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Thursday,
November 20, 2008
Part II
Environmental
Protection Agency
40 CFR Parts 9, 122, and 412
Revised National Pollutant Discharge
Elimination System Permit Regulation and
Effluent Limitations Guidelines for
Concentrated Animal Feeding Operations
in Response to the Waterkeeper Decision;
Final Rule
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70418 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
ENVIRONMENTAL PROTECTION to fulfill the no discharge requirement B. How Can I Get Copies of This Document
AGENCY for new source swine, poultry, and veal and Other Related Information?
calf operations. Instead, this action C. Under What Legal Authority Is this
40 CFR Parts 9, 122, and 412 authorizes permit writers, upon request Final Rule Issued?
D. What Is the Comment Response
[EPA–HQ–OW–2005–0037; FRL–8738–9] by swine, poultry, and veal calf CAFOs
Document?
that are new sources, to establish best II. Background
RIN 2040–AE80 management practice no discharge A. The Clean Water Act
effluent limitations when the facility B. History of Actions To Address CAFOs
Revised National Pollutant Discharge demonstrates that it has designed an
Elimination System Permit Regulation Under the NPDES Permitting Program
open containment system that will C. Ruling by the U.S. Court of Appeals for
and Effluent Limitations Guidelines for comply with the no discharge the Second Circuit
Concentrated Animal Feeding requirements. D. What Requirements Still Apply to
Operations in Response to the This final rule also responds to the CAFOs?
Waterkeeper Decision court’s remand orders regarding water E. EPA’s Response to the Waterkeeper
AGENCY: Environmental Protection
quality-based effluent limitations Decision
(WQBELs) and pathogens. EPA is III. The Final Rule: Revisions to the 2003
Agency (EPA).
clarifying that WQBELs may be required CAFO Rule in Response to Waterkeeper
ACTION: Final rule.
A. Duty to Apply for a Permit
in permits with respect to production B. Agricultural Stormwater Exemption
SUMMARY: Under the Federal Water area discharges and discharges from C. Nutrient Management Plans
Pollution Control Act (Clean Water Act land application areas that are not D. Compliance Dates
or CWA), EPA is revising the National exempt as agricultural stormwater. E. Water Quality-Based Effluent
Pollutant Discharge Elimination System Finally, EPA is making the finding that Limitations
(NPDES) permitting requirements and the best conventional technology (BCT) F. New Source Performance Standards for
Effluent Limitations Guidelines and limitations established in 2003 also Subpart D Facilities
Standards (ELGs) for concentrated apply to fecal coliform. G. BCT Limitations for Fecal Coliform
animal feeding operations (CAFOs) in IV. Impact Analysis
DATES: These final regulations are
response to the order issued by the U.S. A. Environmental Impacts
effective December 22, 2008. For B. Administrative Burden Impacts
Court of Appeals for the Second Circuit judicial review purposes, this final rule C. Response to Public Comment on the
in Waterkeeper Alliance et al. v. EPA, is promulgated as of 1 p.m. Eastern Proposal
399 F.3d 486 (2d Cir. 2005). This final Daylight Time, on December 4, 2008, as V. Cross-Media Considerations and
rule responds to the court order while provided in 40 CFR 23.2. Pathogens
furthering the statutory goal of restoring ADDRESSES: The record for this A. Cross-Media Approaches
and maintaining the nation’s water rulemaking is available for inspection B. Pathogens and Animal Feeding
quality by ensuring that CAFOs and copying at the Water Docket, Operations
properly manage manure generated by VI. Statutory and Executive Order Reviews
located at the EPA Docket Center (EPA/
their operations. A. Executive Order 12866: Regulatory
DC), EPA West 1301 Constitution Ave., Planning and Review
This final rule revises several aspects NW., Washington, DC 20004. The record
of EPA’s current regulations governing B. Paperwork Reduction Act
is also available via EPA Dockets at C. Regulatory Flexibility Act
discharges from CAFOs. EPA is http://www.regulations.gov under D. Unfunded Mandates Reform Act
modifying the requirement to apply for docket number OW–2005–0037. The E. Executive Order 13132: Federalism
a permit by specifying that an owner or rule and key supporting documents are F. Executive Order 13175: Consultation
operator of a CAFO that discharges or also available electronically on the and Coordination With Indian Tribal
proposes to discharge must apply for an Internet at http://www.epa.gov/npdes/ Governments
NPDES permit. The final rule also caforule. G. Executive Order 13045: Protection of
includes an option for an unpermitted Children From Environmental Health
CAFO to certify to the permitting FOR FURTHER INFORMATION CONTACT: For and Safety Risks
authority that the CAFO does not additional information contact Rebecca H. Executive Order 13211: Actions
discharge or propose to discharge. In Roose, Water Permits Division, Office of Concerning Regulations That
addition, EPA is clarifying how the Wastewater Management (4203M), Significantly Affect Energy Supply,
Environmental Protection Agency, 1200 Distribution, or Use
agricultural stormwater discharge I. National Technology Transfer and
exemption criteria are interpreted for Pennsylvania Ave., NW., Washington,
DC 20460, telephone number: (202) Advancement Act
unpermitted Large CAFOs. EPA is also J. Congressional Review Act
requiring CAFOs seeking permit 564–0758, e-mail address:
coverage to submit their nutrient roose.rebecca@epa.gov. For additional I. General Information
management plans (NMPs) with their information specific to New Source
Performance Standards and BCT A. Does This Action Apply to Me?
applications for individual permits or
notices of intent to be authorized under Limitations contact Paul Shriner, This action applies to concentrated
general permits. Permitting authorities Engineering and Analysis Division, animal feeding operations (CAFOs) as
are required to review the NMPs and Office of Science and Technology specified in section 502(14) of the Clean
provide the public with an opportunity (4303T), Environmental Protection Water Act (CWA), 33 U.S.C. 1362(14)
for meaningful public review and Agency, 1200 Pennsylvania Ave., NW., and defined in the NPDES regulations at
comment. Permitting authorities are also Washington, DC 20460, telephone 40 CFR 122.23. Table 1.1 provides a list
required to incorporate terms of NMPs number: (202) 566–1076, e-mail address: of standard industrial codes for
shriner.paul@epa.gov.
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as NPDES permit conditions. operations potentially regulated under
Additionally, this action removes the SUPPLEMENTARY INFORMATION: this revised rule. The rule also applies
provision that allowed CAFOs to use a I. General Information to States and Tribes with authorized
100-year, 24-hour containment structure A. Does This Action Apply to Me? NPDES Programs.
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70419
TABLE 1.1—OPERATIONS POTENTIALLY REGULATED BY THIS RULE
North American Standard Indus
Industry Classi
Category Examples of regulated entities trial Classification
fication System (SIC)
(NAICS)
Industry .................. Operators of animal production operations that meet the definition of a CAFO:
Beef cattle feedlots (including veal calves) ......................................................... 112112 0211
Beef cattle ranching and farming ......................................................................... 112111 0212
Hogs ..................................................................................................................... 11221 0213
Sheep and Goats ................................................................................................. 11241, 11242 0214
General livestock except dairy and poultry .......................................................... 11299 0219
Dairy farms ........................................................................................................... 11212 0241
Broilers, fryers, and roaster chickens .................................................................. 11232 0251
Chicken eggs ....................................................................................................... 11231 0252
Turkey and turkey eggs ....................................................................................... 11233 0253
Poultry hatcheries ................................................................................................ 11234 0254
Poultry and eggs .................................................................................................. 11239 0259
Ducks ................................................................................................................... 11239 0259
Horses and other equines .................................................................................... 11292 0272
This table is not intended to be (202) 566–1744, and the telephone of pollutants from point sources to
exhaustive, but rather provides a guide number for the Water Docket is (202) waters of the U.S. (CWA section 402).
for readers regarding entities likely to be 566–2426. Section 502(14) of the CWA specifically
regulated by this action. This table lists 2. Electronic Access. This Federal includes CAFOs in the definition of the
the types of entities that EPA is now Register document and key supporting term ‘‘point source.’’ Section 502(12)
aware could potentially be regulated by documents are also electronically defines the term ‘‘discharge of a
this action. Other types of entities not available on the Internet at http:// pollutant’’ to mean ‘‘any addition of any
listed in the table could also be www.epa.gov/npdes/agriculture. pollutant to navigable waters from any
regulated. To determine whether your point source’’ (emphasis added). EPA
C. Under What Legal Authority Is This has issued comprehensive regulations
facility is regulated under this
Final Rule Issued? that implement the NPDES program at
rulemaking, you should carefully
examine the applicability criteria in This final rule is issued under the 40 CFR part 122. The Act also provides
§ 122.23. If you have questions authority of sections 101, 301, 304, 306, for the development of technology-
regarding the applicability of this action 308, 402, and 501 of the CWA. 33 U.S.C. based and water quality-based effluent
to a particular entity, consult the person 1251, 1311, 1314, 1316, 1317, 1318, limitations that are imposed through
listed in the preceding FOR FURTHER 1342, and 1361. NPDES permits to control the discharge
INFORMATION CONTACT section. of pollutants from point sources. CWA
D. What Is the Comment Response
sections 301(a) and (b).
B. How Can I Get Copies of This Document?
Document and Other Related EPA received a large number of B. History of Actions To Address CAFOs
Information? comments on the 2006 proposed rule Under the NPDES Permitting Program
(71 FR 37,744–87; June 20, 2006) and EPA began regulating discharges of
1. Docket. EPA has established an
the 2008 supplemental proposal (73 FR wastewater and manure from CAFOs in
official public docket for this action
12,321–40; March 7, 2008). EPA the 1970s. EPA initially issued national
under Docket ID No. EPA–HQ–OW–
evaluated all of the comments submitted effluent limitations guidelines and
2005–0037. The official public docket
and prepared a Comment Response standards for feedlots on February 14,
consists of the documents specifically
Document containing both the 1974 (39 FR 5704), and NPDES CAFO
referenced in this action, any public
comments received and the Agency’s regulations on March 18, 1976 (41 FR
comments received, and other
responses to those comments. The 11,458).
information related to this action. In February 2003, EPA issued
Although listed in the index, some Comment Response Document
complements and supplements this revisions to these regulations that
information is not publicly available, focused on the 5% of the nation’s
e.g., Confidential Business Information preamble by providing more detailed
explanations of EPA’s final action. The animal feeding operations (AFOs) that
(CBI) or other information whose presented the highest risk of impairing
disclosure is restricted by statute. Comment Response Document is
available in the Docket. water quality and public health (68 FR
Certain other material, such as 7176–7274; February 12, 2003) (‘‘the
copyrighted material, will be publicly II. Background 2003 CAFO rule’’). The 2003 CAFO rule
available only in hard copy. Publicly required the owners or operators of all
available docket materials are available A. The Clean Water Act
CAFOs1 to seek coverage under an
either electronically in Congress enacted the Federal Water NPDES permit, unless they
www.regulations.gov or in hard copy at Pollution Control Act (1972), also demonstrated no potential to discharge.
the Water Docket in the EPA Docket known as the Clean Water Act (CWA),
Center, EPA West, 1301 Constitution to ‘‘restore and maintain the chemical,
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1 The Clean Water Act regulates the conduct of
Ave., NW., Washington, DC. The Public physical, and biological integrity of the persons, which includes the owners and operators
Reading Room is open from 8:30 a.m. to nation’s waters’’ (CWA section 101(a)). of CAFOs, rather than the facilities or their
discharges. To improve readability in this preamble,
4:30 p.m., Monday through Friday, Among the core provisions, the CWA reference is made to ‘‘CAFOs’’ as well as ‘‘owners’’
excluding legal holidays. The telephone establishes the NPDES permit program and ‘‘operators’’ of CAFOs. No change in meaning
number for the Public Reading Room is to authorize and regulate the discharge is intended.
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70420 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
A number of CAFO industry The Waterkeeper Court also upheld found to be unlawful and therefore
organizations (American Farm Bureau EPA’s determination in the 2003 CAFO vacated.
Federation, National Pork Producers rule that precipitation-related
(a) Duty To Apply
Council, National Chicken Council, and discharges of manure, litter, or process
National Turkey Federation (NTF), wastewater from land application areas The CAFO industry organizations
although NTF later withdrew its under the control of a CAFO qualify as argued that EPA exceeded its statutory
petition) and several environmental ‘‘agricultural stormwater’’ only where authority by requiring all CAFOs to
groups (Waterkeeper Alliance, Natural the CAFO has applied the manure in either apply for NPDES permits or
Resources Defense Council, Sierra Club, accordance with nutrient management demonstrate that they have no potential
and American Littoral Society) filed practices that ensure ‘‘appropriate to discharge. The court agreed with the
petitions for judicial review of certain agricultural utilization’’ of the manure, CAFO industry petitioners on this issue
aspects of the 2003 CAFO rule. This litter, or process wastewater nutrients. and therefore vacated the ‘‘duty to
case was brought before the U.S. Court EPA’s interpretation of the Act in this apply’’ provision of the 2003 CAFO
of Appeals for the Second Circuit. On regard was reasonable, the court found, rule.
February 28, 2005, the court ruled on in light of Congressional intent in The court found that the duty to
these petitions and upheld most excluding agricultural stormwater from apply, based on the potential to
provisions of the 2003 rule but vacated the meaning of the term ‘‘point source’’ discharge, was invalid because the CWA
and remanded others. Waterkeeper and given the precedent set in an earlier subjects only actual discharges to
Alliance, et al. v. EPA, 399 F.3d 486 (2d Second Circuit case, Concerned Area permitting requirements rather than
Cir. 2005). The court’s decision is Residents for the Environment v. potential discharges. The court
described in detail below. Southview Farm, 34 F.3d 114 (2d Cir. acknowledged EPA’s policy
1994). 399 F.3d at 508–09. considerations for seeking to impose a
The revisions to the 2003 CAFO rule
duty to apply based on the potential to
being published today relate directly to (b) Effluent Guidelines discharge but found that the Agency
the changes required by the court’s
The court rejected the environmental lacked statutory authority to do so. 399
decision and continue to maintain the organizations’ claim that EPA, in F.3d at 505.
focus on regulating discharges from the developing best available technology
universe of high-risk AFOs. effluent limitations guidelines, had (b) Nutrient Management Plans (NMPs)
C. Ruling by the U.S. Court of Appeals failed to consider the single best The court concluded that the 2003
for the Second Circuit performing CAFO and adopt limitations CAFO rule impermissibly: (1)
that reflected its performance. The court Empowered permitting authorities to
The Second Circuit’s decision in found that EPA had collected extensive issue permits without any meaningful
Waterkeeper upheld certain challenged data on the waste management systems review of a CAFO’s NMP, (2) failed to
provisions of the 2003 rule and vacated at CAFOs and had considered require that the terms of the nutrient
or remanded others, as follows. approximately 11,000 public comments management plan be included as
1. Issues Upheld by the Court on the proposed CAFO rule. The court effluent limitations in the NPDES
determined that EPA had either adopted permit, and (3) violated the CWA’s
This section discusses provisions of as the basis for its limitations the best public participation requirements. The
the 2003 CAFO rule that were performing technology or declined to do court agreed with the environmental
challenged by either industry or so for permissible reasons. 399 F.3d at petitioners on these three issues.
environmental petitioners, but were 513. The court relied on provisions of the
upheld by the Waterkeeper Court and The court upheld EPA’s decision in Act that authorize point source
therefore remain unchanged. EPA is not the 2003 rule relating to groundwater discharges only where NPDES permits
revising any of these provisions and did controls. In the 2003 rule, EPA stated ‘‘ensure that every discharge of
not solicit comment on them. that the Agency believed that pollutants will comply with all
(a) Land Application Regulatory requirements limiting the discharge of applicable effluent limitations and
Framework and Interpretation of pollutants to surface water via standards,’’ citing CWA sections
‘‘Agricultural Stormwater’’ groundwater that has a direct hydrologic 402(a)(1), (a)(2), and (b). Because the
connection to surface water should be 2003 CAFO rule did not provide for
The Waterkeeper Court upheld EPA’s addressed on a site-specific basis. The permitting authority review of a CAFO’s
authority to regulate, through NPDES Agency also stated that nothing in the nutrient management plan before the
permits, the discharge of manure, litter, 2003 rule was to be construed to permit was issued, the court found that
or process wastewater that a CAFO expand, diminish, or otherwise affect the rule did not ensure that each
applies to its land application area. The the jurisdiction of the CWA over CAFO’s discharges comply with these
court rejected the industry petitioners’ discharges to surface water via CWA provisions. The court also found
claim that land application runoff must groundwater that has a direct hydrologic that the terms of the NMP themselves
be channelized before it can be connection to surface water. 399 F.3d at are ‘‘effluent limitations’’ as that term is
considered to be a point source 514–15. defined in the Act and therefore must be
discharge subject to permitting. The The court upheld the analytic made part of the permit and be
court noted that the CWA expressly methodologies that EPA used for enforceable as required under CWA
defines the term ‘‘point source’’ to determining whether the technology- sections 301 and 402. The court also
include ‘‘any * * * concentrated based permit requirements for CAFOs held that as effluent limitations, those
animal feeding operation * * * from set in the 2003 rule would be terms must be made available for public
which pollutants are or may be economically achievable by the industry review. 399 F.3d at 499–502.
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discharged,’’ and found that the Act as a whole. 399 F.3d at 515–18.
‘‘not only permits, but demands’’ that 3. Issues Remanded by the Court
land application discharges be 2. Issues Vacated by the Court The Waterkeeper Court also remanded
construed as discharges ‘‘from’’ a CAFO. The following are the elements of the other aspects of the CAFO rule to EPA
399 F.3d at 510. 2003 rule that the Waterkeeper Court ‘‘for further clarification and analysis.’’
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70421
(a) Water Quality-Based Effluent Limits Waterkeeper. These unchallenged discharges, which are exempt from
The court agreed with EPA that provisions are addressed in this final permit requirements. Section 122.23(e)
agricultural stormwater is excluded rule only to provide background provides that precipitation-related
from the meaning of the term ‘‘point information and are not in any way discharges of manure, litter, or process
source’’ and therefore is not subject to reopened or affected by this rulemaking. wastewater from a CAFO’s land
water quality-based effluent limitations The definitions provided in 40 CFR application areas are agricultural
in permits. However, the court directed 122.23(b) of the 2003 CAFO rule remain stormwater discharges, provided that
EPA to ‘‘clarify the statutory and in effect and are unchanged. First, an ‘‘the manure, litter, or process
evidentiary basis for failing to operation must be defined as an animal wastewater has been applied in
promulgate water quality-based effluent feeding operation (AFO) before it can be accordance with site-specific nutrient
limitations for discharges other than defined as a concentrated animal management practices that ensure
agricultural stormwater discharges as feeding operation (CAFO). 40 CFR appropriate agricultural utilization of
that term is defined in 40 CFR 122.23. The term ‘‘animal feeding the nutrients in the manure, litter, or
122.23(e),’’ and to ‘‘clarify whether operation’’ is defined by EPA regulation process wastewater, as specified in
States may develop water quality-based as a ‘‘lot or facility’’ where animals § 122.42(e)(1)(vi)–(ix).’’
effluent limitations on their own.’’ 399 ‘‘have been, are or will be stabled or The court ruling also did not affect
F.3d at 524. confined and fed or maintained for a the nutrient management planning
total of 45 days or more in any 12 month requirements for permitted CAFOs
(b) New Source Performance period and crops, vegetation, forage established in the 2003 CAFO rule. All
Standards—100-Year Storm Standard growth, or post harvest residues are not CAFOs that apply for permits must
The 2003 CAFO rule set new source sustained in the normal growing season develop and implement an NMP that
performance standards (NSPS) for over any portion of the lot or facility.’’ meets the requirements of 40 CFR
swine, poultry, and veal calf CAFOs at Whether an AFO is a CAFO depends 122.42(e) and, for Large CAFOs subject
no discharge. A CAFO in these primarily on the number of animals to 40 CFR part 412, subpart C or D, 40
categories could fulfill this requirement confined, which is also unchanged. CFR 412.4. The NMP identifies the
by showing that either (1) its production Large CAFOs are AFOs that confine necessary actions to ensure that runoff
area was designed to contain all more than the threshold number of is eliminated or minimized through
manure, litter, or process wastewater, animals detailed in 40 CFR 122.23(b)(4). proper and effective manure, litter, or
and precipitation from a 100-year, 24- Medium CAFOs confine fewer animals process wastewater management,
hour storm, or (2) it would comply with than Large CAFOs and also: (1) including compliance with the ELGs as
‘‘voluntary superior environmental Discharge pollutants into waters of the applicable. Permitted CAFOs must
performance standards’’ based on U.S. through a man-made ditch, comply with all applicable
innovative technologies, under which a flushing system, or other similar man- recordkeeping and reporting
discharge from the production area made device; or (2) discharge pollutants requirements, including those specified
would be allowed if it was accompanied into waters of the U.S. which originate in § 122.42(e).
by an equivalent or greater reduction in outside of and pass over, across, or The court ruling also did not affect
the quantity of pollutants released to through the facility or otherwise come the ELG requirements for Large CAFOs,
other media (e.g., air emissions). The into direct contact with the confined with the exception of new source
court found that EPA had neither animals. 40 CFR 122.23(b)(6)(ii). The performance standards (NSPS) for
justified in the record nor provided an NPDES permitting authority also may, swine, poultry, and veal calf operations.
adequate opportunity for public on a case-by-case basis, designate any ELG requirements ensure the
comment for either of these provisions. medium or small AFO, as a CAFO after appropriate storage of manure, litter,
As a result, the court remanded these conducting an on-site inspection and and process wastewater and proper land
provisions to EPA to clarify, via a finding that the facility ‘‘is a significant application practices. They vary
process that adequately involves the contributor of pollutants to waters of the depending upon the type of animals
public, the statutory and evidentiary United States.’’ 40 CFR 122.23(c). The confined: Subpart A for horses and
basis for them. 399 F.3d at 520–21. permitting authority may not exercise sheep; subpart B for ducks; subpart C for
its authority to designate a small AFO dairy cattle, heifers, steers, and bulls;
(c) BCT Effluent Guidelines for as a CAFO unless pollutants are and subpart D for swine, poultry, and
Pathogens discharged into waters of the U.S. veal calves. 40 CFR part 412.
The court held that the 2003 CAFO through a man-made ditch, flushing Additionally, NSPS for beef and dairy
rule violated the CWA because EPA had system, or other similar man-made operations were not affected by the
not made an affirmative finding that the device, or are discharged into waters of decision and remain unchanged (40 CFR
BCT-based Effluent Limitations the U.S. which originate outside of the 412.35).
Guidelines (ELGs), i.e., the ‘‘best facility and pass over, across, or through Permitted small and medium CAFOs
conventional technology’’ guidelines for the facility or otherwise come into are not subject to the ELGs specified in
conventional pollutants such as fecal direct contact with the animals confined part 412. Rather, they must comply with
coliform, do in fact represent BCT for in the operation. 40 CFR 122.23(c)(3). technology-based requirements
pathogens. The court remanded this As previously described, the court developed by the permitting authority
issue to EPA for such a finding. 399 upheld EPA’s definition of ‘‘agricultural on a case-by-case basis (i.e., best
F.3d at 519. stormwater discharge’’ in relation to professional judgment (BPJ)), pursuant
discharges from land application areas to CWA section 402(a)(1)(B) and as
D. What Requirements Still Apply to under the control of a CAFO in 40 CFR defined in 40 CFR 125.3(c)(2) and (d).
CAFOs? 122.23(e). Discharges of manure, litter,
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The Waterkeeper decision either or process wastewater from land E. EPA’s Response to the Waterkeeper
upheld or did not address most application areas under the control of a Decision
provisions of the 2003 CAFO rule. This CAFO are discharges from the CAFO On June 30, 2006, EPA published a
section describes certain key portions of (i.e., point source discharges) unless proposed rule to revise the Agency’s
the rule that were not challenged in they are agricultural stormwater regulations governing discharges from
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70422 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
CAFO’s in response to the Waterkeeper complete this final rule. Neither of these A. Duty To Apply for a Permit
decision. 71 FR 37,744. In summary, date extension rules addressed any of
1. Provisions in the 2003 CAFO Rule
EPA proposed to require only owners or the substantive issues addressed in this
operators of those CAFOs that discharge final rule or promulgated any provisions (a) Duty To Apply
or propose to discharge to seek in response to the Waterkeeper decision. The 2003 CAFO rule required all
authorization to discharge under a The first rule revised dates established CAFOs to seek authorization to
permit. Second, EPA proposed to in the 2003 CAFO rule by which discharge under an NPDES permit
require CAFOs seeking authorization to facilities newly defined as CAFOs were unless the Director, i.e., the permitting
discharge under individual permits to required to seek permit coverage and by authority, determined that the CAFO
submit their NMPs with their permit had no potential to discharge.
which all CAFOs were required to
applications or, under general permits,
develop and implement nutrient (b) ‘‘No Potential To Discharge’’
with their notices of intent. Permitting
authorities would be required to review management plans. 71 FR 6978–84 Determination
the NMP and provide the public with an (February 10, 2006). EPA extended the
date by which operations defined as The 2003 CAFO rule included a
opportunity for meaningful public process for CAFOs to seek a ‘‘no
review and comment. Permitting CAFOs as of April 14, 2003, that were
not defined as CAFOs prior to that date, potential to discharge’’ determination by
authorities would also be required to the Director. Where the Director
incorporate terms of the NMP as NPDES were required to seek NPDES permit
coverage, from February 13, 2006, to determined, based on information
permit requirements. Additionally, EPA
July 31, 2007. EPA also amended the supplied by the CAFO operator, that a
proposed a process for modifying a
CAFO had no potential to discharge
CAFO’s NPDES permit to incorporate date by which operations that become
manure, litter, or process wastewater to
changes to the NMP during the permit defined as CAFOs after April 14, 2003,
waters of the U.S., the CAFO operator
term by designating permit due to operational changes that would had no duty to apply for a permit,
modifications in accordance with that not have made them a CAFO prior to unless circumstances at the facility
process to be ‘‘minor modifications of April 14, 2003, and that are not new changed such that the facility would
permits’’ under 40 CFR 122.63. The sources, were required to seek NPDES have the potential to discharge.
2006 proposed rule also addressed the permit coverage, from April 13, 2006, to
remand of issues for further clarification Examples of facilities that possibly
July 31, 2007. Finally, EPA extended the would have qualified for this exemption
and analysis. These issues concerned deadline by which CAFOs were
clarifications regarding the applicability included facilities in very arid areas,
required to develop and implement facilities that are down slope from
of water quality-based effluent
nutrient management plans, from waters of the U.S., and facilities with
limitations (WQBELs) to CAFO
December 31, 2006, to July 31, 2007. completely enclosed operations.
discharges; NSPS for swine, poultry,
and veal CAFOs; and BCT effluent That rulemaking revised all references
2. Summary of the Second Circuit Court
limitations guidelines for fecal coliform. to the date by which CAFOs must
Decision
A March 7, 2008, Federal Register develop and implement NMPs as
notice supplemented the 2006 proposed specified in the 2003 CAFO rule. The Second Circuit Court of Appeals
rule by proposing additional options vacated the provision that required all
As a result of the extensive array of
considered by EPA for inclusion in this CAFO owners or operators with a
public comments on the issues raised by
final rule in response to the Second potential to discharge to apply for an
the Waterkeeper decision, EPA was NPDES permit. The court held that the
Circuit’s decision in the Waterkeeper unable to complete this final rule prior
decision. In that notice, EPA proposed Clean Water Act (CWA) authorizes EPA
to July 31, 2007. Thus, EPA published to require permits for the actual
a voluntary option for a CAFO to certify a second revision of the compliance
that the CAFO does not discharge or discharge of pollutants, but not for mere
dates on July 24, 2007, extending the potential discharges. Because the 2003
propose to discharge based on an
dates from July 31, 2007, to February 27, CAFO rule imposed an obligation on all
objective assessment of the CAFO’s
2009. The preamble to the second date CAFOs to either apply for an NPDES
design, construction, operation, and
maintenance. EPA also proposed a change rule explained EPA’s belief that permit or affirmatively demonstrate that
framework for identifying the terms of the February 27, 2009, deadlines were they have no potential to discharge, the
the NMP and three alternative appropriate because they would provide court ruled that it exceeded EPA’s
approaches for addressing rates of additional time for States, the regulated authority under the CWA. Waterkeeper
application of manure, litter, and community, and other stakeholders to Alliance et al. v. EPA, 399 F.3d 486, 506
process wastewater when identifying adjust to the new regulatory (2d Cir. 2005).
terms of the NMP to be included in the requirements. See 72 FR 40,245–50. In 3. This Final Rule
permit. In the 2008 supplemental the 2008 supplemental rule, EPA
proposal, EPA sought comment only on requested comment on further To address the court’s decision on the
the issues presented in the 2008 extending the compliance deadline. For duty to apply, EPA is revising the 2003
supplemental proposal. additional discussion of compliance CAFO rule in three ways:
In addition to the changes made dates, see section III.D of this preamble. • Deleting the requirement that all
through this rulemaking, EPA extended CAFOs apply for an NPDES permit to
certain deadlines in the NPDES III. The Final Rule: Revisions to the provide instead that all CAFOs that
permitting requirements and ELGs in 2003 CAFO Rule in Response to ‘‘discharge or propose to discharge’’
two separate rulemakings in order to Waterkeeper have a duty to apply when they propose
allow the Agency adequate time to to discharge;
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complete this rulemaking in response to This final rule responds to the Second • Eliminating the procedures for a no
the Waterkeeper decision, in advance of Circuit Court’s vacature and remand potential to discharge determination;
those deadlines. The principal purpose orders. and
of these rulemakings was to provide • Establishing a voluntary option for
additional time for the Agency to unpermitted CAFOs to certify that they
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70423
do not discharge or propose to question, due to its individual intermittent and sporadic discharges.
discharge. attributes, discharges or proposes to ‘‘Intermittent or sporadic violations do
discharge. Therefore, revised not cease to be ongoing until the date
(a) Duty To Seek Permit Coverage
§ 122.23(d)(1) requires only CAFOs that when there is no real likelihood of
EPA proposed to replace the ‘‘duty to actually discharge to seek permit repetition.’’ Chesapeake Bay
apply’’ requirement adopted in the 2003 coverage and clarifies that a CAFO Foundation v. Gwaltney of Smithfield,
rule, which states that all CAFO owners proposes to discharge if based on an 890 F.2d 690, 693 (4th Cir. 1989). Such
or operators must seek coverage under objective assessment it is designed, intermittent, sporadic, even occasional,
an NPDES permit unless they constructed, operated, or maintained discharges may in fact be the norm for
demonstrate ‘‘no potential to discharge’’ such that a discharge will occur, not many CAFOs, but they are nonetheless
(40 CFR 122.21(a)(1) and 40 CFR simply such that it might occur. ‘‘discharges’’ under the CWA and are
122.23(a) and 40 CFR 122.23(d)(1)) with Consistent with the Waterkeeper prohibited unless authorized under the
a modified ‘‘duty to apply’’ provision. decision, CAFOs that are required to terms of an NPDES permit. CAFOs that
The 2006 proposed rule would have seek permit coverage must do so when have had such intermittent or sporadic
required that all CAFOs that ‘‘discharge they propose to discharge. (See below discharges in the past would generally
or propose to discharge’’ seek coverage for discussion of the provision relating be expected to have such discharges in
under an NPDES permit, which is the to when a CAFO must seek permit the future, and therefore be expected to
same language that applies generally to coverage, 40 CFR 122.23(f).) Thus, it is obtain a permit, unless they have
point sources under longstanding the responsibility of the CAFO owner or modified their design, construction,
NPDES regulations at § 122.21(a)(1). operator to seek authorization to operation, or maintenance in such a way
This rule adopts the approach in the discharge at the time they propose to as to prevent all discharges from
2006 proposed rule by replacing the discharge. A CAFO that discharges occurring.
‘‘duty to apply’’ requirement of the 2003 without a permit is in violation of the EPA received a number of comments
rule with a requirement that a CAFO CWA section 301(a) prohibition on such concerning past discharges. Some
that ‘‘discharges or proposes to discharges and additionally has the commenters asserted that a prior
discharge’’ must seek authorization to burden of establishing that it did not discharge is not, by itself, a sufficient
discharge under an NPDES permit. propose to discharge prior to the basis for requiring a permit and
Because a number of commenters discharge (unless the permitting observed that it is quite possible that a
misunderstood, or were confused by, authority has a current, complete CAFO may have eliminated the cause of
the term ‘‘propose to discharge,’’ EPA is certification from that CAFO as the discharge. EPA agrees that not every
providing additional clarification in this provided by 40 CFR 122.23(j)(2), past discharge from a CAFO necessarily
rule and preamble on how operators discussed below). If it is determined triggers a duty to apply for a permit;
should evaluate whether they discharge that it did, in fact, propose to discharge however, a past discharge may indicate
or propose to discharge. While prior to the discharge (that is, it was that the CAFO discharges or proposes to
commenters generally agreed that the designed, constructed, operated, or discharge if the conditions that gave rise
changes proposed by EPA were maintained such that a discharge would to the discharge have not changed or
consistent with the Second Circuit occur), it is also in violation of the been corrected. See, e.g., Gwaltney of
decision, some commenters thought that § 122.23(d)(1) duty to apply. Section Smithfield. Ltd. v. Chesapeake Bay
‘‘propose to discharge’’ and ‘‘potential 122.23(j)(2) also clarifies how a CAFO Foundation, 484 U.S. 49, 57 (1987) (‘‘a
to discharge’’ were not sufficiently may satisfy the burden of establishing reasonable likelihood that a past
distinguishable, and that ‘‘proposed’’ that it did not propose to discharge. polluter will continue to pollute in the
discharges could be understood as Under section 301(a) of the CWA, future’’ is a continuous or intermittent
contrary to the Waterkeeper court’s only those CAFO discharges authorized violation); American Canoe Ass’n v.
holding that only ‘‘actual’’ discharges by an NPDES permit (or otherwise Murphy Farms, Inc., 412 F.3d. 536 (4th
are subject to CWA requirements. authorized by the statute), regardless of Cir. 2005) (CWA violation continues
EPA disagrees with these the volume or duration of the discharge, where corrective measures are
commenters. Including a duty to apply are allowed. Any discharge from a insufficient to eliminate real likelihood
for CAFOs that ‘‘propose to discharge’’ CAFO, even one that is unplanned or of repeated discharges). The same
is not the same as requiring a permit for accidental, is illegal unless it is rationale that led the courts in these
CAFOs with only a ‘‘potential to authorized by the terms of a permit or cases to conclude that the point sources
discharge.’’ Unlike the 2003 rule, which is agricultural stormwater. While EPA in question were discharging in
categorically required a permit for any recognizes that not every discharge violation of the CWA underlies the final
CAFO with a ‘‘potential to discharge,’’ indicates that the CAFO will discharge rule’s requirement that CAFOs must
this final rule calls for a case-by-case in the future, an operator should seek permit coverage when they
evaluation by the CAFO owner or certainly consider any unplanned or discharge or propose to discharge (i.e.,
operator as to whether the CAFO accidental discharge that may have are designed, constructed, operated, or
discharges or proposes to discharge occurred in the past in deciding maintained such that a discharge will
from its production area or land whether to seek permit coverage. CAFO occur). Sections 122.23(d)(1) and (f).
application area based on actual design, operators must objectively assess An uncorrected past discharge is not
construction, operation, and whether a discharge from the CAFO, the only indicator that operators should
maintenance. ‘‘Potential’’ connotes the including from the production area or consider in assessing whether the CAFO
possibility that there might—as opposed land application areas under the control discharges or proposes to discharge.
to will—be a discharge, which, as the of the CAFO, is occurring or will occur Other key factors the operator should
Waterkeeper court held, is not sufficient for purposes of determining whether to consider include the proximity of the
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under the CWA to trigger NPDES obtain permit coverage. production area to waters of the U.S.,
permitting requirements. In contrast to It is well established that ‘‘discharge’’ whether the CAFO is upslope from
the 2003 rule, this rule requires a case- is not limited to continuous discharges waters of the U.S., and climatic
by-case assessment by each CAFO to of pollutants from a point source to conditions. Similarly, the type of waste
determine whether the CAFO in waters of the U.S., but also includes storage system, storage capacity, quality
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70424 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
of construction, and presence and extent provides a means for a CAFO to certify discharge or propose to discharge to
of built-in safeguards are important that it does not discharge or propose to apply for NPDES permit coverage.
factors. Standard operating procedures discharge. The voluntary certification Some commenters on the 2006
and level of maintenance are also provisions are discussed below in proposed rule opposed regulating
critical factors for the operator to section III.A.3(c) of this preamble. entities that ‘‘propose’’ to discharge, or
consider when assessing whether a This rule is consistent with the alternatively, suggested that EPA should
CAFO discharges or proposes to Waterkeeper decision because the duty clarify that ‘‘propose’’ means ‘‘intend’’
discharge. Such considerations to apply for a permit only arises when or ‘‘plan.’’ While EPA acknowledges
contributed to EPA’s decision to include a CAFO discharges or proposes to that ‘‘propose’’ to discharge could be
in this final rule an option for discharge, that is, when it discharges or understood to mean ‘‘intend’’ or ‘‘plan’’
unpermitted CAFOs to certify that they is designed, constructed, operated, or to discharge, under this final rule
do not discharge or propose to discharge maintained such that a discharge will ‘‘propose to discharge’’ means that the
by meeting the criteria in 40 CFR occur. It is also consistent with CAFO is designed, constructed,
122.23(i)(2), discussed in detail below. Chesapeake Bay Foundation v. operated, or maintained such that it will
EPA encourages unpermitted CAFOs Gwaltney of Smithfield, discussed discharge. This is consistent with the
that choose not to certify to consider the above, which found a violation under Waterkeeper decision because a mere
set of criteria for certification eligibility the CWA where it is reasonably likely ‘‘potential’’ to discharge is not sufficient
when deciding whether to seek permit that a discharge will occur due to to trigger the revised duty to apply.
coverage, and this final rule provides in existing circumstances. This rule Accordingly, as previously discussed,
§ 122.23(j)(2) that these same criteria derives from sections 402(a)(3) and 308 revised § 122.23(d)(1) clarifies that ‘‘a
may be used to establish that a CAFO of the CWA, 33 U.S.C. 1342(a)(3), 1318. CAFO proposes to discharge if it is
did not propose to discharge prior to a Under section 402(a)(3), EPA is required designed, constructed, operated, or
discharge occurring. to establish a permit program that, maintained such that a discharge will
As a result of the revisions to 40 CFR among other things, ensures compliance occur.’’ The CAFO’s decision as to
122.23(d) and (f), only CAFOs that with all applicable requirements of whether to apply for a permit should be
discharge or propose to discharge are sections 301 (requirements for based on an objective assessment of
required to seek permit coverage, and a establishing technology-based and water conditions at that operation. As
CAFO that proposes to discharge must quality-based effluent limitations), 306 discussed below, under this final rule,
seek coverage as soon as it proposes to (requirements for establishing new a CAFO that is not designed,
discharge in order to avoid having source performance standards), 308 constructed, operated, or maintained in
unpermitted discharges. In the event of (requirements relating to inspections, a manner such that the CAFO does or
a discharge from an unpermitted CAFO, monitoring and entry, including will discharge is not required to seek
the CAFO operator would be in requests for information to determine permit coverage under § 122.23(d)(1)
violation of the CWA prohibition compliance status or support and may choose to take advantage of the
against discharging without a permit. development of effluent limitations) and voluntary no discharge certification.
Under this final rule, if the CAFO 402 (NPDES permits). Some commenters on the 2006
proposed to discharge prior to the Section 301(a) prohibits the discharge proposed rule requested that EPA
discharge, the CAFO would also be in of pollutants, except in compliance with specifically state in the regulation that
violation of the requirement in specific provisions in the CWA. facilities designed to the 25-year, 24-
§ 122.23(d)(1) and (f), implementing Particularly relevant to CAFOs, section hour design standard have not
sections 308 and 402 of the CWA, that 301(b) provides that ‘‘there shall be ‘‘proposed’’ to discharge. One
CAFOs seek permit coverage when they achieved’’ effluent limitations commenter questioned whether existing
propose to discharge. controlling pollutants discharged from operations should be required to obtain
In revised § 122.23(d)(1), EPA is point sources. Section 308(a) provides permit coverage if they have installed
clarifying that ‘‘a CAFO proposes to EPA broad authority to require the structures and production area BMPs
discharge if it is designed, constructed, owner or operator of any point source using Natural Resources Conservation
operated, or maintained such that a (including CAFOs) to provide Service (NRCS) standards and if they
discharge will occur.’’ EPA intends that information necessary to develop have been operating without
the CAFO operator should make an effluent limitations, to ‘‘carry out’’ discharging. The commenter indicated
objective assessment of the operation to section 402, and to ‘‘carry out’’ the that ‘‘since EPA is requiring that a zero
determine whether the CAFO will objectives of the Act, which are set forth discharge standard be met only for
discharge. Such an objective assessment in CWA section 101(a). Under section certain new CAFOs and not existing
would take into account not only the 501(a) EPA is authorized to prescribe CAFOs, it is unreasonable to expect all
characteristics of the manmade aspects ‘‘such regulations as are necessary to existing animal operations that do not
of the CAFO itself, but climatic, carry out’’ its functions under the CWA. otherwise come under a permit to meet
hydrological, topographical, and other Any permit program established to carry a zero discharge standard.’’
characteristics beyond the operator’s out section 402 must, of necessity, EPA disagrees that CAFOs designed
control that impact whether the CAFO require point sources that discharge or for the 25-year, 24-hour storm should be
will discharge, given the design, propose to discharge to submit categorically excluded from the
construction, operation and information to allow the permitting requirement to apply for a permit
maintenance of the CAFO. authority to determine prior to issuance simply based on their design standard.
