6 identifies those meeting the proposed 500 AU threshold in
the two-tier structure. Table 7-7 identifies the numbers of animals
meeting the 300 AU, 300 AU to 1,000 AU, and the 1,000 AU thresholds in
the three-tier structure.
A facility confining any other animal type that is not explicitly
mentioned in the NPDES and effluent guidelines regulations is still
subject to NPDES permitting requirements if it meets the definition of
an AFO and if the permit
[[Page 3014]]
authority designates it as a CAFO on the basis that it is a significant
contributor of pollution to waters of the U.S. Refer to VII.C.4 in
today's proposal for a discussion of designation for AFOs.
The economic analysis for the NPDES rule does not cover animal
types other than beef, dairy, swine and poultry. EPA chose to analyze
those animal types that produce the greatest amount of manure and
wastewater in the aggregate while in confinement. EPA believes that
most horses, sheep, and lambs operations are not confined and therefore
will not be subject to permitting, thus, the Agency expects the impacts
in these sectors to be minimal. However, most duck operations probably
are confined. EPA requests comments on the effect of this proposal on
the horse, sheep, lamb and duck sectors.
i. How Does EPA Propose to Control Manure at Operations that Cease
to be CAFOs? EPA is proposing to require operators of permitted CAFOs
that cease operations to retain NPDES permits until the facilities are
properly closed, i.e., no longer have the potential to discharge. See
Sec. 122.23(i)(3). Similarly, today's proposal would clarify that, if a
facility ceases to be an active CAFO (e.g., it decreases the number of
animals below the threshold that defined it as a CAFO, or ceases to
operate), the CAFO must remain permitted until all wastes at the
facility that were generated while the facility was a CAFO no longer
have the potential to reach waters of the United States.
These requirements mean that if a permit is about to expire and the
manure storage facility has not yet been properly closed, the facility
would be required to apply for a permit renewal because the facility
has the potential to discharge to waters of the U.S. until it is
properly closed. Proper facility closure includes removal of water from
lagoons and stockpiles, and proper disposal of wastes, which may
include land application of manure and wastewater in accordance with
NPDES permit requirements, to prevent or minimize discharge of
pollutants to receiving waters.
The existing regulations do not explicitly address whether a permit
should be allowed to expire when an owner or operator ceases
operations. However, the public has expressed concerns about facilities
that go out of business leaving behind lagoons, stockpiles and other
contaminants unattended and unmanaged. Moreover, there are a number of
documented instances of spills and breaches at CAFOs that have ceased
operations, leaving behind environmental problems that became a public
burden to resolve (see, for example, report of the North Carolina DENR,
1999).
EPA considered five options for NPDES permit requirements to ensure
that CAFO operators provide assurances for proper closure of their
facilities (especially manure management systems such as lagoons) in
the event of financial failure or other business curtailment. EPA
examined the costs to the industry and the complexity of administering
such a program for all options. The analyses of these options are
detailed in the EPA NPDES CAFO Rulemaking Support Document, September
26, 2000.
Closure Option 1 would require a closure plan. The CAFO operator
would be required to have a written closure plan detailing how the
facility plans to dispose of animal waste from manure management
facilities. The plan would be submitted with the permit application and
be approved with the permit application. The plan would identify the
steps necessary to perform final closure of the facility, including at
least:
A description of how each major component of the manure
management facility (e.g., lagoons, settlement basins, storage sheds)
will be closed;
An estimate of the maximum inventory of animal waste ever
on-site, accompanied with a description of how the waste will be
removed, transported, land applied or otherwise disposed; and
A closure schedule for each component of the facility
along with a description of other activities necessary during closure
(e.g., control run-off/run-on, ground water monitoring if necessary).
EPA also investigated several options that would provide financial
assurances in the event the CAFO went out of business, such as
contribution to a sinking fund, commercial insurance, surety bond, and
other common commercial mechanisms. Under Closure Option 2, permittees
would have to contribute to a sinking fund to cover closure costs of
facilities which abandon their manure management systems. The
contribution could be on a per-head basis, and could be levied on the
permitting cycle (every five years), or annually. The sinking fund
would be available to cleanup any abandoned facility (including those
which are not permitted). Data on lagoon closures in North Carolina
(Harrison, 1999) indicate that the average cost of lagoon closure for
which data are available is approximately $42,000. Assuming a levy of
$0.10 per animal, the sinking fund would cover the cost of
approximately 50 abandonments nationally per year, not accounting for
any administrative costs associated with operating the funding program.
Closure Option 3 would require permittees to provide financial
assurance by one of several generally accepted mechanisms. Financial
assurance options could include the following common mechanisms: a)
Commercial insurance; (b) Financial test; (c) Guarantee; (d)
Certificate of Deposit or designated savings account; (e) Letter of
credit; or (f) Surety bond. The actual cost to the permittee would
depend upon which financial assurance option was available and
implemented. The financial test would likely be the least expensive for
some operations, entailing documentation that the net worth of the CAFO
operator is sufficient such that it is unlikely that the facility will
be abandoned for financial reasons. The guarantee would also be
inexpensive, consisting of a legal guarantee from a parent corporation
or other party (integrator) that has sufficient levels of net worth.
The surety bond would likely be the most expensive, typically requiring
an annual premium of 0.5 to 3.0 percent of the value of the bond; this
mechanism would likely be a last resort for facilities that could not
meet the requirement of the other mechanisms.
Option 4 is a combination of Options 2 and 3. Permittees would have
to provide financial assurance by one of several generally accepted
mechanisms, or by participating in a sinking fund. CAFO operators could
meet closure requirements through the most economical means available
for their operation.
Option 5, the preferred option in today's proposal, simply requires
CAFOs to maintain NPDES permit coverage until proper closure. Under
this option, facilities would be required to maintain their NPDES
permits, even upon curtailment of the animal feeding operation, for as
long as the facility has the potential to discharge. The costs for this
option would be those costs associated with maintaining a permit.
Today, EPA is proposing to require NPDES permits to include a
condition that imposes a duty to reapply for a permit unless an owner
or operator has closed the facility such that there is no potential for
discharges. The NPDES program offers legal and financial sanctions that
are sufficient, in EPA's view, to ensure that operators comply with
this requirement. EPA believes that this option would accomplish its
objectives and would be generally easy and effective to implement.
However, there are concerns that it would not be effective for
abandoned facilities because, unlike some of the other
[[Page 3015]]
options, no financial assurance mechanism would be in place. EPA is
requesting comment on the practical means of addressing the problem of
unmanaged waste from closed or abandoned CAFOs, and what authorities
EPA could use under the CWA or other statutes to address this problem.
See Section VII.E.5.c of today's proposal, which further discusses
the requirement for permit authorities to include facility closure in
NPDES permit special conditions.
While EPA is today proposing to only require ongoing permit
coverage of the former CAFO, permit authorities are encouraged to
consider including other conditions such as those discussed above.
j. Applicability of the Regulations to Operations That Have a
Direct Hydrologic Connection to Ground Water. Because of its relevance
to today's proposal, EPA is restating that the Agency interprets the
Clean Water Act to apply to discharges of pollutants from a point
source via ground water that has a direct hydrologic connection to
surface water. See proposed Sec. 122.23(e). Specifically, the Agency is
proposing that all CAFOs, including those that discharge or have the
potential to discharge CAFO wastes to navigable waters via ground water
with a direct hydrologic connection must apply for an NPDES permit. In
addition, the proposed effluent guidelines will require some CAFOs to
achieve zero discharge from their production areas including via ground
water which has a direct hydrologic connection to surface water.
Further, for CAFOs not subject to such an effluent guideline, permit
writers would in some circumstances be required to establish special
conditions to address such discharges. In all cases, a permittee would
have the opportunity to provide a hydrologist's report to rebut the
presumption that there is likely to be a discharge from the production
area to surface waters via ground water with a direct hydrologic
connection.
For CAFOs that would be subject to an effluent guideline that
includes requirements for zero discharge from the production area to
surface water via ground water (all existing and new beef and dairy
operations, and new swine and poultry operations, see proposed
Sec. 412.33(a), 412.35(a), and 412.45(a)), the proposed regulations
would presume that there is a direct hydrologic connection to surface
water. The permittee would be required to either achieve zero discharge
from the production area via ground water and perform the required
ground water monitoring or provide a hydrologist's statement that there
is no direct connection of ground water to surface water at the
facility. See 40 CFR 412.33(a)(3), 412.35(a)(3), and 412.45(a)(3).
For CAFOs that would be subject to the proposed effluent guideline
at 412.43 (existing swine, poultry and veal facilities) which does not
include ground water requirements, if the permit writer determines that
the facility is in an area with topographical characteristics that
indicate the presence of ground water that is likely to have a direct
hydrologic connection to surface water and if the permit writer
determines that pollutants may be discharged at a level which may cause
or contribute to an excursion above any State water quality standard,
the permit writer would be required to include special conditions to
address potential discharges via ground water. EPA is proposing that
the permittee must either comply with those conditions or provide a
hydrologist's statement that the facility does not have a direct
hydrologic connection to surface water. 40 CFR 122.23(j)(6) and (k)(5).
