[Federal Register: January 12, 2001 (Volume 66, Number 9)]
[Proposed Rules]
[Page 2959-3008]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja01-37]
[[Page 2959]]
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Part II
Environmental Protection Agency
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40 CFR Parts 122 and 412
National Pollutant Discharge Elimination System Permit Regulation and
Effluent Limitations Guidelines and Standards for Concentrated Animal
Feeding Operations; Proposed Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 122 and 412
[FRL-6921-4]
RIN 2040-AD19
National Pollutant Discharge Elimination System Permit Regulation
and Effluent Limitations Guidelines and Standards for Concentrated
Animal Feeding Operations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Today the Environmental Protection Agency proposes to revise
and update two regulations that address the impacts of manure,
wastewater, and other process waters generated by concentrated animal
feeding operations (CAFOs) on water quality. These two regulations are
the National Pollutant Discharge Elimination System (NPDES) provisions
that define which operations are CAFOs and establish permit
requirements, and the Effluent Limitations Guidelines for feedlots
(beef, dairy, swine and poultry subcategories), which establish the
technology-based effluent discharge standards for CAFOs. EPA is
proposing revisions to these regulations to address changes that have
occurred in the animal industry sectors over the last 25 years, to
clarify and improve implementation of CAFO permit requirements, and to
improve the environmental protection achieved under these rules.
Environmental concerns being addressed by this rule include both
ecological and human health effects. Manure from stockpiles, lagoons,
or excessive land application can reach waterways through runoff,
erosion, spills, or via groundwater. These discharges can result in
excessive nutrients (nitrogen, phosphorus, and potassium), oxygen-
depleting substances, and other pollutants in the water. This pollution
can kill fish and shellfish, cause excess algae growth, harm marine
mammals, and contaminate drinking water.
Today's action co-proposes two alternatives for how to structure
the revised NPDES program for CAFOs; the alternatives offer comparable
environmental benefits but differ in their administrative approach. EPA
also requests comment on two other alternatives that the Agency is
considering and may pursue after evaluating the comments.
EPA is also proposing to revise effluent guidelines applicable to
beef, dairy, swine, and poultry operations that are defined as CAFOs,
pursuant to the NPDES revisions. The proposed effluent guidelines
include regulations for both new and existing animal feeding operations
that meet the definition of a CAFO. Today's effluent guidelines
revisions do not alter the requirements for horses, ducks, sheep or
lambs.
DATES: Comments must be received or postmarked on or before midnight
May 2, 2001.
ADDRESSES: Public comments regarding this proposed rule should be
submitted by mail to: Concentrated Animal Feeding Operation Proposed
Rule, Office of Water, Engineering and Analysis Division (4303), USEPA,
1200 Pennsylvania Avenue, NW., Washington, DC 20460. Hand deliveries
(including overnight mail) should be submitted to the Concentrated
Animal Feeding Operation Proposed Rule, USEPA, Waterside Mall, West
Tower, Room 611, 401 M Street, SW., Washington, DC 20460. You also may
submit comments electronically to CAFOS.comments@epa.gov. Please submit
any references cited in your comments. Please submit an original and
three copies of your written comments and enclosures. For additional
information on how to submit comments, see ``SUPPLEMENTARY INFORMATION,
How May I Submit Comments?''
FOR FURTHER INFORMATION CONTACT: For additional technical information
contact Karen Metchis or Jan Goodwin at (202) 564-0766.
SUPPLEMENTARY INFORMATION:
What Entities Are Potentially Regulated by This Action?
This proposed rule would apply to new and existing animal feeding
operations that meet the definition of a concentrated animal feeding
operation, or which are designated by the permitting authority as such.
Concentrated animal feeding operations are defined by the Clean Water
Act as point sources for the purposes of the NPDES program. (33 U.S.C.
Sec. 1362).
The following table lists the types of entities that are
potentially subject to this proposed rule. This table is not intended
to be exhaustive, but rather provides a guide for readers regarding
entities likely to be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility would be regulated by this action, you should carefully
examine the applicability criteria proposed at Sec. 122.23(a)(2) of the
rule. If you have questions regarding the applicability of this action
to a particular entity, consult one of the persons listed for technical
information in the preceding FOR FURTHER INFORMATION CONTACT section.
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Examples of regulated North American Standard Industrial
Category entities Industry Code (NAIC) Classification Codes
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Federal, State and Local Government
Industry........................... ........................... See below............. See below
Operators of animal
production operations that
meet the definition of a
concentrated animal
feeding operation.
Beef cattle feedlots..... 112112................ 0211
Hogs..................... 11221................. 0213
Sheep and goats.......... 1241, 11242........... 0214
General livestock, except 11299................. 0219
dairy and poultry.
Dairy farms.............. 112111, 11212......... 0241
Broilers, fryers, and 11232................. 0251
roaster chickens.
Chicken eggs............. 11231................. 0252
Turkey and turkey eggs... 11233................. 0253
Poultry hatcheries....... 11234................. 0254
Poultry and eggs, NEC.... 11239................. 0259
Ducks.................... 112390................ 0259
Horses and other equines. 11292................. 0272
[[Page 2961]]
Meat packing or poultry
processing companies that
may be a potential co-
permittee because of
substantial operational
control over a CAFO.
Animal Slaughtering and 3116.................. 02
Processing.
Owners or operators of crop
production operations that
may receive CAFO manure
for use as a fertilizer
substitute.
Crop Production.......... 111................... 01
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How May I Review the Public Record?
The record (including supporting documentation) for this proposed
rule is filed under docket number OW-00-27 (proposed rule). The record
is available for inspection from 9 a.m. to 4 p.m. on Monday through
Friday, excluding legal holidays, at the Water Docket, Room EB 57,
USEPA Headquarters, 401 M Street, SW, Washington, DC 20460. For access
to docket materials, please call (202) 260-3027 to schedule an
appointment during the hours of operation stated above.
How May I Submit Comments?
To ensure that EPA can read, understand, and therefore properly
respond to comments, the Agency requests that you cite, where possible,
the paragraph(s) or sections in the preamble, rule, or supporting
documents to which each comment refers. You should use a separate
paragraph for each issue discussed.
If you want EPA to acknowledge receipt of your comments, enclose a
self-addressed, stamped envelope. No faxes will be accepted. Comments
may also be submitted electronically to CAFOS.comments@epa.gov.
Electronic comments must be submitted as an ASCII, WordPerfect 5.1,
WP6.1, or WP8 file avoiding the use of special characters and forms of
encryption. Electronic comments must be identified by the docket number
OW-00-27. EPA will accept comments and data on disks in WordPerfect
5.1, 6.1, or 8 format or in ASCII file format. Electronic comments on
this notice may be filed on-line at many Federal depository libraries.
Table of Contents
I. Legal Authority.
II. Purpose and Summary of the Proposed Regulation.
III. Background.
A. The Clean Water Act.
B. History of EPA Actions to Address CAFOs.
C. Which Requirements Apply to CAFOs.
D. How Do Today's Proposed Revisions Compare to the Unified
National AFO Strategy?
IV. Why is EPA Changing the Effluent Guidelines for Feedlots and the
NPDES CAFO Regulations?
A. Main Reasons for Revising the Existing Regulations.
B. Water Quality Impairment Associated with Manure Discharge and
Runoff.
C. Recent Changes in the Livestock and Poultry Industry.
D. Improve Effectiveness of Regulations.
V. What Environmental and Human Health Impacts are Potentially
Caused by CAFOs?
A. Which Pollutants Do CAFOs Have the Potential to Discharge and
Why are They of Concern?
B. How Do These Pollutants Reach Surface Waters?
C. What are the Potential and Observed Impacts?
VI. What are Key Characteristics of the Livestock and Poultry
Industries?
A. Introduction and Overview.
B. Beef Subcategory.
C. Dairy Subcategory.
D. Hog Subcategory.
E. Poultry Subcategory.
VII. What Changes to the NPDES CAFO Regulations are Being Proposed?
A. Summary of Proposed NPDES Regulations.
B. What Size AFOs Would be Considered CAFOs?
C. Changes to the NPDES Regulations.
D. Land Application of CAFO-generated Manure.
E. What are the Terms of an NPDES Permit?
F. What Type of NPDES Permit is Appropriate for CAFOs?
VIII.What Changes to the Feedlot Effluent Limitations Guidelines are
Being Proposed?
A. Expedited Guidelines Approach.
B. Changes to Effluent Guidelines Applicability.
C. Changes to Effluent Limitations and Standards.
IX. Implementation of Revised Regulations.
A. How do the Proposed Changes Affect State CAFO Programs?
B. How Would EPA's Proposal to Designate CAFOs Affect NPDES
Authorized States?
C. How and When Will the Revised Regulations be Implemented?
D. How Many CAFOs are Likely to be Permitted in Each State and
EPA Region?
E. Funding Issues.
F. What Provisions are Made for Upset and Bypass?
G. How Would an Applicant Apply for Variances and Modifications
to Today's Proposed Regulation?
X. What are the Costs and Economic Impacts of the Proposed
Revisions?
A. Introduction and Overview.
B. Data Collection Activities.
C. Method for Estimating Compliance Costs.
D. Method for Estimating Economic Impacts.
E. Estimated Annual Costs of the Proposed Regulatory Options/
Scenarios.
F. Estimated Economic Impacts of the Proposed Regulatory
Options/Scenarios.
G. Additional Impacts.
H. Cost-Effectiveness Analysis.
I. Cost-Benefit Analysis.
J. Initial Regulatory Flexibility Analysis.
XI. What are the Environmental Benefits of the Proposed Revisions?
A. Non-Water Quality Environmental Impacts.
B. Quantitative and Monetized Benefits.
XII. Public Outreach.
A. Introduction and Overview.
B. Joint USDA/EPA Unified AFO Strategy Listening Sessions.
C. Advisory Committee Meeting.
D. Farm Site Visits.
E. Industry Trade Associations.
F. CAFO Regulation Workgroup.
G. Small Business Advocacy Review Panel.
XIII. Administrative Requirements.
A. Executive Order 12866: ``Regulatory Planning and Review''.
B. Regulatory Flexibility Act (RFA) as Amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5
U.S.C. 601 et seq.
C. Unfunded Mandates Reform Act.
D. Executive Order 13045: ``Protection of Children from
Environmental Health Risks and Safety Risks''.
E. Executive Order 13084: Consultation and Coordination with
Indian Tribal Governments.
F. Paperwork Reduction Act.
G. Executive Order 13132: ``Federalism''.
H. Executive Order 12898: ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations''.
I. National Technology Transfer and Advancement Act.
XIV. Solicitation of Comments.
A. Specific Solicitation of Comment and Data.
B. General Solicitation of Comment.
I. Legal Authority
Today's proposed rule is issued under the authority of sections
301, 304, 306, 307, 308, 402, and 501 of the Clean
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Water Act (CWA), 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, and
1361.
II. Purpose and Summary of the Proposed Regulation
Today, the Environmental Protection Agency proposes to revise and
update two regulations that address the impacts on water quality from
manure, wastewater, and other process waters generated by concentrated
animal feeding operations (CAFOs). The National Pollutant Discharge
Elimination System (NPDES) provisions in 40 CFR Part 122 define which
operations are CAFOs and establish permit requirements for those
operation. The Effluent Limitations Guidelines (ELG), or effluent
guidelines, for feedlots in 40 CFR Part 412 establish technology-based
effluent discharge standards that are applied to CAFOs. Both
regulations were originally promulgated in the 1970s. EPA is proposing
revisions to these regulations to address changes that have occurred in
the animal industry sectors over the last 25 years, to clarify and
improve implementation of CAFO permit requirements, and to improve the
environmental protection achieved under these rules.
Environmental concerns being addressed by this rule include both
ecological and human health effects. Manure from stockpiles, lagoons,
or excessive land application rates can reach waterways through runoff,
erosion, spills, or via groundwater. These discharges can result in
excessive nutrients (nitrogen, phosphorus, and potassium), oxygen-
depleting substances, and other pollutants in the water. This pollution
can kill fish and shellfish, cause excess algae growth, harm marine
mammals, and contaminate drinking water.
On October 30, 1989, Natural Resources Defense Council, Inc., and
Public Citizen, Inc., filed an action against EPA in which they
alleged, among other things, that EPA had failed to comply with CWA
section 304(m). Natural Resources Defense Council, Inc., et al. v.
Reilly, Civ. No. 89-2980 (RCL) (D.D.C.). Plaintiffs and EPA agreed to a
settlement of that action in a consent decree entered on January 31,
1992. The consent decree, which has been modified several times,
established a schedule by which EPA is to propose and take final action
for eleven point source categories identified by name in the decree and
for eight other point source categories identified only as new or
revised rules, numbered 5 through 12. After completing a preliminary
study of the feedlots industry under the decree, EPA selected the swine
and poultry portion of the feedlots industry as the subject for New or
Revised Rule #8, and the beef and dairy portion of that industry as the
subject for New or Revised Rule #9. Under the decree, as modified, the
Administrator was required to sign a proposed rule for both portions of
the feedlots industry on or before December 15, 2000, and must take
final action on that proposal no later than December 15, 2002. As part
of EPA's negotiations with the plaintiffs regarding the deadlines for
this rulemaking, EPA entered into a settlement agreement dated December
6, 1999, under which EPA agreed, by December 15, 2000, to also propose
to revise the existing NPDES permitting regulations under 40 C.F.R.
part 122 for CAFOs. EPA also agreed to perform certain evaluations,
analyses or assessments and to develop certain preliminary options in
connection with the proposed CAFO rules. (The Settlement Agreement
expressly provides that nothing in the Agreement requires EPA to select
any of these options as the basis for its proposed rule.)
The existing regulation defines facilities with 1,000 animal units
(``AU'') or more as CAFOs. The regulation also states that facilities
with 300-1000 AU are CAFOs if they meet certain conditions. The term AU
is a measurement established in the 1970 regulations that attempted to
equalize the characteristics of the wastes among different animal
types.
Today's proposals presents two alternatives for how to structure
the revised NPDES program for CAFOs. The first alternative is a ``two-
tier structure'' that simplifies the definition of CAFOs by
establishing a single threshold for each animal sector. This
alternative would establish a single threshold at the equivalent of 500
AU above which operations would be defined as CAFOs and below which
facilities would become CAFOs only if designated by the permit
authority. The 500 AU equivalent for each animal sector would be as
follows.
500 cattle excluding mature dairy or veal cattle
500 veal cattle
350 mature dairy cattle (whether milked or dry)
1,250 mature swine weighing over 55 pounds
5,000 immature swine weighing 55 pounds or less
50,000 chickens
27,500 turkeys
2,500 ducks
250 horses
5,000 sheep or lambs
The second proposal would retain the ``three-tier structure'' of
the existing regulation. Under this alternative, all operations with
1,000 AU or more would be defined as CAFOs; those with 300 AU to 1,000
AU would be CAFOs only if they meet certain conditions or if designated
by the permit authority; and those with fewer than 300 AU would only be
CAFOs if designated by the permit authority. These conditions are
detailed in section VII of this preamble and differ from those in the
current rule. Facilities with 300 AU to 1,000 AU would certify that
they do not meet the conditions for being defined as a CAFO or apply
for a permit. The 300 AU and 1,000 AU equivalent number of animals for
each sector would be as follows:
------------------------------------------------------------------------
1,000 AU 300 AU
equivalent equivalent
Animal type (no. of (no. of
animals) animals)
------------------------------------------------------------------------
Cattle excluding mature dairy or veal 1,000 300
cattle.................................
Veal.................................... 1,000 300
Mature Dairy Cattle..................... 700 200
Swine weighing more than 55 pounds...... 2,500 750
Swine weighing 55 pounds or less........ 10,000 3,000
Chickens................................ 100,000 30,000
Turkeys................................. 55,000 16,500
Ducks................................... 5,000 1,500
Horses.................................. 500 150
Sheep or Lambs.......................... 10,000 3,000
------------------------------------------------------------------------
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The Agency is also taking comment on two other alternatives that
the Agency is considering and may pursue after evaluating comments.
Today's proposal would also expand the regulatory definition of
CAFOs to include all types of poultry operations regardless of the type
of manure handling system or watering system they use, and also would
include standalone immature swine and heifer operations.
Under the two-tier proposal, EPA is proposing to simplify the
criteria for being designated as a CAFO by eliminating two specific
criteria that have proven difficult to implement, the ``direct
contact'' criterion and the ``man made device'' criterion. Under the
three-tier proposal, EPA is proposing to retain those criteria for
designating operations which have less than 300 AU. Both proposals
retain the existing requirement for the permit authority to consider a
number of factors to determine whether the facility is a significant
contributor of pollution to waters of the U.S., and the requirement for
an on-site inspection prior to designation. EPA is also proposing to
clarify that EPA has the authority to designate CAFOs both in states
where EPA is the permit authority and in States with NPDES authorized
programs.
EPA is proposing to eliminate the 25-year, 24-hour storm event
permit exclusion and to impose a broader, more explicit duty for all
CAFOs to apply for a permit (with one exception as described below).
Under the current regulations, facilities are excluded from being
defined as, and thus subject to permitting as, CAFOs if they discharge
only in the event of a 25-year, 24-hour storm. This exclusion has
proven to be problematic in practice, as described below, and
ultimately unnecessary. There are many operations that currently may be
avoiding permitting by an inappropriate reliance on this exclusion. The
Agency believes there is no reason to retain this exclusion from the
definition of a CAFO. However, EPA is proposing to retain the 25-year,
24-hour storm standard as a design standard in the effluent guidelines
for certain sectors (specifically, the beef and dairy sectors). CAFOs
in those sectors would need to obtain permits, but the permits would
allow certain discharges as long as the facility met the 25-year, 24-
hour storm design standard.
In sum, under today's proposal, all operations that meet the
definition of a CAFO under either of the two alternative structures (as
well as all operations that are designated as CAFOs) would be required
to apply for a permit. There would, however, be one exception to this
requirement, as described in more detail below: If the operator could
demonstrate to the permitting authority that the facility has ``no
potential to discharge,'' then a permit application and a permit would
not be required.
Under the two-tier structure, the net effect of the revisions for
determining which facilities are CAFOs is to require approximately
26,000 operations to apply for a NPDES permit. Under the three-tier
structure, EPA estimates that approximately 13,000 operations would be
required to apply for a permit, and an additional 26,000 operations
could either certify that they are not a CAFO or apply for a permit.
Under the existing regulation, EPA estimates that about 12,000
facilities should be permitted but only 2,530 have actually applied for
a permit.
Today's proposal would clarify the definition of a CAFO as
including both the production areas (animal confinement areas, manure
storage areas, raw materials storage areas and waste containment areas)
and the land application areas that are under the control of the CAFO
owner or operator. As the industry trend is to larger, more specialized
feedlots with less cropland needing the manure for fertilizer, EPA is
concerned that manure is being land applied in excess of agricultural
uses and, therefore, being managed as a waste product, and that this
practice is causing runoff or leaching to waters of the U.S. The permit
would address practices at the production area as well as the land
application area, and would impose record keeping and other
requirements with regard to transfer of manure off-site.
EPA is further proposing to clarify that entities that exercise
``substantial operational control'' over the CAFO are ``operators'' of
the CAFO and thus would need to obtain a permit along with the CAFO
owner or operator. The trend toward specialized animal production under
contract with processors, packers and other integrators has
increasingly resulted in concentrations of excess manure beyond
agricultural needs in certain geographic areas. Especially in the
poultry and swine sector, the processor provides the animals, feed,
medication and/or specifies growing practices. EPA believes that
clarifying that both parties are liable for compliance with the terms
of the permit as well as responsible for the excess manure generated by
CAFOs will lead to better management of manure.
The proposed effluent guidelines revisions would apply only to
beef, dairy, swine, poultry and veal operations that are defined or
designated as CAFOs under either of the two alternative structures and
that are above the threshold for the effluent guideline. For those
CAFOs below the threshold for being subject to the effluent guidelines,
the permit writer would use best professional judgment (BPJ) to develop
the site-specific permit conditions.
Today's proposed effluent guidelines revisions would not alter the
existing effluent guideline regulations for horses, ducks, sheep or
lambs. In these sectors, only facilities with 1,000 AU or more are
subject to the effluent guidelines. Permits for operations in these
subcategories with fewer than 1,000 AU would continue to be developed
based on the best professional judgement of the permit writer.
The proposed effluent guidelines regulations for beef, dairy,
swine, poultry and veal operations will establish the Best Practicable
Control Technology (BPT), Best Conventional Pollutant Control
Technology (BCT), and the Best Available Technology (BAT) limitations
as well as New Source Performance Standards, including specific best
management practices which ensure that manure storage and handling
systems are inspected and maintained adequately. A description of these
requirements is in Section III.
Under the BPT requirements for all of the subcategories, EPA is
proposing to require zero discharge from the production area except
that an overflow due to catastrophic or chronic storms would be allowed
if the CAFO met a certain design standard for its containment
structures. If a CAFO uses a liquid manure handling system, the storage
structure or lagoon would be required to be designed, constructed and
maintained to capture all process wastewater and manure, plus all the
storm water runoff from the 25-year, 24-hour storm.
The proposed BPT limitations also include specific requirements on
the application of manure and wastewater to land that is owned or under
the operational control of the CAFO. EPA is proposing to require that
CAFOs apply their manure at a rate calculated to meet the requirements
of the crop for either nitrogen or phosphorus (depending on the soil
conditions for phosphorus). Livestock manure tends to be phosphorus
rich, meaning that if manure is applied to meet the nitrogen
requirements of a crop, then phosphorus is being applied at rates
higher than needed by the crop. Repeated application of manure on a
nitrogen basis may build up phosphorus levels in
[[Page 2964]]
the soil, and potentially result in saturation, thus contributing to
the contamination of surface waters through erosion, snow melt and
rainfall events. Therefore, EPA is also proposing that manure must be
applied to cropland at rates not to exceed the crop requirements for
nutrients and the ability of the soil to absorb any excess phosphorus.
BPT establishes specific record keeping requirements associated with
ensuring the achievement of the zero discharge limitation for the
production area and that the application of manure and wastewater is
done in accordance with land application requirements. EPA also
proposes to require the CAFO operator to maintain records of any excess
manure that is transported off-site.
BAT limitations for the beef and dairy subcategories would include
all of the BPT limitations described above and, in addition, would
require CAFOs to achieve zero discharge to ground water beneath the
production area that has a direct hydrologic connection to surface
water. In addition, the proposed BAT requirements for the swine, veal
and poultry subcategories would eliminate the provision for overflow in
the event of a chronic or catastrophic storm. CAFOs in the swine, veal
and poultry subcategories typically house their animals under roof
instead of in open areas, thus avoiding or minimizing the runoff of
contaminated storm water and the need to contain storm water.
EPA is also proposing to revise New Source Performance Standards
(NSPS) based on the same technology requirements as BAT for the beef
and dairy subcategories. For the swine, veal and poultry subcategories,
EPA proposes revised NSPS based on the same technology as BAT with the
additional requirement that there be no discharge of pollutants through
ground water beneath the production area that has a direct hydrological
connection to surface waters. Both the BAT and NSPS requirements have
the same land application and record keeping requirements as proposed
for BPT.
Today's proposal would make several other changes to the existing
regulation, which would:
require the CAFO operator to develop a Permit Nutrient
Plan for managing manure and wastewater at both the production area and
the land application area;
require certain record keeping, reporting, and monitoring;
revise the definition of an animal feeding operation (AFO)
to more clearly exclude areas such as pastures and rangeland that
sustain crops or forage during the entire time that animals are
present;
eliminate the mixed-animal type calculation for
determining which AFOs are CAFOs; and
require permit authorities to include the following
conditions in permits to:
(1) require retention of a permit until proper facility closure;
(2) establish the method for operators to calculate the allowable
manure application rate; (3) specify restrictions on timing and methods
of application of manure and wastewater to assure use for an
agricultural purpose (e.g., certain applications to frozen, snow
covered or saturated land) to prevent impairment of water quality; (4)
address risk of contamination via groundwater with a direct
hydrological connection to surface water; (5) address the risk of
improper manure application off-site by either requiring that the CAFO
operator obtain from off-site recipients a certification that they are
land applying CAFO manure according to proper agricultural practices or
requiring the CAFO to provide information to manure recipients and keep
appropriate records of off-site transfers, or both; and (6) establish
design standards to account for chronic storm events.
Today's proposal would also:
clarify EPA's interpretation of the agricultural storm
water exemption and its implications for land application of manure
both at the CAFO and off-site; and
clarify application of the CWA to dry weather discharges
at AFOs.
EPA is seeking comment on the entire proposal. Throughout the
preamble, EPA identifies specific components of the proposed rule on
which comment is particularly sought.
III. Background
A. The Clean Water Act
Congress passed the Federal Water Pollution Control Act (1972),
also known as the Clean Water Act (CWA), to ``restore and maintain the
chemical, physical, and biological integrity of the nation's waters.''
(33 U.S.C. Sec. 1251(a)). The CWA establishes a comprehensive program
for protecting our nation's waters. Among its core provisions, the CWA
prohibits the discharge of pollutants from a point source to waters of
the U.S. except as authorized by a National Pollutant Discharge
Elimination System (NPDES) permit. The CWA establishes the NPDES permit
program to authorize and regulate the discharges of pollutants to
waters of the U.S. EPA has issued comprehensive regulations that
implement the NPDES program at 40 CFR Part 122. The CWA also provides
for the development of technology-based and water quality-based
effluent limitations that are imposed through NPDES permits to control
discharges of pollutants.
1. The National Pollutant Discharge Elimination System (NPDES) Permit
Program
Under the NPDES permit program, all point sources that directly
discharge pollutants to waters of the U.S. must apply for a NPDES
permit and may only discharge pollutants in compliance with the terms
of that permit. Such permits must include any nationally established,
technology based effluent discharge limitations (i.e., effluent
guidelines) (discussed below, in subsection III.A.2). In the absence of
national effluent limitations, NPDES permit writers must establish
technology based limitations and standards on a case-by-case basis,
based on their ``best professional judgement (BPJ).''
Water quality-based effluent limits also are included in a permit
where technology-based limits are not sufficient to ensure compliance
with State water quality standards that apply to the receiving water or
where required to implement a Total Maximum Daily Load (TMDL). Permits
may also include specific best management practices to achieve effluent
limitations and standards, typically included as special conditions. In
addition, NPDES permits normally include monitoring and reporting
requirements, and standard conditions (i.e., conditions that apply to
all NPDES permits, such as the duty to properly operate and maintain
equipment and treatment systems).
NPDES permits may be issued by EPA or a State, Territory, or Tribe
authorized by EPA to implement the NPDES program. Currently, 43 States
and the Virgin Islands are authorized to administer the base NPDES
program (the base program includes the federal requirements applicable
to AFOs and CAFOs). Alaska, Arizona, the District of Columbia, Idaho,
Maine, Massachusetts, New Hampshire, and New Mexico are not currently
authorized to implement the NPDES program. In addition, Oklahoma, while
authorized to administer the NPDES program, does not have CAFO
regulatory authority. No tribe is currently authorized.
A NPDES permit may be either an individual permit tailored for a
single facility or a general permit applicable to multiple facilities
within a specific category. Prior to the issuance of an individual
permit, the owner or operator submits a permit application with
facility-specific information to the
[[Page 2965]]
permit authority, who reviews the information and prepares a draft
permit. The permit authority prepares a fact sheet explaining the draft
permit, and publishes the draft permit and fact sheet for public review
and comment. Following consideration of public comments by the permit
authority, a final permit is issued. Specific procedural requirements
apply to the modification, revocation and reissuance, and termination
of a NPDES permit. NPDES permits are subject to a maximum 5-year term.
General NPDES permits are available to address a category of
discharges that involve similar operations with similar wastes. General
permits are not developed based on facility-specific information.
Instead, they are developed based on data that characterize the type of
operations being addressed and the pollutants being discharged. Once a
general permit is drafted, it is published for public review and
comment accompanied by a fact sheet that explains the permit. Following
EPA or State permit authority consideration of public comments, a final
general permit is issued. The general permit specifies the type or
category of facilities that may obtain coverage under the permit. Those
facilities that fall within this category then must submit a ``notice
of intent'' (NOI) to be covered under the general permit to gain permit
coverage. [Under 40 CFR 122.28(b)(2)(vi), the permit authority also may
notify a discharger that it is covered under a general permit even
where that discharger has not submitted a notice of intent to be
covered by the permit.] EPA anticipates that the Agency and authorized
States will use general NPDES permits to a greater extent than
individual permits to address CAFOs.
2. Effluent Limitation Guidelines and Standards
Effluent limitation guidelines and standards (which we also refer
to today as ``effluent guidelines'' or ``ELG'') are national
regulations that establish limitations on the discharge of pollutants
by industrial category and subcategory. These limitations are
subsequently incorporated into NPDES permits. The effluent guidelines
are based on the degree of control that can be achieved using various
levels of pollution control technology, as outlined below. The effluent
guidelines may also include non-numeric effluent limitations in the
form of best management practices requirements or directly impose best
management practices as appropriate.
a. Best Practicable Control Technology Currently Available (BPT)--
Section 304(b)(1) of the CWA. In the guidelines for an industry
category, EPA defines BPT effluent limits for conventional, toxic, and
non-conventional pollutants. In specifying BPT, EPA looks at a number
of factors. EPA first considers the cost of achieving effluent
reductions in relation to the effluent reduction benefits. The Agency
also considers the age of the equipment and facilities, the processes
employed and any required process changes, engineering aspects of the
control technologies, non-water quality environmental impacts
(including energy requirements), and such other factors as the Agency
deems appropriate (CWA 304(b)(1)(B)). Traditionally, EPA establishes
BPT effluent limitations based on the average of the best performances
of facilities within the industry of various ages, sizes, processes or
other common characteristics. Where existing performance is uniformly
inadequate, EPA may require higher levels of control than currently in
place in an industrial category if the Agency determines that the
technology can be practically applied.
b. Best Available Technology Economically Achievable (BAT)--Section
304(b)(2) of the CWA. In general, BAT effluent limitations represent
the best existing economically achievable performance of direct
discharging plants in the industrial subcategory or category. The
factors considered in assessing BAT include the cost of achieving BAT
effluent reductions, the age of equipment and facilities involved, the
processes employed, engineering aspects of the control technology,
potential process changes, non-water quality environmental impacts
(including energy requirements), and such factors as the Administrator
deems appropriate. The Agency retains considerable discretion in
assigning the weight to be accorded to these factors. An additional
statutory factor considered in setting BAT is economic achievability.
Generally, the achievability is determined on the basis of the total
cost to the industrial subcategory and the overall effect of the rule
on the industry's financial health. BAT limitations may be based on
effluent reductions attainable through changes in a facility's
processes and operations. As with BPT, where existing performance is
uniformly inadequate, BAT may be based on technology transferred from a
different subcategory within an industry or from another industrial
category. BAT may be based on process changes or internal controls,
even when these technologies are not common industry practice.
c. Best Conventional Pollutant Control Technology (BCT)--Section
304(b)(4) of the CWA. The 1977 amendments to the CWA required EPA to
identify effluent reduction levels for conventional pollutants
associated with BCT technology for discharges from existing industrial
point sources. BCT is not an additional limitation, but replaces Best
Available Technology (BAT) for control of conventional pollutants. In
addition to other factors specified in Section 304(b)(4)(B), the CWA
requires that EPA establish BCT limitations after consideration of a
two part ``cost-reasonableness'' test. EPA explained its methodology
for the development of BCT limitations in July 1986 (51 FR 24974).
Section 304(a)(4) designates the following as conventional pollutants:
biochemical oxygen demand (BOD5), total suspended solids
(TSS), fecal coliform, pH, and any additional pollutants defined by the
Administrator as conventional. The Administrator designated oil and
grease as an additional conventional pollutant on July 30, 1979 (44 FR
44501).
d. New Source Performance Standards (NSPS)--Section 306 of the CWA.
NSPS reflect effluent reductions that are achievable based on the best
available demonstrated control technology. New facilities have the
opportunity to install the best and most efficient production processes
and wastewater treatment technologies. As a result, NSPS should
represent the greatest degree of effluent reduction attainable through
the application of the best available demonstrated control technology
for all pollutants (i.e., conventional, non-conventional, and priority
pollutants). In establishing NSPS, EPA is directed to take into
consideration the cost of achieving the effluent reduction and any non-
water quality environmental impacts and energy requirements.
B. History of EPA Actions to Address CAFOs
EPA's regulation of wastewater and manure from CAFOs dates to the
1970s. The existing NPDES CAFO regulations were issued on March 18,
1976 (41 FR 11458). The existing national effluent limitations
guideline and standards for feedlots were issued on February 14, 1974
(39 FR 5704).
By 1992, it became apparent that the regulation and permitting of
CAFOs needed review due to changes in the livestock industry,
specifically the consolidation of the industry into fewer, but larger
operations. In 1992, the Agency established a workgroup
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composed of representatives of State agencies, EPA regional staff and
EPA headquarters staff to address issues related to CAFOs. The
workgroup issued The Report of the EPA/State Feedlot Workgroup in 1993.
One of the workgroup's recommendations was that the Agency should
provide additional guidance on how CAFOs are regulated under the NPDES
permit program. The Agency issued such guidance, entitled Guide Manual
On NPDES Regulations For Concentrated Animal Feeding Operations, in
December 1995.
Massive spills of hog manure (see Section V.B.1.c) and Pfiesteria
outbreaks (see Section V.C.1.a.), continued industry consolidation, and
increased public awareness of the potential environmental and public
health impacts of animal feeding operations resulted in EPA taking more
comprehensive actions to improve existing regulatory and voluntary
programs. In 1997, dialogues were initiated between EPA and the poultry
and pork livestock sectors. On December 12, 1997, the Pork Dialogue
participants, including representatives from the National Pork
Producers Council (NPPC) and officials from EPA, U.S. Department of
Agriculture (USDA), and several States, issued a Comprehensive
Environmental Framework for Pork Production Operations. Continued
discussions between EPA and the NPPC led to development of a Compliance
Audit Program Agreement (CAP Agreement) that is available to any pork
producer who participates in NPPC's environmental assessment program.
The CAP Agreement for pork producers was issued by the Agency on
November 24, 1998. Under the agreement, pork producers that voluntarily
have their facilities inspected are eligible for reduced penalties for
any CWA violations discovered and corrected. The Poultry Dialogue
produced a report in December 1998 that established a voluntary program
focused on promoting protection of the environment and water quality
through implementation of litter management plans and other actions:
Environmental Framework and Implementation Strategy: A Voluntary
Program Developed and adopted by the Poultry Industry, Adopted at the
December 8-9, 1998 meeting of the Poultry Industry Environmental
Dialogue (U.S. Poultry and Egg Association).