To assist CAFO operators in making of a permit what effluent limitations EPA also believes that it is reasonable to
this objective assessment and to provide should apply to a discharger and be expect unpermitted CAFOs to meet a
assurance for CAFOs deciding not to included in its permit (including zero discharge standard. The CWA is
rwilkins on PROD1PC63 with RULES_2
seek permit coverage that they are not providing the public and any other very clear that point source discharges
required to obtain permit coverage, EPA affected State notice and opportunity for from CAFOs are illegal unless the
is finalizing a voluntary certification public comment, as required by section operator has applied for and obtained an
option, proposed in the 2008 402(b)(3)). It is therefore reasonable for NPDES permit. Thus, ‘‘zero discharge’’
supplemental proposal. This option EPA to require those CAFOs that is the only standard to which EPA can
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70425
hold unpermitted CAFOs under the and/or bypass regulations are met. See category of operation. EPA is
CWA. Large storms and chronic rainfall 40 CFR 122.41(m) and (n). recodifying 40 CFR 122.23(g) as
events do occur and production areas In contrast to commenters who § 122.23(f) because the paragraph
built to the 25-year, 24-hour storm believe that some non-discharging codified as § 122.23(f) in the 2003 rule
design standard can and do discharge CAFOs will needlessly go through the is being removed. See section III.A.3(b)
during precipitation events. Under the permitting process, other commenters of this preamble. Revised § 122.23(f) is
CWA, as previously discussed, a expressed concern that some CAFOs consistent with the revised duty to
violation of the prohibition against that should have permits will not seek apply requirement in § 122.23(d)(1) and
discharging without a permit occurs needed permit coverage. They EPA’s authority under sections 301, 308
even if the discharge was not planned contended that many CAFOs are and 402 of the CWA to require CAFOs
or intended. Conversely, in the event of currently discharging without a permit that actually discharge to seek permit
a discharge from a permitted CAFO, the and objected to having CAFOs make the coverage. None of the specific
discharge will not violate the CWA if determination themselves as to whether timeframes for the various categories of
the CAFO is in compliance with its or not they discharge or propose to CAFOs in paragraphs (1)–(5) of
permit. discharge, as such an approach would, § 122.23(f), as amended by the 2007 date
EPA notes that design is only one in their view, establish a self-permitting change rule (72 FR 40,245), is affected
aspect for a CAFO to consider when scheme. These commenters further by this rule. The revised language in the
assessing whether or not to apply for a contended that the administrative introductory paragraph of § 122.23(f)
permit. Construction, operation, and record from the 2003 rule supports the simply conforms to the requirements of
maintenance are equally important presumption that all Large CAFOs § 122.23(d)(1).
components of a CAFO’s operation and actually discharge and, therefore, such EPA is making corresponding
can make the difference between a CAFOs should be required to obtain a revisions to the regulatory text requiring
CAFO that discharges and one that does permit. CAFOs to maintain permit coverage.
not. With regard to the commenter’s EPA does not agree that the rule Due to the fact that § 122.23(f) as
question about the applicability of establishes a self-permitting scheme. As codified in 2003 is being removed, EPA
NRCS standards, a CAFO’s decision as is the case with all point sources, it is is recodifying 40 CFR 122.23(h), ‘‘Duty
to whether to seek permit coverage up to the operator to determine whether to Maintain Permit Coverage,’’ as
should be based on an objective or not to apply for a permit in the first § 122.23(g). See section III.A.3(b) of this
assessment of conditions at the instance, by assessing whether the point preamble. Also, in the 2006 proposed
operation, including, but not limited to, source (CAFO) discharges or proposes to rule, EPA proposed to revise this
the manure storage design standard. discharge. Point sources that do not provision to address the Waterkeeper
EPA notes that whether or not a CAFO discharge or propose to discharge are court’s decision vacating the
is designed according to NRCS not subject to CWA permitting requirement for all CAFOs to seek
standards may be an important requirements. See § 122.21(a)(1). permit coverage unless they obtained a
component of the objective evaluation it Regarding the administrative record for no potential to discharge determination.
undertakes to assess whether it is the 2003 rule, that rule established a See 71 FR 37,785. In this final rule (as
designed, constructed, operated, or duty to apply for all CAFOs unless the in the proposed rule), a CAFO would
maintained such that a discharge will CAFO could demonstrate to the not need to reapply based solely on the
occur. A CAFO that does not discharge satisfaction of the permitting authority fact of having had a permit, if the permit
or propose to discharge is not required that it had no ‘‘potential to discharge.’’ had been terminated in accordance with
to seek permit coverage under That provision was vacated by the the NPDES provisions at 40 CFR
§ 122.23(d)(1) and may be eligible for no Second Circuit, which noted that EPA 122.64(b). Since a CAFO that terminated
discharge certification under 40 CFR did not argue that the administrative permit coverage is no longer a permitted
122.23(i). record supported a regulatory CAFO, it is not subject to the duty to
CAFO NPDES permit requirements presumption that all Large CAFOs maintain permit coverage provision.
include, but are not limited to, best actually discharge. 399 F.3d at 506, Consistent with the requirement that
management practices (BMPs) to n.22. Thus, consistent with the only CAFOs that discharge or propose to
eliminate discharges from the Waterkeeper decision, EPA is discharge seek NPDES permit coverage,
production area under most promulgating a rule which requires new § 122.23(g) excludes CAFOs that
circumstances and to ensure appropriate those CAFOs that discharge or propose will not discharge or propose to
agricultural utilization of nutrients in to discharge, but not CAFOs with a mere discharge upon expiration of the permit
manure, litter, and process wastewater ‘‘potential’’ to discharge, to seek permit from the requirement to reapply 180
that is applied to land under the CAFO’s coverage on a case-by-case basis. With days in advance of permit expiration.
control. EPA expects that an regard to the comments that EPA should
unpermitted CAFO would also need to establish a categorical presumption that (b) ‘‘No Potential To Discharge’’
implement BMPs in order to ensure that all Large CAFOs discharge, the Agency Determination
it does not discharge or propose to is evaluating various options for In this final rule, EPA is deleting the
discharge. However, in many, if not exploring the nature of discharges from regulatory provisions adopted in the
most, cases the BMPs called for will be Large CAFOs. 2003 CAFO rule allowing CAFOs to
more rigorous than those required for Finally, this rule revises the demonstrate that they have no potential
permitted CAFOs, because the operator regulatory provisions for when a CAFO to discharge and authorizing the
of an unpermitted CAFO is never must seek permit coverage and the duty Director to make such a determination.
authorized to discharge under CWA to maintain permit coverage for CAFOs. 40 CFR 122.23(d)(2) and 122.23(f).
section 301(a). Permitted CAFOs have The final rule clarifies that those CAFOs Because EPA is not requiring CAFOs to
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greater flexibility because, in addition to that are required under § 122.23(d)(1) to seek permit coverage based merely on
being authorized to discharge under the seek permit coverage must do so ‘‘when potential to discharge, this provision is
circumstances prescribed by the permit, the CAFO proposes to discharge,’’ no longer relevant to determining
other discharges can be excused when unless a later deadline, such as February whether or not a facility needs to seek
the conditions contained in EPA’s upset 27, 2009, is specified for the specific permit coverage. This final rule is
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70426 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
unchanged from the 2006 proposed rule stated that certification would assist certification option established by this
in this respect. CAFOs that do not discharge or propose rule does not change the requirement
Overall, most commenters supported to discharge by providing a structured that CAFOs that propose to discharge
eliminating the ‘‘no potential to process for CAFOs to notify the must seek permit coverage when they
discharge’’ provisions in the CAFO permitting authority that they are not propose to discharge pursuant to
regulations, noting that it is no longer required to seek permit coverage. Some § 122.23(f). It does, however, provide a
necessary because only CAFOs that commenters opposed to certification structured process for CAFOs that wish
discharge or propose to discharge must believe the Agency’s record supports a to certify to establish by objective means
apply for permits. One State observed regulatory presumption that all CAFOs that they do not discharge or propose to
that the ‘‘no potential to discharge’’ discharge, and, therefore, the no discharge. EPA believes that such a
criteria could still be useful to CAFOs discharge certification process is a structured process is helpful to CAFOs
in determining whether they need to further departure from the decision of as they decide whether to seek permit
apply for a permit. While these criteria the Waterkeeper court. The majority of coverage. A CAFO’s no discharge
may continue to be useful to CAFO State permitting authorities commenting certification is not subject to review by
owners and operators for that purpose, on the 2008 supplemental proposal the permitting authority in order for it
EPA is eliminating these provisions were opposed to the certification option, to become effective and the permitting
from 40 CFR 122.23 of the regulations. as proposed. authority is not required to make the
In this final rule, EPA has addressed certification available to the public for
(c) Voluntary No Discharge Certification
both the decision from the Waterkeeper comment because the certification is not
In this final rule, the Agency is court that CAFOs with only a potential a permit application for which review is
adopting a new provision that allows to discharge are not subject to NPDES required under section 402 of the CWA.
CAFOs to voluntarily certify that the permitting requirements and the EPA wishes to emphasize that
CAFO does not discharge or propose to concerns expressed by commenters that submission of a no discharge
discharge. As discussed above, EPA some CAFOs may be uncertain as to certification is voluntary and the
received several hundred comments on whether they discharge or propose to process for obtaining a certification has
the 2006 proposed rule related to how discharge. In the NPDES program, the been developed with that underlying
a CAFO operator would decide whether first step is for a point source to decide principle in mind.
to seek permit coverage under a revised whether it needs to seek permit As explained in detail above, under
rule that requires CAFOs that discharge coverage. Generally, the question of § 122.23(d)(1) a CAFO that does not
or propose to discharge to apply for a whether a point source needs permit discharge or propose to discharge is not
permit or submit a Notice of Intent for coverage is easily answered; indeed required to apply for an NPDES permit.
coverage under a general permit. Several other point sources are typically A certification in accordance with this
commenters were particularly designed to discharge to waters of the final rule documents the CAFO
concerned with the consequences for an U.S. After careful consideration of the operator’s basis for making an informed
unpermitted CAFO that has an comments and in light of the unique decision not to seek permit coverage
‘‘accidental discharge’’ because they characteristics of CAFOs among point because the CAFO does not discharge or
understood EPA’s proposal to mean that sources, EPA has concluded that propose to discharge. A CAFO that
a CAFO that does not apply for a permit providing a voluntary option for certifies in accordance with the
and subsequently has a discharge of unpermitted CAFOs to certify to the requirements of this final rule,
pollutants to waters of the U.S. would Director that the CAFO does not discussed in detail below, is properly
be liable for two violations, one discharge or propose to discharge based certified so long as the CAFO maintains
associated with the discharge itself and on an objective assessment of the its eligibility. EPA believes that
another violation for failing to apply for CAFO’s design, construction, operation, providing a properly certified CAFO
a permit for authority to discharge. In and maintenance is reasonable and assurance that it is not required by
response to these comments, in the 2008 appropriate for CAFOs. However, in § 122.23(d)(1) to seek permit coverage is
supplemental proposal, EPA requested response to comments received on the reasonable and justified. The threshold
public comment on an option that proposed certification option, EPA is question regarding which CAFOs are
would allow a CAFO that determines, clarifying several aspects of the process, required to seek permit coverage—
based on an objective assessment, that it eligibility requirements, and effect of whether the CAFO discharges or
does not discharge or propose to certification as discussed below. The proposes to discharge—is the same for
discharge to certify to the permitting Agency is also making several changes all CAFOs. A CAFO that does not
authority that it is designed, to the proposed option to ensure that discharge or propose to discharge can
constructed, operated, and maintained certification will be properly choose to certify or not. Certification in
not to discharge. In the unlikely event implemented. accordance with the requirements of 40
that a properly certified CAFO Under this final rule, and as proposed CFR 122.23(i) requires a CAFO owner or
discharges (which would constitute a in the 2008 supplemental proposal, a operator to undertake and document a
violation of section 301(a) of the CWA), CAFO operator may certify that the rigorous analysis of the operation’s
the CAFO would not be liable for failing CAFO does not discharge or propose to structure and design, and to be
to apply for a permit prior to the discharge by signing and submitting a committed to operation and
discharge in accordance with the permit certification statement to the Director. maintenance protocols designed to
application requirements of 40 CFR The objective assessment necessary for ensure no discharge, discussed in detail
122.23(d)(1) and (f). the CAFO to qualify for certification below.
EPA received many comments on the takes into account the CAFO’s EPA is adding subsection (j) 40 CFR
proposed voluntary certification option. production area design and construction 122.23 to clarify the effect of
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Commenters were divided, with some and its operating and maintenance certification. As provided in new
generally supportive and others procedures and practices as described in paragraph (j)(1), a CAFO certified in
generally opposed to the concept of a its nutrient management plan (NMP) in accordance with § 122.23(i) is presumed
voluntary certification option for accordance with the eligibility criteria, not to propose to discharge. A CAFO
unpermitted CAFOs. Those in favor described in detail below. The that is ‘‘certified in accordance with
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70427
§ 122.23(i)’’ has submitted a complete does not have a current, signed they will not additionally be held liable
certification that is in effect pursuant to certification from that CAFO, it is the for a violation of the duty to apply,
40 CFR 122.23(i)(4). In the unlikely CAFO’s responsibility to show that it provided their certification is valid and
event that such a CAFO does discharge, was not required to have applied for still in effect at the time of discharge.
it will not be in violation of the permit coverage (i.e., did not propose to EPA strongly recommends that all
requirement that CAFOs that propose to discharge) prior to the discharge. CAFOs that have any doubt about their
discharge seek permit coverage pursuant Section 122.23(j)(2) provides that the ability to operate under all
to § 122.23(d)(1) and (f), with respect to CAFO can satisfy this burden by circumstances without discharging seek
that discharge, provided the CAFO establishing that at the time of the to obtain NPDES permit coverage, and
maintained its certification by discharge the CAFO’s design, believes it is in their interest to do so.
continuing to be designed, constructed, construction, operation, and However, in accordance with the
operated, and maintained in accordance maintenance were all in accordance Waterkeeper decision, EPA is requiring
with the eligibility criteria in 40 CFR with the certification eligibility criteria CAFOs to seek permit coverage only if
122.23(i)(2). This is because meeting the of § 122.23(i)(2). they discharge or propose to discharge.
eligibility criteria at the time of the Unlike the 2003 rule that required all The final rule provisions for
discharge establishes that the CAFO did CAFOs to seek permit coverage in order certification eligibility and submission,
not propose to discharge. If a certified to operate unless they obtained a and conditions for a valid certification
CAFO does discharge, and the Director determination of ‘‘no potential to are discussed in detail below.
believes that the CAFO’s certification discharge,’’ the certification provision is (i) Certification Eligibility Criteria
was invalid at the time of the discharge entirely voluntary. The requirement for EPA is establishing specific eligibility
(i.e., not in accordance with the a CAFO to apply for a permit is criteria for CAFO certification at 40 CFR
eligibility criteria in § 122.23(i)(2)), the triggered if a CAFO discharges or 122.23(i)(2). Meeting these criteria
presumption means that, in any proposes to discharge, regardless of establishes that the CAFO does not
enforcement action alleging failure to whether it has certified or not. Any ‘‘discharge or propose to discharge’’ for
seek permit coverage prior to the CAFO operator’s decision as to whether purposes of 40 CFR 122.23(d)(1), for as
discharge, the burden is on the Director to seek permit coverage should be made long as the certification is valid.
to establish that the CAFO ‘‘proposed to based on an objective assessment of the Eligibility for certification means
discharge’’ prior to the discharge. EPA CAFO’s design, construction, operation, meeting the criteria described below at
notes that any unpermitted discharge and maintenance, in contrast to the the time certification is established and
from a properly certified CAFO is still 2003 rule, which required the operator continuing to meet the eligibility criteria
a violation of CWA section 301(a) and either to seek permit coverage or prove throughout the period of certification as
terminates the certification pursuant to to the satisfaction of the Director that new information or situations arise. The
§ 122.23(i)(4). Moreover, if subsequent the CAFO had no potential to discharge. three criteria are as follows: (1) An
to the discharge event the CAFO is Therefore, under § 122.23(d)(1) and (i), objective evaluation which shows that
designed, constructed, operated, or the operator must evaluate based on the CAFO’s production area is designed,
maintained such that a discharge will such an objective assessment whether it constructed, operated, and maintained
occur, it must seek permit coverage discharges or proposes to discharge. If it so as not to discharge, (2) development
under § 122.23(d)(1) and (f). For does it must seek and obtain permit and implementation of an NMP to
additional discussion of past discharges coverage; if it does not it may operate ensure no discharge (other than
from unpermitted CAFOs see section without a permit and decide either (1) agricultural stormwater discharges) that,
III.C.3(a) of this preamble. to certify under the provisions at at a minimum, addresses the elements
To further clarify the effect of § 122.23(i); or (2) to operate without a set forth in 40 CFR 122.42(e)(1) and 40
voluntary certification, EPA is also permit and without certifying. The CFR 412.37(c), including operation and
including in the final rule a provision purpose of certification is to provide a maintenance practices for the
specifically related to uncertified voluntary mechanism for the CAFO to production area and land application
CAFOs. As provided in 40 CFR establish in advance that it does not areas under the control of the CAFO,
122.23(j)(2) of this final rule, in any discharge or propose to discharge. As and (3) maintenance of the
enforcement proceeding for failure to previously discussed, a CAFO that documentation required for certification
seek permit coverage under operates without a permit must be either on site, at a nearby office, or
§ 122.23(d)(1) or (f) that is associated designed, constructed, operated, and where it can be made readily available
with a discharge from an unpermitted maintained such that no discharge will to the permitting authority upon
CAFO that has not submitted occur, because any discharge (other than request. A statement that describes the
certification documentation as provided agricultural stormwater) is prohibited basis for the CAFO’s certification that it
in 40 CFR 122.23(i)(3) or 40 CFR from unpermitted CAFOs pursuant to satisfies these eligibility criteria must be
122.23(i)(6)(iv), the CAFO would have CWA section 301(a), while permitted submitted to the Director, but there is no
the burden to establish that it did not CAFOs are allowed to discharge under requirement for permitting authority
propose to discharge prior to the specified conditions and may also have review in order for the certification to be
discharge. Also, a CAFO that had defenses for upset and bypass. NPDES valid.
submitted a certification more than five permit coverage reduces CAFO operator The first two criteria concern the
years prior to the discharge (and not risk and provides certainty to CAFO existing physical and operational
recertified within the past five years) or operators regarding activities and conditions at the CAFO. In addition,
that had withdrawn its certification actions that are necessary to comply meeting these criteria includes making
pursuant to 40 CFR 122.23(i)(5) prior to with the CWA. In contrast, certified proper accommodations during the
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the discharge would also have the CAFOs are not allowed to discharge certification period to address changes
burden to establish that it did not under any conditions (other than to the operation. For example, if an
propose to discharge. EPA’s intent is to discharges of agricultural stormwater), increase in animals will cause the CAFO
clarify that when an unpermitted CAFO and are liable for any unpermitted to exceed the existing storage capacity
discharges and the permitting authority discharge pursuant to CWA 301(a), but for precipitation, manure and process
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70428 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
wastewater required for no discharge, in the benefit of certification, which is that criterion: the first for open manure
order to remain certified, the CAFO a validly certified CAFO that discharges storage structures and the second for
must remedy the storage capacity will not be in violation of the any part of the production area not
problem prior to bringing the additional requirement to apply for a permit considered to be open containment.
animals to the operation. Operation and pursuant to § 122.23(d)(1) and 40 CFR Consistent with the 2008
maintenance practices may need to be 122.23(f). As EPA is clarifying in 40 CFR supplemental proposal, under the final
modified to accommodate changes to 122.23(j), without a certification, an rule, any CAFO with an open manure
the CAFO. For example, a reduction in unpermitted CAFO that discharges has storage structure seeking to certify that
fields available for land application the burden of establishing that it did not it does not discharge or propose to
would trigger the need to reevaluate the propose to discharge in an enforcement discharge is required to perform a
adequacy of manure storage and action arising from a discharge from the technical evaluation under 40 CFR
handling protocols. The third eligibility CAFO. 122.23(i)(2)(i)(A). To demonstrate that
criterion requires a certified CAFO to In contrast, other commenters the CAFO meets the production area
maintain records needed to support the indicated that the proposed criteria do requirement for certification, this
basis for the certification throughout the not ensure that a certified CAFO will evaluation must be conducted in
duration of the certification, such as not discharge and, therefore, additional accordance with the elements of the
monitoring and inspection records, requirements and procedures should be technical evaluation required for open
records of maintenance and repairs, and imposed for certification eligibility. In storage new source swine, poultry and
land application records, including response to these comments, the veal calf operations seeking to
updated documentation to match certification eligibility criteria in this demonstrate no discharge under 40 CFR
current conditions and circumstances at final rule have been modified from the 412.46(a)(1)(i)–(viii), as revised by this
the CAFO. Certified CAFOs, like any 2008 supplemental proposal in order to action. EPA clarifies that, although this
other permitted or unpermitted CAFO, clarify what EPA expects of a certified provision references the new source
may be asked to send information to the CAFO. The final rule clarifies that the performance standard (NSPS) for swine,
permitting authority that is relevant to CAFO’s NMP must include any poultry and veal calf operations, this
implementation of the CWA, or operation and maintenance practices eligibility criterion applies to any
inspected by EPA or authorized State that are established by the technical unpermitted CAFO with open manure
inspectors. During an inspection the evaluation of production area open storage seeking to certify that it does not
certified CAFO could be required to storage structures as necessary to ensure discharge or propose to discharge, not
produce the documentation showing no discharge. Also, EPA reminds just new sources in the swine, poultry
that it meets the eligibility criteria, unpermitted CAFOs considering and veal calf sectors with open storage.
certification that many site-specific Elsewhere in this final rule, EPA is
including that the CAFO has been and
factors, such as location and the revising the provisions at 40 CFR
is being operated and maintained in
facility’s discharge history, must be 412.46(a)(1) to allow such new sources
accordance with an NMP that has been
taken into account when demonstrating with open containment to meet the no
updated as necessary.
certification eligibility in accordance discharge requirement for their NPDES
Commenters offered numerous with this final rule. A CAFO in close permit using best management practices
perspectives on the proposed eligibility proximity to waters of the U.S. or a based in part on a rigorous site-specific
criteria. Some commenters asserted that conduit to waters of the U.S. may need technical evaluation that includes use of
the proposed criteria were too extensive, to take additional protective measures the most recent versions of the Animal
stringent, and complex, and therefore for design, construction, operation and Waste Management (AWM) software, or
would make it unlikely that self- maintenance in order to be able to equivalent software, and the Soil Plant
certifying CAFOs could accurately demonstrate that it will not discharge. A Air Water (SPAW) Hydrology Tool, or
demonstrate their eligibility. These CAFO operator who intends to establish an equivalent model. For a discussion of
commenters indicated that, as proposed, eligibility for certification should be the technical evaluation and the AWM
the eligibility criteria would be mindful that, as stated above in the and SPAW modeling tools, see section
expensive to implement and, thus, discussion of revised § 122.23(d)(1), a III.F of this preamble.
would serve as a disincentive for a CAFO that has discharged in the past Several commenters expressed the
CAFO to choose to certify. In response would generally be expected to need for evaluation criteria specific to
to these comments, EPA emphasizes discharge in the future, and therefore be beef cattle feedlots, based on their belief
that certification is voluntary, and expected to obtain a permit, unless it that reliance on swine, poultry, and veal
CAFOs may choose not to certify. As has modified the design, construction, calf new source provisions is
noted above, EPA believes that it is operation or maintenance in such a way inappropriate for all animal sectors. As
generally in an operator’s best interest to as to prevent any discharges from described in more detail in Section III.F
obtain permit coverage. However, EPA occurring. of this preamble, AWM software is a
has provided the certification option for The first eligibility criterion for valid planning and design tool for animal
CAFOs that choose not to seek permit certification covers the design, feeding operations that can be used to
coverage but would like to establish up construction, operation, and estimate the production of manure,
front that they do not discharge or maintenance of the CAFO’s production bedding, and process water and
propose to discharge. The final rule area. As proposed, 40 CFR 122.23(i)(2)(i) determine the size of storage facilities
contains stringent eligibility criteria of this final rule requires the CAFO to necessary to meet no discharge. AWM
because in light of the CWA prohibition demonstrate that the CAFO’s production (CCE version 2.3.0) currently provides
against unpermitted discharges, the area is designed, constructed, operated, manure characteristics for eight animal
eligibility criteria for certification must and maintained so as not to discharge. types with the ability to modify these
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establish that the CAFO does not Due to the variations in production area characteristics and add animal types as
discharge or propose to discharge. Only design based on the type of containment necessary. The field and pond
CAFOs that establish eligibility and system used at the operation, EPA hydrologic analyses conducted with the
meet all of the certification provisions proposed and is finalizing today a rule SPAW model are not specific to any
in 40 CFR 122.23(i)(2)–(3) will receive with two parts for the first eligibility animal species. Therefore beef and dairy
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70429
operators can use the AWM and SPAW containment and closed manure storage and be implementing an NMP that
tools to establish the appropriate design, systems, such as lagoon covers, addresses, at a minimum, the elements
construction, operation and underhouse pit storage systems, and set forth in § 122.42(e)(1) and 40 CFR
maintenance of their facility to meet the stockpile storage sheds. See 68 FR 7176, 412.37(c), and all site-specific operation
no discharge requirement of 7219–20. Some CAFOs may have a and maintenance practices necessary to
certification. combination of open manure storage ensure that the CAFO will not
EPA also received comments seeking structures and covered structures, while discharge. The NMP must include
clarification regarding how the technical others will house all animals and store provisions regarding nutrient
evaluation for new source swine, all manure, feed and by-products under management in the production area as
poultry and veal calf operations can cover. In either case, all parts of the well as in all land application areas
apply to existing facilities given that production area must be included in the under the control of the CAFO where
EPA stated in the preamble to the 2003 demonstrations required under the CAFO will land-apply manure.
CAFO rule that the no discharge § 122.23(i)(2)(i)(A) and (B). Because operation and maintenance
performance standard was not In addition, as proposed under 40 practices and procedures are critical to
economically achievable for existing CFR 122.23(i)(2)(i)(C), this final rule discharge prevention, implementation
facilities. While EPA has determined requires any certified unpermitted of an NMP is an essential component of
that the no discharge performance CAFO to implement the measures set any CAFO’s efforts to ensure that it will
standard was not appropriate to require forth in 40 CFR 412.37(a) and (b) for the not discharge from its production or
for existing facilities on a national basis production area. These additional land application areas. Furthermore, in
(see 68 FR 7218), EPA acknowledges measures pertain to operation and order for any certified CAFO that land
that there are existing CAFOs that could maintenance and include provisions for applies to ensure that the only
meet the standard. Existing CAFOs that visual inspections, depth markers for all discharges from the land application
feel it is not economically achievable to open surface liquid impoundments, areas are non-point source agricultural
meet a no-discharge standard always corrective action, mortality handling stormwater discharges, the CAFO
have the option of applying for a permit. and recordkeeping. This final rule also would, at a minimum, need to land
In order to meet the second part of the requires these measures for permitted apply in accordance with practices that
first eligibility criterion, the final rule new swine, poultry and veal calf ensure appropriate agricultural
requires, in 40 CFR 122.23(i)(2)(i)(B), operations to meet a no discharge utilization of nutrients, including
that any certifying CAFO must standard. Since both these permitted conservation practices and agronomic
demonstrate that all of its production new source operations and unpermitted rates of application. For detailed
area, as defined at 40 CFR 122.23(b)(8), certified CAFOs need to ensure no discussion of unpermitted CAFOs and
not just open containment structures, is discharge from the production area the agricultural stormwater exemption,
designed, constructed, operated, and under the permit and certification see section III.B of this preamble.
maintained such that there will be no requirements, respectively, it is
discharge of manure, litter, process appropriate to rely, in part, on those EPA received comments indicating
wastewater, or raw materials, such as provisions to establish eligibility criteria that the final rule should establish a link
feed, to surface waters. For a CAFO for no discharge certification. The between a facility’s open storage
without open containment, this documents that are necessary to satisfy structure design and the land
provision requires a demonstration of the first eligibility criterion, which application practices outlined in a
no discharge from the entire production addresses the CAFO’s design, CAFO’s NMP. In the 2008 supplemental
area. For a CAFO that has an open construction, operation, and proposal, EPA intended that the CAFO’s
containment structure, this provision maintenance of the entire production NMP would reflect any operation and
requires a demonstration that the area, include design documentation and maintenance practices related to and
remainder of the production area (other all recordkeeping and operation and assumed in the technical evaluation
than the open containment structure maintenance planning necessary to performed for open containment
subject to the demonstration in address the elements of § 122.23(i)(2)(i), structures. To clarify this intent, 40 CFR
§ 122.23(i)(2)(i)(A)), also will not which includes the measures set forth in 122.23(i)(2)(ii)(B) of this final rule states
discharge. Because of the special risk of § 412.37(a) and (b). that the operation and maintenance
discharge from open manure storage In the preamble to the 2008 practices required to be part of the NMP
structures, greater specificity is supplemental proposal, EPA requested must include ‘‘any practices or
provided regarding the elements of the comment on whether a recordkeeping conditions established by a technical
demonstration in § 122.23(i)(2)(i)(A); checklist for use by certified CAFOs evaluation pursuant to paragraph
however, the demonstration in would be a useful tool. EPA suggested (i)(2)(i)(A),’’ the provision applicable to
§ 122.23(i)(2)(i)(B) must be technically the possibility of making such a CAFOs with open containment. For
sound and must be adequate to checklist available to all CAFO example, an existing facility may
demonstrate that the production area is operators. Commenters generally develop an NMP and then use AWM
designed, constructed, operated, and supported the concept of a and the SPAW model to evaluate the
maintained for no discharge. This recordkeeping checklist that could be adequacy of the designed storage facility
demonstration must be based on an used by certified CAFOs, since the and overall water budgets for the
evaluation of site-specific checklist could be used to document operation, respectively, which will rely
characteristics, including, among others, ‘‘expectations for risk management.’’ upon inputs from the CAFO’s NMP such
the amount of manure generated during Commenters added that the checklist as the number and type of animals, soil
the storage period, the size of the storage should be developed in concert with the profiles and planned crop rotations. In
structure, control measures to ensure States. EPA plans to work with States to such a scenario, the CAFO may learn
rwilkins on PROD1PC63 with RULES_2
diversion of clean water, and seasonal develop a checklist and consider from the technical evaluation that more
restrictions on land application. The whether State-specific checklists would frequent lagoon drawdowns are
preamble to the 2003 rule provides also be appropriate. necessary in order to achieve no
additional information regarding The second eligibility criterion discharge. To be eligible for certification
production area design for total requires the CAFO to have developed under the final rule, the CAFO’s NMP
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70430 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
would then need to be revised to In the 2008 supplemental proposal, that the documentation necessary to
include the adjusted operation and EPA stated that it would encourage demonstrate certification eligibility,
maintenance practices resulting from CAFOs seeking certification to consult including the CAFO’s site-specific NMP,
the technical evaluation. It is these with qualified third-party professionals, should be maintained either on site or
changed operation and maintenance but did not propose to require such at a nearby office, or otherwise made
practices that EPA is referring to in the consultation. Some commenters readily available to the permitting
§ 122.23(i)(2)(ii)(B) requirement for the supported EPA’s position, while others authority upon request. The final rule
NMP to address ‘‘any practices or believe that a third-party validation of established today includes this revision
conditions established by’’ the technical the certification by an NRCS-certified to the proposed language, which is also
evaluation required for CAFOs with technical service provider and consistent with the provision
open containment structures under the professional engineer should be a established today applicable to the
first eligibility criteria. required element of the eligibility agricultural stormwater discharge
Commenters requested that EPA criteria. Commenters expressed exemption for unpermitted CAFOs,
define what criteria can be used to meet concerns that many CAFOs do not have discussed in section III.B of this
the NMP eligibility requirement (e.g., the requisite knowledge to make preamble. EPA recommends that
whether a comprehensive nutrient technically sound determinations operators maintain the necessary
management plan (CNMP) would regarding how to meet the eligibility documentation on-site to ensure proper
suffice). As EPA stated in the 2008 criteria for certification. EPA continues implementation of all operation and
supplemental proposal, a CAFO may to believe that it is appropriate that the maintenance procedures.
rely upon a CNMP 2 for purposes of third-party consultation be (ii) Submitting the Certification
certification eligibility, so long as the recommended but not required because
minimum NMP requirements of certification is voluntary and it is the Under the certification option
§ 122.42(e)(1) and § 412.37(c) are met by CAFO owner or operator who must promulgated by this action, a CAFO
the CAFO’s plan, including all certify to the operation’s eligibility. seeking to certify that it does not
necessary operation and maintenance Because a CAFO’s certification will not discharge or propose to discharge is
protocols.3 be approved by the permitting authority, required to submit the certification to
As discussed below, 40 CFR it is up to the CAFO operator to be the permitting authority. Under 40 CFR
122.23(i)(4) requires the certified CAFO certain that the certification is valid in 122.23(i)(3), the submission to the
Director must include: (1) The CAFO
to at all times be designed, constructed, order to benefit from the presumption
owner or operator’s name, address and
operated, and maintained such that it that it does not propose to discharge.
phone number; (2) information
meets the eligibility criteria to establish Therefore, EPA recommends
regarding the CAFO’s location,
that the operation does not discharge or consultation with a qualified third-
including latitude and longitude; (3) a
propose to discharge. Thus, to maintain party. As stated in the preamble to the
description of the basis for the CAFO’s
a valid certification, a certified CAFO 2008 supplemental proposal, any
certification that it satisfies the
must update its NMP if any of the professional consulted by the CAFO
eligibility requirements of 40 CFR
design specifications, practices, or other should have the requisite training,
122.23(i)(2); (4) the certification
NMP provisions change over time. For experience and expertise to conduct
statement set forth in 40 CFR
example, if a certified CAFO operator and/or substantively review the 122.23(i)(3)(iv); and (5) an official
decides to land-apply manure on a field required analyses, and to advise the signature that meets the signatory
that is not included in the NMP, the owner or operator as to whether the requirements of 40 CFR 122.22.
CAFO will need to calculate rates of CAFO is, in fact, designed, constructed, The signed certification makes the
application in accordance with the operated, and maintained such that it CAFO legally responsible for its
protocols for land application consistent will not discharge. representations to the Director regarding
with 40 CFR 122.42(e)(1)(viii) and revise The third eligibility criterion for the design, construction, operation, and
the NMP to include the new field and certification established by this final maintenance of the CAFO. As EPA
the corresponding application rates and rule, 40 CFR 122.23(i)(2)(iii), requires noted in the preamble to the 2008
any other land application practices for that the CAFO maintain the supplemental proposal, the language
the field in accordance with the documentation required by the first two regarding legal liability for making a
protocols. Furthermore, since the criteria ‘‘either on site or at a nearby false statement under the certification
eligibility criteria require the certified office, or otherwise make such option is consistent with language in 40
CAFO to implement the ‘‘up-to-date’’ documentation readily available to the CFR 122.26(g) which applies to facilities
NMP, the CAFO would then need to Director or Regional Administrator upon seeking to obtain a ‘‘no exposure’’
land apply in accordance with the request.’’ The 2008 supplemental exclusion from the requirement for an
application rates and other practices proposal included a regulatory industrial stormwater discharge permit.
incorporated into the NMP for that field. requirement that the NMP and other EPA clarifies that under the applicable
documentation of eligibility be signatory requirements in § 122.22,
2 Technical Guidance for Developing
maintained by the CAFO ‘‘on site.’’ signing the certification signifies that
Comprehensive Nutrient Management Plans, USDA
Natural Resources Conservation Service (2003), Many commenters expressed the need the signer is certifying that the
available at http://policy.nrcs.usda.gov/ for the final rule to include regulatory certification was prepared under his/her
viewerFS.aspx?id=3073. language allowing all documentation of direction or supervision in accordance
3 It is common for an operation to have one or
the certification eligibility criteria to be with a system designed to assure that
more operation and maintenance plans in order to
properly implement a number of NRCS
held on-site or made readily available qualified personnel properly gathered
upon request. These commenters were and evaluated the information
rwilkins on PROD1PC63 with RULES_2
conservation practice standards simultaneously.
Also, to the extent that the necessary operation and primarily concerned that a requirement submitted and that based on the
maintenance requirements to implement any to maintain the documentation on site responsible official’s inquiry of the
provision of the NMP are not included in the NMP
itself, those requirements need to be implemented
would be unreasonably burdensome on person or persons who manage the
and included in an operation and maintenance plan facilities that have multiple production system, or those persons directly
to be maintained on site or at a nearby location. sites with one central office. EPA agrees responsible for gathering the
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70431
information, the information submitted After consideration of these EPA notes that under the final
is, to the best of their knowledge and comments, EPA believes that the list of provision, the Director may, but is not
belief, true, accurate and complete. information presented in the preamble required to, establish that certifications
This final rule makes no changes to to the supplemental proposal balances will become effective after a specified
the existing regulations concerning how the need of the Director to be informed number of days, not to exceed 30 days,
CAFOs may make Confidential Business of critical aspects of the certified following submission of the certification
Information (CBI) claims with respect to CAFO’s operation with the fact that the if the Director deems such action
information they must submit to the certification is not subject to review by appropriate, as discussed below.
permitting authority and how those the Director in order to become Regardless of whether the permitting
claims will be evaluated. A facility may effective. It is reasonable that the authority chooses to establish an
make a claim of confidentiality under description of the CAFO’s basis for effective date in accordance with
the existing regulations at 40 CFR part certification be submitted as part of the § 122.23(i)(4), a certification becomes
2, subpart B. certification, including the type of effective (either on the date it is
The third item the Agency is requiring information listed above, as proposed in submitted or on the date established by
for submission to the Director, as listed the supplemental proposal. EPA also the Director) without acceptance or
above, is a statement describing the recognizes that depending on site- approval by the permitting authority. A
basis for the CAFO’s certification that it specific conditions at a particular decision by the permitting authority to
is designed, constructed, operated, and facility, certain information may not be delay the effective date would allow the
maintained in accordance with the necessary (e.g. , an operation with no permitting authority to become aware of
certification eligibility criteria. EPA’s land application areas would not need the CAFO’s certification prior to it going
expectation for what this description to provide information about into effect. A delayed effective date of
should include is unchanged from the application rates of manure, litter, and up to 30 days could provide the
2008 supplemental proposal. In the process wastewater). Furthermore, if the opportunity for the permitting authority
preamble to the 2008 supplemental Director is concerned that a CAFO that and the CAFO to have a focused
proposal, EPA requested public discharges or proposes to discharge has exchange of information before the
comment on whether the scope and type submitted a certification, the Director certification becomes effective. For
of information included in the has the authority to request additional example, as a result of such an exchange
description of eligibility submitted to information from the CAFO, as the CAFO may choose to consider
the Director should include: (1) The discussed below. making revisions to its certification to
type and number of animals; (2) the type The authority given to the permitting be assured it has submitted a
and capacity of manure and wastewater authority under section 308 of the CWA certification that meets all the
storage and/or containment; (3) storm to conduct inspections at operations is requirements of § 122.23(i)(2) and (3).
size used as the basis for containment not affected by this rule. Section 308 Also, such an exchange could provide
design; (4) whether the CAFO consulted authorizes, among other things, EPA to an opportunity for the CAFO to obtain
with a professional engineer or require owners or operators of point additional information about
technical service provider (TSP); (5) sources to establish records, conduct maintaining a valid certification after it
identification of the documents monitoring activities and inspections, goes into effect. The permitting
maintained on site in accordance with and make reports, to enable the authority can also request information
the eligibility criteria; and (6) any permitting authority to determine from an unpermitted CAFO, as provided
technical standards, tools (e.g. , RUSLE whether there is any violation of any in section 308 of the CWA, and provide
and Phosphorus Index) and formulas prohibition, or any requirement feedback to the CAFO operator if the
used to calculate application rates of established under section 308, 402, or Director believes that the CAFO has not
manure, litter, and process wastewater. 504 of the CWA. Therefore, any CAFO, met the certification requirements.
Commenters expressed differing whether it is certified, permitted, or EPA emphasizes that the final rule
viewpoints as to what documentation neither, may be subject to an does not require Director review of the
must be provided to the Director for the information gathering request or certification. Therefore, if, for example,
no discharge certification. Some inspection, at the Director’s discretion the permitting authority establishes that
commenters felt that the 2008 and for any of the reasons provided by certifications in that State will become
supplemental proposal would have section 308 of the CWA. 33 U.S.C. 1318. effective 30 days after submission, a
required the submission of too much Under this final rule, 40 CFR certification from a CAFO that has met
information, and that CAFOs should 122.23(i)(4), a ‘‘certification that meets the eligibility and submission
only be required to submit a list of the the requirements of paragraphs (i)(2) requirements in § 122.23(i)(2)–(3) will
documents created to establish a and (i)(3) * * * shall become effective go into effect on day 30 regardless of
facility’s eligibility. Some of these stated on the date it is submitted, unless the any activities that take place during the
that submission of any facility design or Director establishes an effective date of 30-day period, so long as the CAFO
operation specifics is superfluous given up to 30 days after the date of maintains eligibility throughout that
that there is no review by the permitting submission.’’ A certification is effective period. Similarly, because the
authority. In contrast, other commenters if the CAFO meets the eligibility criteria certification is not subject to permitting
believed that the extent of in § 122.23(i)(2) and submits the signed authority review and approval, inaction
documentation to be submitted to the certification statement and other on the part of the permitting authority
Director was insufficient to establish required information in accordance with at any time during or after the 30 days
that a facility is designed, operated, and § 122.23(i)(3). This rule also requires the does not indicate that the CAFO either
maintained in a way to ensure that it is use of certified mail or an equivalent has or has not met the eligibility and
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not discharging. Specifically, these method of documentation for submission requirements. An effective
commenters desired that submissions identifying the date of submission, date that is no more than 30 days after
include all documents associated with consistent with the supplemental submission provides sufficient time for
meeting the eligibility criteria for proposal, in order to notify the Director the permitting authority to receive the
certification. that the CAFO has chosen to self-certify. certification and have an exchange with
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70432 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
the CAFO, but it does not constitute an Allowing States the discretion to delay requirements. Thus, a five-year term is
unreasonable delay for the CAFO to the effective date of certification reasonable.
obtain a valid certification. Given these addresses some comments from States Under 40 CFR 122.23(i)(5) a CAFO
underlying principles, EPA has expressing uncertainty about the role of may withdraw its certification at any
determined that it is appropriate to the permitting authority in the time by notifying the Director, by
allow the Director discretion to establish certification process. certified mail or equivalent method of
an effective date that is up to, but not documentation, that it is withdrawing
more than, 30 days after submission. (iii) Limitations on Certification its certification. The certification is
EPA received comments concerning This rule includes several limitations effectively withdrawn on the date the
the submission process for no discharge on certification related to the term of a notification is submitted to the Director.
certifications. Numerous commenters certification, withdrawal of certification, If a CAFO’s certification becomes
expressed concerns with the lack of any and recertification after a certification invalid as provided in § 122.23(i)(4),
explicit requirement for Director review becomes invalid. discussed below, § 122.23(i)(5) requires
and approval of certifications. Some Consistent with the 2008 the CAFO operator to withdraw its
commenters asserted that the lack of supplemental proposal, under this final certification within three days of the
review and public participation under rule, a no discharge certification will date on which the CAFO becomes aware
the 2008 supplemental proposal violates expire five years after the effective date, that the no discharge certification is
the CWA and the Waterkeeper decision, unless the CAFO voluntarily withdraws invalid. As proposed, this final rule
and that without such review, the certification or the certification does not require the CAFO operator to
certification provides no assurance of becomes invalid (i.e., the CAFO has notify the Director of the reason for
‘‘no discharge’’ and creates an either discharged or ceases to be withdrawing the certification because
impermissible permitting structure designed, constructed, operated, and certification is voluntary.
based on self-regulation. Other EPA received a number of comments
maintained in accordance with
commenters indicated that Director concerning the withdrawal of
certification eligibility criteria) during
review of key documentation is certification. These comments generally
the five-year term. See 40 CFR
necessary to ensure that a facility’s focused on the need for a certified
122.23(i)(4). Some commenters agreed
certification meets applicable criteria. CAFO to provide more information
with the proposed five-year term of
Some commenters requested that the regarding its actions leading to the
certification, because the limited term of
documents necessary to meet the withdrawal. Some commenters observed
certification would ensure that the
eligibility criteria also be subject to that in order to withdraw certification,
CAFO reevaluates eligibility. Other
review by the Director and that approval CAFOs should have to submit the
commenters contended that facilities reasons for such withdrawal to the
of the no discharge certification be made
should recertify on a more frequent Director. EPA believes it is reasonable
contingent on such review.
EPA does not agree that the lack of a basis, either annually or triennially, to for a CAFO to be able to withdrawal its
requirement for Director review is ensure more frequent reevaluation of voluntary certification at any time
contrary to the CWA or the Waterkeeper their certification. A number of without additional explanation. The
decision. The voluntary certification commenters did not believe that a term decision to certify is voluntary, and
option is available only to CAFOs that of certification should be prescribed; thus, it is appropriate to allow a CAFO
do not discharge or propose to discharge several of these commenters maintained to decide to withdraw its certification
and, therefore, are not required to seek that if a facility remains in compliance for any reason with no further
NPDES permit coverage. Neither the with the certification criteria and does explanation. However, certain situations
CWA nor the Waterkeeper decision not make any significant changes in require the CAFO to withdraw its
requires a permitting authority to review operation, the certification should certification. This final rule requires
no discharge certifications or to subject remain valid indefinitely. that a CAFO withdraw its certification
such information to public After considering the comments by notifying the Director in the event
participation. Under the CWA, such regarding the appropriate term for that the certification is no longer valid,
requirements apply only to the certification, EPA has concluded that either because of a discharge or because
permitting process. In addition, EPA the proposed five-year term is the CAFO ceases to meet the eligibility
emphasizes that certification is not a appropriate. At the end of this term the criteria. See § 122.23(i)(4) and (5).
substitute for a permit. Rather, a valid certification can be renewed, if desired Notifying the Director that a CAFO is
certification simply allows an by the CAFO. Since CAFOs commonly withdrawing its certification provides
unpermitted CAFO that is designed, alter their operations over time, it is the information necessary for the
constructed, operated, and maintained reasonable for the CAFO to periodically Director to maintain an up-to-date
not to discharge to establish and reevaluate and update its certification record of certified CAFOs. A CAFO that
document that it does not discharge or submission. In addition, renewal every fails to withdraw its certification within
propose to discharge, in exchange for five years does not create an undue three days of becoming aware that the
the assurance provided by a no burden on the CAFO or the permitting certification is invalid would be in
discharge certification that it is not authority because CAFOs that have not violation of this regulatory requirement.
subject to the regulatory requirement to had major changes in operations may be EPA believes these provisions
seek permit coverage in 40 CFR able to use much of the same appropriately balance the voluntary
122.23(d)(1) and (f). It is the CAFO’s documentation as prepared previously, nature of certification with the value to
choice and responsibility to establish and permitting authorities are not the Director of maintaining accurate
and maintain a valid certification or lose required to review and approve the records of the universe of certified
the benefits afforded by the certification. certification. A shorter term for CAFOs.
