[Federal Register Volume 71, Number 126 (Friday, June 30, 2006)]
[Proposed Rules]
[Pages 37744-37787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5773]



[[Page 37743]]

-----------------------------------------------------------------------

Part IV





Environmental Protection Agency





-----------------------------------------------------------------------



40 CFR Parts 122 and 412



Revised National Pollutant Discharge Elimination System Permit 
Regulation and Effluent Limitation Guidelines for Concentrated Animal 
Feeding Operations in Response to Waterkeeper Decision; Proposed Rule

  Federal Register / Vol. 71, No. 126 / Friday, June 30, 2006 / 
Proposed Rules  

[[Page 37744]]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122 and 412

[EPA-HQ-OW-2005-0037; FRL-8189-7]
RIN 2040-AE80


Revised National Pollutant Discharge Elimination System Permit 
Regulation and Effluent Limitation Guidelines for Concentrated Animal 
Feeding Operations in Response to Waterkeeper Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to revise the National Pollutant Discharge 
Elimination System (NPDES) permitting requirements and Effluent 
Limitations Guidelines and Standards (ELGs) for concentrated animal 
feeding operations (CAFOs) in response to the order issued by the 
Second Circuit Court of Appeals in Waterkeeper Alliance et al. v. EPA, 
399 F.3d 486 (2nd Cir. 2005). This proposed rule responds to the court 
order while furthering the statutory goal of restoring and maintaining 
the nation's water quality and effectively ensuring that CAFOs properly 
manage manure generated by their operations.
    This proposal would revise several aspects of EPA's current 
regulations governing discharges from CAFOs. First, EPA proposes to 
require only the owners and operators of those CAFOs that discharge or 
propose to discharge to seek coverage under a permit. Second, EPA 
proposes to require CAFOs seeking coverage under a permit to submit 
their nutrient management plan (NMP) with their application for an 
individual permit or notice of intent to be authorized under a general 
permit. Permitting authorities would be required to review the plan and 
provide the public with an opportunity for meaningful public review and 
comment. Permitting authorities would also be required to incorporate 
terms of the NMP as NPDES permit conditions. Third, this action 
proposes to authorize permit writers, upon request by a CAFO, to 
establish best management, zero discharge effluent limitations when the 
facility demonstrates that it has designed an open containment system 
that will comply with the no discharge requirements.
    This proposed rule also responds to the court's remand orders 
regarding water-quality based effluent limitations (WQBELs) and 
pathogens. EPA proposes to clarify that WQBELs are available in permits 
with respect to production area discharges and non-precipitation 
related discharges from land application, but are statutorily 
unavailable in permits for Large CAFOs with respect to precipitation 
related land application discharges because the only allowable 
discharge from a land application area is due to agricultural storm 
water which is by statute exempt from permitting requirements. Finally, 
EPA proposes to clarify its selection of BCT technologies for pathogens 
(fecal coliform), and reaffirm its decision to set the BCT limitations 
for fecal coliform to be equal to the BPT limits established in the 
2003 CAFO rule.

DATES: Comments on this proposed action must be received on or before 
August 14, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2005-0037 by one of the following methods:
    (1) http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    (2) E-mail: [email protected], Attention Docket ID No. EPA-HQ-OW-
2005-0037.
    (3) Mail: Send the original and three copies of your comments to: 
Water Docket, Environmental Protection Agency, Mail code 4203M, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. 
OW-2005-0037.
    (4) Hand Delivery: Deliver your comments to: EPA Docket Center, EPA 
West, Room B102, 1301 Constitution Avenue, NW., Washington, DC, 
Attention Docket ID No. OW-2005-0037. Such deliveries are only accepted 
during the Docket's normal hours of operation and special arrangements 
should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2005-
0037. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Water Docket in the EPA 
Docket Center, EPA West, Room B102, 1301 Constitution Ave., NW., 
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744, and the telephone 
number for the Water Docket is (202) 566-2426.

FOR FURTHER INFORMATION CONTACT: For additional information contact 
Kawana Cohen, Water Permits Division, Office of Wastewater Management 
(4203M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: (202) 564-2345, e-mail address: 
[email protected] or Paul Shriner, Engineering and Analysis 
Division, Office of Science and Technology (4303T), Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; 
telephone number: 202-566-1076, e-mail address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information
    A. Does this Action Apply to Me?
    B. What Should I Consider as I Prepare My Comments for EPA?
II. Background
    A. The Clean Water Act
    B. History of Actions to Address CAFOs under the NPDES 
Permitting Program

[[Page 37745]]

    C. Ruling by the U.S. Court of Appeals for the Second Circuit
    1. Issues Upheld by the Court
    2. Issues Vacated by the Court
    3. Issues Remanded by the Court
    D. What Requirements Still Apply to CAFOs?
    E. Status of EPA's Response to the Waterkeeper Decision
III. This Proposal
    A. Duty to Apply for a Permit
    B. Nutrient Management Plans
    C. Remand Concerning Water Quality Based Effluent Limitations
    D. New Source Performance Standards for Subpart D Facilities
    E. Remand Concerning Pathogens for BCT
IV. Impact Analysis
V. Cross Media Approaches
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act

I. General Information

A. Does This Action Apply to Me?

    This action applies to concentrated animal feeding operations 
(CAFOs) as defined in section 502(14) of the Clean Water Act and in the 
NPDES regulations at 40 CFR 122.23. The following table provides a list 
of standard industrial codes for operations covered under this revised 
rule.

                              Table 1.--Entities Potentially Regulated by this Rule
----------------------------------------------------------------------------------------------------------------
                                                                                                   Standarial
                                                                              North American       industrial
                Category                   Examples of regulated entities     industry code      classification
                                                                                  (NAIC)              code
----------------------------------------------------------------------------------------------------------------
Federal, State, and Local Government:
Industry................................  Operators of animal production
                                           operations that meet the
                                           definition of a CAFO.
                                            Beef cattle feedlots                       112112               0211
                                             (including veal).
                                            Beef cattle ranching and                   112111               0212
                                             farming.
                                            Hogs..........................              11221               0213
                                            Sheep.........................        1241, 11242               0214
                                            General livestock except dairy              11299               0219
                                             and poultry.
                                            Dairy farms...................              11212               0241
                                            Broilers, fryers, and roaster               11232               0251
                                             chickens.
                                            Chicken eggs..................              11231               0252
                                            Turkey and turkey eggs........              11233               0253
                                            Poultry hatcheries............              11234               0254
                                            Poultry and eggs..............              11239               0259
                                            Ducks.........................             112390               0259
                                            Horses and other equines......              11292               0272
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your facility is regulated under this rulemaking, you should carefully 
examine the applicability criteria in 40 CFR 122.23. If you have 
questions regarding the applicability of this action to a particular 
entity, consult the person listed in the preceding FOR FURTHER 
INFORMATION CONTACT section.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting Confidential Business Information. Do not submit this 
information to EPA through www.regulations.gov or e-mail. Clearly mark 
the part or all of the information that you claim to be CBI. For CBI 
information in a disk or CD-ROM that you mail to EPA, mark the outside 
of the disk or CD-ROM as CBI and then identify electronically within 
the disk or CD-ROM the specific information that is claimed as CBI. In 
addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR Part 2.
    2. Tips for Preparing Your Comments. It will be helpful if you 
follow these guidelines as you prepare your written comments:
    i. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions--The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    vii. Explain your views as clearly as possible.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Background

A. The Clean Water Act

    Congress passed the Federal Water Pollution Control Act (1972), 
also known as the Clean Water Act (CWA), to ``restore and maintain the 
chemical, physical, and biological integrity of the nation's waters'' 
(33 U.S.C. 1251(a)). Among the core provisions, the CWA establishes the 
NPDES permit program to authorize and regulate the discharge of 
pollutants from point sources to waters of the U.S. 33 U.S.C. 1342.

[[Page 37746]]

Section 502(14) of the CWA specifically includes CAFOs in the 
definition of the term ``point source.'' Section 502(12) defines the 
term ``discharge of a pollutant'' to mean ``any addition of any 
pollutant to navigable waters from any point source'' (emphasis added). 
EPA has issued comprehensive regulations that implement the NPDES 
program at 40 CFR Part 122. The Act also provides for the development 
of technology-based and water quality-based effluent limitations that 
are imposed through NPDES permits to control the discharge of 
pollutants from point sources. CWA sections 301(a) and (b).

B. History of Actions to Address CAFOs under the NPDES Permitting 
Program

    EPA's regulation of wastewater and manure from CAFOs dates to the 
1970s. EPA initially issued national effluent limitations guidelines 
and standards for feedlots on February 14, 1974 (39 FR 5704), and NPDES 
CAFO regulations on March 18, 1976 (41 FR 11458).
    In February 2003, EPA issued revisions to these regulations that 
focused on the 5% of the nation's animal feeding operations (AFOs) that 
presented the highest risk of impairing water quality and public health 
(68 FR 7176) (``the 2003 CAFO rule''). The 2003 CAFO rule required the 
owners or operators of all CAFOs \1\ to seek coverage under an NPDES 
permit. CAFO industry organizations (American Farm Bureau Federation, 
National Pork Producers Council, National Chicken Council, and National 
Turkey Federation (NTF), although NTF later withdrew its petition) and 
environmental groups (Waterkeeper Alliance, Natural Resources Defense 
Council, Sierra Club, and American Littoral Society) filed petitions 
for judicial review of certain aspects of the 2003 CAFO rule. This case 
was brought before the U.S. Court of Appeals for the Second Circuit. On 
February 28, 2005, the court ruled on these petitions and upheld most 
provisions of the 2003 rule but vacated and remanded others. 
Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005). The 
court's decision, which applies nationally, is described in detail 
below.
---------------------------------------------------------------------------

    \1\ The Clean Water Act regulates the conduct of persons, which 
includes the owners and operators of CAFOs, rather than the 
facilities or their discharges. To improve readability in this 
preamble, reference is made to ``CAFOs'' as well as ``owners and 
operators of CAFOs.'' No change in meaning is intended.
---------------------------------------------------------------------------

    The revisions to the 2003 CAFO rule being proposed today relate 
directly to the changes required by the court's decision and continue 
to maintain the focus on regulating discharges from the universe of 
high-risk AFOs.

C. Ruling by the U.S. Court of Appeals for the Second Circuit

    The Second Circuit's decision in Waterkeeper upheld certain 
challenged provisions of the 2003 rule and vacated or remanded others, 
as follows.
1. Issues Upheld by the Court
    This section discusses provisions of the 2003 CAFO rule that were 
challenged by either industry or environmental petitioners, but were 
upheld by the Waterkeeper court and therefore remain unchanged. EPA is 
not proposing to revise any of these provisions and is not soliciting 
comment on them.
(a) Land Application Regulatory Framework and Interpretation of 
``Agricultural Storm Water''
    The Waterkeeper court upheld EPA's authority to regulate, through 
NPDES permits, the discharge of manure, litter, and process wastewater 
that CAFOs apply to crop or forage land. The court rejected the 
industry petitioners' claim that land application runoff must be 
channelized before it can be considered to be a point source discharge 
subject to permitting. The court noted that the CWA expressly defines 
the term ``point source'' to include ``any * * * concentrated animal 
feeding operation * * * from which pollutants are or may be 
discharged,'' and found that the Act ``not only permits, but demands'' 
that land application discharges be construed as discharges ``from'' a 
CAFO. Waterkeeper Alliance et al. v. EPA, 399 F.3d at 510.
    The Waterkeeper court also upheld EPA's determination in the 2003 
CAFO rule that precipitation-related discharges of manure, litter, or 
process wastewater from land application areas under the control of a 
CAFO qualify as ``agricultural stormwater'' only where the CAFO has 
applied the manure in accordance with nutrient management practices 
that ensure ``appropriate agricultural utilization'' of the manure, 
litter, and process wastewater nutrients. EPA's interpretation of the 
Act in this regard was reasonable, the court found, in light of 
Congressional intent in excluding agricultural stormwater from the 
meaning of the term ``point source'' and given the precedent set in an 
earlier Second Circuit case, Concerned Area Residents for the 
Environment v. Southview Farm, 34 F.3d 114 (2d Cir. 1994). Waterkeeper 
Alliance et al. v. EPA, 399 F.3d at 508-09.
(b) Effluent Guidelines
--Identification of best available technologies. The court rejected the 
environmental organizations' claim that when EPA chose the pollution 
control technologies on which to base effluent guidelines for CAFOs, 
the Agency did not meet its duty to identify the single CAFO with the 
best-performing technology. The court found that EPA had collected 
extensive data on the waste management systems at CAFOs and had 
considered approximately 11,000 public comments on the proposed CAFO 
rule, and on those bases, EPA had adequately justified its selection of 
``best available technologies'' on which to base the regulations.
--Groundwater controls. The court upheld EPA's decision in the 2003 
rule relating to groundwater controls. In the 2003 rule EPA stated that 
the Agency believed that requirements limiting the discharge of 
pollutants to surface water via groundwater that has a direct 
hydrologic connection to surface water were beyond the scope of the 
ELGs promulgated in the rule. The Agency also stated that nothing in 
the 2003 rule was to be construed to expand, diminish, or otherwise 
affect the jurisdiction of the CWA over discharges to surface water via 
groundwater that has a direct hydrologic connection to surface water.
--Economic methodologies. The court upheld the analytic methodologies 
that EPA used for determining whether the technology-based permit 
requirements for CAFOs set in the 2003 rule would be economically 
achievable by the industry as a whole.
2. Issues Vacated by the Court
    The following are the elements of the 2003 rule that the 
Waterkeeper court found to be unlawful and therefore vacated.
(a) Duty to Apply
    The CAFO industry organizations argued that the EPA exceeded its 
statutory authority by requiring all CAFOs to either apply for NPDES 
permits or demonstrate that they have no potential to discharge. The 
court agreed with the CAFO industry petitioners on this issue and 
therefore vacated the ``duty to apply'' provision of the 2003 CAFO 
rule.
    The court found that the duty to apply, which the Agency had based 
on a presumption that most CAFOs have at least a potential to 
discharge, was invalid, because the CWA subjects only actual discharges 
to permitting

[[Page 37747]]

requirements rather than potential discharges. The court acknowledged 
EPA's policy considerations for seeking to impose a duty to apply but 
found that the Agency lacked statutory authority to do so.
(b) Nutrient Management Plans
    The environmental organizations argued that the 2003 CAFO rule was 
unlawful because: (1) The rule empowered permitting authorities to 
issue permits without any meaningful review of a CAFO's NMP, (2) the 
rule failed to require that the terms of the nutrient management plan 
be included in the NPDES permit, and (3) the permitting approach 
established by the rule violated the Clean Water Act's public 
participation requirements. The court agreed with the environmental 
petitioners on these three issues.
    The court relied on provisions of the Act that authorize point 
source discharges only where NPDES permits ``ensure that every 
discharge of pollutants will comply with all applicable effluent 
limitations and standards,'' citing CWA sections 402(a)(1), (a)(2), and 
(b). Because the 2003 CAFO rule did not provide for permitting 
authority review of a CAFO's nutrient management plan before the permit 
was issued, the court found that the rule did not ensure that each 
Large CAFO's discharges comply with these CWA provisions. In addition, 
the court found that by not making the NMPs part of the permit and 
available to the public for review, the 2003 CAFO rule violated public 
participation requirements in sections 101(e) and 402 of the Act. The 
court also found that the terms of the NMPs themselves are ``effluent 
limitations'' as that term is defined in the Act and therefore must be 
made part of the permit and enforceable as required under CWA sections 
301 and 402.
3. Issues Remanded by the Court
    The Waterkeeper court also remanded other aspects of the CAFO rule 
to EPA ``for further clarification and analysis,'' as follows:
(a) Water Quality-Based Effluent Limits
    The court agreed with EPA that agricultural stormwater is excluded 
from the meaning of the term ``point source'' and therefore is not 
subject to water quality-based effluent limitations in permits. 
However, the court directed EPA to ``clarify the statutory and 
evidentiary basis for failing to promulgate water quality-based 
effluent limitations for discharges other than agricultural stormwater 
discharges as that term is defined in 40 CFR 122.23(e),'' and to 
``clarify whether States may develop water quality-based effluent 
limitations on their own.''
(b) New Source Performance Standards--100-Year Storm Standard
    The 2003 CAFO rule set the new source performance standards (NSPS) 
for swine, poultry, and veal CAFOs at a level of zero discharge. A CAFO 
in these categories could fulfill this requirement by showing that 
either (1) its production area was designed to contain all manure, 
litter, process wastewater, and precipitation from the 100-year, 24-
hour storm, or (2) it would comply with ``voluntary superior 
environmental performance standards'' based on innovative technologies, 
under which a discharge from the production area would be allowed if it 
was accompanied by an equivalent or greater reduction in the quantity 
of pollutants released to other media (e.g., air emissions). The court 
found that EPA had neither justified in the record nor provided an 
adequate opportunity for public comment with respect to either of these 
provisions. As a result, the court remanded these provisions to EPA to 
clarify, via a process that adequately involves the public, the 
statutory and evidentiary basis for them.
(c) BCT Effluent Guidelines for Pathogens
    The court held that the 2003 CAFO rule violated the CWA because EPA 
had not made an affirmative finding that the BCT-based Effluent 
Limitations Guidelines (ELGs)--i.e., the ``best conventional 
technology'' guidelines for conventional pollutants such as fecal 
coliform--do in fact represent BCT technology. The court remanded this 
issue to EPA to make such a finding based on the BAT/BPT technologies 
EPA studied or to establish specific BCT limitations for pathogens 
based on some other technology.