President Clinton and Vice President Gore announced the Clean Water
Action Plan (CWAP) on February 19, 1998. The CWAP describes the key
water quality problems our nation faces today and suggests both a broad
plan and specific actions for addressing these problems. The CWAP
indicated that polluted runoff is the greatest source of water quality
problems in the United States today and that stronger polluted runoff
controls are needed. The CWAP goes on to state that one important
aspect of such controls is the expansion of CWA permit controls,
including those applicable to large facilities such as CAFOs.
The CWAP included two key action items that address animal feeding
operations (AFOs). First, it stated that EPA should publish and, upon
considering public comments, implement an AFO strategy for important
and necessary EPA actions on standards and permits. EPA published a
Draft Strategy for Addressing Environmental and Public Health Impacts
from Animal Feeding Operations in March 1998 (draft AFO Strategy). In
accordance with EPA's draft AFO Strategy, EPA's Office of Enforcement
and Compliance Assurance (OECA) also issued the Compliance Assurance
Implementation Plan for Animal Feeding Operations in March 1998. This
plan describes compliance and enforcement efforts being undertaken to
ensure that CAFOs comply with existing CWA regulations. Second, the
CWAP stated that EPA and USDA should jointly develop a unified national
strategy to minimize the water quality and public health impacts of
AFOs. EPA and USDA jointly published a draft Unified National Strategy
for Animal Feeding Operations (hereinafter Unified National AFO
Strategy) on September 21, 1998 and, after sponsoring and participating
in 11 public listening sessions and considering public comments on the
draft strategy, published a final Unified National AFO Strategy on
March 9, 1999. This joint strategy was generally consistent with and
superceded EPA's draft AFO Strategy.
The Unified National AFO Strategy establishes national goals and
performance expectations for all AFOs. The general goal is for AFO
owners and operators to take actions to minimize water pollution from
confinement facilities and land where manure is applied. To accomplish
this goal, the AFO Strategy established a national performance
expectation that all AFOs should develop and implement technically
sound, economically feasible, and site-specific comprehensive nutrient
management plans (CNMPs) to minimize impacts on water quality and
public health.
The Unified National AFO Strategy identified seven strategic issues
that should be addressed to better resolve concerns associated with
AFOs. These include: (1) fostering CNMP development and implementation;
(2) accelerating voluntary, incentive-based programs; (3) implementing
and improving the existing regulatory program; (4) coordinating
research, technical innovation, compliance assistance, and technology
transfer; (5) encouraging industry leadership; (6) increasing data
coordination; and (7) establishing better performance measures and
greater accountability. Today's proposed rule primarily addresses
strategic issue three: implementing and improving the existing AFO
regulatory program.
The Unified National AFO Strategy observed that, for the majority
of AFOs (estimated in the AFO Strategy as 95 percent), voluntary
efforts founded on locally led conservation, education, and technical
and financial assistance would be the principal approach for assisting
owners and operators in developing and implementing site-specific CNMPs
and reducing water pollution and public health risks. Future regulatory
programs would focus permitting and enforcement priorities on high risk
operations, which were expected to constitute the remaining 5 percent.
EPA estimates that today's proposal would result in permit coverage for
approximately 7 percent of AFOs under the two-tier structure, and
between 4.5 percent and 8.5 percent of AFOs under the three-tier
structure.
Following publication of the Unified National AFO Strategy, EPA
issued on August 6, 1999 the Draft Guidance Manual and Example NPDES
Permit for CAFOs for a 90-day public comment period. EPA undertook
development of this new guidance manual in order to provide permit
writers with improved guidance on applying the existing regulations to
a changing industry. While the guidance manual has not been finalized,
many of the issues discussed in the draft guidance manual are also
addresses in today's preamble. EPA expects to issue final, revised
permitting guidance to reflect the revised CAFO regulations when they
are published in final form.
C. What Requirements Apply to CAFOs?
The discussion below provides an overview of the scope and
requirements imposed under the existing NPDES CAFO regulations and
feedlot effluent limitations guidelines. It also explains the
relationship of these two regulations, and summarizes other federal and
State regulations that potentially affect AFOs.
[[Page 2967]]
1. What are the Scope and Requirements of the Existing NPDES
Regulations for CAFOs?
Under existing 40 CFR 122.23, an operation must be defined as an
animal feeding operation (AFO) before it can be defined as a
concentrated animal feeding operation (CAFO). The term ``animal feeding
operation'' is defined in EPA regulations as a ``lot or facility''
where animals ``have been, are, or will be stabled or confined and fed
or maintained for a total of 45 days or more in any 12 month period and
crops, vegetation[,] forage growth, or post-harvest residues are not
sustained in the normal growing season over any portion of the lot or
facility.'' This definition is intended to enable the NPDES authorized
permitting authority to regulate facilities where animals are stabled
or confined and waste is generated.
Once a facility meets the AFO definition, its size, based upon the
total numbers of animals confined, is a key factor in determining
whether it is a CAFO. To define these various livestock sectors, EPA
established the concept of an ``animal unit'' (AU), which varies
according to animal type. Each livestock type, except poultry, is
assigned a multiplication factor to facilitate determining the total
number of AU at a facility with more than one animal type. These
multiplication factors are as follows: Slaughter and feeder cattle--
1.0, Mature dairy cattle--1.4, Swine weighing over 25 kilograms
(approximately 55 pounds)--0.4, Sheep--0.1, Horses--2.0. There are
currently no animal unit conversions for poultry operations. The
regulations, however, define the total number of animals (subject to
waste handling technology restrictions) for specific poultry types that
make these operations subject to the regulation. (40 CFR Part 122,
Appendix B).
Under the existing regulations, an animal feeding operation is a
concentrated animal feeding operation if it meets the regulatory CAFO
definition or if it is designated as a CAFO. The regulations
automatically define an AFO to be a CAFO if either more than 1,000 AU
are confined at the facility, or more than 300 AU are confined at the
facility and: (1) pollutants are discharged into navigable waters
through a manmade ditch, flushing system, or other similar man-made
device; or (2) pollutants are discharged directly into waters that
originate outside of and pass over, across, or through the facility or
come into direct contact with the confined animals. However, no animal
feeding operation is defined as a CAFO if it discharges only in the
event of a 25-year, 24-hour storm event (although it sill may be
designated as a CAFO). Although they are not automatically defined as a
CAFO, facilities still may be designated as a CAFO even if they
discharge only in a 25-year, 24-hour storm event.
An AFO can also become a CAFO through designation. The NPDES
permitting authority may, on a case-by-case basis, after conducting an
on-site inspection, designate any AFO as a CAFO based on a finding that
the facility ``is a significant contributor of pollution to the waters
of the United States.'' (40 CFR 122.23(c)). Pursuant to 40 CFR
122.23(c)(1)(i)-(v) the permitting authority shall consider several
factors making this determination, including: (1) the size of the
operation, and amount of waste reaching waters of the U.S.; (2) the
location of the operation relative to waters of the U.S.; (3) the means
of conveyance of animal waste and process waste waters into waters of
the U.S.; and (4) the slope, vegetation, rainfall and other factors
affecting frequency of discharge. A facility with 300 animal units or
less, however, may not be designated as a CAFO unless pollutants are
discharged into waters of the U.S. through a man-made ditch, flushing
system, or other similar man-made device, or are discharged directly
into waters of the U.S. which originate outside of the facility and
pass over, across or through the facility or otherwise come into direct
contact with the animals confined in the operation.
Once defined or designated as a CAFO, the operation is subject to
NPDES permitting. As described above, a permit contains the specific
technology-based effluent limitations (whether based on the effluent
guidelines or BPJ); water quality-based limits if applicable; specific
best management practices; monitoring and reporting requirements; and
other standard NPDES conditions.
2. What are the Scope and Requirements of the Existing Feedlot Effluent
Guidelines?
In 1974, EPA promulgated effluent limitations guidelines applicable
to CAFOs (40 CFR Part 412) and established in those regulations the
technology-based effluent discharge standards for the facilities
covered by the guidelines. The effluent guidelines for the feedlots
point source category have two subparts: Subpart B for ducks, and
Subpart A for all other feedlot animals. Under the existing regulation,
Subpart A covers: beef cattle; dairy cattle; swine; poultry; sheep; and
horses. Further, the effluent guidelines apply only to facilities with
1,000 AU or greater. Today's revisions to the effluent guidelines
affect only the guidelines for the beef, dairy, swine, poultry and veal
subcategories, while the NPDES revisions are applicable to all confined
animal types.
The current feedlot effluent guidelines based on BAT prohibit
discharges of process wastewater pollutants to waters of the U.S.
except when chronic or catastrophic storm events cause an overflow from
a facility designed, constructed, and operated to hold process-
generated wastewater plus runoff from a 25-year, 24-hours storm event.
Animal wastes and other wastewater that must be controlled include: (1)
spillage or overflow from animal or poultry watering systems, washing,
cleaning, or flushing pens, barns, manure pits, or other feedlot
facilities, direct contact swimming, washing, or spray cooling of
animals, and dust control; and (2) precipitation (rain or snow) which
comes into contact with any manure, litter, or bedding, or any other
raw material or intermediate or final material or product used in or
resulting from the production of animals or poultry or direct products
(e.g., milk or eggs). 40 CFR 412.11.
As described above, in those cases where the feedlot effluent
guidelines do not apply to a CAFO (i.e., the operation confines fewer
than 1,000 animal units), the permit writer must develop, for inclusion
in the NPDES permit, technology-based limitations based on best
professional judgement (BPJ).
3. What Requirements May be Imposed on AFOs Under the Coastal Zone Act
Reauthorization Amendments of 1990 (CZARA)?
In the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA),
Congress required States with federally-approved coastal zone
management programs to develop and implement coastal nonpoint pollution
control programs. Thirty-three (33) States and Territories currently
have federally approved Coastal Zone Management programs. Section
6217(g) of CZARA called for EPA, in consultation with other federal
agencies, to develop guidance on ``management measures'' for sources of
nonpoint source pollution in coastal waters. In January 1993, EPA
issued its Guidance Specifying Management Measures for Sources of
Nonpoint Pollution in Coastal Waters which addresses five major source
categories of nonpoint pollution: urban runoff, agriculture runoff,
forestry runoff, marinas and recreational boating, and
hydromodification.
[[Page 2968]]
Within the agriculture runoff nonpoint source category, the EPA
guidance specifically included management measures applicable to all
new and existing ``confined animal facilities.'' The guidance
identifies which facilities constitute large and small confined animal
facilities based solely on the number of animals or animal units
confined (the manner of discharge is not considered). Under the CZARA
guidance: a large beef feedlot contains 300 head or more, a small
feedlot between 50-299 head; a large dairy contains 70 head or more, a
small dairy between 20-69 head; a large layer or broiler contains
15,000 head or more, a small layer or broiler between 5,000-14,999
head; a large turkey facility contains 13,750 head or more, a small
turkey facility between 5,000-13,749 head; and a large swine facility
contains 200 head or more, a small swine facility between 100-199 head.
The thresholds in the CZARA guidance for identifying large and
small confined animal facilities are lower than those established for
defining CAFOs under the current NPDES regulations. Thus, in coastal
States the CZARA management measures potentially apply to a greater
number of small facilities than the existing CAFO definition. Despite
the fact that both the CZARA management measures for confined animal
facilities and the NPDES CAFO regulations address similar operations,
these programs do not overlap or conflict with each other. Any CAFO
facility, defined by 40 CFR Part 122, Appendix B, that has a NPDES CAFO
permit is exempt from the CZARA program. If a facility subject to CZARA
management measures is later designated a CAFO by a NPDES permitting
authority, the facility is no longer subject to CZARA. Thus, an AFO
cannot be subject to CZARA and NPDES permit requirements at the same
time.
EPA's CZARA guidance provides that new confined animal facilities
and existing large confined animal facilities should limit the
discharge of facility wastewater and runoff to surface waters by
storing such wastewater and runoff during storms up to and including
discharge caused by a 25-year, 24-hour frequency storm. Storage
structures should have an earthen or plastic lining, be constructed
with concrete, or constitute a tank. All existing small facilities
should design and implement systems that will collect solids, reduce
contaminant concentrations, and reduce runoff to minimize the discharge
of contaminants in both facility wastewater and in runoff caused by
storms up to and including a 25-year, 24-hour frequency storm. Existing
small facilities should substantially reduce pollutant loadings to
ground water. Both large and small facilities should also manage
accumulated solids in an appropriate waste utilization system. Approved
State CZARA programs have management measures in conformity with this
guidance and enforceable policies and mechanisms as necessary to assure
their implementation.
In addition to the confined animal facility management measures,
the CZARA guidance also includes a nutrient management measure that is
intended to be applied by States to activities associated with the
application of nutrients to agricultural lands (including the
application of manure). The goal of this management measure is to
minimize edge of field delivery of nutrients and minimize the leaching
of nutrients from the root zone.
The nutrient management measures provide for the development,
implementation, and periodic updating of a nutrient management plan.
Such plans should address: application of nutrients at rates necessary
to achieve realistic crop yields; improved timing of nutrient
application; and the use of agronomic crop production technology to
increase nutrient use efficiency. Under this management measure,
nutrient management plans include the following core components: farm
and field maps showing acreage, crops, and soils; realistic yield
expectations for the crops to be grown; a summary of the nutrient
resources available to the producer; an evaluation of field limitations
based on environmental hazards or concerns; use of the limiting
nutrient concept to establish the mix of nutrient sources and
requirements for the crop based on realistic crop expectations;
identification of timing and application methods for nutrients; and
provisions for proper calibration and operation of nutrient application
equipment.
4. How Are CAFOs Regulated By States?
NPDES permits may be issued by EPA or a State authorized by EPA to
implement the NPDES program. Currently, 43 States and the Virgin
Islands are authorized to administer the NPDES program. Oklahoma,
however, has not been authorized to administer the NPDES program for
CAFOs.
To become an authorized NPDES state, the State's requirements must,
at a minimum, be as stringent as the requirements imposed under the
federal NPDES program. States, however, may impose requirements that
are broader in scope or more stringent than the requirements imposed at
the federal level. In States not authorized to implement the NPDES
program, the appropriate EPA Regional office is responsible for
implementing the program.
State efforts to control pollution from CAFOs have been
inconsistent to date for a variety of reasons. Many States have only
recently focused attention on the environmental challenges posed by the
emergence of increasing consolidation of CAFOs into larger and larger
operations. Others have traditionally viewed AFOs as agriculture, and
the reluctance to regulate agriculture has prevented programs from
keeping pace with a changing industry. Many states have limited
resources for identifying which facilities are CAFOs, or which may be
inappropriately claiming the 25-year, 24-hour storm permit exclusion.
Some states with a large number of broiler and laying operations do not
aggressively try to permit these facilities under NPDES because the
technology requirements for these operations in the existing regulation
are outdated.
Another reason States may not have issued NPDES permits to CAFOs is
the concern over potentially causing operations to lose cost-share
money available under EPA's Section 319 Nonpoint Source Program and
other assistance under USDA's Environmental Quality Incentive Program
(EQIP). Once a facility is considered a point source under NPDES, the
operation is not eligible for cost sharing under the Section 319
nonpoint source program. The USDA EQIP program, however, is available
to most facilities, and being a permitted CAFO is not a reason for
exclusion from the EQIP program. Although EQIP funds may not be used to
pay for construction of storage facilities at operations with greater
than 1,000 USDA animal units (USDA uses a different definition of
animal units than EPA); EQIP is available to these facilities for
technical assistance and financial assistance for other practices.
To gather information on State activities concerning AFOs, EPA
assembled information into a report entitled, ``State Compendium:
Programs and Regulatory Activities Related to Animal Feeding
Operations, Final Report,'' dated December 1999, and continues to
update information concerning state operations (see ``Profile of NPDES
Permits and CNMP Permit Requirements for CAFOs,'' updated
periodically). The following discussion draws on information from these
reports.
EPA estimates that, under the existing EPA regulations,
approximately 9,000 operations with more than 1,000 AU are CAFOs and
should be permitted, and
[[Page 2969]]
approximately 4,000 operations with 300 AU to 1,000 AU should be
permitted. However, only an estimated 2,520 CAFOs are currently covered
under either a general permit or an individual permit. The 43 states
authorized to implement the NPDES program for CAFOs have issued
coverage for approximately 2,270 facilities, of which about 1,150
facilities are under general permits and about 1,120 facilities are
under individual permits. Of these states, 32 states administer their
NPDES CAFO program in combination with some other State permit,
license, or authorization program. Often, this additional State
authorization is a construction or operating permit. Eight of the
states regulate CAFOs exclusively under their State NPDES authority,
while three others have chosen to regulate CAFOs solely under State
non-NPDES programs. EPA information indicates that, as of December,
1999, seventeen of the 43 states authorized to administer the NPDES
program for CAFOs have never issued an NPDES permit to a CAFO.
Of the seven states not authorized to administer the NPDES program,
four rely solely on federal NPDES permits to address CAFOs. As of
December 1998, EPA has issued coverage for approximately 250 facilities
under general NPDES permits.
Virtually all NPDES authorized states use the federal CAFO
definition in their State NPDES CAFO program. Most states also use the
federal definition for State non-NPDES CAFO programs. Five States,
however, have developed unique definitions for their non-NPDES
livestock regulatory programs that do not follow the federal
definition. These five States typically base their definition on the
number of animals confined, weight of animals and design capacity of
waste control system, or gross income of agricultural operation. For
example, Alabama's new general State NPDES permit covers all operations
with at least 250 animal units. Similarly, Minnesota issues State (non-
NPDES) feedlot permits to facilities with more than 10 animal units.
Minnesota also issues individual NPDES permits to CAFOs as defined
under the existing federal regulations.
The regulation of CAFOs is challenging, in part, because of the
large number of facilities across the country. There are approximately
376,000 AFOs. Regulating, for example, 5 percent of AFOs would result
in some 18,800 permittees. One way of reducing the administrative
burden associated with permitting such large numbers of facilities is
through the use of general permits. NPDES regulations provide that
general permits may be issued to cover a category of dischargers that
involves similar operations with similar wastes. Operations subject to
the same effluent limitations and operating conditions, and requiring
similar monitoring are the types of facilities most appropriately
regulated under a general permit. EPA and some authorized States are
using general permits to regulate CAFOs, and this trend appears to be
increasing.
As mentioned, seventeen of the 43 States authorized to issue NPDES
CAFO permits have never issued an NPDES permit to a CAFO, although many
regulate CAFOs under non-NPDES programs. Under current regulations, an
animal feeding operation that discharges only in the event of a 25-
year, 24-hour storm event is not considered to meet the definition of a
CAFO (although it may still be designated as a CAFO). EPA believes that
many of these facilities have in fact discharged in circumstance other
than the 25-year/24-hour storm and should be required to obtain a
permit.
The number of non-NPDES permits issued to AFOs greatly exceeds the
number of NPDES permits issued. Although the information may be
incomplete on the number of state permits issued, more than 45,000 non-
NPDES permits or formal authorizations are known to have been issued
through state AFO programs. The non-NPDES State authorizations often
are only operating permits or approvals required for construction of
waste disposal systems. While some impose terms and conditions on
discharges from the CAFO, EPA believes that many would not meet the
standards for approval as NPDES permits. Because these are not NPDES
permits, none meet the requirement for federal enforceability.
Minnesota alone has issued nearly 25,000 State feedlot permits.
Kansas has issued more than 2,400 State permits, of which 1,500 have
been to facilities with more than 300 animal units. Indiana has issued
more than 4,000 letters of approval to AFOs within the State. South
Carolina has issued 2,000 construction permits.
With regard to the discharge standards included in permits, 28
NPDES authorized States have adopted the federal feedlot effluent
guidelines, while five authorized States use a more stringent limit.
These more stringent limits partially or totally prohibit discharges
related to storm events. For example, Arkansas regulations prohibit
discharges from liquid waste management systems, including those
resulting from periods of precipitation greater than the 25-year, 24-
hour storm event. In addition, California and North Carolina rules
provide for no discharge from new waste control structures even during
100 year storms. Numerous State CAFO permit programs also impose
requirements that are broader in scope than the existing federal CAFO
regulations.
Twenty-two States have adopted laws that their environmental
regulations cannot be more restrictive than the specific requirements
in the federal regulations. Should any of these states experience
environmental problems with CAFOs, they must rely on appropriate state
regulations no more stringent than the federal rules.
Thirty-four States explicitly impose at least some requirements
that address land application of manure and wastewater as part of
either their NPDES or non-NPDES program. The most common requirements
among these States is that CAFO manure and wastewater, when managed
through land application, be land applied in accordance with agronomic
rates and that the operator develop and use a waste management plan.
Although some States do not address how agronomic rates should be
determined, many base it on the nitrogen needs of crops, while some
require consideration of phosphorus as well. The complexity of waste
management plans also varies between states. Some states have very
detailed requirements for content of waste management plans, while
others do not. Generally, CAFO operators are asked to address estimates
of annual nutrient value of waste, schedules for emptying and applying
wastes, rates and locations for applying wastes, provisions for
determining agronomic rates, and provisions for conducting required
monitoring and reporting.
Although data was not available for all States, State agency staff
dedicated to AFOs has increased over the last five years. In general,
State staff dedicated to AFOs is relatively small, with average staff
numbers being below four full-time employees. Several States do not
have any staff specifically assigned to manage water quality impacts
from AFOs. However, States such as Arkansas, Minnesota, Wisconsin, and
Nebraska doubled their staff commitment to AFOs within the last five
years. The most notable increases in State staff assigned to address
AFOs were in Iowa and North Carolina. Kansas, Minnesota, and North
Carolina have the largest AFO staffs in the country, with each having
more than 20 full time employees.
One indication that States have an increasing interest in expanding
their efforts to control water quality impacts from AFOs is the
promulgation of new
[[Page 2970]]
State AFO regulations and program initiatives. At least twelve states
have developed new regulations related to AFOs since 1996. (AL, IN, KS,
KY, MD, MS, NC, OK, PA, VT, WA, WY). Kansas, Kentucky, North Carolina,
and Wyoming passed legislation regarding swine facilities, with
Kentucky and North Carolina imposing moratoriums on the expansion of
hog AFOs until State management/regulatory plans could be developed.
Similarly, Mississippi also has imposed a 2-year moratorium on any new
CAFOs. Alabama's recent efforts include developing an NPDES general
permitting rule and a Memorandum of Agreement with EPA outlining State
agency responsibilities as they relate to CAFOs. Washington's Dairy Law
subjects all dairy farms with more than 300 animal units to permitting
and requires each facility to develop nutrient management plans
approved by the National Conservation Resource Service. Indiana's
Confined Feeding Control Law also requires AFOs to develop waste
management plans and receive State approval for operating AFOs.
In conclusion, the implementation of CAFO programs varies from
state-to-state, as does the implementation of NPDES programs for CAFOs
by NPDES authorized states. As animal production continues to become
more industrialized nationwide, a coherent and systematic approach to
implementing minimum standards is needed to ensure consistent
protection of water quality. Today's proposal will continue to promote
a systematic approach to establishing industry standards that are
protective of human health and the environment.
D. How Do Today's Proposed Revisions Compare to the Unified National
AFO Strategy?
As described in section III.B, on March 9, 1999, EPA and the U.S.
Department of Agriculture jointly issued the Unified National Strategy
for Animal Feeding Operations (Unified AFO Strategy), which outlined
USDA and EPA's plans for achieving better control of pollution from
animal agriculture under existing regulations. The following is a
comparison chart that illustrates how the proposed rule compares to the
Unified AFO Strategy. Table 3-1 compares the proposed CAFO rule
requirements with the Unified AFO Strategy and identifies whether the
proposed requirements are consistent with or not addressed by the
Unified AFO Strategy. The table further shows that, overall, the
proposed rule meets the intent of the Unified AFO Strategy.
Table 3-1.--Proposed Rule/Unified National AFO Strategy Comparison
----------------------------------------------------------------------------------------------------------------
Not
Consistent addressed
Summary of proposed rule with Unified in Unified Comment
AFO AFO
Strategy Strategy
----------------------------------------------------------------------------------------------------------------
Proposed Revisions to NPDES Regulations
----------------------------------------------------------------------------------------------------------------
Definition of AFO (122.23(a)(2))--AFO The Unified AFO Strategy states CNMPs
includes land application area; Clarifies should address land application of
crop language. manure. (Sec. 3.1 and 3.2)
Crop language not explicitly
addressed in Unified AFO Strategy.
Definition of CAFO (122.23(a)(3))--Change ............ Alternative thresholds not explicitly
1,000 animal unit threshold to 500. addressed in Unified AFO Strategy,
although Strategy does state EPA
will explore alternative ways of
defining CAFOs. (Sec. 5, Issue 3,
Item 2.B.).
The Unified AFO Strategy states that
regulatory revisions will consider
risk, burden, statutory
requirements, enforceability, and
ease of implementation (i.e.,
clarity of requirements). (Sec. 5,
Issue 3, Item 2).
The Unified AFO Strategy states that
5 percent of the AFOs will be
subject to the regulatory program,
however, this estimate is provided
for the existing regulatory program
(see Figure 2). No specific
percentage is specified in the
Strategy for the revised
regulations.
Definition of CAFO (122.23(a)(3))--Include ............ The Unified AFO Strategy states that
dry poultry operations. in revising regulations EPA intends
to consider defining ``...large
poultry operations, consistent with
the size for other animal sectors,
as CAFOs, regardless of the type of
watering or manure handling
system.'' (Sec. 5, Issue 3, Item
2.B.).
Definition of CAFO (122.23(a)(3))--Include ............ Immature animals not explicitly
immature animals. addressed in Unified AFO Strategy.
Definition of CAFO (122.23)--Removes 25 year/ ............ The Unified AFO Strategy states EPA
24-hour storm provision from definition of will consider ``requiring CAFOs to
CAFO. have an NPDES permit even if they
only discharge during a 25-year, 24-
hour or larger storm event.'' (Sec.
5, Issue 3, Item 2.B.).
Definition of Operation (122.23(a)(5))-- ............ The Unified AFO Strategy states EPA
Includes a person who exercises substantial will ``explore alternative
operational control over a CAFO. approaches to ensuring that
corporate entities support the
efforts of individual CAFOs to
comply with permits and develop and
implement CNMPs.'' (Sec. 5, Issue 3,
Item 2.B.).
Designation as a CAFO (122.23(b))--In ............ The Unified AFO Strategy states EPA
authorized States EPA may designate an AFO will consider ``who may designate
as a CAFO. No inspection required a and the criteria for designating
designate facility that was previously certain AFOs as CAFOs.'' (Sec. 5,
defined or designated as a CAFO. Issue 3, Item 2.B.).
Who must apply for an NPDES permit ............ The Unified AFO Strategy states ``the
(122.23(c))--CAFOs must either apply for a NPDES authority will issue a permit
permit or seek a determination of no unless it determines that the
potential to discharge. facility does not have a potential
to discharge. (Sec. 4.2).
[[Page 2971]]
Co-Permitting (122.23(c)(3))--Operators, ............ The Unified AFO Strategy states EPA
including any person who exercises will ``explore alternative
substantial operational control over a CAFO, approaches to ensuring that
must either apply for a permit or seek a corporate entities support the
determination of no potential to discharge. efforts of individual CAFOs to
comply with permits and develop and
implement CNMPs.'' (Sec. 5, Issue 3,
Item 2.B.).
Issuance of permit (122.23(d))--Director must ............ The Unified AFO Strategy states ``the
issue permit unless s/he determines no NPDES authority will issue a permit
potential to discharge. unless it determines that the
facility does not have a potential
to discharge. (Sec. 4.2.).
No potential to discharge (122.23(e))-- ............ The Unified AFO Strategy establishes
Determination must consider discharge from a national performance expectation
production area, land application area, and that all AFOs should develop and
via ground waters that have a direct implement CNMPs, and that such CNMPs
hydrologic connection to surface waters. should address land application of
manure. (Sec. 3.1 and 3.2).
The Unified AFO Strategy states ``EPA
believes that pollution of
groundwater may be a concern around
CAFOs. EPA has noted in other
documents that a discharge via
hydrologically connected groundwater
to surface waters may be subject to
NPDES requirements.'' (Sec. 4.2.).
The Unified AFO Strategy states EPA
will consider protecting ``sensitive
or highly valuable water bodies such
as Outstanding Natural Resources,
sole source aquifers, wetlands,
ground water recharge areas, zones
of significant ground/surface water
interaction, and other areas.''
(Sec. 5, Issue 3, Item 2.B.).
AFOs not defined or designated (122.23(g))-- ............ The Unified AFO Strategy states EPA
AFOs subject to NPDES permitting will consider ``clarifying whether
requirements if they have a discrete and under what conditions AFOs may
conveyance (i.e., point source) discharge be subject to NPDES requirements.''
from production or land application that is (Sec. 5, Issue 3, Item 2.B.).
not entirely storm water.
Non-AFO land application (122.23(h))--Land ............ The Unified AFO Strategy states EPA
application inconsistent with practices in will consider ``clarifying
412.31(b) and that result in point source requirements for effective
discharge of pollutants to Waters of the US management of manure and wastewater
may be designated under 122.26(a)(1)(v). from CAFOs whether they are handled
on-site or off-site.'' (Sec. 5,
Issue 3, Item 2. B.).
Agricultural Storm Water Exemption-- ............ The Unified AFO Strategy states EPA
Discharges from land application area if has in the past and will in the
manure is not applied in quantities that future assume that discharges from
exceed the land application rates calculated the majority of agricultural
using one of the methods specified in 40 CFR operations are exempt, but that the
412.31(b)(1)(iv). agricultural storm water exemption
would not apply where the discharge
is associated with the land disposal
of manure or wastewater from a CAFO
and the discharge is not the result
of proper agricultural practices.
(Sec. 4.4).
CAFO permit requirement (122.23(i)(2))--CAFOs ............ The Unified AFO Strategy states the
subject to effluent guidelines if applicable. effluent guidelines revisions will
be closely coordinated with any
charges to the NPDES permitting
regulations. (Sec. 5, Issue 3, Item
2. A.).
CAFO permit requirement (122.23(j))-- ............ The Unified AFO Strategy provides
Prohibits land application of manure that that all AFOs should develop and
would not serve agricultural purpose and implement CNMPs, and that such CNMPs
would likely result in pollutant discharge should address land application of
to waters of the U.S. manure to minimize impacts on water
quality and public health. (Sec. 3.1
and 3.2).
CAFO permit requirement (122.23(j)(4))-- ............ The Unified AFO Strategy states EPA
Permittee must either provide information to will consider ``clarifying
recipient or, under one co-proposal option, requirements for effective
obtain certification that recipient will management of manure and wastewater
land apply per Permit Nutrient Plan (PNP), from CAFOs whether they are handled
obtain permit, use for other purpose, or on-site or off-site.'' (Sec. 5,
transfer to 3rd party. Issue 3, Item 2. B.).
CAFO permit requirement (122.23(j)(5))-- ............ The Unified AFO Strategy states EPA
Permit must require specified recordkeeping. will consider ``establishing
specific monitoring and reporting
requirements for permitted
facilities.'' (Sec. 5, Issue 3, Item
2. B.).
The Unified AFO Strategy provides
records should be kept when manure
leaves the CAFO. (Sec.3.3).
Closure (122.23(i)(3))--AFO must maintain ............ Not explicitly addressed in Unified
permit until it no longer has wastes AFO Strategy.
generated while it was a CAFO.
[[Page 2972]]
Public access (122.23(l)--Requires public ............ Not explicitly addressed in Unified
access to list of NOIs, list of CAFOs that AFO Strategy.
have prepared PNPs, and access to executive
summary of PNP upon request.
General Permits (122.28)--Notice of Intent NOI requirements not explicitly
must include topographic map and statement addressed in Unified AFO Strategy.
re PNP; additional criteria specified for The Unified AFO Strategy states EPA
when individual permits may be required. will consider ``requiring individual
permits for CAFOs in some
situations.'' (Sec. 5, Issue 3, Item
2. B.).
----------------------------------------------------------------------------------------------------------------
Proposed Revisions to Feedlot Effluent Guidelines Regulations
----------------------------------------------------------------------------------------------------------------
Production Area--Beef/Dairy (412.33(a): No The Unified AFO Strategy indicates
discharge except when designed for 25 year, the existing effluent guidelines is
24-hour storm, also inspect/ correct/ pump- no discharge when designed for 25
out, manage mortalities. Swine/Poultry year, 24-hour storm. (Sec. 5, Issue
(412.43(a)): No discharge. 3, Item 2. A).
Strategy states that in developing
the revised effluent guidelines EPA
is to assess different management
practices that minimize the
discharge of pollutants. (Sec. 5,
Issue 3, Item 2. A).
Land Application (412.33(b) and 412.43(b))-- ............ PNP has been identified as a specific
Develop and Implement PNP covering the land subset of a CNMP applicable to AFOs
application areas under the control of the subject to the regulation. In this
CAFO. Also include Best Management Practices. manner it is consistent with the
Strategy. It also reinforces that
the CNMP is applicable to all AFOs
(regulatory/voluntary) while the PNP
is only applicable to those that
fall under the regulatory program.
It makes a clear distinction between
the regulatory and voluntary
programs addressed in the Strategy.
Land Application (412.31(b)(1)(ii))--PNP ............ The PNP is a subset of the CNMP. The
Approved by Certified Specialist. Strategy identified that CNMPs
``developed to meet the requirements
of the NPDES program in general must
be developed by a certified
specialist, ....''. (Sec. 4.6).
New Source Performance Standards (412.35/45): ............ Strategy states that in developing
Various additional requirements. the revised effluent guidelines EPA
is to evaluate the need for
different requirements for new or
expanding operations. (Sec. 5, Issue
3, Item 2. A).
Additional Measures (412.37)--Inspect/ ............ Strategy states that in developing
correct/ pump-out, manage mortalities; Land the revised effluent guidelines EPA
application BMPs, sampling, training, is to assess different management
recordkeeping. practices that minimize the
discharge of pollutants. (Sec. 5,
Issue 3, Item 2. A).
Strategy states that the regulatory
revision process will include the
establishment of specific monitoring
and reporting requirements for
permitted facilities.
----------------------------------------------------------------------------------------------------------------
IV. Why is EPA Changing the Effluent Guidelines for Feedlots and
the NPDES CAFO Regulations?