If a CAFO is not subject to the Part 412 Subparts C or D effluent
guideline (e.g., because it has been designated as a CAFO and is below
the threshold for applicability of those subparts; or is a CAFO in a
sector other than beef, dairy, swine, poultry or veal and thus is
subject to subparts A or B), then the permit writer would be required
to decide on a case-by-case basis whether effluent limitations
(technology-based and water quality-based, as necessary) should be
established to address potential discharges to surface water via
hydrologically connected ground water. Again, the permittee could avoid
or satisfy such requirements by providing a hydrologist's statement
that there is no direct hydrologic connection 40 CFR 122.23(k)(5).
Legal Basis. The Clean Water Act does not directly answer the
question of whether a discharge to surface waters via hydrologically
connected ground water is unlawful. However, given the broad
construction of the terms of the CWA by the federal courts and the
goals and purposes of the Act, the Agency believes that while Congress
has not spoken directly to the issue, the Act is best interpreted to
cover such discharges. The statutory terms certainly do not prohibit
the Agency's determination that a discharge to surface waters via
hydrologically-connected ground waters can be governed by the Act,
while the terms do clearly indicate Congress' broad concern for the
integrity of the Nation's waters. Section 301(a) of the CWA provides
that ``the discharge of any pollutant [from a point source] by any
person shall be unlawful'' without an NPDES permit. The term
``discharge of a pollutant'' is defined as ``any addition of a
pollutant to navigable waters from any point source.'' 33 U.S.C.
Sec. 1362(12). In turn, ``navigable waters'' are defined as ``the
waters of the United States, including the territorial seas.'' 33
U.S.C. Sec. 1362(7). None of these terms specifically includes or
excludes regulation of a discharge to surface waters via hydrologically
connected ground waters. Thus, EPA interprets the relevant terms and
definitions in the Clean Water Act to subject the addition of manure to
nearby surface waters from a CAFO via hydrologically connected ground
waters to regulation.
Some sections of the CWA do directly apply to ground water. Section
102 of the CWA, for example, requires the Administrator to ``develop
comprehensive programs for preventing, reducing, or eliminating the
pollution of the navigable waters and ground waters and improving the
sanitary conditions of surface and underground waters.'' 33 U.S.C.
Sec. 1252. Such references, however, are not significant to the
analysis of whether Congress has spoken directly on the issue of
regulating discharges via ground water which directly affect surface
waters. Specific references to ground water in other sections of the
Act may shed light on the question of whether Congress intended the
NPDES program to regulate ground water quality. That question, however,
is not the same question as whether Congress intended to protect
surface water from discharges which occur via ground water. Thus, the
language of the CWA is ambiguous with respect to the specific question,
but does not bar such regulation. Moreover, the Supreme Court has
recognized Congress' intent to protect aquatic ecosystems through the
broad federal authority to control pollution embodied in the Federal
Water Pollution Control Act Amendments of 1972. Section 101 of the Act
clearly states the purpose of the Act ``to restore and maintain the
chemical, physical, and biological integrity of the Nations' waters.''
33 U.S.C. Sec. 1251(a)(1). The Supreme Court found that ``[t]his
objective incorporated a broad, systemic view of the goal of
maintaining and improving water quality: as the House Report on the
legislation put it, ``the word ``integrity'' * * * refers to a
condition in which the natural structure and function of aquatic
ecosystems [are] maintained.'' United States v. Riverside Bayview
Homes, 474 U.S. 121, 132 (1985). An interpretation of the CWA which
excludes regulation
[[Page 3016]]
of point source discharges to the waters of the U.S. which occur via
ground water would, therefore, be inconsistent with the overall
Congressional goals expressed in the statute.
Federal courts have construed the terms of the CWA broadly (Sierra
Club v. Colorado Refining Co., 838 F. Supp. 1428, 1431 (D.Colo. 1993)
(citing Quivera Mining Co. v. EPA, 765 F.2d 126, 129 (10th Cir. 1985)),
but have found the language ambiguous with regard to ground water and
generally examine the legislative history of the Act. See e.g., Exxon
v. Train, 554 F.2d 1310, 1326-1329 (reviewing legislative history).
However, a review of the legislative history also is inconclusive.
Thus, courts addressing the issue have reached conflicting conclusions.
Since the language of the CWA itself does not directly address the
issue of discharges to ground water which affect surface water, it is
proper to examine the statute's legislative history. Faced with the
problem of defining the bounds of its regulatory authority, ``an agency
may appropriately look to the legislative history and underlying
policies of its statutory grants of authority.'' Riverside Bayview
Homes, 474 U.S. at 132. However, the legislative history also does not
address this specific issue. See Colorado Refining Co., 838 F. Supp. at
1434 n.4 (noting legislative history inconclusive).
In the House, Representative Les Aspin proposed an amendment with
explicit ground water protections by adding to the definition of
``discharge of a pollutant'' the phrase ``any pollutant to ground
waters from any point source.'' Legislative History of the Water
Pollution Control Act Amendments of 1972, 93d Cong., 1st. Sess. at 589
(1972) (hereinafter ``Legislative History''). While the Aspin amendment
was defeated, that rejection does not necessarily signal an explicit
decision by Congress to exclude even ground water per se from the scope
of the permit program. Commentators have suggested that provisions in
the amendment which would have deleted exemptions for oil and gas well
injections were the more likely cause of the amendment's defeat. Mary
Christina Wood, Regulating Discharges into Groundwater: The Crucial
Link in Pollution Control Under the Clean Water Act, 12 Harv. Envtl. L.
Rev. 569, 614 (1988); see also Legislative History at 590-597 (during
debate on the amendment, members in support and members in opposition
focused on the repeal of the exemption for oil and gas injection
wells).
At the least, there is no evidence that in rejecting the explicit
extension of the NPDES program to all ground water Congress intended to
create a ground water loophole through which the discharges of
pollutants could flow, unregulated, to surface water. Instead, Congress
expressed an understanding of the hydrologic cycle and an intent to
place liability on those responsible for discharges which entered the
``navigable waters.'' The Senate Report stated that ``[w]ater moves in
hydrologic cycles and it is essential that discharge of pollutants be
controlled at the source.'' Legislative History at 1495. The Agency has
determined that discharges via hydrologically connected ground water
impact surface waters and, therefore, should be controlled at the
source.
Most of the courts which have addressed the question of whether the
CWA subjects discharges to surface waters via hydrologically connected
ground waters to regulation have found the statute ambiguous on this
specific question. They have then looked to the legislative history for
guidance. McClellan Ecological Seepage Situation v. Weinberger, 707 F.
Supp. 1182, 1194 (E.D. Cal. 1988), vacated (on other grounds), 47 F.3d
325 (9th Cir. 1995), cert. denied, 116 S.Ct. 51 (1995); Kelley v.
United States, 618 F.Supp. 1103, 1105-06 (D.C.Mich. 1985). Even those
courts which have not found jurisdiction have acknowledged that it is a
close question. Village of Oconomowoc Lake v. Dayton Hudson Corp., 24
F.3d 962, 966 (7th Cir. 1994), cert. denied, 513 U.S. 930 (1994). As
one court noted, ``the inclusion of groundwater with a hydrological
connection to surface waters has troubled courts and generated a
torrent of conflicting commentary.'' Potter v. ASARCO, Civ. No.
S:56CV555, slip op. at 19 (D.Neb. Mar. 3, 1998). The fact that courts
have reached differing conclusions when examining whether the CWA
regulates such discharges is itself evidence that the statute is
ambiguous.
EPA does not argue that the CWA directly regulates ground water
quality. In the Agency's view, however, the CWA does regulate
discharges to surface water which occur via ground water because of a
direct hydrologic connection between the contaminated ground water and
nearby surface water. EPA repeatedly has taken the position that the
CWA can regulate discharges to surface water via ground water that is
hydrologically connected to surface waters.
For example, in issuing the general NPDES permit for concentrated
animal feeding operations (``CAFOs'') in Idaho, EPA stated:
``EPA agrees that groundwater contamination is a concern around
CAFO facilities. However, the Clean Water Act does not give EPA the
authority to regulate groundwater quality through NPDES permits.
``The only situation in which groundwater may be affected by the
NPDES program is when a discharge of pollutants to surface waters can
be proven to be via groundwater.'' 62 FR 20177, 20178 (April 25, 1997).
In response to a comment that the CAFO general permit should not cover
ground water, the Agency stated:
``EPA agrees that the Clean Water Act does not give EPA the
authority to regulate groundwater quality through NPDES permits.
However, the permit requirements * * * are not intended to regulate
groundwater. Rather, they are intended to protect surface waters which
are contaminated via a groundwater (subsurface) connection.'' Id.
EPA has made consistent statements on at least five other
occasions. In the Preamble to the final NPDES Permit Application
Regulations for Storm Water Discharges, the Agency stated: ``this
rulemaking only addresses discharges to waters of the United States,
consequently discharges to ground waters are not covered by this
rulemaking (unless there is a hydrological connection between the
ground water and a nearby surface water body.'') 55 FR 47990, 47997
(Nov. 16, 1990)(emphasis added)). See also 60 FR 44489, 44493 (August
28, 1995) (in promulgating proposed draft CAFO permit, EPA stated:
``[D]ischarges that enter surface waters indirectly through groundwater
are prohibited''); EPA, ``Guide Manual On NPDES Regulations For
Concentrated Animal Feeding Operations'' at 3 (December 1995) (``Many
discharges of pollutants from a point source to surface water through
groundwater (that constitutes a direct hydrologic connection) also may
be a point source discharge to waters of the United States.'').