D. What Requirements Still Apply to CAFOs?

    The Waterkeeper decision either upheld or did not address most 
provisions of the 2003 CAFO rule. This section describes certain key 
portions of the rule that were not challenged in Waterkeeper. These 
unchallenged provisions are not addressed in or affected by today's 
proposal, except to provide background information. EPA has not 
reconsidered its initial decision regarding these provisions and is not 
soliciting comment on them.
    The definitions provided in 40 CFR 122.23(b) of the 2003 CAFO rule 
remain in effect and are unchanged. First, an operation must be defined 
as an animal feeding operation (AFO) before it can be defined as a 
concentrated animal feeding operation (CAFO). 40 CFR 122.23. The term 
``animal feeding operation'' is defined by EPA regulation as a ``lot or 
facility'' where animals ``have been, are or will be stabled or 
confined and fed or maintained for a total of 45 days or more in any 12 
month period and crops, vegetation, forage growth, or post harvest 
residues are not sustained in the normal growing season over any 
portion of the lot or facility.''
    Whether an AFO is a CAFO depends primarily on the number of animals 
confined, which is also unchanged. Large CAFOs are AFOs that confine 
more than the threshold number of animals detailed in 40 CFR 
122.23(b)(4). Medium CAFOs confine fewer animals than Large CAFOs and 
also: (1) Discharge pollutants into waters of the U.S. through a man-
made ditch, flushing system, or other similar man-made device; or (2) 
discharge pollutants directly into waters of the U.S. which originate 
outside of and pass over, across, or through the facility or otherwise 
come into direct contact with the confined animals. 40 CFR 
122.23(b)(6)(ii). The NPDES permitting authority also may, on a case-
by-case basis, designate any AFO, including small AFOs, as a CAFO after 
conducting an on-site inspection and finding that the facility ``is a 
significant contributor of pollutants to waters of the United States.'' 
40 CFR 122.23(c). The permitting authority may not exercise its 
authority to designate a Small CAFO unless pollutants are discharged 
into waters of the U.S. through a man-made ditch, flushing system, or 
other similar man-made device, or are discharged directly into waters 
of the U.S. which originate outside of the facility and pass over, 
across, or through the facility or otherwise come into direct contact 
with the animals confined in the operation. 40 CFR 122.23(c)(3).
    Although the Waterkeeper decision invalidated the duty to apply 
provision promulgated in the CAFO regulations at 40 CFR 122.23(d), 
there remains in the NPDES regulations a different duty to apply 
provision, at 40 CFR 122.21(a), that applies to point sources in 
general, including CAFOs. While the CAFO provision in Sec.  122.23(d) 
would have required all CAFOs to apply for a permit, Sec.  122.21(a) 
requires only a person who ``discharges or proposes to discharge 
pollutants'' to apply. The Waterkeeper decision did not invalidate 
Sec.  122.21(a), nor is this provision's continued application to CAFOs 
inconsistent with the decision in Waterkeeper. Therefore, under Sec.  
122.21(a), CAFOs currently are

[[Page 37748]]

required to apply for an NPDES permit if they discharge or propose to 
discharge pollutants other than agricultural stormwater, which is not a 
point source discharge.
    It should also be noted that the definitions of both ``Medium 
CAFO'' and ``Small CAFO'' in the regulations include only those 
facilities that have an actual discharge. Thus, under Sec.  122.21(a), 
all Medium and Small CAFOs must apply for a permit.
    Nutrient management planning requirements for permitted CAFOs 
established in the 2003 CAFO rule also were unaffected by the court's 
ruling. All permitted CAFOs must develop and implement an NMP that 
meets the requirements of 40 CFR 122.42(e) and, for Large CAFOs subject 
to 40 CFR Part 412, subpart C or D, 40 CFR 412.4. The NMP identifies 
the necessary actions to ensure that runoff is eliminated or minimized 
through proper and effective manure, litter, and wastewater management, 
including compliance with the ELGs. Permitted CAFOs must comply with 
all applicable recordkeeping and reporting requirements, including 
those specified in 40 CFR 122.42(e).
    ELG requirements for existing Large CAFOs also are unaffected by 
the court decision, with the exception of changes to the NMP compliance 
dates and BCT. ELG requirements ensure the appropriate storage of 
manure, litter, and process wastewater and proper land application 
practices. They vary depending upon the types of animals confined: 
Subpart A for horses and sheep; Subpart B for ducks; Subpart C for 
dairy cattle, heifers, steers, and bulls; and Subpart D for swine, 
poultry, and veal calves. (40 CFR Part 412). Additionally, New Source 
requirements for beef and dairy operations remain unchanged (40 CFR 
412.35).
    Permitted small and medium CAFOs are not subject to the ELGs 
specified in part 412. Rather, they must comply with technology-based 
requirements developed by the permitting authority on a case-by-case 
basis (i.e., Best Professional Judgment (BPJ)).

E. Status of EPA's Response to the Waterkeeper Decision

    In addition to the changes made through this proposed rule, EPA 
extended certain deadlines in the NPDES permitting requirements and 
ELGs in a separate rulemaking in order to allow the Agency adequate 
time to complete this rulemaking in response to the Waterkeeper 
decision in advance of those deadlines. (71 FR 6978). That rule revised 
dates established in the 2003 CAFO rule by which facilities newly 
defined as CAFOs were required to seek permit coverage and by which all 
CAFOs were required to have nutrient management plans developed and 
implemented. EPA extended the date by which operations defined as CAFOs 
as of April 14, 2003, who were not defined as CAFOs prior to that date, 
must seek NPDES permit coverage, from February 13, 2006, to July 31, 
2007. EPA also amended the date by which operations that become defined 
as CAFOs after April 14, 2003, due to operational changes that would 
not have made them a CAFO prior to April 14, 2003, and that are not new 
sources, must seek NPDES permit coverage, from April 13, 2006, to July 
31, 2007. Finally, EPA extended the deadline by which CAFOs are 
required to develop and implement nutrient management plans, from 
December 31, 2006, to July 31, 2007. That rulemaking revised all 
references to the date by which NMPs must be developed and implemented 
as specified in the 2003 CAFO rule.

III. This Proposal

    This proposed rule is in response to the Second Circuit Court's 
vacature and remand orders. EPA intends to make only those changes 
necessary to address the court's decision.

A. Duty To Apply for a Permit

1. Provisions in the 2003 CAFO Rule
(a) Duty To Apply
    The 2003 CAFO rule required all CAFOs to seek coverage under an 
NPDES permit unless the Director determined that the CAFO has no 
potential to discharge. The breadth of this duty to apply was based on 
EPA's presumption that most CAFOs have a potential to discharge 
pollutants into waters of the United States. Therefore, all CAFOs were 
required to apply for a permit, except where the Director determined a 
CAFO had no potential to discharge.
(b) ``No Potential To Discharge'' Determination
    The 2003 CAFO rule included a process for CAFOs to seek a ``no 
potential to discharge'' determination by the Director. Where the 
Director determined, based on information supplied by the CAFO 
operator, that a CAFO had no potential to discharge manure, litter, or 
process wastewater, the CAFO operator had no duty to apply for a 
permit, unless circumstances at the facility changed such that the 
facility would have the potential to discharge. Examples of facilities 
that possibly would have qualified for this exemption included 
facilities in very arid areas, facilities that are downslope from 
waters of the United States, and facilities with completely enclosed 
operations.
2. Summary of the Second Circuit Court Decision
    The Second Circuit Court of Appeals vacated the provision that 
required all CAFO owners or operators to apply for an NPDES permit. The 
court held that the Clean Water Act authorizes EPA to require permits 
for the actual discharge of pollutants, but not for mere potential 
discharges. Because the 2003 CAFO rule imposed an obligation on all 
CAFOs to either apply for an NPDES permit or affirmatively demonstrate 
that they have no potential to discharge, the court ruled that it 
exceeded EPA's authority under the Clean Water Act.
3. This Proposal
    To address the court's decision on the duty to apply, EPA is 
proposing changes to the 2003 CAFO rule in two areas:
     Revising the requirement that all CAFOs apply for an NPDES 
permit; and
     Eliminating the procedures for a no potential to discharge 
determination.

    EPA also seeks to clarify how unpermitted CAFOs may meet the 
agricultural stormwater exemption when they land apply manure, litter, 
or process wastewater.
(a) Requirement That All CAFOs With a Discharge Seek Permit Coverage
    EPA is proposing to delete the ``duty to apply'' requirement 
adopted in the 2003 rule, which states that all CAFO owners or 
operators must seek coverage under an NPDES permit (40 CFR 122.21(a)(1) 
and 40 CFR 122.23(a) and (d)(1)).
    Today's proposed rule would replace the ``duty to apply'' 
requirement of the 2003 rule with a requirement that all CAFOs that 
``discharge or propose to discharge'' must seek coverage under an NPDES 
permit. This proposed change would address the Waterkeeper court's 
ruling and would hold CAFO owners and operators to the same ``duty to 
apply'' requirement as already exists for point sources under 40 CFR 
122.21(a)(1).
    The result of this proposed revision is that only owners and 
operators of those CAFOs that discharge or propose to discharge would 
be required to seek coverage under an NPDES permit. This revised duty 
to apply applies to all owners and operators that discharge or propose 
to discharge, regardless of the volume or duration of the discharge 
except for discharges of agricultural stormwater (see below). A 
facility may seek permit coverage in one of two

[[Page 37749]]

ways, by submitting an application for an individual permit or by 
submitting a notice of intent to be covered by a general permit that 
has been issued by the permitting authority. Generally, under this 
proposal, it would be the CAFO's responsibility to decide whether or 
not to seek permit coverage based on whether they discharge or propose 
to discharge. This is how the NPDES program operates for other point 
sources. Any CAFO that discharged or proposed to discharge and failed 
to obtain an NPDES permit would be in violation of the NPDES regulatory 
requirement to seek coverage under an NPDES permit. A facility with an 
actual discharge would also be in violation of the CWA prohibition 
against discharging without an NPDES permit (33 U.S.C. 1311(a)).
    Any discharge from a CAFO, even one that is unplanned or 
accidental, is illegal unless it is authorized by the terms of a 
permit. Many CAFOs have conditions that may result in a discharge. For 
example, manure structures that are improperly designed or, for other 
reasons, have insufficient capacity (e.g., due to facility expansion) 
may discharge. In addition, discharges can occur from a properly 
designed containment structure that is improperly operated and 
maintained or as a result of precipitation that exceeds the operating 
capacity of the structure. In the absence of an actual discharge or 
proposed discharge, CAFOs with such conditions are not required under 
the terms of today's proposed rule to obtain an NPDES permit. However, 
the owner or operator of a CAFO that fails to obtain an NPDES permit 
and has a discharge is subject to State or federal enforcement, as well 
as liability from citizen suits under CWA Section 505(a).
    Because discharges are prohibited from unpermitted CAFOs, NPDES 
permit coverage reduces CAFO operator risk and provides certainty to 
CAFO operators regarding activities and actions that are necessary to 
comply with the Clean Water Act. Compliance with the permit is deemed 
compliance with the CWA and thus acts as a shield against EPA 
enforcement or citizen suits under CWA Section 402(k). Furthermore, 
under the 2003 rule, most CAFO NPDES permits will incorporate ELG 
provisions that allow for discharge when precipitation causes an 
overflow from a structure that is properly designed, constructed, 
operated, and maintained, in accordance with the applicable design 
standards. Finally, upset provisions can protect permittees from legal 
liability when emergencies or natural disasters cause discharges beyond 
the permittee's reasonable control, as provided in Sec.  122.41(n). 
This protection is not available to unpermitted CAFOs.
    There are many factors a CAFO owner or operator should consider in 
determining whether to seek permit coverage. For example, if the CAFO 
is in a flood plain, subject to high annual precipitation, or subject 
to lengthy rainy seasons, it is likely to have a discharge if the CAFO 
drains to a water of the United States. Other factors likely to result 
in a discharge include runoff from open feed bunkers, field storage, or 
other stockpiles exposed to precipitation; lagoons that are not 
sufficiently pumped down for the upcoming winter season; holding of 
process wastewater for summer irrigation that precludes adequate 
capacity for chronic rainfalls; and inadequate containment due to 
unavailability of land for manure, litter, or process wastewater 
application due to timing constraints associated with, for example, 
saturated ground or imminent rain. In addition, a discharge may occur 
from land application due to improper maintenance or operation of 
manure handling equipment that may lead to spills, and application of 
manure, litter or process wastewater to land in such a way that it does 
not qualify for the agricultural stormwater exemption (see below).
    EPA recognizes that some CAFOs have a higher likelihood of actually 
discharging due to certain geographic and physiographic conditions. In 
order to guide CAFOs in making a decision on whether or not to seek 
permit coverage, EPA suggests that Large CAFOs falling into one or more 
of these categories should consider seeking permit coverage (this list 
is not intended to be exhaustive):
    1. Where a CAFO is located in close proximity to waters of the 
United States with land classified in USDA Land Use Capability Classes 
III through VIII \2\;
---------------------------------------------------------------------------

    \2\ Land capability classification is a system of grouping soils 
primarily on the basis of their capability to produce common 
cultivated crops and pasture plants without deteriorating over a 
long period of time. Soil survey map units contained in United 
States Department of Agriculture (USDA) soil surveys typically are 
assigned a land capability classification. The eight classes are 
defined as follows: Class 1 soils have slight limitations that 
restrict their use; Class 2 soils have moderate limitations that 
reduce the choice of plants or require moderate conservation 
practices; Class 3 soils have severe limitations that reduce the 
choice of plants or require special conservation practices, or both; 
Class 4 soils have very severe limitations that restrict the choice 
of plants or require very careful management, or both; Class 5 soils 
have little or no hazard of erosion but have other limitations, 
impractical to remove, that limit their use mainly to pasture, 
range, forestland, or wildlife food and cover; Class 6 soils have 
severe limitations that make them generally unsuited to cultivation 
and that limit their use mainly to pasture, range, forestland, or 
wildlife food and cover; Class 7 soils have very severe limitations 
that make them unsuited to cultivation and that restrict their use 
mainly to grazing, forestland, or wildlife; and Class 8 soils and 
miscellaneous areas (areas dominated by disturbed soil) have 
limitations that preclude their use for plant production and limit 
their use to recreation, wildlife, or water supply or for esthetic 
purposes.
---------------------------------------------------------------------------

    2. Where the CAFO's production area is not designed and operated 
for zero discharge, including where the containment structure is not 
designed or maintained to contain all manure, litter, process 
wastewater, precipitation and runoff that may accumulate during periods 
when the facility is unable to land apply in accordance with a nutrient 
management plan;
    3. Where a CAFO that land applies does not have or is not 
implementing nutrient management planning that is designed to ensure 
that any land application runoff qualifies for the agricultural 
stormwater exemption; and
    4. Where the CAFO has had a discharge in the past and has not 
corrected the factors that caused the discharge to occur.
    EPA seeks comment on the completeness and accuracy of the above 
list of situations where a discharge may occur to further assist CAFOs 
in their decisions regarding whether or not to seek permit coverage.
    EPA also solicits comment on its proposal to replace the duty to 
apply provision promulgated in the 2003 CAFO rule with the narrower 
duty to apply provision described above.
(b) ``No Potential to Discharge'' Determination
    EPA is proposing to delete the regulatory provisions adopted in the 
2003 CAFO rule allowing CAFOs to demonstrate that they have no 
potential to discharge and authorizing the Director to make such a 
determination. 40 CFR 122.23(d)(2) and 122.23(f). Such a designation 
would be irrelevant because the proposed rule requires only those CAFOs 
that discharge or propose to discharge to seek coverage under a permit.
(c) Agricultural Storm Water
    The discharge of manure, litter, or process wastewater from a land 
application area under the control of a CAFO is a discharge subject to 
NPDES permit requirements, unless the discharge is agricultural 
stormwater, which is excluded from the meaning of the term ``point 
source'' under 33 U.S.C. 1362(14).
    As described in the preamble to the 2003 rule, EPA recognized that 
manure, litter, or process wastewater applied in accordance with 
practices designed to