A. Main Reasons For Revising the Existing Regulations
Despite more than twenty years of regulation, there are persistent
reports of discharge and runoff of manure and manure nutrients from
livestock and poultry operations. While this is partly due to
inadequate compliance with existing regulations, EPA believes that the
regulations themselves also need revision. Today's proposed revisions
to the existing effluent guidelines and NPDES regulations for CAFOs are
expected to mitigate future water quality impairment and the associated
human health and ecological risks by reducing pollutant discharges from
the animal production industry.
EPA's proposed revisions also address the changes that have
occurred in the animal production industries in the United States since
the development of the existing regulations. The continued trend toward
fewer but larger operations, coupled with greater emphasis on more
intensive production methods and specialization, is concentrating more
manure nutrients and other animal waste constituents within some
geographic areas. This trend has coincided with increased reports of
large-scale discharges from these facilities, and continued runoff that
is contributing to the significant increase in nutrients and resulting
impairment of many U.S. waterways.
EPA's proposed revisions of the existing regulations will make the
regulations more effective for the purpose of protecting or restoring
water quality. The revisions will also make the regulations easier to
understand and better clarify the conditions under which an AFO is a
CAFO and, therefore, subject to the regulatory requirements of today's
proposed regulations.
B. Water Quality Impairment Associated with Manure Discharge and Runoff
EPA has made significant progress in implementing CWA programs and
in reducing water pollution. Despite such progress, however, serious
water quality problems persist throughout the country. Agricultural
operations, including CAFOs, are considered a significant source of
water pollution in the United States. The recently released National
Water Quality Inventory: 1998 Report to Congress was prepared under
Section 305(b) of the Clean Water Act. Under this section of the Act,
States report their impaired water bodies to EPA, including the
suspected sources of those impairments. The most recent report
indicates that the agricultural sector (including crop production,
pasture and range grazing, concentrated and confined animal feeding
operations, and aquaculture) is the leading contributor to identified
water quality impairments in the nation's rivers and
[[Page 2973]]
streams, and also the leading contributor in the nation's lakes, ponds,
and reservoirs. Agriculture is also identified as the fifth leading
contributor to identified water quality impairments in the nation's
estuaries. 1998 National Water Quality Inventory results are
illustrated in table 4-1 below.
Table 4-1.--Five Leading Sources of Water Quality Impairment in the
United States
------------------------------------------------------------------------
Rank Rivers Lakes Estuaries
------------------------------------------------------------------------
1.............. Agriculture (59%) Agriculture (31%) Municipal Point
Sources (28%)
2.............. Hydro Hydro Urban Runoff /
modification modification Storm Sewers
(20%). (15%). (28%)
3.............. Urban Runoff / Urban Runoff/ Atmospheric
Storm Sewers Storm Sewers Deposition (23%)
(11%). (12%).
4.............. Municipal Point Municipal Point Industrial
Sources (10%). Sources (11%). Discharges (15%)
5.............. Resource Atmospheric Agriculture (15%)
Extraction (9%). Deposition (8%).
------------------------------------------------------------------------
Source: National Water Quality Inventory: 1998 Report to Congress,
USEPA, 2000. Percentage of impairment attributed to each source is
shown in parentheses. For example, agriculture is listed as a source
of impairment in 59 percent of impaired river miles. The portion of
'agricultural'' impairment attributable to animal waste (as compared
to crop production, pasture grazing, range grazing, and aquaculture)
is not specified in this value. Figure totals exceed 100 percent
because water bodies may be impaired by more than one source.
Table 4-2 presents additional summary statistics of the 1998
National Water Quality Inventory. These figures indicate that the
agricultural sector contributes to the impairment of at least 170,000
river miles, 2.4 million lake acres, and almost 2,000 estuarine square
miles. Twenty-eight states and tribes identified specific agricultural
sector activities contributing to water quality impacts on rivers and
streams, and 16 states and tribes identified specific agricultural
sector activities contributing to water quality impacts on lakes,
ponds, and reservoirs. CAFOs are a subset of the agriculture category.
For rivers and streams, estimates from these states indicate that 16
percent of the total reported agricultural sector impairment is from
the animal feeding operation industry (including feedlots, animal
holding areas, and other animal operations), and 17 percent of the
agricultural sector impairment is from both range and pasture grazing.
For lakes, ponds, and reservoirs, estimates from these states indicate
that 4 percent of the total reported agricultural sector impairment is
from the animal feeding operation industry, and 39 percent of the
agricultural sector impairment is from both range and pasture grazing.
Impairment due specifically to land application of manure was not
reported.
Table 4-2.--Summary of U.S. Water Quality Impairment Survey
----------------------------------------------------------------------------------------------------------------
Quantity impaired by Quantity impaired by
Total quantity in U.S. Waters assessed all sources agriculture a
----------------------------------------------------------------------------------------------------------------
Rivers............................... 23% of total 35% of assessed 59% of impaired.
3,662,255 miles 840,402 miles 291,263 miles 170,750 miles.
----------------------------------------------------------------------------------------------------------------
Lakes, Ponds, and Reservoirs 42% of total 45% of assessed 31% of impaired.
41.6 million acres 17.4 million acres 7.9 million acres 2,417,801 acres.
----------------------------------------------------------------------------------------------------------------
Estuaries 32% of total 44% of assessed 15% of impaired.
90,465 square miles 28,687 square miles 12,482 square miles 1,827 square miles.
----------------------------------------------------------------------------------------------------------------
Source: National Water Quality Inventory: 1998 Report to Congress, USEPA, 2000.
aCAFOs are a subset of the agriculture category.
Table 4-3 below lists the leading pollutants impairing surface
water quality in the United States as identified in the 1998 National
Water Quality Inventory. The animal production industry is a potential
source of all of these, but is most commonly associated with nutrients,
pathogens, oxygen-depleting substances, and solids (siltation). Animal
production facilities are also a potential source of the other leading
causes of water quality impairment, such as metals and pesticides, and
can contribute to the growth of noxious aquatic plants due to the
discharge of excess nutrients. Animal production facilities may also
contribute loadings of priority toxic organic chemicals and oil and
grease, but to a lesser extent than other pollutants.
Table 4-3.--Five Leading Causes of Water Quality Impairment in the
United States
------------------------------------------------------------------------
Rank Rivers Lakes Estuaries
------------------------------------------------------------------------
1.............. Siltation (38%).. Nutrients (44%).. Pathogens (47%)
2.............. Pathogens (36%).. Metals (27%)..... Oxygen-Depleting
Substances (42%)
3.............. Nutrients (29%).. Siltation (15%).. Metals (27%)
4.............. Oxygen-Depleting Oxygen-Depleting Nutrients (23%)
Substances (23%). Substances (14%).
5.............. Metals (21%)..... Suspended Solids Thermal
(10%). Modifications
(18%)
------------------------------------------------------------------------
Source: National Water Quality Inventory: 1998 Report to Congress,
USEPA, 2000. Percent impairment attributed to each pollutant is shown
in parentheses. For example, siltation is listed as a cause of
impairment in 51 percent of impaired river miles. All of these
pollutants except thermal modifications are commonly associated with
animal feeding operations to varying degrees, though they are also
attributable to other sources. Figure totals exceed 100 percent
because water bodies may be impaired by more than one source.
[[Page 2974]]
Pollutants associated with animal production can also originate
from a variety of other sources, such as cropland, municipal and
industrial wastewater discharges, urban runoff, and septic systems. The
national analyses described in Section V of this preamble are useful in
assessing the significance of animal waste as a potential or actual
contributor to water quality degradation across the United States.
Section V also discusses the environmental impacts and human health
effects associated with the pollutants found in animal manure.
C. Recent Changes in the Livestock and Poultry Industry
EPA's proposed revisions of the existing effluent guidelines and
NPDES regulations take into account the major structural changes that
have occurred in the livestock and poultry industries since the 1970s
when the regulatory controls for CAFOs were first instituted. These
changes include:
Increased number of animals produced annually;
Fewer animal feeding operations and an increase in the
share of larger operations that concentrate more animals, manure and
wastewater in a single location;
Geographical shifts in where animals are produced; and
Increased coordination between animal feeding operations
and processing firms.
1. Increased Livestock and Poultry Production
Since the 1970s, total consumer demand for meat, eggs, milk and
dairy products has continued to increase. To meet this demand, U.S.
livestock and poultry production have risen sharply, resulting in an
increase in the number of animals produced and the amount of manure and
wastewater generated annually.
Increased sales from U.S. farms is particularly dramatic in the
poultry sectors, as reported in the Census of Agriculture (various
years). In 1997, turkey sales totaled 299 million birds. In comparison,
141 million turkeys were sold for slaughter in 1978. Broiler sales
totaled 6.4 billion chickens in 1997, up from 2.5 billion chickens sold
in 1974. The existing CAFO regulations effectively do not cover broiler
operations because they exclude operations that use dry manure
management systems. Red meat production also rose during the 1974-1997
period. The number of hogs and pigs sold increased from 79.9 million
hogs in 1974 to 142.6 million hogs in 1997. Sales data for fed cattle
(i.e., USDA's data category on ``cattle fattened on grain and
concentrates'') for 1975 show that 20.5 million head were marketed. By
1997, fed cattle marketings totaled 22.8 million head. The total number
of egg laying hens rose from 0.3 million birds in 1974 to 0.4 million
birds in 1997. The number of dairy cows on U.S. farms, however, dropped
from more than 10.7 million cows to 9.1 million cows over the same
period.
Not only are more animals produced and sold each year, but the
animals are also larger in size. Efficiency gains have raised animal
yields in terms of higher average slaughter weight. Likewise,
production efficiency gains at egg laying and dairy operations have
resulted in higher per-animal yields of eggs and milk. USDA reports
that the average number of eggs produced per egg laying hen was 218
eggs per bird in 1970 compared to 255 eggs per bird in 1997. The
National Milk Producers Federation reports that average annual milk
production rose from under 10,000 pounds per cow in 1970 to more than
16,000 pounds per cow in 1997. In the case of milk production, these
efficiency gains have allowed farmers to maintain or increase
production levels with fewer animals. Although animal inventories at
dairy farms may be lower, however, this may not necessarily translate
to reduced manure volumes generated because higher yields are largely
attributable to improved and often more intensive feeding strategies
that may exceed the animal's ability for uptake. This excess is not
always incorporated by the animal and may be excreted.
2. Increasing Share of Larger, More Industrialized Operations
The number of U.S. livestock and poultry operations is declining
due to ongoing consolidation in the animal production industry.
Increasingly, larger, more industrialized, highly specialized
operations account for a greater share of all animal production. This
has the effect of concentrating more animals, and thus more manure and
wastewater, in a single location, and raising the potential for
significant environmental damages unless manure is properly stored and
handled.
USDA reports that there were 1.1 million livestock and poultry
farms in the United States in 1997, about 40 percent fewer than the 1.7
million farms reported in 1974. Farms are closing, especially smaller
operations that cannot compete with large-scale, highly specialized,
often lower cost, producers. Consequently, the livestock and poultry
industries are increasingly dominated by larger operations. At the same
time, cost and efficiency considerations are pushing farms to become
more specialized and intensive. Steep gains in production efficiency
have allowed farmers to produce more with fewer animals because of
higher per-animal yields and quicker turnover of animals between farm
production and consumer market. As a result, annual production and
sales have increased, even though the number of animals on farms at any
one time has declined (i.e., an increase in the number of marketing
cycles over the course of the year allows operators to maintain
production levels with fewer animals at any given time, although the
total number of animals produced by the facility over the year may be
greater).
The increase in animal densities at operations is evident by
comparing the average number of animals per operation between 1974 and
1997, as derived from Census of Agriculture data. In the poultry
sectors, the average number of birds across all operations is four to
five times greater in 1997 than in 1974. In 1997, the number of
broilers per operation averaged 281,700 birds, up from 73,300 birds in
1974. Over the same period, the average number of egg laying hens per
operation rose from 1,100 layers to 5,100 layers per farm, and the
average number of turkeys per operation rose from 2,100 turkeys to
8,600 turkeys. The average number of hogs raised per operation rose
from under 100 hogs to more than 500 hogs between 1974 and 1997. The
average number of fed cattle and dairy cows per operation more than
doubled during the period, rising to nearly 250 fed cattle and 80
milking cows by 1997.
This trend toward fewer, larger, and more industrialized operations
has contributed to large amounts of manure being produced at a single
geographic location. The greatest potential risk is from the largest
operations with the most animals given the sheer volume of manure
generated at these facilities. Larger, specialized facilities often do
not have an adequate land base for manure disposal through land
application. A USDA analysis of 1997 Census data shows that animal
operations with more than 1,000 AU account for more than 42 percent of
all confined animals but only 3 percent of cropland held by livestock
and poultry operations. As a result, large facilities need to store
significant volumes of manure and wastewater which have the potential,
if not properly handled, to cause significant water quality impacts. By
comparison, smaller operations manage fewer animals and tend to
concentrate less manure at a single farming location. Smaller
operations also tend to be more diversified, engaging in both animal
and
[[Page 2975]]
crop production. These operations often have sufficient cropland and
fertilizer needs to land apply manure generated by the farm's livestock
or poultry business, without exceeding that land's nutrient
requirements.
Another recent analysis from USDA confirms that as animal
production operations have become larger and more specialized
operations, the opportunity to jointly manage animal waste and crop
nutrients has decreased. Larger operations typically have inadequate
land available for utilizing manure nutrients. USDA estimates that the
amount of nitrogen from manure produced by confinement operations
increased about 20 percent between 1982 and 1997, while average acreage
on livestock and poultry farms declined. Overall, USDA estimates that
cropland controlled by operations with confined animals has the
assimilative capacity to absorb about 40 percent of the calculated
manure nitrogen generated by these operations. EPA expects this excess
will need to be transported offsite.
3. Geographic Shifts in Where Animals are Raised
During the 1970s, the majority of farming operations were
concentrated in rural, agricultural areas and manure nutrients
generated by animal feeding operations were readily incorporated as a
fertilizer for crop production. In an effort to reduce transportation
costs and streamline distribution between the animal production and
food processing sectors, livestock and poultry operations have tended
to cluster near slaughtering and manufacturing plants as well as near
end-consumer markets. Ongoing structural and technological change in
these industries also influences where facilities operate and
contributes to locational shifts from the more traditional farm
production regions to the more emergent regions.
Operations in more traditional producing states tend to grow both
livestock and crops and tend to have adequate cropland for land
application of manure. Operations in these regions also tend to be
smaller in size. In contrast, confinement operations in more emergent
areas, such as hog operations in North Carolina or dairy operations in
the Southwest, tend to be larger in size and more intensive types of
operations. These operations tend to be more specialized and often do
not have adequate land for application of manure nutrients. Production
is growing rapidly in these regions due to competitive pressures from
more specialized producers who face lower per-unit costs of production.
This may be shifting the flow of manure nutrients away from more
traditional agricultural areas, often to areas where these nutrients
cannot be easily absorbed.
As reported by Census data, shifts in where animals are grown is
especially pronounced in the pork sector. Traditionally, Iowa has been
the top ranked pork producing state. Between 1982 and 1997, however,
the number of hogs raised in that state remained relatively constant
with a year-end inventory average of about 14.2 million pigs. In
comparison, year-end hog inventories in North Carolina increased from
2.0 million pigs in 1982 to 9.6 million pigs in 1997. This locational
shift has coincided with reported nutrient enrichment of the waters of
the Pamlico Sound in North Carolina. Growth in hog production also
occurred in other emergent areas, including South Dakota, Oklahoma,
Wyoming, Colorado, Arizona, and Utah. Meanwhile, production dropped in
Illinois, Indiana, Wisconsin, and Ohio.
The dairy industry has seen similar shifts in where milk is
produced, moving from the more traditional Midwest and Northeast states
to the Pacific and Southwestern states. Between 1982 and 1997, the
number of milk cows in Wisconsin dropped from 1.9 million to 1.3
million. Milk cow inventories have also declined in other traditional
states, including Illinois, Indiana, Iowa, Minnesota, Missouri, New
York, Pennsylvania, Ohio, Connecticut, Maryland, and Vermont. During
the same period, milk cow inventories in California rose from 0.9
million in 1982 to 1.4 million in 1997. In 1994, California replaced
Wisconsin as the top milk producing state. Milk cow inventories have
also increased in Texas, Idaho, Washington, Oregon, Colorado, Arizona,
Nevada, and Utah. These locational shifts have coincided with reported
nutrient enrichment of waters, including the Puget Sound and Tillamook
Bay in the northwest, the Everglades in Florida, and Erath County in
Texas, and also elevated salinity levels due to excess manure near milk
production areas in southern California's Chino Basin.
4. Increased Linkages between Animal Production Facility and Food
Processors
Over the past few decades, closer ties have been forged between
growers and various industry middlemen, including packers, processors,
and cooperatives. Increased integration and coordination is being
driven by the competitive nature of agricultural production and the
dynamics of the food marketing system, in general, as well as seasonal
fluctuations of production, perishability of farm products, and the
inability to store and handle raw farm output. Closer ties between the
animal production facility and processing firms--either through
contractual agreement or through corporate ownership of CAFOs--raises
questions of who is responsible for ensuring proper manure disposal and
management at the animal feeding site. This is especially true given
the current trend toward larger animal confinement operations and the
resultant need for increased animal waste management. As operations
become larger and more specialized, they may contract out some phases
of the production process.
Farmers and ranchers have long used contracts to market
agricultural commodities. However, increased use of production
contracts is changing the organizational structure of the individual
industries. Under a production contract, a business other than the
feedlot where the animals are raised and housed, such as a processing
firm, feed mill, or animal feeding operation, may own the animals and
may exercise further substantial operational control over the
operations of the feedlot. In some cases, the processor may specify in
detail the production inputs used, including the genetic material of
the animals, the types of feed used, and the production facilities
where the animals are raised. The processor may also influence the
number of animals produced at a site. In general, these contracts do
not deal with management of manure and waste disposal. Recently,
however, some processors have become increasingly involved in how
manure and waste is managed at the animal production site.
The use of production contracts in the livestock and poultry
industries varies by commodity group. Information from USDA indicates
that production contracts are widely used in the poultry industry and
dominate broiler production. Production contracting is becoming
increasingly common in the hog sector, particularly for the finishing
stage of production in regions outside the Corn Belt.
Production contracting has played a critical role in the growth of
integrators in the poultry sectors. Vertical integration has progressed
to the point where large, multifunction producer-packer-processor-
distributor firms are the dominant force in poultry and egg production
and marketing. Data from USDA on animal ownership at U.S. farms
illustrates the use of production contracts in these sectors. In 1997,
USDA reported that 97 percent of all broilers raised on U.S. farms were
not owned by the farmer. In the turkey and
[[Page 2976]]
egg laying sectors, use of production contracts is less extensive since
70 percent and 43 percent of all birds in these sectors, respectively,
were not owned by the farmer. In the hog sector, data from USDA
indicate that production contracting may account for 66 percent of hog
production among larger producers in the Southern and Mid-Atlantic
states. This differs from the Midwest, where production contracting
accounted for 18 percent of hog production in 1997.
By comparison, production contracts are not widely used in the beef
and dairy sectors. Data from USDA indicate that less than 4 percent of
all beef cattle and 1 percent of all milking cows were not owned by the
farmer in 1997. However, production contracts are used in these
industries that specialize in a single stage of livestock production,
such as to ``finish'' cattle prior to slaughter or to produce
replacement breeding stock. However, this use constitutes a small share
of overall production across all producers.
To further examine the linkages between the animal production
facility and the food processing firms, and to evaluate the
geographical implications of this affiliation, EPA conducted an
analysis that shows a relationship between areas of the country with an
excess of manure nutrients from animal production operations and areas
with a large number of meat packing and poultry slaughtering
facilities. This manure--if land applied--would be in excess of crop
uptake needs and result in over application and enrichment of
nutrients. Across the pork and poultry sectors, this relationship is
strongest in northwest Arkansas, where EPA estimates a high
concentration of excess manure nutrients and a large number of poultry
and hog processing facilities. By sector, EPA's analysis shows that
there is excess poultry manure nutrients and a large number of poultry
processing plants in the Delmarva Peninsula in the mid-Atlantic, North
Carolina, northern Alabama, and also northern Georgia. In the hog
sector, the analysis shows excess manure nutrients and a large number
of meat packing plants in Iowa, Nebraska and Alabama. The analysis also
shows excess manure nutrients from hogs in North Carolina, but
relatively fewer meat packing facilities, which is likely explained by
continuing processing plant closure and consolidation in that state.
More information on this analysis is provided in the rulemaking record.
D. Improve Effectiveness of Regulations
As noted in Section IV.B, reports of continued discharges and
runoff from animal production facilities have persisted in spite of
regulatory controls that were first instituted in the 1970s. EPA is
proposing to revise the effluent guidelines and NPDES regulations to
improve their effectiveness by making the regulations simpler and
easier to understand and implement. Another change intended to improve
the effectiveness of the regulations is clarification of the conditions
under which an AFO is a CAFO and is, therefore, subject to the NPDES
regulatory requirements. In addition, EPA is revising the existing
regulation to remove certain provisions that are no longer appropriate.
The existing regulations were designed to prohibit the release of
wastewater from the feedlot site, but did not specifically address
discharges that may occur when wastewater or solid manure mixtures are
applied to crop, pasture, or hayland. The proposed regulations address
the environmental risks associated with manure management. The proposed
revisions also are more reflective of current farm production practices
and waste management controls.
Today's proposed revised regulations also seek to improve the
effectiveness of the existing regulations by focusing on those
operations that produce the majority of the animal manure and
wastewater generated annually. EPA estimates that the proposed
regulations will regulate, as CAFOs, about 7 to 10 percent of all
animal confinement operations nationwide, and will capture between 64
percent and 70 percent of the total amount of manure generated at CAFOs
annually, depending on the proposed regulatory alternative (discussed
in more detail in Section VI.A). Under the existing regulations, few
operations have obtained NPDES permits. Presently, EPA and authorized
States have issued approximately 2,500 NPDES permits. This is less than
1 percent of the estimated 376,000 animal confinement operations in the
United States. EPA's proposed revisions are intended to ensure that all
CAFOs, as defined under the proposed regulations, will apply for and
obtain a permit.
V. What Environmental and Human Health Impacts Are Potentially
Caused by CAFOs?
The 1998 National Water Quality Inventory, prepared under Section
305(b) of the Clean Water Act, presents information on impaired water
bodies based on reports from the States. This recent report indicates
that the agricultural sector (which includes concentrated and confined
animal feeding operations, along with aquaculture, crop production,
pasture grazing, and range grazing) is the leading contributor to
identified water quality impairments in the nation's rivers and lakes,
and the fifth leading contributor in the nation's estuaries. The
leading pollutants or stressors of rivers and streams include (in order
of rank) siltation, pathogens (bacteria), nutrients, and oxygen
depleting substances. For lakes, ponds, and reservoirs, the leading
pollutants or stressors include nutrients (ranked first), siltation
(ranked third), oxygen depleting substances (ranked fourth), and
suspended solids (ranked fifth). For estuaries, the leading pollutants
or stressors include pathogens (bacteria) as the leading cause, oxygen
depleting substances (ranked second), and nutrients (ranked fourth).
The sections which follow present the pollutants associated with
livestock and poultry operators, of which CAFOs are a subset, the
pathways by which the pollutants reach surface water, and their impacts
on the environment and human health. Detailed information can be found
in the Environmental Assessment of the Proposed Revisions to the
National Pollutant Discharge Elimination System Regulation and Effluent
Guidelines for Concentrated Animal Feeding Operations. The
Environmental Assessment and the supporting references mentioned here
are included in Section 8.1 of the Record for this proposal.
A. Which Pollutants Do CAFOs Have the Potential to Discharge and Why
Are They of Concern?
The primary pollutants associated with animal waste are nutrients
(particularly nitrogen and phosphorus), organic matter, solids,
pathogens, and odorous/volatile compounds. Animal waste is also a
source of salts and trace elements, and to a lesser extent,
antibiotics, pesticides, and hormones. Each of these types of
pollutants is discussed in the sections which follow. The actual
composition of manure depends on the animal species, size, maturity,
and health, as well as on the composition (e.g., protein content) of
animal feed.
1. Nutrients (Nitrogen, Phosphorus, and Potassium)
The 1998 National Water Quality Inventory indicates that nutrients
are the leading stressor in impaired lakes, ponds, and reservoirs. They
are the third most frequent stressor in impaired rivers and streams,
and the fourth greatest stressor in impaired estuaries. The three
primary nutrients in manure are nitrogen, phosphorus, and
[[Page 2977]]
potassium. (Potassium also contributes to salinity.)
Nitrogen in fresh manure exists in both organic forms (including
urea) and inorganic forms (including ammonium, ammonia, nitrate, and
nitrite). In fresh manure, 60 to 90 percent of total nitrogen is
present in organic forms. Organic nitrogen is transformed via microbial
processes to inorganic forms, which are bioavailable and therefore have
fertilizer value. As an example of the quantities of nutrients
discharged from AFOs, EPA estimates that hog operations in eastern
North Carolina generated 135 million pounds of nitrogen per year as of
1995.
Phosphorus exists in solid and dissolved phases, in both organic
and inorganic forms. Over 70 percent of the phosphorus in animal manure
is in the organic form. As the waste ages, phosphorus mineralizes to
inorganic phosphate compounds which are available to plants. Organic
phosphorus compounds are generally water soluble and may leach through
soil to groundwater and run off into surface waters. Inorganic
phosphorus tends to adhere to soils and is less likely to leach into
groundwater. Animal wastes typically have lower nitrogen:phosphorus
ratios than crop requirements. The application of manure at a nitrogen-
based agronomic rate can, therefore, result in application of
phosphorus at several times the agronomic rate. Soil test data in the
United States confirm that many soils in areas dominated by animal-
based agriculture have elevated levels of phosphorus.
Potassium contributes to the salinity of animal manure which may in
turn contribute salinity to surface water polluted by manure. Actual or
anticipated levels of potassium in surface water and groundwater are
unlikely to pose hazards to human health or aquatic life. However,
applications of high salinity manure are likely to decrease the
fertility of the soil.
In 1998, USDA studied the amount of manure nitrogen and phosphorus
production for confined animals relative to crop uptake potential. USDA
evaluated the quantity of nutrients available from recoverable
livestock manure relative to crop growth requirements, by county, based
on data from the 1997 Census of Agriculture. The analyses were intended
to determine the amount of manure that can be recovered and used. The
analyses did not consider manure from grazing animals in pasture,
excluded manure lost to the environment, and also excluded manure lost
in dry storage and treatment. It is not currently possible to
completely recover all manure.
Losses to the environment can occur through runoff, erosion,
leaching to groundwater, and volatilization (especially for nitrogen in
the form of ammonia). These losses can be significant. Considering
typical management systems, the 1998 USDA study reported that average
manure nitrogen losses range from 31 to 50 percent for poultry, 60 to
70 percent for cattle (including the beef and dairy categories), and 75
percent for swine. The typical phosphorus loss is 15 percent.
The USDA study also looked at the potential for available manure
nitrogen and phosphorus generated in a county to meet or exceed plant
uptake and removal in each of the 3,141 mainland counties. Based on
this analysis of 1992 conditions, available manure nitrogen exceeds
crop system needs in 266 counties, and available manure phosphorus
exceeds crop system needs in 485 counties. The relative excess of
phosphorus compared to nitrogen is not surprising, since manure is
typically nitrogen-deficient relative to crop needs. Therefore, when
manure is applied to meet a crop's nitrogen requirement, phosphorus is
typically over-applied.
USDA's analyses do not evaluate environmental transport of applied
manure nutrients. Therefore, an excess of nutrients in a particular
county does not necessarily indicate that a water quality problem
exists. Likewise, a lack of excess nutrients does not imply the absence
of water quality problems. Nevertheless, the analyses provide a general
indicator of excess nutrients on a broad basis.
2. Organic Matter
Livestock manures contain many carbon-based, biodegradable
compounds. Once these compounds reach surface water, they are
decomposed by aquatic bacteria and other microorganisms. During this
process dissolved oxygen is consumed, which in turn reduces the amount
of oxygen available for aquatic animals. The 1998 National Water
Quality Inventory indicates that oxygen-depleting substances are the
second leading stressor in estuaries. They are the fourth greatest
stressor both in impaired rivers and streams, and in impaired lakes,
ponds, and reservoirs. Biochemical oxygen demand (BOD) is an indirect
measure of the concentration of biodegradable substances present in an
aqueous solution.
3. Solids
The 1998 National Water Quality Inventory indicates that suspended
solids are the fifth leading stressor in lakes, ponds, and reservoirs.
Solids are measured as total suspended solids, or TSS. (Solids can also
be measured as total dissolved solids, or TDS.) Solids from animal
manure include the manure itself and any other elements that have been
mixed with it. These elements can include spilled feed, bedding and
litter materials, hair, feathers, and corpses. In general, the impacts
of solids include increasing the turbidity of surface waters,
physically hindering the functioning of aquatic plants and animals, and
providing a protected environment for pathogens.
4. Pathogens
Pathogens are disease-causing organisms including bacteria,
viruses, protozoa, fungi, and algae. The 1998 National Water Quality
Inventory indicates that pathogens (specifically bacteria) are the
leading stressor in impaired estuaries and the second most prevalent
stressor in impaired rivers and streams. Livestock manure contains
countless microorganisms, including bacteria, viruses, protozoa, and
parasites. Multiple species of pathogens may be transmitted directly
from a host animal's manure to surface water, and pathogens already in
surface water may increase in number due to loadings of animal manure
nutrients and organic matter. In 1998, the Centers for Disease Control
and Prevention reported on an Iowa investigation of chemical and
microbial contamination near large scale swine operations. The
investigation demonstrated the presence of pathogens not only in manure
lagoons used to store swine waste before it is land applied, but also
in drainage ditches, agricultural drainage wells, tile line inlets and
outlets, and an adjacent river.
Over 150 pathogens found in livestock manure are associated with
risks to humans. The protozoa Cryptosporidium parvum and Giardia
species are frequently found in animal manure and relatively low doses
can cause infection in humans. Bacteria such as Escherichia coli
O157:H7 and Salmonella species are also often found in livestock manure
and have also been associated with waterborne disease. A recent study
by USDA revealed that about half the cattle at the nation's feedlots
carry E. coli. The bacteria Listeria monocytogenes is ubiquitous in
nature, and is commonly found in the intestines of wild and domestic
animals without causing illness. L. monocytogenes is commonly
associated
[[Page 2978]]
with foodborne disease. The pathogens C. parvum, Giardia, E. coli
O157:H7, and L. monocytogenes are able to survive and remain infectious
in the environment for long periods of time.
Although the pathogen Pfiesteria piscicida is not found in manure,
researchers have documented stimulation of Pfiesteria growth by swine
effluent discharges, and have strong field evidence that the same is
true for poultry waste. Research has also shown that this organism's
growth can be highly stimulated by both inorganic and organic nitrogen
and phosphorus enrichments. Discussions of Pfiesteria impacts on the
environment and on human health are presented later in this section.
5. Salts
The salinity of animal manure is directly related to the presence
of dissolved mineral salts. In particular, significant concentrations
of soluble salts containing sodium and potassium remain from undigested
feed that passes unabsorbed through animals. Other major cations
contributing to manure salinity are calcium and magnesium; the major
anions are chloride, sulfate, bicarbonate, carbonate, and nitrate.
Salinity tends to increase as the volume of manure decreases during
decomposition and evaporation. Salt buildup deteriorates soil
structure, reduces permeability, contaminates groundwater, and reduces
crop yields.
In fresh waters, increasing salinity can disrupt the balance of the
ecosystem, making it difficult for resident species to remain. In
laboratory settings, drinking water high in salt content has inhibited
growth and slowed molting of mallard ducklings. Salts also contribute
to degradation of drinking water supplies.
6. Trace Elements
The 1998 National Water Quality Inventory indicates that metals are
the fifth leading stressor in impaired rivers, the second leading
stressor in impaired lakes, and the third leading stressor in impaired
estuaries. Trace elements in manure that are of environmental concern
include arsenic, copper, selenium, zinc, cadmium, molybdenum, nickel,
lead, iron, manganese, aluminum, and boron. Of these, arsenic, copper,
selenium, and zinc are often added to animal feed as growth stimulants
or biocides. Trace elements may also end up in manure through use of
pesticides, which are applied to livestock to suppress houseflies and
other pests. Trace elements have been found in manure lagoons used to
store swine waste before it is land applied, and in drainage ditches,
agricultural drainage wells, and tile line inlets and outlets. They
have also been found in rivers adjacent to hog and cattle operations.
Several of the trace elements in manure are regulated in treated
municipal sewage sludge (but not manure) by the Standards for the Use
or Disposal of Sewage Sludge, promulgated under the Clean Water Act and
published in 40 C.F.R. Part 503. These include arsenic, cadmium,
chromium, copper, lead, mercury, molybdenum, nickel, selenium, and
zinc. Total concentrations of trace elements in animal manures have
been reported as comparable to those in some municipal sludges, with
typical values well below the maximum concentrations allowed by Part
503 for land-applied sewage sludge. Based on this information, trace
elements in agronomically applied manures should pose little risk to
human health and the environment. However, repeated application of
manures above agronomic rates could result in exceedances of the
cumulative metal loading rates established in Part 503, thereby
potentially impacting human health and the environment. There is some
evidence that this is happening. For example, in 1995, zinc and copper
were found building to potentially harmful levels on the fields of a
hog farm in North Carolina.
7. Odorous/Volatile Compounds
Sources of odor and volatile compounds include animal confinement
buildings, manure piles, waste lagoons, and land application sites. As
animal wastes are degraded by microorganisms, a variety of gases are
produced. The four main gases generated are carbon dioxide, methane,
hydrogen sulfide, and ammonia. Over 150 other odorous compounds have
also been identified with animal manure. Aerobic conditions yield
mainly carbon dioxide, while anaerobic conditions generate both methane
(60 percent to 70 percent) and carbon dioxide (30 percent). Anaerobic
conditions, which dominate in typical, unaerated animal waste lagoons,
are also associated with the generation of hydrogen sulfide and about
40 other odorous compounds, including volatile fatty acids, phenols,
mercaptans, aromatics, sulfides, and various esters, carbonyls, and
amines. Once airborne, these volatile pollutants have the potential to
be deposited onto nearby streams, rivers, and lakes.
Up to 50 percent or more of the nitrogen in fresh manure may be in
ammonia form or converted to ammonia relatively quickly once manure is
excreted. Ammonia is volatile and ammonia losses from animal feeding
operations can be considerable. A study of atmospheric nitrogen
published in 1998 reported that, in North Carolina, animal agriculture
is responsible for over 90 percent of all ammonia emissions. Ammonia
from manure comprises more than 40 percent of the total estimated
nitrogen emissions from all sources.