In promulgating regulations authorizing the development of water
quality standards under the CWA by Indian Tribes for their
Reservations, EPA stated:
Notwithstanding the strong language in the legislative history of
the Clean Water Act to the effect that the Act does not grant EPA
authority to regulate pollution of ground waters, EPA and most courts
addressing the issue have recognized that * * * the Act requires NPDES
permits for discharges to groundwater where there is a direct
hydrological connection between groundwater and surface waters. In
[[Page 3017]]
these situations, the affected ground waters are not considered
``waters of the United States'' but discharges to them are regulated
because such discharges are effectively discharges to the directly
connected surface waters. Amendments to the Water Quality Standards
Regulations that Pertain to Standards on Indian Reservations, Final
Rule, 56 FR 64876, 64892 (Dec. 12, 1991)(emphasis added).
While some courts have not been persuaded that the Agency's
pronouncements on the regulation of discharges to surface water via
ground water represent a consistent Agency position, others have found
EPA's position to be clear. The Hecla Mining court noted that ``The
court in Oconomowoc Lake dismissed the EPA statements as a collateral
reference to a problem. It appears to this court, however, that the
preamble explains EPA's policy to require NPDES permits for discharges
which may enter surface water via groundwater, as well as those that
enter directly.'' Washington Wilderness Coalition v. Hecla Mining Co.,
870 F. Supp. 983, 990-91 (E.D. Wash. 1994), dismissed on other grounds,
(lack of standing) per unpublished decision (E.D. Wash. May 7, 1997)
(citing Preamble, NPDES Permit Regulations for Storm Water Discharges,
55 FR 47990, 47997 (Nov. 16, 1990)).
As a legal and factual matter, EPA has made a determination that,
in general, collected or channeled pollutants conveyed to surface
waters via ground water can constitute a discharge subject to the Clean
Water Act. The determination of whether a particular discharge to
surface waters via ground water which has a direct hydrologic
connection is a discharge which is prohibited without an NPDES permit
is a factual inquiry, like all point source determinations. The time
and distance by which a point source discharge is connected to surface
waters via hydrologically connected surface waters will be affected by
many site specific factors, such as geology, flow, and slope.
Therefore, EPA is not proposing to establish any specific criteria
beyond confining the scope of the regulation to discharges to surface
water via a ``direct'' hydrologic connection. Thus, EPA is proposing to
make clear that a general hydrologic connection between all waters is
not sufficient to subject the owner or operator of a point source to
liability under the Clean Water Act. Instead, consistent with the case
law, there must be information indicating that there is a ``direct''
hydrologic connection to the surface water at issue. Hecla Mining, 870
F.Supp. at 990 (``Plaintiffs must still demonstrate that pollutants
from a point source affect surface waters of the United States. It is
not sufficient to allege groundwater pollution, and then to assert a
general hydrological connection between all waters. Rather, pollutants
must be traced from their source to surface waters, in order to come
within the purview of the CWA.'')
The reasonableness of the Agency's interpretation is supported by
the fact that the majority of courts have determined that CWA
jurisdiction may extend to surface water discharges via hydrologic
connections.\1\ As the court in Potter v. ASARCO, Inc. declared, ``in
light of judicial precedent, Congress'' remedial purpose, the absence
of any specific legislative intent pertaining to hydrologically
connected ground water and the informal pronouncements of EPA, any
pollutants that enter navigable waters, whether directly or indirectly
through a specific hydrological connection, are subject to regulation
by the CWA.'' Slip op. at 26.
---------------------------------------------------------------------------
\1\ See e.g., Williams PipeLine Co. v. Bayer Corp., 964 F.Supp.
1300, 1319-20 (S.D.Iowa 1997) (``Because the CWA's goal is to
protect the quality of surface waters, the NPDES permit system
regulates any pollutants that enter such waters either directly or
through groundwater.''); Washington Wilderness Coalition v. Hecla
Mining Co., 870 F. Supp. 983, 989-90 (E.D. Wash. 1994), dismissed on
other grounds, (lack of standing) per unpublished decision (E.D.
Wash. May 7, 1997) (finding CWA jurisdiction where pollution
discharged from manmade ponds via seeps into soil and ground water
and, thereafter, surface waters; and holding that, although CWA does
not regulate isolated ground water, CWA does regulate pollutants
entering navigable waters via tributary ground waters); Friends of
the Coast Fork v. Co. of Lane, OR, Civ. No. 95-6105-TC (D. OR.
January 31, 1997) (reaching same conclusion as court in Washington
Wilderness Coalition v. Hecla Mining Co., and finding
hydrologically-connected ground waters are covered by the CWA);
McClellan Ecological Seepage Situation, 763 F. Supp. 431, 438 (E.D.
Cal. 1989), cacated (on other grounds), 47 F.3d 325 (9th Cir. 1995),
cert. denied, 116 S.Ct. 51 (1995) (allowing plaintiff to attempt to
prove at trial that pollutants discharged to ground water are
subsequently discharged to surface water); and McClellan Ecological
Seepage Situation v. Weinberger, 707 F. Supp. 1182, 1195-96 (E.D.
Cal. 1988), vacated (on other grounds), 47 F.3d 325 (9th Cir. 1995),
cert. denied, 116 S.Ct.51 (1995) (although NPDES permit not required
for discharges to isolated ground water, Congress' intent to protect
surface water may require NPDES permits for discharges to ground
water with direct hydrological connection to surface waters);
Friends of Sante Fe Co. v. LAC Minerals, Inc., 892 F. Supp. 1333,
1357-58 (D.N.M. 1995) (although CWA does not cover discharges to
isolated, nontributary groundwater, Quivira and decisions within
Tenth Circuit demonstrating expansive construction of CWA's
jurisdictional reach foreclose arguments that CWA does not regulate
discharges to hydrologically-connected groundwater); Sierra club v.
Colorado Refining Co., 838 F. Supp. at 1434 (``navigable waters''
encompasses tributary groundwater and, therefore, allegations that
defendant violated CWA by discharging pollutants into soils and
groundwater, and that pollutants infiltrated creek via groundwater
and seeps in creek bank, stated cause of action); and Quivira Mining
Co. v. United States EPA, 765 F.2d 126, 130 (10th Cir. 1985), cert.
denied, 474 U.S. 1055 (1986) (affirming EPA's determination that CWA
permit required for discharges of pollutants into surface arroyos
that, during storms, channeled rainwater both directly to streams
and into underground aquifers that connected with such streams);
Martin v. Kansas Board of Regents, 1991 U.S.Dist. LEXIS 2779 (D.Kan.
1991) (``Groundwater . . . that is naturally connected to surface
waters constitute `navigable waters' under the Act.''); see also
Inland Steel Co. v. EPA, 901 F.2d 1419, 1422-23 (7th Cir. 1990)
(''the legal concept of navigable waters might include ground waters
connected to surface waters--though whether it does or not is an
unresolved question. * * * [A] well that ended in such connected
ground waters might be within the scope of the [CWA]'').
---------------------------------------------------------------------------
The decisions which did not find authority to regulate such
discharges under the CWA may, for the most part, be distinguished. In
Village of Oconomowoc Lake v. Dayton Hudson Corp., the Seventh Circuit
held that the CWA does not regulate ground water per se. 24 F.3d 962
(7th Cir. 1994), cert. denied, 513 U.S. 930 (1994). In Oconomowoc,
however, the plaintiff only alluded to a ``possibility'' of a
hydrologic connection. 24 F.3d at 965. In Kelley v. United States, the
district court held that enforcement authority under the CWA did not
include ground water contamination. 618 F. Supp. 1103 (W.D. Mich.
1985). The decision is not well-reasoned, as the Kelley court merely
states--without further elaboration--that the opinion in Exxon v.
Train, which specifically ``expressed no opinion'' on whether the CWA
regulated hydrologically connected ground waters, and the legislative
history ``demonstrate that Congress did not intend the Clean Water Act
to extend federal regulatory enforcement authority over groundwater
contamination.'' Kelley, 618 F. Supp. at 1107 (emphasis added). In
Umatilla, the court concluded that the NPDES program did not apply to
even hydrologically connected ground water. 962 F.Supp. at 1318. The
court reviewed the legislative history and existing precedent on the
issue, but failed to distinguish between the regulation of ground water
per se and the regulation of discharges into waters of the United
States which happen to occur via ground water. Moreover, the court
failed to give deference to the Agency's interpretation of the CWA. Id.
at 1319 (finding that the Agency interpretations cited by the
plaintiffs failed to articulate clear regulatory boundaries and were
not sufficiently ``comprehensive, definitive or formal'' to deserve
deference, but acknowledging that ``neither the statute nor the
legislative history absolutely prohibits an interpretation that the
NPDES requirement applies to discharges of
[[Page 3018]]
pollutants to hydrologically-connected groundwater''). Today's proposal
should provide the type of formal Agency interpretation that court
sought. Two other decisions have simply adopted the reasoning of the
Umatilla court. United States v. ConAgra, Inc., Case No. CV 96-0134-S-
LMB (D. Idaho 1997); Allegheny Environmental Action Coalition v.