[[Page 37750]]

ensure appropriate agricultural utilization of nutrients fulfills an 
important agricultural purpose, namely the fertilization of crops, 
while reducing the potential for a subsequent discharge of pollutants 
to waters of the U.S. However, EPA also recognized that some runoff may 
occur during rainfall events even when a CAFO applies manure, litter, 
or process wastewater in accordance with practices designed to ensure 
appropriate agricultural utilization of nutrients. EPA believed that 
the potential for runoff and water quality impairments would be 
minimized where a CAFO implemented a site-specific NMP in conformance 
with 40 CFR 122.42(e)(1)(vi)-(ix) and, for Large CAFOs, the additional 
management practices required in 40 CFR 412.4(c).
    In the 2003 rule, EPA promulgated a definition of agricultural 
stormwater that included compliance with 40 CFR 122.42(e)(1)(vi-ix). 
The referenced regulatory text includes requirements for edge-of-field 
buffers, testing of manure and soil, land application at agronomic 
rates, and record keeping. While not explicitly included in the 
definition, Large CAFOs were also required under the effluent 
guidelines to comply with technical standards established by the 
Director, in accordance with 40 CFR 412.4(c). These more specific 
limitations implemented the general requirements at 40 CFR 
122.42(e)(1)(vi-ix), and because all CAFOs with a potential to 
discharge were required to obtain permits, virtually all Large CAFOs 
were required to comply with them.
    Under today's proposed rulemaking, Large CAFOs that have only 
agricultural stormwater discharges from their land application area, 
and no other discharges or proposed discharges from their production or 
land application areas, would no longer be required to seek permit 
coverage. (See 40 CFR 122.23(e).) However, precipitation-related 
discharges from CAFO land application areas would be considered 
agricultural stormwater only where the CAFO land applies in accordance 
with nutrient management practices that meet the requirements of 40 CFR 
122.42(e)(1)(vi)-(ix). EPA believes that, in order for the owner or 
operator of a CAFO to qualify for the statutory agricultural stormwater 
exemption, manure, litter, and process wastewater must be applied in 
compliance with technical standards that are, in significant part, 
intended to ensure the appropriate agricultural utilization of the 
nutrients contained in the manure, litter, and process wastewater.
    The Second Circuit upheld EPA's definition of agricultural 
stormwater, and EPA is not proposing to change the definition at this 
time, or requesting comment on such a change. However, EPA is 
considering requiring explicitly that Large CAFOs that are not 
permitted because they do not discharge or propose to discharge comply 
with the technical standards for land application established by the 
Director (in addition to meeting the requirements of 40 CFR 
122.42(e)(1)(vi-ix)) in order for runoff from their fields to be 
considered agricultural stormwater (which is exempt from permitting 
requirements). Even if EPA does not adopt this requirement explicitly, 
EPA believes that unpermitted Large CAFOs should incorporate the 
technical standards established by the Director into their NMPs. EPA 
also recommends that small or medium AFOs use nutrient management 
practices consistent with 40 CFR 122.42(e)(1)(vi-ix) and comply with 
the applicable technical standards in their land application of manure, 
litter, or process wastewater. EPA requests comment on this issue.
    Unpermitted CAFOs that land apply manure, litter, or process 
wastewater must document that they are land applying in accordance with 
the requirements described above in order to qualify for the statutory 
exclusion for agricultural stormwater. (See 40 CFR 122.42(e)(1)(ix).) 
The documentation required includes both the nutrient planning and the 
additional recordkeeping necessary to demonstrate that the CAFO 
properly land applied manure, litter, or process wastewater in 
accordance with 40 CFR 122.42(e)(1)(vi)-(ix), including the technical 
standards used to translate these requirements into specific land 
application rates and practices. EPA believes that an appropriate 
approach to planning and documenting such practices is by preparing a 
comprehensive nutrient management plan in accordance with guidance 
provided by USDA and the appropriate technical standards. Whatever form 
the documentation takes, it must be maintained on site. This 
documentation is crucial in determining whether the CAFO is land 
applying manure, litter, or process wastewater in a manner that ensures 
the appropriate agricultural utilization of nutrients and, as a result, 
is not illegally discharging pollutants from land application areas.

B. Nutrient Management Plans

1. Provisions in the 2003 CAFO Rule Affected by the Court Decision
(a) Requirement to Develop and Implement a Nutrient Management Plan
    Under the 2003 CAFO rule, NPDES permits for all CAFOs must include 
a requirement for the permittee to develop and implement a nutrient 
management plan. At a minimum, the NMP must include BMPs and procedures 
necessary to achieve effluent limitations and standards. The plan must, 
to the extent applicable, include the minimum elements established at 
40 CFR 122.42(e)(1)(i)-(ix). For Large CAFOs in the cattle, swine, 
poultry, and veal subcategories, the NMP must also meet the more 
detailed requirements in the Part 412 effluent limitations guidelines. 
For Small and Medium CAFOs, or other operations not otherwise subject 
to Part 412 requirements for land application, the required elements of 
a nutrient management plan would be further specified in the permit 
based on the best professional judgment (BPJ) of the permitting 
authority. The Second Circuit's decision did not affect these 
provisions and EPA is not revisiting them or soliciting comments.
(b) Due Dates for Developing and Implementing Nutrient Management Plans
    The 2003 CAFO rule required all CAFOs to develop and implement an 
NMP by December 31, 2006, except that CAFOs seeking to obtain coverage 
under a permit subsequent to that date were required to have an NMP 
developed and implemented upon the date of permit coverage. This timing 
was consistent with the dates for the implementation of the ELG, which 
required existing Large CAFOs to implement the land application 
requirements at 40 CFR 412.4(c) by December 31, 2006. (Following the 
court decision these dates were extended to July 31, 2007, to give EPA 
time to complete the current rulemaking (see Section II.E).)
    As discussed in the preamble to the 2003 CAFO rule, EPA believed 
that these dates were reasonable given that operations would have had 
three and a half years from the time the 2003 rule was issued to 
conduct the necessary planning and construction to implement an NMP. 
For Large CAFOs that are new sources (i.e., those commencing 
construction after the effective date of the 2003 CAFO rule), the land 
application requirements at 40 CFR 412.4(c) apply immediately.
    EPA concluded that this timeframe also allowed States to update 
their

[[Page 37751]]

NPDES programs and issue permits to reflect the NMP requirements of the 
2003 CAFO rule and provided flexibility for permit authorities to 
establish permit schedules based on specific circumstances, including 
prioritization of nutrient management plan development and 
implementation based on site-specific water quality risks and the 
availability of technical expertise for development of NMPs.
2. Summary of the Second Circuit Court of Appeals Decision on Nutrient 
Management Plans
    As previously discussed, the Second Circuit Court of Appeals found 
that the terms of the NMPs were effluent limitations and vacated the 
2003 CAFO rule insofar as the rule allowed permitting authorities to 
issue NPDES permits to CAFOs without: reviewing the terms of the 
nutrient management plans, providing for adequate public participation 
in the development, revision, and enforcement of the nutrient 
management plans, and including the terms of the nutrient management 
plan in the permit.
    The decision did not affect the required contents of nutrient 
management plans established at 40 CFR 122.42(e)(1) and 40 CFR 
412.4(c)(1) in the 2003 CAFO rule.
    The Second Circuit court decision did not vacate any NPDES permits 
issued pursuant to the 2003 CAFO rule. Therefore, such permits already 
issued to CAFOs by States or EPA prior to June 27, 2005 (the effective 
date of the court's decision), are not directly affected by the court 
decision and the nutrient management plan requirements in those permits 
remain in effect until and unless the permits are modified, revoked and 
reissued, or terminated in accordance with State regulations.
3. This Proposal
    To address the court's decision, EPA is proposing regulatory 
revisions to the 2003 CAFO rule and other provisions of the NPDES 
regulations to provide for:
     Receipt and review of the nutrient management plan by the 
permitting authority prior to issuing an individual permit or granting 
coverage under a general permit;
     Procedures to provide opportunity for adequate public 
participation prior to issuing an individual permit or granting 
coverage under a general permit; and
     Incorporation of the terms of the nutrient management plan 
into the NPDES permit.
    In proposing these revisions, EPA has devoted particular attention 
to the process for issuance of general permits, because most CAFOs are 
expected to be covered by general permits and, for those that will be 
permitted under individual permits, the individual permitting process 
already allows for review of NMPs by the permitting authority, public 
review of an NMP as part of the individual permit application process, 
and incorporation of the terms of the NMP into the individual permit 
consistent with the CWA. Further, EPA proposes a process to address 
changes to the NMP once permit coverage is granted, for both individual 
and general permits. To effectuate these changes, EPA is proposing 
regulatory revisions to 40 CFR 122.21, 122.23, 122.28, 122.42, 122.62, 
and 122.63. In addition, in a separate rulemaking EPA extended the 
deadlines set in the 2003 CAFO rule for NMP development and 
implementation, as well as for newly defined CAFOs to seek permit 
coverage. (71 FR 6978.)
    The preamble discussion that follows is divided into six sections 
to separately address each of the following issues:
     CAFO permit application and notice of intent requirements;
     Procedures for permitting authority review;
     Procedures for public review and comment;
     Incorporation of nutrient management plan terms in NPDES 
permits;
     Changes to nutrient management plans; and
     Required dates to seek coverage under a permit and submit 
an NMP.
(a) CAFO Permit Application or Notice of Intent Requirements for 
Nutrient Management Plans
    In order to satisfy the court's requirements that the terms of a 
nutrient management plan must be publicly reviewed and incorporated 
into the permit, EPA is proposing to revise 40 CFR 122.21(i)(1)(x) to 
require the applicant to submit, as part of its permit application or 
notice of intent (NOI), a nutrient management plan developed in 
accordance with the provisions of 40 CFR 122.42(e)(1) and 40 CFR 
412.4(c)(1), as applicable. Although this proposed change would be 
codified in the section of the regulations applicable to individual 
permit applications (40 CFR 122.21(i)(1)), it would also apply to 
notices of intent to be covered by a general permit, because 40 CFR 
122.28(b)(2)(ii), the regulation governing notices of intent for 
general permits, incorporates the requirements of 40 CFR 122.21(i)(1) 
by reference. EPA Application Form 2B will also be revised to reflect 
these changes. The revised form is provided as Appendix A to this 
notice.
    This approach is consistent with the decision of the Second Circuit 
Court of Appeals, which left undisturbed the basic substantive 
requirements for nutrient management plans in the 2003 CAFO rule. The 
proposed revisions would not change the required contents of the NMP, 
but would now require CAFOs to submit the plan with the application or 
the notice of intent rather than only at the request of the Director. 
The permitting authority would then make the nutrient management plan 
available for review prior to developing an individual permit or 
providing coverage under an NPDES general permit.
(b) Procedures for Permitting Authority Review
    Once the permitting authority receives an application or an NOI 
from a CAFO seeking permit coverage, it would be the responsibility of 
the permitting authority to review the application or NOI to ensure 
that the nutrient management plan meets the requirements of 40 CFR 
122.42(e)(1) and, for Large CAFOs, the applicable requirements of 40 
CFR 412.4(c). As part of that process, the Director would review the 
NMP for completeness and sufficiency. EPA believes that this review 
process responds to the Waterkeeper decision by providing for 
permitting authority review of the NMP.
    For individual permits, the NMP would be submitted and reviewed as 
part of the permit application. The decision-making procedures in 40 
CFR Part 124 continue to apply to the Director's review of the 
application, which now would include the NMP. Part 124 requires review 
of the completeness and sufficiency of the permit, includes an 
opportunity for the CAFO to modify the plan or provide additional 
information to the permitting authority, and provides for a final 
decision by the Director after an opportunity for public comment and a 
public hearing.
    While the review process for NMPs in individual permits is already 
established in existing NPDES regulations, there are gaps in the 
requirements for general permitting of CAFOs that EPA proposes to fill 
in order to address the Second Circuit Court decision. Specifically, 
EPA is proposing new regulatory provisions to establish permitting 
authority review of NMPs for CAFO general permits. These procedures are 
in the proposed new Paragraph (d) to be added to 40 CFR 122.28.
    Proposed 40 CFR 122.28(d) would require the Director to review the 
NMP submitted with the NOI and to take

[[Page 37752]]

appropriate steps to ensure that the NMP meets the requirements of the 
regulations. If upon review the permitting authority determines that 
additional information is necessary to complete the notice of intent or 
clarify, modify, or supplement previously submitted material, the 
Director would notify the CAFO owner or operator and request the 
appropriate information be provided. When the NOI is complete the 
permitting authority would notify the public of its receipt and of the 
terms of the nutrient management plan proposed to be incorporated into 
the existing general permit as terms and conditions applicable to that 
CAFO. Following an opportunity for public comment and public hearing, 
the permitting authority would decide whether to authorize coverage 
under the general permit and incorporate the terms of the NMP into the 
general permit for that CAFO.
    EPA is considering the use of a template which could be used as a 
voluntary tool to facilitate completion of the NMP by CAFO applicants, 
as well as to facilitate review by the permitting authority. Such a 
template would help to systematically organize the information 
necessary to satisfy the NMP requirements in the regulation. The 
template could, for example, be used as a form, that when completed by 
the operator, and approved by the permitting authority, could suffice 
as the NMP itself. Alternatively, it could also be used as a checklist 
that the operator and/or permitting authority could use to organize the 
information in the NMP and to assist in assessing its adequacy (see 
Section III.B.3.d, below). It would be up to the permitting authority's 
discretion as to how to incorporate the terms of the NMP into the 
permit and permitting authorities might need to tailor any template to 
their permit process and technical requirements, including the 
technical standards established by the Director.
    EPA has developed a draft template for public review that is 
intended to be user friendly. It follows the requirements for an NMP 
identified in 40 CFR 122.42(e) relating to: manure storage; management 
of animal mortalities; diversion of clean water; prevention of direct 
contact of animals with waters of the US; chemical handling; site-
specific conservation practices; protocols for testing manure, litter, 
process wastewater and soil; protocols for land application; and 
recordkeeping. This draft template is in the public record for this 
rulemaking at www.regulations.gov under docket  EPA-HQ-OW-
2005-0037 and is also available on the EPA Web site at www.epa.gov. EPA 
is interested in receiving feedback on the form and content of the 
template.
(c) Procedures for Public Participation Prior to Permit Coverage
    As noted above, the regulatory procedures for public participation 
in the issuance of individual permits are already established. (See 
generally, 40 CFR Part 124.) Because the NMP would be part of the 
individual permit application, it would be subject to existing 
regulations requiring public participation, including the requirement 
for public notice (40 CFR 124.10) and the opportunity for the public to 
provide comments and request a public hearing (40 CFR 124.11). Because 
of the proposed regulatory change requiring nutrient management plans 
to be submitted with the permit application (see discussion at 
II.B.3.i.; 40 CFR 122.21 and 122.28), the public would have access to 
the nutrient management plan prior to permit issuance and would also 
have full opportunity to comment on the adequacy of the plan and on the 
nutrient management terms and conditions of the draft NPDES permit 
developed for the specific CAFO facility. EPA believes that this 
process responds to the court's decision.
    The general permit issuance process differs from the individual 
permitting process discussed above in the way in which a permit is 
developed and the means by which individual facilities obtain coverage 
under the permit. A general permit is developed by the permitting 
authority to cover multiple facilities without the need to receive 
individual permit applications from facilities in advance of the 
development of the permit. Once the draft general permit is developed, 
the public (including potential future permittees) is provided the 
opportunity to review the permit, submit comments, and request a 
hearing. After considering any comments submitted, the permitting 
authority then finalizes the general permit. Once the final general 
permit is issued, facilities may submit a notice of intent (NOI) 
seeking coverage under the permit. Typically, the permitting authority 
then grants coverage, without the need for further public notice and 
comment, or requires the facility to seek coverage under an individual 
permit.
    Following the Waterkeeper decision, general permits for CAFOs must 
be modified, once issued, to include the terms of an NMP applicable to 
a specific CAFO. Moreover, Waterkeeper requires that the public have an 
opportunity to comment on the incorporation of NMP requirements into 
the permit. Thus, a second round of public notice and comment is 
necessary when providing coverage for CAFOs under a general permit. 
There is no provision in the existing regulations that explicitly 
addresses incorporation of site-specific requirements into a general 
permit when a CAFO seeks coverage or any additional public process for 
such incorporation.
    Today, in proposed 40 CFR 122.28(d), EPA proposes to establish new 
procedures applicable to the general permitting process that would 
allow the incorporation of the site-specific NMPs into CAFO general 
permits and provide an opportunity for public review of a CAFO's NOI 
(including the entire NMP) before the CAFO receives coverage under a 
general permit. The proposed procedures would also allow the public to 
review and comment on those terms of the nutrient management plan to be 
incorporated into the permit, and to request a public hearing before a 
CAFO receives coverage under a general permit. The discussion that 
follows describes the process for public participation that EPA is 
proposing. Further discussion of incorporation of the terms of the NMP 
into the general permit is provided below in section III.B.3.d of this 
preamble.
    The proposed Sec.  122.28(d) would provide specific procedures for 
public participation. The proposed rule would require that, for each 
facility submitting a completed NOI, the permitting authority must 
notify the public of the following: (1) That it has received a complete 
NOI; (2) that the permitting authority is proposing to allow coverage 
under the general permit; and (3) that the nutrient management plan is 
available for public review, along with the terms of the nutrient 
management plan proposed to be incorporated into the permit by the 
permitting authority.
    Today's proposed rule would allow the permitting authority 
discretion as to how best to provide such public notification in the 
general permit context. For example, public notification could be 
provided on the permitting authority's web page or through other 
electronic means. Another alternative would be to use the notice or 
fact sheet for the general permit to establish a procedure allowing any 
person to request notice by mail or electronically of the receipt of an 
NOI, the permitting authority's proposed action, and the terms of the 
nutrient management plan proposed to be incorporated into the permit. 
EPA believes that these are appropriate ways to balance the competing 
concerns of providing adequate notification to the public, providing 
flexibility to the permitting authority, and ensuring the practicality 
of general permits. The