8. Antibiotics
Antibiotics are used in animal feeding operations and can be
expected to appear in animal wastes. The practice of feeding
antibiotics to poultry, swine, and cattle evolved from the 1949
discovery that very low levels usually improved growth. Antibiotics are
used both to treat illness and as feed additives to promote growth or
to improve feed conversion efficiency. In 1991, an estimated 19 million
pounds of antibiotics were used for disease prevention and growth
promotion in animals. Between 60 and 80 percent of all livestock and
poultry receive antibiotics during their productive lifespan. The
primary mechanisms of elimination are in urine and bile. Essentially
all of an antibiotic administered is eventually excreted, whether
unchanged or in metabolite form. Little information is available
regarding the concentrations of antibiotics in animal wastes, or on
their fate and transport in the environment.
Of greater concern than the presence of antibiotics in animal
manure is the development of antibiotic resistant pathogens. Use of
antibiotics in raising animals, especially broad spectrum antibiotics,
is increasing. As a result, more strains of antibiotic resistant
pathogens are emerging, along with strains that are growing more
resistant. Normally, about 2 percent of a bacterial population are
resistant to a given antibiotic; however, up to 10 percent of bacterial
populations from animals regularly exposed to antibiotics have been
found to be resistant. In a study of poultry litter suitable for land
application, about 80 to 100 percent of bacterial populations isolated
from the litter were found to be resistant to multiple antibiotics.
Antibiotic-resistant forms of Salmonella, Campylobacter, E. coli, and
Listeria are known or suspected to exist. An antibiotic-resistant
strain of the bacteria Clostridium perfringens was detected in the
groundwater below plots of land treated with pig manure, while it was
nearly absent beneath unmanured plots.
9. Pesticides and Hormones
Pesticides and hormones are compounds which are used in animal
feeding operations and can be expected
[[Page 2979]]
to appear in animal wastes. Both of these types of pollutants have been
linked with endocrine disruption.
Pesticides are applied to livestock to suppress houseflies and
other pests. There has been very little research on losses of
pesticides in runoff from manured lands. A 1994 study showed that
losses of cyromazine (used to control flies in poultry litter) in
runoff increased with the rate of poultry manure applied and the
intensity of rainfall.
Specific hormones are used to increase productivity in the beef and
dairy industries. Several studies have shown hormones are present in
animal manures. Poultry manure has been shown to contain both estrogen
and testosterone. Runoff from fields with land-applied manure has been
reported to contain estrogens, estradiol, progesterone, and
testosterone, as well as their synthetic counterparts. In 1995, an
irrigation pond and three streams in the Conestoga River watershed near
the Chesapeake Bay had both estrogen and testosterone present. All of
these sites were affected by fields receiving poultry litter.
B. How Do These Pollutants Reach Surface Waters?
Pollutants found in animal manures can reach surface water by
several mechanisms. These can be categorized as either surface
discharges or other discharges. Surface discharges can occur as the
result of runoff, erosion, spills, and dry-weather discharges. In
surface discharges, the pollutant travels overland or through drain
tiles with surface inlets to a nearby stream, river, or lake. Direct
contact between confined animals and surface waters is another means of
surface discharge. For other types of discharges, the pollutant travels
via another environmental medium (groundwater or air) to surface water.
1. Surface Discharges
a. Runoff. Water that falls on man-made surfaces or soil and fails
to be absorbed will flow across the surface and is called runoff.
Surface discharges of manure pollutants can originate from feedlots and
from overland runoff at land application sites. Runoff is especially
likely at open-air feedlots if rainfall occurs soon after application,
or if manure is over-applied, or misapplied. For example, experiments
by Edwards and Daniels in the early 1990s show that, for all animal
wastes, the application rate had a significant effect on the runoff
concentration. In addition, manure applied to water-saturated or frozen
soils is more likely to run off the soil surface. Other factors that
promote runoff to surface waters are steep land slope, high rainfall,
low soil porosity or permeability, and close proximity to surface
waters. Runoff of pollutants dissolved into rainwater is a significant
transport mechanism for water soluble pollutants, which includes
nitrate, nitrite, and organic forms of phosphorus.
Runoff of manure pollutants has been identified by states,
citizen's groups, and the media as a factor in a number of documented
impacts from AFOs, including hog, cattle, and chicken operations. For
example, in 1994, multiple runoff problems were cited for a hog
operation in Minnesota, and in 1996 runoff from manure spread on land
was identified at hog and chicken operations in Ohio. In 1997, runoff
problems were identified for several cattle operations in numerous
counties in Minnesota. More discussion of runoff and its impacts on the
environment and human health is provided later in this section.
b. Erosion. In addition to runoff, surface discharges can occur by
erosion, in which the soil surface is worn away by the action of water
or wind. Erosion is a significant transport mechanism for land-applied
pollutants that are strongly sorbed to soils, of which phosphorus is
one example. A 1999 report by the Agricultural Research Service (ARS)
noted that phosphorus bound to eroded sediment particles makes up 60 to
90 percent of phosphorus transported in surface runoff from cultivated
land. For this reason, most agricultural phosphorus control measures
have focused on soil erosion control to limit transport of particulate
phosphorus. However, soils do not have infinite adsorption capacity for
phosphate or any other adsorbing pollutant, and dissolved pollutants
including phosphates can still enter waterways via runoff and leachate
even if soil erosion is controlled.
In 1998, the USDA Natural Resources Conservation Service (NRCS)
reviewed the manure production of a watershed in South Carolina.
Agricultural activities in the project area are a major influence on
the streams and ponds in the watershed, and contribute to nutrient-
related water quality problems in the headwaters of Lake Murray. NRCS
found that bacteria, nutrients, and sediment from soil erosion are the
primary contaminants affecting these resources. The NRCS has calculated
that soil erosion, occurring on over 13,000 acres of cropland in the
watershed, ranges from 9.6 to 41.5 tons per acre per year.
c. Spills and Dry-Weather Discharges. Surface discharges can occur
through spills or other discharges from lagoons. Some causes of spills
include malfunctions such as pump failures, manure irrigation gun
malfunctions, and pipes or retaining walls breaking. Manure entering
tile drains has a direct route to surface water. (Tile drains are a
network of pipes buried in fields below the root zone of plants to
remove subsurface drainage water from the root zone to a stream,
drainage ditch, or evaporation pond. EPA does not regulate most tile
fields.) In 1997, the Ohio Department of Natural Resources documented
chicken manure traveling through tile drains into a nearby stream. In
addition, spills can occur as a result of lagoon overflows and washouts
from floodwaters when lagoons are sited on floodplains. There are also
indications that discharges from siphoning lagoons occur deliberately
as a means to reduce the volume in overfull lagoons. Acute discharges
of this kind frequently result in dramatic fish kills. In 1997, an
independent review of Indiana Department of Environmental Management
records indicated that the most common causes of waste releases in that
state were intentional discharge and lack of operator knowledge, rather
than spills due to severe rainfall conditions.
Numerous such dry-weather discharges have been identified. For
example, in 1995, two separate discharges of 25 million gallons of
manure from hog farms in North Carolina were documented, and both
resulted in fish kills. Subsequent discharges of hundreds of thousands
of gallons of manure were documented from hog operations in Iowa
(1996), Illinois (1997), and Minnesota (1997). Fish kills were also
reported as a result of two of these discharges. Discharges of over 8
million gallons of manure from a poultry operation in North Carolina in
1995 likewise resulted in a fish kill. Between 1994 and 1996, half a
dozen discharges from poultry operations in Ohio resulted when manure
entered field tiles. In 1998, 125,000 gallons of manure were discharged
from a dairy feedlot in Minnesota.
d. Direct Contact between Confined Animals and Surface Water.
Finally, surface discharges can occur as a result of direct contact
between confined animals and the rivers or ponds that are located
within their reach. Historically, farms were located near waterways for
both water access for animals and discharge of wastes. This practice is
now restricted for CAFOs; however, despite this restriction,
enforcement actions are the primary means for reducing direct access.
[[Page 2980]]
In the more traditional farm production regions of the Midwest and
Northeast, dairy barns and feedlots are often in close proximity to
streams or other water sources. This close proximity to streams was
necessary in order to provide drinking water for the dairy cows, direct
access to cool the animals in hot weather, and to cool the milk prior
to the wide-spread use of refrigeration. For CAFO-size facilities this
practice is now replaced with more efficient means of providing
drinking water for the dairy herd. In addition, the use of freestall
barns and modern milking centers minimizes the exposure of dairy cows
to the environment. For example, in New York direct access is more of a
problem for the smaller traditional dairy farms that use older methods
of housing animals.
In the arid west, feedlots are typically located near waterbodies
to allow for cheap and easy stock watering. Many existing lots were
configured to allow the animals direct access to the water. Certain
animals, particularly cattle, will wade into the water, linger to
drink, and will often urinate and defecate there as well. This direct
deposition of manure and urine contributes greatly to water quality
problems. Environmental problems associated with allowing farm animals
access to waters that are adjacent to the production area are well
documented in the literature. EPA Region X staff have documented
dramatically elevated levels of Escherichia coli in rivers downstream
of AFOs (including CAFOs) with direct access to surface water. Recent
enforcement actions against direct access facilities have resulted in
the assessment of tens of thousands of dollars in civil penalties.
2. Other Discharges to Surface Waters
a. Leaching to Groundwater. Leaching of land-applied pollutants
such as nitrate dissolved into rainwater is a significant transport
mechanism for water soluble pollutants. In addition, leaking lagoons
are a source of manure pollutants to ground water. Although manure
solids purportedly ``self-seal'' lagoons to prevent groundwater
contamination, some studies have shown otherwise. A study for the Iowa
legislature published in 1999 indicates that leaking is part of design
standards for earthen lagoons and that all lagoons should be expected
to leak. A 1995 survey of hog and poultry lagoons in the Carolinas
found that nearly two-thirds of the 36 lagoons sampled had leaked into
the groundwater. Even clay-lined lagoons have the potential to leak,
since they can crack or break as they age, and can be susceptible to
burrowing worms. In a three-year study (1988-1990) of clay-lined swine
lagoons on the Delmarva Peninsula, researchers found that leachate from
lagoons located in well-drained loamy sand had a severe impact on
groundwater quality.
Pollutant transport to groundwater is also greater in areas with
high soil permeability and shallow water tables. Percolating water can
transport pollutants to groundwater, as well as to surface waters via
interflow. Contaminated groundwater can deliver pollutants to surface
waters through hydrologic connections. Nationally, about 40 percent of
the average annual stream flow is from groundwater. In the Chesapeake
Bay watershed, the U.S. Geological Survey (USGS) estimates that about
half of the nitrogen loads from all sources to nontidal streams and
rivers originate from groundwater.
b. Discharge to the Air and Subsequent Deposition. Discharges to
air can occur as a result of volatilization of both pollutants already
present in the manure and pollutants generated as the manure
decomposes. Ammonia is very volatile, and can have significant impacts
on water quality through atmospheric deposition. Other ways that manure
pollutants can enter the air is from spray application methods for land
applying manure and as particulates wind-borne in dust. Once airborne,
these pollutants can find their way into nearby streams, rivers, and
lakes. The 1998 National Water Quality Inventory indicates that
atmospheric deposition is the third greatest cause of water quality
impairment for estuaries, and the fifth greatest cause of water quality
impairment for lakes, ponds, and reservoirs.
The degree of volatilization of manure pollutants is dependent on
the manure management system. For example, losses are greater when
manure remains on the land surface rather than being incorporated into
the soil, and are particularly high when spray application is
performed. Environmental conditions such as soil acidity and moisture
content also affect the extent of volatilization. Losses are reduced by
the presence of growing plants. Ammonia also readily volatilizes from
lagoons.
Particulate emissions from AFOs may include dried manure, feed,
epithelial cells, hair, and feathers. The airborne particles make up an
organic dust, which includes endotoxin (the toxic protoplasm liberated
when a microorganism dies and disintegrates), adsorbed gases, and
possibly steroids. At least 50 percent of dust emissions from swine
operations are believed to be respirable (small enough to be inhaled
deeply into the lungs).
3. A National Study of Nitrogen Sources to Watersheds
In 1994, the USGS analyzed nitrogen sources to 107 watersheds.
Potential sources included manure (both point and nonpoint sources),
fertilizers, point sources, and atmospheric deposition. The ``manure''
source estimates include waste from both confined and unconfined
animals. As may be expected, the USGS found that proportions of
nitrogen originating from various sources differ according to climate,
hydrologic conditions, land use, population, and physical geography.
Results of the analysis for selected watersheds for the 1987 base year
show that in some instances, manure nitrogen is a large portion of the
total nitrogen added to the watershed. The study showed that, for
following nine watersheds, more than 25 percent of nitrogen originates
from manure: Trinity River, Texas; White River, Arkansas; Apalachicola
River, Florida; Altamaha River, Georgia; Potomac River, Washington,
D.C.; Susquehanna River, Pennsylvania; Platte River, Nebraska; Snake
River, Idaho; and San Joaquin River, California. Of these, California,
Texas, Florida, Arkansas, and Idaho have large populations of confined
animals.
4. State Level Studies of Feedlot Pollutants Reaching Surface Waters
There are many studies demonstrating surface water impacts from
animal feeding operations. These impacts have been documented for at
least the past decade. For example, in 1991, the U.S. Fish and Wildlife
Service (FWS) reported on suspected impacts from a large number of
cattle feedlots on Tierra Blanca Creek, upstream of the Buffalo Lake
National Wildlife Refuge in the Texas Panhandle. FWS found elevated
aqueous concentrations of ammonia, chemical oxygen demand, coliform
bacteria, chloride, nitrogen, and volatile suspended solids; they also
found elevated concentrations of the feed additives copper and zinc in
the creek sediment.
According to Arkansas' 1996 Water Quality Inventory Report, a
publication of the Arkansas Department of Environmental Protection,
water in the Grand Neosho basin only partially supports aquatic life.
Land uses there, primarily confined animal feeding operations including
poultry production and pasture management, are major sources of
nutrients and chronic high turbidity. Pathogens sampled in the Muddy
Fork Hydrologic Unit Area, in
[[Page 2981]]
the Arkansas River basin, also exceed acceptable limits for primary
contact recreation (swimming). This problem was reported in the 1994
water quality inventory, and it, too, was traced to extensive poultry,
swine, and dairy operations in the Moore's Creek basin. Essentially,
all parts of the subwatershed are impacted by these activities.
Currently, the Muddy Fork Hydrologic Unit Area Project is a USDA
agricultural assistance, technology transfer, and demonstration
project. A section 319 water quality monitoring operation is also
ongoing in the hydrologic unit area.
In 1997, the Hoosier Environmental Council documented the reduction
in biodiversity due to AFOs in a study of three Indiana stream systems.
That study found that waters downstream of animal feedlots (mainly hog
and dairy operations) contained fewer fish and a limited number of
species of fish in comparison with reference sites. It also found
excessive algal growth, altered oxygen content, and increased levels of
ammonia, turbidity, pH, and total dissolved solids.
C. What Are the Potential and Observed Impacts?
Pollutants in animal manures can impair surface waters. Such
impairments have resulted in fish kills; eutrophication and algal
blooms; contamination of shellfish, and subsequent toxin and pathogen
transmission up the food chain; increased turbidity and negative
impacts to benthic organisms; and reduced biodiversity when rivers and
streams become uninhabitable by resident species. These manure
pollutants can also deteriorate soil quality and make it toxic to
plants. In addition to these ecological impacts, pollutants in animal
manures can present a range of risks to human health when they
contaminate drinking water or shellfish, and when they are present in
recreational waters.
1. Ecological Impacts
a. Fish Kills and Other Fishery Impacts. Fish kills are one of the
most dramatic impacts associated with manure reaching surface water.
Spills, dry-weather discharges, and runoff can carry pollutants in
manure to rivers and streams and can result in serious fish kills.
During the years 1987 through 1997, at least 47 incidents of fish kills
have been associated with hog manure. Another 8 fish kills were
attributed to poultry waste, and 2 with beef/dairy manure. An
additional 20 fish kills were associated with animal manure for which
one specific animal type was not identified. These incidents were
reported by the Iowa Department of Natural Resources, the Maryland
Department of the Environment, the Natural Resources Defense Council,
several citizen's groups, and numerous newspapers. These incidents are
not reflective of all states. In Illinois alone, records indicate that
171 fish kills attributable to manure discharges were investigated by
Illinois Environmental Protection Agency personnel between 1979 and
1998. Thousands of fish are typically killed by one of these events.
Ammonia is highly toxic to aquatic life and is a leading cause of
fish kills. In a May 1997 incident in Wabasha County, Minnesota,
ammonia in a dairy cattle manure discharge killed 16,500 minnows and
white suckers. Ammonia and other pollutants in manure exert a direct
biochemical oxygen demand (BOD) on the receiving water. As ammonia is
oxidized, dissolved oxygen is consumed. Moderate depressions of
dissolved oxygen are associated with reduced species diversity, while
more severe depressions can produce fish kills.
Nitrites pose additional risks to aquatic life: if sediments are
enriched with nutrients, the concentrations of nitrites on the
overlying water may be raised enough to cause nitrite poisoning or
``brown blood disease'' in fish.
Excess nutrients result in eutrophication (see section V.C.1.b,
which follows). Eutrophication is associated with blooms of a variety
of organisms that are toxic to both fish and humans. This includes the
estuarine dinoflagellate Pfiesteria piscicida, which is implicated in
several fish kills and fish disease events. Pfiesteria has been
implicated as the primary causative agent of many major fish kills and
fish disease events in North Carolina estuaries and coastal areas, as
well as in Maryland and Virginia tributaries to the Chesapeake Bay. In
1997, hog operations were identified as a potential cause of a
Pfiesteria outbreak in North Carolina rivers that resulted in 450,000
fish killed. Also that same year, poultry operations were linked to
Pfiesteria outbreaks in the Pokomoke River and Kings Creek (both in
Maryland) and in the Chesapeake Bay, in which tens of thousands of fish
were killed.
The presence of estrogen and estrogen-like compounds in surface
water has caused much concern. These hormones have been found in animal
manures and runoff from fields where manure has been applied. The
ultimate fate of hormones in the environment is unknown, although early
studies indicate that common soil or fecal bacteria cannot metabolize
estrogen. When present in high enough concentrations in the
environment, hormones and other endocrine disruptors including
pesticides are linked to reduced fertility, mutations, and the death of
fish. Estrogen hormones have been implicated in widespread reproductive
disorders in a variety of wildlife. There is evidence that fish in some
streams are experiencing endocrine disruption and that contaminants
including pesticides may be the cause, though there is no evidence
linking these effects to CAFOs.
b. Eutrophication and Algal Growth. Eutrophication is the process
in which phosphorus and nitrogen over-enrich water bodies and disrupt
the balance of life in that water body. As a result, the excess
nutrients cause fast-growing algae blooms. The 1998 National Water
Quality Inventory indicates that excess algal growth is the seventh
leading stressor in lakes, ponds, and reservoirs. Rapid growth of algae
can lower the dissolved oxygen content of a water body to levels
insufficient to support fish and invertebrates. Eutrophication can also
affect phytoplankton and zooplankton population diversity, abundance,
and biomass, and increase the mortality rates of aquatic species.
Floating algal mats can reduce the penetration of sunlight in the water
column and thereby limit growth of seagrass beds and other submerged
vegetation. This in turn reduces fish and shellfish habitat. This
reduction in submerged aquatic vegetation adversely affects both fish
and shellfish populations.
Increased algal growth can also raise the pH of waterbodies, as
algae consume dissolved carbon dioxide to support photosynthesis. This
elevated pH can harm the gill epithelium of aquatic organisms. The pH
may then drop rapidly at night, when algal photosynthesis stops. In
extreme cases, such pH fluctuations can severely stress aquatic
organisms.
Eutrophication is also a factor in the growth of toxic
microorganisms, such as cyanobacteria (a toxic algae) and Pfiesteria
piscicida, which can affect human health as well. Decay of algal blooms
and night-time respiration can further depress dissolved oxygen levels,
potentially leading to fish kills and reduced biodiversity. In
addition, toxic algae such as cyanobacteria release toxins as they die,
which can severely impact wildlife as well as humans. Researchers have
documented stimulation of Pfiesteria growth by swine effluent
discharges, and have shown that the organism's growth can be highly
stimulated by both inorganic
[[Page 2982]]
and organic nitrogen and phosphorus enrichments.
c. Wildlife Impacts. As noted earlier, reduction in submerged
aquatic vegetation due to algal blooms is the leading cause of
biological decline in Chesapeake Bay, adversely affecting both fish and
shellfish populations. In marine ecosystems, blooms known as red or
brown tides have caused significant mortality in marine mammals. In
freshwater, cyanobacterial toxins have caused many incidents of
poisoning of wild and domestic animals that have consumed impacted
waters.
Even with no visible signs of the algae blooms, shellfish such as
oysters, clams and mussels can carry the toxins produced by some types
of algae in their tissue. Shellfish are filter feeders which pass large
volumes of water over their gills. As a result, they can concentrate a
broad range of microorganisms in their tissues. Concentration of toxins
in shellfish provides a pathway for pathogen transmission to higher
trophic organisms. Information is becoming available to assess the
health effects of contaminated shellfish on wildlife receptors. Earlier
this year, the death of over 400 California sea lions was linked to
ingestion of mussels contaminated by a bloom of toxic algae. Previous
incidents associated the deaths of manatees and whales with toxic and
harmful algae blooms.
In August 1997, the National Oceanic and Atmospheric Administration
(NOAA) released The 1995 National Shellfish Register of Classified
Growing Waters. The register characterizes the status of 4,230
shellfish-growing water areas in 21 coastal states, reflecting an
assessment of nearly 25 million acres of estuarine and non-estuarine
waters. NOAA found that 3,404 shellfish areas had some level of
impairment. Of these, 110 (3 percent) were impaired to varying degrees
by feedlots, and 280 (8 percent) were impaired by ``other agriculture''
which could include land where manure is applied.
Avian botulism and avian cholera have killed hundreds of thousands
of migratory waterfowl in the past. Although outbreaks of avian
botulism have occurred since the beginning of the century, most
occurrences have been reported in the past twenty years, which
coincides with the trend toward fewer and larger AFOs. The connection
between nutrient runoff, fish kills, and subsequent outbreaks of avian
botulism was made in 1999 at California's Salton Sea, when almost 8
million fish died in one day. The fish kill was associated with runoff
from surrounding farms, which carried nutrients and salts into the
Salton Sea. Those nutrients caused algae blooms which in turn lead to
large and sudden fish kills. Since the 1999 die off, the number of
endangered brown pelicans infected with avian botulism increased to
about 35 birds a day. In addition, bottom feeding birds can be quite
susceptible to metal toxicity, because they are attracted to shallow
feedlot wastewater ponds and waters adjacent to feedlots. Metals can
remain in aquatic ecosystems for long periods of time because of
adsorption to suspended or bed sediments or uptake by aquatic biota.
Reduction in biodiversity due to AFOs has been documented in a 1997
study of three Indiana stream systems. That study shows that waters
downstream of animal feedlots (mainly hog and dairy operations)
contained fewer fish and a limited number of species of fish in
comparison with reference sites. The study also found excessive algal
growth, altered oxygen content, and increased levels of ammonia,
turbidity, pH, and total dissolved solids. Multi-generation animal
studies have found decreases in birth weight, post-natal growth, and
organ weights among mammals prenatally exposed to nitrite. Finally,
hormones and pesticides have been implicated in widespread reproductive
disorders in a variety of wildlife.
d. Other Aquatic Ecosystem Imbalances. Changes to the pH balance of
surface water also threaten the survival of the fish and other aquatic
organisms. Data from Sampson County, North Carolina show that ``ammonia
rain'' has increased as the hog industry has grown, with ammonia levels
in rain more than doubling between 1985 and 1995. In addition, excess
nitrogen can contribute to water quality decline by increasing the
acidity of surface waters.
In fresh waters, increasing salinity can also disrupt the balance
of the ecosystem, making it difficult for resident species to remain.
Salts also contribute to the degradation of drinking water supplies.
Trace elements (e.g., arsenic, copper, selenium, and zinc) may also
present ecological risks. Antibiotics, pesticides, and hormones may
have low-level, long-term ecosystem effects.
2. Drinking Water Impacts
Nitrogen in manure is easily transformed into nitrate form, which
can be transported to drinking water sources and present a range of
health risks. In 1990, PA found that nitrate is the most widespread
agricultural contaminant in drinking water wells, and estimated that
4.5 million people are exposed to elevated nitrate levels from wells.
In 1995, several private wells in North Carolina were found to be
contaminated with nitrates at levels 10 times higher than the State's
health standard; this contamination was linked with a nearby hog
operation. The national primary drinking water standard (Maximum
Contaminant Level, or MCL) for nitrogen (nitrate, nitrite) is 10
milligrams per liter (mg/L). In 1982, nitrate levels greater than 10
mg/L were found in 32 percent of the wells in Sussex County, Delaware;
these levels were associated with local poultry operations. In
southeastern Delaware and the Eastern Shore of Maryland, where poultry
production is prominent, over 20 percent of wells were found to have
nitrate levels exceeding 10 mg/L. Nitrate is not removed by
conventional drinking water treatment processes. Its removal requires
additional, relatively expensive treatment units.
Algae blooms triggered by nutrient pollution can affect drinking
water by clogging treatment plant intakes, producing objectionable
tastes and odors, and increasing production of harmful chlorinated
byproducts (e.g., trihalomethanes) by reacting with chlorine used to
disinfect drinking water. As aquatic bacteria and other microorganisms
degrade the organic matter in manure, they consume dissolved oxygen.
This can lead to foul odors and reduce the water's value as a source of
drinking water. Increased organic matter in drinking water sources can
also lead to excessive production of harmful chlorinated byproducts,
resulting in higher drinking water treatment costs.
Pathogens can also threaten drinking water sources. Surface waters
are typically expected to be more prone than groundwater to
contamination by pathogens such as Escherichia coli and Cryptosporidium
parvum. However, groundwater in areas of sandy soils, limestone
formations, or sinkholes are particularly vulnerable. In a 1997 survey
of drinking water standard violations in six states over a four-year
period, the U.S. General Accounting Office noted in its 1997 report
Drinking Water: Information on the Quality of Water Found at Community
Water Systems and Private Wells that bacterial standard violations
occurred in up to 6 percent of community water systems each year and in
up to 42 percent of private wells. (Private wells are more prone than
public wells to contamination, since they tend to be shallower and
therefore more susceptible to contaminants leaching from the surface.)
In cow pasture areas of Door County, Wisconsin, where a thin topsoil
layer is underlain by fractured limestone bedrock, groundwater wells
have
[[Page 2983]]
commonly been shut down due to high bacteria levels.
Each of these impacts can result in increased drinking water
treatment costs. For example, California's Chino Basin estimates a cost
of over $1 million per year to remove the nitrates from drinking water
due to loadings from local dairies. Salt load into the Chino Basin from
local dairies is over 1,500 tons per year, and the cost to remove that
salt by the drinking water treatment system ranges from $320 to $690
for every ton. In Iowa, Des Moines Water Works planned to spend
approximately $5 million in the early 1990's to install a treatment
system to remove nitrates from their main sources of drinking water,
the Raccoon and Des Moines Rivers. Agriculture was cited as a major
source of the nitrate contamination, although the portion attributable
to animal waste is unknown. In Wisconsin, the City of Oshkosh has spent
an extra $30,000 per year on copper sulfate to kill the algae in the
water it draws from Lake Winnebago. The thick mats of algae in the lake
have been attributed to excess nutrients from manure, commercial
fertilizers, and soil. In Tulsa, Oklahoma, excessive algal growth in
Lake Eucha is associated with poultry farming. The city spends $100,000
per year to address taste and odor problems in the drinking water.
3. Human Health Impacts
Human and animal health impacts are primarily associated with
drinking contaminated water, contact with contaminated water, and
consuming contaminated shellfish.
a. Nutrients. The main hazard to human health from nutrients is
elevated nitrate levels in drinking water. In particular, infants are
at risk from nitrate poisoning (also referred to as methemoglobinemia
or ``blue baby syndrome''), which results in oxygen starvation and is
potentially fatal. Nitrate toxicity is due to its metabolite nitrite,
which is formed in the environment, in foods, and in the human
digestive system. In addition to blue baby syndrome, low blood oxygen
due to methemoglobinemia has also been linked to birth defects,
miscarriages, and poor health in humans and animals. These effects are
exacerbated by concurrent exposure to many species of bacteria in
water.
Studies in Australia compiled in a 1993 review by Bruning-Fann and
Kaneene showed an increased risk of congenital malformations with
consumption of high-nitrate groundwater. Multi-generation animal
studies have found decreases in birth weight and post-natal growth and
organ weights associated with nitrite exposure among prenatally exposed
mammals. Nitrate-and nitrite-containing compounds also have the ability
to cause hypotension or circulatory collapse. Nitrate metabolites such
as N-nitroso compounds (especially nitrosamines) have been linked to
severe human health effects such as gastric cancer.
Eutrophication can also affect human health by enhancing growth of
harmful algal blooms that release toxins as they die. In marine
ecosystems, harmful algal blooms such as red tides can result in human
health impacts via shellfish poisoning and recreational contact. In
freshwater, blooms of cyanobacteria (blue-green algae) may pose a
serious health hazard to humans via water consumption. When
cyanobacterial blooms die or are ingested, they release water-soluble
compounds that are toxic to the nervous system and liver. Algal blooms
can also increase production of harmful chlorinated byproducts (e.g.,
trihalomethanes) by reacting with chlorine used to disinfect drinking
water. These substances can result in increased health risks.
b. Pathogens. Livestock manure has been identified as a potential
source of pathogens by public health officials. Humans may be exposed
to pathogens via consumption of contaminated drinking water and
shellfish, or by contact and incidental ingestion during recreation in
contaminated waters. Relatively few microbial agents are responsible
for the majority of human disease outbreaks from water-based exposure
routes. Intestinal infections are the most common type of waterborne
infection, and affect the most people. A May, 2000 outbreak of
Escherichia coli O157:H7 in Walkerton, Ontario resulted in at least
seven deaths and 1,000 cases of intestinal problems; public health
officials theorize that flood waters washed manure contaminated with E.
coli into the town's drinking water well.
A study for the period 1989 to 1996 revealed that infections caused
by the protozoa Giardia sp. and Cryptosporidium parvum were the leading
cause of infectious water-borne disease outbreaks in which an agent was
identified. C. parvum is particularly associated with cows, and can
produce gastrointestinal illness, with symptoms such as severe
diarrhea. Healthy people typically recover relatively quickly from
gastrointestinal illnesses such as cryptosporidiosis, but such diseases
can be fatal in people with weakened immune systems. This subpopulation
includes children, the elderly, people with HIV infection, chemotherapy
patients, and those taking medications that suppress the immune system.
In Milwaukee, Wisconsin in 1993, C. parvum contamination of a public
water supply caused more than 100 deaths and an estimated 403,000
illnesses. The source was not identified, but possible sources include
runoff from cow manure application sites.
In 1999, an E. coli outbreak occurred at the Washington County Fair
in New York State. This outbreak, possibly the largest waterborne
outbreak of E. coli O157:H7 in U.S. history, took the lives of two fair
attendees and sent 71 others to the hospital. An investigation
identified 781 persons with confirmed or suspected illness related to
this outbreak. The outbreak is thought to have been caused by
contamination of the Fair's Well 6 by either a dormitory septic system
or manure runoff from the nearby Youth Cattle Barn.
Contact with pathogens during recreational activities in surface
water can also result in infections of the skin, eye, ear, nose, and
throat. In 1989, ear and skin infections and intestinal illnesses were
reported in swimmers as a result of discharges from a dairy operation
in Wisconsin.
As discussed in the previous section, excess nutrients result in
eutrophication, which is associated with the growth of a variety of
organisms that are toxic to humans either through ingestion or contact.
This includes the estuarine dinoflagellate Pfiesteria piscicida. While
Pfiesteria is primarily associated with fish kills and fish disease
events, the organism has also been linked with human health impacts
through dermal exposure. Researchers working with dilute toxic cultures
of Pfiesteria exhibited symptoms such as skin sores, severe headaches,
blurred vision, nausea/vomiting, sustained difficulty breathing, kidney
and liver dysfunction, acute short-term memory loss, and severe
cognitive impairment. People with heavy environmental exposure have
exhibited symptoms as well. In a 1998 study, such environmental
exposure was definitively linked with cognitive impairment, and less
consistently linked with physical symptoms.
Even with no visible signs of the algae blooms, shellfish such as
oysters, clams and mussels can carry the toxins produced by some types
of algae in their tissue. These can then affect people who eat the
contaminated shellfish. The 1995 National Shellfish Register of
Classified Growing Waters published by the National Oceanic and
Atmospheric Administration (NOAA) identifies over 100 shellfish bed
impairments (shellfish not approved for harvest) due to feedlots.
[[Page 2984]]
c. Trace Elements. Some of the trace elements in manure are
essential nutrients for human physiology; however, they can induce
toxicity at elevated concentrations. These elements include the feed
additives zinc, arsenic, copper, and selenium. Although these elements
are typically present in relatively low concentrations in manure, they
are of concern because of their ability to persist in the environment
and to bioconcentrate in plant and animal tissues. These elements could
pose a hazard if manure is overapplied to land.
Trace elements are associated with a variety of illnesses. For
example, arsenic is carcinogenic to humans, based on evidence from
human studies; some of these studies have found increased skin cancer
and mortality from multiple internal organ cancers in populations who
consumed drinking water with high levels of inorganic arsenic. Arsenic
is also linked with noncancer effects, including hyperpigmentation and
possible vascular complications. Selenium is associated with liver
dysfunction and loss of hair and nails, and zinc can result in changes
in copper and iron balances, particularly copper deficiency anemia.
d. Odors. Odor is a significant concern because of its documented
effect on moods, such as increased tension, depression, and fatigue.
Odor also has the potential for vector attraction, and has been
associated with a negative impact on property values. Additionally,
many of the odor-causing compounds in manure can cause physical health
impacts. For example, hydrogen sulfide is toxic, and ammonia gas is a
nasal and respiratory irritant.
4. Recreational Impacts
As discussed above, CAFO pollutants contribute to the increase in
turbidity, increase in eutrophication and algal blooms, and reduction
of aquatic populations in rivers, lakes, and estuaries. Impaired
conditions interfere with recreational activities and aesthetic
enjoyment of these water bodies. Recreational activities include
fishing, swimming, and boating. Fishing is reduced when fish
populations decrease. Swimming is limited by increased risk of
infection when pathogens are present. Boating and aesthetic enjoyment
decline with the decreased aesthetic appeal caused by loss of water
clarity and water surfaces clogged by algae. These impacts are more
fully discussed in Section XI of this preamble.