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Furthermore, as mentioned above, the certification, such as one or three years, This final rule describes in
final rule allows the permitting is not necessary because a properly § 122.23(i)(4) the situations that cause a
authority to establish an effective date certified CAFO needs to evaluate the certification to become invalid. First, in
for certification of up to 30 days after facility at regular intervals as part of the the unlikely event of a discharge from
the date of submission by the CAFO. inspection and recordkeeping a properly certified CAFO, the
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70433
certification would cease to be valid and submission, like the initial submission, situations where (1) the certification
would no longer be in effect. Second, would not be subject to review. was valid at the time of the discharge,
should a CAFO fail to continue to meet Under this final rule, if a CAFO’s meaning the CAFO continued to be
any of the eligibility criteria, the CAFO’s certification becomes invalid due to a designed, constructed, operated, and
certification would no longer be valid. failure to meet the eligibility criteria, as maintained for no discharge in
Circumstances that could result in the opposed to because of a discharge, and accordance with all provisions of the
certification becoming invalid include, the CAFO wishes to recertify, the owner NMP and any operation and
for example, an increase in animals that or operator would need to make the maintenance plans included in the
exceeds the capacity of the production changes necessary to establish eligibility certification; (2) the operator has made
area for manure storage and handling or under § 122.23(i)(2). The provisions any necessary changes to the CAFO’s
a loss of land application areas such that applicable to the recertification design, construction, operation and
the assumptions in the NMP concerning submission and effective date would be maintenance to permanently address the
land application would no longer be the same as for any certification. See cause of the discharge and ensure that
appropriate, if the CAFO’s operations, § 122.23(i)(3) and (4). If the CAFO no discharge from this cause occurs in
NMP and certification documentation wishes to recertify after a discharge has the future; and (3) the CAFO has not
were not revised to address these occurred, the CAFO would need to meet previously recertified after a discharge
changed circumstances. EPA the additional requirements of 40 CFR from the same cause. The first criterion
emphasizes that failure by a certified 122.23(i)(6), discussed in detail below. limits the availability of recertification
CAFO to continue to meet the eligibility Commenters expressed several after a discharge by excluding CAFOs
requirements in 40 CFR 122.23(i)(2) is viewpoints with regard to the proposed that discharge after allowing the
not, in and of itself, a violation of any provisions for recertification after a certification to lapse. EPA believes that
regulatory requirement because discharge. Some commenters supported a CAFO that certifies under penalty of
certification is strictly voluntary. For the recertification process as proposed. law that it is and will continue to be
example, failure to implement the These commenters generally recognized designed, constructed, operated, and
measures set forth in 40 CFR 412.37(a)– that CAFOs may encounter unusual maintained so as not to discharge, that
(b), which are required for no discharge circumstances that result in a discharge then fails to satisfy this criterion and
certification eligibility under 40 CFR and that it is appropriate to allow for subsequently discharges, should not be
122.23(i)(2)(i), is not a violation of recertification once the conditions that given the opportunity to once again
§ 412.37(a)–(b) but renders the resulted in the discharge are addressed. obtain the benefits of a no discharge
certification invalid. However, failure to Certain other commenters argued that certification. The second criterion
withdraw a certification that has subsequent to a discharge any ensures that a CAFO will only recertify
become invalid is a violation of the recertification should be reviewed by after it has carefully evaluated the cause
requirement to do so. the permitting authority and open to
of the discharge and taken whatever
As explained in the 2008 public comment to ensure a rigorous
action is necessary to ensure that a
supplemental proposal, once a assessment of whether recertification is
discharge from the same cause will not
certification ceases to be valid, the appropriate. Some commenters asserted
occur again. Finally, the third criterion
operator cannot rely on it if a that recertification after a discharge
constrains a CAFO from engaging in a
subsequent enforcement action is should not be allowed at all under the
cycle of recertifying after multiple
brought for a violation of the duty to CAFO regulations. Furthermore, some
discharges from the same cause. The
apply for a permit that is triggered after commenters believe it would be
voluntary certification option
the certification becomes invalid. In inequitable for unpermitted CAFOs to
established in this rule is not intended
other words, once a CAFO’s certification discharge and recertify if other
discharging operators are required to to be a mechanism for discharging
becomes invalid, the CAFO is in the
seek permit coverage. Several of these CAFOs to avoid obtaining permit
same position as any other unpermitted
commenters asserted that any CAFO coverage, a concern cited by several
and uncertified CAFO. After
that discharges should be required to commenters who opposed the
withdrawing the invalid certification,
obtain an NPDES permit. certification option. On the contrary,
the operator may be interested in
EPA emphasizes that it will be highly EPA is providing the certification option
seeking to recertify that the CAFO does
unlikely for a CAFO that is designed, to allow CAFOs that meet the eligibility
not discharge or propose to discharge or,
if the CAFO does discharge or propose constructed, operated, and maintained criteria to establish up front that they do
to discharge, the CAFO is required to in accordance with the eligibility not discharge or propose to discharge.
seek permit coverage, as stated in 40 criteria in § 122.23(i)(2) to discharge. The final rule provides that the
CFR 122.23(i)(5)(ii). Furthermore, EPA maintains its CAFO’s recertification will not become
In the 2008 supplemental proposal, position, stated in the preamble to the effective until 30 days from the date of
EPA proposed to allow a previously 2008 supplemental proposal, that the submission. The operator is also
certified CAFO to recertify by revising Agency generally considers a recurring required to submit the following
its operations to address the deficiency discharge as evidence that a CAFO is information for review by the Director:
that led to the invalid certification and not eligible for certification or A description of the discharge,
submitting a new certification recertification and needs to seek permit including the date, time, cause, duration
statement. Under the proposal, if the coverage. However, given the possibility and approximate volume of the
certification was rendered invalid by a of a discharge from a properly certified discharge, and a detailed explanation of
discharge, in order to recertify a CAFO CAFO, albeit remote, EPA believes it is the steps taken by the CAFO to
would have to submit to the Director the necessary for the final rule to include permanently address the cause of the
information required under 40 CFR provisions specifically for a CAFO discharge. This 30-day review period
rwilkins on PROD1PC63 with RULES_2
122.23(i)(3) and additional information seeking to recertify after a discharge. provides an opportunity for the Director
describing the discharge and the steps In response to comments, EPA has to consider the circumstances leading to
taken by the CAFO to permanently established specific criteria in this final the discharge, any actions taken by the
address the cause of the discharge. As rule that limit a CAFO’s ability to CAFO to permanently address the cause
proposed, such a recertification recertify after a discharge to those of the discharge, and any other relevant
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70434 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
compliance information regarding the discharge on a CAFO’s permit 3. This Final Rule
facility. EPA encourages State application requirements, see the duty As a result of the regulatory revisions
permitting authorities to take advantage to apply discussion at section III.A.3(a) being made by this action in response to
of this opportunity to consider such of this preamble. the Waterkeeper decision, which held
information. As is true for the general that EPA does not have authority to
certification process described above, B. Agricultural Stormwater Exemption
require facilities with solely a potential
when a CAFO seeks to recertify after a 1. Provisions in the 2003 CAFO Rule to discharge to obtain permits, Large
discharge, the Director has the authority CAFOs are not required to seek NPDES
to collect additional information from The discharge of manure, litter, or permit coverage unless they discharge
the CAFO, assess whether the criteria in process wastewater from a land or propose to discharge. For those Large
this rule are satisfied, and provide application area under the control of a CAFOs that obtain NPDES permit
feedback to the CAFO if he/she believes CAFO is a discharge subject to NPDES coverage, provisions for determining
that the CAFO has not met the permitting requirements, unless the whether precipitation-related discharges
recertification criteria. For example, the discharge is an ‘‘agricultural stormwater from their land application areas qualify
30-day review period will allow the discharge,’’ which is excluded from the for the agricultural stormwater
Director to assess whether or not the meaning of the term ‘‘point source’’ exemption were promulgated in the
CAFO has previously recertified after a under 33 U.S.C. 1362(14). In the 2003 2003 rule and codified at 40 CFR
discharge from the same cause. CAFO rule, EPA differentiated between 122.23(e). As explained above, under
However, as with the initial
discharges from land application areas the 2003 rule, Large CAFO NPDES
certification, the Director is not required
under the control of the CAFO that are permits must require the development
to take any action for a certification to
point source discharges and those that and implementation of nutrient
become effective at the end of the 30-
are ‘‘agricultural stormwater discharges’’ management plans for land application
day review period and inaction does not
exempt from NPDES permit in accordance with the ELG in 40 CFR
indicate that the CAFO has met the
requirements. part 412. Nutrient management plans for
recertification criteria. After considering
public comments on the 2008 In the 2003 rule, EPA promulgated a land application in accordance with 40
supplemental proposal regarding CFR 412.4(c) include application rates
definition of agricultural stormwater for
recertification after a discharge, EPA has and other practices for manure, litter,
CAFO land application areas that
determined that this 30-day review and process wastewater developed in
referenced 40 CFR 122.42(e)(1)(vi)–(ix).
period is reasonable and prudent to compliance with technical standards, as
The referenced regulatory text includes well as other requirements. These land
allow the Director to review situations requirements for edge-of-field buffers or
where a previously certified CAFO has application requirements are then
equivalent measures, testing of manure incorporated into the permit pursuant to
had an actual discharge. and soil, land application at site-specific
Overall, the limited conditions under 40 CFR 122.42(e)(1). Therefore, for
agronomic rates, and recordkeeping. permitted Large CAFOs that land apply
which a CAFO can recertify following a While not explicitly included in the
discharge, the description of the manure, litter, or process wastewater,
definition of agricultural stormwater, ‘‘site-specific nutrient management
discharge submitted to the permitting
technical standards established by the practices * * * as specified in
authority, and the required 30-day
review period prior to the recertification Director, in accordance with effluent § 122.42(e)(1)(iv)–(ix)’’ in § 122.23(e)
becoming effective, provide an limitations guidelines (ELGs) in 40 CFR include land application rates and other
opportunity for the Director to 412.4(c) applied to Large CAFOs’ practices determined in compliance
determine whether the CAFO discharges nutrient management plans for land with technical standards.
or proposes to discharge and must seek application. These more specific The 2003 rule at § 122.23(e) specifies
coverage under an NPDES permit. For limitations implemented the general how Large CAFOs that have NPDES
example, as provided in 40 CFR requirements at § 122.42(e)(1)(vi)–(ix), permits qualify for the agricultural
122.28(b)(2)(vi), the Director has the and because the 2003 rule required all stormwater exemption. Specifically,
authority to direct that the CAFO be CAFOs with a potential to discharge to under the existing regulation, the permit
covered under a general permit if one is obtain permits, virtually all Large must set forth the site-specific nutrient
available. CAFOs were required to comply with management practices that ensure
EPA believes the final rule provisions them. appropriate agricultural utilization of
covering recertification after a discharge nutrients as specified in 40 CFR
provide an appropriate balance of the 2. Summary of the Second Circuit Court 122.42(e)(1)(vi)–(ix) in order for
flexibility offered by voluntary Decision precipitation-related discharges from
certification and the need for scrutiny of such land application areas to be
The Second Circuit upheld EPA’s
previously certified CAFOs that have exempt agricultural stormwater
definition of agricultural stormwater discharges. EPA did not propose to
discharged. Additionally, under the
established by the 2003 rule. In amend the existing agricultural
final rule, any previously certified
CAFO that discharges or proposes to addition, ELG requirements of 40 CFR stormwater discharge exemption
discharge is subject to the permit 412.4(c) concerning land application for provision in § 122.23(e), nor has EPA
application requirements of 40 CFR Large CAFOs were not challenged. The otherwise reopened the provision.
122.23(d)(1) and (f), and therefore must court did not, however, specifically In this rule, however, EPA is adopting
apply when the CAFO proposes to address the applicability of these a new regulatory provision clarifying
discharge. A CAFO that has requirements to unpermitted Large what constitutes agricultural stormwater
permanently addressed the cause of the CAFOs seeking to claim the agricultural for unpermitted Large CAFOs. The
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discharge such that the CAFO does not stormwater exemption for land Waterkeeper court held that Large
‘‘discharge or propose to discharge’’ is application discharges, in light of its CAFOs with a mere potential to
not required to seek permit coverage vacature of the duty to apply for all discharge were not required to obtain
regardless of whether it recertifies. For Large CAFOs. Waterkeeper Alliance et permits. Because the existing
further discussion of the effects of a past al. v. EPA, 399 F.3d 486 (2d Cir. 2005). regulations could be construed as
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70435
applying only to Large CAFOs with 122.23(e)(2) requires unpermitted Large are reviewed and determined by the
NPDES permits, EPA explained in the CAFOs to have nutrient management permitting authority to provide a
preamble to the 2006 proposed rule that planning documentation on site, at a technically sound framework for
a CAFO with no discharges other than nearby office, or otherwise make it establishing rates of application that
precipitation-related discharges from its readily available upon request to generally would satisfy the
land application areas would not be support assertions that the only requirements of § 122.42(e)(1)(viii).
considered to ‘‘discharge’’ if it applies discharges from their land application Such technical standards specify the
manure, litter, or process wastewater to areas are precipitation-related method or methods for determining
land under its control in accordance discharges that qualify for the whether land application rates are to be
with nutrient management practices that agricultural stormwater exemption. As based on nitrogen or phosphorus, or
ensure appropriate agricultural noted above, EPA has not reopened any whether existing nutrient loads in the
utilization of the nutrients in the aspect of the 2003 CAFO rule applicable soil preclude land application, and also
manure, litter, or process wastewater as to permitted CAFOs. Rather, the new address the form, source, amount,
specified § 122.42(e)(1)(vi)–(ix). The provisions clarify how the agricultural timing, and method of application on
Agency also expressly stated in its 2006 stormwater exemption applies to Large each field to achieve realistic
proposal that, for unpermitted Large CAFOs that do not have an NPDES production goals while minimizing
CAFOs to qualify for the statutory permit. This is not a new requirement movement of nitrogen and phosphorus
agricultural stormwater exemption, for unpermitted CAFOs, but rather a to surface waters. Thus, technical
manure, litter, and process wastewater clarification of EPA’s existing standards provide an objective and
must be applied in compliance with interpretation of the agricultural reliable framework for developing rates
technical standards, noting that stormwater exemption in CWA section of application and other practices for
technical standards are, in significant 502(14). each field, taking into account a range
part, intended to ensure the appropriate EPA is modifying the interpretation of critical factors. For purposes of
agricultural utilization of the nutrients articulated by EPA in the 2006 proposal § 122.42(e)(1)(viii), rates of application
contained in the manure, litter, or of how technical standards apply to developed using technical standards
process wastewater. 71 FR 37,750. EPA unpermitted CAFOs seeking to have must encompass and include all of the
also requested comment on whether to their precipitation-related discharges factors discussed above.
codify language to require that from land application areas qualify for Because the technical standards
unpermitted Large CAFOs that land the agricultural stormwater exemption. established by the Director represent the
apply manure, litter, or process Under this final rule, a precipitation- permitting authority’s judgment as to
wastewater must comply with the related discharge from land application practices that ensure appropriate
technical standards established by the areas under the control of an agricultural utilization of nutrients, as
Director in order to qualify for the unpermitted Large CAFO constitutes an discussed above, they provide a sound
agricultural stormwater discharge agricultural stormwater discharge where basis for determining and documenting
exemption for precipitation-related the CAFO has land applied manure, that a precipitation-related discharge
discharges from land application areas litter, or process wastewater in from land application areas will meet
under their control. accordance with site-specific nutrient the requirements of § 122.42(e)(1)(viii).
In the preamble to the 2006 proposed management practices that ensure If a facility chooses to take a different
rule, EPA also discussed the reference to appropriate agricultural utilization of approach and follow other standards,
the documentation requirement found the nutrients in the manure, litter, or the facility would need to demonstrate
in 40 CFR 122.42(e)(1)(ix). EPA noted process wastewater, as specified in not only that its practices accorded with
that documentation is a crucial element § 122.42(e)(1)(vi)–(ix). Nutrient such alternative standards, but also that
for determining whether a CAFO is land management practices and rates of the standards provided a reliable,
applying manure, litter, or process application satisfy the requirements of technically valid basis for meeting the
wastewater in a manner that ensures the 40 CFR122.42(e)(1)(viii) when they are terms of § 122.42(e)(1)(viii). While
appropriate agricultural utilization of in accordance with technical standards technical standards established by the
nutrients such that any runoff from land established by the Director. The form, Director would have undergone careful
application areas under a CAFO’s source, amount, timing, and method of review by the Director to determine
control consists only of exempt application of nutrients are essential their validity for purposes of applying
agricultural stormwater discharges. 71 components of the protocols for land the agricultural stormwater exemption,
FR 37,750. application of manure, litter, or process there may not have been a comparable
The provision established in this rule wastewater specified in review in place for alternative
at § 122.23(e)(1) clarifies that in order § 122.42(e)(1)(viii). As explained below, standards. Thus, the CAFO may have to
for unpermitted Large CAFOs to have CAFOs that land apply using nutrient demonstrate both the appropriateness of
their precipitation-related discharges management practices based on alternative standards and that its
qualify as agricultural stormwater standards other than the technical practices conformed to them in order for
discharges, they must land apply standards established by the Director its discharges to qualify for the
manure, litter, or process wastewater would have to demonstrate that such agricultural stormwater exemption.
‘‘in accordance with site-specific practices ensure the appropriate EPA recognizes that there may be
nutrient management practices that agricultural utilization of the nutrients other standards that are developed
ensure appropriate agricultural in the manure, litter, or process besides those established by the Director
utilization of the nutrients in the wastewater as specified in that may also provide guidance to
manure, litter, or process wastewater, as § 122.42(e)(1)(viii). producers regarding appropriate
specified in § 122.42(e)(1)(vi)–(ix).’’ This Technical standards established by agronomic nutrient management
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interpretation of the statutory the Director provide an objective basis practices and the development of rates
agricultural stormwater exemption was for determining when precipitation- of application. Under this rule, owners
upheld by the Second Circuit in the related discharges from land application and operators of unpermitted CAFOs are
Waterkeeper decision. In addition, the areas are exempt from NPDES permit not precluded from relying on such
new provision established at 40 CFR requirements. Such technical standards other standards. However, while other
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70436 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
standards may provide useful guidance, related discharges are unpermitted point similar ‘‘impermissible self-regulatory
in the absence of being reviewed and source discharges or are exempt permitting scheme’’ as that struck down
established by the Director, it is the agricultural stormwater discharges. by the Second Circuit Court of Appeals
CAFO’s responsibility to demonstrate Because unpermitted CAFOs are not in the Waterkeeper decision. They
that such alternative standards do, in subject to the place and time argued that these nutrient management
fact, ‘‘ensure appropriate agricultural recordkeeping requirements of practices must be subject to review and
utilization of the nutrients in the § 122.42(e)(2), EPA is in this rule consideration by the permitting
manure, litter, or process wastewater,’’ requiring that unpermitted CAFOs that authority and the public.
as required by § 122.42(e)(1)(viii). land apply manure, litter, or process EPA does not agree that only CAFOs
In determining whether a CAFO’s wastewater maintain on site or at a with NPDES permits should be allowed
site-specific nutrient management nearby office, or otherwise make to claim that discharges from their land
practices do ‘‘ensure appropriate available upon request documentation application areas are agricultural
utilization of the nutrients’’ in the land showing that precipitation-related stormwater discharges. The question is
applied manure, litter, or process discharges from their land application whether a precipitation-related
wastewater, EPA will evaluate an areas are agricultural stormwater discharge from a CAFO’s land
unpermitted CAFO’s nutrient discharges. The requirement for application area is exempt from
management practices using the documentation is referenced in permitting requirements as an
technical standards established by the § 122.42(e)(1)(ix), and is authorized by ‘‘agricultural stormwater discharge’’ or
Director as a baseline and expects the section 308(a) of the CWA. Section whether it is a point source discharge
same of authorized States. As discussed, 308(a) gives EPA authority to require that requires a permit. As the Court of
EPA considers the technical standards any point source to establish and Appeals for the Second Circuit
established by the Director to be a sound maintain records for determining reiterated in the Waterkeeper decision,
measure for determining whether the whether ‘‘any person is in violation’’ of ‘‘a discharge from an area under the
form, source, amount, timing, and a prohibition, including the section control of a CAFO can be considered
method of application meet the 301(a) prohibition against point source either a CAFO discharge that is subject
requirements of § 122.42(e)(1)(viii). discharges unless authorized under an to regulation or an agricultural
As noted above, in order for an NPDES permit. Section 308(a)(4) stormwater discharge that is not subject
unpermitted Large CAFO without an authorizes EPA to require records, to regulation.’’ 399 F.3d 486 at 508
NPDES permit to establish that the only reports, and other information when (citing Concerned Area Residents for the
precipitation-related discharges from its required to carry out provisions of the Environment v. Southview Farms, 34
land application areas are agricultural CWA, including sections 301 and 402. F.3d 114 (2d Cir. 1994)). The assessment
stormwater discharges, it must have The inclusion of this requirement for of whether a discharge is exempt as
documentation showing that its nutrient unpermitted CAFOs to keep the agricultural stormwater or a point
management practices are in accordance documentation on site or to make it source discharge subject to permitting
with § 122.23(e)(1). This is not a new readily available upon request is for the requirements is not part of the
concept, as one of the requirements purpose of giving States and EPA a basis permitting process, but rather precedes
specified in § 122.23(e) promulgated in for determining whether the CAFO’s it.
the 2003 rule is to maintain land application discharges are within For the same reason, EPA does not
documentation as required by 40 CFR the statutory exemption for agricultural agree that a self-regulatory regime is
122.42(e)(1)(ix). Section 122.42(e)(1)(ix) stormwater. EPA expects that, in created by allowing unpermitted CAFOs
requires specific records to be general, CAFOs will maintain their to claim that precipitation-related
maintained to document the nutrient management plans for land discharges from their land application
implementation of the elements of application on site because they set out areas are exempt if they land apply
§ 122.42(e)(1)(vi)–(viii). As stated in the the protocols that must be followed in manure, litter, or process wastewater in
preamble to the 2006 proposed rule, the practice. Documentation of the site- accordance with appropriate nutrient
necessary documentation includes both specific nutrient management practices management practices as required by
the nutrient management planning that is not produceable to an inspector § 122.23(e). In the context of the
documents and the additional at the time of a permitting authority’s agricultural stormwater discharge
recordkeeping that demonstrates the inspection would not be considered to exemption, nutrient management
actual nutrient management practices be made ‘‘readily available’’ and, practices are not effluent limitations,
that have been implemented. See 71 FR further, would raise questions as to which can only be established and
37,750. Such documentation is essential whether it is actually being properly enforced through NPDES permits.
for determining whether precipitation- used by the CAFO. NPDES permits are authorized by
related discharges from a land EPA received comments in support of section 402 of the CWA for the
application area are agricultural its position that a facility need not have ‘‘discharge of any pollutant’’ under the
stormwater discharges or point source an NPDES permit in order for terms of that section, including
discharges. precipitation-related discharges from compliance with effluent limitations.
It is reasonable and appropriate that land application areas to be deemed Section 502(12) defines ‘‘discharge of a
unpermitted CAFOs be required to agricultural stormwater discharges. pollutant’’ and ‘‘discharge of pollutants’’
demonstrate that their nutrient Other commenters disagreed for a as ‘‘the addition of any pollutant * * *
management practices, including rates variety of reasons. First, commenters from any point source.’’ The definition
of application, meet the regulatory asserted that the proposal was of ‘‘point source’’ in section 502(14)
definition of agricultural stormwater inconsistent with the approach EPA expressly excludes ‘‘agricultural
promulgated in 2003, and to do so established in the 2003 rule. Second, stormwater discharges and return flows
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means maintaining documentation of some commenters argued that allowing from irrigated agriculture.’’ Therefore,
their nutrient management practices. the CAFO owner or operator to NPDES permits are necessary for point
Without adequate documentation, it determine whether its nutrient source discharges, but not for
would be difficult, if not impossible, to management practices meet the agricultural stormwater discharges.
know whether such precipitation- requirements of the rule creates a Consequently, the site-specific nutrient
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70437
management practices that a CAFO basis of the best professional judgment The preamble discussion that follows
must implement in order for (BPJ) of the permitting authority is divided into eight sections to
precipitation-related discharges from pursuant to CWA section 402(a)(1)(B) separately address each of the following
areas under the CAFO’s control to be and defined in 40 CFR 125.3(c)(2). issues:
considered agricultural stormwater • CAFO permit application or notice
2. Summary of the Second Circuit Court of intent requirements;
discharges are not effluent limitations.
Decision • Procedures for permitting authority
Rather, they are preconditions for
determining whether the agricultural The U.S. Court of Appeals for the review and public participation prior to
stormwater exemption applies for Second Circuit found that the terms of permit coverage;
discharges from land application areas an NMP are effluent limitations and • Identification of terms of the NMP;
under the CAFO’s control. Because the vacated the 2003 CAFO rule insofar as • Process for incorporating terms of
site-specific nutrient management the rule allowed permitting authorities the NMP into a general permit;
practices are not effluent limitations, to issue NPDES permits to CAFOs • Changes to a permitted CAFO’s
they are not subject to the requirements without (1) reviewing the terms of the NMP;
in section 402 for public review and NMPs; (2) providing for adequate public • Process for review of changes to an
comment. However, persons who participation in the development, NMP and for modifying terms of the
believe that an unpermitted Large revision, and enforcement of the NMP incorporated into the permit;
nutrient management plans; and (3) • Annual reporting requirements; and
CAFO’s nutrient management practices
• EPA nutrient management plan
are not sufficient to qualify for the including the terms of the NMP in the
template.
agricultural stormwater exemption are permit. Waterkeeper Alliance et al. v.
free to bring citizen suits under CWA EPA, 399 F.3d 486, 498–504 (2d Cir. (a) CAFO Permit Application or Notice
section 505 alleging that the CAFO is 2005). The decision did not affect the of Intent Requirements for Nutrient
discharging without a permit. substantive requirements for NMPs Management Plans
The Waterkeeper court upheld EPA’s established at 40 CFR 122.42(e)(1) and EPA is revising 40 CFR 122.21(i)(1)(x)
construction of the definition of point 412.4(c) in the 2003 CAFO rule. to require the applicant to submit, as
source as articulated in § 122.23(e) as part of its permit application or notice
3. This Final Rule
reasonable. In this rule, EPA has not in of intent (NOI) to be covered by a
any way reopened this provision of the To address the court’s decision, EPA general permit, an NMP developed in
2003 rule. Nor is EPA changing any is revising the 2003 CAFO rule and accordance with the provisions of 40
aspect of § 122.23(e) with respect to other provisions of the NPDES CFR 122.42(e) and, for Large CAFOs
what is required in order for regulations to provide for: subject to subparts C or D of 40 CFR part
precipitation-related discharges from • Receipt and review of the NMP by 412, the requirements of 40 CFR
land under the control of a CAFO where the permitting authority prior to issuing 412.4(c), as applicable. Although this
manure, litter, or process wastewater is an individual permit or granting change is codified in the section of the
applied to qualify as ‘‘agricultural coverage under a general permit; regulations applicable to individual
stormwater discharges.’’ The approach • Adequate public participation prior permit applications (40 CFR
taken in this rule is simply to describe to issuing an individual permit or 122.21(i)(1)), it also applies to NOIs,
how a CAFO without an NPDES permit granting coverage under a general because the regulation governing NOIs
may come within the scope of the permit; (40 CFR 122.28(b)(2)(ii)) cross-
existing language in § 122.23(e). • Incorporation of the terms of the references the requirements of
C. Nutrient Management Plans NMP into the NPDES permit; and § 122.21(i)(1). EPA revised Application
• The process to address changes to Form 2B to reflect these changes, and
1. Provisions in the 2003 CAFO Rule the NMP once permit coverage is the revised form is provided as
Under the 2003 CAFO rule, an NPDES granted, for both individual and general Appendix A of this notice.
permit issued to a CAFO must include permits. The final rule adopts the approach
a requirement for the permittee to The individual permitting process that EPA proposed. This approach is
develop and implement a nutrient already allows for review of NMPs by consistent with the Waterkeeper
management plan (NMP). At a the permitting authority and the public, decision, which left undisturbed the
minimum, the NMP is required to and incorporation of the terms of the substantive requirements for nutrient
include best management practices NMP into the individual permit management plans in the 2003 CAFO
(BMPs) and procedures necessary to consistent with the CWA. This is not the rule but held that such plans must be
achieve effluent limitations and case, however, for general permits. submitted to the permitting authority for
standards, to the extent applicable, Given that fact, in promulgating these public review prior to permit coverage.
including the minimum requirements of revisions, EPA is devoting particular These revisions do not change the
40 CFR 122.42(e)(1)(i)–(ix). Effluent attention to the process for issuance of required contents of the NMP, but add
limitations for Large CAFOs are set forth general permits. Furthermore, EPA a requirement for CAFOs to submit their
in the effluent limitations guidelines expects most CAFOs to be covered by NMP as part of their application for an
(ELG) in 40 CFR part 412, which contain general permits. individual permit or NOI to be covered
specific NMP requirements applicable To effectuate these changes, EPA is under a general permit. This differs
to both the production area and the land revising 40 CFR 122.21, 122.23, 122.28, from the requirements of the 2003 rule,
application areas under the control of 122.42, 122.62, and 122.63. As which required that NMPs be submitted
Large CAFOs in the cattle, swine, mentioned above, EPA extended the only at the request of the Director.
poultry, and veal calf subcategories. For deadlines set in the 2003 CAFO rule for In the 2006 proposed rule, EPA
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small and medium CAFOs, and other NMP development and implementation, proposed requiring an applicant to
operations not subject to 40 CFR part as well as for newly defined CAFOs to submit, as part of its permit application
412 requirements, effluent limitations, seek permit coverage in separate or NOI, an NMP developed in
including those applicable to land rulemakings. 71 FR 6978 (February 10, accordance with the provisions of 40
application areas, are established on the 2006); 72 FR 40,245 (July 24, 2007). CFR 122.42(e)(1) and if applicable, 40
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70438 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
CFR 412.4(c)(1). The permitting final rule requires any CAFO seeking contains best management practices
authority would then make the NMP coverage under a general permit to (BMPs) as specified in 40 CFR
available for review prior to issuing an submit with the NOI an NMP that meets 122.42(e)(1)(i)–(ix) and the applicable
individual permit or providing coverage the requirements of § 122.42(e) and effluent limitations and standards.
under an NPDES general permit. applicable effluent limitations and Applicable effluent limitations include,
Many commenters supported the standards. EPA did not identify any for Large CAFOs, the requirements of 40
proposed requirements to submit NMPs other specific regulatory alternatives CFR part 412, and for other CAFOs BAT
with the initial permit application or that substantially reduce burden while requirements set on a best professional
NOI. One State commented that a CAFO still providing for meaningful judgment (BPJ) basis.
should be allowed to submit the NOI permitting authority and public review EPA notes that the definition of
information in batches so that the of site-specific NMPs prior to permit ‘‘BMPs’’ in the NPDES regulations (40
permitting authority could begin coverage. Thus, EPA is promulgating an CFR 122.2) is very broad and includes
processing the NOI before a facility has approach that is consistent with the both practices and procedures to be
completed its NMP to prevent delays in Waterkeeper decision and the NPDES implemented by a permittee. For this
the review and approval process. The CAFO permit program requirements, reason, EPA is also changing the phrase
commenter added that authorization to while continuing to allow for the use of in the introductory paragraph of
discharge under the permit could not be general permits for CAFOs. § 122.42(e)(1) concerning the contents of
granted until the permitting authority EPA also received a comment that an NMP from ‘‘best management
had received, processed, and reviewed production and land application areas practices and procedures’’ to simply
all required NOI and NMP information should have separate permitting reference ‘‘best management practices’’
according to the regulations. requirements such that a facility that without intending any change in the
Nothing in this rule prohibits does not land apply would not need to actual scope of what must be included
permitting authorities from accepting submit an NMP that addresses its land in an NMP.
permit application information in application area. EPA is not revising the
batches, provided that the application (b) Procedures for Permitting Authority
NMP requirements established in the
information and submission process Review and Public Participation Prior to
2003 CAFO rule that added land
satisfies all applicable requirements. For Permit Coverage
application requirements for permitted
example, existing NPDES regulations CAFOs. Under the NPDES regulations This rule promulgates 40 CFR
address, in relevant part, the effective established in the 2003 rule, permits 122.23(h), which provides new general
date of an application and the issued to CAFOs apply to the entire permit procedures for CAFO general
processing of a permit. See 40 CFR facility, including land application permits. The provisions of § 122.23(h)
124.3. EPA recognizes that early areas. Furthermore, the NMP provisions supplement the general permitting
communication between the owner or address discharges that can originate requirements of 40 CFR 122.28 with
operator of a CAFO and the permitting either from production areas or from specific provisions for review and
authority can help facilitate the land application areas. Thus, NMPs incorporation of CAFO NMPs into
permitting process, and EPA encourages have been designed to be general permits for CAFOs. These
CAFOs to work closely with their comprehensive documents required of provisions implement the decision of
permitting authorities. all permitted CAFOs. The NMP the Waterkeeper courts concerning
EPA received some comments provisions at § 122.42(e)(1) must be public review of NMPs and
suggesting that the Director issue a included in a CAFO’s NMP ‘‘to the incorporation of the terms of the NMP
general permit that defines the terms of extent applicable.’’ Thus, if a facility into CAFO permits, specifically for
the NMP and details BMP options for a does not land apply manure, litter, or CAFOs seeking authorization under a
range of possible conditions combined process wastewater, the land general permit.
with a requirement for the CAFO to application provisions of the regulation After the permitting authority receives
submit a summarized NMP. The would not be applicable. CAFOs should an application or an NOI from a CAFO,
summarized NMP would include site- note, however, that even facilities that it is the permitting authority’s
specific facility information needed to do not land apply manure, litter, or responsibility to review the application
apply the management approach process wastewater, but transfer all or NOI to ensure that it meets the
prescribed by the general permit. One manure, litter, or process wastewater to requirements of the regulations, and for
State recommended that, for general other persons, are required by 40 CFR general permits, the requirements of the
permits, CAFOs submit a ‘‘universal 122.42(e)(3) to provide the ‘‘most general permit. This includes
NMP’’ with their NOI that contains current nutrient analysis’’ to the determining whether the nutrient
decision-making tools used by recipient. management plan meets the
producers to determine application Although EPA is not revising the requirements of 40 CFR 122.42(e)(1)
rates, dates, and methods rather than substantive requirements of paragraph and, for Large CAFOs subject to 40 CFR
including site-specific information in (e)(1) in this rule, EPA is modifying the 412 subpart C or D, the applicable
the permit. This would allow for the introductory paragraph to conform to requirements of 40 CFR 412.4(c). As part
public to comment on a generic the procedural requirements of that process, the Director must review
‘‘universal NMP’’ and would reduce the promulgated in this rule. Because this the NMP for both completeness and
number of comments that the State rule requires an NMP to be submitted as sufficiency, as required by the
regulatory agencies would need to part of the CAFO’s permit application or Waterkeeper decision. Also, because the
review and consider if comments were NOI, EPA is removing, from paragraph Waterkeeper decision requires terms of
provided for each individual NMP (e)(1), the permit condition for the NMP to be incorporated as permit
submitted for a general permit. development of an NMP once permit terms, the Director must provide for
rwilkins on PROD1PC63 with RULES_2
EPA weighed these comments in coverage is granted. EPA is thus revising adequate public participation in the
deciding what information needed to be § 122.42(e)(1) simply to require that any process of establishing permit terms
submitted to the Director for review to individual or general NPDES permit based on each CAFO’s NMP.
comport with the CWA requirements issued to a CAFO require the The general permit issuance process
cited by the Waterkeeper Court. The implementation of an NMP that and the individual permitting process
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70439
differ in how a permit is developed and public review of NMPs for CAFO permits. To address this concern, a
the means by which individual facilities general permits. number of commenters suggested
obtain authorization to discharge. A variations on the proposed process.
(i) Permitting Authority Review of
general permit covers multiple facilities, These suggestions are addressed in more
Nutrient Management Plans
and is made available to facilities detail below under the corresponding
seeking permit coverage after it is As discussed above, the Waterkeeper discussion for the respective stage of the
finalized. When the permitting authority court held that NMPs must be reviewed general permitting process.
develops a draft general permit, it must by the permitting authority before The Waterkeeper decision held that
provide the public (including potential permit coverage is issued to any CAFO. permitting authorities must review the
future permittees) an opportunity to Waterkeeper, 399 F.3d at 498–502. The permit application and the NMP to
review the permit, submit comments, process for permitting authority review ensure that all applicable requirements
and request a hearing. After considering of NMPs for CAFOs seeking coverage have been met. The court made no
comments submitted, the permitting under a general permit is established by distinction between individual or
authority then finalizes the general this final rule at 40 CFR 122.23(h)(1). general permits with regard to this
permit. Facilities may then submit an Section 122.23(h) requires the Director requirement. Because existing
NOI seeking coverage under the final to review the NOI submitted by a CAFO regulations do not provide for a review
general permit. Typically, the owner or operator to ensure that the NOI process that addresses the submission
permitting authority may then, without includes the information required by 40 and review of NMPs for inclusion in a
the need for further public notice and CFR 122.21(i)(1), including an NMP that general permit, and given that EPA
comment, either grant coverage under meets the requirements of 40 CFR expects many CAFOs to be permitted
the general permit, require the facility to 122.42(e) and applicable effluent under general permits, EPA is adopting
seek coverage under an individual limitations and standards, including provisions at § 122.23(h) that provide
permit, or deny permit coverage. those specified in 40 CFR part 412. for permitting authority review of the
Existing regulations establish a right for Section 122.23(h)(1) also provides that CAFO NOI and NMP, as well as
any interested person to petition the if, upon review, the permitting authority opportunity for the public to comment
Director to require a facility authorized determines that additional information and request a hearing on the NOI, NMP,
under a general permit to apply for an is necessary to complete the NOI or and the terms of the NMP to be
individual permit. See 40 CFR clarify, modify, or supplement incorporated into the permit.
previously submitted material, the The procedure for review and notice
122.28(b)(3).
Director will notify the CAFO owner or of CAFO NOIs and NMPs will impose
For individual permits, the NMP will operator and request that the some increased burden on permitting
be submitted and reviewed as part of the appropriate information be provided. authorities and will add steps to the
permit application. The decision- When the NOI is complete, the Director process of administering a general
making procedures in 40 CFR part 124 must then proceed with the public permit. However, EPA has worked to
apply to the Director’s review of the notification process required by this adapt these new requirements to a two-
application, which includes the NMP. rule and discussed below. stage review process that comports with
Part 124 requires review of the In the 2006 proposed rule, EPA the Waterkeeper decision and the CWA
completeness and sufficiency of the proposed a new regulatory provision to and adds some flexibility to the parallel
permit application, includes an establish permitting authority review of NPDES permit procedure regulations of
opportunity for the CAFO to modify the NMPs for general permits. This 40 CFR part 124.
plan or provide additional information provision would require the Director to Commenters stated that EPA should
to the permitting authority, and requires review the NMP submitted with the NOI establish a correlation between the
a final decision by the Director after an and to take appropriate steps to ensure timing of the application process and
opportunity for the public to comment that the NMP meets the applicable permit coverage. These commenters
and request a hearing. requirements of 40 CFR 122.42(e)(1) wanted the regulation to automatically
Although a review process for data and, for Large CAFOs, 40 CFR 412.4(c). authorize discharges within 60 days
submitted by applicants, including Upon review of the NMP, the permitting from the date of application/NOI
NMPs, is already provided for in authority would request from the CAFO submission unless the permitting
existing NPDES regulations that address owner or operator any additional authority denied permit coverage within
issuance of individual permits, such a information needed to complete the NOI that period, even if the public review
process has not previously been or clarify, modify, or supplement the process was incomplete. They took the
expressly available in the regulations for submitted material. The permitting view that CAFOs should not be
CAFO general permits. Following the authority would then notify the public penalized by a review process that
Waterkeeper decision, general permits of its receipt of a complete NOI and of could vary in length based on factors
for CAFOs must include the terms of an the terms of the NMP proposed to be out of the control of the CAFO.
NMP applicable to each specific CAFO incorporated into the general permit. Similarly, some commenters stated that
authorized under the permit. Moreover, After allowing time for public comment EPA’s final regulation should provide a
Waterkeeper requires that the public and a public hearing, if needed, the clearly defined process with a limited
have an opportunity to review each permitting authority would decide length of time for permitting authority
CAFO-specific NMP and comment on whether to authorize coverage under the review. Suggestions for a time limit
terms of the NMP to be incorporated general permit. ranged from 30 to 60 days.
into the permit. Thus, a second round Many commenters disagreed with the To provide permitting authorities
of public notice and comment is proposed modified general permit flexibility to review NMPs of varying
necessary when providing coverage for process that would add permitting complexity, this action does not require
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CAFOs under a general permit. To fill authority review of the NMP. The a specific timeframe for completion of
these gaps and address the Waterkeeper primary concern was that the permitting the permitting authority review process.
decision, this rule creates new authorities may have insufficient This approach is consistent with the
provisions at § 122.23(h) that establish a resources to review all NMPs, which existing NPDES regulations in part 124
process for permitting authority and could limit the usefulness of general for other industries, which similarly do
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70440 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
not specify a timeframe for automatic to a quality assurance protocol. One To preserve the option of general
authorization to discharge or for the commenter asserted that this flexibility permits for CAFOs and to conform to
completion of the permitting authority is imperative for effective State the Waterkeeper decision which
and public review processes. programs. requires the terms of each CAFO’s NMP
Commenters expressed concern over The permitting authority is to be incorporated into the CAFO’s
the additional workload that reviewing responsible for reviewing NMPs and for permit, this rule establishes new
individual NMPs would create, and ensuring that the terms of the NMP meet provisions, at 40 CFR 122.23(h), that
suggested alternatives to reduce the applicable requirements of the require the permitting authority to allow
permitting authority workload, NPDES process. There is no reason, public review of both the NMP and the
including: Submission of a ‘‘universal however, why a State cannot obtain terms of the NMP to be included in a
NMP’’ with permit applications for use assistance and advice from technical general permit.
in determining application rates, timing, experts, or tailor its review based on the In § 122.23(h), the rule establishes
and methods rather than including site- development or certification of NMPs by new general permitting procedures for
specific information in the permit; and State-certified nutrient management CAFOs that require permitting
combining a detailed, clear general planners. However, it is the permitting authorities to incorporate the terms of
permit with the submission of a authorities’ responsibility to ensure that site-specific NMPs, which must be
summarized NMP for review. comments are properly addressed and submitted with the NOI, into CAFO
In developing the 2006 proposed rule the final permit terms are incorporated. general permits when authorizing
EPA evaluated alternative approaches Regarding the increased workload coverage under a general permit. These
for reducing operator and permitting permitting authorities may experience procedures require the Director to notify
authority workload. For example, EPA due to review of NMPs, EPA notes that the public that the permitting authority
considered the use of an NMP template 30 out of the 44 States that regulate is proposing to grant coverage for a
as a voluntary tool to facilitate CAFOs currently require NMPs to be facility under the general permit and
completion and review of the NMP by submitted with a CAFO’s request for make available for public review and
CAFO applicants and permitting NPDES permit application coverage. comment the CAFO’s NOI (including its
authorities, respectively. 71 FR 37,752. Further, 28 of these States allow for NMP) and the draft terms of the NMP to
Such a template could serve as one of public review of these NMPs. Thus, be incorporated into the permit. The
many tools available to support CAFO even though EPA did not specifically public will also have an opportunity to
permitting and reduce permitting require this in the 2003 CAFO rule, such request a hearing on this information
authority workloads. See preamble a review process already exists for many before the CAFO is authorized to
section III.C.3(h) for a discussion of the State regulatory authorities. discharge under the general permit.
template. EPA also plans to develop After making a preliminary
(ii) Public Review of Nutrient
additional tools and guidance to reduce determination that the NOI meets the
Management Plans
the burden on both the CAFO operator requirements of 40 CFR 122.21(i)(1) and
and the permitting authority to meet the In the Waterkeeper decision, the 122.42(e), the Director has discretion as
requirements of the NPDES regulations. Second Circuit held that ‘‘The CAFO to how best to provide the requisite
For example, EPA is developing a rule deprives the public of the public notification in the general permit
training course that focuses on opportunity for the sort of participation context. For example, public
development and review of NMPs to that the Act guarantees because the Rule notification may be provided on the
comport with this final rule. EPA plans effectively shields the nutrient permitting authority’s Web page or
to first make the course available to management plans [NMPs] from public through other electronic means. Another
State and federal permitting authorities scrutiny and comment.’’ 399 F.3d at alternative is to use the notice or fact
in 2009. 503. This rule responds to the sheet for the general permit to establish
Another possible approach for Waterkeeper decision by establishing a procedure allowing any person to
minimizing permitting authority public participation requirements that request notice by mail or electronically
resource expenditures is utilizing a ensure adequate opportunity for public of the receipt of an NOI, the permitting
third-party for NMP review. A few review of both a CAFO’s NMP and the authority’s proposed action, and the
commenters noted that having terms of the NMP to be incorporated terms of the NMP proposed to be
permitting authority staff review NMPs into the permit prior to the CAFO incorporated into the permit. These are
that have already been prepared by a obtaining authorization to discharge appropriate ways to balance the
State-certified planner is duplicative under the permit. competing concerns of providing
and unnecessary. Commenters believe As previously discussed, procedures adequate notification to the public,
that, due to their extensive training, for public participation in the issuance providing flexibility to the permitting
certified planners are in the best of individual permits are already authority, and ensuring the practicality
position to review and certify NMPs established in the NPDES regulations. of general permits.
coupled with appropriate public agency See 40 CFR part 124. Because this rule Under this rule, the Director also has
oversight. This is one State commenter’s requires CAFOs to submit their NMP as discretion to establish an appropriate
established NMP review process. part of their permit application (see period of time for public review of the
Commenters noted that, in some States, discussion at section III.C.3(a) of this NOI and draft terms of the NMP
another State agency (typically the State preamble; 40 CFR 122.21 and 122.23)), proposed to be incorporated into the
agricultural agency) reviews and the public will have access to the NMP permit. Under 40 CFR 122.23(h)(1), the
approves NMPs. A State commenter prior to permit issuance and will also Director may establish by regulation or
asserted that the final rule would meet have full opportunity to comment on in the general permit an appropriate
the intent of the Waterkeeper decision if the adequacy of the plan and on the period of time for the public to
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it allowed NMP review by qualified nutrient management terms in the draft comment and request a hearing. This
professionals meeting educational and NPDES permit developed for the differs from the specifications in 40 CFR
technical training requirements as set specific CAFO facility. This individual 124.10, which sets a 30-day public
forth by the Director. Such professionals permit process addresses the court’s notice period for proposed coverage
should be properly trained and subject decision in this respect. under individual permits. Having the
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70441
Director set the time period for public The public notice process described of public notification and the length of
review by regulation or in the general above also includes providing notice to the public notice period, and also on the
permit process will allow the public and other affected States, as required by the possibility of fixed minimum time
other interested parties an opportunity CWA. Section 402(b)(3) of the CWA frames for public review. The Agency
to comment on the sufficiency of that provides that the Administrator, in also specifically sought comment on
time period. Factors the permitting approving a State program, shall make whether the proposed public
authority might consider when sure the State has adequate authority to participation process achieved an
establishing an appropriate time period ensure notice to ‘‘any other State the appropriate balance between the
include the number of NOIs being waters of which may be affected.’’ competing interests of maintaining the
publicly noticed at any one time, the Section 402(b)(5) provides that the utility of general permits for CAFOs and
complexity of the material made Administrator must ensure that any providing adequate public review of
available for public review, the expected State ‘‘whose waters may be affected by permit terms.
level of public interest based on prior the issuance of a permit may submit Several commenters expressed
notices of CAFOs seeking coverage, the written recommendations to the concern that public review of the NMP
opportunity for the public to request an permitting State,’’ and that if those would eliminate the use of general
extension of the comment period for one recommendations are rejected, the permits, noting that States have limited
or more facilities, and whether permitting State must notify the affected resources for accommodating a public
individuals can request and receive State in writing of the reasons for the review process. Several commenters
individual notification of CAFOs rejection. The public notice provisions stated that the proposed process
seeking authorization to discharge in this rule provide notification to provided inadequate opportunity for
under the permit in a timely fashion. affected States as well as to the public public input. Some believed that the
As mentioned above, the Director in general. Additionally, the permitting proposed public participation process is
must also provide an opportunity for the authority’s response to all significant inconsistent with the general permitting
public to request a hearing. The comments will include responses to approach and that only individual
procedures for requesting and holding a comments from affected States. permits are appropriate for CAFOs since
hearing on the terms of the NMP to be This rule balances several competing the terms of the NMP constitute site-
incorporated into the general permit are concerns regarding public participation specific effluent guidelines. Others felt
the same as those for draft individual procedures for general permitting of that the public participation process
permits, which are provided in 40 CFR CAFOs. First, the final rule maintains needed to begin before the development
124.11 through 40 CFR 124.13. When the utility of a general permit program of the NMP to provide an opportunity
granting permit coverage, the Director as a resource-efficient method by which for comment on the specific best
to authorize multiple CAFOs under an management practices (BMPs) to be
must respond to all significant
NPDES permit while meeting the
comments received during the comment included in the plan.
