[Federal Register: January 12, 2001 (Volume 66, Number 9)]
[Proposed Rules]
[Page 3059-3108]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja01-39]
[[pp. 3059-3108]] National Pollutant Discharge Elimination System Permit Regulation
and Effluent Limitations Guidelines and Standards for Concentrated
Animal Feeding Operations
[[Continued from page 3058]]
[[Page 3059]]
reduce BOD loads. There are therefore no candidate technologies for
more stringent BCT limits. If EPA had identified technologies that
achieve greater TSS reductions than the proposed BPT, EPA would have
performed the two part BCT cost test. (See 51 FR 24974 for a
description of the methodology EPA employs when setting BCT standards.)
EPA solicits comment on the assumptions it used in considering BCT.
EPA is proposing to establish BCT limits for conventional
pollutants equivalent to the proposed BPT limits.
5. Best Available Technology Economically Achievable (BAT)
EPA is considering six technology options to control discharges
from CAFOs in the beef, veal and poultry subcategories, and seven
technology options for the dairy and hog subcategories. All of the
technology options include restrictions on land application of manure,
best management practices (BMPs), inspections and record keeping for
the animal confinement areas, and wastewater storage or treatment
structures. The following table summarizes the requirements for each of
the seven technology options. Note that a given technology option may
include a combination of technologies.
Table 8-1.--Requirements Considered in the Technology Options
----------------------------------------------------------------------------------------------------------------
Option 1 Option 2 Option 3 Option 4 Option 5 Option 6 Option 7
----------------------------------------------------------------------------------------------------------------
Zero Discharge w/overflow X X X X Cat.......... ..........
when a 25-24 Design Dairy
Standard is met............
Depth markers for lagoons... X X X X Cattle & X X
Dairy
Annual Manure Testing....... X X X X X X X
N-based PNP................. X .......... .......... .......... .......... .......... ..........
100' LA setback............. X X X X X X X
P-based PNP (where .......... X X X X X X
necessary).................
Soil Test--every 3yrs....... .......... X X X X X X
Zero discharge without any .......... .......... .......... .......... Swine & .......... ..........
allowance for overflow..... Poultry
Hydrologic Link Assessment & .......... .......... X X .......... .......... ..........
Zero Discharge to
Groundwater beneath
Production Area............
Ambient Surface Water .......... .......... .......... X .......... .......... ..........
Sampling (N,P,TSS).........
Anaerobic Digestion w/power .......... .......... .......... .......... Swine Swine & ..........
generation................. Dairy
Frozen/snow covered/ .......... .......... .......... .......... .......... .......... X
saturated application
prohibitions...............
----------------------------------------------------------------------------------------------------------------
X = All Subcategories.
Option 1. This option is equivalent to Option 1 described under BPT
Section VIII.3. Option 1 would require zero discharge from the
production area and that liquid storage be designed, constructed and
maintained to handle all process wastewater and storm water runoff from
the 25-year, 24-hour storm event. In addition, Option 1 requires
management practices to ensure that the production area (which includes
manure and wastewater storage) is being adequately maintained.
Option 1 also would establish a requirement to develop a PNP which
establishes the proper land application rate for manure and wastewater
to meet the nitrogen requirements for the crops being grown by the CAFO
and require a 100 foot setback from surface water, sinkholes, tile
drain inlets and agricultural drainage wells.
Option 2. This option is equivalent to Option 2 described under BPT
(section VII.3). Option 2 includes all of the requirements established
under Option 1. However, Option 2 would further restrict the amount of
manure that can be applied to crop land owned or controlled by the
CAFO. The CAFO would be required to apply manure and wastewater at the
appropriate rate taking into account the nutrient requirements of the
crop and soil conditions. Specifically, Option 2 would require that
manure be applied at crop removal rate for phosphorus if soil
conditions warrant and, if soils have a very high level phosphorus
build-up, no manure or wastewater could be applied to the crop land
owned or controlled by the CAFO.
Option 3. Option 3 includes all the requirements for Option 2 and
would require that all operations perform an assessment to determine
whether the ground water beneath the feedlot and manure storage area
has a direct hydrological connection to surface water. As described in
Section VII, EPA has authority to control discharges to surface water
through ground water that has a direct hydrological connection to
surface water. A hydrological connection refers to the interflow and
exchange between surface impoundments and surface water through an
underground corridor or ground water. EPA is relying on the permitting
authority to establish the region-specific determination of what
constitutes a direct hydrological link. Option 3 would require all
CAFOs to determine whether they have a direct hydrological connection
between the ground water beneath the production area and surface
waters. If a link is established, the facility would have to monitor
ground water up gradient and down gradient of the production area to
ensure that they are achieving zero discharge to ground water. EPA has
assumed that CAFOs would comply with the zero discharge requirement by
installing liners of synthetic material beneath lagoons and ponds, and
impervious pads below storage of dry manure stockpiles. EPA's costs for
liners reflect both a synthetic liner and compacted clay to protect the
liner and prolong its useful life.
CAFOs with a direct hydrologic link would be required to sample the
groundwater from the monitoring wells (located up gradient and down
gradient of the production area) at a minimum frequency of twice per
year. These samples are necessary to ensure that pollutants are not
being discharged through groundwater to surface water from the
production area. The samples shall be monitored for nitrate, ammonia,
total coliform, fecal coliform, Total Dissolved Solids (TDS) and total
chloride. Differences in concentration of these pollutants between the
monitoring
[[Page 3060]]
well(s) located up gradient and down gradient of the production area
are assumed to represent a discharge of pollutants and must be
prevented. As noted below, coliforms are not necessarily good
indicators of livestock discharges. Also, it is difficult to determine
``concentrations'' of coliforms as they are not necessarily evenly
distributed in the way chemical contaminants generally are. EPA
requests comment on technical concerns associated with including total
and fecal coliforms in the groundwater monitoring and protection
requirements and on ways to address such concerns.
Option 4. Option 4 includes all the requirements for Option 3 and
would require sampling of surface waters adjacent to feedlots and/or
land under control of the feedlot to which manure is applied. This
option would require CAFOs to sample surface water both upstream and
downstream from the feedlot and land application areas following a one
half inch rain fall (not to exceed 12 sample events per year). The
samples would be analyzed for concentrations of nitrogen, phosphorus
and total suspended solids (TSS). EPA selected these pollutants because
it believes these pollutants provide an adequate indication of whether
a discharge is occurring from the operation. All sampling results would
be reported to the permit authority. Any difference in concentration
between the upstream and downstream samples would be noted. This
monitoring requirement could provide some indication of discharges from
the land application or feedlot areas.
EPA also considered requiring that pathogens and BOD5 be
analyzed in samples collected. EPA decided that this would not be
practical, because sampling under Option 4 is linked to storm events
which limits the ability to plan in advance for analysis of the samples
and making arrangements for shipping samples to laboratories. Fecal
coliform and BOD samples all have very short holding times before they
need to be analyzed. Most CAFOs are located in rural areas with limited
access to overnight shipping services and are probably not near
laboratories that can analyze for these pollutants. Further, fecal
coliform and similar analytes that are typically used as indicators in
municipal wastewater are not necessarily good indicators of livestock
discharges. If CAFOs were required to monitor for pathogens which could
indicate discharges of manure or CAFO wastewater, it would be better to
require monitoring for fecal enterococci, or even specific pathogens
such as salmonella, Giardia, and Cryptosporidium. However, the cost for
analyzing these parameters is very high and the holding times for these
parameters are also very short.
Furthermore, EPA determined pathogen analyses are also
inappropriate because the pathogens in manure are found in areas
without animal agriculture. For example Enterobacter, Klebsiella,
Bacillus cereus, Clostridium, and Listeria are all naturally occurring
soil and plant microorganisms and are found in soils that have never
received manure. Pathogens may also be deposited onto land from
wildlife. Thus, EPA concluded that requiring analysis for these
pollutants was impractical at best and potentially very expensive.
Option 5. Option 5 includes the requirements established by Option
2 and would establish a zero discharge requirement from the production
area that does not allow for an overflow under any circumstances. By
keeping precipitation from contacting with the animals, raw materials,
waste handling and storage areas, CAFOs could operate the confinement
areas and meet zero discharge regardless of rainfall events. Option 5
includes the same land application requirements as Option 2, which
would restrict the rate of manure and wastewater application to a crop
removal rate for phosphorus where necessary depending on the specific
soil conditions at the CAFO. Additionally, as in Option 2, application
of manure and wastewater would be prohibited within 100 feet of surface
water.
EPA considered Option 5 for the poultry, veal and hog
subcategories, where it is common to keep the animals in total
confinement, feed is generally maintained in enclosed hoppers and the
manure and wastewater storage can be handled so as to prevent it from
contacting storm water. EPA considered a number of ways a facility
might meet the requirements of no discharge and no overflow. In
estimating the costs associated with Option 5, EPA compared the total
costs and selected the least expensive technology for a given farm
size, geographic region, and manure management system. Costs also
depend on whether the facility's PNP indicates land application must be
based on nitrogen or phosphorus, and how many acres the facility
controls. The technologies described below were used singularly or in
combination to meet the requirements of Option 5.
Many facilities can achieve Option 5 by covering open manure and
storage areas, and by constructing or modifying berms and diversions to
control the flow of precipitation. EPA costed broiler and turkey
operations for storage sheds sufficient to contain six months of
storage. Some poultry facilities, particularly turkey facilities,
compost used litter in the storage sheds, allowing recycle and reuse of
the litter. EPA costed swine, veal, and poultry facilities which use
lagoons or liquid impoundments for impoundment covers.
EPA believes that operations which have excess manure nutrients and
use flush systems to move manure out of the confinement buildings will
have an incentive to construct a second lagoon cell. A second storage
or treatment cell should accomplish more decomposition of the waste and
will allow flush water to be recycled out of the second cell or lagoon,
thus reducing the addition of fresh water to the system. Reducing the
total volume of stored waste reduces the risk of a catastrophic failure
of the storage structure. In the absence of large volumes of water,
facilities with an excess of manure nutrients will be able to transfer
the excess manure off-site more economically due to a lower volume of
waste needing to be hauled. Water reduction also results in a more
concentrated product which would have a higher value as a fertilizer.
Covered systems substantially reduce air emissions, and help
maintain the nutrient value of the manure. Covered systems also may
benefit facilities by reducing odors emanating from open storage. This
option also creates a strong incentive for facilities to utilize
covered lagoon digesters or multistage covered systems for treatment.
The use of covers will allow smaller and more stable liquid
impoundments to be constructed. Finally, the use of covered
impoundments encourages treatment and minimal holding times, resulting
in pathogen die-off and reduction of BOD and volatile solids.
Other technologies can be effectively used at some facilities, such
as conversion of flush systems to scrape systems, or by retrofit of
slatted floor housing to V-shaped under house pits that facilitate
solid liquid separation. Solids can be stored or composted in covered
sheds, while the urine can be stored in small liquid impoundments.
In the event the facility has insufficient land to handle all
nutrients generated, EPA evaluated additional nutrient management
strategies. First, the manure could pass through solid separation,
resulting in a smaller volume of more concentrated nutrients that is
more effectively transported offsite. Second, land application could be
based on the uppermost portion of a covered lagoon containing a more
dilute concentration of nutrients. Data indicates much of the
phosphorus
[[Page 3061]]
accumulates in the bottom sludge, which is periodically removed and
could be transported offsite for proper land application. Though many
facilities report sludge removal of a properly operating lagoon may
occur as infrequently as every 20 years, EPA assumed facilities would
pump out the phosphorus and metals enriched sludge every three years.
This is consistent with the ANSI/ASAE standards for anaerobic treatment
lagoons (EP403.3 JUL99) that indicates periodic sludge removal and
liquid drawdown is necessary to maintain the treatment volume of the
lagoon. Third, swine and poultry farms can implement a variety of
feeding strategies, as discussed under Option 2 (see Section VII.C.3).
Feed management including phytase, multistage diets, split sex feeding,
and precision feeding have been shown to reduce phosphorus content in
the manure by up to 50%. This results in less excess nutrients to be
transported offsite, and allows for more manure to be land applied at
the CAFO.