[[Page 37753]]

permitting authority should describe the process to be used to give the 
public notice of and comment opportunities on site-specific NMPs in the 
draft and final general permit to ensure meaningful public 
participation. EPA solicits comment on the methodology for providing 
public notice.
    Under today's proposal, the Director would also have discretion to 
establish an appropriate period of time for public review of the NOI 
and proposed permit conditions incorporating the terms of the NMP into 
the permit. For example, the Director might establish a period of 30 
days, depending upon a variety of factors. Factors to consider might 
include the number of NOIs being publicly noticed at any one time, the 
complexity of the material made available for public review, expected 
level of public interest based on prior notices of CAFOs seeking 
coverage, the relative availability of NOIs to the public (e.g., on the 
internet), the opportunity for the public to extend the comment period 
for one or more facilities, and whether individuals can request and 
receive individual notification of CAFOs seeking coverage in a timely 
fashion. Because this proposal would not mandate a 30-day public notice 
period as currently required in 40 CFR 124.10, EPA would require that 
the Director establish a time frame for public review by regulation or 
propose the time frame for public notice in the draft general permit 
and include it as a provision in the final permit. This would allow the 
public and other interested parties an opportunity to comment on the 
sufficiency of the time allotted for public notice. EPA solicits 
comment on this approach, as well as on fixed minimum time frames for 
public review, such as 7 days, 15 days, 21 days, and 30 days.
    The Director would also have to provide an opportunity for the 
public to request a hearing. EPA further proposes that the procedures 
for requesting and holding a hearing on the terms of the NMP to be 
incorporated into the general permit would be the same as those for 
draft individual permits, which are provided in Sec. Sec.  124.11 
through 124.13. When granting permit coverage, the permitting authority 
would be required to respond to all significant public comments.
    EPA believes that the proposed processes will provide adequate 
notice to affected States. CWA section 402(b)(3) provides that the 
Administrator, in approving State programs, shall make sure adequate 
authority exists to ensure notice to ``any other State the waters of 
which may be affected'' and Section 402(b)(5) provides that the 
Administrator must insure that any State ``whose waters may be affected 
by the issuance of a permit may submit written recommendations to the 
permitting State'' and that if those recommendations are rejected that 
the permitting State notify the affected State in writing of the 
reasons for the rejection. Although today's proposal does not include 
provisions specifically intended to address these requirements, EPA 
believes that the public notice provisions are sufficient to notify 
affected States. Additionally, the permitting authority's response to 
all significant comments would include responses to comments from 
affected States. EPA solicits comment from States and other interested 
parties as to whether this approach is adequate or whether there are 
specific requirements for review by affected States that should be 
added to this proposal.
    The proposed rule seeks to balance several competing concerns in 
crafting the public participation procedures for general permitting of 
CAFOs. First, EPA believes that the proposed rule would maintain the 
utility of a general permit program as a resource-efficient method by 
which to authorize multiple dischargers under an NPDES permit while 
meeting the court's directive to ``provide for adequate public 
participation'' in the development of site-specific effluent 
limitations. Waterkeeper Alliance et al. v. EPA, 399 F.3d at 524. 
Second, EPA believes the proposed rule would provide sufficient 
flexibility for State permitting authorities to adopt their own 
procedures while ensuring they meet the public participation 
requirements of the Clean Water Act. EPA is attempting to implement the 
Second Circuit decision in a way that would not have the effect of 
eliminating the use of general permits for CAFOs. Because of the large 
number of CAFOs that may seek permit coverage, the Agency considers it 
appropriate to develop procedures that would allow and encourage 
permitting authorities to continue the use of NPDES general permits as 
a means for applying Clean Water Act limitations and standards to CAFOs 
on a timely basis. Of course, the Director may always require a 
facility to apply for an individual permit instead of allowing coverage 
under a general permit (even after coverage under a general permit has 
been granted) under already existing regulations.
    EPA seeks comment on the approach taken in today's proposal 
concerning public participation in the general permitting process. 
Specifically, the Agency is interested in comment as to whether the 
procedures strike an appropriate balance between the above mentioned 
competing concerns.
(d) Incorporation of Nutrient Management Plan Terms in NPDES Permits
    EPA is proposing to modify the language of 40 CFR 122.42(e)(1) to 
require that any individual or general permit issued to a CAFO contain 
the terms of the NMP. In the 2003 CAFO rule, the Agency finalized 
regulations that required each CAFO permit to include requirements to 
develop and implement a nutrient management plan that met the 
conditions specified in 40 CFR 122.42(e)(1)(i)-(ix) and, for Large 
CAFOs, that also fulfilled the requirements of 40 CFR 412.4(c). The 
Second Circuit decision did not affect these requirements and EPA is 
not revisiting its decision with respect to the contents of the 
nutrient management plan. The NMP must continue to include the elements 
in 40 CFR 122.42(e)(1)(i) through (x) and the elements required by the 
effluent limitation guideline at 40 CFR 412.4(c), where applicable. 
However, the proposal would ensure that the terms of the NMP become 
terms and conditions of the permit, as required by the Second Circuit.
    The Waterkeeper decision requires the permitting authority to 
include the terms of a CAFO's nutrient management plan in the NPDES 
permit issued to the CAFO. The court's opinion appeared to distinguish 
between the ``nutrient management plan,'' which must be submitted by 
the CAFO to the permitting authority for review (as discussed above), 
and the ``terms'' of the nutrient management plan, which must be 
incorporated into the permit following the public review process 
described above. In light of the court's opinion, EPA is proposing to 
require the permitting authority to incorporate the terms of the NMP 
into the permit as enforceable terms and conditions of the permit. At a 
minimum, the terms of the NMP must meet the requirements specified in 
40 CFR 122.42(e)(1)(i)-(ix) and 412.4(c) (for Large CAFOs, as 
applicable). Thus, the terms of the NMP would need to ensure, for 
example, adequate storage of manure, litter, and process wastewater, 
proper management of mortalities, and diversion of clean water. The 
terms of the NMP would identify site-specific conservation practices to 
be implemented by the CAFO and establish site-specific requirements for 
proper land application of manure, litter, and process wastewater, 
including application rates.

[[Page 37754]]

    EPA expects that a submitted NMP, as a whole, will include data, 
calculations, and other information that provide a basis for the terms 
of the NMP and any other planning decisions encompassed in an NMP. The 
data, calculations, and additional information are generally analogous 
to both the information contained in a permit application and the 
assumptions, calculations, and other determinations typically provided 
as part of the fact sheet that is prepared for every draft NPDES 
permit. On the other hand, the terms of the NMP are the sort of 
requirements normally found as terms and conditions in a permit. In 
other words, whereas a fact sheet (or, in this case, the supplemental 
information provided in the NMP) contains the information that forms 
the basis of the requirements included in a permit, the permit itself 
contains the actual requirements applicable to the permitted facility. 
A complete NMP contains both the requirements applicable to the 
facility (``the terms of the NMP'') and the background information 
(assumptions, data, calculations, etc.) which provide the basis for 
those requirements.
    This relationship is well illustrated when considering rates of 
application for land applying manure, which, for Large CAFOs, must be 
developed consistent with technical standards for nutrient management 
established by the Director in accordance with 40 CFR 123.36. These 
technical standards typically require application rates to be 
calculated using the Phosphorous Index or its equivalent established by 
the State. The calculations in turn are derived from data from fields 
where land application is to occur and predictions for nutrient 
utilization based upon crops to be planted in those fields. In 
preparing an NMP, a CAFO would include both the data necessary to 
determine the application rates in accordance with the applicable 
technical standards and the calculations it used to determine those 
rates.
    EPA believes that it is appropriate to allow the permitting 
authority discretion as to how to incorporate the terms of an NMP that 
meets the regulatory requirements of 40 CFR 122.42(e) and 412.4 into 
the permit. For example, the permitting authority could simply attach 
the whole NMP to the permit and require implementation of the terms of 
the NMP as a condition of the permit. Alternatively, the permitting 
authority could identify and extract the terms of the NMP from the 
larger document and incorporate only the extracted terms into the 
permit. Another possibility is that the software used by some nutrient 
management planners to develop NMPs could be modified to generate a 
separate form that would clearly identify the terms of the NMP when 
generating the whole NMP report. As mentioned above, the Agency is 
considering the use of a model or template for identification of the 
terms of the NMP. The Agency solicits comment on these various 
approaches to identify the terms of the NMP that would be included in 
the permit.
    EPA also seeks comments on a modified approach as an alternative to 
the process described above for incorporating nutrient management terms 
and conditions into general permits. It is premised on EPA's 
recognition that some NMP requirements may be broadly applicable to all 
of the CAFOs covered by a general permit. Under this approach there 
would be three possible categories of permit conditions. The first 
category would include permit conditions that can be established in the 
general permit itself so as to apply to all CAFOs seeking coverage 
under that permit. The second category would allow for flexibility in 
some broadly applicable requirements. Conditions falling into this 
category would lend themselves to a default requirement set by the 
permitting authority, with the option for facilities to substitute 
alternative measures in their NMPs that are equivalent or more 
effective in achieving the same objective. In such instances, of 
course, it would be necessary for the permitting authority to review 
the NMP submitted by each CAFO that chooses such alternative measures 
to determine whether the selected measures satisfy the relevant 
regulatory requirement(s). The third category would include those 
requirements for which a broadly applicable condition in the general 
permit would not be possible because they are of necessity facility-
specific. A prime example of this third category is the requirement for 
field-specific rates of application.
    Under this alternative approach, for the first category of 
conditions, the permitting authority would have the discretion to 
incorporate some NMP requirements into the terms and conditions of the 
general permit itself so they are applicable to all CAFOs covered by 
the permit. Examples of requirements that might lend themselves to the 
first category include, 40 CFR 122.42(e)(1)(iii) (diversion of clean 
water), (iv) (prevent contact of confined animals with waters of the 
United States), and (v) (proper disposal of chemicals), and 40 CFR 
412.37(a)(4) (mortality management)).
    During the comment period on the draft general permit, the public 
would have the opportunity to comment and request a hearing on the 
broadly applicable nutrient management terms and conditions proposed by 
the permitting authority. If after notice and comment the permitting 
authority included these conditions in the final permit, the permitting 
authority would be free to focus greater attention on those terms of a 
facility's nutrient management plan that were actually site-specific 
(i.e., those conditions in the second and third categories, described 
below, specified in the facility's NMP). Of course, the public would 
still have the opportunity to review each CAFO's nutrient management 
plan (as well as the terms of the NMP that would be included in the 
general permit) to ensure that the plan complied with all conditions of 
the general permit. EPA seeks comment on the feasibility of utilizing 
this approach under a general permit.
    For the second category of permit conditions in this modified 
approach, the permitting authority might establish broadly-applicable 
permit terms that could be implemented through specific NMP measures, 
while allowing for flexibility as previously noted. For example, the 
permitting authority could set a minimum requirement for adequate 
storage of manure (40 CFR 122.42(e)(1)(i)) by specifying the number of 
days of storage capacity for each facility type. In such an instance, a 
facility wishing to take an alternative approach would need to 
describe, for example, the alternative measures it would take that 
would justify a shorter period of storage capacity. Other broadly 
applicable requirements that so many qualifiers could lend themselves 
to site-specific alternatives might include permit conditions requiring 
conservation practices to reduce soil erosion from land application 
areas to the tolerable rate (``T'') as a standard to ensure adequate 
conservation practices, as required by 40 CFR 122.42(e)(1)(vi), or 
requiring CAFOs to address the timing of land application (40 CFR 
412.4(c)(2)(i)) in part by prohibiting surface application of manure on 
frozen or snow-covered land that is upslope from waters of the United 
States. EPA solicits comment on such an approach, the sort of measures 
that might lend themselves to such an approach, and the sort of 
alternative measures that might qualify as site-specific substitutions.
    Under this alternative methodology for establishing some terms of 
the NMP, the permitting authority would still need to identify the 
third category of facility-specific terms of the nutrient

[[Page 37755]]

management plan to be incorporated into the permit. For example, the 
permitting authority would need to identify the manure, litter, and 
process wastewater application rates in each CAFO's nutrient management 
plan on a site-specific basis and incorporate those rates as terms and 
conditions of the permit before the permitting authority could 
authorize coverage of the CAFO under the permit. The public would have 
the opportunity to review and comment and request a hearing on these 
site-specific terms and conditions, as well as on the NMP's adequacy to 
satisfy any generally applicable permit requirements, as provided by 
the procedures in today's proposal.
    EPA believes the alternative described above has the potential to 
speed the pace at which unpermitted CAFOs receive authorization under 
general permits while being consistent with the Second Circuit 
decision. In seeking comments, EPA specifically asks States to comment 
on the possible workload burden associated with the procedures proposed 
today as well as the alternative described immediately above.
    For either approach discussed above, EPA is proposing that the 
permitting authority would be required to respond to all significant 
comments received during the comment period. As necessary, the Director 
would require a CAFO owner or operator to make revisions to the CAFO's 
NMP in order to address issues raised during the review process. Once 
the Director determines that the process for the development of a 
CAFO's NMP has been completed, the Director must make a final decision 
whether to grant permit coverage to the CAFO under the general permit. 
If coverage is granted, the Director must incorporate the relevant 
terms of the NMP into the general permit and inform the CAFO owner or 
operator of the terms of the NMP that have been incorporated as permit 
conditions.
    Under today's proposal, incorporation of the terms of a particular 
CAFO's NMP into a general permit would not be a permit modification 
subject to 40 CFR 122.62. Rather, EPA views this as an extension of the 
CAFO general permitting process itself. As discussed above, EPA intends 
the process proposed in 40 CFR 122.28(d)(1) to generally parallel the 
procedures in 40 CFR Part 124. A person who objects to the 
incorporation of the terms of an individual CAFO's NMP into a general 
permit could appeal the permit decision to the Environmental Appeals 
Board pursuant to 40 CFR 124.19, when EPA is the permitting authority.
    EPA seeks comment on today's proposed process for incorporation of 
the terms of a CAFO's NMP into NPDES permits. EPA specifically seeks 
comment from States on the workload implications of requiring the 
permitting authority to respond to all significant comments on each 
individual CAFO's NOI (including the NMP) and the terms of the NMP to 
be incorporated into the permit.
    (e) Changes to Nutrient Management Plans
    When a CAFO obtains coverage under an NPDES permit, as proposed in 
today's notice, it would be the CAFO's responsibility to implement the 
terms and conditions of the nutrient management plan as incorporated 
into the permit, as of the date of permit coverage. Because 
agricultural operations sometimes modify their nutrient management and 
farming practices as a normal part of their operations, and because 
such alterations may require changes to NMPs after a permit is issued, 
EPA is proposing a permit revision process to specifically address 
these circumstances.
    The Agency does not, however, believe that such a process is 
necessary for all operating changes at a CAFO. Most routine changes at 
a facility should not require changes to the NMP itself because of the 
way NMPs are developed. Nutrient management plans are dynamic documents 
and are developed to accommodate routine variations, for example 
changes resulting from anticipated crop rotation or climatic 
variability inherent in agricultural operations, as well as changes in 
numbers of animals and volume of manure, litter or process wastewater 
resulting from normal fluctuations or a facility's planned expansion. 
Nevertheless, as discussed in the preamble to the 2003 CAFO rule, 
changes to a nutrient management plan will be necessary under some 
circumstances; for example, when there is a substantial increase in the 
number of animals, or a major change in the CAFO's cropping program not 
anticipated in the original NMP.
    EPA encourages CAFO operators to develop, at the outset, NMPs that 
thoughtfully anticipate, to the extent feasible, all contingencies and 
changes in operations that may occur over the term of the permit. The 
NMP should provide information on possible crop rotations or other 
alterations in cropping patterns with accompanying field-specific 
calculations for manure, litter, and process wastewater application 
rates based on realistic crop yield goals, soil characteristics, 
weather, and other site-specific field conditions. In this way, the 
public will have the opportunity to review all anticipated operational 
scenarios and associated field-specific manure, litter, and process 
wastewater application rates, including the calculation on which these 
rates were based. In this manner, NMPs and associated permit conditions 
can address most year-to-year changes in nutrient management practices 
during the term of the permit and greatly reduce the need for NMP and 
associated permit modifications as a range of potential operational 
scenarios will have already been accounted for.
    For example, the NMP could specify: (1) The maximum amount of 
manure that the CAFO may apply to land application areas under its 
control, based on its total available land application area and the 
capacity of its waste storage and treatment facilities, as well as 
manure and soil test results; (2) the maximum amount of manure that may 
be transferred to other persons (see Sec.  122.42(e)(3)) by the CAFO, 
given limitations on available markets, the cost of transporting 
wastes, etc.; (3) a complete inventory of all of the fields under the 
CAFO's control that might receive manure, with the associated acreage, 
soil types, soil tests and testing protocols, setbacks, and other soil 
conservation measures; (4) a list of all of the crops the CAFO may wish 
to grow on each of those fields, with a matrix of the associated 
realistic yield expectations and land application rates consistent with 
the various field conditions; and/or (5) plans to address contingencies 
(e.g., a spill or especially heavy rainfall event), including 
consultation with the permitting authority as appropriate.
    The NMP should indicate calculations necessary to determine rates 
of application for the array of crops most likely to be planted in 
accordance with the cropping system utilized by the CAFO operator, 
including likely fallback scenarios. For Large CAFOs, the land 
application rates must comply with the ELG requirements of 40 CFR 
412.4. The NMP may also identify other crops that could be planted and 
other fields that might be utilized for land application, thus allowing 
the CAFO to utilize a mix of fields and crops different from the most 
likely or preferred combinations. Nevertheless, the NMP should 
reasonably forecast the practices most likely to be utilized by the 
CAFO. EPA solicits comment on the degree of flexibility that should be 
allowed in NMPs. Greater flexibility would minimize the need for 
subsequent permit revisions, but will also increase the up-front work 
load, both for the permittee and for the