Second Circuit’s directive to ‘‘provide
period as provided in 40 CFR 124.17, The procedures for public
for adequate public participation’’ in the
and if necessary, require the CAFO participation in this final rule preserve
development of site-specific effluent
owner or operator to revise their NMP. the availability of general permits for
limitations. Waterkeeper, 399 F.3d at
Additionally, under the procedures 524. Second, the final rule provides CAFOs. As discussed above, the
promulgated in § 122.23(h)(1) of this sufficient flexibility for State permitting changes to the CAFO general permit
rule, if after the public notice period authorities to adopt their own process made in this rule are necessary
and the conclusion of any hearings, the procedures while ensuring that they to meet the requirements of the
Director decides to authorize discharge meet the public participation Waterkeeper decision. In addition, EPA
under the permit, the permitting requirements of the CWA. Because of has provided flexibility where it could
authority must notify the CAFO and the large number of CAFOs that may with regard to how a permitting
inform the public. Such notification is seek permit coverage, the Agency authority provides public notice and
necessary to ensure that the applicant considers it appropriate to have makes key information available.
and interested individuals are aware of procedures that allow and encourage Further, the rule provides permitting
the Director’s final decision on granting permitting authorities to continue the authorities with flexibility to establish
authorization to discharge under the use of NPDES general permits as a an appropriate time period for public
general permit and incorporating site- means for applying CWA limitations review. Finally, the rule does not
specific NMP terms into the general and standards to CAFOs on a timely change any of the existing regulations
permit. Furthermore, the provision basis. Of course, existing regulations that allow a permitting authority to
provides notification equivalent to that give the Director authority to require a require an individual permit when
required when CAFOs are issued facility to apply for an individual permit appropriate. Overall, the final rule
coverage under individual permits instead of allowing coverage under a maintains the utility of a CAFO general
consistent with this rule revision. general permit (even after coverage permit program as a resource-efficient
EPA is promulgating 40 CFR under a general permit has been method for authorizing multiple CAFOs
122.23(h)(2), which establishes granted). The Director may thus choose under an NPDES permit while meeting
additional procedures for EPA-issued not to issue a general permit for CAFOs, the court’s directive to ‘‘provide for
permits. Paragraph (h)(2) requires the but instead to require all CAFOs seeking adequate public participation’’ in the
EPA Regional Administrator to notify permit coverage to obtain coverage development of site-specific effluent
each person who has submitted written under individual permits. limitations.
comments on the proposal to grant The 2006 proposed rule included One commenter stated that public
permit coverage and the draft terms of procedures for public review of NOIs access to the entire NMP will strongly
rwilkins on PROD1PC63 with RULES_2
the NMP of the final permit decision. A and draft terms of the NMP substantially compel operators to risk noncompliance
person affected by the general permit the same as the procedures promulgated by operating without authorization
can either challenge the general permit today in § 122.23(h). EPA solicited under a permit. Some commenters were
in court, or apply for an individual comment on the proposal to give the concerned that sensitive information
permit as authorized in 40 CFR 122.28. Director discretion regarding the means will be made available to the public.
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70442 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
EPA understands the sensitivity of number of notices that must be One State suggested that the public
some information that may be contained published. participation aspects of the 2006
in a CAFO’s NMP. However, public As stated above, this rule allows the proposed rule be limited to only new
availability and permitting authority permitting authority discretion as to Large CAFOs and that NMP terms for
review of a CAFO’s NMP is not a new how best to provide such public previously authorized Large CAFOs be
practice; rather, it is one that is notification in the general permit made available as part of a modified
currently employed in many State context. For example, public annual reporting requirement. The
NPDES CAFO programs. As stated notification may be provided on the public participation requirements in
above, 30 of the 44 States that permit permitting authority’s Web page or this final rule are applicable to all CAFO
CAFOs request that NMPs be submitted through other electronic means. The NPDES permits. The Waterkeeper
as part of their permit application final rule does not restrict the ability of decision did not distinguish between
process. In most of those States the a permitting authority to provide notice new facilities seeking permit coverage
permitting authority conducts a of multiple NMPs at one time provided for the first time and existing facilities
comprehensive technical review of the the all applicable procedural and seeking permit reissuance for purposes
NMPs prior to granting authorization to substantive permitting requirements are of public participation in reviewing
discharge under the permit. These satisfied. However, notice must be CAFO NMPs. Such a distinction would
NMPs have already been publicly adequate, and the opportunity to not make sense given that the Second
available in these States for some time. comment must be meaningful. Circuit found that the terms of NMPs are
Moreover, most of these States provide Some commenters expressed that EPA
effluent limits that must be included in
notice to the public of the availability of should require a minimum of 30 days
the permit and presented for public
these plans and seek public review, for public review and that the 2006
review and comment. Providing the
with some conducting public meetings proposed rule provided permitting
authorities too much discretion. Others NMP terms to the public only in an
as well. Any information submitted to annual report would not address the
the permitting authority as part of a stated that the public participation
process should be limited, with many Waterkeeper requirement that the
permit application or NOI must be made permitting authority must provide for
available for public review and suggesting no more than 30 days for an
initial submission. In addition, public notice and the opportunity to
comment, unless it is confidential comment on the NMP terms and that the
business information (CBI). See 40 CFR commenters requested that EPA limit
the circumstances under which the NMP terms must be enforceable.
122.7.
comment period could be extended. EPA regulations applicable to State
EPA disagrees with commenters who
EPA believes that the decision as to how NPDES programs specify that where
believe that the permitting process much time should be allowed for public notice and opportunity for comment
provides inadequate opportunity for participation is best decided by the must be provided, a permitting
public input or that such opportunity Director for reasons discussed above, authority must respond to significant
should arise earlier in the process. The including that the public will have an public comments (§ 124.17). Several
final rule provides ample opportunity opportunity to comment on the length commenters said EPA should
for the public to comment on the terms of the public notice period when specifically narrow what constitutes a
and conditions of the general permit, reviewing either the draft regulations or
including for each permitted CAFO, the significant comment warranting a
draft general permit. response by the permitting authority.
opportunity to comment on permit EPA also received comments
coverage and the terms of the NMP. This Their general position was that
suggesting that EPA specify that each comments must have a technical or
rule requires that the public have access facility would be subject to only one
to the NOI and the NMP when scientific basis, or address errors,
public hearing on a draft permit; that omissions, or misrepresentations in
reviewing and commenting on BMPs the decision to hold a public hearing on
and other terms of the NMP to be order to be considered significant. Some
a draft permit and NMP should be based said that comments should be limited
incorporated as enforceable conditions on a finding of a significant degree of
of the permit. only to issues under the purview of the
public interest and limited to issues CWA, and generalized grievances about
Several commenters supported germane to permitting; and that public
permitting authority discretion on the the operation or location should be
review of a general permit be limited to
method of providing public notice of the identified as insignificant and not
the terms of the NMP that are
opportunity to comment on an NMP or warrant any response by the permitting
incorporated into the permit. Several
request a hearing. One commenter authority. Other commenters, namely
commenters were concerned that
stated that EPA should allow State agencies, identified the need to
without some limitations, the public
applications to be processed jointly so provide the permitting authority with
review process could be misused. This
that the permitting authority could flexibility for determining which
rule specifies that permitting authorities
provide notice to the public of multiple comments are significant and warrant a
follow the procedures set forth in
NMPs at the same time. Another § 124.11–124.13. These protocols are response. They also indicated that the
commenter supported web-based or well established for NPDES permits and permitting authority will have limited
other electronic notice. One commenter allow the Director to weigh the relevant resources for responding to all
suggested that the general permit fact circumstances in addressing each of the comments on a draft permit and NMP.
sheet be utilized to establish a issues raised by commenters. EPA intends that this final rule be
procedure allowing any person to State commenters were generally consistent with existing regulatory
request notice by mail or electronically supportive of EPA’s proposed approach provisions addressing public
of the receipt of an NOI, the permitting and the flexibility it allows for participation in the NPDES program and
rwilkins on PROD1PC63 with RULES_2
authority’s proposed action, and the permitting authorities in the general believes that it provides a reasonable
terms of the NMP proposed to be permit process. In particular, these amount of discretion and flexibility for
incorporated into the permit. Such an commenters said that establishing permitting authorities to determine and
approach would provide flexibility to timeframes for public review should be respond to those comments deemed to
the permitting authority and reduce the left to the permitting authority. be significant.
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70443
(c) Identification of Terms of the NMP would be incorporated as permit terms, conditions’’ that constitute the terms of
In the Waterkeeper decision, the the Agency also proposed regulatory a CAFO’s NMP include what the CAFO
Second Circuit held that because the language for accommodating changes to operator would be required to do to
terms of the NMP constitute effluent the NMP that involve changes to the properly implement its NMP and
limitations, the CAFO Rule, ‘‘by failing terms during the permit period. 71 FR determinative conditions upon which
to require that the terms of the nutrient 37,756. such actions are based. For example,
EPA received many comments on the both the structural design capacity
management plans be included in
NMP issues highlighted in the 2006 necessary to satisfy the storage
NPDES permits—violates the CWA and
proposed rule preamble concerning the requirement of 40 CFR 122.42(e)(1)(i)
is otherwise arbitrary and capricious in
complexity associated with nutrient and the associated operational and
violation of the Administrative management planning, particularly with maintenance conditions necessary to
Procedure Act.’’ 399 F.3d at 502. respect to land application, and seeking ensure adequate storage, would be
To respond to the Waterkeeper clarification of what constitutes the considered terms of the NMP. Likewise,
decision, the Agency is promulgating 40 terms of the NMP. In particular, the terms of the NMP would need to
CFR 122.42(e)(5) in order to specify the commenters sought clarification for ensure, for example, proper
minimum terms of the nutrient terms regarding rates of application, management of mortalities and
management plan (NMP) that must be given the complexity of factors used to diversion of clean water. However, the
enforceable requirements of a CAFO’s determine rates of application and the number of animals confined would not
NPDES permit. As discussed in the dynamics associated with such factors. necessarily need to be a term of the
preambles to both the 2006 proposed In light of these concerns, EPA in NMP because a CAFO operator would
rule and 2008 supplemental proposal, March 2008, issued a supplemental be required to properly operate and
EPA is not revisiting the decisions the proposal that proposed what elements maintain the CAFO’s storage facilities
Agency made in 2003 with respect to of the NMP would be terms of the NMP regardless of the number of animals or
the contents of the nutrient management that would be required to be included the volume of manure, litter, or process
plan because the Waterkeeper decision as enforceable terms of a CAFO’s wastewater generated.
did not affect these requirements. This NPDES permit. EPA received many Some commenters asserted that the
rule requires that, based on the comments on the supplemental entire NMP should be included in or
provisions promulgated in 2003 that proposal that identified the need for expressly referenced by the permit and
define nutrient management plans (40 some further revisions to EPA’s that all the elements of a CAFO’s NMP
CFR 122.42(e)(1) and 412.4(c)), the proposed approach concerning the must be included in a CAFO’s NPDES
‘‘terms’’ of the nutrient management terms of the NMP. permit so as to ensure that the permit
plan become terms and conditions of requires the CAFO to comply with every
the permit, as required by the Second (ii) Terms of the NMP To Be Included
in the Permit discharge reduction or prevention
Circuit decision. measure in its NMP. These commenters
The Waterkeeper court clearly In this final rule, EPA is promulgating disagreed with EPA’s interpretation of
indicated that the terms of the NMP 40 CFR 122.42(e)(5) to identify the Waterkeeper and felt that the 2006
must be included in the permit and that minimum terms of an NMP to be proposed rule put forth a more narrow
the terms must include ‘‘waste included in a CAFO’s NPDES permit as meaning of the word ‘‘terms’’ than
application rates’’ developed by Large enforceable requirements of the permit. intended by the court. They also felt
CAFOs pursuant to their NMPs. 399 Paragraph (e)(5) establishes that any that the proposed rule provided the
F.3d at 502. Paragraph (e)(5) includes permit issued to a CAFO must require permitting authority too much
two alternative approaches for the CAFO to comply with the terms of discretion for determining what
specifying terms of the NMP with the CAFO’s site-specific nutrient constitutes the ‘‘terms’’ of the NMP.
respect to rates of application, which are management plan. The Agency agrees that the
needed to satisfy the requirement that Paragraph (e)(5) states that the terms enforceable terms of the NMP must be
the NMP include ‘‘protocols to land of the NMP ‘‘are the information, clear so as to provide notice, both to the
apply manure, litter, or process protocols, best management practices, operator and to the public, about what
wastewater * * * that ensure and other conditions’’ identified in a is enforceable and to ensure compliance
appropriate agricultural utilization of CAFO’s nutrient management plan and with the discharge reduction and
the nutrients.’’ 40 CFR 122.42(e)(1)(viii). determined by the permitting authority prevention measures in the NMP.
For Large CAFOs, use of either of these to be necessary to meet the requirements However, EPA does not agree that the
alternative approaches also satisfies the of 40 CFR 122.42(e)(1). For Large CAFOs all of the information in the NMP
requirements set forth in 40 CFR 412.4 subject to the land application constitutes enforceable terms. By
requirements of the effluent limitations establishing the information, protocols,
(i) Background guideline, the terms would include the best management practices, and other
In the 2006 proposed rule and 2008 best management practices necessary to conditions or activities necessary to
supplemental proposal, EPA discussed meet the requirements of 40 CFR meet the requirements of 40 CFR part
how the ‘‘terms’’ of a CAFO’s NMP 412.4(c) in addition to the requirements 122 and part 412, this rule ensures that
could be identified so as to address the of 40 CFR part 122. This requirement is effluent limitations in the permit will be
nine minimum required elements in 40 thus broadly applicable to all of the fully implemented, consistent with the
CFR 122.42(e)(1)(i)–(ix)) and 412.4(c) measures required to be included in a NPDES regulations, the effluent
(for Large CAFOs, as applicable). CAFO’s NMP. EPA believes that this guidelines, and the Waterkeeper
The 2006 proposed rule preamble clarification should address the decision. In addition, this approach
identified a number of factors that are concerns of some commenters that the preserves NMPs as comprehensive
rwilkins on PROD1PC63 with RULES_2
necessary to the development of an proposed terms of the NMP were management tools used to guide a wide
NMP and discussed the need to allow a limited to land application requirements range of practices regarding nutrient
CAFO some flexibility in managing its only. production, storage, and use. Regarding
operation. 71 FR 37,753–55. With The ‘‘information, protocols, best the degree of discretion afforded to the
respect to portions of the NMP that management practices, and other Director, the requirements of this final
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70444 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
rule concerning terms of the NMP and information that must be made available CFR 412.4(c), and emphasized their site-
the opportunity for public review of the for review by the Director and for public specific nature. 71 FR 37,753. In the
full NMP together with the draft terms review in determining, for example, the 2008 supplemental notice, the Agency
of the NMP to be incorporated into the appropriate conservation practices and proposed regulatory requirements to
permit provides a check on the exercise rates of application to be included in the ensure that legally-enforceable field-
of that discretion. plan and, ultimately, in the permit. and crop-specific application rates are
Moreover, whether the NMP has been Compliance with the permit during the included in the permit as part of the
properly developed, whether the period of coverage would require any protocols for land application required
information in the NMP is accurate, and new fields (i.e., fields not addressed to be in the NMP under
whether calculations are correct and specifically in the terms of the permit) § 122.42(e)(1)(viii).
consistent with applicable requirements to first be added to the NMP and the This rule promulgates two alternative
are issues which are properly addressed permit, in accordance with the approaches for expressing the terms of
when the NMP is reviewed by the requirements of 40 CFR 122.42(e)(6), the nutrient management plan with
Director and by the public. This is discussed below, before they could be respect to rates of application. 40 CFR
analogous to the types of calculations used by the CAFO for land application. 122.42(2)(5)(i)–(ii). Each approach
and data submitted in a permit Similarly, as discussed in greater detail provides a means by which a CAFO may
application and found in the fact sheet below, field-specific, crop-specific articulate in its NMP annual maximum
that accompanies a draft NPDES permit application rates would be terms of the rates of application of manure, litter,
for other types of permitted point NMP, as would certain factors needed to and process wastewater by field and
sources. determine the rates. However, crop for each year of permit coverage
Other commenters observed that background information that is fixed and identify the minimum required
NMPs do not fit well in this regulatory and unchangeable, such as actual terms of the NMP specific to that
context due to their design and the way historic yields used in the development approach. One approach expresses field-
in which they have been used by CAFO of an NMP, while important for specific maximum rates of application
operators. Rather, they asserted that determining rates of application, would in terms of the amount of nitrogen and
NMPs are developed to guide not need to be terms of the NMP. Such phosphorus from manure, litter, and
management decisions regarding information is also relevant and process wastewater allowed to be
nutrients and, by necessity, must remain important for public review of the draft applied. This is called the ‘‘linear
flexible to address the many conditions permit, in order to ascertain that the approach.’’ The other approach
that affect nutrient generation and terms relating to rates of application are expresses the field-specific rate of
management. correct and enforceable. In other words, application as a narrative rate
The final rule allows for the this is an example of information prescribing how to calculate the amount
incorporation of the key NMP terms in necessary for the development of the of manure, litter, and process
a regulatory context without NMP, but is not relevant for compliance wastewater allowed to be applied. This
overburdening the permitting process or or enforcement purposes. is called the ‘‘narrative rate approach.’’
completely recasting the NMP itself. As Finally, the terms of the NMP must Each of the approaches requires the
discussed above, the terms of the NMP include any timing limitations in the CAFO operator to develop an NMP that
include whatever is contained in the NMP that would make fields projects for each field and for each year
NMP that is necessary to ensure unavailable for land application at of permit coverage the crops to be
compliance with § 122.42(e)(1) and, for certain times or under certain planted, crop rotation, crop nutrient
Large CAFOs, 40 CFR 412.4. Additional conditions.4 Insofar as the NMP needs, expected yield, amount of
content of the NMP that is beyond the includes such limitations, the resulting nitrogen and phosphorus to be land
scope of compliance with those limitations are terms of the NMP and applied, and projected amounts of
regulatory requirements would not be a thus enforceable. manure, litter, and process wastewater
term of the NMP. to be applied. However, each approach
Some commenters on the 2006 (iii) Rates of Application is different in identifying which of these
proposed rule urged EPA to provide 40 CFR 122.42(e)(1)(viii) requires the projections would be required to be
greater clarity, guidance, and certainty nutrient management plan to include ‘‘terms of the NMP.’’ In neither
in the final rule on the meaning and ‘‘protocols to land apply manure, litter, approach is the projected amount of
significance of the distinction between or process wastewater in accordance manure, litter, and process wastewater
the NMP and the ‘‘terms’’ of the NMP. with site-specific nutrient management to be land applied a term of the permit
As proposed in the 2008 supplemental practices that ensure appropriate because these projected amounts must
proposal, the final rule establishes more agricultural utilization of the nutrients be adjusted at least once a year.
specific requirements for terms of the in the manure, litter, or process Several commenters suggested that
NMP applicable to CAFOs that land wastewater.’’ As EPA noted in the 2006 the NMP and permitting authority
apply manure, litter, and process proposed rule, the Waterkeeper court review of the NMP should focus on how
wastewater than were included in the focused on rates of application as agronomic rates are developed in the
proposed rule. For such CAFOs, perhaps the most important term of the NMP rather than the specific rate
paragraph (e)(5) includes as terms the NMP, in particular the provisions of the determined in the NMP, based on the
fields available for land application, effluent limitations guidelines in 40 difficulty of developing accurate
field-specific rates of application, and application rates for a five-year term and
timing limitations for land application. 4 There are two types of ‘‘timing’’ referred to in
because agency review of specific
As stated above, with respect to land this rule regarding land application. One type application rates for each field would be
relates specifically to rates of application, i.e., the
application, the terms of every NMP too burdensome. As discussed above
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availability of nutrients for crop uptake based on
must include the fields the CAFO plans the timing (and method) of application. There are and in the 2006 proposed rule, the
to use for land application. The site- also timing limitations, such as restrictions on Waterkeeper court focused on rates of
applying under certain conditions, such as on
specific elements of the NMP can only saturated or frozen fields, or at certain times of the
application as perhaps the most
be properly represented in the NMP by year. The latter types of timing restrictions are the important term of the NMP and
the inclusion of field-specific subject of this paragraph. emphasized their site-specific nature.
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70445
To comply with the decision of the depends on the capacity of the soil to the amount of plant available
Waterkeeper court with regard to the retain phosphorus. The phrase phosphorus already in the field is not
terms of the NMP and to allow ‘‘outcome of the field-specific deducted because State technical
flexibility both for CAFO operators to assessment of the potential for nitrogen standards identify the rate of
develop NMPs in a manner appropriate and phosphorus transport from each application based on the crop removal
for a particular operation as well as for field,’’ as used in this rule, reflects the rate. Because soil levels tend to change
States to develop regionally-appropriate terminology typically associated with incrementally, depending on the
program requirements that meet the the use of the phosphorus index, which buffering capacity of the soil, and
needs of a particular agency, EPA in this is one of three field-specific risk because a phosphorus-based application
final rule is providing two alternatives assessment methods discussed in NRCS rate doesn’t reduce the amount of
for expressing rates and determining the conservation practice standard 590. phosphorus already in soil, phosphorus-
associated terms of the NMP. However, in this final rule, EPA is using based rates of application may remain
Rates of application are field-specific this phrase to reflect the results of relatively constant for a period of
and are designed to ensure that crops whichever method is required by the several years or longer, so long as the
receive sufficient nutrients to meet yield technical standards established by the outcome of the assessment of
goals, while minimizing the amounts of Director, including the soil test phosphorus transport does not change
nutrients that could be transported from phosphorus method and the phosphorus during that time. However, any multi-
the field. The discussion that follows threshold method. year phosphorus application must be
summarizes the basic process for One commenter suggested that, for done in accordance with State technical
establishing rates of application in an some States, it may be appropriate to standards.
NMP, in light of the comments received require that the field-specific In determining rates of application
in the 2008 supplemental proposal, as assessment of the potential for nitrogen where nitrogen is the limiting nutrient,
an introduction to the specific and phosphorus transport be conducted the NMP must consider the total amount
discussion of the two approaches on an annual basis. EPA recognizes that of plant available nitrogen for each crop
promulgated in this final rule. some States require, for example, use of from residual nitrogen already in the
To develop appropriate land a phosphorus index that factors into the field and the nitrogen added for a
application rates for each field where calculated risk rating the amount of particular field. Residual nitrogen is the
land application will occur, CAFOs manure applied to the field in the nitrogen that remains from prior
must identify the crops to be planted previous year. EPA agrees that, for these applications of manure, litter, process
and the planned crop rotations, or other States, it would be appropriate to wastewater, or chemical fertilizer, or
uses, and the nitrogen and phosphorus require recalculation of the phosphorus from other sources such as crop residues
needs of these crops or other uses. The index on an annual basis and and nitrogen fixing legumes. The
NMP also must identify the realistic anticipates that such States would addition of nitrogen to a field includes
yield expected from the crop or crops include the appropriate requirements in application of chemical fertilizer as well
planted in the field, in order to calculate technical standards, permits, or other as application of manure, litter, or
the proper amount of nutrients to apply. requirements applicable to CAFOs. process wastewater and other materials
A crop’s nutrient needs are generally Furthermore, EPA encourages CAFO such as biosolids.
determined in accordance with the operators to reevaluate field-specific Crediting for all residual nitrogen in
nutrient recommendations for a given assessments of the potential for nitrogen the field that will be plant available, as
crop (or other planting, such as forage and phosphorus transport as frequently a result of prior additions (e.g., crop
or pasture) and the per acre realistic as necessary to ensure minimization of residue, legume credits, and previous
yield goal for that crop. The State land nutrient transport from each field. manure applications), should be done in
grant university typically provides these Ultimately, the purpose of the field- accordance with the directions provided
values or the formulas for calculating specific assessment of the potential for in the technical standards established
these values. The realistic yield goal can nitrogen and phosphorus transport is to by the Director (required for all
also be based on historic field-specific determine the appropriate limiting permitted Large CAFOs). Since organic
yield data. nutrient for developing land application forms of nitrogen typically become plant
Because a CAFO operator could plant rates, i.e., whether phosphorus or available when they are converted to
more than one crop on a field in a given nitrogen limits the amount of manure, inorganic forms, such as nitrate and
year, the plant available amount of litter, or process wastewater that can be ammonium, crediting generally
nitrogen and phosphorus needs to be applied and the degree to which the identifies the amount of organic
calculated with reference to the nutrient limiting nutrient restricts land nitrogen likely to be converted to
needs of all the crops to be planted on application, or whether land application inorganic forms that will be plant
such field in a given year in order to be is to be avoided altogether. State available. Credits are calculated using
accurate. This includes accounting for technical standards typically allow soil test results included in the NMP
other field uses, such as pasture and nitrogen-based application rates on and projected applications of nitrogen
cover crops. fields with a low phosphorus risk rating. from manure, litter, and process
A properly developed NMP must also For fields that have a moderate to very wastewater during intervening years, as
evaluate the condition of the fields to be high phosphorus risk rating, State well as other additions, including from
used for land application. A field- technical standards generally limit the crops (e.g., where crops are plowed
specific assessment based on soil test amount of phosphorus that may be under or residues are left on the field or
nutrient levels and other factors added to a field. where nitrogen-fixing legumes are
required by the technical standards In determining rates of application grown), and other sources of nitrogen
established by the Director provides where phosphorus is the limiting remaining on the field that would be
rwilkins on PROD1PC63 with RULES_2
information needed to determine nutrient, the amount of phosphorus that plant available during the next growing
whether land application of manure is may be land applied is based on the season.
appropriate for a site. The capacity of annual phosphorus removal rate for EPA expects a complete NMP also to
the field for manure, litter, or process each crop or other field use. In deciding account for any other additions of plant
wastewater application generally how much manure may be land applied, available nutrients during the crop year,
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70446 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
such as chemical fertilizer, irrigation to a particular field in a given year at manure, litter, or process wastewater. In
water (groundwater may have some point in time after the NMP has addition, EPA agrees that having three
measurable concentrations of nutrients), been developed. The method of approaches to identifying terms of the
and biosolids, where applied. application depends on the source and NMP with respect to application rates is
The forms of nitrogen and phosphorus form of manure, litter, or process unduly complicated and would be
to be factored into calculations for rates wastewater; the location of a particular unnecessarily burdensome. Moreover,
of application are generally identified in field and the equipment available for EPA believes that the improvements and
the technical standards established by such field; the soil nutrient status; and clarifications to the linear and narrative
the Director or in other documentation the crop to be planted. For example, rate approaches promulgated in this
referenced in the State’s technical wastewater could be spray-irrigated, final rule make inclusion of the matrix
standards. Typically, the amount of otherwise surface applied, or injected, approach unnecessary. In considering
plant available phosphorus is whereas poultry litter is most likely to comments that criticized the inability of
determined based on the amount of be surface applied by a manure the matrix approach, as proposed, to
various forms of phosphate added to or spreader. more directly address the complex
present in the soil and the amount of Whereas one CAFO operator may dynamics relating application rates to
organic phosphorus that will mineralize wish to follow the planned sequence of crop needs, EPA would have needed to
during the growing season. The amount steps for planting crops and applying make adjustments that would have
of plant available nitrogen is based on manure, litter, and process wastewater made the matrix approach either more
the amount of inorganic nitrogen (e.g., described in the NMP submitted to the like the linear approach or more like the
nitrate and ammonium-nitrogen) added Director, another operator may want or narrative rate approach. As a result, and
to or present in the soil and the amount need to vary from that linear sequence in consideration of comments stating
of organic nitrogen that will mineralize of events, due to choices made in the that including three approaches is
during the growing season. The amount course of normal operations, or in unnecessary and burdensome, EPA has
of plant available nitrogen also depends response to events or circumstances decided to eliminate the matrix
on losses due to volatilization, which is beyond the CAFO’s control, such as approach as an option for identifying
calculated using the nitrogen weather, crop failure, or market the terms of the NMP for rates of
volatilization rate associated with the conditions. EPA has addressed this application.
source of nutrients and the timing and concern in this final rule by including Some industry commenters indicated
method of land application. As two alternative approaches for that CAFOs should be allowed to choose
previously discussed, it is the forms of determining the terms of an NMP, as from either approach as long as they
nitrogen and phosphorus that will be discussed below. maintain the same approach for the five-
available to a given crop that are most As indicated above, EPA is year permit term while another industry
relevant in determining rates of promulgating two approaches for commenter stated that CAFOs should be
application. In this final rule, the defining the terms of an NMP for rates allowed to switch approaches during
appropriate forms of nitrogen and of application, rather than the three the permit term. This final rule does not
phosphorus to be factored into these approaches that were proposed in the address the possibility of switching
calculations must be expressed in 2008 supplemental notice. While a approaches during a permit term. It is
chemical forms determined to be number of commenters encouraged EPA up to the discretion of the Director
acceptable by the Director, such as in to include all three proposed whether such a change would be
the permit or in the technical standards approaches in the final rule to allow allowed. However, because each
established by the Director. operators the greatest number of approach differs in what are the terms
As discussed above, the NMP must alternative options, many commenters of the permit, switching approaches
include calculations projecting for the were critical of the matrix approach. during the permit term would require a
length of the permit term the amount of Some commenters suggested EPA permit modification to include the
manure, litter, or process wastewater, in should finalize only the narrative rate terms of the NMP associated with the
tons or gallons, to be land applied in approach because they felt that the selected approach into the permit.
order to meet, but not exceed, crop linear and matrix approaches were too Under both of the approaches, the
nutrient needs (after considering inflexible to be useful. Others suggested terms of the NMP are required to
residual nutrients and other additions of that the inclusion of three approaches include specific factors used for the
nutrients and results of the most recent would create a program that is too development of rates of application.
manure test) based on the outcome of complicated for permittees, permitting These include:
the field-specific assessment of the authorities, and the public. One • The outcome of the field-specific
potential for nitrogen and phosphorus commenter stated that the matrix assessment of the potential for nitrogen
transport, i.e., whether application rates approach fails to fully address the and phosphorus transport from each
will be limited by nitrogen or complexity of the decision-making field;
phosphorus. These calculations must process facing the CAFO operator. • The crop or crops to be planted in
also take into account, with respect to Several industry commenters found the each field or any other uses such as
each crop to be grown or other matrix approach to be less flexible than pasture or fallow fields;
agricultural use, the source and form of necessary and overly burdensome. • The realistic yield goal for each
nutrients to be land applied; the method Environmental group commenters found crop or use identified for each field; and
of application of manure, litter, and the matrix approach to be too rigid to • The nitrogen and phosphorus
process wastewater; and the timing of ensure protection of water quality and recommendations from sources
when application will occur. Although not inclusive of critical information. In specified by the Director for each crop
a properly developed NMP addresses all reviewing the comments, EPA agrees or use identified for each field.
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of these factors, some operators may that the matrix approach does not Both of the approaches account for
have multiple sources of manure, litter, adequately address the complexity of other information necessary for
or process wastewater and may need to the nutrient management decisions to be determining the amount of manure,
make the determination as to which made by the CAFO operator and that it litter, and process wastewater to be land
source to draw from for land application could result in over-application of applied. This information relates to: (1)
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70447
Credits for residual nitrogen available in phosphorus in the manure, litter, and be expressed in terms of tons or gallons
each successive year during the five process wastewater to be applied. of manure, litter, and process
year term of the permit; (2) This approach is considered a wastewater. Several commenters stated
consideration of any multi-year ‘‘linear’’ approach because it is based on that the application rate under the linear
phosphorus application; (3) accounting the use of only those crops included in approach should be expressed in terms
for additions of commercial fertilizer the planned crop rotations in the NMP; of pounds of nitrogen and phosphorus
and other additions of nitrogen and the amounts of nitrogen and phosphorus rather than tons and gallons of manure
phosphorus during each successive from manure, litter, and process and wastewater. The commenters felt
year; (4) the form (liquid, solid) and wastewater to be land applied according that this approach would more
source (e.g., lagoon, compost, process to the planned schedule for land accurately account for the actual
wastewater) of the material to be land application (including source and nutrient content of the manure and
applied; (5) nitrogen and phosphorus method and timing of application); and wastewater being applied. EPA agrees
content of the manure, litter, or process the projected values for plant available with the commenters and has changed
wastewater; (6) timing of application; nitrogen and phosphorus from other the linear approach accordingly to
and (7) method of application (e.g., sources. Under this approach, a single address this concern. The key advantage
spreading, spray, injection). However, set of field-specific rates of application of this change is that it ensures that the
the two approaches differ in the way would be established, based on the results of manure testing, which for
they incorporate this information in predicted sequence of activities the Large CAFOs is required to be done
expressing the rates of application as CAFO plans to follow in implementing annually, are used in determining the
terms of the NMP. The following its NMP, and a CAFO would be required actual amount of manure, litter, and
sections of the preamble describe the to follow the sequence identified in the process wastewater to be applied. EPA
two approaches and how each approach NMP for each field-specific crop believes that expressing the rate in
accounts for this information. rotation and each planned step for land terms of pounds of nitrogen and
application of manure, litter, or process phosphorus from manure, litter, and
(A) Linear Approach—Rates Expressed wastewater. process wastewater provides greater
in Pounds of Nitrogen and Phosphorus Under this linear approach, a CAFO environmental protection by requiring
From Manure, Litter, and Process must land apply manure, litter, and operators to adjust the actual amount of
Wastewater process wastewater in amounts that will manure, litter, and process wastewater
The first approach (see 40 CFR result in application of no more than the applied based on the most current
122.42(e)(5)(i)) allows the CAFO to amounts of nitrogen and phosphorus manure nutrient test results.
express rates of application as pounds of from manure, litter, and process The utility of this approach,
nitrogen and phosphorus from manure wastewater specified for each field in nevertheless, hinges on the CAFO
or litter, and process wastewater. The the NMP, following the schedule and making accurate predictions in the NMP
terms of the NMP include maximum the methods of application described in that are not disrupted by changes to the
application rates for each year of permit the NMP. When applying manure, litter, CAFO’s operation or by circumstances
coverage, for each crop identified in the and process wastewater, CAFOs will beyond the control of the CAFO
NMP, in pounds per acre, per year, for need to take into account manure test operator. Any changes to the terms of
each field to be used for land results, including for Large CAFOs the the NMP would constitute a change to
annual manure test results required by the terms of the permit, which would
application. In addition, the terms of the
the 2003 final rule, so as to not exceed require a permit modification. See
NMP include the following factors:
the nutrient needs of the crops. Medium discussion in section III.C.3(e) of this
• The outcome of the field-specific
and small CAFOs must apply manure, preamble, ‘‘Changes to a Permitted
assessment of the potential for nitrogen
litter, and process wastewater consistent CAFO’s Nutrient Management Plan.’’
and phosphorus transport from each
with Best Professional Judgment (BPJ)- For example, any change to the planned
field;
based requirements established in the crop sequence, such as the addition of
• The crop or crops to be planted in permit for accounting for the nutrient a second crop to a field, requires a
each field or any other uses such as content of the manure. Large CAFOs permit modification.
pasture or fallow fields; using the linear approach must calculate On the other hand, the advantage of
• The realistic yield goal for each the maximum amount of manure, litter, this approach is its relative simplicity
crop or use identified for each field; and process wastewater to be land for CAFOs with predictable crops and
• The nitrogen and phosphorus applied at least once each year using the land application. The linear approach
recommendations from sources results of the most recent representative would be particularly suitable for
specified by the Director for each crop manure, litter, and process wastewater operations that consistently plant one
or use identified for each field; tests for nitrogen and phosphorus taken crop or two crops in rotation on the
• Credits for all nitrogen in the field within 12 months of the date of land same fields, using the same source and
that will be plant available; application. form of manure, litter, or process
• Consideration of multi-year The methodology used for translating wastewater, and that land apply on a
phosphorus application; the amounts of nutrients in pounds into regular annual schedule using the same
• Accounting for all other additions the amount of manure, litter, and application method(s).
of plant available nitrogen and process wastewater to be land applied, EPA notes that even under the linear
phosphorus to the field; in tons or gallons, is a term in the linear approach, operators may provide
• The form and source of manure, approach. This includes incorporation themselves some flexibility by
litter, and process wastewater to be land of manure test results in determining specifying more than one field-specific
applied; and such rates. crop rotation plan in the NMP, with
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• The timing and method of land The final rule differs from the application rates of nitrogen or
application. proposed linear approach with respect phosphorus specified for each
The terms also include the to the expression of the rates of alternative plan for inclusion in the
methodology by which the NMP application. EPA proposed that permit. This might be practical for
accounts for the amount of nitrogen and application rates in the linear approach operators who are reasonably confident
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70448 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
that they will follow one of two or three • Consideration of multi-year term that must be complied with at the
potential crop rotations. EPA is phosphorus application; time of determining how much, from
promulgating the other approach for • All other additions of plant which source, in what form is allowed
operators seeking a greater degree of available nitrogen and phosphorus to to be applied to the field using which
flexibility. the field; method of application.
• The form and source of manure, 40 CFR 122.42(e)(5)(ii)(C) clarifies
(B) Narrative Rate Approach—Rates litter, and process wastewater; that the amount of manure, litter, and
Derived From Total Amounts of Plant • The timing and method of land process wastewater to be applied as
Available Nitrogen and Phosphorus application; and projected in the NMP submitted with
This final rule includes a second • Volatilization of nitrogen and the permit application or NOI is not a
approach that would allow rates of mineralization of organic nitrogen. term of the NMP under the narrative
application to be expressed as a The factors listed above are not rate approach. As explained above, the
narrative rate that includes the total themselves required to be terms in the amount of manure, litter, and process
amount of plant available nutrients from narrative rate approach, but the wastewater is to be calculated using the
all sources combined with a specific, methodology used to account for them methodology included in the NMP and
quantitative method for calculating the in the CAFO’s permit is a term. Thus, based on actual amounts of plant
amount, in tons or gallons, of manure, the CAFO operator will be bound by the available nitrogen and phosphorus from
methodology and the way in which all sources at the time of land
litter, and process wastewater allowed
these factors must be accounted for in application. Other projections that must
to be land applied. (See 40 CFR
calculating the actual amount of be included in the NMP but are not
122.42(e)(5)(ii).) Unlike the linear
manure, litter, or process wastewater terms are the CAFO’s planned crop
approach, in this quantitative narrative
allowed to be applied to the field. The rotations for each field; credits for all
rate approach, the terms of the NMP
terms of the NMP under this approach nitrogen in the field that will be plant
include the maximum amounts of
do not include the amount of nitrogen available; consideration of multi-year
nitrogen and phosphorus from all
and phosphorus in the manure, litter, or phosphorus application; accounting for
sources of nutrients for each crop or
process wastewater allowed to be land- all other additions of plant available
other field use identified in the NMP, in
applied as set forth in the NMP, but they nitrogen and phosphorus to the field;
chemical forms determined to be do include the methodology prescribed
acceptable to the Director, in pounds the predicted form, source, and method
in the NMP for calculating these of application of manure, litter, and
per acre, for each field. amounts. And while the terms of the
As required at 40 CFR process wastewater for each crop; and
NMP do not include the predicted the timing of application for each field,
122.42(e)(5)(ii)(A), the narrative rate source, form, timing, and method of
approach also includes as terms the insofar as it concerns the calculation of
application of manure, litter, or process rates of application (permitting
following four factors: wastewater set forth in the NMP, they
• The outcome of the field-specific authorities may establish in permits or
include the methodology that accounts technical standards for nutrient
assessment of the potential for nitrogen for these factors in determining the
and phosphorus transport from each management land application timing
amount of manure, litter, or process restrictions, such as prohibitions on
field; wastewater allowed to be applied. This land application to frozen or saturated
• The crop or crops to be planted in allows the actual inputs and results for ground, that would be permit terms).5
each field or any other uses such as these factors to be something other than As specified at 40 CFR
pasture or fallow fields; what was projected in the NMP during 122.42(e)(5)(ii)(B), NMPs for which
• The realistic yield goal for each the period of permit coverage, using the terms are identified using the narrative
crop or use identified for each field; and methodology, while ensuring that the rate approach may also include
• The nitrogen and phosphorus CAFO meets the requirements of 40 CFR alternative crops not included in the
recommendations from sources 122.42(e)(1) and, for Large CAFOs, 40 planned rotation in the NMP, so long as
specified by the Director for each crop CFR 412.4, by applying in accordance the NMP includes for each crop realistic
or use identified for each field. with the methodology and other terms yield goals, nitrogen and phosphorus
In addition, this narrative rate of the NMP. recommendations from sources
approach includes as a term of the NMP This approach requires that the CAFO specified by the Director, and maximum
the methodology by which the NMP apply manure, litter, or process amounts of nitrogen and phosphorus
accounts for certain factors when wastewater according to the results of from all sources. The terms and factors
calculating the amounts of manure, this calculated amount. For example, if associated with alternative crops would
litter, and process wastewater to be land the NMP projected an amount of be the same as the terms and factors
applied. A CAFO using the narrative manure to be applied based on required for the crops included in the
rate approach is required to apply in incorporation of solid manure, the planned rotation in the NMP.
accordance with the resulting operator could apply process EPA received several comments on
calculations. This final rule requires the wastewater from the lagoon by spraying the proposed terms and factors for the
methodology in NMPs developed using the field instead. In this example, the narrative rate approach. Commenters
this approach to account for the methodology must account for factors of requested that EPA refer only to ‘‘plant
following factors: form, source, and method of application available’’ nutrients in the narrative rate
• Results of soil tests conducted in such that these inputs and results can be approach. Some confusion may have
accordance with protocols identified in other than what was projected in the been caused by EPA’s reference in the
the nutrient management plan, as NMP and the amount of manure preamble to the 2008 supplemental
required by 40 CFR 122.42 (e)(1)(vii); allowed to be applied will be proposal to the ‘‘maximum amount of
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• Credits for all nitrogen in the field predictably and accurately calculated. total nitrogen and phosphorus’’ with
that will be plant available; In other words, the methodology and regard to expression of the application
• The amount of nitrogen and requirement that application be in rate under the narrative approach. This
phosphorus in the manure, litter, and accordance with the rate calculated
process wastewater to be applied; using that methodology are enforceable 5 See footnote 4.