EPA is aware of a small number of swine facilities that are
potentially CAFOs and use either open lots or some type of building
with outside access to confine the animals. EPA data indicate these
types of operations are generally smaller operations that would need to
implement different technologies than those described above. CAFOs that
provide outdoor access for the animals need to capture contaminated
storm water that falls on these open areas. Open hog lots would find it
difficult to comply with a requirement that does not allow for
overflows in the event of a large storm. EPA costed these facilities to
replace the open lots with hoop houses to confine the animals and
storage sheds to contain the manure. Hoop structures are naturally
ventilated structures with short wooden or concrete sidewalls and a
canvas, synthetic, or reflective roof supported by tubes or trusses.
The floor of the house is covered with straw or similar bedding
materials. The manure and bedding is periodically removed and stored.
The drier nature of the manure lends to treatment such as composting as
well as demonstrating reduced hauling costs as compared to liquid
manure handling systems.
EPA considered a variation to Option 5 that would require CAFOs to
use dry or drier manure handling practices. This variation assumed
conversion to a completely dry manure handling system for hogs and
laying hens using liquid manure handling systems. In addition to the
advantages of reduced water use described above, a completely dry
system is more likely to minimize leaching to ground water and, where
directly connected hydrologically to surface water, will also reduce
loads to surface waters. For the beef and dairy subcategories EPA
assumes that the liquid stream would be treated to remove the solids
and the solids would be composted. It is not practical to assume beef
and dairy operations can avoid the generation of liquid waste because
operations in both subcategories tend to have animals in open areas
exposed to precipitation resulting in a contaminated storm water that
must be captured. Also dairies generate a liquid waste stream from the
washing of the milking parlor.
Option 6. Option 6 includes the requirements of Option 2 and
requires that large hog and dairy operations (hog operations and
dairies with 2,000 AUs) would install and implement enclosed anaerobic
digestion to treat their manure and use the captured methane gas for
energy or heat generation. With proper management, such a system can be
used to generate additional on-farm revenue. The enclosed system will
reduce air emissions, especially odor and hydrogen sulfide, and
potentially reduces nitrogen losses from ammonia volatilization. The
treated effluent will also have less odor and should be more
transportable relative to undigested manure, making offsite transfer of
manure more economical. Anaerobic digestion under thermophilic or
heated conditions would achieve additional pathogen reductions.
Option 7. Option 7 includes the requirements of Option 2 and would
prohibit manure application to frozen, snow covered or saturated
ground. This prohibition requires that CAFOs have adequate storage to
hold manure for the period of time during which the ground is frozen or
saturated. The necessary period of storage ranges from 45 to 270 days
depending on the region. In practice, this may result in some
facilities needing storage to hold manure and wastes for 12 months. EPA
requests comment on whether there are specific conditions which warrant
a national standard that prohibits application when the ground is
frozen, snow covered or saturated.
6. Proposed Basis for BAT
BAT Requirements for the Beef and Dairy Subcategories. EPA is
proposing to establish BAT requirements for the beef and dairy
subcategories based on the same technology option. The beef subcategory
includes stand-alone heifer operations and applies to all confined
cattle operations except for operations that confine mature dairy
cattle or veal. Under the two-tier structure, the BAT requirements
would apply to any beef operation with 500 head of cattle or more.
Under the three-tier structure, the BAT requirements for beef would
apply to any operation with more than 1,000 head of cattle and any
operation with 300 to 1,000 head which meets the conditions identified
in section VII.B.2 and 3 of this preamble.
EPA proposes to establish BAT requirements for dairy operations
which meet the following definitions: under the two-tier structure, all
dairy with 350 head of mature dairy cows or more would be subject to
today's proposed BAT requirements. Under the three-tier approach any
dairy with more than 700 head of mature dairy cows or 250 to 700 head
of mature dairy cows which meets the conditions identified in section
VII of this preamble would be subject to today's proposed BAT
requirements.
EPA proposes to establish BAT requirements for the beef and dairy
subcategories based on Option 3. BAT would require all beef and dairy
CAFOs to monitor the ground water beneath the production area by
drilling wells up gradient and down gradient to measure for a plume of
pollutants discharged to ground water at the production area. A beef or
dairy CAFO can avoid this ground water monitoring by demonstrating, to
the permit writer's satisfaction, that it does not have a direct
hydrological connection between the ground water beneath the production
area and surface waters.
EPA proposes to require CAFOs in the beef and dairy subcategories
to monitor their ground water unless they determine that the production
area is located above ground water which has a direct hydrological
connection to surface water. CAFOs would have to monitor for ammonia,
nitrate, fecal coliform, total coliform, total chlorides and TDS. EPA
selected these pollutants because they may be indicators of livestock
waste and are pollutants of concern to ground water sources. If the
down gradient concentrations are higher than the up gradient
concentration this indicates a discharge which must be controlled. As
discussed above, EPA requests comment on the inclusion of total and
fecal coliforms among the required analytes. For operations that do not
demonstrate that they do not have a direct hydrologic connection, EPA
based the BAT zero discharge requirement on the installation of liners
in liquid storage structures such as lagoons and storm water retention
ponds and concrete pads for the storage of dry manure stockpiles.
Beef and dairy CAFOs must also develop and implement a PNP that is
based on application of manure and
[[Page 3062]]
wastewater to crop land either at a crop removal rate for phosphorus
where soil conditions require it, or on the nitrogen requirements of
the crop. EPA believes the land application rates established in
accordance with one of the three methods described in today's proposed
regulation, along with the prohibition of manure application within 100
feet of that surface water will ensure manure and wastewater are
applied in a manner consistent with proper agricultural use. See EPA's
document entitled ``Managing Manure Nutrients at Concentrated Animal
Feeding Operations'' for the detailed discussion of how a PNP is
developed.
EPA believes that technology option 3 is economically achievable
and represents the best available technology for the beef and dairy
subcategories, and is therefore proposing this option as BAT for these
subcategories. The incremental annual cost of Option 3 relative to
Option 2 for these subcategories is $170 million pre-tax under the two-
tier structure, and $1205 million pre-tax under the three tier
structure. EPA estimated annual ground water protection benefits from
the proposed requirements of $70-80 million. EPA estimates Option 3 for
the beef and dairy subcategories will reduce loadings to surface waters
from hydrologically connected ground water by 3 million pounds of
nitrogen. To determine economic achievability, EPA analyzed how many
facilities would experience financial stress severe enough to make them
vulnerable to closure under each regulatory option. As explained in
more detail in the Economic Analysis, the number of facilities
experiencing stress may indicate that an option might not be
economically achievable, subject to additional considerations. Under
Option 2, no facilities in either the beef or dairy sectors were found
to experience stress, while under Option 3, the analysis projects 10
beef and 329 dairy CAFOs would experience stress under the two-tier
structure, and 40 beef and 610 dairy CAFOs would experience stress
under the three-tier structure. Of these, EPA has determined that 40
beef operations are considered small businesses based on size standards
established by the Small Business Administration. This analysis assumes
that 76% of affected operations would be able to demonstrate that their
ground water does not have a hydrological connection to surface water
and would therefore not be subject to the proposed requirements. EPA
projects the cost of making this demonstration to the average CAFO
would be $3,000. EPA is aware that concerns have been raised about
these cost estimates, and about its estimates of how many facilities
would be able to avoid the groundwater monitoring and protection
requirements on this basis. EPA requests comment on this analysis and
on its proposed determination that Option 3 is economically achievable
for the beef and dairy sectors.
EPA is not proposing to base BAT requirements for the beef and
dairy subcategories on Option 2 because it does not as comprehensively
control discharges of pollutants through ground water which has a
direct hydrological connection with surface water. However, EPA is
requesting comment on Option 2 as a possible basis for BAT in the beef
and dairy subcategories. EPA notes that even under Option 2, permit
writers would be required to consider whether a facility is located in
an area where its hydrogeology makes it likely that the ground water
underlying the facility is hydrologically connected to surface water
and whether a discharge to surface water from the facility through such
hydrologically connected ground water may cause or contribute to a
violation of State water quality standards. In cases where such a
determination was made by the permit writer, he or she would impose
appropriate conditions to prevent discharge via a hydrologic connection
would be included in the permit. The main difference between Option 2
and Option 3 is thus that under Option 3, the burden of proof would be
on the facility to demonstrate that it does not discharge to ground
water that is hydrologically connected to surface water, while under
Option 2, ground water protection and monitoring requirements would
only be included in the permit if there were an affirmative
determination by the permitting authority that such requirements were
necessary to prevent a discharge of pollutants to surface waters via
hydrologically connected ground water that may be sufficient to cause a
violation of State water quality standards. Under today's proposal, the
Option 2 approach to preventing discharges via hydrologically connected
ground water would be used for the veal, swine and poultry
subcategories. EPA requests comment on applying this approach to the
beef and dairy subcategories as well.
EPA is not proposing to establish BAT requirements for the beef and
dairy subcategories on the basis of Option 4 due to the additional cost
associated with ambient stream monitoring and because the addition of
in-stream monitoring does not by itself achieve any better controls on
the discharges from CAFOs as compared to the other options. In-stream
monitoring could be an indicator of discharges occurring from the CAFO;
however, it is equally likely that in-stream monitoring will measure
discharges that may be occurring from adjacent non-CAFO agricultural
sources. Through the use of commercial fertilizers these non-CAFO
sources would likely be contributing the same pollutants being analyzed
under Option 4. EPA has not identified a better indicator parameter
which would isolate constituents from CAFO manure and wastewater from
other possible sources contributing pollutants to a stream. Pathogen
analysis could be an indicator if adjacent operations do not also have
livestock or are not using manure or biosolids as fertilizer sources.
However, as described earlier, EPA has concerns about the ability of
CAFOs to collect and analyze samples for these pollutants because of
the holding time constraints associated with the analytical methods for
these parameters. Accordingly, EPA does not believe that specifying
these additional in-stream monitoring BMP requirements would be
appropriate; and would not be useful in ensuring compliance with the
Clean Water Act. Moreover, in-stream monitoring would be a very costly
requirement for CAFOs to comply with.
EPA is not proposing to establish BAT requirements for the beef and
dairy subcategories on the basis of Option 5. Option 5 would require
zero discharge with no overflow from the production area. Most beef
feedlots are open lots which have large areas from which storm water
must be collected; thus, it is not possible to assume that the
operation can design a storm water impoundment that will never
experience an overflow even under the most extreme storm. Stand alone
heifer operations (other than those that are pasture-based) are
configured and operated in a manner very similar to beef feedlots.
Unlike the hog, veal and poultry subcategories, EPA is not aware of any
beef operations that keep all cattle confined under roof at all times.
Dairies also frequently keep animals in open areas for some period
of time, whether it is simply the pathway from the barn to the milk
house or an open exercise lot. Storm water from these open areas must
be collected in addition to any storm water that contacts food or
silage. As is the case for beef feedlots, the runoff volume from the
exposed areas is a function of the size of the area where the cattle
are maintained, and the amount of precipation. Since the CAFO operator
cannot control the amount of precipation, there always remains the
possibility that an extreme storm event
[[Page 3063]]
can produce enough rainfall that the resulting runoff would exceed the
capacity of the lagoon.
EPA did consider a new source option for new dairies that would
enforce total confinement of all cattle at the dairy. This new source
option poses a barrier to entry for new sources, therefore, EPA assumes
that this option if applied to existing sources would be economically
unachievable. Furthermore, EPA did evaluate a variation of Option 5
that would apply to existing beef and dairy operations and would
require the use of technologies which achieve a less wet manure. These
technologies include solid-liquid separation and composting the solids.
EPA is not proposing to establish BAT on the use of these technologies,
but does believe these technologies may result in cost savings at some
operations. Additionally, composting will achieve pathogen reductions.
As described in section VIII.C.9., EPA is continuing to examine
pathogen controls and may promulgate requirements on the discharge of
pathogens. If EPA set limitations on pathogens, composting technology
would likely become a basis for achieving BAT limits. EPA invites
comment on composting and its application to dry beef and dairy manure.
For any operation that has inadequate crop land on which to apply
its manure and wastewater, solid-liquid separation and composting could
benefit the CAFO, as these technologies will make the manure more
transportable. Drier manure is easier to transport; and therefore, EPA
believes solid liquid separation and composting will be used in some
situations to reduce the transportation cost of excess manure. In
addition, composting is a value-added process that improves the
physical characteristics (e.g., reduces odor and creates a more
homogenous product) of the manure. It can also make the manure a more
marketable product. As a result, a CAFO with excess manure may find it
easier to give away, or even sell, its excess manure. EPA encourages
all CAFOs to consider technologies that will reduce the volume of
manure requiring storage and make the manure easier to transport.