[[Page 37756]]

permitting authority, and provide the permitting authority and the 
public with less certainty as to which practices the CAFO will actually 
utilize.
    Even when a CAFO owner or operator develops an NMP that encompasses 
a significant degree of flexibility, it nevertheless may be necessary 
to revise the NMP during a CAFO's term of permit coverage. EPA believes 
that, due to the issues associated with agricultural operations and the 
variables associated with nutrient management planning, including 
seasonal variations, weather, soil and slope variation, and 
availability of feed, seed, and other resources, it is necessary to 
provide flexibility in the best management practice requirements for 
CAFOs beyond that typically available for other permit conditions. 
Consistent with this objective, EPA is proposing to establish specific 
protocols to allow changes to an NMP after permit coverage has been 
granted.
    EPA is proposing formal public notice and comment procedures that 
the permitting authority would be required to follow for permit 
modification when a CAFO is seeking to make substantial changes to its 
NMP. EPA is proposing that substantial changes would include, but are 
not limited to: (1) Changes that could result in an increase in runoff 
of manure, litter, or process wastewater from the facility; (2) an 
increase in the rate of nutrients from manure, litter, or process 
wastewater applied to the land application area that is significant in 
relation to technical standards established by the Director; (3) a 
significant change in the nutrient balance at the CAFO caused by: (i) 
An increase in the ratio of animals, manure, litter, or process 
wastewater to the available land application acreage or storage 
capacity; (ii) changes in the CAFO's procedures for handling, storage, 
treatment, or land application of manure, litter, or process 
wastewater; (iii) a significant increase in the number of animals; or 
(iv) a significant reduction of manure, litter, or process wastewater 
hauled off site when there is no equivalent decrease in the amount of 
manure, litter, or process wastewater produced; and (4) the addition of 
land application areas not previously included in the nutrient 
management plan. Specific examples of such changes would include 
changes to the method of land application from injection to surface 
application, changes in timing from spring to late fall or winter 
application, and installation of new drainage systems that would 
increase runoff from land application fields. The proposed new 
paragraph 40 CFR 122.42(e)(5)(iv) identifies what would constitute 
substantial changes to the facility's NMP that would trigger this 
process for permit revisions.
    For these types of changes, EPA is proposing to create new 
procedures in 40 CFR 122.42(e)(5) to allow CAFOs to change their 
nutrient management plans after the Director has incorporated the terms 
of the NMP into the permit. These procedures, which would be available 
to CAFOs operating under both individual and general permits, would be 
nearly identical to those for CAFOs seeking coverage in the first 
place. The Agency believes that such a process satisfies the need for 
the permitting authority and the public to have ample opportunity to 
review and comment on changes to a facility's NMP, while allowing the 
CAFO the flexibility it needs.
    In addition, there may be changes at a facility that were not 
contemplated in the currently applicable NMP that do not require 
substantial changes to the terms of the NMP in the permit. In these 
instances, while a revised NMP would need to be submitted to the 
Director, the Director should not need to seek public comment on the 
revised NMP. Such changes might include, for example, changes in 
cropping patterns not anticipated in the original NMP where they are 
managed consistent with the original plan and properly documented. In 
such instances, today's proposal would require the CAFO owner or 
operator to provide the revised NMP, along with appropriate 
documentation to reflect changed conditions, to the permitting 
authority. The better the documentation of the terms in the NMP, 
including calculations, the easier it will be for a permitted facility 
to demonstrate that changes in its nutrient management practices are 
non-substantial modifications of its NMP.
    Today's proposal (see proposed 40 CFR 122.42(e)(5)) would require 
that, whenever a CAFO makes any change to its NMP, the owner or 
operator would provide the Director with the revised NMP and identify 
the changes from the previous version submitted to the permitting 
authority. The Director would then review the changes to ensure that 
the NMP still meets the requirements of 40 CFR 122.42(e)(1)(i) through 
(x) and, for Large CAFOs, 40 CFR 412.4(c) and technical standards 
developed by the Director. If the changes are not substantial, the 
Director would simply modify the permit as necessary and notify the 
public of such modification (and not seek public comment). If the 
changes are substantial, the nutrient management plan would be revised 
using procedures similar to those proposed for the initial 
incorporation of an NMP into a general permit. Thus, today's proposed 
rule would require the Director to notify the public of substantial 
changes, and provide an opportunity for public notice and comment. 
Moreover, the appeals process would be the same as that for 
incorporation of NMPs into a general permit. EPA solicits comment on 
the approach proposed to deal with NMP revisions, as well as on the 
conditions concerning what constitutes a substantial change to an NMP.
    Because the process in 40 CFR 122.42(e)(5) would allow for public 
review of changes to the terms of nutrient management plans and the 
underlying data and calculations, EPA proposes that the incorporation 
of changes to the permit through this process would be treated as a 
minor permit modification, under Sec.  122.63(h), and not require 
additional review. EPA considered requiring any change to the NMP to be 
considered a permit modification requiring procedures under Sec.  
122.62, but rejected this option as it would significantly burden 
permitting authorities and CAFO operators' ability to make necessary 
and timely minor changes to NMPs as discussed above.
    For substantial changes, the Agency also proposes to expressly 
allow the facility, at the Director's discretion, to proceed in 
implementing the change for up to 180 days before completion of public 
review and permitting authority approval, so long as the change is not 
likely to result in increased runoff of manure, litter or process 
wastewater from the facility. Given the importance of timing in 
farming, EPA recognizes that CAFOs may be unable to delay the 
implementation of a substantial change to their nutrient management 
plan to allow for public review and still implement the change in a 
timely fashion.
    EPA believes that it would be reasonable to allow the Director to 
temporarily allow substantial changes so long as certain conditions are 
met. First, the approval would be temporary, allowing the CAFO to 
implement the changes for only 180 days. Second, the facility would 
need to provide to the Director documentation to demonstrate that the 
change would not result in increased runoff of manure, litter, or 
process wastewater from the facility. Third, the Director would have to 
review the documentation and conclude that the changes would not result 
in increased runoff of manure, litter, or process wastewater from the 
facility. Finally, the Director would have to include such expedited 
decisions with the permit in the public record and notify the public of 
its decision. Moreover, by the end of the 180 day

[[Page 37757]]

period, these changes would need to undergo the public review 
procedures required for all substantial changes and be incorporated 
into the CAFO's permit by the Director. Changes EPA intends to 
encompass within this provision include the addition of new fields for 
land application where the Director determines that such additional or 
replacement fields have equivalent phosphorous ratings (based on the 
Phosphorous Index, for example) for nutrient uptake as the fields they 
are supplementing or replacing, whichever may be the case. EPA is 
interested in commenters' views concerning this proposed provision. EPA 
specifically solicits comment on whether a change that would result in 
increased rates of land application of manure, litter, or process 
wastewater in addition to those changes likely to result in increased 
runoff, should also be precluded from expedited implementation during 
the 180 day period.
    EPA is also interested in taking comment on an approach that might 
allow greater flexibility for CAFO operators in making cropping 
decisions while assuring permitting authorities and the public that 
they are complying substantively with the terms of the NMP as 
incorporated into the permit, even if the CAFO modifies its practices 
somewhat from those articulated in the NMP and the permit. Under this 
approach, the Agency would modify the annual report requirements for 
permitted CAFOs in 40 CFR 122.42(e)(4) to require all CAFOs to submit 
information with the annual report indicating how the CAFO achieved 
substantive compliance with the terms of the NMP as set forth in the 
permit. If the CAFO implemented any cropping options not included in 
the calculations provided in the NMP, the CAFO would document the 
procedures and nutrient management practices utilized, including crops 
grown and fields planted, together with nutrient management 
calculations that governed its land application practices for the prior 
calendar year, and explain how the modified cropping options as 
implemented continued to comply with the substantive terms of the NMP 
incorporated into the permit. Under this option, EPA would include 
guidance in either rule or preamble text on which types of deviations 
from the NMP would be allowed, and what would be required to 
demonstrate in the annual report that these deviations substantively 
complied with the permit terms. The Agency solicits comment on whether 
such an approach would be practical and the extent to which it could 
allow greater flexibility for CAFOs to meet the NMP requirements 
incorporated into their permits, while still ensuring appropriate 
permitting authority and public oversight of permit compliance.
(f) Required Dates
    In a separate rulemaking, EPA revised the dates in the 2003 CAFO 
rule by which CAFOs were required to develop and implement their NMPs. 
(71 FR 6978.) The 2003 CAFO rule required newly defined CAFOs to seek 
coverage under an NPDES permit by February 13, 2006, but required the 
development and implementation of a nutrient management plan by 
December 31, 2006. This would have conflicted with today's proposal 
that CAFOs submit their NMPs with their permit applications or notices 
of intent, as required by the Second Circuit Court's decision. The new 
rule requires CAFO owners and operators to submit their NMPs at the 
time of the permit application by extending the deadline for both to 
July 31, 2007. EPA extended these deadlines in a separate rulemaking so 
as to provide the Agency sufficient time to develop the regulatory 
revisions proposed in this rulemaking that more broadly respond to the 
Waterkeeper decision.

C. Remand Concerning Water Quality Based Effluent Limitations

    Water quality-based effluent limitations (WQBELs) are one of two 
fundamental types of limitations imposed in NPDES permits. The other is 
technology-based limitations. Technology-based limitations are required 
in all NPDES permits, unless the permit writer imposes more stringent 
WQBELs in the permit where necessary to ensure that water quality 
standards are attained in the receiving waters. (See CWA Section 
301(b)(1)(c), 33 U.S.C. 1311(b)(1)(c), and 40 CFR 122.44(d).) Where 
WQBELs are necessary, the permit writer establishes them without 
consideration of the availability or effectiveness of treatment 
technologies or the costs that dischargers would incur to meet those 
water quality-based limits. (See Arkansas v. Oklahoma, 112 S.Ct. 1046, 
1054 (1992); Westvaco v. EPA, 899 F.2d 1383 (4th Cir. 1990).)
    The environmental petitioners claimed that the 2003 CAFO rule 
violated both the Clean Water Act and the Administrative Procedure Act 
because it failed to promulgate WQBELs for CAFO discharges and also 
barred States from doing so. The Second Circuit agreed in part with 
this claim, as described in Section II.D.3 above, and remanded this 
issue to EPA for further clarification.
    The terms of the 2003 CAFO rule itself do not contain any 
requirements concerning WQBELs, but EPA addressed the subject of WQBELs 
in the preamble. In fact, there was only one WQBELs issue that EPA 
addressed or intended to address in the preamble--whether WQBELs can be 
imposed for land application discharges of agricultural stormwater--and 
on that issue, the court expressly agreed with EPA's discussion. What 
appears to have troubled the court were certain statements in the 
preamble that the court thought might also address how WQBELs apply to 
other types of discharges. EPA therefore offers the following 
clarification.
1. The Application of WQBELs to CAFO Discharges Under the 2003 CAFO 
Rule
    How WQBELs apply to a CAFO's land application runoff is different 
from how they apply to discharges from a CAFO's production areas, as 
explained below.
(a) Land Application Discharges
    In the 2003 rule, to determine how WQBELs apply to land application 
discharges at CAFOs, EPA first had to consider the statutory exclusion 
for agricultural stormwater. In the Clean Water Act, the definition of 
``point source'' specifically includes CAFOs but excludes agricultural 
stormwater discharges. (See CWA Section 502(14).) In the 2003 CAFO 
rule, EPA interpreted how this exclusion applies to discharges from 
land application at CAFOs. EPA found that where a CAFO applies manure, 
litter, or process wastewater to its fields, the resulting discharges 
from those fields are regulated by the Clean Water Act as point source 
discharges except where they qualify as agricultural stormwater. EPA 
determined that land application discharges qualify as agricultural 
stormwater only where manure, litter, or process wastewater has been 
applied in accordance with site-specific nutrient management practices 
that ensure appropriate agricultural utilization of the nutrients in 
the manure, litter or process wastewater, as specified in Sec.  122.42 
(e)(1)(vi)-(ix). (See 40 CFR 122.23(e).) Where a CAFO has not followed 
such practices, EPA concluded that any resulting precipitation-related 
discharge was not intended by Congress to be excluded from the Act as 
agricultural stormwater and is therefore subject to NPDES requirements.
    The land application requirements of the 2003 CAFO rule reflected 
this interpretation by EPA of the agricultural stormwater exclusion in 
the Act. EPA

[[Page 37758]]

found that where a CAFO follows these practices, any and all 
precipitation-related discharges of manure, litter, or process 
wastewater that occur from land application fields would be covered by 
the agricultural stormwater exclusion and would thus be considered 
nonpoint source runoff. (68 FR 7198.) In other words, a CAFO that 
follows the requirements in the 2003 rule eliminates all precipitation-
related point source discharges from its land application fields. While 
physically there may still be some runoff from the fields related to 
precipitation, the CAFO has no discharge of regulated precipitation-
related runoff, since any remaining precipitation runoff is 
agricultural stormwater.
    Because the CAFO effluent guidelines--the technology-based 
regulations--already prohibit all precipitation-related land 
application discharges that are subject to regulation, EPA noted in the 
2003 rule that it is not possible for a CAFO permit writer to add any 
other permit limitations on these discharges that are more stringent 
than the CAFO effluent guidelines, including any water quality-based 
limitations. (See 68 FR at 7198.) Only discharges of agricultural 
stormwater, which are nonpoint source discharges, remain. The Second 
Circuit agreed that the rule ``does not present a problem to the extent 
that [it] fails to promulgate--and bars States from promulgating--
WQBELs for any `agricultural stormwater discharge' * * * Agricultural 
storm water discharges are, after all, statutorily exempt from any 
effluent limitations, including WQBELs, because they are non-point 
source discharges.'' Waterkeeper, 399 F.3d at 522.
    It should be noted that the key point of this discussion--that 
water quality-based effluent limits are not available to limit land 
application discharges that are agricultural stormwater--involves, in 
the first instance, only precipitation-related land application 
discharges, since only precipitation-related discharges can be 
agricultural stormwater. Water quality-based effluent limits are 
available to the permit writer to limit any non-precipitation related 
(i.e., dry-weather) discharges that occur at land application areas to 
levels that are more stringent than the technology-based limitations 
(effluent guidelines), and EPA never intended to indicate otherwise. As 
EPA stated in the 2003 rule, ``any dry weather discharge of manure or 
process wastewater resulting from its application to land area under 
the control of a CAFO would not be considered an agricultural 
stormwater discharge and would thus be subject to Clean Water Act 
requirements.'' 68 FR 7198. To be sure, in most instances, a CAFO's 
requirement to meet technology-based permit limits that require manure 
to be applied at appropriate agronomic rates should itself eliminate 
all or most dry weather discharges. Nevertheless, if such discharges 
remain, the need for additional water quality-based effluent limits to 
control them will be determined by the permit writer based on the 
circumstances of each particular case.
(b) Production Area Discharges
    In contrast to precipitation-related land application discharges, 
under the 2003 rule, WQBELs can be applied by permit writers in 
appropriate cases to further limit discharges from CAFO production 
areas (except for new source CAFOs in the swine and poultry sectors, as 
discussed below). WQBELs can be imposed on these production area 
discharges, where appropriate, because the effluent guidelines do not, 
by themselves, prohibit all ``regulatable'' discharges from the 
production area. The effluent guidelines allow occasional overflow 
discharges from properly designed, operated, and maintained lagoons and 
storage ponds. It is possible that WQBELs might be necessary in a 
particular permit to further limit these discharges beyond the levels 
that are authorized under the CAFO effluent guidelines. It should also 
be noted that the exclusion for agricultural stormwater does not apply 
to discharges from the CAFO production area, as EPA stated in the 2003 
rule. (See 40 CFR 122.23(e) and 68 FR 7198). Thus, the agricultural 
stormwater exclusion does not serve to limit how WQBELs may be imposed 
to control production area discharges.
    For new source CAFOs in the swine and poultry sectors, however, no 
WQBELs can be imposed in permits for the production areas. This is 
because the effluent guidelines already prohibit all production area 
discharges from these new sources. (See 40 CFR 412.46(a).)
2. Discussion
    The Second Circuit expressed two concerns with EPA's discussion of 
how WQBELs apply at CAFOs. First, the court found that it was ``unclear 
* * * why the CAFO Rule exempts discharges other than agricultural 
storm water discharges from WQBELs.'' (See 399 F.3d at 522.) EPA had 
indicated its intention, the court found, ``not to promulgate any 
WQBELs whatsoever.'' As an initial matter, WQBELs for CAFOs are 
derived, where appropriate, on a case-by-case basis for individual 
permits, not promulgated in EPA regulations. EPA never intended to 
``promulgate'' any WQBELs in the 2003 rule, but simply to discuss how 
WQBELs might apply once a CAFO applied for a permit.
    Specifically, the court was concerned by EPA's preamble statement 
that ``EPA does not expect that water quality-based effluent 
limitations will be established for CAFO discharges resulting from the 
land application of manure, litter, or process wastewater.'' 399 F.3d 
at 522, citing 68 FR 7207. The court may have been concerned that EPA 
was exempting from the application of WQBELs not only agricultural 
stormwater discharges from CAFO land application areas (which the court 
agreed are not subject to WQBELs) but also any other discharges from 
land application areas or even production areas. (See 399 F.3d at 522 
(``EPA has * * * only justified its determination not to impose WQBELs 
* * * only insofar as agricultural stormwater discharges are concerned 
* * * The EPA has not attempted, in any way, to explain its failure to 
promulgate WQBELs for CAFO discharges other than agricultural 
stormwater discharges * * *'').) This was not EPA's intent. EPA 
intended only to affirm that where the precipitation-related discharge 
from land application areas has been limited to only agricultural 
stormwater, WQBELs are not available as further limitations on those 
discharges.
    Based on its understanding, the court directed EPA ``to explain 
whether or not, and why, WQBELs are needed to assure that CAFO 
discharges will not `interfere with the attainment or maintenance of 
that water quality in a specific portion of the navigable waters which 
shall assure protection of public health, public water supplies, 
agricultural and industrial uses, and the protection and propagation of 
a balanced population of shellfish, fish and wildlife, and allow 
recreational activities in and on the water,' '' citing 33 U.S.C. 
1312(a). 399 F.3d at 523. In response, EPA clarifies that WQBELs are 
not available for permits with respect to precipitation-related land 
application discharges for CAFOs. However, water quality-based effluent 
limits can be included in permits as necessary with respect to non-
precipitation-related land application discharges and with respect to 
production area discharges, as discussed above. For example, with 
respect to production area discharges, under the effluent guidelines, a 
CAFO may be subject to a permit requirement that allows production area 
discharges