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70449
language was intended to refer to the The narrative rate approach requires indicated that, under certain
total amounts of nitrogen and an annual determination of soil levels of circumstances, manure nutrient testing
phosphorus, rather than referring to a nitrogen and phosphorus. For nitrogen, should be required more frequently than
specific chemical form (‘‘total nitrogen’’ the annual determination must include annually. Although the supplemental
or ‘‘total phosphorus’’). This has been a concurrent calculation of nitrogen that proposal did not specifically propose to
corrected in this final rule and preamble will be plant available consistent with require annual soil nitrogen testing,
by removing the word ‘‘total.’’ The final the methodology specified in the NMP. several commenters indicated that such
rule refers to plant available forms of As described above, this methodology testing should not be required, citing
nutrients with regard to determining must account for the factors that would limitations in accuracy and
credits for nitrogen in the field and affect soil nitrogen levels on an annual effectiveness of the testing methods
accounting for all other additions of basis such as the form and timing of currently available. EPA agrees with
plant available nitrogen and phosphorus previous land application(s); the actual commenters that, in a number of States,
to the field. Otherwise, the rule requires amount of nitrogen in the manure, litter, annual soil testing for phosphorus has
expression of application rates in and process wastewater previously been determined to be unnecessary.
chemical forms determined to be applied; and volatilization and EPA recognizes that soil test
acceptable to the Director, such as mineralization rates for nitrogen. For requirements vary from State to State,
indicated in the technical standards phosphorus, the annual determination and may include testing for nitrogen as
established by the Director, or in the must include the results of the most well as phosphorus. Based on these
permit. recent soil test conducted in accordance responses from a range of commenters
One commenter suggested that crop with sampling requirements approved and the various suggested alternatives,
yields be included as a factor under the by the Director. As in the case of other EPA has replaced the proposed annual
narrative rate approach and that yield technical determinations to be made by soil testing requirement for the narrative
goals should be adjusted for operations the Director as part of this final rule, the rate approach with the requirement that
that consistently fail to meet them. This Director’s determination concerning an annual determination of soil nutrient
final rule includes realistic yield goals sampling requirements may be made in levels be based on current data and
as a term under both approaches. the technical standards established by calculations as described above to
Realistic yield goals will be included in the Director, in the permit, or by an support ‘‘real time’’ calculation of
the NMP and, therefore, will be subject equivalent determination made appropriate application rates. This final
to review by the permitting authority elsewhere. Many States require rule does not specify a minimum
and the public. In addition, States may sampling to be done every two or three frequency for soil phosphorus testing,
establish in their technical standards years, for most conditions. Some require but instead requires CAFOs to include
criteria for deriving realistic yield goals more frequent sampling generally, and the results of the most recent soil tests
including criteria for adjusting yield others require more frequent sampling for phosphorus conducted in
goals based on actual crop yields. EPA at higher concentrations of soil test accordance with soil testing
believes that this is sufficient to ensure phosphorus. If sampling is conducted requirements approved by the Director.
that the yield goals used to calculate more frequently than required by the The annual recalculation of the
application rates in NMPs are Director, then the determination must amount of manure, litter, and process
appropriate. Upon subsequent permit be based on the results of the most wastewater allowed to be applied must
issuance, the public will have the recent test. also rely on the results of the most
opportunity to review yield goals in EPA proposed that CAFOs using the recent representative manure, litter, and
light of actual yields reported by the narrative rate approach would be process wastewater tests taken within
CAFO in its annual reports (see 40 CFR required to test soils annually for 12 months of the date of land
122.42(e)(4)(viii)). nutrient content and that these data be application. These data along with the
The narrative rate approach would used in recalculating the amount of annual determination of soil levels of
eliminate certain issues associated with manure, litter, and process wastewater nitrogen and phosphorus must be used
a five-year planning cycle previously to apply annually. Many commenters to calculate, in real time, the amount of
discussed in connection with the linear opposed annual soil testing for manure, litter, and process wastewater
approach presented above. A key phosphorus. These commenters stated to be applied to supply the remaining
difference of the narrative rate that annual testing is inconsistent with nitrogen and phosphorus needed for the
approach, is that it would require State land grant university guidance, is actual crop being planted on the field.
application rates for manure, litter, and unnecessary because phosphorus levels Commenters requested that the narrative
process wastewater to be recalculated at in the soil do not change significantly rate approach express application rates
least annually using the methodology from year to year and that such testing in terms of pounds of nutrients rather
specified in the NMP (40 CFR would be cost-prohibitive for many than tons of manure to allow
122.42(e)(5)(ii)(D)). Unlike the linear operations. A number of commenters appropriate utilization of nutrients in
approach, the narrative rate approach suggested alternative testing frequencies manure whose nutrient content varies
allows CAFOs that may need to adjust ranging from three to five years. Several over time. In practice, the narrative rate
their rates of application of manure, commenters suggested that annual approach requires that amounts of
litter, and process wastewater due to phosphorus testing be required only manure, litter, and process wastewater
changes in soil levels of nitrogen and where the soil phosphorus level is to be land applied be calculated first in
phosphorus to do so without requiring already high or previous applications pounds of nutrients and then translated
the permit to be modified. Therefore, it have exceeded the crop phosphorus into tons or gallons of manure, litter,
is important to ensure that the actual removal rate (such as where manure is and process wastewater using current
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changes in soil levels of plant available applied at a nitrogen-based rate). A few manure nutrient analyses. The
nitrogen and phosphorus are taken into commenters asked EPA to clarify that information presented to the public in
account, rather than relying on five-year annual soil testing only applies to fields the CAFO’s NMP will include the
projections of fluctuations provided in that will receive manure in the year the projected amounts for the planned crop
the NMP. testing is performed. One commenter rotation, in tons or gallons of manure,
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70450 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
litter, or process wastewater, since this Several commenters expressed permit which require public notice and
is the endpoint of the calculation of the concerns about the enforceability of the comment, arising from changes to the
amount to be applied. As discussed narrative rate approach, citing the lack CAFO’s crop rotations, while ensuring
above, these projected amounts are not of an objective rate and public that all effluent limitations applicable to
themselves terms, since they will need availability of supporting information a permitted CAFO are incorporated as
to be recalculated each year based on used to calculate the rate. The narrative terms of the permit, as required by the
updated information. rate approach requires the CAFO to Waterkeeper decision.
One commenter suggested that EPA recalculate the amount projected in the As many commenters on the 2006
specify that manure tests and plant NMP of manure, litter, and process proposed rule pointed out and EPA
tissue tests also be used in the annual wastewater to be land applied, using the recognizes, there may be changes in
rate recalculation. As described above, methodology in the NMP, at least once field conditions or practices at a CAFO,
this final rule does require a year, throughout the period of permit including, for example, those that alter
consideration of recent manure test coverage. In recalculating these the projected levels of plant available
results in annual application rate amounts, a CAFO will be required to nitrogen and phosphorus in the soil or
recalculations. Plant tissue testing may use concurrent calculations of credits in the manure over the period of permit
be an effective tool for determining for all plant available nitrogen in the coverage. Such changes introduce some
nitrogen deficiencies (and the need for field and the results of the most recent uncertainty in setting application rates
supplemental nitrogen application), as soil tests for phosphorus in the field. for five years as enforceable terms of the
well as for determining excess nitrogen. The CAFO will then calculate the permit. The narrative rate approach is
However, plant tissue tests are typically maximum amount of nitrogen and designed to accommodate these
taken after manure applications have phosphorus from manure, litter, and concerns by allowing a CAFO to
been made on a field and thus are process wastewater allowed to be compensate for changes in soil levels of
unavailable at the time the operator is applied, as a portion of the total amount plant available nutrients, in manure
determining rates of application. A of nitrogen and phosphorus from all nutrient content, or in the timing and
CAFO’s NMP may include plant tissue sources, using the methodology in the method of application, by adjusting the
testing as part of the CAFO’s NMP. Under the narrative rate application rates accordingly without
methodology so long as it is done approach, the CAFO must use the the need for a permit modification.
consistently with State technical methodology specified in the NMP However, the operator will be limited to
standards. (which is a term) to account for the the total crop-specific amount of
In addition to accounting for the crop amount of nitrogen and phosphorus in nitrogen and phosphorus from all
and field information, the methodology the manure, litter, and process sources and will have to adhere to a
for the annual recalculation of the wastewater to be applied when methodology that establishes the way in
amount of manure, litter, and process which such rates are to be calculated.
calculating the maximum amount of
wastewater to apply must account for a Thus, in the second and later years of
manure, litter, and process wastewater
number of other variables, including the the permit term, this approach will
allowed to be applied. To ensure that
form and source of the manure, litter, provide an accurate and verifiable
such recalculations are made available
and process wastewater and the timing means of achieving realistic production
to the Director and the public, the
and method of application, as described goals while minimizing transport of
recalculations and the new data from
above. The operator may not apply more phosphorus and nitrogen from the field.
which they are derived are required to
than the maximum amount of nitrogen This will help CAFOs avoid the
be reported in the CAFO’s annual report
and phosphorus calculated using the possibility of over-application of
for the previous twelve months. In other
methodology. nitrogen or phosphorus because of
Under this approach, the NMP will words, the rate of application would be
increased levels of nutrients in the soil,
include planned crop rotations for each an objective, enforceable rate, because
compared to what was projected at the
field and corresponding projected the permit will specify the methodology
time of permit issuance, and,
amounts, in tons or gallons, of manure, required for calculating the amount of
conversely, the possibility of failing to
litter, and process wastewater to be manure, litter, and process wastewater
meet crop agronomic needs due to
applied, including all of the calculations allowed to be applied, certain values or
under-application of nitrogen or
for determining such projected amounts, sources of information required to be
phosphorus.
for the period of permit coverage. This used in the methodology, and will limit
will give the permitting authority and the total amount of nitrogen and (d) Process for Incorporating Terms of
the public an opportunity to review, phosphorus from all sources for each the Nutrient Management Plan Into a
prior to permit issuance, the adequacy crop. Failure to comply with the rate General Permit
of the CAFO’s methodology and the way established under the permit would be The Agency is also promulgating
the CAFO uses the methodology to a violation of the permit, and the procedural requirements for
calculate the appropriate amount of Director and the public will be able to incorporating the terms of the NMP into
manure, litter, and process wastewater determine whether the rate was an NPDES general permit, in new
to be applied, based on the operator’s complied with from the annual report. paragraph 40 CFR 122.23(h)(1).
planned crop rotation at the time of Most commenters who commented on Once the processes for publicly
permit issuance. Again, these planned the narrative rate approach were reviewing the NMP and the terms of the
crop rotations and projected amounts supportive of the approach in terms of NMP have been completed, the Director
are not terms, as they will need to be its degree of flexibility. Some must address all significant comments
recalculated each year based on updated commenters suggested that it should be raised and make a final decision
information; however these projections the only approach adopted in the final whether to grant coverage under a
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will allow the public to see how the rule. EPA believes that the flexibility of general permit. As necessary, the
methodology (which is a term) is the narrative rate approach will reduce Director will require a CAFO owner or
applied to a projected set of facts to the burden on permitting authorities operator to revise their NMP to address
calculate the amounts to be land and CAFO operators by decreasing the issues raised during the review process.
applied. number of substantial changes to the Once the Director determines that the
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process for the development of a incorporating a CAFO’s NMP by fields available for land application and
CAFO’s NMP is complete, the Director reference into the permit or as described their capacity for nutrient applications.
must make the final decision whether to in the preamble to the 2006 proposed Moreover, as discussed in this
grant permit coverage to the CAFO rule, the permitting authority may preamble, EPA would encourage
under the general permit. If coverage is extract the terms of the NMP and attach operators to develop an NMP that
granted, the Director must incorporate them to the permit. Either way, the includes reasonably predictable
the relevant terms of the NMP into the terms of the NMP are enforceable terms alternatives that a CAFO may
general permit (as described later) and of the NPDES permit. implement during the period of permit
inform the CAFO owner or operator and Other commenters sought greater coverage. However, unanticipated
the public that coverage has been State discretion in implementing NMP changes to a nutrient management plan
authorized and of the applicable terms requirements as permit conditions. may nevertheless be necessary.
and conditions of the permit. Once a These commenters recognized the The final rule includes 40 CFR
CAFO obtains authorization to importance of implementing the NMP 122.42(e)(6), which requires a CAFO to
discharge under an NPDES permit, the provisions but did not want this rule to notify the Director of changes to the
CAFO must implement the terms and interfere with effective existing State CAFO’s NMP. Section 122.42(e)(6)
conditions of the nutrient management approaches. In addition, these excludes the results of calculations
plan as incorporated into the permit, as commenters wanted to preserve the made in accordance with 40 CFR
of the date of permit coverage administrative advantages of using 122.42(e)(5)(i)(B) and 122.42(e)(5)(ii)(D)
authorization. general permits. from the requirements of paragraph
The preamble to the 2006 proposed This rule provides some State (e)(6). The results of these calculations,
rule discussed and requested comment discretion by allowing permitting which are required of Large CAFOs
on approaches for the Director to authorities to determine which NMP using the linear approach and all
identify the terms of the NMP to be provisions to include as terms of the CAFOs using the narrative rate
incorporated into the permit. These permit. The rule specifies what must be approach, must be reported in the
options ranged from attaching the entire included at a minimum in the permit as CAFO’s annual report. Thus, there is no
NMP to the permit to identifying terms of the NMP. However, States have need to provide this information
specific elements to be included in the the authority to adopt additional or pursuant to the requirements of
permit as terms. Based on comments more stringent requirements, under paragraph (e)(6).
received on the proposed rule, EPA is CWA section 510. In the 2006 proposed rule, EPA
specifying certain elements of NMPs proposed a process that CAFOs and the
(e) Changes to a Permitted CAFO’s
with respect to land application as permitting authority would need to
Nutrient Management Plan
‘‘terms of the NMP’’ that must be follow when a CAFO makes changes to
incorporated into the permit. EPA is It is well understood that agricultural its NMP. The proposal also included
not, however, requiring a single operations modify their nutrient criteria for determining when a change
approach whereby the terms are made management and farming practices to a CAFO’s NMP should be considered
part of the permit, leaving to the during the normal course of their a substantial change. In the 2008
Director the discretion to decide operations. Such alterations may require supplemental notice, the Agency
whether, for example, to attach the changes to a permitted CAFO’s NMP solicited comment on several
entire NMP to the permit and require during the period of permit coverage. modifications to the 2006 proposal
compliance with the terms of the NMP As discussed in the preamble to the including a list of changes to the NMP
or to specify the terms of the NMP and 2006 proposed rule, the permit does not that would constitute a substantial
specifically identify each of them in the need to be modified for all operating change.
permit. Under this final rule, changes. Because of the way NMPs are In this final rule, EPA is including a
incorporation of the terms of a developed and the flexibility provided list of changes to the NMP that would
particular CAFO’s NMP into a general by the two options for developing the constitute a substantial change to the
permit is not a permit modification terms of the nutrient management plan terms of a facility’s NMP, thus triggering
subject to 40 CFR 122.62. Rather, it is at 40 CFR 122.42(e)(5), most routine public notice and permit modification.
an extension of the CAFO general changes at a facility should not require Substantial changes include: (1)
permitting process itself. As discussed changes to the NMP itself. For example, Addition of new land application areas
above, EPA intends the process a CAFO using the narrative rate not previously included in the CAFO’s
proposed in 40 CFR 122.23(h) to approach would not ordinarily need to NMP; (2) any changes to the maximum
generally parallel the procedures in 40 change its NMP when it makes changes field-specific annual rates of application
CFR part 124. to factors that are not themselves terms or to the maximum amounts of nitrogen
Commenters supported an approach but are accounted for in the and phosphorus derived from all
allowing a permitting authority to methodology. To minimize the need for sources for each crop, as expressed in
incorporate the entire NMP as a revision, nutrient management plans accordance with, respectively, the linear
condition of the permit without should anticipate and accommodate approach or the narrative rate approach;
distinguishing between the NMP and routine variations inherent in (3) addition of any crop not included in
the ‘‘terms’’ of the NMP. Some agricultural operations such as the terms of the CAFO’s NMP and
supported attaching an NMP to the anticipated changes in crop rotation, as corresponding field-specific rates of
permit or general permit and requiring well as changes in numbers of animals application; and (4) changes to field-
that the CAFO implement that NMP as and volume of manure, litter, or process specific components of the CAFO’s
a permit condition. As discussed above, wastewater resulting from normal NMP, where such changes are likely to
this rule requires that a permit include fluctuations or a facility’s planned increase the risk of nitrogen and
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the terms of a site-specific NMP. expansion. Typically, an NMP is phosphorus transport from the field to
However, EPA is not prescribing the developed to accommodate, for waters of the U.S.
manner in which this incorporation example, normal fluctuations in herd or This final rule also makes one
takes place. The permitting authority flock size, capacity for manure, litter, exception to the first type of substantial
may satisfy this requirement by and process wastewater storage, the change (a land application area being
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70452 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
added to the nutrient management NMP because a CAFO operator is with the Waterkeeper decision because
plan), where such additional land is required to properly operate and the rates of application for those land
already included in the terms of another maintain the CAFO’s storage facilities application areas will have already been
existing NMP incorporated into an regardless of the number of animals or publicly reviewed, approved, and
existing NPDES permit. If, under the the volume of manure, litter, or process incorporated into a permit as required
revised NMP, the CAFO owner or wastewater generated. For the same by Waterkeeper.
operator applies manure, litter, or reasons, EPA believes that changes to Some commenters supported the
process wastewater on such land these factors will not necessarily trigger addition of new land application areas
application area in accordance with the substantial change to a CAFO’s permit, as a substantial change. They also
existing field-specific terms of the although accommodating an increase in commented that adding or reducing
existing permit, such addition of new the number of animals or volume of land application areas would require a
land would not be a substantial change manure could lead to changes to the recalculation of the application rate.
to the terms of the CAFO owner or NMP that would constitute substantial Some commenters were concerned that
operator’s NMP. changes to terms of the NMP (and the the addition of new land application
EPA received a number of comments permit). With regard to the use of soil areas as a substantial change is
on the list of substantial changes in the and manure tests, both approaches counterproductive, severely limits
2006 proposed rule and 2008 discussed above for expressing land flexibility for producers to plan, does
supplemental proposal. One commenter application rates in NMPs and not add water quality benefit,
encouraged EPA to state that substantial associated terms allow for consideration discourages producers from adding land
changes under the narrative rate of manure testing on an annual basis; to their NMP and will hinder a CAFO’s
approach only occur when the CAFO and the narrative rate approach also ability to quickly add more fields to the
changes the system used to determine requires consideration of the most NMP. These commenters suggested the
maximum allowable application rates. recent soil test results. Finally, NPDES addition of land application areas can
EPA agrees that changes in the permits for all types of dischargers, be addressed by requiring producers to
methodology may be substantial including CAFOs, typically include submit this information with their
changes to the terms of the NMP if they reopener provisions under which the annual reports. Some commenters also
result in changes to the maximum rates Director may revise the permit during suggested granting States the flexibility
of application or maximum amounts of the permit term based on factors such as to define when and what types of land
nitrogen and phosphorus derived from changes to the status of the receiving application area additions would be
all sources for each crop or if they result water body. EPA believes that such considered a substantial change. Some
in changes likely to increase the risk of standard NPDES provisions are commenters suggested that only the loss
nutrient transport to waters of the U.S. sufficient to allow permit revisions of land application areas should be
However, EPA does not agree that there necessary to support the criteria and treated as a major modification which
are no other changes that are substantial standards established for receiving requires public participation. As
changes under the narrative rate waters. discussed above, under Waterkeeper,
approach. EPA believes that the four the public must have opportunity to
substantial changes identified in this The Agency believes that the list of review the fields planned for land
final rule are appropriate for both of the substantial changes included in this application during both the initial
approaches for determining rates of final rule address changes that most permit issuance phase and any
application. For example, proper directly affect fundamental components subsequent permit modification phase
implementation of the narrative rate of the NMP that relate to the land in order to determine whether field-
approach depends on identification of application of manure, litter, and specific rates of application have been
the fields to be used for land process wastewater, which was a properly developed. For this reason, the
application, so use of a new field for primary focus of the Waterkeeper addition of new land application areas
land application that had not been decision. First, by identifying the not already addressed under an existing
previously covered in the facility’s (or addition of new land application areas NMP and permit must be considered a
another facility’s) permit terms would not originally included in the terms of substantial change and made available
constitute a substantial change. In the NMP as a substantial change, the for public review.
addition, under the narrative rate Agency makes clear that the fields to be The second substantial change is any
approach a change to the field-specific used for land application must be change to the field-specific maximum
maximum amounts of nitrogen and permit terms, as all permitted CAFOs rates of application. The Waterkeeper
phosphorus derived from all sources is that land apply manure, litter, and decision makes clear the importance of
a substantial change to the NMP, process wastewater are required to do so these rates as terms of the NMP. Some
because it defines the upper bounds on at field-specific agronomic rates. The commenters indicated this change
nutrient additions. identification of land application areas should not apply to NMPs developed
Some commenters suggested that EPA in the NMP is essential for determining using the narrative approach, since the
expand the list of substantial changes to the effluent limitations applicable to a appropriate application rate should be
include changes such as the maximum particular CAFO, which the calculated using the approved
number of animals allowed for the Waterkeeper decision required be made methodology. This final rule clarifies
CAFO site; production area changes that available for public review and that, for the narrative rate approach, a
alter the volume and composition of comment and incorporated into the substantial change is triggered by a
waste; using soil, manure, plant tissue permit. Thus, the public must have an change in the field-specific maximum
test results to refine the NMP; and opportunity to comment on the fields amount of nitrogen and phosphorus
changes in the status of the receiving planned for land application during derived from all sources.
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waterbodies. With regard to the number both the initial permit issuance phase The third substantial change is the
of animals confined and the volume of and any subsequent permit modification addition to the NMP of crops or other
waste generated, EPA has stated that the phase. The exception for the addition of uses not previously included in the
number of animals confined at a CAFO new fields already covered by an CAFO’s NMP, together with the
would not necessarily be a term of the existing NPDES permit is consistent corresponding maximum field-specific
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rates of application for those crops or Because changes to the NMP could revisions to terms of the NMP into the
other uses. Because rates of application result in a change to a permit term, the permit as a minor permit modification.
are based on the yield goals for each 2006 proposed rule provided that These procedures apply to all permitted
specific crop, any crops or other uses whenever a CAFO makes any change to CAFOs, regardless of whether they are
newly added to the plan will require its NMP, the owner or operator would covered under an individual permit or
corresponding newly calculated rates of be required to provide the Director with under a general permit. These
application. In addition, because the the revised NMP and identify the procedures are discussed in greater
maximum rates of application must be changes from the previous version detail, below.
made available to the public for review submitted. Of course, any change to the As mentioned above, this final rule
prior to incorporation as terms of the CAFO’s implementation of its NMP that requires that whenever a CAFO makes
permit, consistent with Waterkeeper, does not constitute a change to the NMP any change to its NMP (see discussion
the addition of new crops or other uses itself would not be submitted to the in section III.C.3(e) of this preamble,
and their corresponding rates of Director. For example, for CAFOs ‘‘Changes to a Permitted CAFO’s
application is considered a substantial following the narrative rate approach, Nutrient Management Plan’’), the owner
change. any change in crop rotation or or operator must provide the Director
Finally, any change to site-specific substitution of crops in a given rotation with the revised NMP and identify the
components of the CAFO’s nutrient with alternative crops identified in the changes from the previous version
management plan that is likely to NMP for a given field would not be a submitted to the permitting authority.
increase the risk of nitrogen and change and thus would not need to be See 40 CFR 122.42(e)(6)(i). 40 CFR
phosphorus transport to waters of the submitted to the Director prior to 122.24(e)(6)(ii) requires the Director to
U.S. is a substantial change. The Agency implementation. then review the revised plan to ensure
recognizes a number of changes as Some commenters felt that substantial that it still meets the requirements of 40
potentially triggering this requirement, changes could be addressed by making CFR 122.42(e) and applicable effluent
including the following examples: (1) those changes part of the annual report. limitations and standards, including
Alternate timing of land application that For example, some commenters those specified in 40 CFR part 412. This
would diminish the potential for plant recommended that CAFOs using the rule also requires the Director to
nutrient uptake; (2) methods of land narrative rate approach be required to determine whether the changes
application not provided for in the NMP include information associated with the necessitate revision to the terms of the
addition of new crops in their annual NMP that were incorporated into the
calculation of amount of manure, litter,
reports. The annual report does not permit issued to the CAFO. If not, the
and process wastewater to be applied;
provide sufficient public notice for Director must notify the CAFO that the
(3) changes to conservation practices;
making changes to the terms of the permit does not need to be modified.
and (4) changes in the CAFO’s
NPDES permit. Those procedures are Upon such notification the CAFO may
procedures for handling, storage, or
detailed below. implement the revised nutrient
treatment of manure, litter, and process
management plan.
wastewater. The actual crop planted, (f) Process for Review of Changes to an If, on the other hand, the Director
timing and method of land application, NMP and for Modifying Terms of the determines that the changes to the NMP
crop uptake, and conservation practices NMP Incorporated Into the Permit do require that the terms of the NMP
utilized with respect to the land When a permitted CAFO operator that were incorporated into the permit
application areas are all key factors that revises its NMP, this rule requires the be revised, the Director must next
affect nitrogen and phosphorus runoff CAFO operator to submit the revised decide whether or not the change is
from the land application area. Changes NMP to the permitting authority for substantial. The Director will evaluate
to any of the planning considerations review and for the permitting authority the change based on the provisions in
listed above can directly (and to incorporate any revised terms of the § 122.42(e)(6)(iii) discussed above.
measurably) alter the outcome of the NMP into the permit. This rule includes Pursuant to 40 CFR 122.42(e)(6)(ii)(A),
decisions made in an NMP and the provisions that enable the Director to for non-substantial changes, the Director
efficacy of that plan in ensuring determine whether revisions to the must make the revised nutrient
appropriate agricultural utilization of CAFO’s NMP necessitate revisions to management plan publicly available and
those nutrients that are land applied. the terms of the NMP incorporated into include it in the permit record, revise
An advantage of the narrative rate the permit, and if so, whether such the terms of the nutrient management
approach is that it reduces the changes are substantial or non- plan incorporated into the permit, and
likelihood that changes to a CAFO’s substantial. This rule identifies several notify the owner or operator and inform
operation would result in a substantial specific types of changes that must be the public of any changes to the terms
change to the terms of the CAFO’s NMP. considered substantial changes to the of the nutrient management plan that
For example, a change to the method or NMP, and this preamble provides are incorporated into the permit. Upon
timing of application would be a further guidance for distinguishing such notification the CAFO may
substantial change to the terms of the between substantial and non-substantial implement the revised nutrient
NMP for CAFOs using the linear changes. This final rule also establishes management plan.
approach if the Director determines that a streamlined process for formal public If the changes to the terms of the NMP
it is likely to increase the risk of notice and comment that the permitting are substantial, the Director will also
nutrient transport to surface waters. For authority must follow for permit modify the permit as necessary by
a CAFO using the narrative rate modification when a CAFO is seeking to incorporating revised terms of the NMP,
approach, a change in the method or make substantial changes to the terms of but only after the public has had the
timing of application would not be a its NMP. Non-substantial changes to the opportunity to review and comment on
rwilkins on PROD1PC63 with RULES_2
change to the terms of the NMP, and terms of the NMP are not subject to the NMP changes pursuant to the
therefore not a substantial change, so public notice and comment before the requirements of 40 CFR
long as the methodology in the NMP permit is revised. Finally, this rule 122.24(e)(6)(ii)(B). The process for
(itself a permit term) accounts for the establishes provisions for incorporating public comments, hearing requests, and
change in method or timing. both substantial and non-substantial the hearing process if a hearing is
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70454 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
granted must follow the procedures for make timely nutrient management requirements. Such substantial changes
draft permits set forth in 40 CFR decisions. Some commenters suggested could include adding a new and
124.11–13. The Director must respond that the process for making such substantially different field or
to all significant comments received changes be streamlined or time-limited. increasing the animal headcount so as to
during the comment period as provided Other commenters requested that EPA exceed the previously identified
in 40 CFR 124.17, and require the CAFO provide flexibility to accommodate ‘‘maximum’’ amount of manure in the
owner or operator to further revise the existing State criteria and procedures for NMP. In addition, one commenter
nutrient management plan if necessary. determining and addressing substantial recommended that the permitting
Once the Director incorporates the changes. Some State commenters authority inspect the CAFO before
revised terms of the nutrient indicated that they already have allowing any substantial changes to the
management plan into the permit, the effective procedures in place. Some NMP.
Director must notify the owner or commenters simply asserted that the The final rule does not expressly
operator and inform the public. A State Director should have discretion provide that a permitting authority can
permit modification to revise the terms whether or not to require a permit pre-approve certain substantial changes,
of the NMP incorporated into the permit modification. unless they are specified in an NMP that
may be appealed in the same manner as The NPDES regulations at § 122.62 encompasses normal fluctuations or
the initial final permit decision. specifically require that any change to variations, because the Waterkeeper
The Director may establish by permit terms and conditions requires decision dictates that NMPs must be
regulation, or in the general permit for permit modification to be subject to subject to permitting authority review
CAFOs authorized under a general public review and comment procedures, and the terms of the NMP available for
permit, an appropriate period of time for unless it falls under a minor public comment. In addition, EPA does
the public to comment and request a modification listed at 40 CFR 122.63. In not believe an inspection is needed
hearing on the proposed substantial this rule, EPA has accounted for the prior to allowing any substantial change
changes to the terms of the nutrient frequent operational changes unique to to an NMP. Apart from the burden this
management plan incorporated into the CAFOs which are not typical for other would entail, EPA expects that self-
permit that differs from the time period NPDES-regulated industries. This reported information is credible and
specified in 40 CFR 124.10. EPA is tailoring is an effort to balance notes that there are significant penalties
providing this discretion to the Director environmental protection with the for submitting false or misleading
to allow CAFOs to implement revised burden to CAFOs and permitting information.
nutrient management practices in authorities as well as the need to allow Many commenters supported the
accordance with growing seasons and other operational changes that would proposal that non-substantial changes
other time sensitive circumstances. As not trigger the substantial modification would require only that the CAFO
is stated above in section III.C.3(b) of requirements. submit a revised NMP and that the
this preamble regarding public review of The process in this rule for making permitting authority would notify the
NMPs during the general permit changes to NMPs and incorporating public of the change without allowing
process, the public will have an such changes in permits is necessary as for public comment. Commenters
opportunity to comment on the a result of the Waterkeeper decision, encouraged EPA to clarify that, upon
sufficiency of the time period when the which held that terms of the NMP are submission, the CAFO may proceed to
Director proposes it, either in the effluent limitations and that the CWA implement such changes if the CAFO
regulations or general permit. requires that the terms of each NMP be believes they are non-substantial. Many
Because the process in incorporated into a corresponding commenters stated that there is a need
§ 122.42(e)(6)(ii) allows for public permit and be subject to public notice to ensure that CAFOs can quickly make
review of substantial changes to the and comment and permitting authority changes to NMPs. One commenter
terms of nutrient management plans and review. Within this context, EPA has recommended that EPA allow CAFOs to
the underlying data and calculations, worked to streamline the process to the accumulate minor changes and submit
the incorporation of changes to the extent possible. This includes them as a group when renewing their
permit through this process will be promulgating a process for revising permit. Another commenter suggested
treated as a minor permit modification, NMPs that delineates what are that any changes incurred during a
under 40 CFR 122.63(h), and not require substantial changes to the terms of the given year be reported in an annual
additional review. EPA considered NMP and allows non-substantial NMP update form. EPA decided that,
requiring that any change to the NMP be changes to proceed in an expedited because the terms of the NMP are
considered a permit modification manner. It also includes provisions that enforceable terms and conditions of the
subject to procedures under 40 CFR allow a CAFO to develop NMPs with permit, CAFOs must submit changes to
122.62, but rejected this interpretation operational contingencies to minimize the NMP to the permitting authority and
as it would significantly limit the number of substantial changes that receive approval before a change is
permitting authorities and CAFO must be made. As explained herein, the made, not annually or at the beginning
operators’ ability to make necessary and process and criteria in 40 CFR of each new permit cycle.
timely minor changes to NMPs as 122.42(e)(6) are reasonable and Commenters were generally
discussed above. necessary to provide permitting unsupportive of the proposed 180-day
Commenters identified several issues authorities an effective mechanism to temporary approval period for
associated with the proposed process for maintain linkage between the NMP and implementation of certain substantial
making substantial changes to NMPs. the permit in a manner consistent with changes. Numerous commenters stated
Several commenters indicated that the the Waterkeeper decision. that this would not be helpful to CAFO
need for the permitting authority to Commenters suggested changes to the owners because they would be hesitant
rwilkins on PROD1PC63 with RULES_2
review, provide public notice and process in the 2006 proposed rule. to invest significant amounts of money
comment, and approve substantial Several commenters requested that EPA to make substantial changes based only
changes to NMPs will likely result in approve certain substantial changes as on a temporary approval, since final
significant delays which will impact the long as the CAFO continues to comply approval would remain subject to an
operational ability of many CAFOs to with all applicable technical uncertain regulatory status. Others
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requested clarification regarding what be diligent in reviewing and making amounts of manure, litter, and process
happens if a change is implemented and determinations regarding such changes. wastewater to apply.
then not approved. Some of these Many commenters supported the use
(g) Annual Reporting Requirements of additional annual reporting
commenters suggested as an alternative
that EPA require the permitting In the 2006 proposed rule, EPA requirements to address either non-
authority to process the applications in discussed the use of annual reports to substantial changes or all changes to the
fewer than 45 days, and then allow balance greater flexibility for CAFO NMP. States also generally supported
seven days of public review. operators in making cropping decisions such an approach and sought flexibility
Another commenter stated that the with ensuring appropriate permitting regarding the content and use of the
temporary approval period is authority and public oversight of permit process to address other changes to the
inadequate because 180 days is longer compliance. The preamble solicited NMP. Another commenter noted that if
than the crop growing season. This comment as to whether the annual CAFOs are allowed to provide
commenter observed that the temporary report requirements should be modified alternative management scenarios in the
approval would allow CAFOs to change to require all permitted CAFOs to original NMP, the CAFO must be
their entire land application patterns for submit information in their annual required to submit documentation to the
an entire crop season without having reports indicating how the CAFO Director to specify which practices it is
public comment and review by the achieved substantive compliance with using from the ‘‘menu’’ of combinations
permitting agency. This commenter the terms of the NMP as set forth in the in its NMP. This would allow the
suggested that CAFOs plan in advance permit. In the 2008 supplemental permitting authority and the public to
for any substantial changes and that proposal, the Agency proposed know what practices the CAFO is
only if the substantial changes are the additional annual reporting actually implementing at any given
result of unforeseen circumstances requirements for CAFOs that relate to time.
outside the control of the CAFO, should the proposed provisions regarding the Although EPA recognizes that NMPs
terms of the NMP. may change throughout the period of
it be allowed temporary approval.
permit coverage, as discussed above in
Based on comments, EPA reevaluated In this action, the Agency is
section III.C.3(e), the annual report
the usefulness of the 180-day temporary establishing additional annual report
requirements are only appropriate for
approval. In light of the comments, EPA requirements, in 40 CFR
use in addressing implementation of
recognizes that such an approach may 122.42(e)(4)(viii), mandating all
existing NMP provisions and changes to
be problematic for both industry and permitted CAFOs to include in their
the NMP contemplated through
permitting authorities. Some industry annual reports the actual crop(s) planted
flexibilities built into the NMP during
commenters stated that the 180-day and actual yield(s) for each field, the the initial planning process or
grace period would be meaningless actual nitrogen and phosphorus content subsequent modifications in accordance
because no operator would employ of the manure, litter, and process with 40 CFR 122.42(e)(6). Because this
expensive changes without knowing if wastewater, and the amount of manure, rule requires the terms of the NMP to be
they would be approved. States litter, or process wastewater applied to incorporated as enforceable terms and
commented that any permit each field during the previous 12 conditions of the permit, an outcome of
modification must be approved before it months. The Agency believes that it is the Waterkeeper decision, changes to
is implemented. There is no important for the permitting authority to the terms of the NMP constitute changes
requirement precluding operators from obtain this information on an annual to the permit and therefore must be
purchasing new land; rather, practices basis in order to ensure that the CAFO processed according to § 122.42(e)(6), as
on the land cannot be employed until has been operating in compliance with discussed above in section III.C.3(e).
approved by the permitting authority. the terms of its permit. The annual Some commenters expressed concern
Further, EPA encourages operators to report will inform the Director and the that CAFOs would be unable to
take advantage of the exception for public how the CAFO has operated, complete more detailed reports and
substantial changes relating to the given the flexibility for the terms of the provide the information necessary to
addition of new land application areas NMP incorporated into the permit. document changes to the NMP, and that
provided in § 122.42(e)(6)(iii)(A). Thus, The Agency is also requiring CAFOs some of the reporting requirements
EPA has not included the proposed 180- that follow the second (‘‘narrative rate’’) would be redundant. Some commenters
day temporary approval period in the approach for describing rates of also believed that reporting crop yields
final rule. application in the NMP to submit as would be overly intrusive and would
Under this final rule, when a CAFO part of their annual report the results of not be representative of the NMP
submits changes to an NMP to the all soil testing and concurrent effectiveness. In this rule, EPA has
permitting authority, the Director must calculations to account for residual modified the content of the annual
determine whether the changes affect nitrogen and phosphorus in the soil, all report to supplement the existing
the terms of the NMP incorporated into recalculations, and the new data from annual report requirements promulgated
the permit, and if so, whether such which they are derived. The CAFO is in 2003 so as to allow the public and the
changes are substantial. Depending on required to report the amounts of permitting authority to review whether
this determination, the process and manure, litter, process wastewater and the CAFO has implemented the NMP in
timing of modifying a permit will vary. the amount of chemical fertilizer accordance with the terms and
A CAFO owner or operator must remain applied to each field during the conditions of its permit. This approach
in compliance with his or her permit preceding 12 months. Together with the balances the recognized need to provide
and, thus, should work closely with the total amount of plant available nitrogen additional flexibility and the need for
permitting authority and should initiate and phosphorus from all sources, the CAFOs to provide information
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this coordination as early as possible. information that is required to be concerning actual rates of application.
EPA believes that permitting authorities included in the annual report provides The additional information required in
will be sensitive to the needs of CAFOs the information necessary to determine this final rule is a limited burden on
to make a range of changes to NMPs that the CAFO was adhering to the both the CAFO and the permitting
from time to time and, as a result, will terms of its permit when calculating authority that will provide public access
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70456 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
to information about NMP States generally agreed with the single tool, it would remain the CAFO
implementation throughout the period concept of using a consistent, stable operator’s responsibility to provide that
of permit coverage. For example, crop template but wanted assurance that it is information to the Director in order to
yield goals are a critical factor in strictly a voluntary tool and can be meet the requirements of this rule,
developing rates of application. Other modified to better address specific State inasmuch as USDA does not make
commenters expressed concern that requirements. Additionally, commenters facility-specific information available to
facilities might overstate crop yields stated that the draft template failed to other agencies or the public. EPA will
goals. As previously mentioned, by address all of the regulatory encourage the use of the MMP to
making information about actual crop requirements and should be modified facilitate the development and review of
yields public, both the Director and the accordingly by including additional NMPs under the NPDES permit
public will have better information technical portions. Other commenters program.
when evaluating NMPs for subsequent suggested that a template would The MMP software, under
permit coverage. unnecessarily micromanage the development by a grant from EPA and
structure or content of NMPs and that USDA to Purdue University, is a
(h) EPA Nutrient Management Plan computer program that would provide
Template States should have the responsibility to
define effective nutrient management permitting authorities and producers
As described in the 2006 proposed strategies. Other commenters mentioned with a mix of programs, not currently
rule, EPA developed a draft template, the need to keep the template flexible available elsewhere, to assist in CNMP
made available in the rulemaking public because NMPs are dynamic documents and/or NMP development. The objective
record for public comments, which that change rapidly, and a plan that is of this effort is to accelerate the CNMP
could be used as a voluntary tool to too detailed will bind the producer to and NMP development process by
facilitate completion of the NMP by practices that, if altered, would require integrating other software programs
CAFO permit applicants, as well as to costly revisions and reviews. A few used to calculate manure application
facilitate review by the permitting commenters also indicated that the rates. Among these technologies are
authority. As discussed in the proposed format and sequence for providing RUSLE II, the Phosphorus Index (PI),
rule, EPA believed that such a template information within the draft template and other State-specific risk assessment
would help to systematically organize was disjointed and inconsistent with the tools used in CNMP and NMP
the information necessary to satisfy the nutrient management planning process. development. In the longer term it is
NMP requirements in the regulation. Other State commenters did offer, planned that additional integration will
Some commenters supported the however, that the template may be be achieved with planning,
concept of a voluntary NMP template adequate for most public participation recordkeeping technologies and
and considered the draft template an processes. connectivity to the USDA Customer
excellent user-friendly model. Other Service Toolkit. The MMP program
After considering public comments, incorporates field-specific data tables
commenters disagreed, stating that the EPA, in coordination with USDA, has
detailed information required in the that allow the producer to list the type
decided not to utilize the draft template. of crops planned, crop rotation by
draft template would be quickly Instead, the two agencies have worked
outdated. Other comments received on planting season, nutrients available for
on the development of a planning tool each crop based on previous manure
the NMP template include the that would generate a single document
following: applications, and the rate of application
that meets the objectives of both
• A ‘‘one size fits all’’ template does per crop. These data tables could
agencies. The one document would provide permitting authorities with
not lend itself well to the different
include the required elements of an specific information that could be
climates and terrains across the country,
NMP as well as the elements of a extracted as terms of the NMP that
and use of the template should not be
voluntary comprehensive nutrient would be inserted into a permit. It also
required by the regulation;
• The draft template lacked specific management plan (CNMP) developed in provides producers the flexibility to
information to ensure that CAFOs are accordance with USDA technical comply with the optional approach of
meeting technical standards and the guidance. A CNMP is a plan much like calculating application rates as pounds
ELGs; the NMP required by EPA’s CAFO of nutrients by developing tables with
• The draft template was too long and regulations. There are some minor expanded crop contingency plans and
appeared to be more of an inspection differences between the scope of the two related application rates. See section
checklist than a basic guideline; documents, such as a CNMP option to III.C.3(c) for detailed discussion of
• A concern that some States may include feed management plans (which nutrient management plan terms.
actually adopt the template, once are not required for the NMP) and an EPA and USDA anticipate that the
completed, as the required NMP format; NMP requirement to include chemical MMP software can eventually be
• The template could be a valuable handling plans (which are not part of a tailored to all individual State technical
tool to clearly differentiate between the CNMP). However, the EPA and USDA standards, requirements and
terms of the NMP, for purposes of agree that there is no reason why one circumstances. At present, the program
incorporation into the permit, and the document could not suffice for both the has been tailored to approximately 34
background information; CNMP and NMP by accommodating States, and is available and ready for use
• The template would be more both agencies’ requirements. To that in those States. EPA and USDA plan on
beneficial if it is standardized through end, EPA, in partnership with USDA, is updating and improving the MMP
the use of a computer program which in the process of coordinating the software and tailoring it to other States.
allows ease and flexibility in making information necessary to complete an When completed, the MMP software
changes to the NMP; and NMP as well as a CNMP and developing will be a user-friendly program available
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• The template could be useful to an a software program that could integrate without charge. It is strictly a voluntary
unpermitted CAFO to identify land both sets of planning requirements, tool. There may be some situations at a
application practices needed to qualify known as Manure Management Planner livestock operation, such as varying
for the agricultural stormwater (MMP). Of course, even though both terrains and unusual cropping
exemption. agencies would promote the use of a sequences, which the MMP cannot
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70457
accommodate; thus the program may seek permit coverage under the revised would provide a comparative advantage
not, at present, be a good fit for all duty to apply provision in this rule (40 to those CAFOs that have not made
operators. Permitting authorities and CFR 122.23(d)(1)), the land application capital improvements and promote
producers may still choose to use an requirements at 40 CFR 412.4(c) apply interstate discrepancies that undermine
established State NMP software program immediately because new sources are the integrity of State CAFO programs.
or other technical standards methods to subject to the NSPS under 40 CFR In this final rule, EPA is not extending
develop and implement their NMP. 412.35 and 412.46, which do not the February 27, 2009, compliance
More information on MMP can be found include a delayed date for new sources deadlines. EPA believes that the time
at the Purdue University Web site, to come into compliance with § 412.4(c). between publication of this final rule
http://www.agry.purdue.edu/mmp/. The 2003 rule did not delay compliance and February 27, 2009, is adequate for
EPA and USDA are also developing a with the land application requirements unpermitted CAFOs that discharge or
national nutrient management planning for new sources. See CWA section propose to discharge to develop an NMP
course that will cover how to develop, 306(e). and seek permit coverage. EPA notes
review, and implement an NMP and EPA received comments on the 2006 that most of the technical provisions of
how to use the MMP software program. proposed rule related to the July 31, the 2003 CAFO rule (e.g., the
2007, compliance dates in place at that substantive NMP requirements) were
D. Compliance Dates
time. The comments received generally unaffected by the Waterkeeper decision,
Following issuance of this rule, focused on two issues: (1) That the and therefore CAFOs have already had
authorized States have up to one year to permit application date did not allow the information they need to develop
revise, as necessary, their NPDES enough time for States to revise their NMPs and have not needed to wait for
regulations to adopt the requirements of permitting programs, and (2) that the further EPA action before doing so. In
this rule, or two years if statutory date did not allow CAFO operators States where general permits have been
changes are needed, as provided in 40 sufficient time to develop permit issued and have not expired, eligible
CFR 123.62. States are not required to applications and NMPs. Many CAFOs may seek permit coverage under
adopt the provisions for no discharge commenters stated that it would not be applicable existing general permits.
certification in this time period. possible for CAFOs to seek coverage Where general permits are not available,
As discussed above in section II.E, under an NPDES permit by July 31, CAFOs may seek permit coverage by
EPA has twice extended certain 2007, and that the deadline should be submitting an individual permit
compliance dates originally established extended. A number of extension application. As mentioned above, 40
in the 2003 CAFO rule. Following the periods were suggested ranging from CFR 123.62(e) provides that States will
Second Circuit Court’s decision in several months to up to two years after have one year from the promulgation
Waterkeeper Alliance et al. v. EPA, 399 promulgation of the final rule. date of this final rule, or two years if
F.3d 486 (2d Cir. 2005), the Agency Rationales for extending the dates statutory changes are needed, to adopt
extended dates for newly defined included the need to allow States to the requirements of this final rule.