Option 6, which requires anaerobic digestion treatment with methane
capture, was not considered for the beef subcategory, but was
considered for the dairy subcategory for treatment of liquid manure.
Anaerobic digestion can only be applied to liquid waste. As described
previously in Section VI, beef feedlots maintain a dry manure, yet they
capture storm water runoff from the dry lot and manure stockpile. The
storm water runoff is generally too dilute to apply digestion
technology.
Most dairies, however, handle manure as a liquid or slurry which is
suited to treatment through anaerobic digestion. EPA concluded that
application of anaerobic digesters at dairies will not necessarily lead
to significant reductions in the pollutants discharges to surface
waters from CAFOs. An anaerobic digester does not eliminate the need
for liquid impoundments to store dairy parlor water and barn flush
water and to capture storm water runoff from the open areas at the
dairy. Neither do digesters reduce the nutrients, nitrogen or
phosphorus. Thus, basing BAT on digester technology would not change
the performance standard that a production area at a CAFO would achieve
and would not reduce or eliminate the need for proper land application
of manure. Digesters were considered because they achieve some degree
of waste stabilization and more importantly they capture air emissions
generated during manure storage. The emission of ammonia from manure
storage structures is a potentially significant contributor of nitrogen
to surface waters. Covered anaerobic digesters will prevent these
emissions while the waste is in the digester, but the digester does not
convert the ammonia into another form of nitrogen, such as nitrate,
which is not as volatile. Thus as soon as the manure is exposed to air
the ammonia will be lost. Operations may consider additional management
strategies for land application such as incorporation in order to
maintain the nitrogen value as fertilizer and to reduce emissions.
As mentioned above, the application of ambient temperature or
mesophilic anaerobic digesters would not change the performance
standard that a CAFO would achieve. EPA considered anaerobic digestion
as a means to control pathogens. Thermophilic digestion which applies
heat to the waste will reduce pathogens. As described in Section
VIII.C.9. EPA is still evaluating effective controls for pathogens.
EPA is not proposing to base BAT requirements on Option 7 for the
beef and dairy subcategories. Option 7 would prohibit manure
application on saturated, snow covered or frozen ground. Pollutant
runoff associated with application of manure or wastewater to
saturated, snow covered or frozen ground is a site specific
consideration, and depends on a number of site specific variables,
including distance to surface water and slope of the land. EPA believes
that establishing a national standard that prohibits manure or
wastewater application is inappropriate because of the site specific
nature of these requirements and the regional variability across the
nation. This is described in Section VII.E.5.b, above. However, Section
VII also explains that EPA is proposing to revise 40 CFR Part 122 to
require the permit authority to include, on a case-by-case basis,
restrictions on the application of CAFO waste to frozen, snow covered
or saturated ground in CAFO permits. This permit condition should
account for topographic and climatic conditions found in the state.
Requirements for the beef and dairy subcategories would still allow
for an overflow in the event of a chronic or catastrophic storm that
exceeds the 25-year, 24-hour storm. EPA believes this standard reflects
the best available technology. Under the proposed revisions to Part
122, permits will require that any discharge from the feedlot or
confinement area be reported to the permitting authority within 24
hours of the discharge event. The CAFO operator must also report the
amount of rainfall and the approximate duration of the storm event.
BAT Requirements for the Swine, Veal and Poultry Subcategories. EPA
is proposing to establish BAT requirements for the swine, veal and
poultry subcategories based on Option 5. For the purpose of simplifying
this discussion, the term poultry is used to include chickens and
turkeys. Option 5 requires zero discharge of manure and process
wastewater and provides no overflow allowance for manure and wastewater
storage. Land application requirements for these operations would be
the same as the requirements under Option 2.
EPA is proposing Option 5 because swine, veal and poultry
operations can house the animals under roof and feed is also not
exposed to the weather. Thus, there is no opportunity for storm water
contamination. Broiler and turkey operations generate a dry manure
which can be kept covered either under a shed or with tarps. Laying
hens with dry manure handling usually store manure below the birds'
cages and inside the confinement building. Veal and poultry operations
confine the animals under roof, thus there are no open animal
confinement areas to generate contaminated storm water. Those
operations with liquid manure storage can comply with the restrictions
proposed under this option by diverting uncontaminated storm water away
from the structure, and covering the lagoons or impoundments.
The technology basis for the poultry BAT requirements at the
production
[[Page 3064]]
area are litter sheds for broiler and turkey CAFOs, and underhouse
storage for laying hens with dry manure handling systems. For laying
hen CAFOs with liquid manure handling systems, EPA's technology basis
is solid separation and covered storage for the solids and covered
lagoons.
Laying hen farms may also have egg wash water from in-line or off-
line processing areas. Only 10% of laying hen operations with fewer
than 100,000 birds have on farm egg processing, while 35% of laying hen
operations with more than 100,000 birds have on farm egg processing.
The wash water is often passed through a settling system to remove
calcium, then stored in above ground tanks, below ground tanks, or
lagoons. Today's proposal is based on covered storage of the egg wash
water from on-farm processing, to prevent contact with precipitation.
The ultimate disposal of egg wash water is through land application
which must be done in accordance with the land application rates
established in the PNP. EPA believes the low nutrient value of egg
washwater is unlikely to cause additional incremental costs to laying
hen facilities to comply with the proposed land application
requirements.
EPA assumes large swine operations (e.g., operations with more than
1,250 hogs weighing 55 pounds or greater) operate using total
confinement practices. EPA based BAT Option 5 on the same approach
described above of covering liquid manure storage. CAFOs can operate
covered lagoons as anaerobic digesters which is an effective technology
for achieving zero discharge and will provide the added benefits of
waste stabilization, odor reduction and control of air emissions from
manure storage structures. Anaerobic digesters also can be operated to
generate electricity which can be used by the CAFO to offset operating
costs.
Although Option 5 is the most expensive option for the hog
subcategory, as shown on Table X.E.2(a), EPA believes this option
reflects best available technology economically achievable because it
prevents discharges resulting from liquid manure overflows that occur
in open lagoons and pond. Similarly, the technology basis of covered
treatment lagoons and drier manure storage is believed to reduce the
likelihood of those catastrophic lagoon failures associated with heavy
rainfalls. Option 5 also achieves the greatest level of pollutant
reductions from runoff reaching the edge of the field. Non-water
quality environmental impacts include reduced emissions and odor, with
a concurrent increase in nitrogen value of the manure, however as
mentioned previously, the ammonia concentration is not reduced and once
the manure is exposed to air the ammonia will volatilize. Water
conservation and recycling practices associated with Option 5 will
promote increased nutrient value of the manure, reduced hauling costs
via reduced water content, and less fresh water use.
The technology basis of Option 5, solid-liquid separation and
storage of the solids, has the advantage of creating a solid fraction
which is more transportable, thus hog CAFOs that have excess manure can
use this technology to reduce the transportation costs.
EPA is aware of three open lot hog operations that have more than
1,250 hogs and there may be a small number of others, but the
predominant practice is to house the animals in roofed buildings with
total confinement. For open lot hog CAFOs, EPA is proposing to base BAT
the application of hoop structures as described above.
Veal operations use liquid manure management and store manure in
lagoons. EPA has based BAT on covered manure and feed storage. The
animals are housed in buildings with no outside access. Thus, by
covering feed and waste storage the need to capture contaminated storm
water is avoided.
In evaluating the economic achievability of Option 5 for the swine,
veal and poultry subcategories, EPA evaluated the costs and impacts of
this option relative to Option 2. For these subcategories, the
incremental annual cost of Option 5 over Option 2 would be $110 million
pre-tax under the two-tier structure, and $140 million pre-tax under
the three-tier structure. Almost all of these incremental costs are
projected to be in the swine sector. Since the majority of the costs
are borne by the swine subcategory, EPA solicits comment on
establishing BAT on the basis Option 5 for the only the veal and
poultry subcategories, and establishing BAT on the basis of Option 2
that the swine subcategory. EPA projects that there would be no
additional costs under the two-tier structure, and only very small
additional costs under the three-tier structure for the veal and
poultry subcategories to move from Option 2 to Option 5. Under Option
2, EPA estimates 300 swine operations and 150 broiler operations would
experience stress under the two-tier structure, and 300 swine
operations and 330 broiler operations would experience stress under the
three-tier structure. Under Option 5 an additional 1,120 swine
operations would experience stress under both the two-tier and three-
tier structures. All affected hog operations have more than 1000 AU.
None of these affected hog operations are small businesses based on the
Small Business Administration's size standards. There would be no
additional broiler operations experiencing stress under Option 5, and
no veal, layer, or turkey operations are projected to experience stress
under either Option 2 or Option 5. EPA did not analyze the benefits of
Option 5 relative to Option 2. Under Option 2 operations are required
to be designed, constructed and operated to contain all process
generated waste waters, plus the runoff from a 25-year, 24-hour
rainfall event for the location of the point source. Thus, the benefit
of Option 5 over Option 2 would be the value of eliminating discharges
during chronic or catastrophic rainfall events of a magnitude of the
25-year, 24-hour rainfall event or greater. Further benefit would be
realized as a result of increased flexibility on the timing of manure
application to land. By preventing the rainfall and run-off from mixing
with wastewater, CAFOs would not need to operate such that land
application during storm events was necessary.
EPA is not proposing Option 2 for these sectors. However, EPA notes
that at the time of the SBREFA outreach process, removing the 25-year,
24-hour design standard for any sector was not considered largely due
to concern that a different design standard would lead to larger
lagoons or impoundments. EPA staff explicitly stated this to the SERs
and other member of the Panel. Although not extensively discussed,
since it did not appear at that time to be an issue, retention of this
standard was supported by both the SERs and the Panel. At that time,
EPA was not planning to evaluate such an option because of the concern
that this would encourage larger lagoons. Since the Panel concluded it
outreach, EPA decided to evaluate, and ultimately propose removing this
design standard for the veal, swine and poultry subcategories because
of reports of lagoon failures resulting from rainfall and poor
management. As mentioned previously, all of these sectors maintain
their animals under roof eliminating the need to capture contaminated
storm water from the animal confinement area. In addition, most poultry
operations generate a dry manure, which when properly stored, under
some type of cover, eliminates any possibility of an overflow in the
event of a large storm. Therefore EPA believes that Option 5 technology
which prevents the introduction of storm water into manure
[[Page 3065]]
storage is achievable and represents Best Available Technology, without
redesigning the capacity of existing manure storage units. However, EPA
requests comment on retaining te 25-year, 24-hour storm design standard
(and thus basing BAT on Option 2) for these sectors, consistent with
its intention at the time of the SBREFA outreach process.
EPA is not proposing to base BAT for the swine, poultry and veal
subcategories on Option 3, because EPA believes Option 5 is more
protective of the environment. If operators move towards dry manure
handling technologies and practices to comply with Option 5, there
should be less opportunity for ground water contamination and surface
water contamination through a direct hydrological connection. EPA
strongly encourages any newly constructed lagoons or anaerobic
digesters to be done in such a manner as to minimize pollutant losses
to ground water. A treatment lagoon should be lined with clay or
synthetic liner or both and solid storage should be on a concrete pad
or preferably a glass-lined steel tank as EPA has included in its
estimates of BAT costs. Additionally, Option 5 provides the additional
non-water quality benefit of achieving reductions in air emissions from
liquid storage systems. EPA estimates that the cost of complying with
both Option 3 and 5 at existing facilities would be economically
unachievable.
EPA believes the proposed technology basis for broilers, turkeys
and laying hens with dry manure management will avoid discharges to
ground water since the manure is dry and stored in such a way as to
prevent storm water from reaching it. Without some liquid to provide a
transport mechanism, pollutants cannot move through the soil profile
and reach the ground water and surface water through a direct
hydrological connection.
EPA is not proposing to base BAT on Option 4 for the same reasons
described above for the beef and dairy subcategories.
EPA is not proposing to base BAT on Option 6, because EPA believes
that the zero discharge aspect of the selected option will encourage
operations to consider and install anaerobic digestion in situations
where it will be cost effective.
As with beef and dairy, EPA is not proposing to base BAT for swine,
veal and poultry on Option 7, but believes that permit authorities
should establish restrictions as necessary in permits issued to CAFOs.