[[Page 37759]]

only if the CAFO designs and operates its lagoon or pond to contain all 
process wastewater plus any storm water runoff resulting from the 25-
year, 24-hour storm. But water quality considerations may lead the 
permit writer to impose a more stringent permit requirement such as 
allowing discharges only if the lagoon or pond is designed and operated 
to contain water from an even bigger storm.
    The court's second concern was that the 2003 rule preamble was 
``ambiguous about whether States may promulgate WQBELs for discharges 
other than agricultural stormwater discharges.'' 399 F.3d at 523. The 
court directed EPA to explain this issue more clearly on remand. In 
response, the reasoning described above applies to State-issued as well 
as EPA-issued NPDES permits. Permit writers in NPDES-authorized States 
can include WQBELs as necessary with respect to non-precipitation-
related land application discharges and with respect to production area 
discharges.
    There are two additional considerations, however, with respect to 
State-issued permits. First, the effluent guidelines require CAFOs to 
limit their land application of wastes to levels that comport with 
State technical standards for manure management. In the 2003 rule 
preamble, EPA encouraged States to address water quality protection 
issues in setting those technical standards for appropriate land 
application practices. (See 399 F.3d at 523, citing 68 FR 7198). Thus, 
although the effluent guidelines are by their nature technology-based, 
EPA encouraged the States to address water quality concerns in setting 
their technical standards for manure management. But this does not 
change the basic regulatory scheme under which, once those technology-
based standards are applied in a permit, the only remaining 
precipitation-related runoff is agricultural stormwater, for which 
water quality-based effluent limitations are not available.
    Second, it is possible that a State can have additional 
requirements under its own State regulatory authorities that would go 
beyond the requirements of the federal NPDES program. Thus, where the 
only runoff from a CAFO's land application area is agricultural 
stormwater, that remaining runoff, though not subject to further NPDES 
regulation, could be subject to additional State requirements that are 
broader in scope, including additional requirements related to water 
quality. 33 U.S.C. 1370 and 40 CFR 123.1 and 123.25. These 
requirements, however, would not be federally enforceable.

D. New Source Performance Standards for Subpart D Facilities

1. Provisions in the 2003 CAFO Rule
(a) 100-Year, 24-Hour Rainfall Event Design Standards
    The Clean Water Act requires EPA to promulgate New Source 
Performance Standards (NSPS) for new, as opposed to already existing, 
sources of pollution. (See 33 U.S.C. 1316.) The Act provides that these 
standards must ``reflect the greatest degree of effluent reduction 
which the Administrator determines to be achievable through application 
of the best available demonstrated control technology, processes, 
operating methods, or other alternatives, including, where practicable, 
a standard permitting no discharge of pollutants.'' 33 U.S.C. 
1316(a)(1). The Act further requires that EPA ``take into consideration 
the cost of achieving such effluent reduction, and any non-water 
quality, environmental impact and energy requirements.'' 33 U.S.C. 
1316(b)(1)(B). EPA is given considerable discretion to weigh and 
balance the various factors required by statute to set NSPS. 
Riverkeeper, Inc. v. EPA, 358 F. 3d 174, 195 (2d Cir. 2004).
    The 2003 CAFO rule effluent guidelines for new Subpart D (swine, 
poultry, and veal) operations prohibit the discharge of any pollutants 
from CAFO production areas. It is common for new poultry, veal, and 
swine operations to confine the animals so that they are never exposed 
to rainfall or storm water runoff. In addition, many new operations 
employ manure handling systems that greatly reduce or eliminate the use 
of water as a conveyance or handling mechanism for the manure, and 
typically contain manure in covered or indoor facilities. (See 68 FR 
7219 and Chapter 8 of the ``Technical Development Document for the 
Final Revisions to the National Pollutant Discharge Elimination System 
Regulation and the Effluent Guidelines for Concentrated Animal Feeding 
Operations'' (EPA-821-R-03-001) or ``TDD'' for more information.) Based 
on these technologies, EPA determined that a no discharge standard was 
technologically feasible.
    EPA recognized that CAFOs may use different technologies to meet 
the no discharge standard and that these technologies may have slightly 
different vulnerabilities to extreme weather events. Therefore, the 
2003 CAFO rule would have allowed CAFOs to meet the no discharge 
standard by using waste management and storage facilities designed, 
constructed, operated, and maintained to contain all manure and process 
wastewater including the runoff and precipitation from a 100-year, 24-
hour rainfall event.\3\ The 100-year, 24-hour rainfall event is a 
statistical event defined as the amount of rainfall that has a one 
percent chance of being exceeded in a 24-hour period in any given year. 
Thus, a facility that was adequate to contain both the process 
wastewater generated at the facility and the runoff and precipitation 
from the 100-year event would not discharge in circumstances resulting 
in runoff and precipitation less than that produced in the 100-year 
event, when properly operated and maintained. EPA provided the 100-
year, 24-hour rainfall event criteria to provide clarity to the 
regulated community about how to design, operate and maintain their 
manure handling systems to achieve the no discharge standard.
---------------------------------------------------------------------------

    \3\ All storage structures must be operated in accordance with 
the additional measures specified in the regulations at 40 CFR 
412.37(a) and (b).
---------------------------------------------------------------------------

(b) Superior Alternative Performance Standards
    The 2003 CAFO rule also allows existing CAFOs in Subparts C and D, 
and new beef, dairy, and heifer CAFOs to voluntarily participate in the 
Voluntary Alternative Performance Standards program. The alternative 
performance provisions allow CAFOs to request that the Director 
establish alternate permit effluent limitations in place of the 25-
year, 24-hour storm standard that would otherwise apply. This provision 
enables CAFOs to implement new technologies and management practices 
that perform as well as or better than the baseline effluent guidelines 
at reducing pollutant discharges to surface waters from the production 
area. To demonstrate that an alternative control technology would 
achieve equivalent or better pollutant reductions than the baseline 
effluent guidelines, the CAFO must submit a technical analysis, which 
first calculates the pollutant discharges based on the site-specific 
modeled performance of a system designed to comply with the baseline 
effluent guidelines and then demonstrates that the proposed alternate 
limitations would result in equal or lower discharges. The minimum 
specific components of the technical analysis were included in the ELGs 
at 40 CFR 412.31(a)(2).
    For new Large swine, poultry, and veal CAFOs (new sources under 
Subpart D), the 2003 rule had a similar provision for alternative 
permit limitations--the ``Voluntary Superior Environmental Performance 
Standards'' provision. This NSPS provision empowered permitting

[[Page 37760]]

authorities to establish site-specific alternative performance 
standards that allow production area discharges, so long as such 
discharges were accompanied by reductions of pollutant discharges to 
other media. (See 40 CFR 412.46(d).) Specifically, the quantity of 
pollutants discharged from the production area had to be accompanied by 
an equivalent or greater reduction in the quantity of pollutants 
released to other media from the production area (e.g., air emissions 
from housing and storage), the land application areas for all manure, 
litter, and process wastewater at on-site and off-site locations, or 
both. The Director was given the discretion to request supporting 
information to supplement such a request.
2. Summary of the Second Circuit Court Decision Concerning Remanded 
Issues
    The Second Circuit Court of Appeals remanded several elements of 
the 2003 CAFO rule related to new sources. Specifically, the court 
directed EPA to clarify the statutory and evidentiary basis for 
allowing subpart D CAFOs to comply with the NSPS requirements by either 
the 100-year storm standard or the alternative performance standards. 
With respect to the 100-year storm standard, the Court noted that while 
certain studies showed that the production area BMPs adopted by the 
2003 CAFO rule would have substantially prevented the production area 
discharges documented in the record, the court explicitly stated that 
substantially preventing discharges is not the same as prohibiting them 
outright. With respect to the alternative performance standards, the 
court held that EPA had not justified its decision to allow compliance 
with the no discharge standard through an alternative standard 
permitting production area discharges so long as the aggregate 
pollution to all media is equivalent to or lower than that resulting 
from the baseline standards. The court further held that EPA did not 
provide adequate notice for either of these provisions under the Clean 
Water Act's public participation requirements. (See 33 U.S.C. 1251(e) 
(``Public participation in the development, revision, and enforcement 
of any regulation, standard, effluent limitation, plan, or program 
established by the Administrator or any State under this Act shall be 
provided for, encouraged, and assisted by the Administrator and the 
States'').)
3. This Proposal
(a) 100-Year Storm Containment Structure
    EPA has reconsidered the NSPS in light of the Second Circuit 
decision. As a result of its review, EPA is proposing to delete 40 CFR 
412.46(a)(1), the provision allowing CAFOs to meet the no discharge 
standard through the use of a 100-year, 24-hour rain event containment 
structure. If EPA adopts this change, all discharge of manure, litter, 
and process wastewater would be prohibited from the production area for 
new source swine, poultry, and veal calf operations. The land 
application requirements would remain unchanged. Regulatory language 
implementing the proposed change may be found in today's proposed rule 
text.
    As part of this approach, EPA also proposes to modify Section 
412.37(a)(2) by removing the requirement that all surface liquid 
impoundments at new sources have a depth marker indicating the minimum 
capacity to contain the runoff and direct precipitation from a 100-
year, 24-hour rain event. The removal of the 100-year storm containment 
structure provision for new sources makes this provision irrelevant. 
Although the Agency proposes to delete the 100-year, 24-hour depth 
marker requirement, EPA recognizes that a marker indicating depth can 
be an excellent means of displaying how much storage a CAFO has, and 
whether it is time to pump down levels in the lagoon or pond. EPA 
believes depth markers are a useful tool to help with the management of 
any facility, and proposes to maintain, in 412.37(a), the depth marker 
requirement in the rule, even though EPA removed the 100-year, 24 hour 
rainfall specification. EPA solicits comment on this provision of the 
ELGs.
    Additionally, EPA is proposing an alternative that would authorize 
the NPDES Program Director to establish no discharge best management 
practice effluent limitations based upon a site-specific evaluation for 
an individual CAFO. Compliance with such limitations would provide an 
alternate approach for CAFOs to meet the zero discharge requirement. 
Specifically, EPA is proposing to authorize permit writers, upon 
request by a CAFO, to establish best management, zero discharge 
effluent limitations on a case-by-case basis when a facility 
demonstrates through a rigorous modeling analysis that it has designed 
an open containment system that will comply with the no discharge 
requirements. If a facility has complied with all of the specified 
site-specific design, construction, operation, and maintenance 
components of such a system demonstrated to meet the zero discharge 
requirement, it would be deemed to be in compliance with the no 
discharge requirement even in the event of an unanticipated discharge.
    EPA continues to recognize that CAFOs may use different 
technologies to meet the no discharge standard and that these 
technologies may have different vulnerabilities to extreme weather 
events. While some CAFOs may use closed containment systems to ensure 
meeting the no discharge requirements, EPA seeks to encourage new 
source CAFOs to consider implementation of anaerobic digesters, multi-
cell treatment lagoons, and nitrification and/or denitrification 
technologies. While these innovative technologies should be able to 
achieve zero discharge, and the operator must demonstrate to the permit 
authority's satisfaction that the system will be designed, operated and 
maintained to do so, there may be greater uncertainty in the 
performance of these systems during exceptionally heavy rainfalls and 
other rare weather conditions. To address such situations, EPA believes 
it appropriate to allow a facility to use an upset/bypass defense under 
40 CFR 122.41(m)-(n), for events that are beyond the reasonable control 
of the operator, including weather events as well as other unforeseen 
or uncontrollable conditions. However, EPA recognizes that the upset 
and bypass provisions do not provide certainty to the operator that any 
particular unpermitted discharge will be excused. CAFOs operating 
innovative technologies in particular may be reluctant to rely on these 
provisions. Therefore, in order to provide some upfront assurance that 
the design, construction, operation, and maintenance of their system 
meets the requirements of the new source effluent guidelines, EPA is 
proposing to allow permit writers to verify in advance that the 
designed system is a zero discharge system. EPA is proposing this 
alternative approach in order to provide this additional level of 
certainty and to encourage the development of new and innovative open 
system technologies.
    While one component of preventing discharge from an open system is 
to provide adequate storage of manure and wastewater during critical 
periods, ensuring adequate physical capacity is not sufficient. Rather, 
adequate storage is based on a site-specific evaluation of the CAFO's 
entire waste handling system. Adequate storage has to be based on 
climate-specific variables that define the appropriate storage volume,