Westinghouse, 1998 U.S. Dist. LEXIS 1838 (W.D.Pa. 1998).
The Agency has utilized its expertise in environmental science and
policy to determine the proper scope of the CWA. The determination of
whether the CWA regulates discharges to ground waters connected to
surface waters, like the determination of wetlands jurisdiction,
``ultimately involves an ecological judgment about the relationship
between surface waters and ground waters, it should be left in the
first instance to the discretion of the EPA and the Corps.'' Town of
Norfolk v. U.S. Army Corps of Engineers, 968 F.2d 1438, 1451 (1st Cir.
1992) (citing United States v. Riverside Bayview Homes, Inc., 474 U.S.
at 134). The Supreme Court, too, has acknowledged the difficulty of
determining precisely where Clean Water Act jurisdiction lies and has
held that an agency's scientific judgment can support a legal
jurisdictional judgment. United States v. Riverside Bayview Homes,
Inc., 474 U.S. 121, 134 (1985) (``In view of the breadth of federal
regulatory authority contemplated by the [Clean Water] Act itself and
the inherent difficulties of defining precise bounds to regulable
waters, the Corps' ecological judgment about the relationship between
waters and their adjacent wetlands provides an adequate basis for a
legal judgment that adjacent wetlands may be defined as waters under
the Act.'').
The Agency has made clear the rationale for its construction: ``the
Act requires NPDES permits for discharges to groundwater where there is
a direct hydrological connection between groundwater and surface
waters. In these situations, the affected ground waters are not
considered `waters of the United States' but discharges to them are
regulated because such discharges are effectively discharges to the
directly connected surface waters.'' Amendments to the Water Quality
Standards Regulations that Pertain to Standards on Indian Reservations,
Final Rule, 56 FR 64,876, 64892 (Dec. 12, 1991) (emphasis added). The
Agency has taken this position because ground water and surface water
are highly interdependent components of the hydrologic cycle. The
hydrologic cycle refers to ``the circulation of water among soil,
ground water, surface water, and the atmosphere.'' U.S. Environmental
Protection Agency, ``A Review of Methods for Assessing Nonpoint Source
Contaminated Ground-Water Discharge to Surface Water'' at 3 (April
1991). Thus, a hydrologic connection has been defined as ``the
interflow and exchange between surface impoundments and surface water
through an underground corridor or groundwater.'' NPDES General Permit
and Reporting Requirements for Discharges from Concentrated Animal
Feeding Operations, EPA Region 6 Public Notice of Final Permitting
Decision, 58 FR 7610, 7635-36 (Feb. 8, 1993). The determination of
whether a discharge to ground water in a specific case constitutes an
illegal discharge to waters of the U.S. if unpermitted is a fact
specific one. The general jurisdictional determination by EPA that such
discharges can be subject to regulation under the CWA is a
determination that involves an ecological judgment about the
relationship between surface waters and ground waters.
Finally, the Supreme Court has explicitly acknowledged that
resolution of ambiguities in agency-administered statutes involves
policymaking: ``As Chevron itself illustrates the resolution of
ambiguity in a statutory text is often more a question of policy than
of law. * * * When Congress, through express delegation or the
introduction of an interpretive gap in the statutory structure, has
delegated policymaking to an administrative agency, the extent of
judicial review of the agency's policy determinations is limited.''
Pauly v. Bethenergy Mines, Inc., 116 S.Ct. 2524, 2534 (1991). Congress
established a goal for the CWA ``to restore and maintain the chemical,
physical and biological integrity of the nation's waters and to
eliminate the discharge of pollutants into the navigable waters.'' 33
U.S.C. Sec. 1251(a)(1). Congress also established some parameters for
reaching that goal, but left gaps in the statutory structure. One of
those gaps is the issue of discharges of pollutants from point sources
which harm navigable waters but which happen to occur via ground water.
The Agency has chosen to fill that gap by construing the statute to
regulate such discharges as point source discharges. Given the Agency's
knowledge of the hydrologic cycle and aquatic ecosystems, the Agency
has determined that when it is reasonably likely that such discharges
will reach surface waters, the goals of the CWA can only be fulfilled
if those discharges are regulated.
Determining Direct Hydrologic Connection. In recent rulemakings,
EPA has used various lithologic settings to describe areas of
vulnerability to contamination of ground water. This information can
serve as a guide for permit writers to make the initial determination
whether or not it is necessary to establish special conditions in a
CAFO permit to prevent the discharge of CAFO waste to surface water via
ground water with a direct hydrologic connection to surface water.
During the rulemaking processes for the development of the Ground
Water Rule and the Underground Injection Control Class V under the Safe
Drinking Water Act, significant stakeholder and Federal Advisory
Committee Act (FACA), input was used to define lithologic settings that
are likely to indicate ground water areas sensitive to contamination.
Areas likely to have such a connection are those that have ground water
sensitive to contamination and that have a likely connection to surface
water. The Ground Water Proposed Rule includes language that describes
certain types of lithologic settings (karst, fractured bedrock, and
gravel) as sensitive to contamination and, therefore, subject to
requirements under the rule to mitigate threats to human health from
microbial pathogens. [See National Primary Drinking Water Regulations:
Ground Water Rule, 65 FR 30193 (2000) (to be codified at 40 CFR Parts
141 and 142) (proposed May 10, 2000). See also Underground Injection
Control Regulations for Class V Injection Wells, Revision; Final Rule,
64 FR 68546 (Dec. 7, 1999) (to be codified at 40 CFR Parts 9, 144, 145,
and 146). See also Executive Summary, NDWAC UIC/Source Water Program
Integration Working Group Meeting (March 25-26, 1999). All are
available in the rulemaking Record.]
Under the Class V rule, a facility must comply with the mandates of
the regulation if the facility has a motor vehicle waste disposal well
(a type of Class V well) that is in an area that has been determined to
be sensitive. (See Technical Assistance Document (TAD) for Delineating
``Other Sensitive Ground Water Areas'', EPA #816-R-00-016--to be
published.) States that are responsible for implementing the Class V
Rule, or in the case of Direct Implementation Programs, the EPA
Regional Office, are given flexibility to make determinations of ground
water sensitivity within certain guidelines.
40 CFR 145.23(f)(12) provides items that States are expected to
consider in developing their other sensitive ground water area plan,
including:
Geologic and hydrogeologic settings,
Ground water flow and occurrence,
[[Page 3019]]
Topographic and geographic features,
Depth to ground water,
*Significance as a drinking water source,
*Prevailing land use practices, and
*Any other existing information relating to the
susceptibility of ground water to contamination from Class V injection
wells.
*The last three factors are not relevant to this rulemaking but
are specific to mandates under the Safe Drinking Water Act to
protect current and future sources of drinking water.
Geologic and hydrogeologic settings considered sensitive under the
Class V Rule include areas such as karst, fractured bedrock or other
shallow/unconsolidated aquifers. The Class V Rule lists karst,
fractured volcanics and unconsolidated sedimentary aquifers, such as
glacial outwash deposits and eolian sands, as examples of aquifer
types. Under the Class V Rule, EPA urges States to consider all aquifer
types that, based on their inherent characteristics, are likely to be
moderately to highly sensitive. Such aquifer types are those that
potentially have high permeability, such as: all fractured aquifers;
all porous media aquifers with a grain size of sand or larger,
including not only unconsolidated aquifers, but sandstone as well; and
karst aquifers.
For more information at the regional level, information can be
found in the document ``Regional Assessment of Aquifer Vulnerability
and Sensitivity in the Coterminous United States'' [EPA/600/2-91/043]
for state maps showing aquifers and portions of aquifers whose
transmissivity makes them sensitive/vulnerable. This document may be
helpful in identifying areas where existing contaminants are most
likely to spread laterally. State and federal geological surveys have
numerous geological maps and technical reports that can be helpful in
the identification of areas of sensitive aquifers. University geology
and earth science departments and consulting company reports may also
have helpful information.
Data sources to assist permit writers in making sensitivity
determinations can be acquired through many sources as listed above and
include federal, state, and local data. For example, USGS maps and
databases such as the principal aquifers map, state maps, other
programs where such assessments may have been completed, such as State
Source Water Assessment Programs (SWAP), state Class V, or Ground Water
Rule sensitivity determinations.
Another potential approach to defining areas of ground water
sensitivity would be to define a set of characteristics which a
facility could determine whether it met by using a set of national,
regional and/or local maps. For instance, overburden, that is, soil
depth and type, along with depth to water table, hydrogeologic
characteristics of the surficial aquifer, and proximity to surface
water could be factors used to define sensitive areas for likely ground
water/surface water connections. For example, while there is no
consistent definition or agreement as to what could be considered
``shallow,'' a depth to the water table less than, say, six feet with
sandy soils or other permeable soil type might indicate ground water
vulnerability. Data of this nature could be obtained from USDA's
Natural Resource Conservation Service (NRCS) national soils maps,
available from the NRCS web site (www.nhq.nrcs.usda.gov/land/index/
soils.html) or from the EPA web site (www.epa.gov/ostwater/BASINS/
metadata/statsgo.htm).
Once it is determined that the CAFO is in a ground water sensitive
area, proximity to a surface water would indicate a potential for the
CAFO to discharge to surface water via a direct hydrological connection
with ground water. Proximity to surface water would be considered when
there is a short distance from the boundary of the CAFO to the closest
downstream surface water body. Again, information of this type could be
obtained from USGS topographic maps or state maps.