CAFOs to seek permit coverage and for revise their programs to fully reflect During this interim period, EPA expects
all permitted CAFOs to develop and CAFO regulations (which, in turn, States to issue permits that comply with
implement NMPs to July 31, 2007. 71 allows CAFOs to know what all technical requirements of the 2003
FR 6978 (February 10, 2006) (hereinafter requirements apply to them), limited rule that were unaffected by the
the ‘‘2006 date change rule’’). technical assistance, and the need for Waterkeeper decision and, absent
The 2006 proposed rule did not adequate time to develop an NMP in the regulatory or statutory barriers, to
anticipate a need to revise the July 31, period between rule promulgation and provide for NMP submission, public
2007, compliance dates established by the deadline for seeking permit review of NMPs, and incorporation of
the 2006 date change rule. However, as coverage. Commenters asserted that the NMP terms into the permit. EPA is
a result of an array of public comment CAFO owners and operators cannot committed to working with States to
on the issues raised by the Waterkeeper know the precise requirements for implement CAFO permitting
decision, EPA was unable to complete NMPs, or the associated documentation requirements.
this final rule prior to July 31, 2007. and public participation requirements, The CWA does not allow any CAFO
EPA published a second revision of the until the rule is final. EPA promulgated to discharge without a permit,
compliance dates on July 24, 2007, the 2007 date change rule with these regardless of whether a permit
extending the dates from July 31, 2007, comments in mind. application has been submitted. EPA
to February 27, 2009. 72 FR 40,245 (July In the 2008 supplemental proposal and States have a range of tools to help
24, 2007) (hereinafter the ‘‘2007 date (73 FR 12,336) EPA solicited comments regulated entities come into compliance
change rule’’). The 2007 date change on its intention to not extend the with new rules including outreach,
rule does not affect the applicable time compliance deadlines beyond February compliance assistance, compliance
for seeking permit coverage for existing 27, 2009. Some commenters stated that incentives and compliance monitoring.
facilities defined as CAFOs prior to the the deadline should be extended in For new rules EPA generally focuses on
2003 CAFO rule, nor does it apply to order to allow States to adapt their outreach initially. Where EPA becomes
newly constructed CAFOs not subject to existing programs. Others noted that aware of particular instances of
new source performance standards more time would be needed for CAFO noncompliance, EPA may pursue
(NSPS) or to new source CAFOs subject owners and operators to implement appropriate enforcement. Since 2005,
to NSPS that discharge or propose to such complex rules and come into EPA has designated unpermitted CAFOs
discharge. The February 27, 2009, compliance. A number of extension subject to the 1976 rule as an
compliance dates also do not affect the periods were suggested ranging from enforcement priority and continues to
approximately 9,000 CAFOs currently several months to up to two years after focus its efforts on those facilities. With
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covered under existing permits. promulgation of the final rule. respect to CAFOs subject to permitting
Furthermore, for Large CAFOs that are Commenters were opposed to an as of February 27, 2009, EPA would take
new sources (i.e., those commencing extension of the deadlines; did not want into consideration whether a permit
construction after the effective date of to further delay the environmental application has been submitted and
the 2003 CAFO rule) and are required to benefits; and noted that an extension whether the entity is operating in
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70458 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
accordance with its NMP and all other However, the court seemed troubled by § 122.23(e) in order for the remaining
applicable requirements of the 2003 certain statements in the 2003 preamble wet weather (‘‘precipitation-related’’)
CAFO rule and this final rule. that it thought might address how discharges to be ‘‘agricultural
WQBELs apply to other CAFO stormwater discharges.’’ As previously
E. Water Quality-Based Effluent
discharges. The court therefore explained, agricultural stormwater
Limitations
remanded the question of whether or discharges are exempt from the
Water quality-based effluent not, and why, WQBELs are needed to definition of ‘‘point source’’ of section
limitations (WQBELs) are one of two assure attainment or maintenance of 502 of the CWA and are therefore not
fundamental types of limitations water quality standards as provided in subject to permitting requirements
imposed in NPDES permits. The other is section 302(a) of the CWA. under the CWA, including WQBELS.
technology-based effluent limitations. In the preamble to the 2006 proposed Thus, any precipitation-related
NPDES permits are required to contain rule, EPA responded to the remand by discharge from land application areas
technology-based limitations and, if the clarifying that discharges from CAFOs remaining after compliance with the
technology-based limitations are that are not exempt from CWA technology-based effluent limitations
insufficient to meet applicable water permitting requirements as agricultural and permit conditions required
quality standards, more stringent water stormwater discharges are subject to pursuant to § 122.42(e)(1)(vi)–(ix) are
quality-based effluent limitations NPDES requirements, including exempt from CWA permitting
(WQBELs). CWA section 301(b)(1)(C), WQBELs. EPA clarified the applicability requirements as agricultural stormwater,
33 U.S.C. 1311(b)(1)(C); and 40 CFR of WQBELs both with respect to land and these technology-based effluent
122.44(d). While technology-based application areas under the control of a limitations constitute the entirety of the
limitations are calculated taking into CAFO and with respect to discharges federal NPDES permit requirements
account the availability or effectiveness from a CAFO’s production area. with respect to land application of
of treatment technologies and/or their manure, litter, and process wastewater.
associated costs, WQBELs are 1. Discharges From Land Application
Areas However, it is possible that a State may
established without consideration of have additional requirements under its
availability or effectiveness of treatment As explained in section III.B. above, own State regulatory authorities that
technologies or the costs that discharges under the 2003 rule, the agricultural would go beyond the scope of the
would incur to meet such limits. stormwater discharge exemption applies federal NPDES program. Thus, such
Arkansas v. Oklahoma, 503 U.S. 91 only to precipitation-related discharges agricultural stormwater discharges,
(1992); Westvaco v. EPA, 899 F.2d 1383 from land application areas under the though not subject to federal NPDES
(4th Cir. 1990). control of the CAFO where application regulation, could be subject to
The environmental petitioners of manure, litter, or process wastewater additional State requirements, including
challenged the 2003 rule as violating is in accordance with appropriate additional requirements related to water
both the CWA and the Administrative nutrient management practices as quality. 33 U.S.C. 1370 and 40 CFR
Procedure Act by failing to promulgate specified in 40 CFR 122.42(e)(1)(vi)–(ix). 123.1 and 123.25. These requirements,
WQBELs for CAFO discharges and by Any other discharge from land however, would not be viewed as
being ambiguous as to whether States application areas under the control of a WQBELs as that term is used under the
may promulgate WQBELs for CAFO CAFO is a point source discharge from CWA. Nor would these State-law
discharges. As explained in II.C.3 above, the CAFO. 40 CFR 122.23(e). These requirements be federally enforceable.
the Waterkeeper Court agreed in part point source discharges from land 40 CFR 123.1(i)(2).
with petitioners, and remanded the rule application areas are subject to NPDES
for clarification regarding the permitting requirements, including 2. Production Area Discharges
applicability of WQBELs for CAFO WQBELs where necessary to meet EPA also explained in the preamble to
discharges that are not exempt as applicable water quality standards. the 2006 proposed rule that permit
agricultural stormwater, to explain why In most instances, a CAFO that meets writers may require WQBELs in
EPA justified its decision not to technology-based permit limits appropriate cases to further limit
promulgate WQBELs for discharges requiring manure to be applied at discharges from CAFO production areas.
other than agricultural stormwater, and appropriate agronomic rates will As EPA stated in the 2003 rule, the
to clarify whether the CAFO rule bars eliminate all or most dry weather exclusion for agricultural stormwater
States from requiring WQBELs for such discharges. If such discharges remain, does not apply to discharges from the
discharges. Waterkeeper Alliance et al. the permit writer will determine the CAFO production area. 40 CFR
v. EPA, 399 F.3d 486, 522–524 (2d Cir. need for additional WQBELs to meet 122.23(e) and 68 FR 7198. Because the
2005). applicable water quality standards ELGs allow occasional overflow
As EPA stated in the preamble to the based on the circumstances of each discharges from properly designed,
2006 proposed rule, the only issue that particular case. operated, and maintained lagoons and
EPA addressed in the 2003 rule with Although EPA, in the 2003 rule storage ponds, the technology-based
respect to WQBELs was their preamble, encouraged States to address limitations in the ELGs may not be as
applicability to agricultural stormwater water quality protection issues in setting stringent as necessary to meet
discharges. EPA had explained in 2003 technical standards for appropriate land applicable water quality standards. In
that, because agricultural stormwater application practices (see Waterkeeper, that case, a WQBEL would be
discharges are not point source 399 F.3d at 523, citing 68 FR 7198), EPA appropriate. 40 CFR 122.44(d). For
discharges, agricultural stormwater did not intend to change the basic example, a facility subject to ELGs in 40
discharges cannot be subject to NPDES regulatory scheme of the NPDES CFR part 412, subpart C is allowed to
permit requirements, including either program. With respect to wet weather discharge from the production area,
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technology-based limitations or discharges, under 40 CFR 122.42(e)(1), provided the production area is
WQBELs if technology-based limitations the permit must already include effluent designed, constructed, operated, and
are insufficient to meet applicable water limitations defining the ‘‘site-specific maintained to contain all process
quality standards. The Second Circuit nutrient management practices’’ wastewater plus any stormwater runoff
Court of Appeals agreed with EPA. required to be implemented under resulting from the 25-year, 24-hour
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70459
storm. Thus, WQBELs would be design specifications and operational The Second Circuit Court of Appeals
necessary in a particular permit to parameters and must be based on a remanded aspects of the NSPS to the
further limit such discharges beyond the technical evaluation of the adequacy of Agency, holding that there was not
levels that are required under the CAFO the CAFO’s storage structure for adequate support in the record for the
ELGs, if necessary for the discharge to achieving no discharge of manure, litter, alternative standards. Specifically, the
meet applicable water quality standards. or process wastewater into waters of the court directed EPA to clarify the
In the preamble to the 2006 proposed U.S. The new provision prescribes in statutory and evidentiary basis for
rule, EPA indicated that for CAFOs in detail the elements of that technical allowing CAFOs to comply with a no
the swine and poultry sectors subject to evaluation. A facility designed, discharge NSPS through either a
New Source Performance Standards constructed, operated, and maintained production area containment structure
(NSPS) in part 412, subpart D, permits in accordance with these effluent or an alternate performance standard.
could not require WQBELs for limitations will meet the NSPS With respect to the 100-year storm
production areas, because the NSPS requirement for no discharge. standard, the court noted that while
already prohibit all production area This provision will have several certain studies showed that production
discharges from these new sources. 71 positive ancillary effects. Some CAFOs area BMPs would have substantially
FR 37,744, citing 40 CFR 412.46(a). may be reluctant to use innovative prevented the production area
Some commenters, however, urged EPA technologies that incorporate open discharges documented in the record,
to reconsider its position given a storage as part of their manure substantially preventing discharges is
possibility of a discharge even from management system in view of the no not the same as no discharge. With
CAFOs subject to a no discharge discharge requirements of Subpart D. respect to the alternative performance
standard. Nothing in this rule limits the This provision creates an incentive for standards, the court held that EPA had
Director’s authority to include any more the use of innovative technologies to not justified its decision to allow
stringent limitation than the NSPS in a meet the no discharge requirement by compliance with the no discharge
CAFO’s permit when necessary to meet providing an up-front determination standard through an alternative
applicable water quality standards that the CAFO will meet the no standard that permits production area
pursuant to CWA section 301(b)(1)(C). discharge requirement prior to discharges so long as the aggregate
Nonetheless, EPA continues to believe potentially expensive construction. pollution to all media is equivalent to or
that WQBELs would not be needed for Second, in the case of new source lower than that resulting from the
swine and poultry CAFOs subject to the Subpart D CAFOs that do apply for a baseline standards. The court further
no discharge NSPS. The provisions for permit, this provision provides for an held that EPA did not provide adequate
implementing the NSPS BMP-based up-front determination subject to public notice for either of these provisions
effluent limitation, based on advanced participation as part of the permitting under the CWA’s public participation
modeling, are meant to improve proceeding, that the CAFO will meet the requirements. See 33 U.S.C. 1251(e)
implementation of this provision by no discharge requirement. Finally, (public participation in the
promoting up-front design, because facilities subject to no discharge development, revision, and enforcement
construction, operation, and of manure, litter, or process wastewater of any regulation, standard, effluent
maintenance to ensure that predictable pollutants into waters of the U.S. may limitation, plan, or program established
discharges do not occur. Permitting choose not to obtain a permit, and by the Administrator or any State under
authorities have full authority and therefore are not eligible for upset and this Act shall be provided for,
responsibility to determine if the bypass defenses, the protection afforded encouraged, and assisted by the
facility’s demonstration is adequate. by this provision provides an incentive Administrator and the States).
Therefore, as a practical matter, EPA for CAFOs to obtain a permit.
finds it difficult to imagine 2. This Final Rule
1. Background This final rule makes the following
circumstances in which such a
limitation would be necessary for The 2003 CAFO rule established changes to the 2003 NSPS in subpart D.
permitted CAFOs subject to this NSPS NSPS for swine, poultry, and veal calf First, EPA is deleting 40 CFR
no discharge standard. CAFOs as ‘‘no discharge of manure, 412.46(a)(1) that allowed subpart D
litter, or process wastewater pollutants CAFOs subject to NSPS to meet the no
F. New Source Performance Standards into waters of the U.S. from the discharge standard through the use of a
for Subpart D Facilities production area.’’ The rule provided 100-year, 24-hour rain event
This action responds to the Second two compliance alternatives that containment structure. In a conforming
Circuit’s remand of certain aspects of allowed a CAFO in these categories to change, EPA is also modifying 40 CFR
the 2003 New Source Performance meet this requirement by showing that 412.37(a)(2) to remove the reference to
Standards (NSPS). First, EPA has either (1) its production area was such structures from § 412.37(a)(2). EPA
deleted the remanded provisions that designed, constructed, operated, and is, however, retaining the requirement
authorized two alternatives for maintained to contain all manure, litter, in § 412.37(a)(2) that all open surface
compliance with the NSPS requirement or process wastewater, and precipitation liquid impoundments have a depth
for no discharge of manure, litter, or from the 100-year, 24-hour storm, or (2) marker. The land application
process wastewater into waters of the it would comply with ‘‘voluntary requirements for new sources remain
U.S. from the production area. Second, superior environmental performance unchanged.
EPA is promulgating a new provision standards’’ based on innovative The record for the 2003 NSPS showed
that would allow a CAFO using an open technologies. The ‘‘voluntary superior that new facilities routinely include
surface manure storage structure to environmental performance standards’’ systems and employ practices that result
request the NDPES permitting authority provision would allow a discharge from in no discharge of manure, litter, or
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to establish site-specific effluent the production area if the discharge was process wastewater pollutants into
limitations for its NPDES permit that accompanied by an equivalent or greater waters of the U.S. from the production
incorporate the NSPS no discharge reduction in the quantity of pollutants areas. Based on this information, EPA
requirement. These best management released to other media (e.g., air determined that a no discharge standard
practices effluent limitations include emissions). represented the best available
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demonstrated control technology for Specifically, EPA proposed to determination will also be subject to
new sources. EPA now recognizes that authorize permit writers, upon request judicial review as would be the case
a system that is properly designed, by a CAFO, to establish no discharge with any other final permit decision.
constructed, operated, and maintained BMP effluent limitations on a case-by- Second, the argument that site-
to contain precipitation from the 100- case basis when a facility demonstrated specific no discharge limitations are not
year, 24-hour event may still discharge through a rigorous modeling analysis true no discharge limitations reflects a
as a result of multiple unusual and that it could design, construct, operate, fundamental misunderstanding on
severe precipitation events. Given the and maintain an open containment commenters’ part. Commenters fail to
record information, EPA now agrees that system that would comply with the no recognize that the provision allowing
a system designed, constructed, discharge requirement. When a facility site-specific, no discharge effluent
operated, and maintained to contain complied with all of the site-specific limitations essentially places a CAFO
precipitation from the 100-year, 24-hour design, construction, operation, and with such limitations in the same
storm event is not necessarily maintenance components of such a position as a CAFO without such
equivalent to no discharge and has system—all of which are conditions of limitations. Commenters have
consequently deleted this provision. its permit—the CAFO would be deemed apparently forgotten that, even in the
Second, EPA is deleting 40 CFR to be in compliance with the no absence of a provision like that
412.46(d) to remove the alternative discharge requirement even in the event promulgated today, permitted facilities
voluntary superior performance NSPS of an unanticipated discharge. EPA is that are subject to no discharge effluent
for new swine, poultry, and veal calf promulgating the provision in limitations may discharge and not be
sources in light of the Second Circuit essentially the same form as it was subject to an enforcement action (or
Court of Appeals ruling. proposed. have a defense to any enforcement
Commenters raised a number of action) in certain uncontrollable and
Third, EPA is promulgating a new
concerns with this provision. unforeseeable circumstances. The 2003
provision that authorizes the permitting
Commenters asserted that the CAFO rule specifically provided for the
authority to develop a site-specific, no
alternative provision creates an availability of an upset/bypass defense
discharge NSPS for new CAFO’s using
exception to the no discharge from an enforcement action. See 40 CFR
open storage containment structures.
requirement. Some commenters viewed 412.47(a)(3) (‘‘Provisions for upset/
Thus, this rule provides that the NPDES
the modeling exercise as an ineffective bypass as provided in 40 CFR
Program Director may establish no substitute for meeting effluent 122.41(m)–(n) apply to a new source
discharge best management practice limitations. Commenters also subject to this provision.’’).
effluent limitations based upon a site- questioned the enforceability of the Thus, EPA NPDES regulations
specific evaluation for an individual alternative provision if a new source currently would provide a defense to an
CAFO. CAFOs may request permit would have a discharge. enforcement action, albeit in severely
writers to establish no discharge best A number of reasons support EPA’s restricted circumstances, for discharges
management practice effluent decision to promulgate this provision from any permitted new source CAFO.
limitations on a case-by-case basis when and should allay commenters’ concerns. Under the 2003 rule, ‘‘no discharge’’ for
the facility demonstrates through a First, the alternative provision requires those facilities, in fact, means no
rigorous modeling analysis that it has a CAFO to demonstrate to the discharge except in certain narrowly
designed a containment system that will satisfaction of the permitting authority, prescribed circumstances. The
comply with the no discharge after public notice and comment on the demonstration required under this rule
requirement. After such site-specific demonstration, that its open storage to support the establishment of
standards are established, a facility will system is a no discharge system. In alternative site-specific no discharge
be in compliance with the no discharge order for a new CAFO employing an limitations is designed to show that
requirement if its containment system open storage system to obtain no there will be no discharge from the
has complied with all of the specified discharge BMP effluent limitations, the CAFO except in exactly the
site-specific design, construction, CAFO must demonstrate that the circumstances provided in EPA’s upset/
operation, and maintenance entirety of its operation including its bypass regulations and described under
components of such a system production area, site-specific NMP and the 2003 rule.
demonstrated to meet the no discharge other best management practices are Under EPA’s regulations, an ‘‘upset’’
requirement. designed to ensure no discharge from is defined as ‘‘an unintentional and
3. EPA’s Decision To Authorize Site- the entire CAFO. Because this temporary noncompliance with
Specific, No Discharge Effluent demonstration must be based on the use technology based permit effluent
Limitations of a prescribed model and precipitation limitations because of factors beyond
data for 100 years, any showing of no the reasonable control of the permittee.’’
In its 2006 proposal, EPA proposed an discharge will necessarily account for a 40 CFR 122.41(n). Under the
alternative no discharge requirement wide range of circumstances. Given the regulations, the upset defense to an
that would authorize the NPDES stringency of the required modeling enforcement action would not be
Program Director to establish no exercise, described more fully below, a available to the extent that the
discharge, BMP effluent limitations successful no discharge demonstration noncompliance with permit conditions
based upon a site-specific evaluation for means that the site-specific limitations, was due to operational error, an
an individual CAFO. A complete in fact, are equivalent to a no discharge improperly designed treatment system,
discussion of the proposal may be found requirement. Moreover, because this inadequate treatment system, improper
at 71 FR 37,760–62. Such limitations demonstration will be subject to public maintenance or careless and improper
would provide an alternate approach for participation requirements that apply to operation. 40 CFR 122.41(n)(1).
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CAFOs to meet the no discharge any permitting proceeding, commenters This rule adopts requirements for an
requirement through limitations are assured that there will be an upfront demonstration that parallel the
designed to ensure no discharge of opportunity for public review of the conditions under which an upset/
manure, litter, or process wastewater assumptions used to support the no bypass defense would be available in
pollutants into waters of the U.S. discharge conclusion. Further, the final the event of a discharge from a no
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70461
discharge facility. It provides that, permit conditions. Unlike a CAFO that eliminate the need for the CAFO to go
before a permit writer may establish does not discharge or propose to through the upset/bypass process in
site-specific limitations, the permittee discharge and therefore chooses not to most circumstances.
must demonstrate through a rigorous seek permit coverage, a CAFO relying In addition, this approach is
modeling exercise that its open on site-specific BMP effluent limitations consistent with CWA section 101(f),
containment system would not would have a permit and permit terms requiring EPA to use efficient
discharge. Given the requirement for that include the design, construction, procedures for decision-making.
evaluation of the system’s adequacy operation, and maintenance measures Because of this provision, in the rare
(size, operational practices, that formed the basis for the permitting occurrence of a catastrophic event, this
maintenance conditions and other authority’s determination that the CAFO provision would relieve permitting
factors) using precipitation data for 100 will meet no discharge. Because the authorities and CAFOs from the typical
years, such an assessment would elements demonstrating no discharge procedures necessary to meet the upset/
support the conclusion that any are permit conditions established in a bypass requirements.
discharge that might occur results from process that provides for public
‘‘factors beyond the reasonable control participation and on-going oversight, 4. Discussion of the New Provisions
of the permittee,’’ the conditions under use of this alternative should further The CAFO NSPS provisions adopted
which the upset/bypass defense would ensure compliance with the no today require an evaluation of the
be available. Moreover, as noted, all of discharge requirements. adequacy of the designed storage facility
the design, construction, operation, and So long as the facility complies with using the AWM (Animal Waste
maintenance components evaluated for its BMP effluent limitations (and other Management) tool and an evaluation of
the site-specific permit become permit terms of the permit such as monitoring overall water budgets using SPAW (Soil
conditions. This similarly mirrors the or recordkeeping requirements), the Plant Air Water) Field and Pond
provisions of the upset regulations CAFO will not be subject to Hydrology Tool, or equivalent analytic
which do provide for a defense only in enforcement action. EPA underscores tools. EPA has concluded that 100 years
the limited circumstances outlined in for the regulated community that the of climate data is an ample time frame
§ 122.41(n)(1), e.g., no operational error, protections afforded by this provision for simulation purposes and will
improper design, or other factors as are only available through permits support a reasonable finding that the
described above. As a consequence, this issued to new source CAFOs. EPA system will not discharge. However,
alternative NSPS provision requires an further wishes to emphasize that the EPA is aware that 100 years of
upfront determination that the CAFO more general upset and bypass continuous rainfall data may not be
would only discharge in circumstances regulations are only available to available for all CAFOs. Models can be
that would parallel those for which an permitted CAFOs, and are otherwise run using actual rainfall data where
upset/bypass defense would be unaffected by this NSPS provision. available, and then simulated with a
available. Finally, policy considerations support confidence interval analysis over a
This final rule’s new NSPS provision the Agency’s adoption of an alternative period of 100 years.6
allowing site-specific BMP effluent no discharge approach. EPA encourages AWM is a planning and design tool
limitations gives the CAFO complying CAFOs to implement anaerobic for animal feeding operations that can
with its permit conditions more digesters, multi-cell treatment lagoons, be used to estimate the production of
certainty that its operations meet its and nitrification/denitrification manure, bedding, and process water,
CWA requirements. The permitting technologies. In addition, EPA wants to and thus determine the size of needed
process has already established that the encourage the development of storage facilities. AWM accounts for
discharge is unintentional and beyond innovative technologies for meeting the wastewater, flush water, precipitation,
the reasonable control of the permittee. no discharge requirement. To do this, runoff, and other additions to the waste
Therefore, in the extremely unlikely CAFOs want certainty that the stream. AWM can estimate storage
event of a discharge from a new source technologies they develop and facility sizes using either a defined
that is complying with a permit implement will comply with the CWA. storage period or by drawdown dates
containing these site-specific no EPA recognizes that the upset and specified by the user. A monthly water
discharge effluent limitations, the CAFO bypass provisions do not provide and waste budget for each storage
would already have established in the certainty to the operator that any component is generated, in most cases
permitting process an affirmative discharge will be excused. In particular, allowing the CAFO to demonstrate no
defense with respect to any discharge, CAFOs operating innovative or discharge from the entire production
and would not need to rely on advanced technologies may be reluctant area. The procedures and calculations
§ 122.41(n). to rely on the standard upset and bypass used in AWM are based on the USDA–
Establishment of these no discharge, provisions. Under the regulation NRCS Agricultural Waste Management
BMP effluent limitations represents a adopted here, an operator must Field Handbook.
determination by the permit writer that demonstrate to the permitting The SPAW model consists of two
the CAFO will not discharge. The only authority’s satisfaction, after public linked routines. The first routine
time a CAFO under this provision could comment, that an innovative approach develops field hydrologic budgets based
potentially discharge would be in an that includes an open storage system upon daily climatic data, crop data, and
extreme, rare event not reasonably will be designed, constructed, operated, hydraulic characteristics of the soil
foreseeable or under the reasonable and maintained to achieve no discharge. profile. The second routine utilizes the
control of CAFO as demonstrated in the This demonstration would mean that
permitting process and explained above. this CAFO would not discharge, except 6 Some commenters confused the 100-year
Fourth, while site-specific BMP during an event beyond the CAFO’s
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simulation analysis with the requirement in the
effluent limitations provide greater reasonable control; an event that could 2003 final CAFO rule for a system designed to
certainty to CAFOs, they also provide be excused under the normal upset contain the precipitation associated with the 100-
year, 24-hour storm design event. Neither the
the permitting authority and citizens provisions. Once this demonstration has proposed revisions nor these final requirements for
more specific measures of compliance been made, it makes sense to provide new sources subject to subpart D refer to the 100-
than is the case for CAFOs without such the CAFO with the certainty that would year storm event.
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70462 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
climatic and hydrologic outputs of one complies with the no discharge assessment step (i.e., the validation
or more farm fields as the input to requirement. using SPAW).
hydrologic budgets for downstream Under these final amendments to the The availability and use of such a
ponds. These daily pond water budgets NSPS, the Director has the discretion to geographical and categorical approach
can be used to evaluate the require additional information from a will require that the permit writer
performance, operation or reliability for new source subpart D CAFO owner or determine that a number of conditions
many types of ponds such as liquid operator to support site-specific BMP are met. First, the assessment must fully
waste storage facilities. Water budget effluent limitations. The burden is on account for all pertinent factors relevant
processes may be evaluated by making the CAFO to demonstrate that any to determination of the potential for
daily adjustments to crop canopy cover proposed system it employs, including discharge from an open storage system.
and antecedent soil moisture. For each an open system, meets the new source The assessment must also include all
user-specified soil profile and crop standard. EPA expects CAFOs will parameters necessary to mirror properly
rotation, SPAW simulates possible utilize the most current version of AWM the range of soil, plant, climatic, and
runoff from fields as well as the and SPAW when submitting their hydrological conditions within the
irrigation water needs of fields receiving demonstration to the permitting geographical area for which the
the manure storage effluent. Hydrologic authority. However, EPA is aware that assessment is intended to be
groups are used by the model to rate other peer-reviewed models and representative. Second, the permittee
soils for the potential to release excess programs have been or may be must establish that the parameters
water down grade. developed that could be determined to reflected in the general assessment used
AWM tracks gross nutrients, but does be equivalent to AWM and SPAW. to establish no discharge are, in fact,
not track the mass or concentration of Therefore the rule gives the Director the representative of those parameters for
nutrients. Further, the storage period or discretion to approve design software or each CAFO. Finally, the assessment
drawdown schedule is usually procedures equivalent to AWM and must reflect the operational and
determined by the individual CAFO. SPAW. Once approved by the Director, management practices to be employed
Therefore, the CAFO’s NMP must be the public still would have the by each CAFO at each individual site.
used as an input to confirm both a water opportunity to comment on the CAFO’s As with the individual assessment, each
balance and a nutrient balance has been submitted modeling and demonstration CAFO must have a site-specific NMP
achieved by the CAFO. The NSPS as discussed earlier. that includes the operational and
The information, design, and management measures utilized in the
provisions require that each CAFO use
evaluation process required of all geographical assessment.
the SPAW tool to assess daily
CAFOs wishing to avail themselves of EPA is eliminating the requirement to
hydrologic budgets for each field. The this alternative is intended to allow indicate the capacity for a 100-year, 24-
complete modeling demonstration CAFOs the flexibility to demonstrate hour storm for new sources. EPA is
shows not only that the storage facility compliance with the no discharge maintaining the requirement to have a
does not discharge, but also that there requirements for any type of open depth marker for all open storage
is no runoff of process wastewater from storage facility. As a practical structures. In EPA’s view, a marker
fields during land application activities consideration, EPA expects most CAFOs indicating the storage pond or
consistent with the CAFO’s NMP, which selecting this compliance alternative containment depth can be an excellent
is necessary to ensure that the open will submit designs for open manure means of displaying how much storage
containment system is operated in a storage structures accompanied by a a CAFO has, whether it is time to pump
way to meet the land application narrow range of acceptable operation down levels in the lagoon, pond, or
requirements of the rule. In EPA’s view, and management practices. However, other storage structure, or whether
the requirement to use the SPAW model for a given type of storage facility design alternative management steps must be
(or an equivalent approved by the (for example, an integrator with several taken to prevent a full storage structure
permitting authority) ensures CAFOs company-owned CAFOs each designed and potential overflow. Existing sources
will rely on appropriate operational and constructed in an essentially and new sources subject to subpart C
measures to achieve no discharge identical manner within the same continue to have the requirement for a
standards. county), EPA believes it is possible to depth marker that indicates the 25-year,
The CAFO NSPS provisions require conduct a series of assessments that 24-hour storm event. New sources
certain specified information regarding together fully encompass the range of subject to subpart D and using an open
design, construction, operation, and operational and management measures storage structure must use the depth
maintenance of the system to be that would be used across multiple marker to indicate the maximum
included in the CAFO’s NMP under 40 CAFOs with the specified storage volume of manure and process
CFR 122.42(e)(1). This includes the key facility design. In this case, SPAW could wastewater the structure is designed to
user-defined inputs and model system be run to validate a wide range of NMP contain.
parameters. CAFOs must submit a site- and storage pond management scenarios While one component of preventing
specific analysis to the Director. See 40 (to continue the above example, the discharge from an open system is to
CFR 412.46(a)(1). These site-specific CAFOs all have the same sets of crops, provide adequate storage of manure and
design, construction, operation, and soil types, land application equipment, wastewater during critical periods,
maintenance measures are enforceable etc.). This alternative does not change ensuring adequate physical capacity is
requirements in the CAFO’s permit. As the requirement for a CAFO to develop not sufficient. Rather, determining
long as the CAFO complies with these a site-specific NMP. These final whether there is adequate storage is
requirements, the CAFO presumptively amendments authorize the permitting based on a site-specific evaluation of the
meets the no discharge requirement. authority to determine that any CAFO CAFO’s entire waste handling system.
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EPA has determined that the final rule using the specified facility type and Adequate storage has to be based on
revisions provide a clear and submitting an NMP that falls within the climate-specific variables that define the
enforceable standard for the CAFO to pre-approved range of operational and appropriate storage volume, but of equal
achieve as well as providing assurance management practices would not need importance are the nutrient
to the public that the proposed system to conduct an individualized management plan and other
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70463
management decisions that specify be ‘‘reasonably borne’’ by the CAFOs. non-numeric effluent limitations based
when and how the storage can be Waterkeeper Alliance et al. v. EPA, 399 on BPT and the best available
emptied. The link between adequate F.3d 486, 516 (2d Cir. 2005). The Clean technology economically achievable
storage and land application practices is Water Act adds an additional evaluation (BAT) as well as BCT limitations. In the
one of the most critical considerations step to the effluent limitations 2003 CAFO rule, EPA established BPT
in developing and implementing a site- development process for conventional effluent limitations guidelines for Large
specific nutrient management plan. For pollutants. ‘‘In addition to the Clean beef, dairy, and veal calf (Subpart C),
example, the amount of land available Water Act requirement that effluent swine and poultry (Subpart D) CAFOs.
for application, the hydraulic limitations be economically achievable, At that time, EPA concluded that
limitations (ability of the land to handle the cost associated with the BCT there were no available BCT
additional water without the occurrence effluent limitations must also be technologies on which to base limits for
of runoff), geology, and soil properties ‘reasonable’ in relation to the effluent conventional pollutants that were more
of the available land base can play an pollutant reductions.’’ 51 FR 24,974. In stringent than the BPT limitations, and
important role. See Chapter 2 of EPA’s determining this, the statute requires EPA therefore established BCT
technical guidance for CAFOs that EPA look at a number of factors requirements equal to BPT limitations.
‘‘Managing Manure Nutrients at including a comparison of the cost of EPA based this determination in part on
Concentrated Animal Feeding effluent reductions for POTWs to that the combined pollutant reductions
Operations’’ (EPA–821–B–04–00) for for direct dischargers using candidate (Table 7.2 of 68 FR 7239), and in
more information. EPA expects these BCT technologies. Thus, the statute particular its evaluation of the
criteria preclude a CAFO from requires that, not only must the costs of reductions in discharges of the
withdrawing manure and process additional control be costs that CAFOs conventional pollutants (TSS, BOD, and
wastewater from liquid storage may reasonably bear (economically fecal coliform) associated with the
structures and subsequently land achievable), but the costs must also be various technology options it
applying process wastewater at reasonable relative to the costs for considered. 71 FR 37,763. EPA noted
inappropriate times. Given these POTWs to achieve such conventional difficulties in quantifying the loadings
considerations, EPA is establishing pollutant reductions. and reductions in discharges of these
procedures for approval of site-specific EPA evaluated 41 BCT candidate pollutants—in particular, in assessing
management practices for open technologies for this rule and fecal coliform—and relied primarily on
containment systems with the determined that all but two of them reductions in sediment discharges as a
expectation that a system can be were either not available (technically surrogate for reductions in TSS in
designed and operated to meet the no feasible for all CAFOs in a subcategory) reaching its BCT determination. EPA
discharge standard. EPA has concluded or not economically achievable. For the concluded that there were no
that the design, construction, operation, remaining two technologies, while their technologically feasible candidate BCT
and maintenance elements and the costs are high and EPA believes it likely technologies that would achieve greater
comprehensive analytical assessment that they are also not economically TSS removals than the BPT
are sufficient to achieve this objective. achievable, EPA was unable to conduct requirements for either Subpart C or
G. BCT Limitations for Fecal Coliform its traditional tests for economic Subpart D facilities, and no
achievability and thus has not economically achievable technologies
In response to the Second Circuit determined in this rule whether or not for Subpart C facilities that would
remand, EPA is today affirmatively they are economically achievable. reduce discharges of BOD.
finding that the best conventional However, EPA has determined that Consequently, EPA found that there
pollutant control technology (BCT) these two technologies, even if were no BCT technologies for
limitations it adopted in 2003 do, in economically achievable, would not be establishing limits on conventional
fact, represent the best conventional cost reasonable, and has therefore pollutants that would achieve greater
control technology limitations for fecal rejected them as BCT technologies. removal than the BPT technology and
coliform. After assessing various As a result of this assessment, EPA established BCT requirements that were
conventional pollutant removal has concluded that there are no equal to BPT. 68 FR 7224.
technologies, EPA has determined that available and economically achievable While EPA’s assessment of the
there are no available and economically technologies that are cost reasonable effectiveness of various control options
achievable technologies that are cost that would provide greater fecal did attempt to measure pathogen
reasonable that would result in greater coliform removal than the BPT reductions for the final rule, EPA did
removal of fecal coliform than the technology. How EPA performed this not establish any specific BPT or BCT
technologies on which EPA based the assessment and the results of that limitations to control fecal coliform, a
2003 best practicable control technology assessment supporting EPA’s finding conventional pollutant and pathogen.
currently available (BPT) and BCT that the 2003 BPT/BCT limitations The Waterkeeper court remanded the
effluent limitations guidelines (ELG). represent BCT technology for 2003 CAFO rule’s BCT standard for
As EPA has explained, establishing further clarification and analysis
controlling fecal coliform is described in
BCT limitations begins by identifying because EPA had failed to make an
detail below.
technology options that provide affirmative finding that the BCT
additional conventional pollutant 1. The Waterkeeper Decision
limitations it had adopted in fact
control beyond the level of control As previously noted, the Waterkeeper represented the best conventional
provided by BPT effluent limitations. court remanded the 2003 CAFO rule’s
Any such candidate technologies are BCT standard for further clarification pollutant for which BCT limitations are required.
then evaluated to determine if they meet and analysis with regard to the
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Waterkeeper, 399 F.3d at 518. Section 304(a)(4) of
the threshold CWA requirements of appropriate BCT standard for the CWA provides that EPA may identify additional
‘‘availability’’ and ‘‘economic pollutants as conventional pollutants. EPA has
pathogens.7 EPA’s 2003 rule established identified only one additional pollutant, oil and
achievability.’’ 51 FR 24,974, 24,976; grease as a conventional pollutant. Thus, the only
July 9, 1986. A technology is 7 As the Second Circuit recognized, the CWA lists pathogen subject to the Second Circuit remand is
economically achievable if its costs may only one pathogen, fecal coliform, as a conventional fecal coliform.
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70464 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
pollutant control technology for ‘‘best available technology economically In the words of Senator Muskie, the
reducing pathogens—specifically, fecal achievable,’’ or ‘‘BAT.’’ In 1972, these Senate Floor Manager and leading
coliform. 399 F.3d at 519. EPA’s final limitations also controlled conventional, sponsor of the amendments:
rule issued today responds to the court’s toxic and non-conventional pollutants. The Administrator must determine
remand. The 1977 amendments to the CWA whether or not the cost of achieving
As EPA proposed, in this final rule replaced BAT for conventional reductions of conventional effluent bears a
EPA is affirmatively concluding that the pollutants with limitations that reasonable relationship to the amount of
current BCT limitations for effluent reduction achieved. In making this
represent ‘‘best conventional pollutant determination, the Administrator is to
conventional pollutants represent the control technology’’ or ‘‘BCT.’’ Section
best conventional control technology for compare the costs of industrial effluent
304(a)(4) designates the following as reduction to the cost of municipal waste
fecal coliform and is establishing BCT conventional pollutants: Biochemical treatment. Legislative History at 458.
limitations for fecal coliform that are oxygen demand (BOD), total suspended
equal to the current BPT/BCT Accordingly, EPA developed a ‘‘BCT
solids (TSS), fecal coliform (FC), pH, Methodology’’ to answer the question of
limitations. These limitations prohibit and any additional pollutants defined
the discharge of manure, litter, or whether it is ‘‘cost-reasonable’’ for
by the Administrator as conventional. industry to control two conventional
process wastewater into waters of the
The Administrator designated oil and pollutants, BOD (or oil and grease in the
U.S. from the production areas of CAFO
grease as an additional conventional case of certain metals industries) and
except in limited circumstances. A
pollutant, on July 30, 1979 (44 FR TSS, at a level more stringent than
discharge is allowed only if an existing,
44,501), but has listed no other already required by BPT effluent
permitted CAFO has a properly
pollutants for regulation as conventional limitations. EPA first explained its BCT
designed, constructed, and operated
pollutants. methodology when it promulgated BCT
storage structure with the capacity to
contain all manure, litter, and process The decision to amend section 304(a) effluent guidelines for 41 industry
wastewater associated with the facility of the CWA to require achievement of subcategories (44 FR 50,732; August 29,
as well as the runoff and direct BCT, rather than BAT, for control of 1979).9 The crux of the methodology
precipitation from a 25-year, 24-hour conventional pollutants reflected two was a comparison of the costs of
rainfall event. See 40 CFR 412.31(a). factors. The first was Congressional removing the conventional pollutants
The current rules also provide that a desire not to require ‘‘treatment for BOD (or oil and grease) and TSS for a
Large CAFO that land applies manure, treatment’s sake’’ and the second, candidate BCT technology within a
litter, or process wastewater must do so Congress’s view that BAT control of particular industry segment, to the costs
in accordance with several BMPs: A conventional pollutants might not be of removal for an average-sized POTW.
nutrient management plan that includes necessary to achieve the water quality A number of industries and industry
the determination of application rates goals of the Act. S.Rep. No. 370 at 43, associations challenged the regulation,
for manure, litter, and process 1st Sess. 43 (1977), reprinted in Comm. and, in 1981, the U.S. Court of Appeals
wastewater; a field-specific assessment on Env. and Public Works, 95th Cong., for the Fourth Circuit remanded it to the
of the potential for nitrogen and 2d Sess., A Legislative History of the Agency, directing EPA to include an
phosphorus transport from the field to Clean Water Act of 1977 at 676–77 assessment of the cost-effectiveness of
surface waters; manure and soil (hereinafter ‘‘Legislative History’’). industry conventional pollutant removal
sampling; and setback requirements. See The CWA Amendments of 1977 that in addition to the POTW test in its
40 CFR 412.4. EPA is not promulgating require EPA to determine BCT evaluation of cost reasonableness.
more stringent BCT limitations for fecal limitations also specify the factors to be American Paper Inst. v. EPA, 660 F. 2d
coliform because there is no available, taken into account in this determination 954 (4th Cir. 1981). EPA proposed a
achievable, and cost reasonable of BCT. Section 304(b)(4)(B) provides revised BCT methodology in 1982 (47
technology on which to base such FR 49,176) that addressed the industry
that the factors to be assessed:
limitations. cost-effectiveness test (the ‘‘second’’
[S]hall include consideration of the test), again limited to the conventional
2. Background reasonableness of the relationship between pollutants BOD and TSS. EPA proposed
costs of obtaining a reduction in effluents to base the POTW benchmark on model
The CWA requires point sources to and the effluent reductions benefits derived,
achieve effluent pollutant levels and a comparison of the cost and level of
plant costs in a 1984 notice (49 FR
established by EPA that are attainable reduction of such pollutants from the 37,046). The final BCT methodology,
through progressively more stringent discharge from publicly owned treatment promulgated as a rule in 1986 (51 FR
pollutant control technology. The CWA works to the cost and level of reduction of 24,974), maintained the basic approach
calls for technology-based control in such pollutants from a class or category of of the 1982 proposed BCT methodology
two stages. As originally enacted in industrial sources. * * * 33 U.S.C. while also updating POTW removal cost
1972, the Act required existing point 1314(b)(4)(B).8 with new POTW data. EPA again
sources to comply in the first stage with specifically noted that it had developed
EPA-established limitations that are 8 As the Conference Report to the 1977
achievable by application of the ‘‘best amendments explained: 9 As noted above, the 1977 amendments
The cost test for conventional pollutants is a new established a second level of technology-based
practicable control technology currently test. It is expected to result in a determination of controls for conventional pollutants-BCT
available’’ or ‘‘BPT.’’ These limitations reasonableness which could be somewhat more limitations. Accordingly, in 1979, pursuant to
control conventional, toxic, and than best practicable technology or could be Congressional direction, EPA completed its review
nonconventional pollutants. EPA has somewhat less than best available technology for of then-existing BAT limitations for conventional
other conventional pollutants. The result of the cost pollutants to determine if they were more stringent
typically based BPT limitations on the test could be a 1984 requirement which is no more than would be required by BCT technology. EPA
average pollutant removal performance
rwilkins on PROD1PC63 with RULES_2
than that which would result from best practicable limited its review to limitations for, and
of the best facilities examined by EPA. technology but also could result in effluent correspondingly developed its BCT methodology to
The 1972 Act also required existing reductions equal to that required in the application address, only two categories of conventional
of best available technology. Joint Explanatory pollutants: BOD (or oil and grease) and TSS. 44 FR
point sources to comply in the second Statement of the Committee of Conference, 95th 50,732–33. Noting the industries under
stage with EPA-established limitations Cong. 1st Sess., H.R. No. 95–830 at 85, Legislative consideration do not have fecal coliform discharges,
that are achievable by the application of History at 269. EPA performed no analysis for fecal coliform.