Swine, veal and poultry operations should take the timing of manure
application into account when developing the PNP. Any areas that could
result in pollutant discharge from application of manure to frozen,
snow covered or saturated ground should be identified in the plan and
manure or wastewater should not be applied to those areas when there is
a risk of discharge.
EPA solicits comment on the use of remote liquid level monitoring
at livestock operations. As described above in Section VIII.C.3, this
technology could provide advanced notification that levels are reaching
a critical point, and corrective actions could then be taken. This
technology does not prevent precipitation from entering the lagoon and
does not prevent overflows, therefore EPA chose not to propose this
technology as BAT for swine or veal operations. However, EPA solicits
comments on applicability of this technology to livestock operations,
especially at swine and veal as an alternative to covers on lagoons.
PNP Requirements
There are a number of elements that are addressed by both USDA's
``Guidance for Comprehensive Nutrient Management Plans (CNMPs)'' and
EPA's PNP which would be required by the effluent guidelines and NPDES
proposed rules and is detailed in the guidance document ``Managing
Manure Nutrients at Concentrated Animal Feeding Operations.'' EPA's
proposed PNP would establish requirements for CAFOs that are consistent
with the technical guidance published by USDA experts, but go beyond
that guidance by identifying specific management practices that must be
implemented. What follows is a brief description of what must be
included in a PNP.
General Information. The PNP must have a Cover Sheet which contains
the name and location of the operation, the name and title of the owner
or operator and the name and title of the person who prepared the plan.
The date (month, day, year) the plan was developed and amended must be
clearly indicated on the Cover Sheet. The Executive Summary would
briefly describe the operation in terms of herd or flock size, total
animal waste produced annually, crop identity for the full 5 year
period including a description of the expected crop rotation and,
realistic yield goal. The Executive Summary must include indication of
the field conditions for each field unit resulting from the phosphorus
method used (e.g., phosphorus index), animal waste application rates,
the total number of acres that will receive manure, nutrient content of
manure and amount of manure that will be shipped off-site. It should
also identify the manure collection, handling, storage, and treatment
practices, for example animals kept on bedding which is stored in a
shed after removal from confinement house, or animals on slatted floors
over a shallow pull plug pit that is drained to an outdoor in-ground
slurry storage inpoundment. Finally, the Executive Summary would have
to identify the watershed(s) in which the fields receiving manure are
located or the nearest surface water body. While the General
Information section of a PNP would give a general overview of the CAFO
and its nutrient management plan, subsequent sections would provide
further detail.
Animal Waste Production. This subsection details types and
quantities of animal waste produced along with manure nutrient sampling
techniques and results. Information would be included on the maximum
number of livestock ever confined and the maximum livestock capacity of
the CAFO, in addition to the annual livestock production. This section
would provide an estimate of the amount of animal waste collected each
year. Each different animal waste source should be sampled annually and
tested by an accredited laboratory for nitrogen, phosphorous,
potassium, and pH.
Animal Waste Handling, Collection, Storage, and Treatment. This
subsection details best management practices to protect surface and
groundwater from contamination during the handling, collection,
storage, and treatment of animal waste. A review would have to be
conducted of potential water contamination sources from existing animal
waste handling, collection, storage, and treatment practices. The
capacity needed for storage would be calculated.
Feedlot runoff would have to be contained and adequately managed.
Runoff diversion structures and animal waste storage structures would
have to be visually inspected for: seepage, erosion, vegetation, animal
access, reduced freeboard, and functioning rain gauges and irrigation
equipment, on a weekly basis. Deficiencies based on visual inspections
would have to be identified and corrected within a reasonable time
frame. Depth markers would have to be permanently installed in all
lagoons, ponds, and tanks. Lagoons, ponds, and tanks would have to be
maintained to retain capacity for the 25-year, 24-hour storm event.
Dead animals, required to be kept out of lagoons, would have to be
properly handled and disposed of in a timely
[[Page 3066]]
manner. Finally, an emergency response plan for animal waste spills and
releases would have to be developed.
Land Application Sites. This subsection details field
identification and soil sampling. County(ies) and watershed code(s)
where feedlot and land receiving animal waste applications are located
would be identified. Total acres of operation under the control of the
CAFO (owned and rented) and total acres where animal waste will be
applied would be included. A detailed farm map or aerial photo, to be
included, would have to indicate: location and boundaries of the
operation, individual field boundaries, field identification and
acreage, soil types and slopes, and the location of nearby surface
waters and other environmentally sensitive areas (e.g., wetlands,
sinkholes, agricultural drainage wells, and aboveground tile drain
intakes) where animal waste application is restricted.
Separate soil sampling, using an approved method, would have to be
conducted every 3 years on each field receiving animal waste. The
samples shall be analyzed at an accredited laboratory for total
phosphorous. Finally, the phosphorous site rating for each field would
have to be recorded according to the selected assessment tool.
Land Application. This subsection details crop production and
animal waste application to crop production areas. Details of crop
production would have to include: Identification of all planned crops,
expected crop yields and the basis for yield estimates, crop planting
and harvesting dates, crop residue management practices, and nutrient
requirements of the crops to be grown. Calculations used to develop the
application rate, including nitrogen credits from legume crops,
available nutrients from past animal waste applications, and nutrient
credits from other fertilizer and/or biosolids applications would have
to be included.
Animal waste application rates cannot exceed nitrogen requirements
of the crops. However, animal waste application rates would be limited
to the agronomic requirements for phosphorous if the soil phosphorous
tests are rated ``high'', the soil phosphorous tests are equal to \3/
4\, but not greater than twice the soil phosphorous threshold value, or
the Phosphorous Index rating is ``high.'' Finally, animal waste could
not be applied to land if the soil phosphorous tests are rated ``very
high'', the soil phosphorous tests are greater than twice the soil
phosphorous threshold value, or the Phosphorous Index rating is ``very
high.'' In some cases, operators may choose to further restrict
application rates to account for other limiting factors such as
salinity or pH.
Animal wastes cannot be applied to wetlands or surface waters,
within 100 feet of a sinkhole, or within 100 feet of water sources such
as rivers, streams, lakes, ponds, and intakes to agricultural drainage
systems (e.g., aboveground tile drain intakes, agricultural drainage
wells, pipe outlet terraces). EPA requests comment on how serious would
be the limitations imposed by these requirements. Manure spreader and
irrigation equipment would have to be calibrated at a minimum once each
year, but preferably before each application period. Finally, the date
of animal waste application and calibration application equipment, and
rainfall amounts 24-hours before and after application would be
recorded.
Other Uses/Off-Site Transfer. The final required subsection for a
PNP details any alternative uses and off-site transport of animal
wastes. If used, a complete description of alternative uses of animal
waste would have to be included. If animal wastes are transported off-
site the following would have to be recorded: date (day, month, year),
quantity, and name and location of the recipient of the animal waste.
Voluntary Measures. Many voluntary best management practices can be
included within various subsections of a PNP. These voluntary best
management plans are referenced in EPA's guidance document for PNP
``Managing Manure Nutrients at Concentrated Animal Feeding
Operations.''
Annual Review and Revision. While a PNP is required to be renewed
every 5 years (coinciding with NPDES permitting), an annual review of
the PNP would have to occur and the PNP would be revised or amended as
necessary.
The most likely factor which would necessitate an amendment or
revision to a PNP is a change in the number of animals at the CAFO. A
substantial increase in animal numbers (for example an increase of
greater than 20%) would significantly increase the volume of manure and
total nitrogen and phosphorous produced on the CAFO. Because of this,
the CAFO will need to re-evaluate animal waste storage facilities to
ensure adequate capacity, and may need to re-examine the land
application sites and rates.
A second reason which would require an amendment or revision to a
PNP is a change in the cropping program which would significantly alter
land application of animal waste. Changes in crop rotation or crop
acreage could significantly alter land application rates for fields
receiving animal waste. Also the elimination or addition of fields
receiving animal waste application would require a change in the PNP.
Changes in animal waste collection, storage facilities, treatment,
or land application method would require an amendment or revision to a
PNP. For example, the addition of a solid-liquid separator would change
the nutrient content of the various animal waste fractions and the
method of land application thereby necessitating a revision in a PNP.
Changing from surface application to soil injection would alter ammonia
volatilization subsequently altering animal waste nutrient composition
requiring a revision of land application rates.
When CAFOs Must Have PNPs. EPA proposes to allow two groups of
CAFOs up to 90 days to obtain a PNP:
3. Existing CAFOs which are being covered by a NPDES permit for the
first time; or
4. Existing CAFOs that are already covered under an existing permit
which is reissued within 3 years from the date of promulgation of these
regulations.
EPA proposes that all other existing CAFOs must have a PNP at the
time permits are issued or renewed.
7. New Source Performance Standards
For purposes of applying the new source performance standards
(NSPS) being proposed today, a source would be a new source if it
commences construction after the effective date of the forthcoming
final rule. (EPA expects to take final action on this proposal in
December 2002, which is more than 120 days after the date of proposal--
see 40 CFR 122.2). Each source that meets this definition would be
required to achieve any newly promulgated NSPS upon commencing
discharge.
In addition, EPA is proposing additional criteria to define ``new
source'' that would apply specifically to CAFOs under Part 412. EPA
intends that permit writers will consult the specific ``new source''
criteria in Part 412 rather than the more general criteria set forth in
40 CFR 122.29(b)(1). The other provisions of 40 CFR 122.29 continue to
apply. EPA proposes to consider an operation as a new source if any of
the following three criteria apply.
The definition of new source being proposed for Part 412 states
three criteria that determine whether a source is a ``new source.''
First, a facility would be a new source if it is constructed at a
site at which no other source is located. These new sources have the
advantage of not
[[Page 3067]]
having to retrofit the operation to comply with BAT requirements, and
thus can design to comply with more stringent and protective
requirements.
The second criterion for defining a new source would be where new
construction at the facility ``replaces the housing, waste handling
system, production process, or production equipment that causes the
discharge or potential to discharge pollutants at an existing source.''
Confinement housing and barns are periodically replaced, allowing the
opportunity to install improved systems that provide increased
environmental protection. The modern confinement housing used at many
swine, dairy, veal, and poultry farms allows for waste handling and
storage in a fashion that generates little or no process water. Such
systems negate the need for traditional flush systems and storage
lagoons, reduce the risks of uncontrollable spills, and decrease the
costs of transporting manure.
Third, a source would be a new source if construction is begun
after the date this rule is promulgated and its production area and
processes are substantially independent of an existing source at the
same site. Facilities may construct additional production areas that
are located on one contiguous property, without sharing waste
management systems or commingling waste streams. Separate production
areas may also be constructed to help control biosecurity. New
production areas may also be constructed for entirely different animal
types, in which case the more stringent NSPS requirements for that
subcategory would apply to the separate and newly constructed
production area. In determining whether production and processes are
substantially independent, the permit authority is directed to consider
such factors as the extent to which the new production areas are
integrated with the existing production areas, and the extent to which
the new operation is engaging in the same general type of activity as
the existing source.
EPA also considered whether a certain level of facility expansion,
measured as an increase in animal production, should cause an operation
to be subject to new source performance standards. If so, upon facility
expansion, the CAFO would need to go beyond compliance with BAT
requirements to meet the more stringent standards represented by NSPS.
In today's proposal, that increment of additional control, for the
swine, poultry and veal subcategories, would amount to the need to
monitor ground water and install liners in lagoons and impoundments to
prevent discharges to ground water that has a direct hydrological
connection to surface water; unless the CAFO could demonstrate that no
such direct hydrological link existed. In the beef and dairy
subcategories, the NSPS proposed today are the same as the BAT
standards.
The Agency, however, decided against proposing to identify facility
expansion as a trigger for the application of NSPS. Many CAFOs oversize
or over-engineer their waste handling systems to accommodate future
increases in production. Thus, in many cases, the actual increases in
production may not present a new opportunity for the CAFO to install
the additional NSPS technologies--e.g. liners. To install liners, these
operations would need to retrofit their facilities the same as existing
sources would. EPA has explained above that such retrofitting would not
be economically achievable in these animal sectors. Similarly, the
costs associated with these requirements would represent a barrier to
the expansion. Therefore, it would not be appropriate to require these
operations, upon facility expansion, to meet the additional ground
water-related requirements that are a part of today's proposed NSPS.