[[Page 37761]]

but of equal importance are the nutrient management plan and other 
management decisions that dictate when and how the storage can be 
emptied. The link between adequate storage and land application 
practices is one of the most critical considerations in developing and 
implementing a site-specific nutrient management plan. For example, the 
amount of land available for application, the hydraulic limitations 
(ability of the land to handle additional water without the occurrence 
of runoff), geology, and soil properties of the available land base can 
play an important role. See Chapter 2 of EPA's technical guidance for 
CAFOs ``Managing Manure Nutrients at Concentrated Animal Feeding 
Operations'' (EPA-821-B-04-00) for more information.
    Given these considerations, EPA is proposing requirements for 
approval of site-specific management practices for such open 
containment systems with the expectation that a system designed in 
accordance with these requirements will meet the no discharge standard 
within the limits of design and operational foreseeability. EPA 
believes that the design, operation and maintenance elements and 
analytical assessment required under this alternative are sufficient 
for this purpose. The assessment process was previously described in 
two papers delivered to the American Society of Agricultural Engineers, 
available in today's record (Moffitt et al., (2003), DCN 1-01233 and 
Moffitt and B. Wilson, (2004), DCN 1-01224).
    The first step is to gather information about the specific 
operation to be analyzed and the regulatory framework in which it 
operates. The regulatory framework could include: state requirements 
for minimum storage periods for rainy seasons or winter or additional 
minimum capacity requirements for chronic rainfall; technical standards 
that prohibit or otherwise limit land application to frozen, saturated, 
or snow-covered ground; standards that further limit land application 
where there is a high risk of nutrient transport; increased storage 
requirements for manure intended to be transferred to another recipient 
at a later time; and any other special requirements that would impact 
the size of the storage facility. The operator's management options and 
needs should also be included in the design and evaluation, as 
discussed below. The accuracy of this first step is critical to 
designing and evaluating a manure storage facility. A check sheet of 
possible considerations based on 40 CFR 412.46(a)(1) may help ensure 
the right information is gathered, and EPA solicits comment on what 
relevant information must be included in the analysis as a minimum.
    The second step is the design of the storage facility using design 
procedures in the USDA Natural Resources Conservation Service's (NRCS) 
``Agricultural Waste Management Field Handbook,'' NEH-651. This will be 
done using Animal Waste Management (AWM) software, which is NRCS's 
manure storage and treatment planning/design software tool for animal 
feeding operations that can be used to estimate the production of 
manure, bedding, and process water and to determine the appropriate 
size of storage/treatment facilities. The Common Computing Environment 
(CCE) version of AWM 2.10 is currently available on the web, and 
planned software updates in the near future are not expected to change 
the general form of the tool. Site-specific input to AWM includes 
climate data for 30 years consisting of historical average monthly 
precipitation obtained from local weather stations, and evaporation 
values obtained from the National Oceanic and Atmospheric 
Administration (NOAA) handbook. Additional inputs include animal 
numbers and typical animal sizes/weights, added water and bedding (if 
any), and the size and condition of outside areas exposed to rainfall 
and contributing runoff to the storage facility. AWM allows the user to 
specify a storage period (months), and the software will design for the 
series of months with the most rainfall. The program will not design a 
system in excess of 12 months, as such designs are not recommended. As 
an alternative, the user can designate months when the storage pond can 
be emptied, and AWM sizes the pond based on the months with the most 
precipitation between pumping events. The output of this step is the 
design of a waste storage facility. AWM provides a series of reports 
describing the storage facility and providing a listing of the related 
specifications including the dimensions of the storage facility, daily 
manure and wastewater additions, the size and characteristics of the 
fields, and other management assumptions such as storage period.
    The third step is an evaluation of the adequacy of the AWM designed 
storage facility using the Soil Plant Air Water (SPAW) Hydrology Tool. 
The current version of SPAW is 6.1. SPAW is a field-level tool that 
uses a modified Soil Conservation Service Curve Number Method to 
develop water budgets for agricultural fields. SPAW is used by NRCS to 
evaluate the design procedure in the ``Agricultural Waste Management 
Field Handbook,'' NEH-651 (DCN 1-1231). Water budget processes are 
evaluated by making daily adjustments to crop canopy cover and 
antecedent soil moisture. Field water budgets can be used for 
evaluating runoff and infiltration from precipitation events. SPAW also 
provides an integrated pond module to develop pond water budgets that 
is ideal for assessing the adequacy of an open containment system. 
Input to SPAW includes daily precipitation, temperature, and 
evaporation data; storage facility dimensions and manure related 
quantities extracted from AWM; and the strategies for managing the 
storage facility. For each user-specified soil profile and crop 
rotation, SPAW simulates possible runoff from fields as well as the 
irrigation water needs of fields receiving the storage effluent. 
Hydrologic groups are used to rate soils for potential to release 
excess water down grade.
    EPA notes that where AWM software is used for design and SPAW is 
used for evaluation, additional software for nutrient management 
planning may be appropriately linked and the NMP data can then be 
imported. For example, see 6-12 of ``Managing Manure'' (EPA-821-B-04-
009) for a discussion of ``Manure Management Planner'' or ``MMP,'' a 
comprehensive Windows-based planning tool for manure management.
    SPAW is then run with the site-specific historic rainfall records 
to see if the open containment system (referred to as a pond in SPAW) 
and associated management and land application was adequate to 
eliminate any discharge. EPA has concluded that 100 years of data is an 
adequate timeframe for simulation purposes and will support a 
reasonable finding of no discharge. However, EPA is aware that 100 
years of continuous rainfall data may not be available for many CAFOs. 
The SPAW model can be run using actual rainfall data where available, 
and then simulated with a confidence interval analysis over a period of 
100 years. The SPAW model shows not only that the storage facility does 
not discharge, but also that there is no runoff of wastewater from 
fields during land application activities, which is necessary to ensure 
that the open containment system is operated in a way to meet the land 
application requirements of the rule. In practice, if the SPAW 
evaluation indicated any level of discharge or any spillway flow, the 
pond design volume could be increased in size in AWM, the new 
dimensions converted to SPAW input, and the simulation done again. This 
iterative procedure could continue until

[[Page 37762]]

the pond simulation predicts no discharge. If the facility shows no 
discharge over the 100 year simulation, then EPA has concluded that the 
lagoon or pond has been designed to achieve the requirement of no 
discharge.
    EPA has obtained several case studies using this approach to 
design. Example CNMPs were obtained from Georgia, South Carolina, 
Nebraska, North Carolina, and Iowa. Each of these CNMPs was used as the 
basis of design for a new facility. The CNMPs were used to get animal 
numbers and average weights, crop acreage, location for climate 
records, storage period, and information about spreading of manure and 
wastewater. The design volume is generally pumped out of the storage 
facility twice a year (once in the spring, and once in the fall). These 
are large pump down events, and it is part of the planning and design 
process to assure that there is sufficient land and pumping capacity to 
accomplish this activity. These case studies allow two weeks for this 
pump down to occur. In the few instances when the storage volume 
approaches the volume reserved for precipitation and runoff, the 
additional volume is pumped out of the storage facility as soil 
conditions permit. In some cases, wastewater removals for irrigation 
were simulated based on crop consumptive use capability. These are 
small pump out events. The first case study is a confinement swine 
operation in Nebraska which had 1600 grower pigs with an average weight 
of 140 lbs. This example facility has the waste storage pond emptied 
three times a year. The storage pond has an emergency spillway at nine 
feet and the depth of storage for the design storm is six inches. 
Several years within the simulation, the storage volume did reach the 
level reserved for the design storm, but pump-out was able to occur to 
restore the storage volume. See DCN 1-01225 for more information. The 
second case study is a similar facility in Georgia which uses a center 
pivot irrigation system. In this particular case, the landowner can 
irrigate almost year round since the crop is a hayfield with a winter 
small grain. This particular facility is designed for a 150 day storage 
period. This facility was simulated using a two times per year pumpdown 
schedule as well as a year-round pumpdown, both resulting in a no 
discharge system. Additional case studies may be found in EPA's record 
(DCN 1-01226.).
    In these case studies, the AWM design is simulated using SPAW with 
the result of no predicted discharges. If the AWM design does not 
result in a system that would comply with the no discharge 
requirements, the CAFO could evaluate different design and management 
options (such as different storage periods and dewatering schedules 
consistent with the CAFO's NMP) that do not result in any predicted 
discharges, or the CAFO could conclude an open system is not 
appropriate for the particular site being evaluated.
    Under today's proposal, EPA would require certain specified 
information regarding design, operation, and maintenance of the system 
to be included in the CAFOs NMP under 40 CFR 122.42(e)(1). This 
includes the key user-defined inputs and model system parameters. EPA 
proposes to require a site-specific analysis and require certain 
elements of the analysis be submitted to the Director. (See 40 CFR 
412.46(a)(1).) These site-specific design, construction, operation, and 
maintenance measures would then become enforceable requirements in the 
CAFO's permit. As long as the CAFO complies with these requirements, 
the CAFO would presumptively meet the no discharge requirement. The 
burden would be on the CAFO to demonstrate that any open system it 
employed meets the new source standard. EPA believes that this would 
provide a clear and enforceable standard for the CAFO as well as 
provide assurance to the public that the proposed system would comply 
with the no discharge requirements.
    Under today's proposal, the Director has the discretion to require 
additional information from a new source Subpart D CAFO owner or 
operator to support site-specific effluent limitations. EPA is aware 
that other peer-reviewed models and programs have been or may be 
developed that could be determined to be equivalent to AWM and SPAW. 
Therefore the proposed rule gives the Director the discretion to 
approve design software or procedures equivalent to AWM and SPAW. EPA 
solicits comment on this approach to demonstrating that an open storage 
system meets the no discharge requirements and providing an alternate 
approach for facilities that comply with the enforceable design, 
construction, operation and maintenance measures developed under the 
approach.
    The information, design, and evaluation process in today's proposal 
is intended to allow CAFOs the flexibility to demonstrate compliance 
with the no discharge requirements for any type of open storage 
facility. As a practical consideration, EPA expects most CAFOs 
selecting this compliance alternative will submit designs for open 
manure storage structures accompanied by a narrow range of acceptable 
operation and management practices. However, for a given type of 
storage facility design (for example, a constant volume anaerobic 
digester followed by an open storage pond sized for 12 months storage 
of treated manure), EPA believes it is possible to conduct a series of 
assessments for a specified geographic area that fully encompass the 
range of operational and management measures that would be used across 
multiple CAFOs with the specified storage facility. In this case, SPAW 
could be run to validate a wide range of NMP and storage pond 
management scenarios. The Director may then determine that any CAFO 
using the specified facility type and submitting a plan that falls 
within the pre-approved range of operational and management practices 
would not need to conduct the assessment step (i.e., the validation 
using SPAW) individually. EPA solicits comment on this approach to 
streamlining the evaluation process for those CAFOs submitting ``pre-
approved'' designs and operational procedures.
    EPA is proposing this compliance option only for new Subpart D 
facilities that employ open manure storage structures, because EPA 
believes that facilities employing other manure handling technologies 
(e.g., under house pits) will be able to ensure zero discharge of 
manure, litter, and process wastewater without having to employ the 
detailed design, modeling, and evaluation approach described here. 
However, EPA recognizes that other types of new Subpart D facilities 
required to meet the zero discharge standard might believe that such an 
approach should be available to them as well. EPA thus requests comment 
on whether it should develop a comparable provision for facilities 
other than those employing open manure storage structures under which a 
facility could demonstrate in advance through a rigorous modeling 
analysis that it was designed, operated and maintained to achieve zero 
discharge, and subsequent compliance with the site-specific design, 
construction, operation and maintenance components of this 
demonstration would then constitute compliance with the no-discharge 
requirement in the rule.
(b) Superior Alternative Performance Standards
    EPA proposes to delete 40 CFR 412.46(d) and remove the voluntary 
superior performance standards provision for new swine, poultry, and 
veal sources. The court ruling states that EPA cannot establish 
production area standards that substantially prevent discharges as 
equivalent to standards

[[Page 37763]]

that prohibit discharges outright. In accordance with this ruling, EPA 
is proposing to withdraw this provision.

E. Remand Concerning Pathogens for BCT

1. What Were the BCT Provisions in the 2003 CAFO Rule?
    The CWA requires compliance with progressively more stringent 
technology-based limitations. The Act requires existing point sources 
to comply with limitations achievable by application of the ``best 
practicable control technology presently available'' or ``BPT.'' These 
limitations control conventional, priority, and/or nonconventional 
pollutants, and are typically based on the average pollutant removal 
performance of the best facilities examined by EPA. EPA also bases 
limitations on the discharge of toxic or non-conventional pollutants on 
the ``best available technology economically achievable,'' or ``BAT.'' 
The 1977 amendments to the CWA required EPA to identify effluent 
reduction levels for conventional pollutants associated with ``best 
conventional pollutant control technology'' or ``BCT'' for discharges 
from existing industrial point sources. BCT is not an additional 
limitation, but replaces BAT for control of conventional pollutants. 
Effluent limitations based on BCT may not be less stringent than the 
limitations based on BPT. Thus, BPT effluent limitations are a 
``floor'' below which BCT effluent limitations cannot be established. 
Section 304(a)(4) designates the following as conventional pollutants: 
biochemical oxygen demand (BOD), total suspended solids (TSS), fecal 
coliform (FC), pH, and any additional pollutants defined by the 
Administrator as conventional. The Administrator designated oil and 
grease as an additional conventional pollutant, on July 30, 1979 (44 FR 
44501).
    The Clean Water Act Amendments that created BCT also specify that 
the cost associated with BCT effluent limitations be ``reasonable'' 
with respect to the effluent reductions. Accordingly, the ``BCT 
Methodology'' was developed to answer the question of whether it is 
``cost-reasonable'' for industry to control conventional pollutants at 
a level more stringent than already required by BPT effluent 
limitations. The BCT methodology was originally published on August 29, 
1979, along with the promulgation of BCT ELGs for 41 industry 
subcategories (44 FR 50732). The crux of the methodology was a 
comparison of the costs of removing conventional pollutants for a 
candidate BCT technology within a particular industry segment, to the 
costs of removal for an average-sized publicly owned treatment works 
(POTW). The Fourth Circuit remanded the regulation, and directed EPA to 
develop an industry cost-effectiveness test in addition to the POTW 
test. EPA proposed a revised BCT methodology in 1982 (47 FR 49176) that 
addressed the industry cost-effectiveness test (the ``second'' test). 
EPA proposed to base the POTW benchmark on model plant costs in a 1984 
notice (49 FR 37046). The final BCT methodology was published on July 
9, 1986 (51 FR 24974), maintaining the basic approach of the 1982 
proposed BCT methodology and adopting the use of the new POTW data.
    In the 2003 CAFO rule, EPA established BPT-based effluent 
limitation guidelines or ``ELGs'' for large beef, dairy, veal, swine, 
and poultry CAFOs. These effluent limitation guidelines prohibit the 
discharge of manure, litter, or process wastewater into waters of the 
U.S. from the production areas at the CAFOs. (40 CFR 412.31(a).) 
However, when precipitation causes a discharge of manure, litter, or 
process wastewater, this may be allowed provided certain conditions are 
met. (40 CFR 412.31(a)(1).) In order to qualify for this allowance, the 
CAFO must have a properly designed and constructed storage structure 
with the capacity to contain all manure, litter, and process wastewater 
and the runoff and direct precipitation from a 25-year, 24-hour 
rainfall event. (40 CFR 412.31(a)(1)(i).) In addition, the CAFO's 
production area must be operated in accordance with specified best 
management practices (BMPs). (40 CFR 412.31(a)(1)(ii).) The rule also 
established other BMPs governing CAFO wastes applied to land under the 
control of the CAFO. (40 CFR 412.4.) EPA estimated that the ELGs will 
achieve significant reductions in the annual water pollutant load from 
Large CAFOs nationwide, including 155 million pounds of nutrients 
(e.g., nitrogen and phosphorus), over two billion pounds of sediments, 
and a 46 percent reduction in discharges of pathogens including fecal 
coliform. (68 FR 7239, Table 7.2.)
    In establishing the ELGs in the 2003 rulemaking, EPA also 
considered reductions in conventional pollutants, including BOD, fecal 
coliform, and TSS. However, it was difficult for EPA to assess fecal 
coliform loadings and reductions because they vary greatly depending on 
site characteristics. Moreover, quantifying discharges of conventional 
pollutants from land application areas is difficult due to the 
challenges of: Distinguishing between CAFO sources of pollutants and 
non-CAFO sources of pollutants; determining what share of pollutants 
reaching the edge of field reach surface waters; and quantifying the 
potential for regrowth of fecal coliform both after treatment and after 
land application of manure. Despite these challenges, EPA estimated 
approximate reductions of fecal coliform associated with the following 
technology options considered in the 2003 rule: Option 1 (nitrogen-
based land application rates and zero discharge from the production 
area with an overflow allowance under specified conditions); Option 2, 
the final option selected (limiting nutrient-based land application 
rates and zero discharge from the production area with an overflow 
allowance under specified conditions); Option 3 (Option 2 plus 
permeability limitations on lagoons and ponds for protection of ground 
water based on synthetic lagoon liners); Option 5 (Option two except no 
overflow allowance for swine and poultry; Option 5a (Option 5 plus 
drier manure management such as composting for beef and dairy 
operations); and Option 6 (Option 2 plus anaerobic digestion with 
energy recovery for large swine and dairy operations). Pollutant 
reduction estimates for these options were provided in the final rule. 
For beef and dairy operations (subcategory C facilities), EPA also 
evaluated BOD and TSS reduction associated with Option 7 (Option 2 plus 
a national prohibition on land application of manure to frozen, snow-
covered, or saturated ground), but did not present the pollutant 
removal estimates for this option.
    Because of the difficulties associated with quantifying reductions 
of conventional pollutant discharges, EPA relied primarily on sediment 
discharges (as a surrogate for TSS) in establishing BCT requirements. 
Following this approach, EPA identified no BCT technology option that 
achieves significantly greater TSS removals than the BPT requirements 
eventually promulgated in 2003 except for Option 5. EPA determined 
Option 5 was not economically achievable for subcategory D (68 FR 
7218). EPA therefore concluded that there were no available BCT 
technologies on which to base limits for conventional pollutants that 
were more stringent than BPT, and established BCT requirements equal to 
BPT in the 2003 CAFO rule (see 40 CFR 412.33 and 412.44). If EPA had 
identified available technology options that achieve greater reductions 
of conventional pollutants than are