USGS Hydrologic Landscape Regions. Another approach for determining
whether CAFOs in a region are generally located in areas where surface
water is likely to have hydrological connections with ground water is
by using a set of maps under development by the U.S. Geological Survey
(USGS). USGS is developing a national map of Hydrologic Landscape
Regions that describe watersheds based on their physical
characteristics, such as topography and lithology. These maps will,
among other things, help to identify physical features in the landscape
that are important to water quality such as areas across the country
where the geohydrology is favorable for ground water interactions with
surface water.
The regions in this map will be delineated based on hydrologic unit
codes (HUCs) nationwide and do not provide information at local scales;
however, the maps can provide supplemental information that describes
physical features within watersheds where interactions between ground
water and surface water are found. These areas are the most likely
places where ground water underlying CAFO's could be discharged to
nearby surface water bodies. While EPA has not fully assessed how this
tool might be used to determine a CAFO's potential to discharge an
excerpt of the pre-print report is provided here for purposes of
discussion. The report describing this tool is anticipated to be
published in Spring 2001 (Wolock, Winter, and McMahon, in review).
The concept of hydrologic landscapes is based on the idea that a
single, simple physical feature is the basic building block of all
landscapes. This feature is termed a fundamental landscape unit and is
defined as an upland adjacent to a lowland separated by an intervening
steeper slope. Some examples of hydrologic landscapes are as follows:
A landscape consisting of narrow lowlands and uplands
separated by high and steep valley sides, characteristic of mountainous
terrain;
A landscape consisting of very wide lowlands separated
from much narrower uplands by steep valley sides, characteristic of
basin and range physiography and basins of interior drainage; or
A landscape consisting of narrow lowlands separated from
very broad uplands by valley sides of various slopes and heights,
characteristic of plateaus and high plains.
The hydrologic system of a fundamental landscape unit consists of
the movement of surface water, ground water, and atmospheric-water
exchange. Surface water movement is controlled by land-surface slope
and surficial permeability; ground-water flow is a function of
gravitational gradients and the hydraulic characteristics of the
geologic framework; and atmospheric-water exchange primarily is
determined by climate (Winter, in review). The same physical and
climate characteristics control the movement of water over the surface
and through the subsurface regardless of the geographic location of the
landscapes. For example, if a landscape has gentle slopes and low-
permeability soils, then surface runoff will be slow and recharge to
ground water will be limited. In contrast, if the soils are permeable
in a region of gentle slopes, then surface runoff may be limited but
ground-water recharge will be high.
The critical features used to describe hydrologic landscapes are
land-surface form, geologic texture, and climate. Land-surface form can
be used to quantify land-surface slopes and relief. Geologic texture
provides estimates of surficial and deep subsurface permeability which
control infiltration, the production of overland flow, and
[[Page 3020]]
ground-water flow rates. Climate characteristics can be used to
approximate available water to surface and ground-water systems. The
variables used to identify hydrologic settings were averaged within
each of the 2,244 hydrologic cataloging units defined by the USGS. This
degree of spatial averaging was coarse enough to smooth the underlying
data but fine enough to separate regions from each other.
For example, two Hydrological Landscape Regions (HLR) that are
likely to have characteristics of ground water and surface water
interactions with direct relevance to this proposed rulemaking would be
``HLR1'' and ``HLR9''. HLR1 areas are characterized by variably wet
plains having highly permeable surface and highly permeable subsurface.
This landscape is 92 percent flat land, with 56 percent of the flat
land in the lowlands and 37 percent in the uplands. Land surface and
bedrock are highly permeable. Because of the flat sandy land surface,
this geologic framework should result in little surface runoff, and
recharge to both local and regional ground-water flow systems should be
high. Therefore, ground water is likely to be the dominant component of
the hydrologic system in this landscape. The water table is likely to
be shallow in the lowlands, resulting in extensive wetlands in this
part of the landscape.
Major water issues in this hydrologic setting probably would be
related to contamination of ground water. In the uplands, the
contamination could affect regional ground-water flow systems. In the
lowlands, the thin unsaturated zone and the close interaction of ground
water and surface water could result in contamination of surface water.
Flooding probably would not be a problem in the uplands, but it could
be a serious problem in the lowlands because of the flat landscape and
shallow water table.
HLR9 areas are characterized by wet plateaus having poorly
permeable surface and highly permeable subsurface. This landscape is 42
percent flat land, with 24 percent in lowlands and 17 percent in
uplands. Land surface is poorly permeable and bedrock is highly
permeable. Because of the flat poorly permeable land surface, this
geologic framework should result in considerable surface runoff and
limited recharge to ground water. However, the bedrock is largely
karstic carbonate rock, which probably would result in a considerable
amount of surface runoff entering the deep aquifer through sinkholes.
This water could readily move through regional ground-water flow
systems. Surface runoff and recharge through sinkholes are likely to be
the dominant component of the hydrologic system in this landscape. The
water table is likely to be shallow in the lowlands, resulting in
extensive wetlands in this part of the landscape. Major water issues in
this hydrologic setting probably would be related to contamination of
surface water from direct surface runoff, and extensive contamination
of ground water (and ultimately surface water) because of the ease of
movement through the bedrock. The capacity of these carbonate rocks to
mediate contaminants is limited. Flooding could be a problem in the
lowlands.
EPA is requesting comment on how a permit writer might identify
CAFOs at risk of discharging to surface water via ground water. EPA is
also requesting comment on its cost estimates for the permittee to have
a hydrologist make such a determination. EPA estimates that for a
typical CAFO, the full cost of determining whether ground water beneath
the facility has a direct hydrologic connection to surface water would
be approximately $3,000. See Section X for more information on cost
estimates.
Permit requirements for facilities with groundwater that has a
direct hydrologic connection with surface water are discussed in
Section VII.E.5.d below.
k. What Regulatory Relief is Provided by Today's Proposed
Rulemaking? Two-tier vs. Three-tier Structure. Each of EPA's proposals
effect small livestock and poultry businesses in different ways, posing
important trade-offs when selecting ways to mitigate economic impacts.
First, by proposing to establish a two-tier structure with a 500 AU
threshold, EPA is proposing not to automatically impose the effluent
guidelines requirements on operations with 300 to 500 AU. By
eliminating this size category, EPA estimates that about 10,000 smaller
AFOs are relieved from being defined as CAFOs, and instead would only
be subject to permitting if designated by the permit authority due to
being a significant contributor of pollutants.
A three-tier structure, by contrast, only automatically defines all
operations over 1,000 AU as CAFOs, instead of 500 AU. However, while
all of the 26,000 AFOs between 300 and 1,000 AU wouldn't be required to
apply for an NPDES permit, all those operations would be required to
either apply for a permit or to certify to the permit authority that
they do not meet any of the conditions for being a CAFO. EPA estimates
that approximately 19,000 of these operations would have to change some
aspect of their operation in order to avoid being permitted, and all
26,000 would be required to develop and implement a PNP. Thus, while in
theory fewer operations could be permitted, in fact more small
enterprises would incur costs under a three-tier scenario. Section
X.J.4 provides a summary of the difference in costs associated with
these two options; more detailed information is provided in Section 9
of the Economic Analysis.
The three-tier structure allows States more flexibility to develop
more effective non-NPDES programs to assist middle tier operations. The
two-tier structure with a 500 AU threshold might limit access to
federal funds, such as Section 319 nonpoint source program funds, for
operations in the 500 to 1,000 AU range. The detailed conditions in the
three-tier structure, however, do not meet the goal of today's proposal
to simplify the NPDES regulation for CAFOs because it leaves in place
the need for the regulated community and enforcement authorities to
interpret a complicated set of conditions.
Chicken Threshold. During deliberations to select a threshold for
dry chicken operations, EPA considered various options for relieving
small business impacts. Under the two-tier structure, EPA examined a
100,000 bird threshold as well as a 50,000 bird threshold. Although the
50,000 bird threshold effects many more small chicken operations,
analysis showed that setting the threshold at 100,000 birds would not
be sufficiently environmentally protective in parts of the country that
have experienced water quality degradation from the chicken industry.
Section VII.C.2.f describes the relative benefits of each of these
options. Nonetheless, because wet layer operations are currently
regulated at 30,000 birds, raising the threshold to 50,000 birds will
relieve some small businesses in this sector.
Elimination of the mixed animal calculation. EPA's is further
proposing to mitigate the effects of today's proposal on small
businesses by eliminating the mixed animal calculation for determining
which AFOs are CAFOs. Thus, operations with mixed animal types that do
not meet the size threshold for any single livestock category would not
be defined as a CAFO. EPA expects that there are few AFOs with more
than a single animal type that would be defined as CAFOs, since most
mixed operations tend to be smaller in size. The Agency determined that
the inclusion of mixed operations would disproportionately burden small
businesses while resulting in little additional environmental benefit.
Since
[[Page 3021]]
most mixed operations tend to be smaller in size, this exclusion
represents important accommodations for small business. EPA's decision
not to include smaller mixed operations is consistent with its
objective to focus on the largest operations since these pose the
greatest potential risk to water quality and public health given the
sheer volume of manure generated at these operations.