EPA considered the same seven options for new source performance
standards (NSPS) as it considered for BAT. EPA also considered an
additional option for new dairies, which if selected, would prohibit
dairies from discharging any manure or process wastewater from animal
confinement and manure storage areas (i.e., eliminating the allowance
for discharging overflows associated with a storm event). New sources
have the advantage of not having to retrofit the operation to comply
with the requirements and thus can design the operation to comply with
more stringent requirements. In selecting new source performance
standards, EPA evaluates whether the requirements under consideration
would impose a barrier to entry to new operations.
EPA is proposing to select Option 3 as the basis for NSPS for the
beef and dairy subcategories. Option 3 includes all the requirements
proposed for existing sources including complying with zero discharge
from the production area except in the event of a 25-year, 24-hour
storm and the requirement to develop a PNP which establishes the rate
at which manure and wastewater can be applied to crop or pasture land
owned or controlled by the CAFO. The application of manure and
wastewater would be restricted to a phosphorus based rate where
necessary depending on the specific soil conditions at the CAFO.
Additionally, other best management practice requirements would apply,
including the prohibition of manure and wastewater application within
100 feet of surface water. The proposed new source standard for the
beef and dairy subcategories includes a requirement for assessing
whether the ground water beneath the production area has a direct
hydrological connection to surface water. If a direct hydrological
connection exists, the operation must conduct additional monitoring of
ground water up gradient and down gradient from the production area,
and implement any necessary controls based on the monitoring results to
ensure that zero discharge to surface water via the ground water route
is achieved for manure stockpiles and liquid impoundments or lagoons.
For the purpose of estimating compliance costs, EPA has assumed that
operations located in areas with a direct hydrological connection will
install synthetic material or compacted clay liners beneath any liquid
manure storage and construct impervious pads for any dry manure storage
areas. The operator would be required to collect and analyze ground
water samples twice per year for total dissolved solids, chlorides,
nitrate, ammonia, total coliforms and fecal coliform. EPA believes that
Option 3 is economically achievable for existing sources. Since new
sources are able to install impermeable liners at the time the lagoon
or impoundment is being constructed, rather than retrofitting
impoundments at existing source, costs associated with this requirement
should be less for new sources in comparison to existing sources. EPA
has concluded that Option 3 requirements will not pose a barrier to
entry for new sources.
EPA is proposing to establish NSPS for all swine and poultry
operations based on Option 5 and Option 3 combined. In addition the BAT
requirements described in Section VIII.C.6, the proposed new source
standards would require no discharge via any ground water that has a
direct hydrological link to surface water. As described above, Option 3
requires all CAFOs to monitor the ground water and impose appropriate
controls to ensure compliance with the zero discharge standard, unless
the CAFO has demonstrated that there is no direct hydrological link
between the ground water and any surface waters. The proposed new
source standard also restricts land application of manure and
[[Page 3068]]
wastewater to a phosphorus based rate where necessary depending on the
specific soil conditions at the CAFO. Additionally, other best
management practice requirements would apply, including that
application of manure and wastewater would be prohibited within 100
feet of surface water.
EPA encourages new swine and poultry facilities to be constructed
to use dry manure handling. Dry manure handling is currently the
standard practice at broiler and turkey operations. As described
previously, some existing laying hen operations and most hog operations
use liquid manure handling systems. The proposed new source performance
standard would not require the use of dry manure handling technologies,
but EPA believes this is the most efficient technology to comply with
its requirements.
EPA has analyzed costs of installing dry manure handling at new
laying hen and swine operations. Both sectors have operations which
demonstrate dry manure handling can be used as an effective manure
management system. The dry manure handling systems considered for both
sectors require that the housing for the animals be constructed in a
certain fashion, thus making this practice less practical for existing
sources. Both sectors have developed a high rise housing system, which
houses the animals on the second floor of the building allowing the
manure to drop to the first floor or pit. In the laying hen sector this
is currently a common practice and with aggressive ventilation, the
manure can be maintained as a dry product. Hog manure has a lower
solids content, thus the manure must be mixed with a bedding material
(e.g., wood chips, rice or peanut hulls and other types of bedding)
which will absorb the liquid. To further aid in drying the hog manure,
air is forced up through pipes installed in the concrete floor of the
pit. With some management on the part of the CAFO operator, involving
mixing and turning the hog manure in the pit periodically, the manure
can be composted while it is being stored. The advantages of the high
rise system for hogs and laying hens include a more transportable
manure, which, in the case of the hog high rise system, has also
achieved a fairly thorough decomposition. The air quality inside the
high rise house is greatly improved, and the potential for leaching
pollutants into the groundwater is greatly reduced. The design standard
of these high rise houses include concrete floors and also assume that
the manure would be retained in the building until it will be land
applied, thus there is no opportunity for storm water to reach the
manure storage and virtually no opportunity for pollutants to leach to
groundwater beneath the confinement house. EPA believes that the cost
savings associated with ease of manure transportation, as well as
improved animal health and performance, with the dry manure handling
system for hogs will off-set the increased cost of operation and
maintenance associated with the high rise hog system. Thus, EPA
concludes the high-rise house does not pose a barrier to entry and is
the basis for NSPS in both the laying hen and hog sectors. Although the
high rise house is the basis of the new source standards for the swine
and laying hen sectors, operations are not prevented from constructing
a liquid manure handling system. If new sources in these sectors choose
to construct a liquid manure handling system, they would be required to
line the lagoons if the operation is located in an area that has a
direct hydrologic connection, but the cost associated with lining a
lagoon at the time it is being constructed is much less than the cost
to retrofit lagoon liners.
EPA proposes to establish new source requirements for the veal
subcategory on the basis of Option 5 which requires zero discharge with
no overflow from the production area and Option 3 which requires zero
discharge of pollutants to groundwater which has a direct hydrological
connection to surface water, with the ground water monitoring or
hydrological assessment requirements described above. EPA believes that
a zero discharge standard without any overflow will promote the use of
covered lagoons, anaerobic digesters or other types of manure treatment
systems. Additionally, this will minimize the use of open air manure
storage systems, thus reducing emission of pollutants from CAFOs.
New veal CAFOs would not be expected to modify existing housing
conditions since EPA is not aware of any existing veal operations that
use dry manure handling systems. New veal CAFOs would be expected to
also use covered lagoons, or anaerobic digesters to comply with the
zero discharge standard. New veal CAFOs would be required to line their
liquid manure treatment or storage structures with either synthetic
material or compacted clay to prevent the discharge of pollutants to
ground water which has a direct hydrological connection to surface
water. In addition, the CAFO would have to monitor the groundwater
beneath the production area to ensure compliance with the zero
discharge requirement. The CAFO would not need to install liners or
monitor ground water if it demonstrates that there is no direct
hydrologic link between the ground water and any surface waters.
In addition to the seven options considered for both existing and
new sources, EPA also investigated a new source option for dairies that
would prohibit all discharges of manure and process wastewater to
surface waters, eliminating the current allowance for the discharge of
the overflow of runoff from the production area. To comply with a zero
discharge requirement, dairies would need to transform the operation so
they could have full control over the amount of manure and wastewater,
including any runoff, entering impoundments. Many dairies have drylot
areas where calves, heifers, and bulls are confined, as well as similar
drylot areas where the mature cows are allowed access. EPA estimated
compliance costs for a zero discharge requirements assuming that the
following changes would occur at new dairies:
(1) Freestall barns for mature cows would be constructed with six
months underpit manure storage, rather than typical flush systems with
lagoon storage;
(2) Freestall barns with six months underpit manure storage would
be constructed to house heifers;
(3) Calf barns with a scrape system would be constructed with a
scrape system and six months of adjacent manure storage; and
(4) New dairies would include covered walkways, exercise areas,
parlor holding, and handling areas.
Drylot areas are continually exposed to precipitation. The amount
of contaminated runoff from such areas that must be captured is
directly related to the size of the exposed area and the amount of
precipitation. Under the current regulations, dairies use the 25-year,
24-hour rainfall event (in addition to other considerations) when
determining the necessary storage capacity for a facility. Imposing a
zero discharge requirement that prevents any discharge from
impoundments would force dairies to reconfigure in a way that provides
complete control over all sources of wastewater. EPA considered the
structural changes in dairy design described here to create a facility
that eliminates the potential for contaminated runoff.
While EPA believes that confining all mature and immature dairy
cattle is technically feasible, the costs of zero discharge relative to
the costs for Option 3 are very high. Capital costs to comply with zero
discharge increase by two orders of magnitude. EPA estimates
[[Page 3069]]
annual operating and maintenance costs would rise between one to two
orders of magnitude above the costs for Option 3. These costs may
create a barrier to entry for new sources. In addition, EPA believes
selecting this option could have the unintended consequence of
encouraging dairies to shift calves and heifers offsite to standalone
heifer raising operations (either on land owned by the dairy or at
contract operations) to avoid building calf and heifer barns. If these
offsite calf/heifer operations are of a size that they avoid being
defined as a CAFO, the manure from the immature animals would not be
subject to the effluent guidelines.
EPA is not basing requirements for new dairies on the zero
discharge option for the reasons discussed above. EPA solicits comment
on the approach used to estimate the costs for new dairies to comply
with a zero discharge requirement. Comments are particularly solicited
on aspects such as: converting from flush systems to underpit manure
storage; types of housing for calves and heifers; and whether the
potential for uncontrollable amounts of precipitation runoff have been
sufficiently eliminated (including from silage). EPA also solicits
comment on a regulatory scenario that would establish a zero discharge
requirement for manure and process wastewater from barns (housing
either mature or immature dairy cattle) and the milking parlor, but
would maintain the current allowance for overflow of runoff from drylot
areas.
As an alternative to underpit manure storage, dairies could achieve
zero discharge for parlor wastes and barn flush water by constructing
systems such as anaerobic digesters and covered lagoons. These covered
systems, if properly operated, can facilitate treatment of the manure
and offer opportunities to reduce air emissions. The resulting liquid
and solid wastes would be more stable than untreated manure. EPA
solicits comment on the usefulness of applying stabilization or
treatment standards to liquid and slurry manures prior to land
application. Commenters encouraging the use of such standards should
recommend appropriate measurement parameters such as volatile solids,
BOD, COD, and indicator organism reduction(s) to establish stability or
treatment levels.
EPA has not identified any basis for rejecting the zero discharge
option for dairies solely due to animal health reasons. EPA solicits
comment on the technical feasibility of confining mature and/or
immature dairy cattle in barns at all times.
Ten-year protection period. The NSPS that are currently codified in
part 412 will continue to have force and effect for a limited universe
of CAFOs. For this reason, EPA is proposing to retain the NSPS
promulgated in 1974 for part 412. Specifically, following promulgation
of the final rule that revises part 412, the 1974 NSPS would continue
to apply for a limited period of time to certain new sources and new
dischargers. See CWA section 306(d) and 40 CFR 122.29(d). Thus, if EPA
promulgates revised NSPS for part 412 in December 2002, and those
regulations take effect in January 2003, qualified new sources and new
dischargers that commenced discharge after January 1993 but before
January 2003 would be subject to the currently codified NSPS for ten
years from the date they commenced discharge or until the end of the
period of depreciation or amortization of their facility, whichever
comes first. See CWA section 306(d) and 40 CFR 122.29(d). After that
ten year period expires, any new or revised BAT limitations would apply
with respect to toxic and nonconventional pollutants. Limitations on
conventional pollutants would be based on the1974 NSPS unless EPA
promulgates revisions to BPT/BCT for conventional pollutants that are
more stringent than the 1974 NSPS.
Rather than reproduce the 1974 NSPS in the proposed rule, EPA
proposes to refer permitting authorities to the NSPS codified in the
2000 edition of the Code of Federal Regulations for use during the
applicable ten-year period.
8. Pretreatment Standards for New or Existing Sources (PSES AND PSNS)
EPA is not proposing to establish Pretreatment Standards for either
new or existing sources. Further, EPA is withdrawing the existing
provisions entitled ``Pretreatment standards for existing sources'' at
Secs. 412.14, 412.16, 412.24, 412.26. Those existing provisions
establish no limitations. The vast majority of CAFOs are located in
rural areas that do not have access to municipal treatment systems. EPA
is not aware of any existing CAFOs that discharge wastewater to POTWs
at present and does not expect new sources to be constructed in areas
where POTW access will be available. For those reasons, EPA is not
establishing national pretreatment standards. However, EPA also wants
to make it clear that if a CAFO discharged wastewater to a POTW, local
pretreatment limitations could be established by the Control Authority.