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70465
its BCT methodology to evaluate more units (CFU), or a 46 percent reduction effectiveness of candidate BCT
stringent BOD or TSS limits. over baseline pollutant loadings. See technologies with the incremental cost-
Chapter 12 of ‘‘Development Document effectiveness of BOD and TSS removals
3. EPA’s BCT Determination in the 2003
for the Final Revisions to the NPDES at POTWs through advanced secondary
Rule
and the Effluent Guidelines for CAFOs’’ treatment as compared to secondary
As previously explained, EPA EPA–821–R–03–001. Other pathogens treatment. This test makes sense for
established BCT requirements equal to would likely be reduced by a similar BOD and TSS because advanced
BPT in the 2003 CAFO rule (see 40 CFR degree. EPA projected $0.3 to $3.4 secondary treatment is specifically
412.33 and 412.44). For its assessment million in improved shellfish harvests designed to remove additional BOD and
of BCT limitations, EPA first considered associated with reduced pathogen TSS. However, it is not designed for
whether there were any technically discharges from Large CAFOs. 68 FR additional fecal coliform removal, so the
feasible technologies that would achieve 7240. incremental cost-effectiveness of
greater conventional pollutants advanced secondary treatment in
removals than the BPT limitations. 4. This Rule
removing fecal coliform is not a good
Because of the difficulties in quantifying As noted, EPA has determined that benchmark for use in evaluating
reductions of conventional pollutant there are no technically feasible and candidate BCT technologies for fecal
discharges,10 EPA relied primarily on economically achievable candidate coliform removal.
sediment discharges (as a surrogate for technologies for fecal coliform removal The methodology is appropriate for
TSS) in evaluating potential BCT that are cost reasonable and would BOD and TSS because advanced
requirements. EPA identified no BCT achieve greater removals than the 2003 secondary treatment is specific to the
technology option that achieves BPT limitations. The following removal of BOD and TSS. Costs
significantly greater TSS removals than discussion summarizes the basis for this associated with upgrading a POTW from
the BPT requirements eventually final determination. secondary to advanced secondary
promulgated in 2003 with one treatment were based on polymer
(a) EPA’s Approach To Establishing BCT
exception. This option would have addition to the activated sludge basin.
Limitations for Fecal Coliform
prohibited any discharge from swine The purpose of the polymer addition
and poultry CAFOs. Because this option As previously explained, the first step was to enhance removal of BOD and
was not an economically achievable to establishing BCT limitations is to TSS in the secondary clarifier, and
one, EPA therefore concluded that there identify technology options that provide achieve final effluent concentrations of
were no BCT technologies on which to additional conventional pollutant 20 mg/L BOD5 and 20 mg/L TSS.
base limits for conventional pollutants control beyond the level of control Therefore, the cost increment between
that were more stringent than BPT. EPA provided by the application of BPT secondary and advanced secondary
did note that if it had identified limitations and to evaluate these treatment represents the incremental
available and economically achievable technologies for ‘‘availability’’ cost of removal of additional BOD and
technology options that achieve greater (including technical feasibility) and TSS at POTWs. 51 FR 24,981.
reductions of conventional pollutants ‘‘economic achievability.’’ See 33 U.S.C. Unlike BOD and TSS, advanced
than are achieved by BPT, then EPA 1311(b)(2)(E). Out of 41 candidate secondary treatment is not designed to
would have evaluated these technologies, EPA has identified no remove additional increments of fecal
technologies applying EPA’s two-part technologies that are both available and coliform beyond secondary treatment.
BCT cost test. 68 FR 7224. achievable for Subpart D facilities, and When both secondary and advanced
EPA also evaluated pathogen has identified only two available secondary treatment systems include
reductions associated with the 2003 technologies that might be 11 disinfection, the total fecal coliform
BPT limitations. The BPT limitations economically achievable for Subpart C removal is nearly the same, over 99
prohibit dry weather discharges from facilities. percent. Secondary treatment by itself
land application areas, and the BPT The next step in determining BCT is (without disinfection) also removes
land application requirements to evaluate any candidate technology significant amounts of fecal coliform,
(including technical standards for that is both technically feasible and although almost all POTWs include
timing, form, and rate of application, as economically achievable for cost disinfection at some point in their
well as the required vegetated buffer, reasonableness. Traditionally, EPA has treatment train. The polymer addition in
setback, or equivalent practices) already evaluated candidate BCT technologies advanced secondary treatment is not
minimize discharges from land for cost-reasonableness using a two-part intended for additional fecal coliform
application areas. The BPT production BCT cost test it developed for two removal since both secondary and
area requirements prohibit discharges, conventional pollutants, BOD and TSS. advanced secondary POTWs use
except for overflows from liquid storage The test is intended to assess whether disinfection treatments to prevent fecal
structures that meet certain design and there are cost-reasonable technologies coliform releases to surface water.
operational criteria. EPA used fecal that will achieve greater BOD and TSS Therefore, because the object of the BCT
coliform and fecal streptococcus as removals than required by the BPT cost test is to ensure that the costs of
surrogates to estimate the pathogen technology for an industry category by additional removals of conventional
reductions achieved by the CAFO rule comparing the incremental cost- pollutants associated with BCT
requirements. EPA concluded that the limitations do not exceed POTW
BPT limitations would reduce these two 11 For Subpart C (beef cattle, heifer, and dairy)
conventional removal costs,
facilities, in the 2003 final CAFO rule, EPA rejected distinguishing fecal coliform removals
pathogens by 2.7 x 1022 colony forming more stringent BAT options on availability, not
economic achievability grounds. Thus, for this final
between advanced secondary treatment
and secondary treatment is not relevant.
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10 For example, EPA could not easily assess fecal rule, EPA had no comparison technology that it had
coliform loadings because they vary greatly already determined to be not economically Because advance secondary treatment is
depending on site characteristics. Further, achievable. Thus, while the two available not intended to be more effective than
quantifying discharges of other conventional technologies have high costs relative to BPT and are
pollutants is complicated by the challenge of likely not economically achievable, EPA was not
secondary treatment at removing fecal
distinguishing between CAFO and non-CAFO able to determine this using its traditional coliform (and is not added for this
sources. 71 FR 37,763. methodology or the analysis from the 2003 rule. purpose), it is not appropriate to apply
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70466 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
the same POTW cost test used for variability in the manner in which Technical Development Document.
evaluating BOD and TSS BCT disinfection is used in combination with Options 3, 5, 6, and 7 represented
limitations to the evaluation of fecal other technologies at different POTWs additional controls beyond the controls
coliform limitations. and it would thus be extremely difficult, (e.g., nutrient-based land application
Given these circumstances, EPA both theoretically and logistically, to rates and production area discharges
recognized that if it were to use a develop a revised benchmark based on only under specified conditions).
similar numeric BCT cost test to this technology. Option 3 would have required a
evaluate fecal coliform removal for BCT, Consequently, for the final rule, EPA reduction of discharges to ground water
EPA would have to modify the has applied a simplified cost beneath the production area. Option 5
traditional BCT cost test to address the reasonableness test designed to would require total containment of all
issue that advanced secondary treatment specifically address fecal coliform. This manure and process wastewater by
at POTWs is not designed to remove approach is consistent with section swine and poultry operations. Option 6
fecal coliform. When the Agency 304(b)(4) of the CWA and is one EPA would require anaerobic digesters at
promulgated the BCT methodology has used in the past. While the swine and dairy facilities. Option 7
(including descriptions of how to apply traditional cost test compares reductions would require a national prohibition of
the cost test), EPA envisioned the need from BCT candidate technologies to manure application to frozen, snow-
for adjustments to the BCT cost test those of POTWs, EPA has, on occasion, covered, or saturated ground.
methodology in future rulemakings to rejected BCT technologies without In addition to the four technologies
account for lack of comparable data or comparing them to POTW performance, reviewed for the 2003 final rule, EPA
other industry-specific factors. 51 FR even for BOD and TSS. Thus, for looked at an additional 37 technologies
24,974, 24,976. Moreover, section example, where EPA lacked sufficient and systems identified either by EPA or
304(b)(4)(B) authorizes EPA to consider data to quantitatively evaluate BOD and commenters as candidate fecal coliform
other appropriate factors in establishing TSS reductions under the traditional BCT technologies. At the outset of
BCT. test, EPA rejected more stringent BCT assessment for this rule, EPA rejected all
Accordingly, for the proposal, EPA limitations solely on the basis of an of these technologies as the basis for
suggested a modified BCT cost test. evaluation of the incremental costs of BCT limitations for fecal coliform for
However, based on comments, EPA has further reductions. See 51 FR 24,974, Subpart D CAFOs because they were
identified a number of problems with 24,991. either not technically feasible for all
the proposed test. These problems are Subpart D CAFOs, or were not
discussed briefly here and described (b) EPA’s Evaluation of Candidate
economically achievable. Many of the
more fully in the Response to Comments Technologies for Technical Feasibility
rejected technologies were costlier than
Document prepared for this rule. First, and Economic Achievability
Option 5 which EPA in the 2003 final
although the revised test used a Based on its consideration of CAFO rule had earlier determined was
different cost-effectiveness calculation information submitted by commenters not economically achievable for Subpart
from the traditional test, it still relied and its own analysis, EPA has D (i.e., swine, poultry, and veal calf)
indirectly on a comparison of the cost- determined that there are only two of 41 facilities. The Waterkeeper court
effectiveness of BCT candidate candidate technologies that are sustained the Agency’s determination
technologies to the cost-effectiveness of technically feasible and may be that CAFOs cannot reasonably bear the
advanced secondary treatment, even economically achievable that provide cost associated with Option 5. 399 F.3d
though, as just noted, advanced greater removals of fecal coliform than at 516. Option 5 would have cost
secondary treatment is not designed to the technologies selected as the basis for Subpart D facilities $167 million. See 68
remove fecal coliform. Second, the BPT limitations in the 2003 rule. The FR 7218. Of the 19 technologies and
revised test did not compare the discussion below provides the basis for systems approaches identified by
incremental cost-effectiveness of the this conclusion. commenters, none of the technologies
candidate technologies to the In its evaluation of candidate BCT costs less than $167 million. The least
incremental cost-effectiveness of fecal technologies, EPA reviewed data on costly of these technologies—
coliform removals at POTWs and different types of CAFO manure gasification recycle, digester based
therefore did not allow a comparison of management systems. These systems systems, super soils composting, aerobic
‘‘the cost and level of reduction of [fecal employed treatment technologies, best digestion, and ABS—cost 1.3 times the
coliform] from the discharge from management practices (BMPs) for cost of Option 5. Other technologies
publicly owned treatment works to the pollution prevention, and management reviewed cost as much as seven times
cost and level of reduction of [fecal practices for the handling, storage, the total national costs of Option 5.
coliform] from * * * industry sources treatment, and land application of Having determined that the costs of
* * *’’ as required by the statute. As a wastes. Sources of information included Option 5 were unachievable for Subpart
result, EPA has now determined that it available technical literature, over D facilities, EPA did not evaluate further
cannot use the revised test to evaluate 11,000 comments submitted by industry those treatment technologies that had
cost reasonableness. and other public commenters, and similar or greater total costs. After
For this final rule, EPA also insights gained from conducting over rejecting the economically unachievable
considered other possible approaches 116 site visits to CAFOs. technologies identified by commenters,
for evaluating cost reasonableness. One In its search for candidate 22 technologies remained for further
approach would have been to identify a technologies, EPA initially reexamined assessment with respect to technical
technology that is used at POTWs the technology options it had feasibility. EPA found that none of these
specifically for fecal coliform removal considered for the 2003 rule because the technologies were technically feasible
and develop a test similar to the Agency concluded that these might for all CAFOs in Subpart D.
rwilkins on PROD1PC63 with RULES_2
traditional cost test but based on this provide more fecal coliform reductions For Subpart C facilities, EPA did not
technology. EPA considered than the option selected for BPT have a previously identified option that
disinfection as one possible benchmark limitations. EPA looked at technology it had already determined to be
technology for fecal coliform removal, Options 3, 5, 6 and 7 described in the economically unachievable against
but determined that there is significant proposal at 71 FR 37,763 and the which to compare the costs of candidate
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70467
BCT technologies. To do an economic sufficiently to warrant a detailed feasible and economically achievable for
achievability analysis of candidate analysis of the costs of these fecal coliform control for one
technologies for Subpart C, EPA would technologies at every type of CAFO. To subcategory, the Subpart C (beef and
have had to conduct an analysis of the date, EPA has not identified less dairy) subcategory. As discussed above,
economic conditions of individual expensive, and consequently, EPA did not conduct a new analysis of
CAFOs in order to estimate potential economically achievable candidate economic achievability for these
closures and evaluate appropriate technologies than those it had technologies at Subpart C facilities,
financial ratios, as it traditionally does previously evaluated. Furthermore, EPA although EPA notes the costs are high
for economic achievability analysis. did not further evaluate the systems relative to the BPT technology (which
EPA determined that conducting such approach (combinations of one or more EPA also determined to be BAT).
an analysis was not practical, and candidate technologies) recommended Specifically, the cost of the BPT
eventually also determined that it was by some commenters because it would technology for Subpart C was $214
not necessary to do so to complete its not reduce fecal coliform more than the million per year, while the cost of
evaluation of candidate BCT 99 percent assumed by EPA 12 in its composting was estimated to be $1.4
technologies for subpart D. Rather, EPA analysis as the yardstick for billion per year, and the cost of
first evaluated the candidate performance of the candidate BCT constructed wetlands was $2.9 billion.
technologies for technical feasibility, technology. While not obtaining Thus, EPA expects that if it had
and on this basis, rejected 39 of the 41 pollutant removals greater than those conducted a formal economic
technologies (the four options already considered by EPA, these achievability analysis, EPA would have
considered for the 2003 rule, 16 systems would cost more than the cost determined that both of these
identified by EPA and 19 suggested by of the individual technologies already technologies are not economically
commenters) as the basis for BCT reviewed. Therefore, EPA did not achievable.
limitation for fecal coliform for Subpart evaluate the suite of candidate However, instead of evaluating these
C. The two remaining technologies were technologies that performed comparably technologies with respect to economic
then evaluated directly for cost but were more expensive than the suite achievability, EPA evaluated the cost
reasonableness, without considering of technologies evaluated here. For the reasonableness of the technologies using
economic achievability, as explained in reasons described in Chapter 8 of the the simplified approach described
section III.G.4(c) of this preamble. ‘‘Development Document for the Final above. In the past, EPA has adopted
EPA explained the basis for its Revisions to the NPDES and the Effluent such an approach when it lacked a full
decisions with respect to feasibility of Guidelines for CAFOs’’ and the proposal data base to evaluate different BCT
the other candidate technologies (for at 71 FR 37,765–8, EPA has determined technologies. A simplified approach fits
both Subparts C and D) in the proposed that the candidate technologies it the circumstances here for two reasons.
rule, and commenters have not provided rejected are not technologically feasible First, as noted, EPA has developed no
any information that would lead the and economically achievable for all standardized BCT cost test for fecal
Agency to change its conclusions. 71 FR CAFOs across a subcategory and thus coliform. Second, EPA lacks the data to
37,768–71. not appropriate technologies for BCT provide a comparison of incremental
In addition, EPA specifically solicited fecal coliform removals that is the basis
limitations. The CWA does not
comment on additional candidate for the BCT cost test for TSS and BOD.
authorize EPA to establish BCT
technologies that might prove feasible The annual operating costs for
limitations that are based on
and less costly than the technologies composting would be more than six
technologies that are not technologically
already evaluated for the proposal. EPA times as much as the full BPT level of
feasible and economically achievable.
is aware of technologies that may, on a control at Subpart C facilities (see
site-specific basis, be used to provide Because only two technologies were
Chapter 4 and Table A–15 of the Final
further reductions of conventional both technically feasible and potentially
Cost Methodology, EPA–821–R–03–
pollutants as compared to the economically achievable for Subpart C
004), while constructed wetlands would
technologies on which the 2003 BPT/ facilities (and none were for Subpart D
cost Subpart C facilities more than an
BCT limitations were based. However, facilities), EPA is only required to
order of magnitude (13) times the cost
EPA’s record shows these other evaluate these two technologies further
of the BPT level of control (see chapter
technologies are not available for cost reasonableness.
15 in the supplement to the TDD). EPA
engineering alternatives for most (c) EPA’s Evaluation of the Remaining has determined that these costs are too
CAFOs, and they are therefore not Candidate Technologies for Cost high relative to the additional removals.
feasible technology candidates. See Reasonableness EPA thus concludes that the
Chapter 8 of the ‘‘Development incremental costs of the additional
The above assessment resulted in only
Document for the Final Revisions to the removals alone support a determination
two remaining candidate technologies
NPDES and the Effluent Guidelines for that these technologies are not cost
(composting and constructed wetlands)
CAFOs’’ and the docket accompanying reasonable.
that are potentially 13 technically
this action for descriptions of these To further evaluate this conclusion,
additional technologies. 12 In the proposed rule, as a simplifying EPA conducted a modeling analysis of
In response to its requests for assumption all technologies were expected to POTW removal costs for fecal coliform.
additional information, EPA received no achieve a 99 percent reduction in fecal coliform. 71 As discussed above, the available data
new data that support evaluation of FR 37,765 and 37,767.
do not permit an empirical cost
13 EPA believes it is likely that some Subpart C
additional candidate technologies or comparison between CAFO candidate
facilities will have space constraints under either
warrant revision to EPA’s conclusions candidate technology. In this case the technology
about the costs or performance of the
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would not be feasible for all CAFOs in the to install construct wetlands or composting
candidate technologies EPA identified. subcategory. However, EPA lacks data regarding windrows, EPA does not have the data to estimate
Specifically, while some commenters land availability and possible land constraints lost revenues associated with such losses of
beyond an aggregate of data showing the average cropland. Therefore, EPA’s estimated costs of such
recommended consideration of acres of cropland at Subpart C facilities. To the candidate technologies are potentially understated.
additional digester systems, the costs of extent CAFOs can take the necessary amount of Nonetheless, EPA analyzed cost reasonableness as
the various digester systems do not vary land out of crop production to provide the space if the technologies are feasible.
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70468 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
technologies and POTW fecal coliform report to the 1977 amendments standards under section 405 of the Act
performance. However, EPA was able to establishing BPT: are health and welfare-based. By
model POTW fecal coliform removal ‘‘The result of the cost test could be a 1984 contrast, CWA effluent limitations
costs using reasonable approximating requirement which is no more than that require consideration of different
assumptions. EPA recognizes that the which would result from best practicable factors. However, the technologies used
resulting calculation lacks the rigor of technology but also could result in effluent to meet the regulations in part 503 may,
the determination of the 1986 POTW reductions equal to that required in the in some cases, be used by CAFOs. For
benchmark for TSS and BOD removal application of best available technology.’’ these reasons, EPA included sewage
Joint Explanatory Statement of the
costs.14 What this assessment shows is sludge pollution reduction technologies
Committee of Conference, 95th Cong. 1st
that POTW average costs of removals of Sess., H.R. No. 95–830 at 85, Legislative such as composting and lime addition
fecal coliform are very low (i.e., $0.33 History at 269. in the suite of BCT candidate
per trillion CFU; see 71 FR 37,772). This technologies the Agency considered. In
is not surprising, given that most POTW Thus, candidate technologies with addition, some commenters criticized
permits require achievement of fecal costs between 6 and 13 times the costs EPA’s cost analysis for not including
coliform reduction near 99 percent.15 In of technologies that have already been cost-share from federal sources such as
determined to be BAT would not EQIP, and for not including cost offsets
contrast, the two technologies being
generally be appropriate as the basis for from sale of treated manure. EPA
evaluated for cost reasonableness
BCT. considered both of these aspects in the
(composting and constructed wetlands)
have higher costs for fecal coliform 5. Additional Comments on the cost analysis to the 2003 final CAFO
removal ($0.51 per trillion CFU for Proposal rule, and was upheld on its economic
composting, and $1.02 per trillion CFU The following discussion summarizes analysis. 399 F.3d 486. In addition, EPA
for constructed wetlands). (See additional significant comments considered such cost offsets in a
supplement to Chapter 15 of the TDD, received by EPA on the proposed CAFO sensitivity analysis, and concluded that
showing unit costs of NCSU BCT determination for pathogens. For a the cost offsets did not change EPA’s
technologies as provided by complete response to the issues raised fundamental conclusions regarding
commenters, total national costs of by commenters, see the Response to economic achievability and feasibility.
employing such technologies at CAFOs, Comment Document. See Chapter 14 of the TDD for more
and a comparison of those costs to the In calculating the BPT cost per unit of information.
BPT/BAT level of control.) fecal coliform removal for its cost- By contrast, other commenters found
Even recognizing the necessary reasonableness assessment, one no fault or shortcomings in the EPA
imprecision associated with EPA’s commenter noted the cost was analysis of the technical feasibility of
calculations, EPA has determined that erroneously calculated in units of conventional technologies in
this limited POTW cost comparison dollars per billion colony forming units determining BCT for pathogen removal.
further supports its determination that (CFU); the units should have been They agree that the candidate
the costs of these two BCT candidate dollars per trillion CFU in order for the technologies examined by EPA present
technologies are not cost reasonable, test to be comparable and consistent insurmountable challenges to many
given the lack of hard data on which to with the remaining BCT cost CAFOs that make them inappropriate as
base the determination. This is fully calculations. EPA agrees with this a basis for BCT. They found no fault
consistent with EPA’s findings in the comment and has corrected all with the cost data or analytical
proposed rule that POTWs are very cost calculations to dollars per trillion CFU. techniques used by EPA in the BCT cost
effective at fecal coliform removals. 71 Some commenters correctly noted test. These commenters also presented
FR 37,772. The assessment confirms that as part of the BCT cost test for fecal additional economic analysis of the
what logic suggests: Given a POTW’s coliform, EPA calculated the POTW and candidate technologies that has been
requirement to virtually eliminate the industry cost benchmarks as the published in the ‘‘Phase 3’’ report on the
extremely high fecal coliform discharges difference in average costs of removing ‘‘Development of Environmentally
in its influent (basically raw sewage), fecal coliform between secondary Superior Technologies’’ per agreements
POTWs, on a national basis, achieve treatment and advanced secondary between the North Carolina Attorney
fecal coliform removal on a cheaper treatment rather than as the incremental General and major pork producers in the
basis than CAFOs. cost for the upgrade. These commenters State. These commenters note that the
Finally, EPA notes that Congress believed that such an approach was ‘‘Phase 3’’ economic analysis found that
intended the BCT level of control to be incorrect. As discussed above, EPA none of the 16 technologies studied
somewhere between the BPT and the agrees and has not used the revised BCT were economically feasible for existing
BAT levels of control, as established in cost test for this final rule. In regards to swine operations in North Carolina,
the statute. As noted in the conference the BCT options that were selected for which is consistent with EPA’s findings
further analysis, some commenters as discussed in detail above. These
14 EPA made a number of assumptions for its
believe that numerical limits are feasible commenters also provided State records
calculations because it did not have the data to for CAFOs and should have been of CAFO violations and discharge data
establish on a national basis the costs to POTWs of for the past three years to support their
fecal coliform control. Thus, EPA’s assessment used selected for BCT. They would have
the cost of advanced secondary treatment as a proxy liked to see EPA take a similar approach position that EPA has overstated the
for the cost of additional technologies (e.g., to CAFO waste that EPA has taken frequency of production area overflows.
filtration) that POTWs may employ to achieve high regarding human sewage sludge (i.e., These additional data may be found in
fecal coliform removals (98 percent) required by the record for this final action.
water quality standards of 200 colony forming units setting numerical pathogen standards
(CFU) per ml. This assumption may overstate the for use). Some commenters pointed to IV. Impact Analysis
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costs of such technologies, in which case the cost the ‘‘sludge rule’’ or ‘‘biosolids’’
per trillion CFU removed would be lower. program under 40 CFR part 503 as a A. Environmental Impacts
15 As described in the proposal, POTW influents
are approximately 5 million CFU per 100 ml, and
possible basis for pathogen standards in When EPA issued the revised CAFO
PCS data shows effluent concentrations of ∼ 20 CFU the CAFO rule. EPA notes that the CWA regulations on February 12, 2003, it
per ml. statutory criteria for sewage sludge estimated annual pollutant reductions
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70469
for the rule at 56 million pounds of Agriculture (USDA) Census of decision. Although the PRA burden to
phosphorus, 110 million pounds of Agriculture statistics as well as Agency- CAFOs and permitting authorities
nitrogen, and two billion pounds of based sector expertise. This exercise declines as a result of the Waterkeeper
sediment. This final, revised rule will yielded an estimate of approximately court decision to limit permits only to
not change these environmental benefits 20,700 total CAFOs for 2008. EPA then discharging CAFOs, this burden
since the technical requirements for combined the 2008 projections for each reduction is offset by the new NMP-
CAFOs that discharge are not affected animal sector with information on related requirements for permits and by
and all CAFOs, whether covered by standardized operational profiles to the assumption, for purposes of this
NPDES permits or not, still need to anticipate the number of facilities as of PRA analysis, that all unpermitted
control nutrient releases from the 2008 that might discharge. For example, CAFOs will certify under the voluntary
production and land application areas when inclement weather precludes land no discharge certification option. More
in order to comply with the Clean Water application or dewatering activities, specifically, CAFO operators will
Act. Under this rule, all CAFOs that do open lot type facilities such as beef lots experience a $0.2 million reduction in
not apply for permits must be designed, and dairy operations are more likely to net annual administrative burden. This
constructed, operated, and maintained experience conditions that could result net result is based on several offsetting
such that the CAFO does not discharge in a discharge due to the use of open on- changes. CAFOs that do not seek permit
or propose to discharge. Therefore, as site lagoons. Additionally, EPA assumed coverage under this final rule because
was true under the 2003 rule, all that all dairies generate wastewater from they do not discharge or propose to
discharges from CAFOs (except the production area and generally have discharge will save approximately $14
precipitation-related discharges from uncovered on-site lagoons. Thus, for million annually in reduced permitting
land application areas under a CAFO’s purposes of burden estimates, EPA costs. However, even though fewer
control that qualify as agricultural assumed that all dairies and most beef CAFOs will need to be covered by
stormwater discharges) are required to feedlots would apply for permits. NPDES permits, permitted facilities as a
be covered by NPDES permits. The Even though the industry grew to group face an increase in annual
overall magnitude of the benefits will roughly 20,700 CAFOs from 2002 to administrative burden of $1.2 million
increase compared to 2003 due to 2008, the change in the duty to apply per year due to the new NMP
growth in the industry, but the analysis requirement is anticipated to reduce the requirements.
for this rule does not recalculate these number of facilities needing permit EPA’s analysis of burden impacts to
effects since the increase is not due to coverage to approximately 15,300 CAFOs also accounts for the burden that
changes in the CAFO regulations. EPA discharging CAFOs. Based on these unpermitted facilities will incur in
is assuming full compliance with the updated figures, EPA estimates that order to be able to qualify for the
rule, which is standard Agency approximately 25 percent of the total agricultural stormwater exemption—a
procedure when modeling impacts of a universe of CAFOs would not discharge cost category that EPA estimates will
final rule. and thus would not need NPDES result in a burden on unpermitted
coverage under this final rule. Although facilities of $12.2 million annually. In
B. Administrative Burden Impacts these facilities may not need to apply addition, EPA estimates that the
Since there is no change in technical for permits, the administrative burden voluntary certification option for
requirements, changes in impacts on analysis performed by EPA under the unpermitted CAFOs could add $0.4
respondents are due exclusively to PRA nonetheless accounts for the costs million annually to the PRA burden for
changes in the information collection that unpermitted facilities will incur for CAFOs. Although certification is
burden. To determine the administrative the nutrient management planning that voluntary, EPA elected to cost the PRA
burden for the Paperwork Reduction Act are necessary for demonstrating that the burden associated with this option so as
(PRA) analysis, the Agency first facility is land applying manure in such to provide a complete accounting of all
examined the two key permitting a way as to qualify for the agricultural rule-related impacts. As noted above,
changes resulting from the Waterkeeper stormwater exemption. the net result of these impacts is an
decision and how they would be These figures may overstate the administrative burden savings across all
implemented under the final numbers of CAFOs needing NPDES CAFO operators, permitted and
regulations. These are the change in the permits in that the estimates of the unpermitted, of $0.2 million annually.
duty to apply for CAFOs and the change number of discharging facilities in each Permitting authorities, on the other
to the nutrient management plan (NMP) sector make conservative categorical hand, are projected to experience a $0.7
related provisions for CAFO permits. assumptions about the likelihood of a million increase in annual
The 2003 CAFO rule had a universal discharge based on broad operational administrative burden. Although the
duty to apply requirement which profiles and do not account for more burden to issue permits declines by $4.2
required virtually all CAFOs to obtain subtle stratifications within specific million annually due to fewer facilities
NPDES permit coverage. The supporting operational categories. For instance, needing permits, this decline is more
analysis for the 2003 rule estimated that although most dairies generate than offset by the added workload
as a result of this requirement, wastewater from the production area arising from the new NMP-related
approximately 15,500 CAFOs would and have on-site lagoons, there do, in requirements. EPA estimates that States
ultimately receive NPDES permits. See fact, exist dairies designed to be no would face an additional PRA burden of
the Technical Development Document discharge operations. $4.9 million annually specifically as a
for the 2003 rule, Chapter 9. Based on the updated estimates of the result of the new NMP-related
This final rule changes the duty to CAFO universe, EPA’s PRA analysis requirements. In addition, States are
apply requirement so that only CAFOs projects, as shown in Table 4.1, that projected to face a burden increment of
that discharge or propose to discharge CAFO operators and permitting up to $0.04 million annually to process
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are required to seek NPDES coverage. To authorities will collectively experience the new certifications.
derive the number of CAFOs that could an increase in total annual EPA’s estimate of PRA burden
ultimately fall into this category, EPA administrative burden of approximately impacts changed from a reduction of
first projected total industry size for $0.5 million as a result of the EPA $14.9 million annually for the 2006
2008 based on both U.S. Department of regulations to address the court proposed rule to an increase of $0.5
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70470 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
million annually in the final rule. This voluntary no discharge certification with the 2006 proposed rule and 2008
change is due principally to the option. supplemental proposal, and did not
Agency’s decision, as discussed earlier The PRA burden analysis presented in receive any comments from the Office of
in this section, to amend the PRA this rule accounts both for growth in the Management and Budget (OMB). The
analysis to account for the burden industry and changes in labor rates documentation in the public record on
incurred by unpermitted CAFOs for since the 2003 rule was issued. In the PRA analysis for this rulemaking
nutrient management planning, which addition, the changes are based on discusses more fully the assumptions
is necessary for any unpermitted CAFO annualized impacts and assume a used to estimate the numbers of CAFOs
that land applies irrespective of whether permit term of five years as stipulated needing permits and to project the
the CAFO is certified under the in the CWA. EPA submitted draft ICRs associated administrative burden.
TABLE 4.1—PRA BURDEN IMPACT CHANGES
[Note: Numbers may not add due to rounding.]
Total baseline Total amended Net change in
PRA burden: PRA burden: paperwork bur-
based on 2003 based on final den (2003 rule
CAFO rule rule require- compared to
requirements 1 ments final rule)
CAFOs needing permits ........................................ ............................................................ 20,685 15,281
(2008) 2.
CAFOs seeking agricul ........................................ ............................................................ n/a 5,404
tural stormwater ex
emption only (2008).
Total CAFOs (2008) ........................................ ............................................................ 20,685 20,685
Annualized Costs 3 (in $ CAFOs ........................... Base NPDES Permit ......................... $54.0 $40.0 ($14.0)
millions).
New NMP Provisions ........................ n/a $1.2 $1.2
Agricultural Stormwater Exemption ... n/a $12.2 $12.2
Certification ........................................ n/a $0.4 $0.4
Total CAFO Burden ........................... $54.0 $53.8 ($0.2)
Permitting Authorities .... Base NPDES Permit ......................... $16.5 $12.2 ($4.2)
New NMP Provisions ........................ n/a $4.9 $4.9
Certification ........................................ n/a $0.04 $0.04
Total Permit Authority Burden ........... $16.5 $17.1 $0.7
All Respondents ............................................................................ $70.5 $71.0 $0.5
1 2003 baseline impacts adjusted to reflect current labor rates and growth in facilities.
2 Facility
totals are annualized over 5 years in burden calcultions presented below to reflect CWA requirement for NPDES permit renewal every
5 years.
3 Annualized costs represent labor, capital and O&M costs.
C. Response to Public Comment on the proposed rule. This revised analysis the Agency determined corroborated the
Proposal also addresses specific comments original NMP cost estimates.
suggesting that the Agency should One State commenter claimed that the
The Agency received a variety of
recognize that operators without permits Agency had underestimated costs to
comments on the impacts analysis
will continue to incur costs under the permitting authorities for managing the
presented for the 2006 proposed rule
regulation in order to meet the burden potential public hearings precipitated
and the 2008 supplemental proposal.
of proof required to qualify for the by the new requirements for public
Several commenters indicated that the
agricultural stormwater exemption. notice. This commenter projected that
Agency erred in assuming that the
environmental benefits from the 2003 Other commenters indicated that the every public notice regarding NMPs
rule would be retained under the impacts analysis underestimated the would result in a public hearing. The
approach adopted in this final rule. The costs to CAFO operators of complying Agency re-examined its assumptions
Agency stands by its position presented with the EPA regulations. Careful regarding the incidence of public
in the 2006 proposed rule, but has review of these statements makes clear hearings, but did not find information to
revised the burden analysis to reflect that commenters with this viewpoint corroborate the commenter’s projection
more fully that all unpermitted CAFOs either did not account for the fact that either based on past NPDES public
do not discharge or propose to discharge the impacts analysis presented for this hearing patterns or based on
and, therefore, must implement nutrient rulemaking is exclusively an assessment expectations from other States regarding
management practices to ensure that of the paperwork burden—not the the number of hearings likely to be
any discharge from the CAFO’s land overall compliance burden—faced by triggered by NMP-related public notices.
application area qualifies for the CAFOs, or did not fully consider that This assumption that public hearings
agricultural stormwater exemption. As a the costs shown represent average would not be requested for every NMP
consequence, as indicated above, the yearly (annualized) burden rather than is further confirmed by the experiences
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annual burden reduction realized by total paperwork-related costs for a five- of States that currently require NMPs to
CAFOs under the final revised rule is year CAFO NPDES permit. be submitted as part of their permitting
shown as approximately $0.2 million as Other commenters provided specific process.
opposed to the $15.4 million reduction information on nutrient management Several commenters indicated that
projected for CAFOs in the 2006 plan (NMP) development costs, which they believed that the Agency had also
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70471
underestimated the cost to States of Study. EPA also proposed a rule that Cryptosporidium and Giardia. These
processing voluntary no discharge would exempt animal feeding pathogens may be of concern if they
certifications. This final rule does not operations from certain requirements make their way into drinking water
require permitting authority review of relating to reporting of air releases sources (e.g., lakes, rivers, and streams)
no discharge certifications. See under hazardous waste laws. because of their stability in the natural
discussion of certification submission in EPA solicited comment in the 2006 environment and their resistance to the
section III.A.3(c) of this preamble. The proposed rule on the feasibility most commonly used drinking water
Agency notes that the cost analysis it (including consideration of legal, disinfection procedure (i.e.,
performed to assess the paperwork technical, and implementation issues) of chlorination). If proper treatment is not
burden associated with the final rule allowing flexibility in how facilities provided for these pathogens, they have
shows a net paperwork burden meet various programmatic the potential to cause adverse health
reduction to States on this aspect of the requirements, for instance those of the impacts in exposed populations. While
rule, since the 2003 rule required Clean Air Act and the Clean Water Act the Agency has a number of on-going
permits-which are more burdensome for (CWA), in order to achieve greater cross- efforts in these areas, research is still in
permitting authorities to process-from media pollutant reductions. EPA its early stages. The absence of available
all CAFOs. received generalized support for this information necessarily limits EPA’s
type of approach in the comments ability to act with respect to these
V. Cross-Media Considerations and submitted in response. EPA will potential concerns.
Pathogens continue to explore cross-media EPA’s Office of Research and
A. Cross-Media Approaches considerations as it works together with Development (ORD) is actively working
CAFOs and stakeholders to build further to identify sources of Cryptosporidium.
Since 2003, EPA and CAFO experience on this issue. In collaboration with the Centers for
stakeholders have been interested in As an example of the Agency’s work Disease Control (CDC), EPA Region 3,
developing a framework to enable in this area, in October 2007, EPA and the Potomac River Drinking Water
CAFOs to pursue superior awarded $8 million in federal grants for Source Protection Partnership (DWSPP),
environmental performance across all providing technical assistance to ORD has initiated Cryptosporidium
media. Today, some CAFOs voluntarily livestock operators, including animal source tracking studies of the Potomac
conduct whole-farm audits to evaluate feeding operations, for the prevention of River Watershed. The primary objective
releases of pollutants to all media water discharges and reduction of air of this project is to develop and
through Environmental Management emissions. More recently, EPA’s implement a monitoring program for
Systems (e.g., ISO 14001 certification), Agricultural Advisor announced the Cryptosporidium source tracking in
self-assessment tools, EPA’s establishment of the Farm, Ranch, and order to identify the most significant
performance track, and State-approved Rural Communities Federal Advisory sources of this parasite within the
trade-offs in reducing discharges to Committee. One of the issues the watershed. Once identified, appropriate
water and emissions to air that committee will focus on will be source protection efforts, where
accomplish the best overall level of identification and development of a available, may be mobilized and
protection given State and local comprehensive environmental strategy directed to the reduction of these
conditions. The development of new for livestock operations. EPA anticipates sources’ contributions. In addition, in
and emerging technologies offers the that the committee will offer timely 2005 EPA’s Science to Achieve Results
potential to achieve equivalent or observations on the opportunities and (STAR) program held a solicitation for
greater pollutant reductions relative to challenges of cross-media approaches to proposals entitled, ‘‘Development and
those achieved by the effluent programs for addressing environmental Evaluation of Innovative Approaches for
guidelines and standards. Many of these concerns at livestock operations as its the Quantitative Assessment of
are superior from a cross-media work progresses. Pathogens in Drinking Water,’’ and has
perspective, and EPA encourages funded eleven research grants from this
superior cross-media solutions. These B. Pathogens and Animal Feeding
Operations proposal involving the development and
regulations regarding nutrient evaluation of innovative approaches to
management plans may provide an Although this final rule does not quantitatively detect microbial
opportunity for EPA to encourage cross- require any new best conventional pathogens in drinking water, including
media approaches at CAFOs. For pollutant control technology (BCT) Cryptosporidium and Giardia. The goal
example, the nutrient value in the effluent limitations specifically to of the STAR research is to improve the
animal byproducts provides a valuable control fecal coliform, EPA is suite of available detection methods for
source of fertilizer for crops. However, continuing to assess environmental and known and emerging microbial drinking
inappropriate application can lead to human health concerns associated with water contaminants. EPA expects that
preventable discharges to water and the management of manure and this research will result in methods that
emissions to air. Optimal application wastewater at CAFOs. Pollutants most will, among other things, allow
technologies and rates reduce potential commonly associated with animal waste determination of the presence and
water quality and air quality standards include nutrients (including ammonia), quantities of waterborne pathogens;
violations. organic matter, solids, odorous present a protocol for preparing and
The fact that EPA has multiple efforts compounds, and various pathogens. processing water samples for
underway relating to livestock These pollutants, and others, can be application of the proposed approach;
operations under several environmental released into the environment through and where possible, allow comparison
statutes underscores the need to explore discharge or runoff if manure and of the performance of the new detection
how to leverage existing regulatory wastewater are not properly handled methods with existing approved EPA
rwilkins on PROD1PC63 with RULES_2
authorities most effectively. For and managed. EPA is interested in methods for specific pathogens.
example, in addition to the regulations recently initiated studies to assess ORD is also collaborating with the
being finalized in this rulemaking, the potential impacts from pathogens in U.S. Department of Agriculture (USDA)
Agency has recently undertaken a livestock manure, especially those in their research programs associated
National Air Emissions Monitoring which may pose unique risks such as with Cryptosporidium. ORD scientists
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70472 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
participated in the USDA selection B. Paperwork Reduction Act burden reduction for CAFOs is offset by
process for the National Research The information collection a concomitant increase of 603,200 labor
Initiative on Watershed Processes and requirements in this rule have been hours annually at unpermitted facilities
Water Resources. Grants awarded under submitted for approval to the Office of for activities necessary to meet the
this program will explore the effects of Management and Budget (OMB) under agricultural stormwater exemption,
a number of factors on Cryptosporidium the Paperwork Reduction Act, 44 U.S.C. along with an increment of 33,100 hours
mobility and contamination of 3501 et seq. The information collection annually for permitted facilities to
waterways. These include the use of requirements are not enforceable until undertake the NMP-related activities
buffers and other best management OMB approves them. However, the and 12,600 hours annually for those
practices for decreasing loadings of Office of Management and Budget CAFOs who elect to pursue the
Cryptosporidium from land application (OMB) has previously approved the voluntary certification option.
of wastes and other soluble organic The annual labor burden increase for
information collection requirements
matter. EPA scientists have begun to State permitting authorities of 28,600
contained in the existing regulations
review recently published research on hours includes an estimated annual
and has assigned OMB control number
Cryptosporidium and Giardia oocyst reduction in labor burden of 93,000
2040–0250. The Information Collection hours due to the need to process fewer
shedding. The research suggests that Request (ICR) document prepared by permits. However, for State permitting
shedding is highest during early life EPA was assigned EPA ICR No. 1989.06. authorities this burden reduction is
stages of cattle and zoonotic forms and The 2003 CAFO rule had a universal
more than offset by an increment in
may greatly diminish as calves age. duty to apply requirement which
annual labor burden of 120,700 hours to
These factors have already led some required virtually all CAFOs to obtain address the new NMP-related
veterinarians to recommend that farmers NPDES permit coverage. This final requirements combined with a relatively
separate these high shedding young revised rule changes the duty to apply minor annual burden increase of 900
animals from older animals to decrease requirement so that only CAFOs that hours to handle the voluntary
disease spread and economic losses discharge or propose to discharge must certifications.
among herds of cattle and dairy cows. to seek NPDES coverage. EPA projects Additional details on the assumptions
The research also suggests that the that CAFO operators and permitting and parameters of the PRA analysis are
separation may provide secondary authorities will collectively experience available in the ICR document
environmental benefits by helping to a reduction in total annual referenced above, which is available in
prevent the release of Cryptosporidium administrative burden of 25,500 hours the docket supporting this final
into waterways. As part of their efforts as a result of the regulatory revisions to rulemaking. Burden is defined at 5 CFR
to protect the New York City water address the court decision. Labor 1320.3(b).
supply, the New York State Department burden is projected to undergo a net An agency may not conduct or
of Agriculture has recommended decrease compared to a net increase in sponsor, and a person is not required to
separation controls in their best administrative costs of $0.5 million respond to a collection of information
management practice (BMP) guidance to annually as discussed in Chapter IV. unless it displays a currently valid OMB
dairy farmers. Other States, including This difference arises from the fact that control number. The OMB control
California, are considering similar the PRA analysis performed for the final numbers for EPA’s regulations in 40
separation BMPs. rule converts labor hour burden to labor CFR are listed in 40 CFR part 9.
costs using a higher wage rate for State This final rule responds to OMB or
EPA’s ORD will continue to
permitting authorities than for CAFO public comments on the information
collaborate and assess the impacts that
operators.16 The higher wage rate for collection requirements as discussed in
these and other research efforts may
State permitting authorities causes the the Impact Analysis (section IV) in this
have on any future CAFO management
State labor cost increase to be large preamble.
recommendations.
enough to offset the labor cost reduction
VI. Statutory and Executive Order experienced by CAFO operators once C. Regulatory Flexibility Act
Reviews labor hours are converted to dollars in The Regulatory Flexibility Act (RFA)
the PRA analysis of annual generally requires an agency to prepare
A. Executive Order 12866: Regulatory administrative impacts. a regulatory flexibility analysis of any
Planning and Review More specifically, the estimated rule subject to notice and comment
reduction in total annual administrative rulemaking requirements under the
Under Executive Order 12866 (58 FR
burden of 25,500 hours is based on a Administrative Procedure Act or any
51,735; October 4, 1993), this action is
projected decrease in labor burden to other statute unless the agency certifies
a ‘‘significant regulatory action.’’