Operations that handle larger herds or flocks take on the
characteristics of being more industrial in nature, rather than having
the characteristics typically associated with farming. These facilities
typically specialize in a particular animal sector rather than having
mixed animal types, and often do not have an adequate land base for
agricultural use of manure. As a result, large facilities need to
dispose of significant volumes of manure and wastewater which have the
potential, if not properly handled, to cause significant water quality
impacts. By comparison, smaller farms manage fewer animals and tend to
concentrate less manure nutrients at a single farming location. Smaller
farms tend to be less specialized and are more diversified, engaging in
both animal and crop production. These farms often have sufficient
cropland and fertilizer needs to land apply manure nutrients generated
at a farm's livestock or poultry business for agricultural purposes.
For operations not defined as a CAFO, the Permit Authority would
designate any facility determined to be a significant contributor of
pollution to waters of the U.S. as a CAFO, and would consequently
develop a permit based on best professional judgement (BPJ).
The estimated cost savings from eliminating the mixed animal
calculation is indeterminate due to limited information about
operations of this size and also varying cost requirements. EPA's
decision is also expected to simplify compliance and be more
administratively efficient, since the mixed operation multiplier was
confusing to the regulated community and to enforcement personnel, and
did not cover all animal types (because poultry did not have an AU
equivalent).
Site-specific PNPs Rather than Mandated BMPs. In addition, while
facilities that are defined or designated as CAFOs would be subject to
specific performance standards contained with the permit conditions,
EPA's proposed revisions also provide flexibility to small businesses.
In particular, the revised effluent guidelines and NPDES standards and
conditions are not specific requirements for design, equipment, or work
practices, but rather allow the CAFO operator to write site-specific
Permit Nutrient Plans that implement the permit requirements in a
manner appropriate and manageable for that business. This will reduce
impacts to all facilities, regardless of size, by allowing operators to
choose the least costly mix of process changes and new control
equipment that would meet the limitations.
Demonstration of No Potential to Discharge. Finally, in both
proposals, operations that must apply for a permit would have the
additional opportunity to demonstrate to the permit authority that
pollutants have not been discharged and have no potential to discharge
into waters of the U.S. These operations would not be issued a permit
if they can successfully demonstrate no potential to discharge. See
section VII.D.3 for a discussion of demonstrating ``no potential to
discharge.''
Measures Not Being Proposed. During the development of the CAFO
rulemaking, EPA considered regulatory relief measures under the NPDES
permit program that are not being proposed, including: (1) A ``Good
Faith Incentive,'' and (2) an ``Early Exit'' provision. These options
are summarized below. More detail is provided in the SBREFA Panel
Report (2000).
Under the ``Good Faith Incentive,'' EPA considered incorporating an
incentive for small CAFO businesses (i.e., AFOs with a number of
animals below the regulatory threshold) to take early voluntary actions
in good faith to manage manure and wastewater in accordance with the
requirements of a nutrient management plan. In the event that such
smaller AFOs have a discharge that would otherwise cause them to be
designated as CAFOs, the CAFO regulations would provide an opportunity
for these smaller AFOs to address the cause of the one-time discharge
and avoid being designated as CAFOs.
Under the ``Early Exit'' provision, EPA considered a regulatory
provision that would explicitly allow CAFOs with fewer animals than the
regulatory threshold for large CAFOs to exit the regulatory program
after five years of good performance. The regulations could allow such
a smaller CAFO to exit the regulatory program if it demonstrates that
it had successfully addressed the conditions that caused it to either
be defined or designated as a CAFO.
EPA decided not to include either of these provisions in the
proposed regulations following the SBAR Panel consultation process.
Neither small businesses, SBA, OMB, nor EPA enforcement personnel
expressed support for either of these provisions. Also, the Early Exit
provision was not deemed to provide additional regulatory relief over
the current program, since an operation that has been defined or
designated as a CAFO can already make changes at the operation whereby,
after complying with the permit for the permit's five year term, the
operation would no longer meet the definition of a CAFO and therefore
would no longer be required to be permitted.
Both the regulatory relief measures selected and those considered
but not selected are discussed in detail in Chapter 9 of the Economic
Analysis, included in the Record for today's proposed rulemaking. EPA
requests comment on the regulatory relief measures considered but not
included in today's proposal.
3. How Does the Proposed Rule Change the Existing Designation Criteria
and Procedure?
In the existing regulation, an operation in the middle tier, those
with 300 AU to 1,000 AU, may either be defined as a CAFO or designated
by the permit authority; those in the smallest category, with fewer
than 300 AU, may only be designated a CAFO if the facility discharges:
(1) into waters of the United States through a man-made ditch, flushing
system, or other similar man-made device; or (2) directly into waters
of the United States that originate outside of the facility and pass
over, across, or through the facility or otherwise come into direct
contact with the confined animals. The permit authority must conduct an
on-site inspection to determine whether the AFO is a significant
contributor of pollutants. The two discharge criteria have proved
difficult to interpret and enforce, making it difficult to take
enforcement action against dischargers. Very few facilities have been
designated in the past 25 years despite environmental concerns.
EPA's proposals on how, and whether, to amend these criteria vary
with the alternative structure. Under a two-tier structure, EPA is
proposing to eliminate these two criteria; under a three-tier
structure, EPA is proposing to retain these two criteria.
Under the proposed two-tier structure with a 500 AU threshold, or
under any other alternative two-tier structure such as with a 750 AU
threshold, EPA is proposing to eliminate the two discharge criteria.
Raising the NPDES threshold to 500 AU, 750 AU or 1,000 AU raises a
policy question for facilities below the selected threshold but with
more than 300 AU. Facilities with 300 to 1,000 AU are currently subject
to
[[Page 3022]]
NPDES regulation (if certain criteria are met). To rely entirely on
designation for these operations could be viewed by some as
deregulatory, because the designation process is a time consuming and
resource intensive process that makes it difficult to redress
violations. It could also result in the inability of permit authorities
to take enforcement actions against initial discharges unless they are
from an independent point source at the facility. Otherwise, the
initial discharge can only result in initiation of the designation
process itself; enforcement could only take place upon a subsequent
discharge. Unless the designation process can be streamlined in some
way to enable permit authorities to more efficiently address those who
are significant contributors of pollutants, raising the threshold too
high may also not be sufficiently protective of the environment. While
EPA could have proposed to retain the two criteria for those with fewer
than 300 AU, and eliminate it only for those with greater than 300 AU
but below the regulatory threshold, EPA believes that this would
introduce unnecessary complexity into this regulation.
While eliminating the two discharge criteria, this proposal would
retain the provision in the existing regulation that any AFO may be
designated as a CAFO on a case-by-case basis if the NPDES permit
authority determines that the facility is a significant contributor of
pollutants to waters of the U.S. Today's proposal would not change the
factors that the regulation lists as relevant to whether a facility is
a significant contributor--see proposed Sec. 122.23(b)(1) (listing
factors such as: the size of the operation; the amount of wastewater
discharged; the location of any potential receiving waters; means of
conveyance of animal manure and process wastewater into waters of the
U.S.; slope, vegetation, rainfall and other factors affecting the
likelihood or frequency of discharge to receiving waters).
This proposal also retains the existing requirement that the permit
authority conduct an on-site inspection before making a designation. No
inspection would be required, however, to designate a facility that was
previously defined or designated as a CAFO, although the permit
authority may chose to do one.
Under a three-tier structure, EPA is proposing to retain the two
discharge criteria used to designate an AFO with fewer than 300 AU as a
CAFO. In this approach, facilities in the 300 AU to 1,000 AU size range
must meet certain conditions for being considered a CAFO, and EPA
considers this to be sufficiently protective of the environment.
EPA is requesting comment on these two proposals, and also requests
comment on three other alternatives. EPA could: (1) retain the two
criteria even under a two-tier structure for all operations below the
regulatory threshold; (2) retain the two criteria under a two-tier
structure for only for those with fewer than 300 AU and eliminate the
two criteria for those below the regulatory threshold but with greater
than 300 AU; or (3) eliminate the criteria in the three-tier structure
for those with fewer than 300 AU.
Significant concern was raised over the issue of designation during
the SBREFA Panel process. At the time of the Panel, EPA was not
considering eliminating these two criteria, and SERs and Panel members
strongly endorsed this position. At that time, EPA's was focusing on a
three-tier structure with revised conditions as the preferred option,
and retaining the criteria was consistent with the revisions being
considered. Since then, however, EPA's analysis has resulted in a
strong option for a two-tier approach that would be simpler to
implement and would focus on the largest operations. Once this scenario
became a strong candidate, reconsideration of the two designation
criteria was introduced. EPA realizes that this proposal has raised
some concern in the small business community. However, EPA does not
believe that eliminating these criteria will result in significantly
more small operations being designated. Rather, it will enable the
permit authority to ensure that the most egregious discharges of
significant quantities of pollutants are addressed.
It is likely that few AFOs with less than 300 AU are significant
contributors of pollutants, and permit authorities may be appropriately
focusing scarce resources on larger facilities. Further, some also
believe that it may be appropriate under a two-tier structure to retain
the two criteria as well as the on-site inspection criterion to AFOs
under the regulatory threshold, e.g. with fewer than 500 AU or 750 AU.