These local limits are similar to BPJ requirements in an NPDES permit.
9. Effluent Guidelines Controls for Pathogens
The third most common reason for waterbodies being listed on State
Sec. 303(d) lists as an impaired watershed is pathogens. Degradation of
surface waters by excessive levels of pathogens has been attributed to
several sources, including natural wildlife, faulty septic systems, and
animal agriculture. As described in Section 5, stream water quality may
be impacted by animal feeding operations due to feedlot surface runoff,
spills from liquid impoundments, tile drain effluent, leaching and
runoff from land receiving manure, and seepage from waste storage.
Degradation of aquatic and riparian habitat also occurs when animal
grazing operations are poorly managed.
In today's notice, EPA is not setting specific requirements for the
control of pathogens. The proposed BAT is expected to reduce pathogens
to surface waters through the implementation of the zero discharge
requirements at the production area, and through the implementation of
the PNP at the land application area. Even without explicit
requirements or limits for pathogen controls, EPA expects considerable
reduction in the discharge of pathogens for reasons described below.
Runoff simulations and loadings analysis predict a 50% reduction in
fecal coliforms and a 60% reduction in fecal streptococci under the
regulatory scenario proposed today. Following this proposal, EPA
intends to further analyze technologies for the treatment or reduction
of pathogens in manure, and solicits comment on other approaches to
control pathogens.
One mechanism for pathogen discharge to surface waters is
catastrophic spills, whether caused by intentional discharges or
through overflow following major storms. EPA expects the requirements
for no discharge from the production area, as well as routine
inspection and mandatory management practices for the control of liquid
impoundment levels, will reduce catastrophic spills. For the swine and
poultry sectors EPA believes the elimination of the storm event at
which an overflow is allowed will also reduce discharge of pathogens.
At the production area, operators would be required to handle animal
mortalities in a manner so as to prevent contamination of surface
water. The proper use of manure as a fertilizer, as specified in the
proposed regulations, may result in increased storage capacity and
longer retention times of both liquid and solid manure storage,
allowing
[[Page 3070]]
increased opportunity for natural die-off of pathogens. For example,
runoff from fields receiving poultry litter that had been stored prior
to application showed no significant difference in pathogen content in
runoff from control fields (GEIS, 1999), supporting the conclusion that
pathogen reductions will occur from increased storage times.
Application rate has been identified as the single most important
manure management practice affecting pollution of surface waters from
fields receiving manure. Other practices affecting pathogen content in
the runoff include amount of application, incorporation methods,
tillage, saturation of the receiving field, and elapsed time following
application before a rainfall. In one case study, swine lagoon effluent
applied to tile drained fields at 1.1 inches showed no difference in
runoff quality than the control fields, but application at three times
the rate showed high levels of fecal coliform in the surface water.
Fecal bacteria in runoff from land receiving fresh manure may often be
a significant proportion of the fecal contamination measured in the
surface waters. Vegetated filter strips are useful in removing
pollutants from runoff on manured fields, particularly nutrients and
sediment, but have not been identified as generally effective in
reducing bacterial concentrations in the runoff. Surface applications
of manure are more likely to result in fecal coliform transport when
the soil is saturated, particularly in fine sandy loam soils.
EPA believes nutrient management practices and rates established in
the PNP would limit the quantity of nutrients that may be applied to
fields and will reduce the occurrence of manure application to
saturated soils, or when a heavy storm event is predicted. Nutrient
loss to surface water under these conditions would result in reduced
crop yields and would be reflected in revisions made to the PNP in
subsequent years translating to a lower manure application rate.
EPA has collected data on technologies useful in treating manure
and wastes for pathogens. Anaerobic digesters and even simple manure
storage for an extended period of time promote pathogen reductions
through selective growth conditions and natural die-off over time. The
addition of heat, such as is used in thermophilic digesters, further
reduces pathogens. Proper composting processes also involve high
temperatures--achieving temperatures approaching 140 degrees F in the
pile. Heat treatment over several days is likely to kill protozoans
such as Giardia and Cryptosporidium. The addition of lime to achieve
high alkaline conditions, e.g., achieving a pH 12, also is
effective at killing many pathogens by disrupting the cell membrane or
disrupting virus viability.
EPA will continue to analyze the performance and applicability of
treatments to reduce pathogens in CAFO waste, and will analyze the
costs of these processes. The processes described above and others used
to significantly reduce pathogens in biosolids or sewage sludge such as
heat treatment, drying, thermophilic aerobic digestion, pasteurization,
disinfection, and extended storage will be analyzed for their
applicability to animal manures. EPA will give consideration to
establishing the same performance standards as required for Class A
sludge in Part 503. If supported by appropriate data, the final rule
could establish these or other appropriate standards as performance
standards that the wastes would be required to meet prior to land
application. The CAFO would need to demonstrate achievement of these
standards prior to land application because of the impracticability of
measuring the pollutant loadings in any eventual runoff from the land
application areas to the waters. EPA solicits comment on this possible
approach and specifically requests data relating to pathogen treatment
and reductions that are demonstrated to be effective on CAFO waste. EPA
also solicits data on management practices that can be applied to the
land application of manure, which may reduce pathogens in runoff.
10. Antibiotics
Related to concerns over pathogens in animal manures are concerns
over antibiotics and other pharmaceuticals that may be present in the
manure. As discussed in Section V, an estimated 60-80% of all livestock
receive antibiotics. Some antibiotics are metabolized, and some are
excreted with the manure. In cases where antimicrobials are
administered to animals through the feed, spilt feed and wastelage may
contribute to antibiotic content of the waste storage. The presence of
antibiotics in manure and the environment has been shown to result in
antibiotic resistant pathogens. EPA solicits comments on the direct
effects of antibiotic residues and antimicrobial resistance,
specifically on how manure management may contribute to the problem of
antibiotics reaching the environment and contributing to pathogen
resistance. EPA also solicits data and information on effective
treatment or practices that may be implemented by CAFOs to reduce these
releases.
IX. Implementation of Revised Regulations
A. How Do the Proposed Changes Affect State CAFO Programs?
EPA is proposing a number of changes to the effluent guidelines and
the NPDES permit regulations for CAFOs in today's proposed rule. Under
40 CFR 123.25, authorized NPDES State programs must administer their
permit programs in conformance with NPDES requirements, including the
requirements that address concentrated animal feeding operations
(Sec. 122.23) and the incorporation of technology-based effluent
limitation guidelines and standards in permits (Sec. 122.44). Thus,
today's proposed rule would require the 43 States [note that State is
defined in Sec. 122.2] with authorized NPDES permit programs for CAFOs
to revise their programs as necessary to be consistent with the revised
federal requirements. Current NPDES regulations note that authorized
NPDES State permit programs are not required to be identical to the
federal requirements; however, they must be at least as stringent as
the federal program. States are not precluded from imposing
requirements that are more stringent than those required under federal
regulations.
Any State with an existing approved NPDES permitting program under
section 402 must be revised to be consistent with changes to federal
requirements within one year of the date of promulgation of final
changes to the federal CAFO regulations [40 CFR 123.62(e)]. In cases
where a State must amend or enact a statute to conform with the revised
CAFO requirements, such revisions must take place within two years of
final changes to the federal CAFO regulations. States that do not have
an existing approved NPDES permitting program but who seek NPDES
authorization after these CAFO regulatory provisions are promulgated
must have authorities that meet or exceed the revised federal CAFO
regulations at the time authorization is requested.
In States not authorized to administer the NPDES program, EPA will
implement the revised requirements. Such States may still participate
in water quality protection through participation in the CWA section
401 certification process (for any permits) as well as through other
means (e.g., development of water quality standards, development of
TMDLs, and coordination with EPA).
[[Page 3071]]
EPA is aware that the majority of States authorized to implement
the NPDES program supplement the NPDES CAFO requirements with
additional State requirements, and some States currently regulate or
manage CAFOs predominantly under State non-NPDES programs. It has been
suggested that EPA provide a mechanism through which State non-NPDES
CAFO programs can be recognized alternatives that would be authorized
under the CWA.
No permit issued by a non-NPDES program will satisfy the NPDES
permit requirement. Facilities required to be covered by a NPDES permit
must obtain a permit from an agency authorized to issue a NPDES permit.
However, EPA believes that the current NPDES program provides a
reasonable degree of flexibility consistent with CWA requirements, and
that the proposed CAFO regulation provides opportunities to incorporate
State programs in several ways.
It is possible for non-NPDES State programs that currently regulate
AFOs to gain EPA's approval as NPDES-authorized programs. Such a change
would require a formal modification of the State's approved NPDES
program, and the State would have to demonstrate that its program meets
all of the minimum criteria specified in 40 CFR Part 123, Subpart B for
substantive and procedural regulations. Among other things, these
criteria include the restriction that permit terms may not exceed 5
years, and include provisions on public participation in permit
development and enforcement, and EPA enforcement authority.
In addition, today's proposal provides specific flexibility on
particular issues. First, with regard to the off-site transfer of
manure, EPA is requiring under one co-proposed option that the CAFO
operator obtain a certification from recipients that, if they intend to
land apply the manure, it will be done according to appropriate
agricultural practices. EPA is proposing to waive this requirement in a
State that is implementing an effective program for addressing excess
manure generated by CAFOs. Second, EPA is proposing to require that
processors be permitted, or co-permitted, along with their contract
producers. EPA is requesting comment on an option that would waive this
requirement in certain instances in States with effective programs for
managing excess manure. EPA is also soliciting comment on one
particular type of program, an Environmental Management System
developed by the processor, as sufficient to waive co-permitting
requirements. EPA is interested in comments on other specific
requirements of today's proposal that might be satisfied in whole or in
part by State program requirements. This could include ways to ensure
that states with unique programs that meet or exceed the provisions of
the revised regulations and the CWA requirements could utilize their
own programs that include similar objectives such as enhanced water
quality protection, public participation and accountability.
A third possible means of providing flexibility for States would be
available if the three-tier regulatory structure is adopted in the
final regulation. In the three-tier structure, all facilities over
1,000 AU would be considered CAFOs by definition, and those between 300
AU and 1,000 AU would be CAFOs only if they meet one of several
conditions, described in detail in Section VII.B.3, or if designated by
the permit authority as a significant contributor of pollution to
waters of the U.S. Those with fewer that 300 AU would become CAFOs only
if designated by the permit authority. A State with an effective non-
NPDES program could succeed in helping many operations avoid permits by
ensuring they do not meet any of the conditions that would define them
as CAFOs.
EPA is also soliciting comment on whether or not to adopt both the
two-tier and the three-tier structures, and to provide a mechanism to
allow States to select which of the two alternative proposed structures
to adopt in their State NPDES program. Under this option, a State could
adopt the structure that best fits with the administrative structure of
their program, and that best serves the character of the industries
located in their State and the associated environmental problems. This
option is viable only if the Agency is able to determine that the two
structures provide substantially similar environmental benefits by
regulating equivalent numbers of facilities and amounts of manure.
Otherwise, States would be in a position to choose a less stringent
regulation, contrary to the requirements of the Clean Water Act. A
discussion of this option can be found in Section VII.B.4.
The requirements for State NPDES program authorization are
specified under Sec. 402(b) of the CWA and within the broad NPDES
regulations (40 CFR Part 123). These provisions set out specific
requirements for State authorization applicable to the entire NPDES
program and the Agency does not believe that broad changes to these
requirements are appropriate in this proposed rulemaking.
B. How Would EPA's Proposal to Designate CAFOs Affect NPDES Authorized
States?
Today's proposal would provide explicit authority, even in States
with approved NPDES programs, for the EPA Regional Administrator to
designate an AFO as a CAFO if it meets the designation criteria in the
regulations. EPA's authority to designate AFOs as CAFOs would be
subject to the same criteria and limitations to which State designation
authority is subject. However, 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 requests comment on this prosed new designation
authority.
C. How and When Will the Revised Regulations be Implemented?
EPA anticipates that this these proposed regulations will be
promulgated as final regulations in December, 2002, and published in
the Federal Register shortly thereafter (approximately January, 2003).