VI. What Are Key Characteristics of the Livestock and Poultry
Industries?
A. Introduction and Overview
1. Total Number and Size of Animal Confinement Operations
USDA reports that there were 1.1 million livestock and poultry
farms in the United States in 1997. This number includes all operations
that raise beef, dairy, pork, broilers, egg layers, and turkeys, and
includes both confinement and non-confinement (grazing and rangefed)
production. Only operations that raise animals in confinement will be
subject to today's proposed regulations.
For many of the animal sectors, it is not possible to precisely
determine what proportion of the total livestock operations are
confinement operations and what proportion are grazing operations only.
Data on the number of beef and hog operations that raise animals in
confinement are available from USDA. Since most large dairies have
milking parlors, EPA assumes that all dairy operations are potentially
confinement operations. In the poultry sectors, there are few small
non-confinement operations and EPA assumes that all poultry operations
confine animals. EPA's analysis focuses on the largest facilities in
these sectors only.
Using available 1997 data from USDA, EPA estimates that there are
about 376,000 AFOs that raise or house animals in confinement, as
defined by the existing regulations (Table 6-1). Table 6-1 presents the
estimated number of AFOs and the corresponding animal inventories for
1997 across select size groupings. These estimates are based on the
number of ``animal units'' (AU) as defined in the existing regulations
at 40 CFR 122, with the addition of the revisions that are being
proposed for immature animals and chickens. Data shown in Table 6-1 are
grouped by operations with more than 1,000 AU and operations with fewer
than 300 AU.
As shown in Table 6-1, there were an estimated 12,660 AFOs with
more that 1,000 AU in 1997 that accounted for about 3 percent of all
confinement operation. In most sectors, these larger-sized operations
account for the majority of animal production. For example, in the
beef, turkey and egg laying sectors, operations with more than 1,000 AU
accounted for more than 70 percent of all animal inventories in 1997;
operations with more than 1,000 AU accounted for more than 50 percent
of all hog, broiler, and heifer operations (Table 6-1). In contrast,
operations with fewer than 300 AU accounted for 90 percent of all
operations, but a relatively smaller share of animal production.
USDA personnel have reviewed the data and assumptions used to
derive EPA's estimates of the number of confinement operations.
Detailed information on how EPA estimated the number of AFOs that may
be subject to today's proposed regulations can be found 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'').
Table 6-1.--Number of AFOs and Animal On-Site, by Size Group, 1997
----------------------------------------------------------------------------------------------------------------
>1000 AU
Sector/Size category Total AFOs \1\ 300 AU Total >1000 AU 300 AU
----------------------------------------------------------------------------------------------------------------
(Number of operations)
(Number of animals, 1000's)
----------------------------------------------------------------------------------------------------------------
Cattle.................................. 106,080 2,080 102,000 26,840 22,790 2,420
Veal.................................... 850 10 640 270 10 210
Heifers................................. 1,250 300 200 850 450 80
Dairy................................... 116,870 1,450 109,740 9,100 2.050 5,000
Hogs: GF \2\............................ 53,620 1,670 48,700 18,000 9,500 2,700
Hogs: FF \2\............................ 64,260 2,420 54,810 38,740 21,460 5,810
Broilers................................ 34,860 3,940 20,720 1,905,070 1,143,040 476,270
Layers: wet \3\......................... 3,110 50 2,750 392,940 275,060 58,940
Layers: dry \3\......................... 72,060 590 70,370 392,940 275,060 58,940
Turkeys................................. 13,720 370 12,020 112,800 95,880 2,260
-----------------------------------------------------------------------
[[Page 2985]]
Total \4\........................... 375,700 12,660 336,590 NA NA NA
----------------------------------------------------------------------------------------------------------------
Source: Derived by USDA from published USDA/NASS data, including 1997 Census of Agriculture. In some cases,
available data are used to interpolate data for some AU size categories (see EPA's Development Document). Data
for veal and heifer operations are estimated by USDA. Totals may not add due to rounding.
\1\ As defined for the proposed CAFO regulations, one AU is equivalent to: one slaughter or feeder cattle, calf
or heifer; 0.7 mature dairy cattle; 2.5 hogs (over 55 pounds) or 5 nursery pigs; 55 turkeys; and 100 chickens
regardless of the animal waste system used.
\2\ ``Hogs: FF'' are farrow-finish (includes breeder and nursery pigs); ``Hogs: GF'' are grower-finish only.
\3\ ``Layers: wet'' are operations with liquid manure systems; ``Layers: dry'' are operations with dry systems.
\4\ ``Total AFOs'' eliminates double counting of operations with mixed animal types. Based on survey level
Census data for 1992, operations with mixed animal types account for roughly 25 percent of total AFOs.
2. Total Number of CAFOs Subject to the Proposed Regulations
Table 6-2 presents the estimated number of operations that would be
defined as a CAFO under each of the two regulatory alternatives being
proposed. The ``two-tier structure'' would define as CAFOs all animal
feeding operations with more than 500 AU. The ``three-tier structure''
would define as CAFOs all animal feeding operations with more than
1,000 AU and any operation with more than 300 AU, if they meet certain
``risk-based'' conditions, as defined in Section VII. Table 6-2
presents the estimated number of CAFOs in terms of number of operations
with more than 1,000 AU and operations for each co-proposed middle
category (operations with between 500 and 1,000 AU and between 300 and
1,000 AU, respectively).
Based on available USDA data for 1997, EPA estimates that both
proposed alternative structures would regulate about 12,660 operations
with more than 1,000 AU. This estimate adjusts for operations with more
than a single animal type. The two alternatives differ in the manner in
which operations with less than 1,000 AU would be defined as CAFOs and,
therefore, subject to regulation, as described in Section VII. As shown
in Table 6-2, in addition to the 12,660 facilities with more than 1,000
AU, the two-tier structure at 500 AU threshold would regulate an
additional 12,880 operations with between 500 and 1,000 AU. Including
operations with more than 1,000 AU, the two-tier structure regulates a
total of 25,540 AFOs that would be subject to the proposed regulations
(7 percent of all AFOs).
Under the three-tier structure, an estimated 39,330 operations
would be subject to the proposed regulations (10 percent of all AFOs),
estimated as the total number of animal confinement operations with
more than 300 AU. See Table 6-1. Of these, EPA estimates that a total
of 31,930 AFOs would be defined as CAFOs (9 percent of all AFOs) and
would need to obtain a permit (Table 6-2), while an estimated 7,400
operations would certify that they do not need to obtain a permit.
Among those operations needing a permit, an estimated 19,270 operations
have between 300 to 1,000 AU. For more information, see the Economic
Analysis.
Table 6-2. Number of Potential CAFOs by Select Regulatory Alternative, 1997
--------------------------------------------------------------------------------------------------------------------------------------------------------
``Two-tier'' ``Three-
Sector/Size category ------------------------------------------------------------------ Tier''
>300 AU >500 AU >750 AU >300 AU >500 AU >750AU >300 AU
----------------------------------------------------------------------------------------------------------------------------------------------
(#Operations)
(%Total) (#) (%Total)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cattle.......................................................... 4,080 3,080 2,480 4 3 2 3,210 3
Veal............................................................ 210 90 40 25 10 4 140 16
Heifers......................................................... 1,050 800 420 84 64 34 980 78
Dairy........................................................... 7,140 3,760 2,260 6 3 2 6,480 6
Hogs: GF \1\.................................................... 4,920 2,690 2,300 9 5 4 2,650 5
Hogs: FF \1\.................................................... 9,450 5,860 3,460 15 9 5 5,700 9
Broilers........................................................ 14,140 9,780 7,780 41 28 22 13,740 39
Layers: wet \2\................................................. 360 360 210 12 12 7 360 12
Layers: dry \2\................................................. 1,690 1,280 1,250 2 2 2 1,650 2
Turkeys......................................................... 2,100 1,280 740 15 9 5 2,060 15
Total \3\................................................... 39,320 25,540 19,100 10.5 6.8 5.1 31,930 8.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: See Table 6-1.
\1\FF =farrow-finish (includes breeder and nursery pigs); GF=grower finish.
\2\ ``Layers: wet'' are operations with liquid manure systems. ``Layers: dry'' are operations with dry systems.
\3\ ``Total'' eliminates double counting of operations with mixed animal types (see Table 6-1).
EPA estimated the number of operations that may be defined as CAFOs
under the three-tier structure using available information and compiled
data from USDA, State Extension experts, and agricultural
professionals. These estimates rely on information about the percentage
of operations in each sector that would be impacted by the ``risk-
based'' criteria described in Section VII. In some cases, this
information is available on a state or regional basis only and is
extrapolated to all operations nationwide. EPA's estimates reflect
information from a majority of professional experts in the field.
Greater weight is given to information obtained by State Extension
agents, since they have broader knowledge of the industry in their
state. More detailed information on how EPA estimated the number of
operations that may be affected by the proposed regulations under the
three-
[[Page 2986]]
tier structure is available in the rulemaking record and in the
Development Document.
EPA is also requesting comment on two additional options for the
scope of the rule. One of these is an alternative two-tier structure
with a threshold of 750 AU. Under this option, an estimated 19,100
operations, adjusting for operations with more than a single animal
type, would be defined as CAFOs. This represents about 5 percent of all
CAFOs, and would affect an estimated 2,930 beef, veal, and heifer
operations, 2,260 dairies, and 5,750 swine and 9,980 poultry operations
(including mixed operations). Under the other alternative, a variation
of the three-tier structure being co-proposed today, the same 39,320
operations with 300 AU or greater would potentially be defined as
CAFOs. However, the certification conditions for being defined as a
CAFO would be different for operations with 300 to 1,000 AU (as
described later in Section VII). EPA has not estimated how many
operations would be defined as CAFOs under this alternative three-tier
approach, although EPA expects that it would be fewer than the 31,930
estimated for the three-tier approach being proposed today. If after
considering comments, EPA decides to further explore this approach, it
will conduct a full analysis of the number of potentially affected
operations.
EPA does not anticipate that many AFOs with less than 500 AU (two-
tier structure) or 300 AU (three-tier structure) will be subject to the
proposed requirements. In the past 20 years, EPA is aware of very few
AFOs that have been designated as CAFOs. Based on available USDA
analyses that measure excessive nutrient application on cropland in
some production areas and other farm level data by sector, facility
size and region, EPA estimates that designation may bring an additional
50 operations under the proposed two-tier structure each year
nationwide. EPA assumed this estimate to be cumulative such that over a
10-year period approximately 500 AFOs may become designated as CAFOs
and therefore subject to the proposed regulations. EPA expects these
operations to consist of beef, dairy, farrow-finish hog, broiler and
egg laying operations that are determined to be significant
contributors to water quality impairment. Under the three-tier
structure, EPA estimates that fewer operations would be designated as
CAFOs, with 10 dairy and hog operations may be designated each year, or
100 operations over a 10-year period. Additional information is
provided in the Economic Analysis.
EPA expects that today's proposed regulations would mainly affect
livestock and poultry operations that confine animals. In addition to
CAFOs, however, the proposed regulations would also affect businesses
that contract out the raising or finishing production phase to a CAFO
but exercise ``substantial operational control'' over the CAFO (as
described in Section VII.C.6).
EPA expects that affected businesses may include packing plants and
slaughtering facilities that enter into a production contract with a
CAFO. Under a production contract, a contractor (such as a processing
firm, feed mill, or other animal feeding operation) may either own the
animals and/or may maintain control over the type of production
practices used by the CAFO. Processor firms that enter into a marketing
contract with a CAFO are not expected to be subject to co-permitting
requirements since the mechanism for ``substantial operational
control'' generally do not exist. Given the types of contract
arrangements that are common in the hog and poultry industries, EPA
expects that packers/slaughterers in these sectors may be subject to
the proposed co-permitting requirements.
As discussed later in Sections VI.D.1 and VI.E.1, EPA estimates
that 94 meat packing plants that slaughter hogs and 270 poultry
processing facilities may be subject to the proposed co-permitting
requirements. Other types of processing firms, such as further
processors, food manufacturers, dairy cooperatives, and renderers, are
not expected to be affected by the co-permitting requirements since
these operations are further up the marketing chain and do not likely
contract with CAFOs to raise animals. Fully vertically integrated
companies (e.g., where the packer owns the CAFO) are not expected to
require a co-permit since the firm as the owner of the CAFO would
require only a single permit. EPA solicits comment on these assumptions
as part of today's rulemaking proposal. EPA also expects that non-CAFO,
crop farmers who receive manure from CAFOs would be affected under one
of the two co-proposed options relating to offsite management of manure
(see Section VII).
Additional information is provided in the Economic Impact Analysis
of Proposed Effluent Limitations Guidelines and National Pollutant
Discharge Elimination System for Concentrated Animal Feeding Operations
(referred to as ``Economic Impact Analysis'').
3. Manure and Manure Nutrients Generated Annually at AFOs
USDA's National Resources Conservation Service (NRCS) estimates
that 128.2 billion pounds of manure are ``available for land
application from confined AU'' from the major livestock and poultry
sectors. EPA believes these estimates equate to the amount of manure
that is generated at animal feeding operations since USDA's methodology
accounts for all manure generated at confinement facilities. USDA
reports that manure nutrients available for land application totaled
2.6 billion pounds of nitrogen and 1.4 billion pounds of phosphorus in
1997 (Table 6-3). USDA's estimates do not include manure generated from
other animal agricultural operations, such as sheep and lamb, goats,
horses, and other farm animal species.
Table 6-3. Manure and Manure Nutrients ``Available for Land Application'', 1997
----------------------------------------------------------------------------------------------------------------
USDA estimates: ``available for EPA estimates: Percentage share by
application'' from confined AU'' facility size group b
a -------------------------------------------
Sector ----------------------------------
Total Total Total >1000 AU >750 AU >500 AU >300AU
manure nitrogen phosphorus
----------------------------------------------------------------------------------------------------------------
(bill.
lbs) (Million pounds)
(Percent of total manure nutrients applied)
----------------------------------------------------------------------------------------------------------------
Cattle c.......................... 32.9 521 362 83 85 86 90
Dairy............................. 45.5 636 244 23 31 37 43
Hogs.............................. 16.3 274 277 55 63 69 78
All Poultry....................... 33.5 1,153 554 49 66 77 90
[[Page 2987]]
Total......................... 128.2 2,583 1,437 49 58 64 72
----------------------------------------------------------------------------------------------------------------
Source:
a Manure and nutrients are from USDA/NRCS using 1997 Census of Agriculture and procedures documented developed
by USDA. Numbers are ``dry state'' and reflect the amount of manure nutrient ``available for application from
confined AU'' and are assumed by EPA to coincide with manure generated at confined operations.
b Percentage shares are based on the share of animals within each facility size group for each sector (shown in
Table 6-1) across three facility size groups.
c ``Cattle'' is the sum of USDA's estimate for livestock operations ``with fattened cattle'' and ``with cattle
other than fattened cattle and milk cows.''
The contribution of manure and manure nutrients varies by animal
type. Table 6-3 shows that the poultry industry was the largest
producer of manure nutrients in 1997, accounting for 45 percent (1.2
billion pounds) of all nitrogen and 39 percent (0.6 billion pounds) of
all phosphorus available for land application that year. Among the
poultry sectors, EPA estimates that approximately 55 percent of all
poultry manure was generated by broilers, while layers generated 20
percent and turkeys generated 25 percent. The dairy industry was the
second largest producer of manure nutrients, generating 25 percent (0.6
billion pounds) of all nitrogen and 17 percent (0.2 billion pounds) of
all phosphorus (Table 6-3). Together, the hog and beef sectors
accounted for about one-fourth of all nitrogen and nearly 40 percent of
all phosphorus from manure.
Table 6-3 shows EPA's estimate of the relative contribution of
manure generated by select major facility size groupings, including
coverage for all operations with more than 1,000 AU, all operations
with more than 750 AU or 500 AU (two-tier structure), and all
operations with more than 300 AU (three-tier structure). EPA estimated
these shares based on the share of animals within each facility size
group for each sector, as shown in Table 6-1. Given the number of AFOs
that may be defined as CAFOs and subject to the proposed regulations
(Table 6-1), EPA estimates that the proposed effluent guidelines and
NPDES regulations will regulate 5 to 7 percent (two-tier structure) to
10 percent (three-tier structure) percent of AFOs nationwide. Coverage
in terms of manure nutrients generated will vary by the proposed
regulatory approach. As shown in Table 6-3, under the 500 AU two-tier
structure, EPA estimates that the proposed requirements will capture 64
percent of all CAFO manure; under the 750 AU two-tier structure, EPA
estimates that the proposed requirements will capture 58 percent of all
CAFO manure. Under the three-tier structure, EPA estimates that the
proposed requirements will capture 72 percent of all CAFO manure
generated annually (Table 6-3). The majority of this coverage (49
percent) is attributable to regulation of operations with more than
1,000 AU.
Additional information on the constituents found in livestock and
poultry manure and wastewater is described in Section V. Information on
USDA's estimates of nutrients available for land application and on the
relative consistency of manure for the main animal types is provided in
the Development Document.
B. Beef Subcategory
1. General Industry Characteristics
Cattle feedlots are identified under NAICS 112112 (SIC 0211, beef
cattle feedlots) and NAICS 112111, beef cattle ranching and farming
(SIC 0212, beef cattle, except feedlots). This sector comprises
establishments primarily engaged in feeding cattle and calves for
fattening, including beef cattle feedlots and feed yards (except
stockyards for transportation).
The beef cattle industry can be divided into four separate producer
segments:
Feedlot operations fatten or ``finish'' feeder cattle
prior to slaughter and constitute the final phase of fed cattle
production. Calves usually begin the finishing stage after 6 months of
age or after reaching at least 400 pounds. Cattle are typically held
for 150 to 180 days and weigh between 1,150 to 1,250 pounds (for
steers) or 1,050 to 1,150 pounds (for heifers) at slaughter.
Veal operations raise male dairy calves for slaughter. The
majority of calves are ``special fed'' or raised on a low-fiber diet
until about 16 to 20 weeks of age, when they weigh about 450 pounds.
Stocker or backgrounding operations coordinate the flow of
animals from breeding operations to feedlots by feeding calves after
weaning and before they enter a feedlot. Calves are kept between 60
days to 6 months or until they reach a weight of about 400 pounds.
Cow-calf producers typically maintain a herd of mature
cows, some replacement heifers, and a few bulls, and breed and raise
calves to prepare them for fattening at a feedlot. Calves typically
reach maturity on pasture and hay and are usually sold at weaning. Cow-
calf operators may also retain the calves and continue to raise them on
pasture until they reach 600 to 800 pounds and are ready for the
feedlot.
Animal feeding operations in this sector that may be affected by
today's proposed regulations include facilities that confine animals.
Information on the types of facilities in this sector that may be
covered by the proposed regulations is provided in Section VII.
USDA reports that there were more than 106,000 beef feedlots in
1997, with a total inventory of 26.8 million cattle (Table 6.1). Due to
ongoing consolidation in the beef sector, the total number of
operations has dropped by more than one-half since 1982, when there
were 240,000 operations raising fed cattle. EPA also estimates that
there were 850 veal operations raising 0.3 million head and 1,250
stand-alone heifer operations raising 0.9 million head in 1997. Only a
portion of these operations would be subject to the proposed
regulations.
As shown in Table 6-2, under the two-tier structure, EPA estimates
that there are 3,080 beef feedlots with more than 500 head (500 AU of
beef cattle). EPA also estimates that there are about 90 veal
operations and 800 heifer operations that may be subject to the
proposed regulations. Under the three-tier structure, EPA estimates
that 3,210 beef feedlots, 140 veal and 980 heifer
[[Page 2988]]
operations with more than 300 head (300 AU) would meet the ``risk-
based'' conditions described in Section VII and thus require a permit.
EPA expects that few operations that confine fewer than 500 AU of
beef, veal, or heifers, would be designated by the permit authority.
For the purpose of estimating costs, EPA assumes that no beef, veal, or
heifer operations would be designated as CAFOs and subject to the
proposed regulations under the three-tier structure. Under the two-tier
structure, EPA assumes that about four beef feedlots located in the
Midwest would be designated annually, or 40 beef feedlots projected
over a 10-year period.
The cattle feeding industry is concentrated in the Great Plains and
Midwestern states. The majority of feedlots are located in the Midwest.
However, the majority of large feedlots (i.e., operations with more
than 1,000 head) are located in four Great Plains states--Texas,
Kansas, Nebraska, and Colorado--accounting for nearly 80 percent of
annual fed cattle marketings. Table 6-1 shows that, although the
majority of beef feedlots (over 98 percent) have capacity below 1,000
head, larger feedlots with more than 1,000 head accounted for the
majority of animal production. In 1997, feedlots with more than 1,000
head accounted for 85 percent of the nation's fed cattle inventory and
sales. Cattle feeding has become increasingly concentrated over the
last few decades. Feedlots have decreased in number, but increased in
capacity. The decline in the number of operations is mostly among
feedlots with less than 1,000 head.
The majority of cattle and calves are sold through private
arrangements and spot market agreements. Production contracting is not
common in the beef sector. Most beef sector contracts are marketing
based where operations agree to sell packers a certain amount of cattle
on a predetermined schedule. Production contracts are uncommon, but may
be used to specialize in a single stage of livestock production. For
example, custom feeding operations provide finish feeding under
contract. Backgrounding or stocker operations raise cattle under
contract from the time the calves are weaned until they are on a
finishing ration in a feedlot. As shown by 1997 USDA data of animal
ownership, production contracts account for a relatively small share (4
percent) of beef production. These same data show that production
contracts are used to grow replacement breeding stock.
Despite the limited use of contracts for the finishing and raising
phase of production, EPA expects that no businesses, other than the
CAFO where the animals are raised, will be subject to the proposed co-
permitting requirements. Reasons for this assumption are based on data
from USDA on the use of production contracts and on animal ownership at
operations in this sector. Additional information is provided in
Section 2 of the Economic Analysis. EPA is seeking comment on this
assumption as part of today's notice.
2. Farm Production and Waste Management Practices
Beef cattle may be kept on unpaved, partly paved, or totally paved
lots. The majority of beef feedlots use unpaved open feedlots. In open
feedlots, protection from the weather is often limited to a windbreak
near the fence in the winter and/or sunshade in the summer; however,
treatment facilities for the cattle and the hospital area are usually
covered. Confinement feeding barns with concrete floors are also
sometimes used at feedlots in cold or high rainfall areas, but account
for only 1 to 2 percent of all operations. Smaller beef feedlots with
less than 1,000 head, especially in areas with severe winter weather
and high rainfall, may use open-front barns, slotted floor housing, or
housing with sloped gutters.
Wastes produced from beef operations include manure, bedding, and
contaminated runoff. Paved lots generally produce more runoff than
unpaved lots. Unroofed confinement areas typically have a system for
collecting and confining contaminated runoff. Excessively wet lots
result in decreased animal mobility and performance. For this reason,
manure is often stacked into mounds for improved drainage and drying,
as well as providing dry areas for the animals. If the barn has slotted
floors, the manure is collected beneath slotted floors, and is scraped
or flushed to the end of the barn where it flows or is pumped to a
storage area for later application via irrigation or transported in a
tank wagon. Waste may also be collected using flushing systems.
Waste from a beef feedlot may be handled as a solid or liquid.
Solid manure storage can range from simply constructed mounds within
the pens to large stockpiles. In some areas, beef feedlot operations
may use a settling basin to remove bulk solids from the pen runoff,
reducing the volume of solids prior to entering a storage pond,
therefore increasing storage capacity. A storage pond is typically
designed to hold the volume of manure and wastewater accumulated during
the storage period, including additional storage volume for normal
precipitation, minus evaporation, and storage volume to contain a 25-
year, 24-hour storm event. An additional safety volume termed
``freeboard'' is also typically built into the storage pond design.
Veal are raised almost exclusively in confinement housing,
generally using individual stalls or pens. Veal calves are raised on a
liquid diet and their manure is highly liquid. Manure is typically
removed from housing facilities by scraping or flushing from collection
channels and then flushing or pumping into liquid waste storage
structures, ponds, or lagoons.
Waste collected from the feedlot may be transported within the site
to storage, treatment, and use or disposal areas. Solids and semisolids
are typically transported using mechanical conveyance equipment,
pushing the waste down alleys, and transporting the waste in solid
manure spreaders. Flail-type spreaders, dump trucks, or earth movers
may also be used to transport these wastes. Liquids and slurries are
transferred through open channels, pipes, or in a portable liquid tank.
The most common form of utilization is land application. However, the
amount of cropland and pastureland that is available for manure
application varies at each operation. Cattle waste may also be used as
a bedding for livestock, marketed as compost, or used as an energy
source.
Additional information on the types of farm production and waste
management practices is provided in the Development Document.
C. Dairy Subcategory
1. General Industry Characteristics
Operations that produce milk are identified under NAICS 11212,
dairy cattle and milk production (SIC 0241, dairy farms).
A dairy operation may have several types of animal groups present,
including:
Calves (0-5 months);
Heifers (6-24 months);
Lactating dairy cows (i.e., currently producing milk);
and;
Cows close to calving and dry cows (i.e., not currently
producing milk); and
Bulls.
Animal feeding operations in this sector that may be affected by
today's proposed regulations include facilities that confine animals.
Information on the types of facilities in this sector that may be
covered by the proposed regulations is provided in Section VII.
In 1997, there were 116,900 dairy operations with a year-end
inventory of
[[Page 2989]]
9.1 million milk cows that produced 156.1 billion pounds of milk (Table
6.1). Only a portion of these operations would be subject to the
proposed regulations. As shown in Table 6.2, under the two-tier
structure, EPA estimates that there are 3,760 dairy operations that
confine more than 350 milk cows (i.e., 500 AU equivalent). Under the
three-tier structure, EPA estimates that 6,480 dairy operations with
more than 200 head (i.e., 300 AU equivalent) would meet the ``risk-
based'' conditions described in Section VII and thus require a permit.
Table 6-1 shows that dairies with fewer than 200 head account for
the majority (95 percent) of milking operations and account for 55
percent of the nation's milk cow herd. EPA expects that under the two-
tier structure designation of dairies with fewer than 350 milk cows
would be limited to about 22 operations annually, or 220 dairies
projected over a 10-year time period. Under the three-tier structure,
EPA expects annual designation of dairies with fewer than 200 milk cows
would be limited to about 5 operations, or 50 operations over a 10-year
period. EPA expects that designated facilities will be located in more
traditional farming regions.
More than one-half of all milk produced nationally is concentrated
among the top five producing states: California, Wisconsin, New York,
Pennsylvania, and Minnesota. Other major producing states include
Texas, Michigan, Washington, Idaho, and Ohio. Combined, these ten
states accounted for nearly 70 percent of milk production in 1997. Milk
production has been shifting from traditional to nontraditional milk
producing states. Operations in the more traditional milk producing
regions of the Midwest and Mid-Atlantic tend to be smaller and less
industrialized. Milk production at larger operations using newer
technologies and production methods is emerging in California, Texas,
Arizona, New Mexico, and Idaho. Milk production in these states is
among the fastest-growing in the nation, relying on economies of scale
and a specialization in milk production to lower per-unit production
costs. (Additional data on these trends are provided in Section IV.C).
Over the past few decades, the number of dairy operations and milk
cow inventories has dropped, while overall milk production has been
increasing. USDA reports that while the number of dairy operations
dropped by more than one-half from 277,800 in 1982 to 116,900 in 1997,
the amount of milk produced annually at these operations rose from
135.5 billion pounds to 156.1 billion pounds. These figures signal
trends toward increased consolidation, large gains in per-cow output,
and increases in average herd size per facility. From 1982 to 1997, the
average number of dairy cows per facility doubled from 40 cows to 80
cows per facility.
Although milk and dairy food production has become increasingly
specialized, it has not experienced vertical integration in the same
way as other livestock industries. The use of production contracts is
uncommon in milk production. In part, this is attributable to the large
role of farmer-owned, farmer-controlled dairy cooperatives, which
handle about 80 percent of the milk delivered to plants and dealers.
Milk is generally produced under marketing-type contracts through
verbal agreement with their buyer or cooperative. Data from USDA
indicate that little more than 1 percent of milk was produced under a
production contract in 1997. Use of production contracts in the dairy
sector is mostly limited to contracts between two animal feeding
operations to raise replacement heifers.
Despite the limited use of contracts between operations to raise
replacement herd, EPA expects that no businesses other than the CAFO
where the animals are raised will be subject to the proposed co-
permitting requirements. Reasons for this assumption are based on data
from USDA on the use of production contracts and on animal ownership at
operations in this sector. Additional information is provided in
Section 2 of the Economic Analysis. EPA is seeking comment on this
assumption as part of today's notice of the proposed rulemaking.
2. Farm Production and Waste Management Practices
Animals at dairy operations may be confined in free-stalls,
drylots, tie-stalls, or loose housing. Some may be allowed access to
exercise yards or open pasture. The holding area confines cows that are
ready for milking. Usually, this area is enclosed and is part of the
milking center, which in turn may be connected to the barn or located
in the immediate vicinity of the cow housing. Milking parlors are
separate facilities where the cows are milked and are typically cleaned
several times each day to remove manure and dirt. Large dairies tend to
have automatic flush systems, while smaller dairies simply hose down
the area. Larger dairies in the northern states, however, may be more
likely to use continuous mechanical scraping of alleys in barns. Cows
that are kept in tie-stalls may be milked directly from their stalls.
Waste associated with dairy production includes manure,
contaminated runoff, milking house waste, bedding, spilled feed and
cooling water. Dairies may either scrape or flush manure, depending on
the solids content in manure and wastewater. Scraping systems utilize
manual, mechanical, or tractor-mounted equipment to collect and
transport manure from the production area. Flushing systems use fresh
or recycled lagoon water to move manure. Dairy manure as excreted has a
solids content of about 12 percent and tends to act as a slurry;
however, it can be handled as a semisolid or a solid if bedding is
added. Semisolid manure has a solids content ranging from 10 to 16
percent. Dilution water may be added to the manure to create a slurry
with a solids content of 4 to 10 percent. If enough dilution water is
added to the manure to reduce the solids content below 4 percent, the
waste is considered to be a liquid.
Manure in a solid or semisolid state minimizes the volume of manure
that is handled. In a dry system, the manure is collected on a regular
basis and covered to prevent exposure to rain and runoff; sources of
liquid waste, such as milking center waste, are typically handled
separately. In a liquid or slurry system, the manure is typically mixed
with flushing system water from lagoons; the milking center effluent is
usually mixed in with the animal manure in the lagoon or in the manure
transfer system to ease pumping. Liquid systems are usually favored by
large dairies because they have lower labor cost and because the
dairies tend to use automatic flushing systems.
Methods used at dairy operations to collect waste include
mechanical/tractor scraper, flushing systems, gutter cleaner/gravity
gutters, and slotted floors. Manure is typically stored as a slurry or
liquid in a waste storage pond or in structural tanks. Milking house
waste and contaminated runoff must be stored as liquid in a waste
storage pond or structure. One common practice for the treatment of
waste at dairies includes solids separation. Another common practice
for the treatment of liquid waste at dairies includes anaerobic
lagoons. The transfer of dairy waste depends on its consistency: liquid
and slurry wastes can be transferred through open channels, pumps,
pipes, or in a portable tank; solid and semi-solid waste can be
transferred by mechanical conveyance, solid manure spreaders, or by
being pushed down curbed concrete alleys. The majority of
[[Page 2990]]
dairy operations dispose of their waste through land application. The
amount of crop and pastureland available for land application of manure
varies by operation.
Additional information on the types of farm production and waste
management practices is provided in the Development Document.
D. Hog Subcategory
1. General Industry Characteristics
Hog operations that raise or feed hogs and pigs either
independently or on a contract basis are identified under NAICS 11221,
hog and pig farming (SIC 0213, hogs).
Hog operations may be categorized by six facility types based on
the life stage of the animal in which they specialize:
Farrow-to-wean operations that breed pigs and ship 10- to
15-pound pigs to nursery operations.
Farrowing-nursery operations that breed pigs and ship 40-
to 60-pound ``feeder'' pigs to growing-finishing operations.
Nursery operations that manage weaned pigs (more than 10
to 15 pounds) and ship 40- to 60-pound ``feeder'' pigs to growing-
finishing operations.
Growing-finishing or feeder-to-finish operations that
handle 40- to 60-pound pigs and ``finish'' these to market weights of
about 255 pounds.
Farrow-to-finish operations that handle all stages of
production from breeding through finishing.
Wean-to-finish operations that handle all stages of
production, except breeding, from weaning (10- to 15-pound pigs)
through finishing.
Animal feeding operations in this sector that may be affected by
today's proposed regulations include facilities that confine animals.
Information on the types of facilities in this sector that may be
covered by the proposed regulations is provided in Section VII.
In 1997, USDA reports that there were 117,880 hog operations with
56.7 million market and breeding hogs (Table 6-1). Not all of these
operations would be subject to the proposed regulations. As shown in
Table 6-2, under the two-tier structure, EPA estimates that there are
5,860 farrow-finish feedlots (including breeder and nursery operations)
and 2,690 grower-finish feedlots with more than 1,250 head (i.e., 500
AU equivalent). Under the three-tier structure, EPA estimates that
5,700 farrow-finish feedlots (including breeder and nursery operations)
and 2,650 grower-finish feedlots with more than 750 head (i.e., 300 AU
equivalent) would meet the ``risk-based'' conditions described in
Section VII and thus require a permit.
Table 6-1 shows that the majority of hog operations (93 percent)
have fewer than 1,250 head, accounting for about one-third of overall
inventories. Nearly half the inventories are concentrated among the 3
percent of operations with more than 2,500 head. Under the two-tier
structure EPA expects that designation of hog operations with fewer
than 1,250 head will be limited to about 20 confinement operations
annually, or 200 operations over a 10-year time period. Under the
three-tier structure, EPA expects that about 5 hog operations with
fewer than 750 head would be designated annually, or 50 operations over
a 10-year time period. EPA expects that designated facilities will be
located in more traditional farming regions.
Hog production is concentrated among the top five producing states,
including Iowa, North Carolina, Minnesota, Illinois, and Missouri.
Together these states supply 60 percent of annual pork supplies. The
majority of operations are located in the Midwest; however, the
Southeast has seen rapid growth in hog production in the past decade.
Recent growth in this region is due to increased vertical integration,
proximity to growing consumer markets, and the mild climate, which
offers lower energy costs and improved feed efficiency. (Additional
data on these trends are provided in Section IV.C).