SERs during the SBREFA process indicated that family farmers operating
AFOs with fewer than 1,000 AU tend to have a direct interest in
environmental stewardship, since their livelihood (e.g., soil quality
and drinking water) often depends on it. They also argued that EPA
should not divert resources away from AFOs with the greatest potential
to discharge--those with 1,000 AU or more. EPA is soliciting comment on
whether to retain the designation criteria for all AFOs below the
regulatory threshold in a two-tier structure, and whether this option
will be protective of the environment.
While permit authorities have indicated that the requirement for an
on-site inspection makes the designation process resource intensive,
recommendations resulting from the SBREFA small business consultation
process encouraged EPA not to remove the on-site inspection
requirement. Some were concerned that EPA might do widespread blanket
designations of large numbers of operations, especially in watersheds
that have been listed under the CWA 303(d), Total Maximum Daily Load
(TMDL) process. Thus, EPA is soliciting comment on whether to eliminate
the requirement that the inspection be ``on-site,'' perhaps by
allowing, in lieu of on-site inspections, other forms of site-specific
information gathering, such as use of monitoring data, fly-overs,
satellite imagery, etc. Other parts of the NPDES program allow such
information gathering and do not require inspections to be ``on-site.''
If the on-site requirement were eliminated, the permit authority
would still need to make a determination that the facility is a
significant contributor of pollution, which might necessitate an on-
site inspection in many cases. On the other hand, in watersheds that
are not meeting water quality standards for nutrients, the permit
authority could designate all AFOs as CAFOs without conducting
individual on-site inspections. Even in 303(d) listed watersheds,
however, an operator of an individual facility might be able to
demonstrate in the NPDES permit application that it has no potential to
discharge, and request that it be exempted from NPDES requirements.
Due to the significant concerns of the small business community,
EPA is not proposing at this time to eliminate the on-site inspection
requirements, but, rather, EPA is soliciting comment on whether or not
to eliminate this provision or to revise it to allow other forms of
site-specific data gathering.
Finally, EPA is proposing a technical correction to the designation
regulatory language. The existing CAFO NPDES regulations provide for
designation of an AFO as a CAFO upon determining that it is a
significant contributor of ``pollution'' to the waters of the U.S. 40
CFR 122.23(c). EPA is today proposing to change the term to
``pollutants.'' Elsewhere in the NPDES regulations, EPA uses the phrase
``significant contributor of pollutants'' for designation purposes. 40
CFR 122.26(a)(1)(v). EPA is not aware of any reason the Agency would
have used different terms for similar designation
[[Page 3023]]
standards, and is seeking consistency in this proposal. The Agency
believes the term ``pollutant'' is the correct term. The Clean Water
Act provides definitions for both ``pollutant and ``pollution'' in
Section 502, but the NPDES program of Section 402 focuses specifically
on permits ``for the discharge of any pollutant, or combination of
pollutants.'' Therefore, EPA believes it is appropriate to establish a
designation standard for purposes of permitting CAFOs based on whether
a facility is a significant contributor of ``pollutants.''
4. Designation of CAFOs by EPA in Approved States
Today's proposal would explicitly allow the EPA Regional
Administrator to designate an AFO as a CAFO if it meets the designation
criteria in the regulations, even in States with approved NPDES
programs. See proposed Sec. 122.23(b). As described in the preceding
section, VII.C.4, AFOs that have not been defined as CAFOs may be
designated as CAFOs on a case-by-case basis upon determination that
such sources are significant contributors of pollution to waters of the
United States. EPA's authority to designate AFOs as CAFOs would be
subject to the same criteria and limitations to which State designation
authority is subject.
The existing regulatory language is not explicit as to whether EPA
has the authority to designate AFOs as CAFOs in States with approved
NPDES programs. The current regulations state that ``the Director'' may
designate AFOs as CAFOs. 40 CFR 122.23(c)(1). The existing definition
of ``Director'' states: ``When there is an approved State program,
`Director' normally means the State Director. In some circumstances,
however, EPA retains the authority to take certain actions even where
there is an approved State program.'' 40 CFR 122.2. Today's proposal
would give EPA the explicit authority to designate an AFO as a CAFO in
States with approved programs.
EPA does not propose to assume authority or jurisdiction to issue
permits to the CAFOs that the Agency designates in approved NPDES
States. That authority would remain with the approved State.
EPA believes that CWA Section 501(a) provides the Agency with the
authority to designate point sources subject to regulation under the
NPDES program, even in States approved to administer the NPDES permit
program. This interpretive authority to define point sources and
nonpoint sources was recognized by the D.C. Circuit in NRDC v. Costle,
568 F.2d 1369, 1377 (D.C. Cir. 1977). The interpretive authority arises
from CWA Section 501(a) when EPA interprets the term ``point source''
at CWA Section 502(14). EPA's proposal would ensure that EPA has the
same authority to designate AFOs as CAFOs that need a permit as the
Agency has to designate other storm water point sources as needing a
permit. See 40 CFR 122.26(a)(2)(v).
EPA recognizes that many State agencies have limited resources to
implement their NPDES programs. States may be hesitant to designate
CAFOs because of concerns that regulating the CAFOs will require
additional resources that could be used for competing priorities. In
light of the increased reliance and success in control of point sources
under general permits, however, the Agency believes that there will be
only an incremental increase in regulatory burden due to the designated
sources.
On August 23, 1999, the Agency proposed to provide explicit
authority for EPA to designate CAFOs in approved States, but would have
limited such authority to the designation of AFOs where pollutants are
discharged into waters for which EPA establishes a total maximum daily
load or ``TMDL'' and designation is necessary to ensure that the TMDL
is achieved. 64 FR 46058, 46088 (August 23, 1999). EPA received
comments both supporting and opposing the proposal. In promulgating the
final TMDL rule, however, the Agency did not take final action on the
proposed changes applicable to CAFOs, 65 FR 43586, 43648 (July 13,
2000), deciding instead to take action in this proposed rulemaking.
Today's proposal is intended to help ensure nationally consistent
application of the provisions for designating CAFOs and is not focusing
specifically at AFOs in impaired watersheds. Implementation of the
current rule in States with NPDES authorized programs has varied
greatly from State to State, with several States choosing to implement
non-NPDES State programs rather than a federally enforceable NPDES
program. Public concerns have also been raised about lack of access to
State non-NPDES CAFO programs. While several of today's proposed
revisions would help to correct these disparities, EPA is concerned
that there may be instances of significant discharges from AFOs that
may not be addressed by State programs, and that are not being required
to comply with the same standards and requirements expected of all
AFOs. As part of their approved programs, States should designate AFOs
that are significant sources of pollutants. EPA would have the
authority to designate AFOs as CAFOs, should that be necessary.
The Agency invites comment on this proposal.
5. Co-permitting Entities That Exert Substantial Operational Control
Over a CAFO
EPA is proposing that permit authorities co-permit entities that
exercise substantial operational control over CAFOs along with the
owner/operator of the facility. See proposed Sec. 122.23(a)(5) and
(i)(4). While the permit authority currently may deem such entities to
be ``operators'' under the Clean Water Act and require them to be
permitted under existing legal requirements, today's proposal includes
changes to the regulations to identify the circumstances under which
co-permitting is required and how permit authorities are expected to
implement the requirements. Because the existing definition of
``operator'' in 122.2 generally already encompasses operators who
exercise substantial operational control, the Agency is seeking comment
on whether this additional definition [or provision] is necessary.
For other categories of discharges, EPA's regulations states that
contributors to a discharge ``may'' be co-permittees. See 40 CFR
Sec. 122.44(m). Sec. 122.44(m) addresses the situation in which the co-
permittees operate distinct sources and a privately owned treatment
works is the owner of the ultimate point source discharge. In that
context, EPA deemed it appropriate to give the permit writer the
discretion to permit only the privately owned treatment works or the
distinct sources, or both, depending on the level of control each
exercises over the pollutants. In the context of CAFOs, however, the
co-permittees both control some aspects of operations at the point
source. Therefore, EPA is proposing that they must either be co-
permittees or each must hold a separate permit.
Processor/Producer Relationship. As discussed below, proposed
Sec. 122.23(a)(5) is intended, at a minimum, to require permit
authorities to hold certain entities that exercise substantial
operational control over other entities jointly responsible for the
proper disposition of manure generated at the CAFO. While under today's
proposal a permit authority could require an entity that has
substantial operational control over a CAFO to be jointly responsible
for all of the CAFO's NPDES permit requirements, the proposal would
allow the permit authority to allocate individual responsibility for
various activities to any of the co-permittees. The proposed
[[Page 3024]]
rule would specify, however, that the proper disposition of manure must
remain the joint responsibility of all the entities covered by the
permit.
As discussed in more detail in section IV.C. of this preamble,
among the major trends in livestock and poultry production are closer
linkages between animal feeding operations and processing firms.
Increasingly, businesses such as slaughtering facilities and meat
packing plants and some integrated food manufacturing facilities are
contracting out the raising or finishing production phase to a CAFO.
Oftentimes, production contracts are used in which a contractor (such
as a processing firm, feed mill, or other animal feeding operation)
retains ownership of the animals and/or exercises substantial
operational control over the type of production practices used at the
CAFO. More information on the trends in animal agriculture and the
evolving contractual relationships between producer and processors is
presented in section IV.C of this preamble.