As mentioned, authorized States programs will need up to two years
after that date to revise their programs to reflect the new
regulations. Following a State's revision of its program and approval
of the revisions by EPA, we expect many States to want additional time
to develop new or revised CAFO general permits. EPA believes it is
reasonable to allow States one additional year to develop these new or
revised general permits. To summarize, some States will need until
approximately January 2006--i.e., three years after the final rule is
published--before they can make CAFO general permits available that
reflect the new regulations in the State.
At the same time, once these regulations are finalized, we estimate
that there will be a large number of operations that will need to apply
for a permit, described in Section VII.B.4. It is important to take
into account that some States will not be making CAFO general permits
available to these facilities until three years after the final rule.
If EPA were to make the new Part 122 regulations effective shortly
after we issue the final rule (January 2003), there would be large
numbers of facilities that would be newly defined as CAFOs at that
time. They would be required to apply for a permit right away, but
States would not be able to issue general permits at that time or a
large number of individual permits all at once. This would leave the
facilities potentially in
[[Page 3072]]
the detrimental position of being unpermitted dischargers.
To avoid this situation, EPA proposes that the revisions to the
CAFO definition in part 122 (including, for example, changes to the
threshold number of animals to qualify as a CAFO and other changes such
as the elimination of the 25-year, 24-hour storm exemption) would not
take effect until three years after publication of the final rules. See
proposed section 122.23(f). We expect, therefore, that these changes
would not take effect until approximately January, 2006. Operations
that are brought within the regulatory definition of a CAFO for the
first time under these regulatory revisions would not be defined as
CAFOs under final and effective regulations until that date.
EPA also considered an alternate approach in which the effective
date for the part 122 revisions would be different in each State,
depending on when the State actually adopted and got approval for the
changes and issued general permits. An advantage of this approach would
be that the new regulations would potentially be effective at an
earlier date, i.e., before January 2006, in some States. EPA is not
proposing this approach, however. We decided that it would be
preferable to provide one uniform effective date for these particular
revisions, which would provide necessary clarity and consistency to the
national NPDES program for CAFOs. EPA does seek comment, however, on
which approach would be preferable to adopt in the final regulations.
States, however, are free to implement more stringent requirements, and
may choose to implement the revised CAFO definition at an earlier date.
It should be noted that EPA is proposing this delayed effective
date only for the proposed regulatory changes that affect which
operations would be defined as CAFOs. There is no need to delay the
effective date of any of the other revisions EPA is proposing to the
CAFO regulations at 40 CFR part 122, such as those that specify land
application requirements and other requirements. These other revisions
to the part 122 regulations would become effective 60 days after
publication of the final regulations (January 2003). For any operation
that is a CAFO according to the current definition and that is being
permitted after that date, or having its permit renewed, the permit
would be developed under these new part 122 provisions.
EPA is proposing that the revised effluent guidelines, once
promulgated as final regulations, would be effective 60 days after
promulgation. The 1989 statutory deadline for meeting BAT has long
passed, and we do not believe there is any reason why permit writers
could not begin incorporating the revised effluent guidelines into
permits beginning 60 days after promulgation.
If a CAFO submits a timely application for a permit renewal, but
has not received a decision on that application prior to the expiration
date of the original permit, then the original permit would be
administratively ``continued'' until there is a decision from the
permit authority on the new application (in EPA-administered States and
States with comparable administrative procedure laws). If that
continuance lasts beyond the date that is the effective date of the
revised NPDES regulations and effluent guidelines, then the CAFO's new
permit would reflect both sets of new regulations.
EPA also proposes to adopt specific timing requirements in the
permit with respect to the CAFO's development of PNPs. As described in
Section VIII, EPA proposes to establish BAT as encompassing the
following timing requirements: (1) for all new permittees and for
applicants who hold existing individual permits, compliance with the
PNP would be an immediate requirement of the permit. Therefore, the
draft PNP must be submitted to the permit authority along with the
permit application or NOI; the final PNP must be adopted by the
permittee within 90 days of being permitted; (2) for applicants who are
authorized under an existing general permit, the permittee must develop
a Permit Nutrient Plan within 90 days of submittal of the NOI; and (3)
the PNP for all CAFOs would need to include milestones for
implementation. This time is necessary because, while operators can
begin preparing necessary data, it would be difficult to develop a PNP
before the permit authority issues a final permit that specifies the
terms and conditions of the permit. (Operators of existing CAFOs with
individual NPDES permits, who must submit their draft PNP with the
permit application, are expected to reapply for coverage under the
revised regulation early enough to provide time to develop its PNP
without causing a lapse in coverage.) For facilities that have been
designated as CAFOs, the permit writer will develop the implementation
schedule in order to provide reasonable time to prepare the PNP.
Prior to the effective date of the revised regulations, State and
EPA permit authorities will be issuing permits to facilities that
currently meet the definition of a CAFO under the existing regulations
or that have been designated as CAFOs. Consistent with the AFO
Strategy, discussed in section III.B., during 2000 to 2005 States with
authorized NPDES programs are to focus on issuing permits to the
largest CAFOs, those with 1,000 AU or greater. In States where EPA is
the permit authority, EPA will issue permits to operations defined as
CAFOs that are over 300 AU. The permits are valid for a maximum of five
years, at which time these facilities would obtain new permits under
the revised regulation.
One of the significant changes to the NPDES and ELG regulation for
CAFOs will be the requirement to develop and implement Permit Nutrient
Plans that are developed, or reviewed and approved, by certified
planners. Concern has been raised about the availability of the
necessary expertise to develop and certify the plans. EPA believes that
there will be sufficient lead time before this regulation is
implemented to expect the market to have developed the CNMP and PNP
planning expertise and infrastructure because, during this period,
CNMPs will be developed under both the USDA voluntary program and EPA's
Round I permitting.
For facilities subject to the requirements of the revised
regulation, EPA anticipates that during the period between the time
this regulation is promulgated and the time it is effective, operators
will be able to anticipate the status of their facilities, and
therefore can begin gathering data that will be needed for the Permit
Nutrient Plan and other requirements, such as soil type, manure
sampling, cropping information, and other data needed to calculate the
allowable manure application rate. (Note: States are supposed to have
adopted their NRCS 590 standard by May 2001.)
EPA also proposes that CAFOs that are new sources may not receive
permit coverage until the PNP is developed. In this case, a complete
application must include the PNP. The owner or operator of a new
facility is expected to design and construct the new facility in a
manner that anticipates the ELG and NPDES requirements for manure
management, rather than incurring the costs of retrofitting an already
constructed facility.
EPA recognizes that some practices such as liners and groundwater
wells for beef and dairy operations may take time to implement. The PNP
will include a schedule for implementing the provisions of the PNP,
including milestones with dates.
[[Page 3073]]
Facilities Constructed After the Proposed Regulation is Published.
EPA is soliciting comment on whether the revised regulations should
apply 60 days after publication of the final rule to facilities that
commence operation after that date, even if they would not be defined
as a CAFO under the existing rules. Although EPA is proposing to delay
for three years the effective date of the proposed regulations for
existing facilities that are not currently defined as CAFOs, it is
considering whether to require all facilities defined as CAFOs under
the final rule that commence operation after the final rule is
published to obtain an NPDES permit and comply with the other
requirements of the final rule. For example, a dry poultry operation or
an animal feeding operation of 501 cattle that is constructed during
the three year period after publication of the final rule might be
required to comply immediately with the revised regulations rather than
remaining outside the scope of the NPDES program until three years
after publication of the final rule.
Requiring newly constructed facilities to obtain permits does not
pose the same problem as requiring all existing AFOs which are not
defined as CAFOs under the current rule to obtain permits immediately
after promulgation of the final rule. Once a new definition of a CAFO
becomes effective, a large number of existing facilities would need a
permit on the same date. EPA expects that most existing facilities will
seek coverage under a general permit. However, EPA and authorized
States will need some time after the final rule is promulgated to
develop those general permits. An existing facility would face the
dilemma of either ceasing operations or discharging without a permit if
it was required to obtain a permit but none was available. By contrast,
new facilities would commence operation over a period of time and
present less of a burden on permit authorities. If a general permit was
not available, issuing individual permits to the smaller number of
newly constructed facilities would present less of a burden. If all
else fails, a newly constructed facility could not commence operation
until it had a permit. This approach would be consistent with EPA's
general approach for regulation of new sources and new dischargers, who
are required to obtain an NPDES permit (and comply with any applicable
NSPS) prior to commencing operation. See 40 CFR 122.29, 124.60(a).
Finally, unlike an existing facility, a newly constructed facility is
in a better position to plan its facility to comply with the revised
regulations.
If EPA did not delay the effective date for facilities that are
constructed after the final rule is published, the rule would address
additional sources sooner. On the other hand it would further
complicate the regulatory structure because it would temporarily create
another category of facilities. EPA solicits comments on whether all
provisions of the rule should be effective 60 days after the final rule
is published for facilities that are constructed after that date.
D. How Many CAFOs are Likely to be Permitted in Each State and EPA
Region?
Tables 9-1 and 9-2 delineate the number of facilities, in each
State and EPA Region, that are expected to be affected by either of
today's proposed two-tier and three-tier structures, respectively. In
both proposed structures, all CAFOs with more than 1,000 AU would be
required to apply for a NPDES permit. The differences lie primarily in
how the middle-sized operations are affected.
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As described in today's preamble, the three-tier structure would
affect more facilities because all AFOs with 300 AU or more would be
required to do something. However, not all would be required to apply
for a permit, and, depending on the vigor with which States and AFOs
seek to avoid the conditions defining these facilities as CAFOs, the
actual number of permittees could be smaller. EPA projects that a
minimum of 4,000 middle-sized facilities and a maximum of 19,000 would
apply for a permit under the three-tier structure. By contrast, the
proposed two-tier structure would require all 13,000 facilities between
500 AU and 1,000 AU to apply for a permit.
Further, the number of small facilities likely to be designated
differs between the two proposed structures. Under the three-tier
structure, EPA expects very few AFOs to be designated, potentially 10
per year nationally. Under the two-tier structure, however, this number
is likely to rise to 50 per year, given that AFOs from 300 AU to 499 AU
have the potential to generate significant quantities of manure that,
if not properly managed, may lead the facility to be a significant
contributor of pollution to the waters.
E. Funding Issues
While most CAFO owners and operators are interested in taking
appropriate measures to protect and preserve the environment, there are
legitimate concerns over the costs of doing so. While EPA's cost
analysis indicates that this rule is affordable, some businesses in
some locales may experience economic stress. (See Section X). Further,
concern has been expressed as to whether facilities below 1,000 AU that
become CAFOs due to the changes in this proposed rulemaking may
potentially cause operations to lose cost-share money available under
EPA's Section 319 Nonpoint Source Program and USDA's Environmental
Quality Incentive Program (EQIP). Once a facility is considered a point
source under NPDES, the operation is not eligible for cost sharing
under the Section 319 nonpoint source program. However, the USDA EQIP
program is in fact available to most facilities, and being a permitted
CAFO is not a reason for exclusion from the EQIP program. EQIP funds
may not be used to pay for construction of storage facilities at
operations with greater than 1,000 USDA animal units; however, EQIP is
available to these facilities for technical assistance and financial
assistance for other practices. One USDA animal unit equals 1,000
pounds of live weight of any given livestock species or any combination
of livestock species. (The approximate number of animal equivalents
would be: 1,000 head of beef; 741 dairy cows; 5,000 swine, 250,000
layers; and 500,000 broilers).
To this end, EPA anticipates that State and Federal Agencies will
facilitate compliance with this rule by providing technical assistance
and funding for smaller CAFOs, as available.
F. What Provisions are Made for Upset and Bypass?
A recurring issue of concern has been whether industry guidelines
should include provisions authorizing noncompliance with effluent
limitations during periods of ``upsets'' or ``bypasses''. An upset,
sometimes called an ``excursion,'' is an unintentional noncompliance
occurring for reasons beyond the reasonable control of the permittee.