The hog sector is undergoing rapid consolidation and becoming
increasingly specialized. USDA reports that while the number of hog
operations dropped by nearly two-thirds between 1982 and 1997 (from
329,800 to 109,800 operations), the number of feeder pigs sold has
risen from 20.0 million to 35.0 million marketed head over the same
period. As in other livestock sectors, increasing production from fewer
operations is attributable to expansion at remaining operations. Data
from USDA indicate that the average number of hogs per facility
increased from 170 pigs in 1982 to 560 pigs in 1997. Increasing
production is also attributable to substantial gains in production
efficiency and more rapid turnover, which has allowed hog farmers to
produce as much output with fewer animals.
The hog sector is rapidly evolving from an industry of small,
independent firms linked by spot markets to an industry of larger firms
that are specialized and vertically coordinated through production
contracting. This is particularly true of large-scale hog production in
rapidly growing hog production states such as North Carolina.
Production contracting is less common in the Midwest where coordination
efforts are more diversified.
Information from USDA on animal ownership at U.S. farms provides an
indication of the potential degree of processor control in this sector.
Data from USDA indicate the use of production contracts accounted for
66 percent of hog production in the Southern and Mid-Atlantic states in
1997, especially among the larger producers. This indicates that a
large share of hog production may be under the ownership or control of
processing firms that are affiliated with hog operations in this
region. This compares to the Midwest, where production contracting
accounted for 18 percent of hog production. Production contracting in
the hog sector differs from that in the beef and dairy sectors since it
is becoming increasingly focused on the finishing stage of production,
with the farmer (``grower'') entering into an agreement with a meat
packing or processing firm (``integrator''). Production contracts are
also used between two independent animal feeding operations to raise
immature hogs.
Businesses that contract out the growing or finishing phase of
production to an AFO may also be affected by the proposed co-permitting
requirements. Affected businesses may include other animal feeding
operations as well as processing sector firms. By NAICS code, meat
packing plants are classified as NAICS 311611, animal slaughtering (SIC
2011, meat packing plants). The Department of Commerce reports that
there were a total of 1,393 red meat slaughtering facilities that
slaughter hogs as well as other animals, including cattle and calves,
sheep, and lamb. Of these, Department of Commerce's 1997 product class
specialization identifies 83 establishments that process fresh and
frozen pork and 11 establishments that process or cure pork. These data
generally account for larger processing facilities that have more than
20 employees. EPA believes that processing firms that may be affected
by the proposed co-permitting requirements will mostly be larger
facilities that have the administrative and production capacity to take
advantage of various contract mechanisms. This assumption is supported
by information from USDA that indicates that production contracts in
the hog sector are generally associated with the largest producers and
processors. Section 2 of the Economic Analysis provides additional
information on the basis for EPA's
[[Page 2991]]
estimate of potential co-permittees. EPA is seeking comment on this
assumption as part of today's notice of the proposed rulemaking.
Using these Department of Commerce data, EPA estimates that 94
companies engaged in pork processing may be subject to the proposed co-
permitting requirements. This estimate does not include other
processors under NAICS 311611, including sausage makers and facilities
that ``further process'' hog hides and other by-products because these
operations are considered to be further up the marketing chain and
likely do not contract out to CAFOs.
2. Farm Production and Waste Management Practices
Many operations continue to have the traditional full range of pork
production phases at one facility, known as farrow-to-finish
operations. More frequently at new facilities, operations are
specialized and linked into a chain of production and marketing. The
evolution in farm structures has resulted in three distinct production
systems to create pork products: (1) farrow-to-finish; (2) farrowing,
nursery, and grow-finish operations; and (3) farrow-to-wean and wean-
finish operations. Most nursery and farrowing operations, as well as
practically all large operations of any type, raise pigs in pens or
stalls in environmentally controlled confinement housing. These houses
commonly use slatted floors to separate manure and wastes from the
animal. Open buildings with or without outside access are relatively
uncommon at large operations, but can be used in all phases of pork
production. Smaller operations, particularly in the Midwest, may
utilize open lots or pasture to raise pigs.
Hog waste includes manure and contaminated runoff. Most confinement
hog operations use one of three waste handling systems: flush under
slats, pit recharge, or deep underhouse pits. Flush housing uses fresh
water or recycled lagoon water to remove manure from sloped floor
gutters or shallow pits. The flushed manure is stored in lagoons or
tanks along with any precipitation or runoff that may come into contact
with the manure. Flushing occurs several times a day. Pit recharge
systems are shallow pits under slatted floors with 6 to 8 inches of
pre-charge water. The liquid manure is pumped or gravity fed to a
lagoon approximately once a week. Deep pit systems start with several
inches of water, and the manure is stored under the house until it is
pumped out for field application on the order of twice a year. Most
large operations have 90 to 365 days storage. The deep pit system uses
less water, creating a slurry that has higher nutrient concentrations
than the liquid manure systems. Slurry systems are more common in the
Midwest and the cooler climates.
Dry manure handling systems include those used at open buildings
and lots, scraped lots, hoop houses, deep bedded systems, and high rise
hog houses. These systems produce a more solid manure material that is
readily handled with a tractor or front end loader. The solids are
stored in stacks or covered until used as fertilizer. In some cases,
solids are composted.
Storage lagoons are used to provide anaerobic bacterial
decomposition of organic materials. When only the top liquid is removed
for irrigation or some other use, a limited amount of phosphorus-rich
sludge accumulates in the lagoon, which requires periodic removal.
Vigorous lagoon mixing with an agitator or a chopper prior to
irrigation is sometimes done to minimize the sludge accumulation. In
certain climates, a settling and evaporation pond is used to remove
solids, which are dried in a separate storage area. Some lagoons and
tanks are covered with a synthetic material that reduces ammonia
volatilization. Covers also prevent rainfall from entering the system
and, therefore, reduce disposal costs.
Land application is the most common form of utilization. To
mitigate odor problems and volatization of ammonia, liquid waste can be
injected below the soil surface. Waste may also be distributed through
an irrigation process. Waste management systems for hogs often
incorporate odor control measures, where possible.
Additional information on the types of farm production and waste
management practices is provided in the Development Document.
E. Poultry Subcategory
1. General Industry Characteristics
Poultry operations can be classified into three individual sectors
based on the type of commodity in which they specialize. These sectors
include operations that breed and/or raise:
Broilers or young meat chickens that are raised to a live
weight of 4 to 4.5 pounds and other meat-type chickens, including
roasters that are raised to 8 to 9 pounds. Classification: NAICS 11232,
broilers and other meat-type chickens (SIC 0251, broiler, fryer and
roaster chickens).
Turkeys and turkey hens, including whole turkey hens that
range from 8 to 15 pounds at slaughter, depending on market, and also
turkey ``canners and cut-ups'' that range from 22 to 40 pounds.
Classification: NAICS 11233, turkey production (SIC 0253, turkey and
turkey eggs).
Hens that lay shell eggs, including eggs that are sold for
human consumption and eggs that are produced for hatching purposes.
Classification: NAICS 11231, Chicken egg production (SIC 0252, chicken
eggs) and NAICS 11234, poultry hatcheries (SIC 0254, poultry
hatcheries).
Animal feeding operations in this sector that may be affected by
today's proposed regulations include facilities that confine animals.
Information on the types of facilities in this sector that may be
covered by the proposed regulations is provided in Section VII.
In 1997, the USDA reports that there were 34,860 broiler operations
that raised a total of 1.9 billion broilers during the year. There were
also 13,720 turkey operations raising a total 112.8 million turkeys.
Operations with egg layers and pullets totaled 75,170 with an average
annual inventory of 393 million egg layers on-site. (See Table 6-1).
Not all of these operations would be subject to the proposed
regulations.
Under the two-tier structure, EPA estimates that there are 9,780
broiler operations, 1,280 turkey operations and 1,640 egg laying and
pullet operations that have more than 500 AU (i.e., operations with
more than 50,000 chickens and more than 27,500 turkeys). Under the
three-tier structure, EPA estimates that 13,740 broiler operations,
2,060 turkey operations and 2,010 egg laying operations with more than
300 AU (i.e., operations with more than 30,000 chickens and more than
16,500 turkeys) would meet the ``risk-based'' conditions described in
Section VII and thus require a permit.
EPA expects few, if any, poultry AFOs with fewer than 500 AU will
be subject to the revised requirements. As shown in Table 6-1, most
poultry operations have fewer than 500 AU. Under the two-tier
structure, EPA expects that designation of broiler operations with
fewer than 50,000 chickens will be limited to two broiler and two egg
operations being designated annually, or a total of 40 poultry
operations over a 10-year period. EPA expects that no turkey operations
would be designated as CAFOs and subject to the proposed regulations.
EPA expects that no confinement poultry operations will be designated
as CAFOs under the proposed requirements under the three-tier
structure.
Overall, most poultry production is concentrated in the Southeast
and in key Midwestern states. As in the pork sector, the Southeast
offers advantages
[[Page 2992]]
such as lower labor, land, and energy costs; proximity to end markets;
and milder weather, which contributes to greater feed efficiency.
Nearly 60 percent of all broiler production is concentrated among the
top five producing states, including Georgia, Arkansas, Alabama,
Mississippi, and North Carolina. The top five turkey producing states
also account for about 60 percent of all turkeys sold commercially.
These include North Carolina, Minnesota, Virginia, Arkansas, and
California. Missouri and Texas are also major broiler and turkey
producing states. The top five states for egg production account for
more than 40 percent of all egg production, including Ohio, California,
Pennsylvania, Indiana, and Iowa. Other major egg producing states
include Georgia, Texas, Arkansas, and North Carolina.
The number of operations in each of the poultry sectors has been
declining while production has continued to rise. USDA reports that
while the number of both turkey and broiler operations decreased by
about 10,000 operations between 1982 and 1997, the number of animals
sold for slaughter rose nearly twofold: the number of broilers sold
rose from 3.5 billion to 6.7 billion and the number of turkeys sold
rose from 167.5 million to 299.5 million. During the same period, the
number of egg operations dropped nearly two-thirds (from 215,800
operations in 1982), while the number of eggs produced annually has
increased from 5.8 billion dozen to 6.2 billion dozen. Increased
production from fewer operations is due to expanded production from the
remaining operations. This is attributable to increases in the average
number of animals raised at these operations as well as substantial
gains in production efficiency and more rapid turnover, which has
allowed operators to produce more with fewer animals. Data from USDA
indicate that average inventory size on poultry operations increased
twofold on broiler operations and rose threefold at layer and turkey
operations between 1982 and 1997. (Additional data on these trends are
provided in Section IV.C). As in other sectors, larger operations
control most animal inventories and sales.
The poultry industry is characterized by increasing integration and
coordination between the animal production facility and the processing
sector. Vertical integration has progressed to the point where large
multifunction producer-packer-processor-distributor firms are the
dominant force in poultry meat and egg production and marketing.
Coordination through production contracting now dominates the poultry
industry. Today's integrators are subsidiaries of feed companies,
independent processors, cooperatives, meat packers, or retailers, or
affiliates of conglomerate corporations. These firms may own and/or
direct the entire process from the production of hatching eggs to the
merchandising of ready-to-eat-sized poultry portions to restaurants.
Production contracting in the poultry sector differs from that in
the other livestock sectors since it is dominated by near vertical
integration between a farmer (``grower'') and a processing firm
(``integrator''). Information from USDA on animal ownership at U.S.
farms provides an indication of the potential degree of processor
control in this sector. Data from USDA indicate production contracting
accounted for virtually all (98 percent) of U.S. broiler production in
1997. This indicates that nearly all broiler production may be under
the ownership or control of processing firms that are affiliated with
broiler operations. Production contracting accounts for a relatively
smaller share of turkey and egg production, accounting for 70 percent
and 37 percent, respectively.
Businesses that contract out the growing or finishing phase of
production to an AFO may also be affected by the proposed co-permitting
requirements. Affected businesses may include other animal feeding
operations as well as processing sector firms. Poultry processing
facilities are classified under NAICS 311615, poultry processing, and
NAICS 311999, all other miscellaneous (SIC 2015, poultry slaughtering
facilities). The Department of Commerce reports that there were a total
of 558 poultry and egg slaughtering and processing facilities in 1997.
Of these, Department of Commerce's 1997 product class specialization
for poultry identifies 212 establishments that process young chickens,
15 that process hens or fowl, and 39 that process turkeys (rounded to
the nearest ten). These data generally account for larger processing
facilities that have more than 20 employees. EPA believes that
processing firms that may be affected by the proposed co-permitting
requirements will mostly be larger facilities that have the
administrative and production capacity to take advantage of various
contract mechanisms. Section 2 of the Economic Analysis provides
additional information on the basis for EPA's estimate of potential co-
permittees. EPA is seeking comment on this assumption as part of
today's notice of the proposed rulemaking.
Using these Department of Commerce data, EPA estimates that about
270 companies engaged in poultry slaughtering may be subject to the
proposed co-permitting requirements. This estimate does not include egg
processors under NAICS 311999 because these operations are considered
to be further up the marketing chain and likely do not contract out to
CAFOs.
2. Farm Production and Waste Management Practices
There are two types of basic poultry confinement facilities--those
that are used to raise turkeys and broilers for meat and those that are
used to house layers. Broilers and young turkeys are grown on floors on
beds of litter shavings, sawdust, or peanut hulls; layers are confined
to cages. Broilers are reared in houses where an absorbent bedding
material such as wood shavings or peanut hulls are placed on the floor
at a depth of several inches. Breeder houses contain additional rows of
slats for birds to roost. Broilers may also be provided supplementary
heat during the early phases of growth. Turkeys as well as some pullets
and layers are produced in a similar fashion. Pullets or chickens that
are not yet of egg laying age are raised in houses on litter, or in
cages. Most commercial layer facilities employ cages to house the
birds, although smaller laying facilities and facilities dedicated to
specialty eggs such as brown eggs or free range eggs may use pastures
or houses with bedded floors. Layer cages are suspended over a bottom
story in a high-rise house, or over a belt or scrape gutter. The gutter
may be a shallow sloped pit, in which case water is used to flush the
wastes to a lagoon. Flush systems are more likely to be found at
smaller facilities in the South.
Poultry waste includes manure, poultry mortalities, litter, spilt
water, waste feed, egg wash water, and also flush water at operations
with liquid manure systems. Manure from broiler, breeder, some pullet
operations, and turkey operations is allowed to accumulate on the floor
where it is mixed with the litter. In the chicken houses, litter close
to drinking water access forms a cake that is removed between flocks.
The rest of the litter pack generally has low moisture content and is
removed every 6 months to 2 years, or between flocks to prevent
disease. This whole house clean-out may also require storage, depending
on the time of year it occurs. The litter is stored in temporary field
stacks, in covered piles, or in stacks within a roofed facility to help
keep it dry. Commonly, treatment of broiler and
[[Page 2993]]
turkey litter includes composting which stabilizes the litter into a
relatively odorless material and which increases the market value of
the litter. Proper composting raises the temperature within the litter
such that pathogens are reduced, allowing reuse of the litter in the
poultry house.
The majority of egg laying operations also use dry manure handling.
Laying hens are kept in cages and the manure drops below the cages in
both dry and liquid manure handling systems. Most of the dry manure
laying operations are constructed as high rise houses where the birds
are kept on the second floor and the manure drops to the first floor
sometimes referred to as the pit. Ventilation flows through the house
from the roof down over the birds and into the pit over the manure
before it is forced out through the sides of the house. The ventilation
drys the manure as it piles up into cones. Manure can be stored in high
rise houses for up to a year before requiring removal. In dry layer
houses with belts, the manure that drops below the cage collects on
belts and is transported to a separate covered storage area. Layer
houses with liquid systems use either a shallow pit or alleyway located
beneath the cages for flushing. Flushed wastes are pumped to a lagoon.
Because of the large number of routine mortalities associated with
large poultry operations, the disposal of dead birds is occasionally a
resource concern. Poultry facilities must have adequate means for
disposal of dead birds in a sanitary manner. To prevent the spread of
disease, dead birds are usually collected daily. Disposal alternatives
include incineration, rendering, composting, and in-ground burial or
burial in disposal tanks. Much of the waste from poultry facilities is
land applied.
Additional information on the types of farm production and waste
management practices is provided in the Development Document.
VII. What Changes to the NPDES CAFO Regulations Are Being Proposed?
A. Summary of Proposed NPDES Regulations
EPA is co-proposing, for public comment, two alternative ways to
structure the NPDES regulation for defining which AFOs are CAFOs. Both
structures represent significant improvements to the existing
regulation and offer increased environmental protection. The first
alternative proposal is a ``two-tier structure,'' and the second is a
``three-tier structure.'' Owners or operators of all facilities that
are defined as CAFOs in today's proposal, under either alternative,
would be required to apply for an NPDES permit.
In the first co-proposed alternative, EPA is proposing to replace
the current three-tier structure in 40 CFR 122.23 with a two-tier
structure. See proposed Sec. 122.23(a)(3) for the two-tier structure,
included at the end of this preamble. All AFOs with 500 or more animal
units would be defined as CAFOs, and those with fewer than 500 animal
units would be CAFOs only if they are designated as such by EPA or the
State NPDES permit authority.
In the second co-proposed alternative, EPA is proposing to retain
the current three-tier structure. All AFOs with 1,000 or more animal
units would be defined as CAFOs, and those with less than 300 animals
units would be CAFOs only if they are designated by EPA or the State
NPDES permit authority. Those with 300 to 1,000 animal units would be
CAFOs if they meet one or more of several specific conditions, and
today's proposal would revise the existing conditions. These facilities
could also be designated as CAFOs if they are found to be significant
contributors of pollutants to waters of the United States. Further, all
AFOs between 300 and 1,000 animal units would be required to certify to
the permit authority that they do not meet any of the conditions. Those
facilities unable to certify would be required to apply for a permit.
These regulatory alternatives are two of six different approaches
that the Agency considered. Two of the approaches are also being
seriously considered, but are not being proposed in today's action
because they have not been fully analyzed. However, EPA is soliciting
public comment on these two alternatives. One of the alternatives is a
two-tier structure, similar to what is being proposed today, but would
establish a threshold at the equivalent of 750 AU. The other
alternative under consideration is a three-tier structure, with
different certification and permitting requirements for facilities in
the 300 AU to 1,000 AU tier. These alternatives are described in more
detail in Section VII.B.5. After reviewing public comment, EPA may
decide to pursue either of these alternatives.
In addition, EPA considered two other alternative approaches that
are not being proposed. One would retain the existing three-tier
structure for determining which AFOs are CAFOs, and would retain the
existing conditions for determining which of the middle tier facilities
are CAFOs while incorporating all other proposed changes to the CAFO
regulations (e.g., the definition of CAFO, the duty to apply, etc.).
The sixth approach that was not proposed which is similar to today's
second alternative proposal, would retain the three-tiered structure
and would revise the conditions for determining which of the middle
tier facilities are CAFOs in the same manner as today's proposal. In
contrast with today's proposal, it would not require all AFOs in the
middle tier to certify they are not CAFOs.
EPA is soliciting comment on all six scenarios for structuring how
to determine which facilities are CAFOs.
Table 7-1.--Proposed Revision to the Structure of the CAFO Regulation
------------------------------------------------------------------------
Proposed revision Section
------------------------------------------------------------------------
Historical Record................................. B.1
Two-Tier Structure................................ B.2
Three-Tier Structure.............................. B.3
Comparative Analysis.............................. B.4
Alternative Scenarios Considered but not Proposed. B.5
------------------------------------------------------------------------
Besides changing the structure of the regulation, under both of
today's proposals, EPA is also proposing changes to clarify, simplify,
and strengthen the NPDES regulation, including to: clarify the
definition of an AFO; discontinue the use of the term ``animal unit''
and eliminate the mixed animal type multiplier when calculating numbers
of animals; eliminate the 25-year, 24-hour storm permit exemption; and
impose a clearer and more broad duty to apply for a permit on all
operations defined or designated as a CAFO.
EPA is also proposing several changes that determine whether a
facility is an AFO or whether it is a CAFO and
[[Page 2994]]
therefore must apply for an NPDES permit on that basis. Specifically,
EPA is proposing to formally define a CAFO to: include both the animal
production area and the land application area; broaden coverage in the
poultry sector to include all chicken operations, both wet and dry; add
coverage for stand-alone immature swine and heifer operations; lower
the NPDES threshold that defines which facilities are CAFOs for other
animal sectors, including horses, sheep, lambs and ducks; and require
facilities that are no longer active CAFOs to remain permitted until
their manure and storage facilities are properly closed and they have
no potential to discharge CAFO manure or wastewater. This section also
discusses the concept of ``direct hydrologic connection'' between
ground water and surface water and its application to CAFOs.
Considerations for providing regulatory relief to small businesses are
also discussed.
EPA is also proposing changes that clarify the scope of NPDES
regulation of CAFO manure and process wastewater. Today's proposal
modifies the criteria for designation of AFOs as CAFOs on a case-by-
case basis and explicitly describes EPA's authority to designate
facilities as CAFOs in States with approved NPDES programs. EPA is also
proposing that the permit authority must require entities that have
``substantial operational control'' over a CAFO to be co-permitted, and
is requesting comment on an option for States to waive this requirement
if they provide another means of ensuring that excess manure
transported from CAFOs to off-site recipients is properly land applied.
EPA also is clarifying Clean Water Act requirements concerning point
source discharges at non-CAFOs.
These changes are summarized in Table 7-2 and described in the
noted sections.
Table 7-2.--Proposed Revisions for Defining CAFOs Other Point Sources
------------------------------------------------------------------------
Proposed revision Section
------------------------------------------------------------------------
Clarify the vegetation language in the definition C.1
of an AFO.
Discontinue use of the term animal unit........... C.2.a
Eliminate the mixed animal type multiplier........ C.2.b
Remove the 25-year, 24-hour storm event exemption C.2.c
from the definition of a CAFO.
Clarify the duty to apply, that all CAFOs must C.2.d
apply for an NPDES permit.
Definition of a CAFO includes both production area C.2.e
and land application area.
Include dry poultry operations.................... C.2.f
Include stand-alone immature swine and heifer C.2.g
operations.
Coverage of other sectors besides beef, dairy, C.2.h
swine and poultry.
Require facilities that are no longer CAFOs to C.2.i
remain permitted until proper closure.
Applicability of direct hydrological connection to C.2.j
surface water.
Regulatory relief for small businesses............ C.2.k
Designation criteria.............................. C.3
Designation of CAFOs by EPA in States with NPDES C.4
authorized programs.
Co-permitting of entities that exert substantial C.5
operational control over a CAFO.
Point source discharges at AFOs that are not CAFOs C.6
------------------------------------------------------------------------
We also extensively discuss matters associated with the land
application of CAFO-generated manure and wastewater, including how the
agricultural storm water exemption applies to the application of CAFO-
generated manure both on land under the control of the CAFO operator
and off-site. EPA is proposing to require CAFO owners or operators to
land apply manure in accordance with proper agricultural practices, as
defined in today's regulation. EPA is also co-proposing two different
means of addressing the off-site transfer of CAFO-generated manure. In
one proposal, CAFO owners or operators would be allowed to transfer
manure off-site only to recipients who certify to land apply according
to proper agricultural practices; to maintain records of all off-site
transfers; and to provide adequate information to off-site manure
recipients to facilitate proper application. Alternately, the
certification would not be required, and CAFOs owners or operators
would simply be required to maintain records and provide the required
information to recipients. See Table 7-3 for references.
Table 7-3.--Land Application of CAFO-Generated Manure and Wastewater
------------------------------------------------------------------------
Proposed revision Section
------------------------------------------------------------------------
Why is EPA Regulating Land Application of CAFO D.1
Waste?.
How is EPA Interpreting the Agricultural Storm D.2
Water Exemption with Respect to Land Application
of CAFO-generated Manure?.
How is EPA Proposing to Regulate Discharges from D.3
Land Application of CAFO-generated Manure by
CAFOs?.
How is EPA Proposing to Regulate Land Application D.3
of Manure and Wastewater by non-CAFOs?.
------------------------------------------------------------------------
EPA is proposing several revisions to requirements contained in
CAFO permits. The requirement that CAFO owners or operators develop and
implement a ``Permit Nutrient Plan,'' or ``PNP,'' is discussed
extensively, including clarifying that a PNP is the EPA-enforceable
subset of a Comprehensive Nutrient Management Plan, or ``CNMP.''
EPA is also proposing to apply revised Effluent Limitation
Guidelines and standards (and hereafter referred to as effluent
guidelines or ELG) to beef, dairy, swine, poultry and veal operations
that are CAFOs by definition in either of the two proposed structures,
or that have 300 AU to 1,000 AU in the three-tier structure and are
designated. NPDES permits issued to small operations that are CAFOs by
designation (those with fewer than 500 AU in the two tier structure,
and those with fewer than 300 AU in the three tier structure) would
continue to be based on Best Professional Judgment (BPJ) of
[[Page 2995]]
the permit authority. Similarly, CAFOs in other sectors (i.e., horse,
sheep, lambs, and ducks) that have greater than 1,000 AU will continue
to be subject to the existing effluent guidelines and standards (as
they are in the existing regulation), while those with 1,000 AU or
fewer would be issued permits based on BPJ, as today's proposed
effluent guidelines does not include revisions to sectors other than
beef, dairy, swine, poultry and veal.
Today's NPDES proposal includes monitoring, reporting and record
keeping requirements that are consistent with those required by today's
proposed effluent guidelines (discussed in section VIII). In addition,
EPA is proposing to require all individual permit applicants, as well
as new facilities applying for coverage under general NPDES permits, to
submit a copy of the cover sheed and Executive Summary of their draft
Permit Nutrient Plan (PNP) to the permit authority along with the
permit application or Notice of Intent (NOI). EPA is proposing to
require all CAFOs to submit a notification to the permit authority,
within three months of obtaining permit coverage, that their Permit
Nutrient Plans (PNPs) have been developed, along with a fact sheet
summarizing the PNP. Further, EPA is proposing to require permittees to
submit a notification to the permit authority whenever the PNP has been
modified.
EPA is also proposing to require that the permit authority include
certain conditions in its general and individual permits that specify:
(1) Requirements for land application of manure and wastewater,
including methods for developing the allowable manure application rate;
(2) restrictions on timing of land application if determined to be
necessary, including restrictions with regard to frozen, saturated or
snow covered ground; (3) requirements for the facility to be permitted
until manure storage facilities are properly closed and therefore the
facility has no potential to discharge; (4) conditions for facilities
in certain types of topographical regions to prevent discharges to
ground water with a direct hydrological connection to surface water;
and (5) under one co-proposed option, requirements that the CAFO owner
or operator obtain a signed certification from off-site recipients of
more than twelve tons annually, that manure will be land applied
according to proper agricultural practices (co-proposed with omitting
such a requirement). Comments are also requested on whether EPA should
include erosion controls in the NPDES permit, and whether EPA should
establish an additional design standard that would address chronic
rainfall. Table 7-4 summarizes the proposed revisions that address
minimum permit conditions, as well as issues for which comment are
being sought.
Table 7-4.--Proposed Revisions for Permit Requirements
------------------------------------------------------------------------
Proposed revision Section
------------------------------------------------------------------------
Permit Nutrient Plan.............................. E.1
Effluent Limitations.............................. E.2
Monitoring and reporting.......................... E.3
Record keeping.................................... E.4
Special Conditions and Standard Conditions........ E.5
Determining allowable manure application rate. E.5.a
Timing of land application of manure.......... E.5.b
Maintaining permit until proper closure....... E.5.c
Discharge to ground water with a direct E.5.d
hydrological connection to surface water.
Obtain certification from off-site recipients E.5.e
of manure of appropriate land application.
Erosion control............................... E.5.f
Solicitation of comment on defining chronic E.5.g
rainfall.
------------------------------------------------------------------------
Finally, EPA is proposing to amend certain aspects of the general
and individual permit process to improve public access and public
involvement in permitting CAFOs. While the NPDES regulations already
provide a process for public involvement in issuing individual NPDES
permits, today EPA is proposing to require the permit authority to
issue quarterly public notices of all Notices of Intent (NOIs) received
for coverage under general NPDES permits for CAFOs, as well as of
notices from CAFOs that their Permit Nutrient Plans have been developed
or amended. Today's proposal discusses public availability of NOIs,
Permit Nutrient Plans and PNP notifications. EPA is proposing several
new criteria for which CAFOs may be ineligible for general permits, and
would require the permit authority to conduct a public process for
determining, in light of those criteria, when individual permits would
be required.
Owners or operators of all facilities that are defined as CAFOs in
today's proposed regulation would be required to apply for an NPDES
permit. However, EPA also is proposing that they may, instead, seek to
obtain from the permit authority a determination of ``no potential to
discharge'' in lieu of submitting a permit application. (EPA notes
that, because of the stringency of demonstrating that a facility has no
potential to discharge, EPA expects that few facilities will receive
such determinations.) Finally, EPA is proposing to amend the CAFO
individual permit application requirements and corresponding Form 2B.
See Table 7-5.
Table 7-5.--Proposed Revisions to Permit Process
------------------------------------------------------------------------
Proposed revision Section
------------------------------------------------------------------------
General Permit and NOI provisions................. F.1
Individual permits................................ F.2
Requests not to have a permit issued by F.3
demonstrating ``no potential to discharge''.
Amendments to NPDES Permit Application For CAFOs F.4
Form 2B.
------------------------------------------------------------------------
[[Page 2996]]
B. What Size AFOs Would be Considered CAFOs?
EPA is proposing two alternative structures for establishing which
AFOs would be regulated as CAFOs. Each proposal reflects the Agency's
efforts to balance the goals of ease of implementation and effectively
addressing the sources of water quality impairments. The two-tier
structure is designed to give both regulators and animal feeding
facility operators a clear, straightforward means of determining
whether or not an NPDES permit is required for a facility. On the other
hand, the three-tier structure, while less straightforward in
determining which facilities are required to have NPDES permits, may
allow the permit authority to focus its permitting resources on
facilities which are more likely to be significant sources of water
quality impairments. The Agency believes both the two-tier and three-
tier approaches are reasonable and is requesting comment on how best to
strike a balance between simplicity and flexibility while achieving the
goals of the Clean Water Act. EPA may decide to choose either or both
alternatives in the final rule, and requests comments on both. EPA is
also requesting comment on a variation of the two-tier structure and a
variation of the three-tier structure and, after considering public
comment, may decide to pursue either or both of these variations for
the final rule.
EPA is not proposing to define animal types on the basis of age,
size or species in order to avoid complicating the implementation of
this proposal. Throughout today's preamble, each of the subcategories,
under today's proposed effluent guidelines, is described as follows:
``Cattle, excluding mature dairy or veal'' (referred in
today's preamble as the beef sector) includes any age animal confined
at a beef operation, including heifers when confined apart from the
dairy. This subcategory also includes stand-alone heifer operations,
also referred to as heifer operations.
``Mature dairy cattle'' (referred in today's preamble as
the dairy sector) indicates that only the mature cows, whether milking
or dry, are counted to identify whether the dairy is a CAFO.
``Veal'' is distinguished by the type of operation. Veal
cattle are confined and manure is managed differently than beef cattle.
EPA is not proposing to define veal by size or age. Note that the
current regulation includes veal under the beef subcategory, but in
today's proposal a new veal subcategory would be established.
``Swine weighing over 25 kilograms or 55 pounds'' also
indicates that only mature swine are counted to determine whether the
facility is a CAFO. Once defined as a CAFO, all animals in confinement
at the facility would be subject to the proposed requirements.
``Immature Swine weighing less than 25 kilograms or 25
pounds'' indicates that immature swine are counted only when confined
at a stand-alone nursery. Today's preamble uses the terms ``swine
sector'' to indicate both mature and immature swine, but permit
provisions are separately applied to them.
``Chicken'' and ``Turkeys'' are listed as separate
subcategories and are counted separately in order to determine whether
the facility is a CAFO. However, they are subject to the same effluent
limitations, and are collectively referred to as the ``poultry
sector.''
``Ducks,'' ``Horses,'' and ``Sheep or Lambs'' are separate
subcategories under the existing NPDES and effluent limitation
regulations. Part 412 effluent limitations are not being revised in
today's proposal; however, some of the proposed revisions to the NPDES
program will affect these subcategories.
1. Historical Record
In 1973, when EPA proposed regulations for CAFOs, the Agency
determined the thresholds above which AFOs would be subject to NPDES
permitting requirements ``on the basis of information and statistics
received, pollution potential, and administrative manageability.'' 38
FR 10961, 10961 (May 3, 1973). In 1975, the Agency, after litigation,
again proposed regulations for CAFOs which established a threshold
number of animals above which an AFO would be determined to be a CAFO.
40 FR 54182 (Nov. 20, 1975). The Agency noted that it might be possible
to establish a precise regulatory formula to determine which AFOs are
CAFO point sources based on factors such as the proximity of the
operation to surface waters, the numbers and types of animals confined,
the slope of the land, and other factors relative to the likelihood or
frequency of discharge of pollutants into navigable waters. 40 FR at
54183.
The Agency decided, however, that even if such a formula could be
constructed, it would be so complex that both permitting authorities
and feedlot operators would find it difficult to apply. Then, as now,
EPA concluded that the clearest and most efficient means of regulating
concentrated animal feeding operations was to establish a definitive
threshold number of confined animals above which a facility is defined
as a CAFO, below which a permitting authority could designate a
facility as a CAFO, after consideration of the various relevant
factors. The threshold numbers initially established by the Agency were
based generally on a statement by Senator Muskie when the Clean Water
Act was enacted. Senator Muskie, floor manager of the legislation,
stated that: ``Guidance with respect to the identification of `point
sources' and `nonpoint sources,' especially with respect to
agriculture, will be provided in regulations and guidelines of the
Administrator.'' 2 Legislative History of the Water Pollution Control
Act Amendments of 1972 at 1299, 93d Cong, 1st Sess. (January 1973).
Senator Muskie then identified the existing policy with respect to
identification of agricultural point sources was generally that
``runoff from confined livestock and poultry operations are not
considered a `point source' unless the following concentrations of
animals are exceeded: 1000 beef cattle; 700 dairy cows; 290,000 broiler
chickens; 180,000 laying hens; 55,000 turkeys; 4,500 slaughter hogs;
35,000 feeder pigs; 12,000 sheep or lambs; 145,000 ducks.'' Id. In the
final rule, the Agency and commenters agreed that while Senator
Muskie's statement provided useful general guidance, particularly in
support of the idea of defining CAFOs based on specified numbers of
animals present, it was not a definitive statement of the criteria for
defining a CAFO. 41 FR 11458 (Mar. 18, 1976). The Agency, thus, looked
to data with respect to both the amount of manure generated by
facilities above the threshold and the number of facilities captured by
the regulation.