Use of production contracts varies by sector. Production
contracting dominates U.S. broiler and turkey production, accounting
for 98 percent of annual broiler production and 70 percent of turkey
production. About 40 percent of all eggs produced annually are under a
production contract arrangement. Production contracting in the hog
sector still accounts for a relatively small share of production (about
30 percent of hog production in 1997), but use is rising, especially in
some regions. Production contracts are uncommon at beef and dairy
operations, although they are used by some operations to raise
replacement herd or to finish animals prior to slaughter. Additional
detail on the use of production contracts in these sectors is provided
in section VI.
Although farmers and ranchers have long used contracts to market
agricultural commodities, increased use of production contracts is
changing the organizational structure of agriculture and is raising
policy concerns regarding who is responsible for ensuring that manure
and wastewater is contained on-site and who should pay for
environmental improvements at a production facility. As a practical
matter, however, regulatory authorities have limited ability to
influence who pays for environmental compliance, since the division of
costs and operational responsibilities is determined by private
contracts, not regulation.
In addition, there is also evidence that the role of the producer-
processor relationship may influence where animal production facilities
become concentrated, since animal feeding operations tend to locate in
close proximity to feed and meat packing plants. This trend may be
increasing the potential that excess manure nutrients beyond the need
for crop fertilizer are becoming concentrated in particular geographic
areas, thus raising the potential for increased environmental pressure
in those areas. To further examine this possibility, EPA conducted an
analysis of the correlation between areas of the country where there is
a concentration of excess manure generated by animal production
operations and a concentration of meat packing and poultry slaughtering
facilities. This analysis concludes that in some areas of the country
there is a strong correlation between areas of excess manure
concentrations and areas where there is a large number of processing
plants. More information on this analysis is provided in section IV.C.4
of this preamble.
Substantial Operational Control as Basis for Co-Permitting. Today's
proposal would clarify that all entities that exercise substantial
operational control over a CAFO are subject to NPDES permitting
requirements as an ``operator'' of the facility. EPA's regulations
define an owner or operator as ``the owner or operator of any `facility
or activity' subject to regulation under the NPDES program.'' 40 CFR
Sec. 122.2. This definition does not provide further detail to
interpret the term, and the Agency looks for guidance in the
definitions of the term in other sections of the statute: ``The term
`owner or operator' means any person who owns, leases, operates,
controls, or supervises a source.'' CWA Sec. 306(a)(4) (emphasis
added).
Case law defining the term ``operator'' is sparse, but courts
generally have concluded that through the inclusion of the terms owner
and operator: ``Liability under the CWA is predicated on either (1)
performance of the work, or (2) responsibility for or control over the
work.'' U.S. v. Sargent County Water Resources Dist., 876 F.Supp 1081,
1088 (N.D. 1992). See also, U.S. v. Lambert, 915 F.Supp. 797, 802
(S.D.WVa. 1996) (``The Clean Water Act imposes liability both on the
party who actually performed the work and on the party with
responsibility for or control over performance of the work.''); U.S. v.
Board of Trustees of Fla. Keys Community College, 531 F.Supp. 267, 274
(S.D.Fla. 1981). Thus, under the existing regulation and existing case
law, integrators which are responsible for or control the performance
of the work at individual CAFOs may be subject to the CWA as an
operator of the CAFO. With today's proposal, EPA is identifying some
factors which the Agency believes indicate that the integrator has
sufficient operational control over the CAFO to be considered an
``operator'' for purposes of the CWA.
Whether an entity exercises substantial operational control over
the facility would depend on the circumstances in each case. The
proposed regulation lists factors relevant to ``substantial operational
control,'' which would include (but not be limited to) whether the
entity: (1) Directs the activity of persons working at the CAFO either
through a contract or direct supervision of, or on-site participation
in, activities at the facility; (2) owns the animals; or (3) specifies
how the animals are grown, fed, or medicated. EPA is aware that many
integrator contracts may not provide for direct integrator
responsibility for manure management and disposal. EPA believes,
however, that the proposed factors will identify integrators who
exercise such pervasive control over a facility that they are, for CWA
purposes, co-operators of the CAFO.
This is a representative list of factors that should be considered
in determining whether a co-permit is appropriate, but States should
develop additional factors as needed to address their specific needs
and circumstances. The greater the degree to which one or more of these
or other factors is present, the more likely that the entity is
exercising substantial operational control and, thus, the more
important it becomes to co-permit the entity. For example, the fact
that a processor required its contract grower to purchase and feed its
animals feed from a specific source could be relevant for evaluating
operational control. EPA will be available to assist NPDES permit
authorities in making case-specific determinations of whether an entity
is exerting control such that it should be co-permitted. EPA is also
taking comment on whether there are additional factors which should be
included in the regulation. EPA also requests comment on whether degree
of participation in decisions affecting manure management and disposal
is one of the factors which should be considered.
EPA is soliciting comment on whether, alternatively, the fact that
an entity owns the animals that are being raised in a CAFO should be
sufficient to require the entity to be a joint permittee as a owner.
EPA believes that ownership of the animals establishes an ownership
interest in the pollutant generating
[[Page 3025]]
activity at the CAFO that is sufficient to hold the owner of the
animals responsible for the discharge of pollutants from the CAFO.
In non-CAFO parts of the NPDES regulations, the operator rather
than the owner is generally the NPDES permit holder. One reason an
owner is not required to get a permit is illustrated by an owner who
has leased a factory. When an owner leases a factory to the lessee-
operator, the owner gives up its control over the pollution-producing
activities. The owner of animals at a feedlot, on the other hand,
maintains all current interests in the animal and is merely paying the
contract grower to raise the animals for the owner. It is the owner's
animals that generate most of the manure and wastewater that is created
at a CAFO. Therefore, EPA believes that ownership of the animals may be
sufficient to create responsibility for ensuring that their wastes are
properly disposed of. This may be particularly true where manure must
be sent off-site from the CAFO in order to be properly disposed of.
EPA has previously identified situations where the owner should be
the NPDES permittee rather than, or in addition to, the contract
operator. In the context of municipal wastewater treatment plants, EPA
has recognized that the municipal owner rather than the contract
operator may be the proper NPDES permittee where the owner maintains
some control over the plant.
If EPA selects this option, it might also clarify that ownership
could be determined by factors other than outright title to the
animals. This would prevent integrators from modifying their contracts
so that they do not own the animals outright. EPA could develop factors
for determining ownership such as the existence of an agreement to
purchase the animals at a fixed price together with the integrator
accepting the risk of loss of the animals prior to sale. EPA solicits
comments on whether such criteria are necessary and, if so, what
appropriate criteria would be.
Implementation of Co-Permitting. All permittees would be held
jointly responsible for ensuring that manure production in excess of
what can be properly managed on-site is handled in an environmentally
appropriate manner. The effluent guidelines proposes to require a
number of land application practices that will limit the amount of CAFO
manure that can be applied to a CAFO's land application areas. If the
CAFO has generated manure in excess of the amount which can be applied
consistent with its NPDES permit, the proposed NPDES regulations impose
a number of requirements on co-permittees, described in VII.D.4. See
proposed Sec. 122.23(j)(4). The co-permittees could also transfer their
excess manure to a facility to package it is as commercial fertilizer,
to an incinerator or other centralized treatment, to be transformed
into a value-added product, or to any other operation that would not
land apply the manure. EPA is proposing that manure that must leave the
CAFO in order to be properly managed not be considered within the
unique control of any of the entities with substantial operational
control over the CAFO. In fact, an integrator that owns the animals at
a number of CAFOs in an area which are producing manure in such volumes
that it cannot be properly land applied may be in a unique position to
be able to develop innovative means of compliance with the permit
limits. Today's proposal would specify that the disposition of excess
manure would remain the joint responsibility of all permit holders. See
proposed Sec. 122.23(i)(9). Integrators would thereby be encouraged to
ensure compliance with NPDES permits in a number of ways, including:
(a) establishing a corporate environmental program that ensures that
contracts have sound environmental requirements for the CAFOs; (b)
ensuring that contractors have the necessary infrastructure in place to
properly manage manure; and (c) developing and implementing a program
that ensures proper management and/or disposal of excess manure. The
proposed requirement will give integrators a strong incentive to ensure
that their contract producers comply with permit requirements and
subject them to potential liability if they do not. Integrators could
also establish facilities to which CAFOs in the area could transfer
their excess manure. EPA is further proposing to require co-permitted
entities to assume responsibility for manure generated at their
contract operations when the manure is transferred off-site.
EPA believes that integrators will want to make good faith efforts
to take appropriate steps to address the adverse environmental impacts
associated with their business. EPA is soliciting comments on how to
structure the co-permitting provisions of this rulemaking to achieve
the intended environmental outcome without causing negative impacts on
growers.
EPA also believes the proposal contains sufficient flexibility for
permit authorities to develop creative, and streamlined, approaches to
co-permitting. For example, a State might want to develop an NPDES
general permit in collaboration with a single integrator or,
alternatively, with all integrators in a geographic region (e.g.,
statewide, watershed, etc.). Such a general permit might require
integrators to assume responsibility for ensuring that their
contractors engage in proper management practices for excess manure. As
a condition of the NPDES general permit, the integrator coul