It has been argued that an upset provision is necessary in EPA's
effluent limitations because such upsets will inevitably occur even in
properly operated control equipment. Because technology based
limitations require only what the technology can achieve, it is claimed
that liability for such situations is improper. When confronted with
this issue, courts have disagreed on whether an explicit upset
exemption is necessary, or whether upset incidents may be handled
through EPA's exercise of enforcement discretion. Compare Marathon Oil
Co. v. EPA, 564 F.2d 1253 (9th Cir.1977), with Weyerhaeuser v. Costle,
594 F.2d 1223 (8th Cir. 1979). See also Sierra Club v. Union Oil Co.,
813 F.2d 1480 (9th Cir. 1987), American Petroleum Institute v. EPA, 540
F.2d 1023 (10th Cir. 1976), CPC International, Inc. v. Train, 540 F.2d
1320 (8th Cir. 1976), and FMC Corp. v. Train, 539 F.2d 973 (4th Cir.
1976).
A bypass, on the other hand, is an act of intentional noncompliance
during which waste treatment facilities are circumvented because of an
emergency situation. EPA has in the past included bypass provisions in
NPDES permits. EPA has determined that both upset and bypass provisions
should be included in NPDES permits and has promulgated permit
regulations that include upset and bypass permit provisions. See 40 CFR
122.41. The upset provision establishes an upset as an affirmative
defense to prosecution for violation of, among other requirements,
technology-based effluent limitations. The bypass provision authorizes
bypassing to prevent loss of life, personal injury, or severe property
damage. Consequently, although permittees in the offshore oil and gas
industry will be entitled to upset and bypass provisions in NPDES
permits, this regulation does not address these issues.
G. How Would an Applicant Apply for Variances and Modifications to
Today's Proposed Regulation?
Once this regulation is in effect, the effluent limitations must be
applied in all NPDES permits thereafter issued to discharges covered
under this effluent limitations guideline subcategory. The CWA,
however, provides certain variances from BAT and BCT limitations. Under
301(l), the only variance available for discharges from the production
area is an FDF variance under 301(m). For the land application area,
301(g) variances don't apply because EPA is not setting BAT effluent
limitations for the five pollutants to which that provision applies.
301(c) and FDF variances are available for effluent limitations
covering the land application area.
The Fundamentally Different Factors (FDF) variance considers those
facility specific factors which a permittee may consider to be uniquely
different from those considered in the formulation of an effluent
guideline as to make the limitations inapplicable. An FDF variance must
be based only on information submitted to EPA during the rulemaking
establishing the effluent limitations from which the variance is being
requested, or on information the applicant did not have a reasonable
opportunity to submit during the rulemaking process for these effluent
limitations guidelines. If fundamentally different factors are
determined, by the permitting authority (or EPA), to exist, the
alternative effluent limitations for the petitioner must be no less
stringent than those justified by the fundamental difference from those
facilities considered in the formulation of the specific effluent
limitations guideline of concern. The alternative effluent limitation,
if deemed appropriate, must not result in non-water quality
environmental impacts significantly greater than those accepted by EPA
in the promulgation of the effluent limitations guideline. FDF variance
requests with all supporting information and data must be received by
the permitting authority within 180 days of publication of the final
effluent limitations guideline (Publication date here). The specific
regulations covering the requirements for and the administration of FDF
variances are found at 40 CFR 122.21(m)(1), and 40 CFR part 125,
subpart D.
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X. What Are the Costs and Economic Impacts of the Proposed
Revisions?
A. Introduction and Overview
This section presents EPA's estimates of the costs and economic
impacts that would occur as a result of today's proposed regulations.
Costs and economic impacts are evaluated for each commodity sector,
including the beef, veal, heifer, dairy, swine, broiler, turkey and egg
laying sectors. A description of each of the ELG technology options and
the NPDES scenarios considered by EPA, and the rationale for selecting
the proposed BAT Option and NPDES Scenario, are provided in Sections
VII and VIII of this document. Detailed information on estimated
compliance costs are provided in the Development Document for the
Proposed Revisions to the National Pollutant Discharge Elimination
System Regulation and the Effluent Guidelines for Concentrated Animal
Feeding Operations (referred to as the ``Development Document''). EPA's
detailed economic assessment can be found in Economic Analysis of the
Proposed Revisions to the National Pollutant Discharge Elimination
System Regulation and the Effluent Guidelines for Concentrated Animal
Feeding Operations (referred to as ``Economic Analysis''). EPA also
prepared the Environmental and Economic Benefit Analysis of the
Proposed Revisions to the National Pollutant Discharge Elimination
System Regulation and the Effluent Guidelines for Concentrated Animal
Feeding Operations (``Benefits Analysis'') in support of today's
proposal. These documents are available at EPA's website at http://
www.epa.gov/owm/afo.htm.
This section presents EPA's estimate of the total annual
incremental costs and the economic impacts that would be incurred by
the livestock and poultry industry as a result of today's proposed
rule. This section also discusses EPA's estimated effects to small
entities and presents the results of EPA's cost-effectiveness and cost-
benefit analysis. All costs presented in this document are reported in
1999 pre-tax dollars (unless otherwise indicated).
B. Data Collection Activities
1. Sources of Data To Estimate Compliance Costs
As part of the expedited approach to this rulemaking, EPA has
chosen not to conduct an industry-wide survey of all CAFOs using a
Clean Water Act Section 308 questionnaire. Rather, EPA is relying on
existing data sources and expertise provided by the U.S. Department of
Agriculture (USDA), industry, State agriculture extension agencies, and
several land grant universities. More detailed information on the data
used for this analysis can be found in the Development Document and
also the Economic Analysis.
EPA collected and evaluated data from a variety of sources. These
sources include information compiled through EPA site visits to over
100 animal confinement operations and information from industry trade
associations, government agencies, and other published literature. EPA
also received information from environmental groups such as the Natural
Resources Defense Council and the Clean Water Network. The Agency
contacted university experts, state cooperatives and extension
services, and state and EPA regional representatives to identify
facilities for site visits. EPA also attended USDA-sponsored farm tours
and site visits arranged by other groups, as well as industry,
academic, and government conferences.
EPA obtained data and information from several agencies in USDA,
including the National Agricultural Statistics Service (NASS), Natural
Resources Conservation Service (NRCS), the Animal and Plant Health
Inspection Service (APHIS), and the Economic Research Service (ERS).
The collected data include statistical survey information and published
reports.
EPA gathered information from a wide range of published NASS
reports, including annual data summaries for each commodity group.
USDA's NASS is responsible for objectively providing important, usable,
and accurate statistical information and data support services on the
structure and activities of agricultural production in the United
States. Each year NASS conducts surveys and prepares reports covering
virtually every facet of U.S. agricultural production. The primary
sources of data are animal production facilities in the United States.
NASS collects voluntary information using mail surveys, telephone and
in-person interviews, and field observations. NASS is also responsible
for conducting a Census of Agriculture.
EPA's main source of primary USDA data containing farm level
descriptive information is USDA's Census of Agriculture (Census).
USDA's Census is a complete accounting of United States agricultural
production and is the only source of uniform, comprehensive
agricultural data for every county in the nation. The Census is
conducted every 5 years by NASS. The Census includes all farm
operations from which $1,000 or more of agricultural products are
produced and sold. The most recent Census reflects calendar year 1997
conditions. This database is maintained by USDA. Data used for this
analysis were compiled with the assistance of staff at USDA's NASS.
(USDA periodically publishes aggregated data from these databases and
also compiles customized analyses of the data to members of the public
and other government agencies. In providing such analyses, USDA
maintains a sufficient level of aggregation to ensure the
confidentiality of any individual operation's activities or holdings.)
USDA's NRCS publishes the Agricultural Waste Management Field
Handbook, which is an agricultural engineering guidance manual that
explains general waste management principles and provides detailed
design information for particular waste management systems. USDA's
Handbook reports specific design information on a variety of farm
production and waste management practices at different types of
feedlots. The Handbook also reports runoff calculations under normal
and peak precipitation as well as information on manure and bedding
characteristics. EPA used this information to develop its cost and
environmental analyses. NRCS personnel also contributed technical
expertise in the development of EPA's estimates of compliance costs and
environmental assessment framework by providing EPA with estimates of
manure generation in excess of expected crop uptake. This information
is provided in the record that supports this rulemaking.
NRCS also compiled and performed analyses on Census data that EPA
used for its analyses. These data identify the number of feedlots,
their geographical distributions, and the amount of cropland available
to land apply animal manure generated from their confined feeding
operations (based on nitrogen and phosphorus availability relative to
crop need).
EPA gathered information from several reports on the livestock and
poultry industries from the National Animal Health Monitoring System
(NAHMS). USDA's APHIS provides leadership in ensuring the health and
care of animals and plants, improving agricultural productivity and
competitiveness, and contributing to the national economy and public
health. One of its main responsibilities is to enhance the care of
animals. In 1983, APHIS initiated the NAHMS as an information-gathering
program to collect, analyze, and disseminate data on animal health,
management, and productivity. NAHMS conducts national studies to gather
data and generate
[[Page 3080]]
descriptive statistics and information from data collected by other
industry sources.
USDA's ERS provides economic analyses on efficiency, efficacy, and
equity issues related to agriculture, food, the environment, and rural
development to improve public and private decision-making. EPA's
analysis of economic impacts at a model CAFO references a wide range of
published ERS reports and available farm level statistical models. ERS
also maintains farm level profiles of cost and returns compiled from
NASS financial data.
Databases and reports containing the information and data used by
EPA in support of this proposed rule are available in the rulemaking
record.
2. Sources of Data To Estimate Economic Impacts
To estimate economic impacts, EPA used farm level data from USDA,
industry, and land grant universities. The major source of primary USDA
data on farm financial conditions is from the Agricultural Resources
Management Study (ARMS). ARMS is USDA's primary vehicle for data
collection on a broad range of issues about agricultural production
practices and costs. These data provide a national perspective on the
annual changes in the financial conditions of production agriculture.
USDA's ARMS data provide aggregate farm financial data, which EPA
used for its cost impact analysis. The ARMS data provide complete
income statement and balance sheet information for U.S. farms in each
of the major commodity sectors, including those affected by the
proposed regulations. The ARMS financial data span all types of farming
operations within each sector, including full-time and part-time
producers, independent owner operations and contract grower operations,
and confinement and non-confinement production facilities.
ERS provided aggregated data for select representative farms
through special tabulations of the ARMS data that differentiate the
financial conditions among operations by commodity sector, facility
size (based on number of animals on-site) and by major producing region
for each sector. The 1997 ARMS data also provide corresponding farm
level summary information that matches the reported average financial
data to both the total number of farms and the total number of animals
for each aggregated data category. As with the Census data, ERS
aggregated the data provided to EPA to preserve both the statistical
representativeness and confidentiality of the ARMS survey data. ARMS
data used for this analysis are presented in the Economic Analysis and
are available in the rulemaking record.
EPA obtained additional market data on the U.S. livestock and
poultry industries as a whole from a wide variety of USDA publications
and special reports. These include: Financial Performance of U.S.
Commercial Farms, 1991-1994; USDA Baseline Projections 2000, Food
Consumption, Prices and Expenditures, 1970-1997; Agricultural Prices
Annual Summary; annual NASS statistical bulletins for these sectors;
and data and information reported in Agricultural Outlook and ERS's
Livestock, Dairy, and Poultry Situation and Outlook reports. Other
source material is from ERS's cost of production series reports for
some sectors and trade reports compiled by USDA's Foreign Agricultural
Service (FAS). Information on the food processing segments of these
industries is from the U.S. Department of Commerce's Census of
Manufacturers data series. Industry information is also from USDA's
Grain Inspection Packers and Stockyards Administration (GIPSA).
Industry and the associated trade groups also provided information
for EPA's cost and market analyses. In particular, the National
Cattlemen's Beef Association (NCBA) conducted a survey of its
membership to obtain financial statistics specific to cattle feeding
operations. EPA used these and other data to evaluate how well the ARMS
data for beef operations represent conditions at cattle feedyards. EPA
also obtained industry data from the National Milk Producers Federation
(NMPF) and the National Pork Producers Council (NPPC).
EPA also used published research by various land grant universities
and their affiliated research organizations, as well as information
provided by environmental groups.
Databases and reports containing the information and data provided
to and used by EPA in support of this proposed rule are available in
the rulemaking record.
C. Method for Estimating Compliance Costs
1.Baseline Compliance
For the purpose of this analysis, EPA assumes that all CAFOs that
would be subject to the proposed regulations are currently in
compliance with the existing regulatory program (including the NPDES
regulations and the effluent limitations guidelines and standards for
feedlots) and existing state laws and regulations. As a practical
matter, EPA recognizes that this is not true, since only 2,5