EPA has again looked to those factors and, with 25 years of
regulatory experience, focused particularly on the amount of manure
captured by the threshold, ease of implementation for both regulators
and the regulated community, as well as on matters of administrative
convenience and manageability of the permitting program. Based on these
considerations, EPA is proposing two alternative structures. EPA notes
that the NPDES threshold is generally synchronized with the effluent
guidelines applicability threshold, and information on the cost per
pound of pollutants removed, and affordability of the various options
is available in Section X.
2. Two-Tier Structure
The first alternative that EPA is proposing is a two-tier structure
that establishes which operations are
[[Page 2997]]
defined as CAFOs based on size alone. See proposed Sec. 122.23(a)(3).
In this alternative, EPA is proposing that the threshold for defining
operations as CAFOs be equivalent to 500 animal units (AU). All
operations with 500 or more animal units would be defined as CAFOs
(Sec. 122.23(a)(3)(i)). Operations with fewer than 500 animal units
would be CAFOs only if designated by EPA or the State permit authority
(Sec. 122.23(a)(3)(ii)). Table 7-6 describes the number of animals that
are equivalent to the proposed 500 AU threshold, as well as three other
two-tier thresholds that are discussed in this section.
The proposed two-tier structure would eliminate the 300 AU to 1,000
AU tier of the existing regulation, under which facilities were either
defined as a CAFO if they met certain conditions or were subject to
designation on a case-by-case basis by the permit authority according
to the criteria in the regulations. EPA is proposing to eliminate this
middle category primarily because it has resulted in general confusion
about which facilities should be covered by an NPDES permit, which, in
turn, has led to few facilities being permitted under the existing
regulation. The two-tier structure offers simplicity and clarity for
the regulated community and enforcement authorities for knowing when a
facility is a CAFO and when it is not, thereby improving both
compliance and enforcement.
Table 7-6.--Number of Animals Covered by Alternative Two-Tier Approaches
------------------------------------------------------------------------
Number of animals equivalent to:
Animal type -------------------------------------------
300 AU 500 AU 750 AU 1,000 AU
------------------------------------------------------------------------
Cattle and Heifers.......... 300 500 750 1,000
Veal........................ 300 500 750 1,000
Mature Dairy Cattle......... 200 350 525 700
Swine weighing over 25 750 1,250 1,875 2,500
kilograms--or 55 pounds....
Immature Swine weighing less 3,000 5,000 7,500 10,000
than 25 kilograms, or 55
pounds.....................
Chickens.................... 30,000 50,000 75,000 100,000
Turkeys..................... 16,500 27,500 41,250 55,000
Ducks....................... 1,500 2,500 3,750 5,000
Horses...................... 150 250 375 500
Sheep or Lambs.............. 3,000 5,000 7,500 10,000
------------------------------------------------------------------------
Operations with fewer animals than the number listed for the
selected threshold in Table 7-6 would only become CAFOs through case-
by-case designation.
In order to determine the appropriate threshold for this two-tier
approach, EPA analyzed information on numbers of operations, including
percent of manure generated, potential to reduce nutrient loadings, and
administrative burden. EPA considered current industry trends and
production practices, including the trend toward fewer numbers of AFOs,
and toward larger facilities that tend to be more specialized and
industrialized in practice, as compared to more traditional
agricultural operations. EPA also considered other thresholds,
including 300 AU, 750 AU, or retaining the existing 1,000 AU threshold.
After considering each of these alternatives, EPA is proposing 500 AU
as the appropriate threshold for a two-tier structure, but is also
requesting comment on a threshold of 750 AU.
EPA is proposing 500 AU as the appropriate threshold for a two-tier
structure because it regulates larger operations and exempts more
traditional--and oftentimes more sustainable--farm production systems
where farm operators grow both livestock and crops and land apply
manure nutrients. Consistent with the objectives under the USDA-EPA
Unified National Strategy for Animal Feeding Operations (March 9,
1999), the proposed regulations cover more of the largest operations
since these pose the greatest potential risk to water quality and
public health, given the sheer volume of manure generated at these
operations. Larger operations that handle larger herds or flocks often
do not have an adequate land base for manure disposal through land
application. As a result, large facilities need to store large volumes
of manure and wastewater, which have the potential, if not properly
handled, to cause significant water quality impacts. By comparison,
smaller farms manage fewer animals and tend to concentrate less manure
nutrients at a single farming location. Smaller farms tend to be less
specialized and are more diversified, engaging in both animal and crop
production. These farms often have sufficient cropland and fertilizer
needs to appropriately land apply manure nutrients generated at a
farm's livestock or poultry business. More information on the
characteristics of larger-scale animal production practices is provided
in sections IV and VI of this document, as well as noted in the
analysis of impacts to small businesses (section X.I).
EPA is proposing the 500 AU threshold because operations of this
size account for the majority of all manure and manure nutrients
produced annually. The proposed two-tier structure would cover an
estimated 25,540 animal production operations, or approximately seven
percent of all operations, which account for 64 percent of all AFO
manure generated annually. The USDA-EPA Unified National Strategy had a
goal of regulating roughly five percent of all operations.
EPA is specifically seeking comment on an alternative threshold of
750 AU, which would encompass five percent of AFOs. There are an
estimated 19,100 operations with 750 AU or more (13,000 of which have
more than 1,000 AU), and account for 58 percent of all manure and
manure nutrients produced annually by AFOs. Regulating five percent of
AFOs may be viewed by some as being consistent with the USDA-EPA
Unified National Strategy.
A 750 AU threshold has the benefits cited for the 500 AU threshold.
The two-tier structure is simple and clear, and it would focus
regulation on even larger operations, thereby relieving smaller
operations from the burden of being automatically regulated, and
moderating the administrative burden to permit authorities. Permit
authorities could use state programs to focus on operations below 750
AU, and could use the designation process as needed.
In some sectors, a 750 AU threshold may not be sufficiently
protective of the environment. For example, in the Pacific Northwest,
dairies tend to be smaller, but also tend to be a significant concern.
In the mid-Atlantic, where
[[Page 2998]]
poultry operations have been shown to be a source of environmental
degradation, a 750 AU threshold would exempt many broiler operations
from regulatory requirements. EPA is concerned that a 750 AU threshold
would disable permit authorities from effectively addressing regional
concerns.
EPA also considered adopting the 1,000 AU threshold, which would
have regulated three percent of all operations and 49 percent of all
manure generated annually. A threshold of 300 AU was also considered,
which would have addressed an additional 8 percent of all manure
generated annually, but would have brought into regulation 50 percent
more operations than the 500 AU threshold (thus regulating a total of
10 percent of all AFOs which account for 72 percent of AFO manure).
Raising the NPDES threshold to 500 AU, 750 AU or 1,000 AU raises a
policy question for facilities below the selected threshold but with
more than 300 AU. Facilities with 300 to 1,000 AU are currently subject
to NPDES regulation under some conditions, though in practice few
operations in this size range have actually been permitted to date. To
rely entirely on designation for these operations could be viewed by
some as deregulatory, because the designation process is a time
consuming and resource intensive process that makes it difficult to
redress violations. It also results in the inability for permit
authorities to take enforcement actions against initial discharges,
(unless they are from an independent point source at the facility);
instead such discharges could only result in requiring a permit. Unless
the designation process can be streamlined in some way to enable permit
authorities to more efficiently address those who are significant
contributors of pollutants, raising the threshold too high may also not
be sufficiently protective of the environment. Please see Section
VII.C.3 and VII.C.4 for a discussion of the designation process.
More information on how data for these alternatives were estimated
is provided in section VI of this preamble.
EPA is soliciting comment on the two-tier structure, and what the
appropriate threshold should be. In addition, EPA is soliciting comment
on other measures this rule, when final, might include to ensure that
facilities below the regulatory threshold meet environmental
requirements, such as by streamlining the designation process or some
other means.
3. Three-Tier Structure
The second alternative that EPA is proposing is a three-tier
structure that retains the existing tiers but amends the conditions
under which AFOs with 300 AU to 1,000 AU, or ``middle tier''
facilities, would be defined as CAFOs. Further, EPA would require all
middle tier AFOs to either apply for an NPDES permit or to certify to
the permit authority that they do not meet any of the conditions which
would require them to obtain a permit.
EPA is proposing this alternative because it presents a ``risk
based'' approach to determining which operations pose the greatest
concern and have the greatest potential to discharge. The particular
conditions being proposed would have the effect of ensuring that manure
at all facilities with 300 AU or more is properly managed, and thus may
be more environmentally protective than the two-tier structure.
Further, even though this alternative would impose some degree of
burden on all AFOs with 300 AU or more, it would provide a way for
facilities to avoid being permitted, and could reduce the
administrative burden associated with permitting.
The three-tier alternative would affect all 26,665 facilities
between 300 AU and 1,000 AU in addition to the 12,660 facilities with
greater than 1,000 AU, and thus would affect 10 percent of all AFOs
while addressing 72 percent of all AFO manure. However, because owners
or operators of middle tier facilities would be able to certify that
their operations are not CAFOs, EPA estimates that between 4,000 to
19,000 mid-size facilities would need to apply for and obtain a permit.
Of the approximately 26,000 AFOs with 300 AU to 1,000 AU, EPA
estimates that owners or operations of approximately 7,000 facilities
would have to, at a minimum, implement a Permit Nutrient Plan (as
discussed further below) and would be able to certify to the permit
authority that they are not a CAFO based on existing practices.
Operators of some 19,000 facilities of these middle tier facilities
would be required to adopt certain practices in addition to
implementing a PNP, in order to be able to certify they are not a CAFO
to avoid being permitted.
See the EPA NPDES CAFO Rulemaking Support Document, included in the
Record, for detailed descriptions of the number of facilities affected
by this and the other alternative scenarios considered.
EPA is also proposing the three-tier structure because it provides
flexibility for State programs. A State with an effective non-NPDES
program could succeed in helping many of their middle tier operations
avoid permits by ensuring they do not meet any of the conditions that
would define them as CAFOs. This important factor would enable States
to tailor their programs while minimizing the changes State programs
might need to make to accommodate today's proposed rulemaking.
The three-tier structure would affect the facilities shown in Table
7-7.
Table 7-7.--Number of Animals in the Three-tier Approach
[By sector]
----------------------------------------------------------------------------------------------------------------
>1000 AU 300-1000AU 300 AU
equivalent equivalent equivalent
Animal Type (Number of (Number of (Number of
animals) animals) animals)
----------------------------------------------------------------------------------------------------------------
Cattle, Excluding Mature Dairy and Veal................ 1,000 300-1,000 300
Veal................................................... 1,000 300-1,000 300
Mature Dairy Cattle.................................... 700 200-700 200
Swine, weighing over 25 kilograms or 55 pounds......... 2,500 750-2,500 750
*Immature Swine, weighing less than 25 kilograms or 55 10,000 3,000-10,000 3,000
pounds................................................
*Chickens.............................................. 100,000 30,000-100,000 30,000
Turkeys................................................ 55,000 16,500-55,000 16,500
Ducks.................................................. 5,000 1,500-5,000 1,500
Horses................................................. 500 150-500 150
[[Page 2999]]
Sheep or Lambs......................................... 10,000 3,000-10,000 3,000
----------------------------------------------------------------------------------------------------------------
*Immature swine, heifers and dry chicken operations are not included in the existing regulation but are included
in today's proposed rulemaking.
Revised Conditions. EPA examined the conditions under the existing
regulation and determined that the conditions needed to be modified in
order to improve its efficacy. Under the existing regulation, an AFO
with 300 AU to 1,000 AU is not defined as a CAFO unless it meets one of
the two criteria governing the method of discharge: (1) Pollutants are
discharged through a man-made ditch, flushing system, or other similar
man-made device; or (2) pollutants are discharged directly into waters
of the United States that originate outside of the facility and pass
over, across, or through the facility or otherwise come into direct
contact with the confined animals. Under the two-tier structure, these
conditions would be eliminated because a facility would simply be
defined as a CAFO if it had more than 500 AU. Under the three-tier
structure, EPA is proposing to eliminate the existing conditions and
add several others designed to identify facilities which pose the
greatest risk to water quality.
The three-tier proposal would, for the middle tier, eliminate both
criteria in the existing regulation because these conditions have
proven to be difficult to interpret and implement for AFOs in the 300
AU to 1,000 AU size category, and thus have not facilitated compliance
or enforcement, and the scenario does not meet the goal of today's
proposal to simplify the NPDES regulation for CAFOs. The two criteria
governing method of discharge, e.g., ``man-made device'' and ``stream
running through the CAFO,'' are subject to interpretation, and thus
difficult for AFO operators in this size range to determine whether or
not the permit authority would consider them to be a CAFO. EPA does not
believe it is necessary to retain these criteria because all discharges
of pollutants from facilities of this size should be considered point
source discharges. By replacing these terms with a list of conditions,
EPA intends to clarify that all discharges from CAFOs must be covered
by an NPDES permit, whether or not they are from a manmade conveyance.
EPA notes that under this proposal, the Agency would not eliminate the
two conditions as criteria for designation of AFOs with less than 300
AU as CAFOs. See the discussion of designation in Section VII.C.3.
The revised conditions for the middle tier would require the owner
or operator to apply for an NPDES permit if the operation meets any of
the following conditions and is therefore a CAFO: (1) There is direct
contact of animals with waters of the U.S. at the facility; (2) there
is insufficient storage and containment at the production area to
prevent discharges from reaching waters of the U.S.; (3) there is
evidence of a discharge from the production area in the last five
years; (4) the production area is located within 100 feet of waters of
the U.S.; (5) the operator does not have, or is not implementing, a
Permit Nutrient Plan that meets EPA's minimum requirements; or (6) more
than twelve tons of manure is transported off-site to a single
recipient annually, unless the recipient has complied with the
requirements for off-site shipment of manure.
The EPA NPDES CAFO Rulemaking Support Document, dated September 26,
2000 (available in the rulemaking Record), describes the assumptions
used to estimate the number of facilities that would be affected by
each condition, which EPA developed in consultation with state
regulatory agency personnel, representatives of livestock trade
associations, and extension specialists.
Each of these proposed conditions is described further below.
Direct contact of animals with waters of the U.S. The condition for
``direct contact of animals with waters of the U.S.'' covers situations
such as dairy or beef cattle walking or standing in a stream or other
such water that runs through the production area. This condition
ensures that facilities which allow such direct contact have NPDES
permits to minimize the water quality problems that such contact can
cause.
Insufficient Storage. The condition for ``insufficient storage and
containment at the production area to prevent discharge to waters of
the U.S.'' is intended to address discharges through any means,
including sheet runoff from the production area, whereby rain or other
waters might come into contact with manure and other raw materials or
wastes and then run off to waters of the U.S. or leach to ground water
that has a direct hydrologic connection to waters of the U.S. This is
to ensure that all mid-sized facilities prevent discharges from
inadequate storage and containment of manure, process wastewater, storm
water, and other water coming in contact with manure.
Sufficient storage would be defined as facilities that have been
designed and constructed to standards equivalent to today's proposed
effluent guidelines. Thus, beef and dairy operations would be designed
and constructed to prevent discharge in a 25-year, 24-hour storm event,
while swine and poultry would be required to meet a zero discharge
standard. See Section VIIIC.6.
Past or Current Discharge. Operations that meet the condition for
``evidence of discharge from the production areas within the past five
years'' would be considered CAFOs under this proposal. A discharge
would include all discharges from the production area including, for
example, a discharge from a facility designed to contain a 25-year, 24-
hour storm. Evidence of discharge would include: citation by the permit
authority; discharge verified by the permit authority whether cited or
not; or other verifiable evidence that the permit authority determines
to be adequate to indicate a discharge has occurred.
Under this approach, there would be no allowance in the
certification process for facilities in the beef and dairy sectors
designed to contain runoff from a 25-year, 24-hour storm that had a
discharge anyway during an extreme storm event. Thus, in this respect,
the requirements for certification would be more stringent than those
that would apply to a permitted facility. EPA is thus proposing that a
facility that chooses not to be covered by an NPDES permit would not
get the benefits of NPDES coverage such as the 25-year, 24-hour storm
standard for beef and dairy operations, and upset and bypass defense.
Alternatively, EPA is soliciting
[[Page 3000]]
comment on the definition of a ``past or current discharge,'' including
whether to define it as a discharge from a facility that has not been
designed and constructed in accordance with today's proposed effluent
guidelines. This would make the certification requirements consistent
with those for permitted facilities.
Proximity to Waters of the U.S. Operations with production areas
that are located within 100 feet of waters of the U.S. are of
particular concern to EPA, since their proximity increases the chance
of discharge to waters and is a compelling factor that would indicate
the potential to discharge. Research has shown that the amount of
pollutants in runoff over land can be mitigated by buffers and
setbacks. (See Environmental Impact Assessment; Development of
Pollutant Loading Reductions from the Implementation of Nutrient
Management and Best Management Practices; both available in the
rulemaking Record.) Any operation located at a distance less than the
minimum setback poses a particular risk that contaminants will
discharge to receiving waters. EPA estimates that approximately 4,000
operations between 300 AU and 1,000 AU in size have production areas
that are within 100 feet of waters of the U.S.
Permit Nutrient Plan for Land Application of Manure and Wastewater.
For facilities that land apply manure, another condition indicative of
risk to water impairment is whether or not the facility has developed
and is implementing a Permit Nutrient Plan for manure and/or wastewater
that is applied to land that is owned or controlled by the AFO
operator. Contamination of water from excessive application of manure
and wastewater to fields and cropland presents a substantial risk to
the environment and public health because nutrients from agriculture
are one of the leading sources of water contamination in the United
States. While CAFOs are not the only source of contamination, they are
a significant source, and CAFO operators should apply manure properly
to minimize environmental impacts. Thus, EPA would require any facility
with 300 AU to 1,000 AU that does not have a PNP that conforms to
today's proposed effluent guidelines for land application to apply for
an NPDES permit. (As described in Section VII.E.1, the PNP is the
effluent guideline subset of elements in a CNMP. Section VIII.C.6 of
today's proposal describes the effluent guideline requirements in a
PNP.)
Certification for Off-site Transfer of CAFO-generated Manure. The
final condition for avoiding a permit concerns the transfer of CAFO-
generated manure and wastewater to off-site recipients. EPA is co-
proposing two ways to address manure transferred off-site, which are
discussed in detail in Section VII.D.2, as well as in VII.e.5.e. In
this condition, a facility would be considered a CAFO if more than 12
tons of manure is transported off-site to a single recipient annually,
unless the AFO owner or operator is complying with the requirements for
off-site transfer of manure, or is complying with the requirements of a
State program that are equivalent to the requirements of 40 CFR part
412.
Under one co-proposed option, the AFO owner or operator would be
required to obtain certifications from recipients that the manure will
be properly managed; to maintain records of the recipients and the
quantities transferred; and to provide information to the recipient on
proper manure management and test results on nutrient content of the
manure. Under the alternative option, CAFOs would not be required to
obtain certifications, but would still maintain the records of
transfers and provide the information to the recipients.
Under the first option, the CAFO owner or operator would obtain a
certification from recipients (other than waste haulers that do not
land apply the waste) that the manure: (1) Will be land applied in
accordance with proper agricultural practices as defined in today's
proposal; (2) will be applied in accordance with an NPDES permit; or
(3) will be used for alternative uses, such as for pelletizing or
distribution to other markets. If transferring manure and wastewater to
a waste hauler, the CAFO owner or operator would be required to obtain
the name and location of the recipients of the waste, if known, and
provide the hauler with an analysis of the content of the manure and a
brochure describing responsibilities for appropriate manure management,
which would be provided, in turn, to the recipient. These provisions
are discussed in more detail in Sections VII.D.4 and VII.E.4.
Excess Manure Alternative Considered. As an alternative to the two
conditions addressing land application of CAFO-generated manure, EPA
also considered a condition that would simply require the CAFO operator
to determine whether it generates more manure than the land under his
or her control could accommodate at allowable manure application rates,
and if so, it would be a CAFO, required to land apply according to a
PNP. Further, this condition would create a voluntary option for off-
site transfer of CAFO-generated manure whereby, if the manure was
transferred to someone certifying they had a certified CNMP and were
implementing it, the facility would not be a CAFO on the basis of
having excess manure.
EPA considered this criterion to identify which CAFOs were likely
to pose a risk of discharge and impacts to human health and the
environment based on generation of excess manure (e.g., more manure
than can be properly applied to land under his or her operational
control). Requiring such CAFOs to apply for an NPDES permit would allow
EPA to require these operations to maintain records documenting the
fate of the manure (e.g., whether it was land applied on-site or
transferred to a third party). EPA is interested in monitoring the fate
of the large quantities of manure generated by CAFOs, and in educating
recipients regarding proper agricultural practices. CAFO operators able
to certify there is sufficient cropland under their operational control
to accommodate the proper application of manure generated at their
facility would not be defined as CAFOs and thus would not need to apply
for an NPDES permit on that basis.
To identify facilities that generate excess manure, EPA considered
a screening tool originally developed by USDA, known as Manure Master.
The tool allows AFO operators to compare the nutrient content in the
animal manure produced by an AFO with the quantity of nutrients used
and removed from the field on which that manure is applied. This tool
would help assess the relative potential for the nutrients contained in
the animal manure to meet or exceed the crop uptake and utilization
requirements for those crops that receive applications of manure. The
screening tool calculates a balance between the nitrogen, phosphorus,
and potassium content in the manure and the quantity of these nutrients
used by particular crops. This balance can be calculated based upon
recommended fertilizer application rates, when known, or upon estimated
plant nutrient content, when recommended fertilizer application rates
are not known. For nitrogen, the balance is calculated taking into
account expected losses from leaching, denitrification, and
volatilization.
The manure screening tool would be available as either an Internet-
based program or as a computer software program that allows for direct
input of data and generation of reports. AFO operators would enter the
average number of confined animals by animal
[[Page 3001]]
type, the number of acres for each crop, and the expected yield for
each crop for which the operator expects to apply manure. The operator
would also specify whether the manure is incorporated into the soil or
surface applied. The software also allows, but does not require, entry
of soil test or other crop nutrient recommendations. The screening tool
produces a report that includes the balance (i.e., pounds needed or
pounds excess, per acre) for nitrogen, phosphorus, and potassium for an
AFO operator's fields. The balance will advise the operator whether the
quantity of nutrients in his or her animal manure exceeds the quantity
removed in harvested plants or the quantity of nutrients recommended.
There are many assumptions in this screening tool that make it too
general to use for detailed nutrient management planning, although it
would be useful as a rough means of determining whether a facility is
generating manure in excess of crop needs. The factors used to
calculate manure nutrient content are developed from estimates that
account for nutrient losses due to collection, storage, treatment, and
handling. When manure is not incorporated, an additional nitrogen loss
is included for volatilization. When the nutrients exceed nutrient
utilization, there is increased potential for nutrients to leach or
runoff from fields and become pollutants of ground or surface water.
This software is intended to be used as a decision support screening
tool to allow AFO operators to make a quick evaluation as to whether
the quantity of nutrients applied to the land on which manure is spread
exceeds the quantity of nutrients used by crops. EPA believes it could
be a valuable tool to determine, at a screening level, whether
available nutrients exceed crop needs and, thus, whether a facility has
a greater likelihood for generating the runoff of nutrients that could
impact water quality. EPA is not proposing this option as there are
concerns that simply having enough land may not provide assurance that
the manure would be applied in ways that avoided impairing water
quality. However, EPA is requesting comment below on an alternative
three-tier approach that would include such a screening tool as one of
the criteria for certifying that an AFO in the 300 to 1,000 AU size
category is not a CAFO.
Certifying That a Middle Tier AFO is not a CAFO. Under the three-
tier structure, EPA is proposing to allow AFOs with between 300 AU and
1,000 AU to certify to the permit authority that they do not meet any
of the risk-based conditions and thus are not CAFOs. The certification
would be a check-off form that would also request some basic
information about the facility, including name and address of the owner
and operators; facility name and address and contact person; physical
location and longitude and latitude information for the production
area; type and number of animals at the AFO; and signature of owner,
operator or authorized representative. The draft sample certification
form is included here for public comment.
Form for Certifying Out of the Concentrated Animal Feeding Operation
Provisions of the National Pollutant Discharge Elimination System
This checklist is to assist you in determining whether your
animal feeding operation (AFO) is, or is not, a concentrated animal
feeding operation (CAFO) subject to certain regulatory provisions.
For clarification, please see the attached fact sheet.
Section 1. First Determine Whether or not Your Facility Is an AFO
A facility that houses animals is an animal feeding operation
if:
Animals (other than aquatic animals) have been, are, or
will be stabled or confined and fed or maintained for a total of 45
days or more in any 12-month period.
Animals are not considered to be stabled or confined
when they are in areas such as pastures or rangeland that sustain
crops or forage growth during the entire time that animals are
present.
Yes, my facility is an AFO. PROCEED TO SECTION 2.
No, my facility is not an AFO. STOP. YOU DO NOT NEED TO SUBMIT
THIS FORM
Section 2. Determine the Size Range of Your AFO
If your facility is an AFO, and the number of animals is in the
size range for any animal type listed below, then you may
potentially be a concentrated animal feeding operation.
200-700 mature dairy cattle (whether milked or dry)
300-1000 head of cattle other than mature dairy cattle
750-2,500 swine each weighing over 25 kilograms (55 pounds)
3,000-10,000 swine each weighing under 25 kilograms (55 pounds)
30,000-100,000 chickens
16,500-55,000 turkeys
150-500 horses
3,000-10,000 sheep or lambs
1,500-5,000 ducks
My AFO is within this size range. PROCEED TO SECTION 3.
My AFO has fewer than the lower threshold number for any animal
type so I am not a CAFO under this description. STOP.
My AFO has more than the upper threshold number of animals for
any animal type. STOP. PLEASE CONTACT YOUR PERMIT AUTHORITY FOR
INFORMATION ON HOW TO APPLY FOR AN NPDES PERMIT.
Section 3. Minimum Requirements
Check all boxes that apply to your operation. If all of the
following boxes are checked, PROCEED TO SECTION 4.
My production area is not located within 100 feet of waters of
the U.S.
There is no direct contact of animals with waters of the U.S. in
the production area.
I am currently maintaining properly engineered manure and
wastewater storage and containment structures designed to prevent
discharge in either a 25-year, 24-hour storm (for beef and dairy
facilities) or all circumstances (for all other facilities), in
accordance with the effluent guidelines (40 CFR Part 412).
There are no discharges from the production area and there have
been no discharges in the past 5 years.
I have not been notified by my State permit authority or EPA
that my facility needs an NPDES permit
If any box in this section is not checked, you may not use this
certification and you must apply for an NPDES permit. STOP. PLEASE
CONTACT YOUR PERMIT AUTHORITY FOR MORE INFORMATION.
Section 4. Land Application
A. If all of the boxes in Section 3 are checked, you may be able
to certify that you are not a CAFO on the basis of ensuring proper
agricultural practices for land application of CAFO manure:
I either do not land apply manure or, if land applying manure, I
have, and am implementing, a certified Permit Nutrient Plan (PNP). I
maintain a copy of my PNP at my facility, including records of
implementation and monitoring; and
B. Check One:
My State has a program for excess manure in which I participate.
OR
[Alternative 1: I do not transfer more than 12 tons of manure to
any off-site recipients unless they have signed a certification form
assuring me that they are either 1) applying manure according to
proper agricultural practices; 2) obtaining an NPDES permit for
discharges; or 3) transferring manure to other non-land application
uses; and] [For Alternative 2, this box is not needed]
I maintain records of recipients, receiving greater than 12 tons
of manure annually, and the quantity and dates transferred, and I
provide recipients an analysis of the content of the manure as well
as information describing the recipients responsibilities for
appropriate manure management. If I transfer manure or wastewater to
a manure hauler, I also obtain the name and location of the
recipients of the manure, if known;
If a box is checked in both subsection A and subsection B above,
you may certify that you are not a CAFO. PROCEED TO SECTION 5.
If a box is not checked in both subsection A and subsection B
above, you may not use this certification form. STOP. YOU MUST APPLY
FOR AN NPDES PERMIT.
Section 5. Certification
I certify that I own or operate the animal feeding operation
described herein, and have legal authority to make management
decisions about said operation. I certify that
[[Page 3002]]
the information provided is true and correct to the best of my
knowledge.
I understand that in the event of a discharge to waters of the
U.S. from my AFO, I must report the discharge to the Permit
Authority and apply for a permit. I will report the discharge by
phone within 24 hours, submit a written report within 7 calendar
days, and make arrangements to correct the conditions that caused
the discharge.
In the event any of these conditions can no longer be met, I
understand that my facility is a CAFO and I must immediately apply
for a permit. I also understand that I am liable for any unpermitted
discharges. This certification must be renewed every 5 years.
I certify under penalty of law that this document either was
prepared by me or was prepared under my direction or supervision.
Based on my inquiry of the person or persons who gathered the
information, the information provided is, to the best of my
knowledge and belief, true, accurate and complete. I am aware that
there are penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations.
Facility Name----------------------------------------------------------
Name of Certifier------------------------------------------------------
Signature--------------------------------------------------------------
Date____________________
Check one: {time} owner {time} operator
Name & Address of other entity that exercises substantial operational
control of this CAFO:--------------------------------------------------
----------------------------------------------------------------------
Address of animal feeding operation:
County:
State:
Latitude/Longitude:
Phone:
Email:
Name of Closest Waters of the U.S.:
Distance to Waters:
Description of closest waters: (e.g. intermittent stream, perennial
stream; ground water aquifer):-----------------------------------------
----------------------------------------------------------------------
Where an operation in the 300-1000 AU size range has certified that
it meets all of the required conditions to be excluded from the CAFO
definition, if at any future point the operation fails to meet one or
more of these conditions, it would immediately become defined as a
CAFO. Any discharges from the operation at that point would be illegal
until the operation obtains a permit. For example, if an operation has
certified that it meets all of the conditions for being excluded from
the CAFO definition, but then has an actual discharge to the waters
(which would be inconsistent with the certification that there is no
``current discharge''), that discharge would be considered to be an
unpermitted discharge from a CAFO. Similarly, if an operation at any
point no longer has sufficient storage and containment to prevent
discharges, it would immediately become a CAFO and be required to apply
for a permit (regardless of whether it had any actual discharges).
Constructing the regulations in this way would do two things.
First, it would make clear that there is no shield from liability for
any operation that falsely certified that it met the conditions to be
excluded from regulation. Second, it would make clear that even in
cases where an operation has certified to all the required conditions
in good faith, there is no protection from the regulatory and
permitting requirements if at any point the operation no longer meets
those conditions. Operations would be on notice that if they had any
doubts about their continued ability to meet the conditions for
exclusion, they should decline to ``certify out'' and should apply for
a permit.
Alternative Three-tier Structure: Simplified Certification. EPA is
requesting comment on a variation of the three-tier structure being co-
proposed today. Under this alternative, operations with > 1,000 AU
would be subject to the same requirements as under both of today's co-
proposed options, and operations between 300 and 1,000 animal units
would be defined as CAFOs, required to obtain an NPDES permit, unless
they can certify that they do not meet the conditions for definition as
a CAFO. However, the conditions for making this certification would be
different than those under the proposed three-tier approach, and the
substantive permit requirements for operations between 300 and 1,000 AU
that do not certify would also be different.
Under this approach, operations between 300 and 1,000 AU, that are
not likely to be significant contributors of pollutants, could avoid
definition as a CAFO by certifying to a more limited range of factors.
The check list would indicate, for example, adequate facility design to
contain manure and runoff in up to a 25-year, 24-hour storm, use of
appropriate BMPs, and application of manure at agronomic rates. Under
this variation, the check list would be designed to minimize both the
required information and the substantive operational requirements for
these middle tier facilities on the grounds that, because they are
smaller size operations, they are less likely to be the type of
concentrated, industrial operations that Congress intended to include
as CAFOs. So, for example, the check list could allow several
alternatives for appropriate manure storage, including cost-effective
BMPs such as stacking manure in certain locations or in certain ways to
avoid discharge, in lieu of expanded structural storage capacity.
Similarly, the indication that manure is applied at agronomic rates
could be based on a simple ratio of animals to crop land, or on the use
of a more sophisticated screening tool, such as the USDA developed tool
described above, but would not necessarily require preparation of a
full CNMP by a certified planner. The check list might also include an
assurance by the operator that recipients of off-site manure are
provided nutrient test results and information on appropriate manure
management.
AFOs in this size category that are not able to certify, according
to the check list criteria, that they are not likely to be significant
contributors of pollutants to waters of the US would be defined as
CAFOs and thus required to obtain an NPDES permit. However, the
conditions in the permit would not necessarily be the same as those in
permits for operations with > 1,000 AU. In particular, the effluent
guidelines described in today's proposal would not be applicable to
these facilities. Rather, CAFOs in this size category would be required
to operate in accordance with BAT, as determined by the best
professional judgement (BPJ) of the permit writer. This is the same as
the existing requirement for CAFOs in this size category. Or, EPA might
promulgate an alternate set of national effluent guidelines for CAFOs
in this subcategory. Such effluent guidelines might include zero
discharge from the production area in up to a 25-year, 24-hour storm,
implementation of a PNP, appropriate BMPs, and appropriate management
of manure shipped off-site.
Under this approach, all 26,665 operations between 300 and 1,000 AU
would be affected by the rule, just as under the three-tier approach
being proposed today. However, EPA expects that a larger number of
facilities would be able to avoid definition as a CAFO and the
requirement to obtain a permit than under today's proposed approach.
EPA has not estimated the number of operations that would be defined as
CAFOs under this alternative three-tier approach, but expects that it
would be more than 16,420 but fewer than 31,930 (of which some 13,000
would have over 1,000 AU). For those facilities that did receive a
permit, compliance would generally be less expensive. This approach was
presented to small entity representatives (SERs) during the SBREFA
outreach conducted for this rule, and discussed in detail by the Small
Business Advocacy Review Panel that conducted the outreach. While some
concerns were expressed, the approach was generally received
[[Page 3003]]
favorably by both the SERs and the Panel. See the Panel Report (2000)
for a complete discussion of the Panel's consideration of this option.