CAFO operators of approximately that the rule will not have a significant
Accordingly, EPA submitted this action
54,100 hours annually and a projected economic impact on a substantial
to the Office of Management and Budget
increase in labor burden to State number of small entities. Small entities
(OMB) for review under Executive
permitting authorities of approximately include small businesses, small
Order 12866 and any changes made in
28,600 hours annually. For CAFOs, organizations, and small governmental
response to OMB recommendations
much of the labor burden decrease jurisdictions.
have been documented in the docket for For purposes of assessing the impacts
derives from the smaller number of
this action. facilities that will need permits, which of this rule on small entities, small
In addition, EPA prepared an analysis results in an annual burden decrease of entity is defined as: (1) A small business
of the potential costs and benefits more than 703,000 labor hours. This based on Small Business Administration
associated with this action. This (SBA) size standards at 13 CFR 121.201;
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analysis is contained in section IV of 16 Wage rates for the PRA analysis supporting this (2) a small governmental jurisdiction
this preamble above, entitled Impact rulemaking were drawn from recent reports filed by that is a government of a city, county,
the U.S. Department of Labor, Bureau of Labor
Analysis. A copy of the supporting Statistics. For further information please refer to the
town, school district, or special district
analysis is available in the docket for ICR prepared by EPA for the rulemaking, available with a population of less than 50,000;
this action. in the record as EPA ICR No. 1989.06. and (3) a small organization that is any
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70473
not-for-profit enterprise which is to have meaningful and timely input in authorized States together is a cost
independently owned and operated and the development of EPA regulatory increase of $0.7 million. EPA does not
is not dominant in its field. proposals with significant federal consider an annual impact of this
After considering the economic intergovernmental mandates, and magnitude on States to be a substantial
impacts of this rule on small entities, I informing, educating, and advising effect. In addition, EPA does not expect
certify that this action will not have a small governments on compliance with this rule to have any impact on local
significant adverse economic impact on the regulatory requirements. governments. EPA also considered
a substantial number of small entities. EPA has determined that this rule flexibility as an important factor when
This final rule does not change the does not contain a federal mandate that developing this regulation.
substantive requirements for CAFO may result in expenditures of $100 Further, the revised regulations will
operators or increase the net paperwork million or more for State, local, and not alter the basic State-federal scheme
burden faced by facilities compared to tribal governments, in the aggregate, or established in the CWA under which
the burden imposed under the 2003 the private sector in any one year. The EPA authorizes States to carry out the
CAFO rule. Some CAFOs will face revised administrative burden EPA NPDES permitting program. EPA
increased permitting costs due to the calculated for the final rule constitutes expects the revised regulations to have
new NMP provisions, while others will a reduction of roughly 25,500 labor little effect on the relationship between,
face reduced costs due to the changes in hours annually compared to the or the distribution of power and
the duty to apply. However, these administrative burden estimated for the responsibilities among, the federal and
paperwork cost changes are generally 2003 CAFO rule. This burden reduction State governments. Thus, Executive
small and do not rise to the level of a reflects a decrease in annual labor Order 13132 does not apply to this rule.
significant adverse economic impact on burden of 54,100 hours for CAFO In the spirit of Executive Order 13132,
a substantial number of operators. operators and an annual labor burden and consistent with EPA policy to
Additionally, this rule would not affect increase to State permitting authorities promote communications between EPA
small governments as the permitting of 28,600 hours. In addition, this and State and local governments, EPA
authorities are State or federal agencies. rulemaking is in response to a federal specifically solicited comment on the
court decision and is necessary to assure proposed rule from State and local
D. Unfunded Mandates Reform Act officials. In addition, through a variety
compliance with applicable law. Thus,
Title II of the Unfunded Mandates this rule is not subject to the of meetings with State associations
Reform Act of 1995 (UMRA), Public requirements of sections 202 and 205 of during the rulemaking process, States
Law 104–4, establishes requirements for the UMRA. have been informed about the issues
federal agencies to assess the effects of EPA has determined that this rule related to addressing the court’s
their regulatory actions on State, local, contains no regulatory requirements that decisions. States provided input during
and tribal governments and the private might significantly or uniquely affect these meetings. State concerns generally
sector. Under section 202 of UMRA, small governments. There are no local focused on the process for incorporating
EPA generally must prepare a written or Tribal governments authorized to NMPs into permits and the related
statement, including a cost-benefit implement the NPDES permit program public review process, and also on
analysis, for proposed and final rules and the Agency is unaware of any local guidance related to what constitutes a
with ‘‘federal mandates’’ that may result or Tribal governments who are owners discharge from a CAFO given that the
in expenditures to State, local, and or operators of CAFOs. Thus this rule is proposed rule would have required only
tribal governments, in the aggregate, or not subject to the requirements of those operations that discharge or
to the private sector, of $100 million or section 203 of UMRA. propose to discharge to apply for a
more in any one year. Before permit. These concerns have been
promulgating an EPA rule for which a E. Executive Order 13132: Federalism
addressed in such a way as to provide
written statement is needed, section 205 Executive Order 13132, entitled flexibility and accountability in the new
of the UMRA generally requires EPA to ‘‘Federalism’’ (64 FR 43,255; August 10, permit application requirements and
identify and consider a reasonable 1999), requires EPA to develop an review processes promulgated in this
number of regulatory alternatives and accountable process to ensure rule.
adopt the least costly, most cost- ‘‘meaningful and timely input by State
effective, or least burdensome and local officials in the development of F. Executive Order 13175: Consultation
alternative that achieves the objectives regulatory policies that have federalism and Coordination With Indian Tribal
of the rule. The provisions of section implications.’’ ‘‘Policies that have Governments
205 do not apply when they are federalism implications’’ is defined in Executive Order 13175, entitled,
inconsistent with applicable law. the Executive Order to include ‘‘Consultation and Coordination with
Moreover, section 205 allows EPA to regulations that have ‘‘substantial direct Indian Tribal Governments’’ (65 FR
adopt an alternative other than the least effects on the States, on the relationship 67,249; November 9, 2000), requires
costly, most cost-effective, or least between the national government and EPA to develop an accountable process
burdensome alternative if the the States, or on the distribution of to ensure ‘‘meaningful and timely input
Administrator publishes with the final power and responsibilities among the by tribal officials in the development of
rule an explanation why that alternative various levels of government.’’ regulatory policies that have tribal
was not adopted. Before EPA establishes This final rule does not have implications.’’
any regulatory requirements that may federalism implications. It will not have This rule does not have tribal
significantly or uniquely affect small substantial direct effects on the States, implications. There are currently no
governments, including tribal on the relationship between the national tribal governments authorized for the
governments, it must have developed government and the States, or on the NPDES program. This rulemaking
rwilkins on PROD1PC63 with RULES_2
under section 203 of the UMRA a small distribution of power and provides increased opportunity for the
government agency plan. The plan must responsibilities among the various public and tribal governments to
provide for notifying potentially levels of government, as specified in comment on specific CAFOs’
affected small governments, enabling Executive Order 13132. EPA estimates applications for permit coverage. It will
officials of affected small governments that the average annual impact on all not have substantial direct effects on
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70474 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
tribal governments, on the relationship That Significantly Affect Energy Supply, demonstrates that these standards are
between the federal government and Distribution, or Use’’ (66 FR 28,355; consistent with the achievement of no
Indian tribes, or on the distribution of May 22, 2001) because it is not likely to discharge from a specific CAFO.
power and responsibilities between the have a significant adverse effect on the This rule for new source requires that
federal government and Indian tribes, as supply, distribution, or use of energy. CAFOs complying with the no discharge
specified in Executive Order 13175. EPA has concluded that this rule is not requirement through the development of
Thus, Executive Order 13175 does not likely to have any adverse energy effects site-specific design, maintenance and
apply to this rule. since CAFOs in general do not figure operation standards must use prescribed
In the spirit of Executive Order 13175, significantly in the energy market, and technical standards in demonstrating
and consistent with EPA policy to the regulatory revisions finalized in this
promote communications between EPA that a specific CAFO’s design, operation
rule are not likely to change existing and maintenance will be consistent with
and tribal governments, EPA energy generation or consumption
specifically solicited comment on the no discharge from its production area.
profiles for CAFOs. (In certain circumstances, a CAFO may
proposed rule from tribal officials.
I. National Technology Transfer and use either equivalent evaluation and
G. Executive Order 13045: Protection of Advancement Act simulation procedures or technical
Children From Environmental Health standards developed for a class of
and Safety Risks Section 12(d) of the National
specific facilities within a specified
Technology Transfer and Advancement
Executive Order 13045 ‘‘Protection of geographical area if approved by its
Act of 1995 (‘‘NTTAA’’), Public Law
Children from Environmental Health 104–113, 12(d) (15 U.S.C. 272 note) permitting authority), EPA has not
Risks and Safety Risks’’ (62 FR 19,885; directs EPA to use voluntary consensus required the use of any particular
April 23, 1997) applies to any rule that: standards in its regulatory activities voluntary consensus standards in this
(1) Is determined to be ‘‘economically unless to do so would be inconsistent rule. The use, however, of voluntary
significant’’ as defined under Executive with applicable law or otherwise consensus standards such as those that
Order 12866, and (2) concerns an impractical. Voluntary consensus may be developed by USDA for the
environmental health or safety risk that standards are technical standards (e.g., required demonstration that site-specific
EPA has reason to believe may have a materials specifications, test methods, design, maintenance and operational
disproportionate effect on children. If sampling procedures, and business requirements for CAFOs to comply with
the regulatory action meets both criteria, practices) that are developed or adopted the no discharge standard is
the Agency must evaluate the encouraged. The decisions as to what
by voluntary consensus standards
environmental health or safety effects of specific best management practices and
bodies. The NTTAA directs EPA to
the planned rule on children, and technologies must be applied at
provide Congress, through OMB,
explain why the planned regulation is individual animal feeding operations
explanations when the Agency decides
preferable to other potentially effective are left to the State or EPA in the
not to use available and applicable
and reasonably feasible alternatives exercise of their NPDES authority.
voluntary consensus standards.
considered by the Agency.
This final rule is not subject to This final rule does not change the J. Congressional Review Act
Executive Order 13045 because it is not technical requirements for land
economically significant as defined in application from those of the 2003 rule. The Congressional Review Act, 5
Executive Order 12866, and because the Production area requirements are the U.S.C. 801 et seq., as added by the Small
Agency does not have reason to believe same for existing sources and for new Business Regulatory Enforcement
the environmental health or safety risks sources as in the 2003 rule. The no Fairness Act of 1996, generally provides
addressed by this action present a discharge production area requirements that before a rule may take effect, the
disproportionate risk to children. The for new sources in this rulemaking, agency promulgating the rule must
benefits analysis performed for the 2003 however, now include an option for submit a rule report, which includes a
CAFO rule determined that the rule complying with the requirement copy of the rule, to each House of the
would result in certain significant through the development of site-specific Congress and to the Comptroller General
benefits to children’s health. (Please design, operation and maintenance of the United States. EPA will submit a
refer to the Benefits Analysis in the permit conditions that will ensure no report containing this rule and other
record for the 2003 CAFO final rule.) discharge from the site. However, the required information to the U.S. Senate,
This action does not affect the specific no discharge conditions the U.S. House of Representatives, and
environmental benefits of the 2003 applicable to a specific operator the Comptroller General of the United
CAFO rule. choosing this option for compliance will States prior to publication of the rule in
be determined by the permitting the Federal Register. A major rule
H. Executive Order 13211: Actions authority on a site-specific BPJ basis. cannot take effect until 60 days after it
Concerning Regulations That EPA encourages the use by permitting is published in the Federal Register.
Significantly Affect Energy Supply, authorities of voluntary consensus This action is not a ‘‘major rule’’ as
Distribution, or Use standards, such as those that may be defined by 5 U.S.C. 804(2). This rule
This rule is not a ‘‘significant energy developed by USDA, in establishing the will become effective December 22,
action’’ as defined in Executive Order site-specific technical requirements in 2008.
13211, ‘‘Actions Concerning Regulations CAFO permits when the permittee BILLING CODE 6560–50–P
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BILLING CODE 6560–50–C § 9.1 OMB approvals under the Paperwork (x) A nutrient management plan that
Reduction Act. at a minimum satisfies the requirements
List of Subjects
* * * * * specified in § 122.42(e), including, for
40 CFR Part 9 all CAFOs subject to 40 CFR part 412,
Environmental protection, Reporting OMB control subpart C or subpart D, the requirements
40 CFR citation No. of 40 CFR 412.4(c), as applicable.
and recordkeeping requirements.
40 CFR Part 122 * * * * *
* * * * * ■ 5. Section 122.23 is amended as
Administrative practice and follows:
procedure, confidential business EPA Administered Permit Programs: The ■ a. By revising paragraph (a).
information, hazardous substances, National Pollutant Discharge Elimination ■ b. By revising paragraphs (d)(1) and
reporting and recordkeeping System (d)(2).
requirements, water pollution control. ■ c. By adding paragraphs (e)(1) and
* * * * *
40 CFR Part 412 (e)(2).
122.21(i) .................................... 2040–0250 ■ d. By revising paragraph (f).
Environmental protection, feedlots, ■ e. By revising paragraph (g).
livestock, waste treatment and disposal, * * * * * ■ f. By revising paragraph (h).
water pollution control. ■ g. By adding paragraph (i).
122.23 (d), (e), (h) .................... 2040–0250 ■ h. By adding paragraph (j).
Dated: October 31, 2008.
Stephen L. Johnson, § 122.23 Concentrated animal feeding
* * * * *
Administrator. operations (applicable to State NPDES
programs, see § 123.25).
■ For the reasons set out in the
preamble, chapter I of Title 40 of the (a) Scope. Concentrated animal
PART 122—EPA ADMINISTERED feeding operations (CAFOs), as defined
Code of Federal Regulations is to be PERMIT PROGRAMS: THE NATIONAL
amended as follows: in paragraph (b) of this section or
POLLUTANT DISCHARGE designated in accordance with
ELIMINATION SYSTEM
PART 9—OMB APPROVALS UNDER paragraph (c) of this section, are point
THE PAPERWORK REDUCTION ACT ■ 3. The authority citation for part 122 sources, subject to NPDES permitting
continues to read as follows: requirements as provided in this
■ 1. The authority citation for part 9 section. Once an animal feeding
continues to read as follows: Authority: The Clean Water Act, 33 U.S.C.
1251 et seq.
operation is defined as a CAFO for at
Authority: 7 U.S.C. 135 et seq., 136–136y; least one type of animal, the NPDES
15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671; ■ 4. Section 122.21 is amended by
requirements for CAFOs apply with
21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 revising the last sentence in paragraph
respect to all animals in confinement at
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, (a)(1), and revising paragraph (i)(1)(x), to
the operation and all manure, litter, and
1321, 1326, 1330, 1342, 1344, 1345(d) and read as follows:
process wastewater generated by those
(e), 1361; Executive Order 11735, 38 FR
21243, 3 CFR, 1971–1975 Comp. p. 973; 42 § 122.21 Application for a permit animals or the production of those
U.S.C. 241, 242b, 243, 246, 300f, 300g–1, (applicable to State programs, see § 123.25). animals, regardless of the type of
300g–2, 300g–3, 300g–4, 300g–5, 300g–6, (a) * * * animal.
300j–1, 300j–2, 300j–3, 300j–4, 300j–9, 1857 (1) * * * The requirements for * * * * *
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et seq., 6901–6992k, 7401–7671q, 7542, concentrated animal feeding operations (d) * * *
9601–9657, 11023, 11048. are described in § 122.23(d). (1) Permit Requirement. The owner or
■ 2. In § 9.1 the table is amended by * * * * * operator of a CAFO must seek coverage
adding entries in numerical order under (i) * * * under an NPDES permit if the CAFO
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the indicated heading to read as follows: (1) * * * discharges or proposes to discharge. A
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CAFO proposes to discharge if it is operator of the CAFO must seek to information from the owner or operator.
designed, constructed, operated, or obtain coverage under an NPDES permit If the Director makes a preliminary
maintained such that a discharge will by February 27, 2009. determination that the notice of intent
occur. Specifically, the CAFO owner or (3) Operations that become defined as meets the requirements of
operator must either apply for an CAFOs after April 14, 2003, but which §§ 122.21(i)(1) and 122.42(e), the
individual NPDES permit or submit a are not new sources. For a newly Director must notify the public of the
notice of intent for coverage under an constructed CAFO and for an AFO that Director’s proposal to grant coverage
NPDES general permit. If the Director makes changes to its operations that under the permit to the CAFO and make
has not made a general permit available result in its becoming defined as a available for public review and
to the CAFO, the CAFO owner or CAFO for the first time after April 14, comment the notice of intent submitted
operator must submit an application for 2003, but is not a new source, the owner by the CAFO, including the CAFO’s
an individual permit to the Director. or operator must seek to obtain coverage nutrient management plan, and the draft
(2) Information to submit with permit under an NPDES permit, as follows: terms of the nutrient management plan
application or notice of intent. An (i) For newly constructed operations to be incorporated into the permit. The
application for an individual permit not subject to effluent limitations process for submitting public comments
must include the information specified guidelines, 180 days prior to the time and hearing requests, and the hearing
in § 122.21. A notice of intent for a CAFO commences operation; process if a request for a hearing is
general permit must include the (ii) For other operations (e.g., granted, must follow the procedures
information specified in §§ 122.21 and resulting from an increase in the applicable to draft permits set forth in
122.28. number of animals), as soon as possible, 40 CFR 124.11 through 124.13. The
but no later than 90 days after becoming Director may establish, either by
* * * * * defined as a CAFO; or
(e) * * * regulation or in the general permit, an
(iii) If an operational change that appropriate period of time for the public
(1) For unpermitted Large CAFOs, a makes the operation a CAFO would not
precipitation-related discharge of to comment and request a hearing that
have made it a CAFO prior to April 14, differs from the time period specified in
manure, litter, or process wastewater 2003, the operation has until February 40 CFR 124.10. The Director must
from land areas under the control of a 27, 2009, or 90 days after becoming respond to significant comments
CAFO shall be considered an defined as a CAFO, whichever is later. received during the comment period, as
agricultural stormwater discharge only (4) New sources. The owner or provided in 40 CFR 124.17, and, if
where the manure, litter, or process operator of a new source must seek to necessary, require the CAFO owner or
wastewater has been land applied in obtain coverage under a permit at least operator to revise the nutrient
accordance with site-specific nutrient 180 days prior to the time that the management plan in order to be granted
management practices that ensure CAFO commences operation. permit coverage. When the Director
appropriate agricultural utilization of (5) Operations that are designated as authorizes coverage for the CAFO owner
the nutrients in the manure, litter, or CAFOs. For operations designated as a or operator under the general permit,
process wastewater, as specified in CAFO in accordance with paragraph (c) the terms of the nutrient management
§ 122.42(e)(1)(vi) through (ix). of this section, the owner or operator plan shall become incorporated as terms
(2) Unpermitted Large CAFOs must must seek to obtain coverage under a and conditions of the permit for the
maintain documentation specified in permit no later than 90 days after CAFO. The Director shall notify the
§ 122.42(e)(1)(ix) either on site or at a receiving notice of the designation. CAFO owner or operator and inform the
nearby office, or otherwise make such (g) Duty to Maintain Permit Coverage. public that coverage has been
documentation readily available to the No later than 180 days before the authorized and of the terms of the
Director or Regional Administrator upon expiration of the permit, or as provided nutrient management plan incorporated
request. by the Director, any permitted CAFO as terms and conditions of the permit
(f) When must the owner or operator must submit an application to renew its applicable to the CAFO.
of a CAFO seek coverage under an permit, in accordance with § 122.21(d), (2) For EPA-issued permits only. The
NPDES permit? Any CAFO that is unless the CAFO will not discharge or Regional Administrator shall notify each
required to seek permit coverage under propose to discharge upon expiration of person who has submitted written
paragraph (d)(1) of this section must the permit. comments on the proposal to grant
seek coverage when the CAFO proposes (h) Procedures for CAFOs seeking coverage and the draft terms of the
to discharge, unless a later deadline is coverage under a general permit. (1) nutrient management plan or requested
specified below. CAFO owners or operators must submit notice of the final permit decision. Such
(1) Operations defined as CAFOs prior a notice of intent when seeking notification shall include notice that
to April 14, 2003. For operations authorization to discharge under a coverage has been authorized and of the
defined as CAFOs under regulations general permit in accordance with terms of the nutrient management plan
that were in effect prior to April 14, § 122.28(b). The Director must review incorporated as terms and conditions of
2003, the owner or operator must have notices of intent submitted by CAFO the permit applicable to the CAFO.
or seek to obtain coverage under an owners or operators to ensure that the (3) Nothing in this paragraph (h) shall
NPDES permit as of April 14, 2003, and notice of intent includes the information affect the authority of the Director to
comply with all applicable NPDES required by § 122.21(i)(1), including a require an individual permit under
requirements, including the duty to nutrient management plan that meets § 122.28(b)(3).
maintain permit coverage in accordance the requirements of § 122.42(e) and (i) No Discharge Certification Option.
with paragraph (g) of this section. applicable effluent limitations and (1) The owner or operator of a CAFO
(2) Operations defined as CAFOs as of standards, including those specified in that meets the eligibility criteria in
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April 14, 2003, that were not defined as 40 CFR part 412. When additional paragraph (i)(2) of this section may
CAFOs prior to that date. For all information is necessary to complete the certify to the Director that the CAFO
operations defined as CAFOs as of April notice of intent or clarify, modify, or does not discharge or propose to
14, 2003, that were not defined as supplement previously submitted discharge. A CAFO owner or operator
CAFOs prior to that date, the owner or material, the Director may request such who certifies that the CAFO does not
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70482 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
discharge or propose to discharge is not mail or equivalent method of (5) Withdrawal of Certification. (i) At
required to seek coverage under an documentation, a certification that any time, a CAFO may withdraw its
NPDES permit pursuant to paragraph includes, at a minimum, the following certification by notifying the Director by
(d)(1) of this section, provided that the information: certified mail or equivalent method of
CAFO is designed, constructed, (i) The legal name, address and phone documentation. A certification is
operated, and maintained in accordance number of the CAFO owner or operator withdrawn on the date the notification
with the requirements of paragraphs (see § 122.21(b)); is submitted to the Director. The CAFO
(i)(2) and (3) of this section, and subject (ii) The CAFO name and address, the does not need to specify any reason for
to the limitations in paragraph (i)(4) of county name and the latitude and the withdrawal in its notification to the
this section. longitude where the CAFO is located; Director.
(2) Eligibility Criteria. In order to (iii) A statement that describes the (ii) If a certification becomes invalid
certify that a CAFO does not discharge basis for the CAFO’s certification that it in accordance with paragraph (i)(4) of
or propose to discharge, the owner or satisfies the eligibility requirements this section, the CAFO must withdraw
operator of a CAFO must document, identified in paragraph (i)(2) of this its certification within three days of the
based on an objective assessment of the section; and date on which the CAFO becomes aware
conditions at the CAFO, that the CAFO (iv) The following certification that the certification is invalid. Once a
is designed, constructed, operated, and statement: ‘‘I certify under penalty of CAFO’s certification is no longer valid,
maintained in a manner such that the law that I am the owner or operator of the CAFO is subject to the requirement
CAFO will not discharge, as follows: a concentrated animal feeding operation in paragraph (d)(1) of this section to
(i) The CAFO’s production area is (CAFO), identified as [Name of CAFO], seek permit coverage if it discharges or
designed, constructed, operated, and and that said CAFO meets the proposes to discharge.
maintained so as not to discharge. The (6) Recertification. A previously
requirements of 40 CFR 122.23(i). I have
CAFO must maintain documentation certified CAFO that does not discharge
read and understand the eligibility
that demonstrates that: or propose to discharge may recertify in
requirements of 40 CFR 122.23(i)(2) for
(A) Any open manure storage accordance with paragraph (i) of this
certifying that a CAFO does not
structures are designed, constructed, section, except that where the CAFO has
discharge or propose to discharge and
operated, and maintained to achieve no discharged, the CAFO may only
further certify that this CAFO satisfies
discharge based on a technical recertify if the following additional
the eligibility requirements. As part of
evaluation in accordance with the conditions are met:
this certification, I am including the
elements of the technical evaluation set (i) The CAFO had a valid certification
information required by 40 CFR
forth in 40 CFR 412.46(a)(1)(i) through at the time of the discharge;
122.23(i)(3). I also understand the (ii) The owner or operator satisfies the
(viii); conditions set forth in 40 CFR
(B) Any part of the CAFO’s eligibility criteria of paragraph (i)(2) of
122.23(i)(4), (5) and (6) regarding loss this section, including any necessary
production area that is not addressed by
and withdrawal of certification. I certify modifications to the CAFO’s design,
paragraph (i)(2)(i)(A) of this section is
under penalty of law that this document construction, operation, and/or
designed, constructed, operated, and
and all other documents required for maintenance to permanently address the
maintained such that there will be no
this certification were prepared under cause of the discharge and ensure that
discharge of manure, litter, or process
my direction or supervision and that no discharge from this cause occurs in
wastewater; and
qualified personnel properly gathered the future;
(C) The CAFO implements the
and evaluated the information (iii) The CAFO has not previously
additional measures set forth in 40 CFR
submitted. Based upon my inquiry of recertified after a discharge from the
412.37(a) and (b);
(ii) The CAFO has developed and is the person or persons directly involved same cause;
implementing an up-to-date nutrient in gathering and evaluating the (iv) The owner or operator submits to
management plan to ensure no information, the information submitted the Director for review the following
discharge from the CAFO, including is to the best of my knowledge and documentation: a description of the
from all land application areas under belief true, accurate and complete. I am discharge, including the date, time,
the control of the CAFO, that addresses, aware there are significant penalties for cause, duration, and approximate
at a minimum, the following: submitting false information, including volume of the discharge, and a detailed
(A) The elements of § 122.42(e)(1)(i) the possibility of fine and imprisonment explanation of the steps taken by the
through (ix) and 40 CFR 412.37(c); and for knowing violations.’’; and CAFO to permanently address the cause
(B) All site-specific operation and (v) The certification must be signed in of the discharge in addition to
maintenance practices necessary to accordance with the signatory submitting a certification in accordance
ensure no discharge, including any requirements of 40 CFR 122.22. with paragraph (i)(3) of this section; and
practices or conditions established by a (4) Term of Certification. A (v) Notwithstanding paragraph (i)(4)
technical evaluation pursuant to certification that meets the requirements of this section, a recertification that
paragraph (i)(2)(i)(A) of this section; and of paragraphs (i)(2) and (i)(3) of this meets the requirements of paragraphs
(iii) The CAFO must maintain section shall become effective on the (i)(6)(iii) and (i)(6)(iv) of this section
documentation required by this date it is submitted, unless the Director shall only become effective 30 days
paragraph either on site or at a nearby establishes an effective date of up to 30 from the date of submission of the
office, or otherwise make such days after the date of submission. recertification documentation.
documentation readily available to the Certification will remain in effect for (j) Effect of certification. (1) An
Director or Regional Administrator upon five years or until the certification is no unpermitted CAFO certified in
request. longer valid or is withdrawn, whichever accordance with paragraph (i) of this
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(3) Submission to the Director. In occurs first. A certification is no longer section is presumed not to propose to
order to certify that a CAFO does not valid when a discharge has occurred or discharge. If such a CAFO does
discharge or propose to discharge, the when the CAFO ceases to meet the discharge, it is not in violation of the
CAFO owner or operator must complete eligibility criteria in paragraph (i)(2) of requirement that CAFOs that propose to
and submit to the Director, by certified this section. discharge seek permit coverage pursuant
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to paragraphs (d)(1) and (f) of this limitations and standards, including and process wastewater for each year of
section, with respect to that discharge. those specified in 40 CFR part 412. The permit coverage, for each crop identified
In all instances, the discharge of a nutrient management plan must, to the in the nutrient management plan, in
pollutant without a permit is a violation extent applicable: chemical forms determined to be
of the Clean Water Act section 301(a) * * * * * acceptable to the Director, in pounds
prohibition against unauthorized (4) * * * per acre, per year, for each field to be
discharges from point sources. (viii) The actual crop(s) planted and used for land application, and certain
(2) In any enforcement proceeding for actual yield(s) for each field, the actual factors necessary to determine such
failure to seek permit coverage under nitrogen and phosphorus content of the rates. At a minimum, the factors that are
paragraphs (d)(1) or (f) of this section manure, litter, and process wastewater, terms must include: The outcome of the
that is related to a discharge from an the results of calculations conducted in field-specific assessment of the potential
unpermitted CAFO, the burden is on the accordance with paragraphs (e)(5)(i)(B) for nitrogen and phosphorus transport
CAFO to establish that it did not and (e)(5)(ii)(D) of this section, and the from each field; the crops to be planted
propose to discharge prior to the amount of manure, litter, and process in each field or any other uses of a field
discharge when the CAFO either did not wastewater applied to each field during such as pasture or fallow fields; the
submit certification documentation as the previous 12 months; and, for any realistic yield goal for each crop or use
provided in paragraph (i)(3) or (i)(6)(iv) CAFO that implements a nutrient identified for each field; the nitrogen
of this section within at least five years management plan that addresses rates of and phosphorus recommendations from
prior to the discharge, or withdrew its application in accordance with sources specified by the Director for
certification in accordance with paragraph (e)(5)(ii) of this section, the each crop or use identified for each
paragraph (i)(5) of this section. Design, results of any soil testing for nitrogen field; credits for all nitrogen in the field
construction, operation, and and phosphorus taken during the that will be plant available;
maintenance in accordance with the preceding 12 months, the data used in consideration of multi-year phosphorus
criteria of paragraph (i)(2) of this section calculations conducted in accordance application; and accounting for all other
satisfies this burden. with paragraph (e)(5)(ii)(D) of this additions of plant available nitrogen and
■ 6. Section 122.28 is amended by
phosphorus to the field. In addition, the
section, and the amount of any
adding a new paragraph (b)(2)(vii), to terms include the form and source of
supplemental fertilizer applied during
read as follows: manure, litter, and process wastewater
the previous 12 months.
to be land-applied; the timing and
(5) Terms of the nutrient management
§ 122.28 General permits (applicable to method of land application; and the
plan. Any permit issued to a CAFO
State NPDES programs, see § 123.25). methodology by which the nutrient
must require compliance with the terms
* * * * * management plan accounts for the
of the CAFO’s site-specific nutrient
(b) * * * amount of nitrogen and phosphorus in
management plan. The terms of the
(2) * * * the manure, litter, and process
nutrient management plan are the
(vii) A CAFO owner or operator may wastewater to be applied.
information, protocols, best (B) Large CAFOs that use this
be authorized to discharge under a
management practices, and other approach must calculate the maximum
general permit only in accordance with
conditions in the nutrient management amount of manure, litter, and process
the process described in § 122.23(h).
plan determined by the Director to be wastewater to be land applied at least
* * * * * necessary to meet the requirements of once each year using the results of the
■ 7. Section 122.42 is amended as paragraph (e)(1) of this section. The most recent representative manure,
follows: terms of the nutrient management plan,
■ a. By revising paragraph (e)
litter, and process wastewater tests for
with respect to protocols for land nitrogen and phosphorus taken within
introductory text and paragraph (e)(1) application of manure, litter, or process 12 months of the date of land
introductory text. wastewater required by paragraph
■ b. By removing the period at the end
application; or
(e)(1)(viii) of this section and, as (ii) Narrative rate approach. An
of paragraph (e)(4)(vii) and adding in its applicable, 40 CFR 412.4(c), must approach that expresses rates of
place ‘‘; and’’. include the fields available for land application as a narrative rate of
■ c. By adding paragraph (e)(4)(viii). application; field-specific rates of
■ d. By adding paragraphs (e)(5) and
application that results in the amount,
application properly developed, as in tons or gallons, of manure, litter, and
(e)(6). specified in paragraphs (e)(5)(i) through process wastewater to be land applied,
§ 122.42 Additional conditions applicable (ii) of this section, to ensure appropriate according to the following
to specified categories of NPDES permits agricultural utilization of the nutrients specifications:
(applicable to State NPDES programs, see in the manure, litter, or process (A) The terms include maximum
§ 123.25). wastewater; and any timing limitations amounts of nitrogen and phosphorus
* * * * * identified in the nutrient management derived from all sources of nutrients, for
(e) Concentrated animal feeding plan concerning land application on the each crop identified in the nutrient
operations (CAFOs). Any permit issued fields available for land application. The management plan, in chemical forms
to a CAFO must include the terms must address rates of application determined to be acceptable to the
requirements in paragraphs (e)(1) using one of the following two Director, in pounds per acre, for each
through (e)(6) of this section. approaches, unless the Director field, and certain factors necessary to
(1) Requirement to implement a specifies that only one of these determine such amounts. At a
nutrient management plan. Any permit approaches may be used: minimum, the factors that are terms
issued to a CAFO must include a (i) Linear approach. An approach that must include: the outcome of the field-
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requirement to implement a nutrient expresses rates of application as pounds specific assessment of the potential for
management plan that, at a minimum, of nitrogen and phosphorus, according nitrogen and phosphorus transport from
contains best management practices to the following specifications: each field; the crops to be planted in
necessary to meet the requirements of (A) The terms include maximum each field or any other uses such as
this paragraph and applicable effluent application rates from manure, litter, pasture or fallow fields (including
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alternative crops identified in method of application of manure, litter, the terms of the nutrient management
accordance with paragraph (e)(5)(ii)(B) and process wastewater for each crop. plan is necessary, the Director must
of this section); the realistic yield goal Timing of application for each field, determine whether such changes are
for each crop or use identified for each insofar as it concerns the calculation of substantial changes as described in
field; and the nitrogen and phosphorus rates of application, is not a term of the paragraph (e)(6)(iii) of this section.
recommendations from sources nutrient management plan. (A) If the Director determines that the
specified by the Director for each crop (D) CAFOs that use this approach changes to the terms of the nutrient
or use identified for each field. In must calculate maximum amounts of management plan are not substantial,
addition, the terms include the manure, litter, and process wastewater the Director must make the revised
methodology by which the nutrient to be land applied at least once each nutrient management plan publicly
management plan accounts for the year using the methodology required in available and include it in the permit
following factors when calculating the paragraph (e)(5)(ii)(A) of this section record, revise the terms of the nutrient
amounts of manure, litter, and process before land applying manure, litter, and management plan incorporated into the
wastewater to be land applied: Results process wastewater and must rely on the permit, and notify the owner or operator
of soil tests conducted in accordance following data: and inform the public of any changes to
with protocols identified in the nutrient (1) A field-specific determination of the terms of the nutrient management
management plan, as required by soil levels of nitrogen and phosphorus, plan that are incorporated into the
paragraph (e)(1)(vii) of this section; including, for nitrogen, a concurrent permit.
credits for all nitrogen in the field that determination of nitrogen that will be (B) If the Director determines that the
will be plant available; the amount of plant available consistent with the changes to the terms of the nutrient
nitrogen and phosphorus in the manure, methodology required by paragraph management plan are substantial, the
litter, and process wastewater to be (e)(5)(ii)(A) of this section, and for Director must notify the public and
applied; consideration of multi-year phosphorus, the results of the most make the proposed changes and the
phosphorus application; accounting for recent soil test conducted in accordance information submitted by the CAFO
all other additions of plant available with soil testing requirements approved owner or operator available for public
nitrogen and phosphorus to the field; by the Director; and review and comment. The process for
the form and source of manure, litter, (2) The results of most recent public comments, hearing requests, and
and process wastewater; the timing and representative manure, litter, and the hearing process if a hearing is held
method of land application; and process wastewater tests for nitrogen must follow the procedures applicable
volatilization of nitrogen and and phosphorus taken within 12 months to draft permits set forth in 40 CFR
mineralization of organic nitrogen. of the date of land application, in order 124.11 through 124.13. The Director
(B) The terms of the nutrient to determine the amount of nitrogen and may establish, either by regulation or in
management plan include alternative phosphorus in the manure, litter, and the CAFO’s permit, an appropriate
crops identified in the CAFO’s nutrient process wastewater to be applied. period of time for the public to
management plan that are not in the (6) Changes to a nutrient management comment and request a hearing on the
planned crop rotation. Where a CAFO plan. Any permit issued to a CAFO proposed changes that differs from the
includes alternative crops in its nutrient must require the following procedures time period specified in 40 CFR 124.10.
management plan, the crops must be to apply when a CAFO owner or The Director must respond to all
listed by field, in addition to the crops operator makes changes to the CAFO’s significant comments received during
identified in the planned crop rotation nutrient management plan previously the comment period as provided in 40
for that field, and the nutrient submitted to the Director: CFR 124.17, and require the CAFO
management plan must include realistic (i) The CAFO owner or operator must owner or operator to further revise the
crop yield goals and the nitrogen and provide the Director with the most nutrient management plan if necessary,
phosphorus recommendations from current version of the CAFO’s nutrient in order to approve the revision to the
sources specified by the Director for management plan and identify changes terms of the nutrient management plan
each crop. Maximum amounts of from the previous version, except that incorporated into the CAFO’s permit.
nitrogen and phosphorus from all the results of calculations made in Once the Director incorporates the
sources of nutrients and the amounts of accordance with the requirements of revised terms of the nutrient
manure, litter, and process wastewater paragraphs (e)(5)(i)(B) and (e)(5)(ii)(D) of management plan into the permit, the
to be applied must be determined in this section are not subject to the Director must notify the owner or
accordance with the methodology requirements of paragraph (e)(6) of this operator and inform the public of the
described in paragraph (e)(5)(ii)(A) of section. final decision concerning revisions to
this section. (ii) The Director must review the the terms and conditions of the permit.
(C) For CAFOs using this approach, revised nutrient management plan to (iii) Substantial changes to the terms
the following projections must be ensure that it meets the requirements of of a nutrient management plan
included in the nutrient management this section and applicable effluent incorporated as terms and conditions of
plan submitted to the Director, but are limitations and standards, including a permit include, but are not limited to:
not terms of the nutrient management those specified in 40 CFR part 412, and (A) Addition of new land application
plan: The CAFO’s planned crop must determine whether the changes to areas not previously included in the
rotations for each field for the period of the nutrient management plan CAFO’s nutrient management plan.
permit coverage; the projected amount necessitate revision to the terms of the Except that if the land application area
of manure, litter, or process wastewater nutrient management plan incorporated that is being added to the nutrient
to be applied; projected credits for all into the permit issued to the CAFO. If management plan is covered by terms of
nitrogen in the field that will be plant revision to the terms of the nutrient a nutrient management plan
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available; consideration of multi-year management plan is not necessary, the incorporated into an existing NPDES
phosphorus application; accounting for Director must notify the CAFO owner or permit in accordance with the
all other additions of plant available operator and upon such notification the requirements of paragraph (e)(5) of this
nitrogen and phosphorus to the field; CAFO may implement the revised section, and the CAFO owner or
and the predicted form, source, and nutrient management plan. If revision to operator applies manure, litter, or
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Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations 70485
process wastewater on the newly added PART 412—CONCENTRATED ANIMAL for rainy seasons, additional minimum
land application area in accordance FEEDING OPERATIONS (CAFO) POINT capacity for chronic rainfalls, applicable
with the existing field-specific permit SOURCE CATEGORY technical standards that prohibit or
terms applicable to the newly added otherwise limit land application to
land application area, such addition of ■ 10. The authority citation for part 412 frozen, saturated, or snow-covered
new land would be a change to the new continues to read as follows: ground, planned emptying and
CAFO owner or operator’s nutrient Authority: 33 U.S.C. 1311, 1314, 1316, dewatering schedules consistent with
management plan but not a substantial 1317, 1318, 1342, and 1361. the CAFO’s Nutrient Management Plan,
change for purposes of this section; ■ 11. Section 412.37 is amended by additional storage capacity for manure
(B) Any changes to the field-specific revising paragraph (a)(2) to read as intended to be transferred to another
maximum annual rates for land follows: recipient at a later time, and any other
application, as set forth in paragraphs factors that would affect the sizing of
§ 412.37 Additional measures. the open manure storage structure.
(e)(5)(i) of this section, and to the
maximum amounts of nitrogen and (a) * * * (ii) The design of the open manure
(2) Depth marker. All open surface storage structure as determined by the
phosphorus derived from all sources for
liquid impoundments must have a most recent version of the National
each crop, as set forth in paragraph
depth marker which clearly indicates Resource Conservation Service’s Animal
(e)(5)(ii) of this section;
the minimum capacity necessary to Waste Management (AWM) software.
(C) Addition of any crop or other uses contain the runoff and direct CAFOs may use equivalent design
not included in the terms of the CAFO’s precipitation of the 25-year, 24-hour software or procedures as approved by
nutrient management plan and rainfall event. In the case of new sources the Director.
corresponding field-specific rates of subject to effluent limitations (iii) All inputs used in the open
application expressed in accordance established pursuant to § 412.46(a)(1) of manure storage structure design
with paragraph (e)(5) of this section; and this part, all open surface manure including actual climate data for the
(D) Changes to site-specific storage structures associated with such previous 30 years consisting of
components of the CAFO’s nutrient sources must include a depth marker historical average monthly precipitation
management plan, where such changes which clearly indicates the minimum and evaporation values, the number and
are likely to increase the risk of nitrogen capacity necessary to contain the types of animals, anticipated animal
and phosphorus transport to waters of maximum runoff and direct sizes or weights, any added water and
the U.S. precipitation associated with the design bedding, any other process wastewater,
(iv) For EPA-issued permits only. storm used in sizing the impoundment and the size and condition of outside
Upon incorporation of the revised terms for no discharge. areas exposed to rainfall and
of the nutrient management plan into ■ 12. Section 412.46 is amended by contributing runoff to the open manure
the permit, 40 CFR 124.19 specifies revising paragraphs (a)(1), (d), and (e) to storage structure.
procedures for appeal of the permit read as follows: (iv) The planned minimum period of
decision. In addition to the procedures storage in months including, but not
specified at 40 CFR 124.19, a person § 412.46 New source performance limited to, the factors for designing an
must have submitted comments or standards (NSPS). open manure storage structure listed in
participated in the public hearing in * * * * * paragraph (a)(1)(i) of this section.
order to appeal the permit decision. (a) * * * Alternatively the CAFO may determine
(1) Any CAFO subject to this subpart the minimum period of storage by
■ 8. Section 122.62 is amended by
may request that the Director establish specifying times the storage pond will
adding paragraph (a)(17) to read as NPDES permit best management be emptied consistent with the CAFO’s
follows: practice effluent limitations designed to Nutrient Management Plan.
§ 122.62 Modification or revocation and ensure no discharge of manure, litter, or (v) Site-specific predicted design
reissuance of permits (applicable to State process wastewater based upon a site- specifications including dimensions of
programs, see § 123.25) specific evaluation of the CAFO’s open the storage facility, daily manure and
* * * * * surface manure storage structure. The wastewater additions, the size and
(a) * * * NPDES permit best management characteristics of the land application
practice effluent limitations must areas, and the total calculated storage
(17) Nutrient Management Plans. The
address the CAFO’s entire production period in months.
incorporation of the terms of a CAFO’s
area. In the case of any CAFO using an (vi) An evaluation of the adequacy of
nutrient management plan into the
open surface manure storage structure the designed manure storage structure
terms and conditions of a general permit
for which the Director establishes such using the most recent version of the Soil
when a CAFO obtains coverage under a
effluent limitations, ‘‘no discharge of Plant Air Water (SPAW) Hydrology
general permit in accordance with
manure, litter, or process wastewater Tool. The evaluation must include all
§§ 122.23(h) and 122.28 is not a cause
pollutants,’’ as used in this section, inputs to SPAW including but not
for modification pursuant to the
means that the storage structure is limited to daily precipitation,
requirements of this section.
designed, operated, and maintained in temperature, and evaporation data for
* * * * * accordance with best management the previous 100 years, user-specified
■ 9. Section 122.63 is amended by practices established by the Director on soil profiles representative of the
adding paragraph (h) to read as follows: a site-specific basis after a technical CAFO’s land application areas, planned
evaluation of the storage structure. The crop rotations consistent with the
§ 122.63 Minor modification of permits. CAFO’s Nutrient Management Plan, and
technical evaluation must address the
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* * * * * following elements: the final modeled result of no overflows
(h) Incorporate changes to the terms of (i) Information to be used in the from the designed open manure storage
a CAFO’s nutrient management plan design of the open manure storage structure. For those CAFOs where 100
that have been revised in accordance structure including, but not limited to, years of local weather data for the
with the requirements of § 122.42(e)(6). the following: minimum storage periods CAFO’s location is not available, CAFOs
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70486 Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / Rules and Regulations
may use a simulation with a confidence this section and operated in accordance achieve those standards for the
interval analysis conducted over a with the additional measures and applicable time period specified in 40
period of 100 years. The Director may records required by § 412.47(a) and (b), CFR 122.29(d)(1). Thereafter, the source
approve equivalent evaluation and will fulfill the requirements of this must achieve the standards specified in
simulation procedures. section. § 412.43(a) and (b).
(vii) The Director may waive the (ix) The Director has the discretion to (e) Any source subject to this subpart
requirement of (a)(1)(vi) for a site- request additional information to that commenced discharging after April
specific evaluation of the designed support a request for effluent limitations 14, 2003, and prior to January 20, 2009,
manure storage structure and instead based on a site-specific open surface which was a new source subject to the
authorize a CAFO to use a technical manure storage structure. standards specified in § 412.46(a)
evaluation developed for a class of through (d) in the July 1, 2008, edition
specific facilities within a specified * * * * *
of 40 CFR part 439, must continue to
geographical area. (d) Any source subject to this subpart
achieve those standards for the
(viii) Waste management and storage that commenced discharging after April
applicable time period specified in 40
facilities designed, constructed, 14, 1993, and prior to April 14, 2003,
CFR 122.29(d)(1).
operated, and maintained consistent which was a new source subject to the
with the analysis conducted in standards specified in § 412.15, revised [FR Doc. E8–26620 Filed 11–19–08; 8:45 am]
paragraphs (a)(1)(i) through (a)(1)(vii) of as of July 1, 2002, must continue to BILLING CODE 6560–50–P
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