EPA requests comment on this alternative three tier approach. In
particular, EPA requests comment on which items should be included in
the certification check list, and whether substantive permit
requirements for CAFOs in this size category should be left completely
up to the BPJ of the permit authority, or based on an alternate set of
effluent guidelines, as discussed above. After evaluating public
comments, EPA may decide to further explore this option. At that time,
EPA would develop and make available for public comment as appropriate
a more detailed description of the specific requirements of such an
approach, as well as a full analysis of its costs, benefits, and
economic impacts. In particular, EPA would add an analysis to the
public record of why it would be appropriate to promulgate different
effluent guideline requirements, or no effluent guideline requirements,
for CAFOs that have between 300 and 1,000 AU as compared to the
effluent guidelines for operations with greater than 1,000 AU. This
would include an evaluation of whether the available technologies and
economic impacts are different for the smaller versus the larger CAFOs.
4. Comparative Analysis
EPA is proposing both the two- and three-tier structures for public
comment as they both offer desirable qualities. On the one hand, the
two-tier structure is simple and clear, focuses on the larger
operations, and provides regulatory relief to smaller businesses.
However, it requires permits of all facilities meeting the size
threshold. On the other hand, the three-tier structure offers
flexibility to States for addressing environmental impacts of AFOs
through non-NPDES programs or non-regulatory programs, while focusing
the regulation on facilities demonstrating certain risk
characteristics. It imposes, however, some degree of burden to all
facilities more than 300 AU.
The costs of each of the six alternatives considered by EPA are
discussed in Section X of today's proposal, and benefits are discussed
in Section XI. Key findings from EPA's analysis are summarized in Table
7-8 for quick reference. See Sections X and XI for full discussions and
explanations.
EPA solicits comment on both of today's alternative proposed
structures, as well as on the two alternatives discussed above.
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.
EPA's preliminary assessment is that there appear to be significant
differences in the scope of the structures, such that the two-tier
structure could be considered less stringent than the three-tier
structure, depending upon which structures, criteria and thresholds are
selected in the final proposal. As table 7-8 indicates, for example,
the co-proposed two-tier structure with a 500 AU threshold would
regulated 25,540 operations, whereas the co-proposed three-tier
structure would regulate up to 39,320 operations. A two-tier structure
with 750 AU would regulate 19,100 operations, whereas the alternative,
less stringent, three-tier structure would regulate as few as 16,000
and as many as 32,000. The range of manure covered under these various
alternatives ranges from as little as 49% to as much as 72% of all AFO
manure. Further, how each animal sector is affected varies with each
alternative, with some alternatives being significantly less protective
in certain sectors than other alternatives. Section VI of today's
preamble provides more information on the affects on each animal sector
of various alternatives.
EPA is not able to conclude that the stringency of the two options
is equivalent, due to the lack of data and EPA's uncertainty over
exactly how many facilities may be subject to regulation under each
alternative. Therefore, EPA is not proposing this option. However, EPA
seeks comment on the option to allow States to select which of two
structures to implement, and requests information on establishing
whether two options provide equivalent environmental protection.
Table 7-8.--Comparison of Regulatory Alternatives for Select Criteria a
----------------------------------------------------------------------------------------------------------------
Baseline 2-Tier alternatives 3-Tier alternatives
Criteria -------------------------------------------------------------------
>1000 AU >750 AU >500 AU >300 AU Proposed Alternative
----------------------------------------------------------------------------------------------------------------
Number Operations that will be Required to 12,660 19,100 25,540 39,320 \1\ 31,93 \2\ >16,420
Obtain a Permit............................ 0
Percentage of Affected Operations Required 3 5 7 11 9 10
to Obtain a Permit.........................
Estimated Compliance Costs to CAFOs 605 721 831 980 930 >680
($million/year, pre-tax)...................
Percentage Manure Covered by Proposed 49 58 64 72 72 \3\ ND
Regulations................................
----------------------------------------------------------------------------------------------------------------
\1\ Three-tier Proposed: Number of affected facilities up to 39,320. Number of permitted facilities between
16,000 and 32,000, rounded.
\2\ Three-tier Alternative: Number of affected facilities and industry costs are expected to be greater than
that estimated for NPDES Scenario 1 (``Status Quo'').
\3\ ND = Not Determined.
5. Additional Scenarios Considered But Not Proposed
EPA also considered two other scenarios, which would retain the
existing three-tier approach.
a. Scenario 1: Retain Existing Structure. One of the alternative
regulatory scenarios would incorporate all of today's proposed
revisions except those related to the tiered structure for defining
which AFOs are CAFOs. In other words, the existing three-tier structure
(greater than 1,000 AU; 300 AU to 1,000 AU; fewer than 300 AU) would
remain in place, and the conditions for defining the middle tier
operations would not change. Thus, as under the existing regulation,
mid-sized AFOs (300 AU to 1,000 AU) would be defined as CAFOs only if,
in addition to the number of animals confined, they
[[Page 3004]]
also meet one of the two specific criteria governing the method of
discharge: (1) Pollutants are discharged through a man-made ditch,
flushing system, or other similar man-made device; or (2) pollutants
are discharged directly into waters of the United States that originate
outside of the facility and pass over, across, or through the facility
or otherwise come into direct contact with the confined animals.
EPA is not proposing this scenario because these conditions have
proven to be difficult to interpret and implement for AFOs in the 300
to 1,000 AU size category, and thus have not facilitated compliance or
enforcement, and the scenario does not meet the goal of today's
proposal to simplify the NPDES regulation for CAFOs. The two criteria
governing method of discharge, e.g., ``man-made device'' and ``stream
running through the CAFO,'' are subject to interpretation, and thus
difficult for AFO operators in this size range to determine whether or
not the permit authority would consider them to be a CAFO. EPA does not
believe it is necessary to retain these criteria because all discharges
of pollutants from facilities of this size should be considered point
source discharges. While the other proposed changes go a long way to
improve the effectiveness of the NPDES program for CAFOs, EPA believes
the definition criteria for facilities in this size range also need to
be amended to make the regulation effective, simple, and enforceable.
b. Scenario 2: Revised Conditions Without Certification. The second
scenario EPA considered would also retain the existing three-tier
structure, and would modify the conditions for defining the middle tier
AFOs as CAFOs in the same way that today's proposed three-tier
structure does. That is, any AFO that meets the size condition (300 AU
to 1,000 AU) would be defined as a CAFO if it met one or more of the
following risk-based conditions: (1) Direct contact of animals with
waters of the U.S.; (2) insufficient storage and containment at the
production area to prevent discharge from reaching waters of the U.S.;
(3) evidence of discharge in the last five years; (4) the production
area is located within 100 feet of waters of the U.S.; (5) the operator
does not have, or is not implementing, a Permit Nutrient Plan; and (6)
any manure transported off-site is transferred to recipients of more
than twelve tons annually without following proper off-site manure
management, described above in the discussion of the three-tier
structure (co-proposed with omitting this requirement).
In this scenario, owners or operators of AFOs in the middle tier
would not be required to certify to the permit authority that the
facility is not a CAFO. However, all facilities that do meet one or
more of the conditions would have a duty to apply for an NPDES permit.
This scenario is not being proposed because of concerns that there
would be no way for the permit authority to know which operations were
taking the exemption and which should, in fact, be applying for a
permit. The certification scenario provides a measure of assurance to
the public, the permit authority, and the facilities' owners or
operators, that CAFOs and AFOs are implementing necessary practices to
protect water quality.
C. Changes to the NPDES Regulations
In addition to changing the threshold for determining which
facilities are CAFOs, EPA is proposing a number of other changes that
address how the permitting authority determines whether a facility is
an AFO or a CAFO that, therefore, must apply for an NPDES permit. These
proposed revisions are discussed in this section and in section D.
1. Change the AFO Definition to Clearly Distinguish Pasture Land
EPA is proposing to clarify the regulatory language that defines
the term ``animal feeding operations,'' or AFO, in order to remove
ambiguity. See proposed Sec. 122.23(a)(2). The proposed rule language
would clarify that animals are not considered to be ``stabled or
confined'' when they are in areas such as pastures or rangeland that
sustain crops or forage during the entire time animals are present.
Other proposed changes to the definition of AFO are discussed below in
section 3.e.
To be considered a CAFO, a facility must first meet the AFO
definition. AFOs are enterprises where animals are kept and raised in
confined situations. AFOs concentrate animals, feed, manure and urine,
dead animals, and production operations on a small land area. Feed is
brought to the animals rather than the animals grazing or otherwise
seeking feed in pastures, fields, or on rangeland. The current
regulation [40 CFR 122.23(b)(1)] defines an AFO as a ``lot or facility
where animals have been, are, or will be stabled or confined and fed or
maintained for a total of 45 days or more in any 12 month period; and
where crops, vegetation[,] forage growth, or post-harvest residues are
not sustained over any portion of the lot or facility in the normal
growing season'' [emphasis added].
The definition states that animals must be kept on the lot or
facility for a minimum of 45 days, in a 12-month period. If an animal
is at a facility for any portion of a day, it is considered to be at
the facility for a full day. However, this does not mean that the same
animals must remain on the lot for 45 consecutive days or more; only
that some animals are fed or maintained on the lot or at the facility
45 days out of any 12-month period. The 45 days do not have to be
consecutive, and the 12-month period does not have to correspond to the
calendar year. For example, June 1 to the following May 31 would
constitute a 12-month period.
The definition has proven to be difficult to implement and has led
to some confusion. Some CAFO operators have asserted that they are not
AFOs under this definition where incidental growth occurs on small
portions of the confinement area. In the case of certain wintering
operations, animals confined during winter months quickly denude the
feedlot of growth that grew during the summer months. The definition
was not intended to exclude, from the definition of an AFO, those
confinement areas that have growth over only a small portion of the
facility or that have growth only a portion of the time that the
animals are present. The definition is intended to exclude pastures and
rangeland that are largely covered with vegetation that can absorb
nutrients in the manure. It is intended to include as AFOs areas where
animals are confined in such a density that significant vegetation
cannot be sustained over most of the confinement area.
As indicated in the original CAFO rulemaking in the 1970s, the
reference to vegetation in the definition is intended to distinguish
feedlots (whether outdoor confinement areas or indoor covered areas
with constructed floors) from pasture or grazing land. If a facility
maintains animals in an area without vegetation, including dirt lots or
constructed floors, the facility meets this part of the definition.
Dirt lots with nominal vegetative growth while animals are present are
also considered by EPA to meet the second part of the AFO definition,
even if substantial growth of vegetation occurs during months when
animals are kept elsewhere. Thus, in the case of a wintering operation,
EPA considers the facility an AFO potentially subject to NPDES
regulations as a CAFO. It is not EPA's intention, however, to include
within the AFO definition pasture or rangeland that has a small, bare
patch of land, in an otherwise vegetated area, that is caused by
animals frequently
[[Page 3005]]
congregating if the animals are not confined to the area.
The following examples are presented to further clarify EPA's
intent. (1) When animals are restricted to vegetated areas as in the
case of rotational grazing, they would not be considered to be confined
in an AFO if they are rotated out of the area while the ground is still
covered with vegetation. (2) If a small portion of a pasture is barren
because, e.g., animals congregate near the feed trough in that portion
of the pasture, that area is not considered an AFO because animals are
not confined to the barren area. (3) If an area has vegetation when
animals are initially confined there, but the animals remove the
vegetation during their confinement, that area would be considered an
AFO. This may occur, for instance, at some wintering operations.
Thus, to address the ambiguities noted above, EPA is proposing to
clarify the regulatory language that defines the term ``animal feeding
operation'' as follows: ``An animal feeding operation or AFO is a
facility where animals (other than aquatic animals) have been, are, or
will be stabled or confined and fed or maintained for a total of 45
days or more in any 12-month period. Animals are not considered to be
stabled or confined when they are in areas such as pastures or
rangeland that sustain crops or forage growth during the entire time
that animals are present. Animal feeding operations include both the
production area and land application area as defined below.'' EPA is
interested in receiving comments regarding whether the proposed
revision to the AFO definition clearly distinguishes confinement areas
from pasture land.
2. Proposed Changes to the NPDES Permitting Regulation for Determining
Which AFOs are CAFOs
To improve the effectiveness and clarity of the NPDES regulation
for CAFOs, EPA is proposing to revise the regulation as discussed in
the following sections.
a. Eliminate the Term ``Animal Unit''. To remove confusion for the
regulated community concerning the definition of the term ``animal
unit'' or ``AU,'' EPA is proposing to eliminate the use of the term in
the revised regulation. Instead of referring to facilities as having
greater or fewer than 500 animal units, for example, EPA will use the
term ``CAFO'' to refer to those facilities that are either defined or
designated, and all others as ``AFOs.'' However, in the text of today's
preamble, the term AU will be used in order to help the reader
understand the differences between the existing regulation and today's
proposal. If this revision is adopted, the term AU will not be used in
the final regulation. Section VII.B, above, lists the numbers of
animals in each sector that would be used to define a facility as a
CAFO.
EPA received comment on the concept of animal units during the AFO
Strategy listening sessions, the small business outreach process, and
on comments submitted for the draft CAFO NPDES Permit Guidance and
Example Permit. EPA's decision to move away from the concept of
``animal units'' is supported by the inconsistent use of this concept
across a number of federal programs, which has resulted in confusion in
the regulated community. A common thread across all of the federal
programs is the need to normalize numbers of animals across animal
types. Animal units have been established based upon a number of
different values that include live weight, forage requirements, or
nutrient excretion.
USDA and EPA have different ``animal unit'' values for the
livestock sectors. Animal unit values used by USDA are live-weight
based, and account for all sizes and breeds of animals at a given
operation. This is particularly confusing as USDA's animal unit
descriptions result in different values in each sector and at each
operation.
The United States Department of Interior (Bureau of Land Management
and National Park Service) also references the concept of ``animal
unit'' in a number of programs. These programs are responsible for the
collection of grazing fees for federal lands. The animal unit values
used in these programs are based upon forage requirements. For Federal
lands an animal unit represents one mature cow, bull, steer, heifer,
horse, mule, or five sheep, or five goats, all over six months of age.
An animal unit month is based on the amount of forage needed to sustain
one animal unit for one month. Grazing fees for Federal lands are
charged by animal unit months.
In summary, using the total number of head that defines an
operation as a CAFO will minimize confusion with animal unit
definitions established by other programs. See tables 7-6 and 7-7
above.
b. How Will Operations With Mixed Animal Types be Counted? EPA is
proposing to eliminate the existing mixed animal provision, which
currently requires an operator to add the number of animal units from
all animal sectors at the facility when determining whether it is a
CAFO. (Poultry is currently excluded from this mixed animal type
calculation). While the mixed calculation would be eliminated, once the
number of animals from one sector (e.g. beef, dairy, poultry, swine,
veal) of one type cause an operation to be defined as a CAFO, manure
from all confined animal types at the facility would be covered by the
permit conditions. In the event that waste streams from multiple
livestock species are commingled, and the regulatory requirements for
each species are not equivalent, the permit must apply the more
stringent requirements.
In the existing regulation, a facility with 1,000 animal units or
the cumulative number of mixed animal types which exceeds 1,000, is
defined as a CAFO. Animal unit means a unit of measurement for any
animal feeding operation calculated by adding the following numbers:
the number of slaughter and feeder cattle multiplied by 1.0, plus the
number of mature dairy cattle multiplied by 1.4, plus the number of
swine weighing over 25 kilograms (approximately 55 pounds) multiplied
by 0.4, plus the number of sheep multiplied by 0.1, plus the number of
horses multiplied by 2.0. As mentioned, poultry operations are excluded
from this mixed unit calculation as the current regulation simply
stipulates the number of birds that define the operation as a CAFO, and
assigns no multiplier.
Because simplicity is one objective of these proposed regulatory
revisions, the Agency believes that either all animal types, including
poultry, covered by the effluent guidelines and NPDES regulation should
be included in the formula for mixed facilities, or EPA should
eliminate the facility multipliers from the revised rule. Today's
rulemaking proposes changes that would have to be factored in to a
revised mixed animal calculation which would make the regulation more
complicated to implement. For example, EPA is proposing to cover
additional animal types (dry chicken operations, immature swine and
heifer operations). Thus, EPA is proposing to eliminate the mixed
operation calculation rather than revise it and create a more
complicated regulation to implement that would potentially bring
smaller farms into regulation.
EPA believes that the effect of this proposed change would be
sufficiently protective of the environment while maintaining a
consistently enforceable regulation. EPA estimates 25 percent of AFOs
with less than 1,000 AU have multiple animal types present
simultaneously at one location, and only a small fraction of these AFOs
would be CAFOs exceeding either 300 AU or 500 AU when all animal types
are
[[Page 3006]]
counted. EPA also believes that few large AFOs possess mixed animals
due to the increasingly specialized nature of livestock and poultry
production. Therefore, EPA believes that a rule which required mixed
animal types to be part of the threshold calculation to determine if a
facility is a CAFO would result in few additional operations meeting
the definition of a CAFO. In addition, most facilities with mixed
animal types tend to be much smaller, and tend to have more
traditional, oftentimes more sustainable, production systems. These
farms tend to be less specialized, engaging in both animal and crop
production. They often have sufficient cropland and fertilizer needs to
land apply manure nutrients generated at the farm's livestock or
poultry business. Nevertheless, should such an AFO be found to be a
significant contributor of pollution to waters of the U.S., it could be
designated a CAFO by the permit authority.
EPA is, therefore, proposing to eliminate the mixed animal
calculation in determining which AFOs are CAFOs. Once an operation is a
CAFO for any reason, manure from all confined animal types at the
facility is subject to the permit requirements. EPA is requesting
comment on the number of operations that could potentially have the
equivalent of 500 AU using the mixed calculation that would be excluded
from regulation under this proposal.
c. Is an AFO Considered a CAFO if it Only Discharges During a 25-
Year, 24-Hour Storm? EPA is proposing to eliminate the 25-year, 24-hour
storm event exemption from the CAFO definition (40 CFR 122.23, Appendix
B), thereby requiring any operation that meets the definition of a CAFO
either to apply for a permit or to establish that it has no potential
to discharge. Under the proposed three-tier structure an operation with
300 AU to 1,000 AU may certify that it is not a CAFO if it is designed,
constructed, and maintained in accordance with today's effluent
guidelines and it does not meet any of the risk-based conditions. See
Section VII.B.2.
The existing NPDES definition of a CAFO provides that ``no animal
feeding operation is a concentrated animal feeding operation * * * as
defined above * * * if such animal feeding operation discharges only as
the result of a 25-year, 24-hour storm event'' (40 CFR Sec. 122.23,
Appendix B). This provision applies to AFOs with 300 AU or more that
are defined as CAFOs under the existing regulation. (Facilities of any
size that are CAFOs by virtue of designation are not eligible for this
exemption because, by the terms of designation, it does not apply to
them. Moreover, they have been determined by the permit authority to be
a significant contributor of pollution to waters of the U.S.)
The 25-year, 24-hour standard is an engineering standard used for
construction of storm water detention structures. The term ``25-year,
24-hour storm event'' means the maximum 24-hour precipitation event
with a probable recurrence of once in 25 years, as defined by the
National Weather Service (NWS) in Technical Paper Number 40 (TP40),
``Rainfall Frequency Atlas of the United States,'' May 1961, and
subsequent amendments, or by equivalent regional or State rainfall
probability information developed therefrom. [40 CFR Part 412.11(e)].
(Note that the NWS is updating some of the Precipitation Frequency
Publications, including part of the TP40. In 1973, the National
Atmospheric and Oceanic Administration (NOAA) issued the NOAA Atlas 2,
Precipitation Frequency Atlas of the Western United States. The Atlas
is published in a separate volume for each of the eleven western
states. An update for four of the State volumes is currently being
conducted. In addition, the NWS is updating TP40 for the Ohio River
Basin which covers a significant portion of the eastern U.S. The
updates will reflect more than 30 years of additional data and will
benefit from NWS enhanced computer capabilities since the original
documents were generated almost 40 years ago.) As discussed further in
section VIII, the 25-year, 24-hour storm event also is used as a
standard in the effluent limitation guideline.
The circularity of the 25-year, 24-hour storm event exemption in
the existing CAFO definition has created confusion that has led to
difficulties in implementing the NPDES regulation. The effluent
guidelines regulation, which is applicable to permitted CAFOs, requires
that CAFOs be designed and constructed to contain such an event.
However, the NPDES regulations allows facilities that discharge only as
a result of such an event to avoid obtaining a permit. This exemption
has resulted in very few operations actually obtaining NPDES permits,
which has hampered implementation of the NPDES program. While there are
an estimated 12,000 AFOs likely to meet the current definition of a
CAFO, only about 2,500 such facilities have obtained an NPDES permit.
Many of these unpermitted facilities may incorrectly believe they
qualify for the 25-year, 24-hour storm permitting exemption. These
unpermitted facilities operate outside the current NPDES program, and
State and EPA NPDES permit authorities lack the basic information
needed to determine whether or not the exemption has been applied
correctly and whether or not the CAFO operation is in compliance with
NPDES program requirements.
EPA does not believe that the definition as a CAFO should hinge on
whether an AFO only discharges pollutants due to a 25-year, 24-hour
storm event. Congress clearly intended for concentrated animal feeding
operations to be subject to NPDES permits by explicitly naming CAFOs as
point sources in the Clean Water Act Section 502(14). Further, Section
101(a) of the Act specifically states that elimination of discharges
down to zero is to be achieved where possible, and EPA does not believe
that facilities should avoid the regulatory program altogether by
merely claiming that they meet the 25-year, 24-hour criterion. This
issue is discussed further below in section VII.C.2(c).
The public has expressed widespread concern regarding whether some
of these currently unpermitted facilities are, in fact, entitled to
this exemption. Based on comments EPA has received in a variety of
forums, including during the AFO Strategy listening sessions and on the
draft CAFO permit guidance, EPA believes there is a strong likelihood
that many of these facilities are discharging pollutants to waters of
the U.S. EPA is concerned that, in applying the 25-year, 24-hour storm
exemption, operations are not now taking into consideration runoff from
their production areas, or are improperly interpreting which discharges
are the result of 25-year 24-hour storms and chronic rainfall which may
result in breaches and overflows of storage systems, all of which cause
pollution to enter waters of the U.S. Additionally, facilities may not
be considering discharges from improper land application of manure and
wastewater.
EPA is today proposing to eliminate the 25-year, 24-hour storm
exemption from the CAFO definition (40 CFR 122.23, Appendix B) in order
to: (a) Ensure that all CAFOs with a potential to discharge are
appropriately permitted; (b) ensure through permitting that facilities
are, in fact, properly designed, constructed, and maintained to contain
a 25-year, 24-hour storm event, or to meet a zero discharge
requirement, as the case may be; (c) improve the ability of EPA and
State permit authorities to monitor compliance; (d) ensure that
facilities do
[[Page 3007]]
not discharge pollutants from their production areas or from excessive
land application of manure and wastewater; (e) make the NPDES
permitting provision consistent with today's proposal to eliminate the
25-year, 24-hour storm design standard from the effluent guidelines for
swine, veal and poultry; and (f) achieve EPA's goals of simplifying the
regulation, providing clarity to the regulated community, and improving
the consistency of implementation.
Under the proposed two-tier structure, any facility that is defined
as a CAFO would be a CAFO even if it only discharges in the event of a
25-year, 24-hour storm. Further, the CAFO operator would be required to
apply for an NPDES permit, as discussed below regarding the duty to
apply for a NPDES permit. (If the operator believes the facility never
discharges, the operator could request a determination of no potential
to discharge, as discussed below.) Under the three-tier structure a
facility with 300 AU to 1,000 AU would be required to either certify it
is not a CAFO, to apply for a permit, or demonstrate it has no
potential to discharge. Today's effluent guidelines proposal would
retain the design specification for beef or dairy facilities, which
would allow a permitted facility to discharge due to a 25-year, 24-hour
event, as long as the facility's containment system is designed,
constructed and operated to handle manure and wastewater plus
precipitation from a 25-year, 24-hour storm event (unless a permit
writer imposed a more stringent, water quality-based effluent
limitation). However, a facility that meets the definition of CAFO and
discharges during a 25-year, 24-hour storm event, but has failed to
apply for an NPDES permit (or to certify in the three-tier structure),
would be subject to enforcement for violating the CWA. Swine, veal and
poultry CAFOs would be required to achieve a zero discharge standard at
all times.
EPA considered limiting this change to the very largest CAFOs
(e.g., operations with 1,000 or more animal units), and retaining the
exemption for smaller facilities. However, EPA is concerned that this
could allow significant discharges resulting from excessive land
application of manure and wastewater to remain beyond the scope of the
NPDES permitting program, thereby resulting in ongoing discharge of
CAFO-generated pollutants into waters of the U.S. Moreover, EPA
believes that retaining the exemption for certain operations adds
unnecessary complexity to the CAFO definition.
The Small Business Advocacy Review Panel also considered the idea
of removing the 25-year, 24-hour exemption. While the Panel agreed that
this was generally appropriate for operations above the 1,000 AU
threshold, it was divided on whether it would also be appropriate to
remove the exemption for facilities below this threshold. The Panel
noted that for some such facilities, removing the exemption would not
expand the scope of the current regulation, but rather ensure coverage
for facilities that should already have obtained a permit. However, the
Panel also recognized that eliminating the exemption would require
facilities that do properly quality for it--e.g., because they do have
sufficient manure management and containment in place, or for some
other reason, do not discharge except in a 25-year, 24-hour storm--to
obtain a permit or certify that none is needed. The Panel recommended
that EPA carefully weigh the costs and benefits of removing the
exemption for small entities and that it fully analyze the incremental
costs associated with permit applications for those facilities not
presently permitted that can demonstrate that they do not discharge in
less than a 25-year, 24-hour storm event, as well as any costs
associated with additional conditions related to land application,
nutrient management, or adoption of BMPs that the permit might contain.
The Panel further recommended that EPA consider reduced application
requirements for small operators affected by the removal of the
exemption. The Agency requests comment on whether to retain this
exemption for small entities and at what animal unit threshold would be
appropriate for doing so.
d. Who Must Apply for and Obtain an NPDES Permit? EPA is proposing
today to adopt regulations that would expressly require all CAFO owners
or operators to apply for an NPDES permit. See proposed Sec. 122.23(c).
That is, owners or operators of all facilities defined or designated as
CAFOs would be required to apply for an NPDES permit. The existing
regulations contain a general duty to apply for a permit, which EPA
believes applies to virtually all CAFOs. The majority of CAFO owner or
operators, however, have not applied for an NPDES permit. Today's
proposed revisions would clarify that all CAFOs owners or operators
must apply for an NPDES permit; however, if he or she believes the CAFO
does not have a potential to discharge pollutants to waters of the U.S.
from either its production area or its land application area(s), he or
she could make a no potential discharge demonstration to the permit
authority in lieu of submitting a full permit application. If the
permit authority agrees that the CAFO does not have a potential to
discharge, the permit authority would not need to issue a permit.
However, if the unpermitted CAFO does indeed discharge, it would be
violating the CWA prohibition against discharging without a permit and
would be subject to civil and criminal penalties. Thus, an unpermitted
CAFO does not get the benefit of the 25-year, 24-hour storm standard
established by the effluent guidelines for beef and dairy, nor does it
have the benefit of the upset and bypass affirmative defenses.
The duty to apply for a permit under existing regulations. EPA
believes that virtually all facilities defined as CAFOs already have a
duty to apply for a permit under the current NPDES regulations, because
of their past or current discharges or potential for future discharge.
Under NPDES regulations at 40 CFR Part 122.21(a), any person who
discharges or proposes to discharge pollutants to the waters of the
United States from a point source is required to apply for an NPDES
permit. CAFOs are point sources by definition, under Sec. 502 of the
CWA and 40 CFR 122.2. Thus, any CAFO that ``discharges or proposes to
discharge'' pollutants must apply for a permit.
Large CAFOs with greater than 1,000 AU pose a risk of discharge in
a number of different ways. For example, a discharge of pollutants to
surface waters can occur through a spill from the waste handling
facilities, from a breach or overflow of those facilities, or through
runoff from the feedlot area. A discharge can also occur through runoff
of pollutants from application of manure and associated wastewaters to
the land or through seepage from the production area to ground water
where there is a direct hydrologic connection between ground water and
surface water. Given the large volume of manure these facilities
generate and the variety of ways they may discharge, and based on EPA's
and the States' own experience in the field, EPA believes that all or
virtually all large CAFOs have had a discharge in the past, have a
current discharge, or have the potential to discharge in the future. A
CAFO that meets any one of these three criteria would be a facility
that ``discharges or proposes to discharge'' pollutants and would
therefore need to apply for a permit under the current regulations.
Where CAFO has not discharged in the past, does not now discharge
pollutants, and does not expect to discharge pollutants in the future,
EPA
[[Page 3008]]
believes that the owner or operator of that facility should demonstrate
during the NPDES permit application process that it is, in fact, a ``no
discharge'' facility. See proposed Sec. 122.23(e). EPA anticipates that
very few large CAFOs will be able to successfully demonstrate that they
do not discharge pollutants and do not have a reasonable potential to
discharge in the future, and furthermore, that very few large CAFOs
will wish to forego the protections of an NPDES permit. For instance,
only those beef and dairy CAFOs with an NPDES permit will be authorized
to discharge in a 25-year, 24-hour storm.
EPA also believes that a CAFO owner or operator's current
obligation to apply for an NPDES permit is based not only on discharges
from the feedlot area but also on discharges from the land application
areas under the control of the CAFO operator. More specifically,
discharges of CAFO-generated manure and/or wastewater from such land
application areas should be viewed as discharges from the CAFO itself
for the purpose of determining whether it has a potential to discharge.
EPA recognizes, however, that it has not previously defined CAFOs to
include the land application area. EPA is proposing to explicitly
include the land application area in the definition of a CAFO in
today's action.
The need for a clarified, broadly applicable duty to apply. EPA
believes that virtually all large CAFOs have had a past or current
discharge or have the potential to discharge in the future, and that
meeting any one of these criteria would trigger a duty to apply for a
permit. Today, EPA is proposing to revise the regulations by finding
that, as a rebuttable presumption, all CAFOs do have a potential to
discharge and, therefore, are required to apply for and to obtain an
NPDES permit unless they can demonstrate that they will not discharge.
See proposed Sec. 122.23(c). (See section VII(F)3 for a fuller
discussion on demonstrating ``no potential to discharge.'')
EPA has not previously sought to categorically adopt a duty to
apply for an NPDES permit for all facilities within a particular
industrial sector. The Agency is proposing today to do so for CAFOs for
reasons that involve the unique characteristics of CAFOs and the zero
discharge regulatory approach that applies to them.
First, as noted, since the inception of the NPDES permitting
program in the 1970s, a relatively small number of larger CAFOs has
actually sought permits. Information from State permit authorities and
EPA's own regional offices indicates that, currently, approximately
2,500 CAFOs have NPDES permits out of approximately 12,000 CAFOs with
greater than 1,000 AU.
EPA believes there are a number of reasons why so few CAFOs have
sought NPDES permits over the years. The primary reason appears to be
that the definition of a CAFO in the current regulations (as echoed in
the regulations of some State programs) excludes animal feeding
operations that do not discharge at all or discharge only in the event
of a 25-year, 24-hour storm. [40 CFR 122.23, Appendix B]. Based on the
existing regulation, many animal feeding operations that claim to be
``zero dischargers'' believe that they are not subject to NPDES
permitting because they are excluded from the CAFO definition and thus
are not CAFO point sources.
EPA believes that many of the facilities that have relied on this
exclusion from the CAFO definition may have misinterpreted this
provision. It excludes facilities from the CAFO definition only when
they neither discharge pollutants nor have the potential to discharge
pollutants in a 25-year, 24-hour storm. In fact, as explained above, a
facility that has at least a potential to discharge pollutants (and
otherwise meets the CAFO definition) not only is defined as a CAFO but
also has a duty to apply for an NPDES permit, regardless of whether it
actually discharges. (40 CFR 122.21(a)). Thus, many facilities that
have at least a potential to discharge manure and wastewaters may have
avoided permitting based on an incorrect reliance on this definitional
exclusion.
To compound the confusion under the current regulations, EPA
believes, there has been misinterpretation surrounding the issue of
discharges from a CAFO's land application areas. As EPA has explained
in section VII.D of today's notice, runoff from land application of
CAFO manure is viewed as a discharge from the CAFO point source itself.
Certain operations may have claimed to be ``zero dischargers'' when in
fact they were not, and are not, zero dischargers when runoff from
their land application areas is taken into account.
Another category of operations that may have improperly avoided
permitting are those that have had a past discharge of pollutants, and
are not designed and operated to achieve zero discharge except in a 25-
year, 24-hour storm event. Many of these facilities may have decided
not to seek a permit because they believe they will not have any future
discharges. However, as explained above, an operation that has had a
past discharge of pollutants is covered by the NPDES permitting
regulations in the same way as operations that have a ``potential'' to
discharge--i.e., it is not only defined as a CAFO (where it meets the
other elements of the definition) but is required to apply for a permit
[Carr v. Alta Verde Industries, Inc., 931 F.2d 1055 (5th Cir. 1991)].
Facilities that have had a past discharge meet the criteria of
Sec. 122.21(a), in EPA's view, both as ``dischargers'' and as
operations that have the potential for further discharge. Accordingly,
they are required to apply for an NPDES permit. Misinterpretation
regarding the need to apply for a permit may also have occurred in
cases where the past discharges were from land application runoff, as
explained above.
Finally, the nature of these operations is that any discharges from
manure storage structures to waters of the U.S. are usually only
intermittent, either due to accidental releases from equipment failures
or storm events or, in some cases, deliberate releases such as pumping
out lagoons or pits. The intermittent nature of these discharges,
combined with the large numbers of animal feeding operations
nationwide, makes it very difficult for EPA and State regulatory
agencies to know where discharges have occurred (or in many cases,
where animal feeding operations are even located), given the limited
resources for conducting inspections. In this sense, CAFOs are distinct
from typical industrial point sources subject to the NPDES program,
such as manufacturing plants, where a facility's existence and location
and the fact that it is discharging wastewaters at all is usually not
in question. Accordingly, it is much easier for CAFOs to avoid the
permitting system by not reporting their discharges, and there is
evidence that such avoidances have taken place.
In sum, EPA believes it is very important in these regulatory
revisions to ensure that all CAFOs have a duty to apply for an NPDES
permit, including those facilities that currently have a duty to apply
because they meet the definition of CAFO under the existing regulations
and those facilities which would meet the proposed revised definition
of CAFO. Two of the revisions that EPA is proposing today to other
parts of the CAFO regulations would themselves significantly address
this matter. First, EPA is proposing to eliminate the 25-year, 24-hour
storm exemption from the definition of a CAFO. Operations would no
longer be able to avoid being defined as CAFO point sources subject to
permitting on
[[Continued on page 3009]]