[[Page 37764]]

achieved by BPT, then EPA would have performed the two-part BCT cost 
test required by CWA section 304(b)(4)(B). (68 FR 7224).
2. Summary of the Second Circuit Court Decision
    In its February 28, 2005, decision, the Second Circuit Court of 
Appeals remanded the 2003 CAFO rule's BCT standard for pathogens. In 
the court's view, the 2003 CAFO rule violated the Clean Water Act 
because EPA did not make an affirmative finding that the BCT-based ELGs 
adopted in the CAFO rule do in fact represent the best conventional 
pollutant control technology for reducing pathogens--specifically, 
fecal coliform. The court noted that EPA may well determine that the 
ELGs otherwise adopted by the CAFO rule do in fact represent the best 
conventional pollutant control technology for reducing pathogens. The 
court further noted that EPA may determine, after considering all the 
relevant factors, that the ELGs otherwise adopted by the 2003 CAFO rule 
will directly--not just incidentally--reduce pathogens and do so better 
than any other pollutant control technology.
3. This Proposal
    In today's notice, EPA finds that the BCT-based ELGs adopted in the 
2003 CAFO rule do in fact represent the best conventional pollutant 
control technology for removal of pathogens, including fecal coliform. 
First, EPA discusses its evaluation of various candidate technologies 
to assess whether they are technologically feasible for facilities in a 
subcategory and would achieve greater reductions of fecal coliform than 
the technologies selected as the basis for BPT limitations in the 2003 
rule. Specifically, EPA presents pathogen reductions associated with 
technology Options 3, 5, 6 and 7 described previously and discussed in 
the 2003 docket. EPA notes that these regulatory options are discussed 
here even though EPA has already determined these options are either 
not technologically feasible or not economically achievable, because 
these options may provide more reductions of pathogens than the option 
selected for the final 2003 CAFO ELGs. EPA did not consider Options 1 
and 4 because they do not provide any further pollutant reductions over 
the final selected Option 2. Today, EPA also presents additional 
candidate technologies for pathogen reductions: Fluidized bed 
incinerators; composting for poultry; chemical addition for 
disinfection; and additional storage to comply with a national 
prohibition of land application to frozen, saturated, or snow-covered 
ground (Option 7) for the swine industry (Option 7 for the beef and 
dairy industries was already presented in 2003).
    Second, today's proposal provides results of the BCT cost-
reasonableness test for the candidate technology options. EPA finds 
that none of these candidate technologies would pass either part of the 
BCT cost test. Therefore, EPA has concluded that any combination of 
these technologies developed into a regulatory option for a subcategory 
would also not pass the BCT cost test. Finally, because the traditional 
BCT cost test has been based on pollutants other than fecal coliform, 
today's proposal presents an approach to conducting the POTW cost test 
for CAFOs that explicitly addresses fecal coliform. Today's notice 
presents the results of applying this cost test to the candidate BCT 
technology options considered for CAFOs. None of the candidate 
technology options would pass the alternative BCT cost test. Each of 
these analyses is described in more detail below.
(a) Are There Technically Feasible Candidate Technologies That Achieve 
Greater Reductions for Fecal Coliform Than Technologies Selected for 
BCT in the 2003 Rule?
    EPA evaluated numerous sources of data on CAFO manure management 
systems, including treatment technologies and best management practices 
(BMPs) for pollution prevention, as well as for the handling, storage, 
treatment, and land application of wastes. These data sources included 
available technical literature, over 11,000 comments submitted by 
industry and other public commenters, and insights gained from 
conducting over 116 site visits to CAFOs. EPA specifically identified 
several technologies and BMPs for the reduction of fecal coliforms and 
other pathogens, including digesters, fluidized bed incinerators, 
chemical addition for disinfection, composting, and deep stacking of 
poultry litter (see descriptions of these and other technologies in 
Chapter 8 of the TDD). Production area practices and land application 
practices were also evaluated. Each of these potential candidate BCT 
technologies is summarized below:
    Anaerobic Digestion. EPA specifically evaluated anaerobic digesters 
as a candidate technology option in the 2003 rule, identified as Option 
6 in the preamble and supporting documents (see Chapter 1 of the ``Cost 
Methodology for the Final Revisions to the NPDES and ELG for CAFOs'' or 
``Cost Report,'' EPA-821-R-03-004). However, EPA rejected this 
technology for BCT because anaerobic digesters are not demonstrated to 
be technically feasible at all CAFOs. Specifically, wastes from beef, 
heifer, and poultry operations would not support the operation of these 
treatment systems. (68 FR 7217.) Even for those types of CAFOs that 
generate quantities and types of manure and wastes more conducive to 
the digestion process (e.g., dairy and swine facilities above a minimum 
size), the use of digesters does not necessarily lead to significant 
reductions for many of the pollutants present (e.g., nutrients, 
metals).
    There are three basic temperature regimes for anaerobic digestion: 
Psychrophilic, mesophilic, and thermophilic. Psychrophilic, or low-
temperature, digestion is a natural decomposition process at 
temperatures typically found in lagoons. The hydraulic retention time 
for stable operation varies from 30 days to 90 days depending on 
temperature. EPA notes this same time-temperature relationship occurs 
in typical manure storage facilities, and results in some of the 
reduction of pathogens (including fecal coliform) that were estimated 
for the 2003 CAFO rule. Mesophilic digestion reduces the retention 
period to 12 to 20 days. In some limited cases digesters were shown to 
reduce fecal coliform by as much as 99 percent, particularly by 
thermophilic (higher temperatures in the range of 135 to 155 degrees 
Fahrenheit) digestion, but regrowth of both fecal coliform and other 
pathogens was shown to occur during effluent storage. (68 FR 7217.) EPA 
did not receive any public comments or data during the 2003 rulemaking 
process that provided a reliable means of either quantifying this 
regrowth or differentiating the performance of digesters from the die-
off and regrowth that occurs in untreated manure storage facilities. 
Most importantly, a digester does not eliminate the need for the CAFO 
to have liquid impoundments for process wastewater, treated wastewater, 
and storm water runoff. EPA previously noted that the digester process 
may stabilize manure, and may offer certain other benefits (e.g., 
energy recovery, control of methane emissions), but as a result of the 
storage requirements (and associated potential for regrowth) the 
technology would not necessarily result in decreased discharges of 
pollutants (including pathogens) beyond the selected BPT option. (68 FR 
7217.) EPA notes that digestion may also be conducted aerobically, but 
this variation

[[Page 37765]]

is rarely seen at CAFOs due to process problems, design challenges, 
high energy requirements, and disproportionately high costs. (See Table 
8-14 of the TDD for a list of aerobic digestion and activated sludge 
processes.)
    EPA further notes that digesters do not reduce the total nutrients 
in animal wastes. Most of the phosphorus removed from the effluent is 
concentrated in the digested solids, which are often used for land 
application. Other data show that changes in pollutant composition, 
particularly the soluble forms of nitrogen, could result in increased 
discharges of pollutants following land application of digested manure, 
specifically ammonia releases and other emissions. (See Chapter 8 of 
the TDD.) Similarly, metals are not reduced and remain in the digester 
effluent and solids. EPA further rejects this technology as practical 
for all CAFOs due to the high failure rate of these systems at certain 
types of facilities (see Cost Report, page 5-119), as well as the 
substantial costs including significant capital costs and the large 
uncertainty in any potential annual cost offset due to energy recovery. 
As of October 2002, there were 40 CAFOs with operating digesters out of 
several hundred thousand AFOs nationwide, of which 35 were able to 
partially offset costs through biogas recovery. In addition, EPA 
continues to believe that mandating the use of anaerobic digesters 
could divert resources from or complicate the installation of other 
technologies that can potentially achieve better performance overall. 
This finding does not alter EPA's previous conclusion that the use of 
digesters by CAFOs on a site-specific basis may be appropriate in some 
circumstances (e.g., as part of a manure management system to comply 
with the new source requirements (see 68 FR 7220), but today's proposal 
concludes that the technology is not an appropriate basis for setting 
national BCT standards for conventional pollutants.
    Despite EPA's conclusion that digesters are not technologically 
feasible for many CAFOs across a subcategory, today EPA presents the 
BCT cost test for those CAFOs where the digester technology is most 
likely to be feasible--large swine and dairy facilities. This option 
includes treatment in a mesophilic digester (either a heated covered-
lagoon digester, plug flow, or complete mix digester, with biogas 
recovery) prior to manure storage. Treated manure is assumed to be 
stored in the CAFOs existing manure storage facility and land applied 
consistent with the BPT requirements of 40 CFR 412.
    To evaluate costs and pollutant reductions of all technologies 
presented today, EPA used the same 1,600 farm-based cost models EPA 
used in the 2003 CAFO rule (68 FR 7243; also see Chapters 2 and 5 of 
the Cost Report). Digester costs were determined using EPA's AgStar 
Farmware (version 2). As described above, quantifying pathogen 
reductions is difficult. For purposes of conducting the cost-
reasonableness test, EPA assumes the heated digester system will reduce 
fecal coliforms in the stored manure by 99 percent (atwolog order 
reduction). EPA's digester option costs include cost-offsets due to 
biogas recovery and energy recovery, and a new storage pond for 
effluent storage if the CAFO did not already utilize a liquid storage 
structure. EPA's costs also include annual technical consultation and 
services necessary to assure effective digester system operation, and 
optimal biogas generation and energy recovery.
    Runoff of land applied manure was simulated using the Groundwater 
Loading Effects of Agricultural Management Systems (GLEAMS) models EPA 
developed for the 2003 CAFO rule (see III-19 of ``Loads Report''). 
GLEAMS is a field-scale model that simulates hydrologic transport, 
erosion, biochemical processes such as chemical transformation and 
plant uptake, and nutrient losses in surface runoff, sediment, and 
groundwater leachate and is described in the Loads Report. The National 
Water Pollution Control Assessment Model (NWPCAM) is a national 
surface-water quality model designed to characterize water quality for 
the nation's network of rivers, streams, and lakes. In the 2003 CAFO 
rule analysis, NWPCAM simulations predicted that, on average 
nationwide, 75 percent of fecal coliform, 88 percent of BOD5, and 79 
percent of TSS that reach the edge-of-field will reach surface waters 
(all calculated at the RF3 storm reach level). EPA combined the reduced 
discharges of conventional pollutants from modeled production area 
overflows (see Loads Report for more information) with the reduced land 
application discharges based on the edge-of-field load analyses (the 
GLEAMS simulations followed by attenuation in the NWPCAM model) to 
quantify reductions in conventional pollutant discharges from both the 
production area and the land application area. EPA also conducted 
sensitivity analyses on the range of costs of this technology by 
considering alternative cost offsets for biogas recovery for energy 
production. The specific assumptions and resulting model farm costs may 
be found in DCN 22177 and DCN 1-02001.
    The incremental costs (annualized costs in 2001 dollars) and 
pollutant reductions are shown in Table E.2 which follows the 
discussion of technology options analyzed. 2001 dollars are used for 
comparability with POTW benchmark costs. The cost index used to bring 
forward CAFO costs to year 2001 is the same index that was used to 
bring forward POTW benchmark costs to year 2001 dollars. Since the POTW 
cost test compares cost to pollutant ratios for both industry and 
POTWs, applying the same cost index to both ratios would not change the 
overall comparison of these ratios. For this reason, EPA has determined 
that it is not necessary to bring the 2001 costs forward to current 
year dollars for any technology option presented today.
    Fluidized Bed Incinerators. This technology was reviewed but not 
considered as a technology option in the 2003 CAFO rule. Fluidized bed 
incineration is a proven technology for reducing waste volume and for 
converting the waste to useful products (e.g., energy, nutrient 
enriched ash), and is being used at municipal waste disposal 
facilities. However, even at municipal operations, incineration can be 
a costly method of disposal and frequently requires co-combustion with 
other feedstocks.
    In addition, incinerators are not widely used in the United States 
to manage animal manure because they are generally not affordable to 
individual CAFOs. Application of this technology has been attempted 
unsuccessfully by a beef feedlot in the U.S., but the incinerator 
thermal output could not be sustained (TDD, 8-93 to 8-95). Fluidized 
bed incinerators are also sensitive to moisture content and fuel 
particle size, limiting incinerator effectiveness to those wastes that 
are no more than 15-20 percent moisture.
    Individual poultry CAFOs in the U.S. do not currently use 
incineration as a method of handling excess poultry litter, although 
centralized incinerator projects have been successfully developed in 
the European Union in selected geographic areas with a high density of 
poultry operations, and several similar systems have been proposed in 
the U.S. These centralized incinerators reduce pathogens in the litter. 
However, large-scale, centralized incineration plants have not yet 
successfully translated into feasible, smaller-scale units for 
individual CAFO use. (See Chapter 8 of the TDD.)

[[Page 37766]]

    EPA is aware that it is also possible to gasify manure solids on-
farm, but this technology is still in the pilot stage. EPA is further 
aware of a demonstration project that heats the manure in a refractory 
oven, and uses the gasses to replace propane in a mortality handling 
system. EPA is not aware of any individual CAFOs using incineration due 
to fuel costs, the high capital costs of the incineration unit, and the 
inability to sustain the technology for most animal manures. EPA 
therefore rejects this technology as not technologically feasible for 
individual CAFOs.
    Chemical Disinfection. Methods of disinfection include chemical 
addition, heat, mechanical methods, and radiation. Various types of 
chemical addition for the purpose of disinfection were reviewed but not 
selected as part of a technology option in the 2003 CAFO rule. (See 
Chapter 8 of the TDD for more information.) Commonly used disinfection 
technologies in the U.S. include the addition of chemicals such as 
chlorine, calcium hypochlorite, sodium hypochlorite, lime, and ozone. 
Chlorination has a history of select pathogen destruction effectiveness 
and is relatively inexpensive when used as a polishing step for final 
incremental removal of pathogens. The Occupational Safety and Health 
Administration (OSHA) has established intensive training and safety 
measures for chlorine use. (DCN 1-01198.) Organic compounds present in 
typical CAFO wastewater can combine with chlorine to form chloroform (a 
documented animal carcinogen), monochloramines, and other toxic chloro-
organic compounds. Chlorine dioxide is widely used as an alternative 
bactericide, but requires expensive generating equipment, and produces 
chlorate and chlorite as potentially undesirable by-products. Chemical 
addition is not commonly practiced in the United States for treatment 
of animal wastes. In order for chlorination to be optimally effective 
and to minimize the generation of chlorinated by-products, the treated 
wastewater should have low levels of suspended solids--generally 30 to 
50 mg/l or less. Therefore, to implement chlorine-based disinfection, 
animal wastewater would require primary and/or biological treatment 
prior to disinfection. Storage tanks, dosage control equipment, and 
mixing equipment would need to be retrofitted. The capital investment 
to modify a typical CAFO's existing manure management system would be 
costly and operation of the system would require higher levels of 
maintenance and operator skill.
    Lime addition is used as a disinfectant for animal wastes found in 
barns and milking parlors. Lime addition is a proven treatment 
technology for achieving Class A and Class B biosolids standards. To 
meet Class B requirements using lime stabilization, the pH of the 
biosolids must be elevated to more than 12 for two hours and 
subsequently maintained at more than 11.5 for 22 hours. The material 
also needs to be kept at high temperature (70 degrees Celsius) for at 
least 30 minutes, which would require outside heating of the material 
to be treated. EPA has very little data on the scalability of the 
technology to individual CAFOs. What data there is suggests that the 
capital costs for holding tanks, dosage tanks, mixing equipment, and 
neutralization tanks necessary for retrofitting this technology at 
CAFOs would be high. The addition of lime results in an increase in 
sludge volume, although lime stabilization generally requires less 
storage space than alternatives such as composting. Most high moisture 
CAFO wastes would require some sort of digestion and/or dewatering 
prior to stabilization. EPA believes additional costs for operator 
training, safety controls, chemical purchases, and increased volume of 
materials that must be hauled and land applied may be another reason 
the technology has not been adopted by CAFOs given the successful 
application of lime addition to biosolids. Lime addition in poultry 
houses has been shown to interfere with pesticide functionality, and 
lime addition to poultry litter has been shown to cause a huge flush of 
ammonia emissions from the litter. EPA further notes that the addition 
of lime to organic wastes in general has been shown to accelerate 
ammonia emissions.
    Ozone is a highly effective germicide against a wide range of 
pathogenic organisms, including bacteria, protozoa, and viruses. Ozone 
use in U.S. wastewater treatment is limited due to high capital and 
operating costs and intensive energy requirements. Ozonation, like 
chlorination, requires a wastewater that has relatively low levels of 
solids to avoid regrowth of microorganisms after disinfection and limit 
costs associated with oxidizing oxygen demanding solids. Ozone 
disinfection technology is not commonly used in the United States for 
treatment of animal wastes. The processes are costly and require higher 
levels of maintenance and operator skill. Efficient ozone disinfection 
requires a pH of 6-10 and temperature of at least 36 degrees 
Fahrenheit. (TDD, p. 8-117.) To implement this technology, animal 
wastewater would require primary and/or biological treatment prior to 
disinfection (DCN 1-01198). Therefore, EPA rejected ozonation as 
impractical due to high operation and maintenance requirements, high 
operator skill requirements, considerable worker safety concerns, and 
overall high costs.
    For the above reasons, EPA finds that all of these chemical 
addition technologies are not technically feasible for individual 
CAFOs.
    Deep Stacking and Composting of Poultry Litter. Deep stacking 
consists of piling litter in a conical pile or stack after it is 
removed from a poultry house and raising the temperature to a maximum 
of 140 Fahrenheit (60 Celsius) by microbes. As with anaerobic 
digestion, incineration, and in some cases, chemical addition, the heat 
(high temperature) reduces pathogens. Although the practice of deep 
stacking poultry litter enhances its potential value as a feedstuff for 
ruminants by reducing concern about possible pathogen transmission, the 
stacked poultry litter is not pathogen free. The stacked litter is not 
mixed out of concern that re-aeration will create the potential for 
excessive heating. Thus, outer regions of the deep stacked litter do 
not reach the temperatures necessary for pathogen destruction. In 
practice, deep stacking may be considered a specialized approach to 
composting in which oxygen availability limits the overall temperature 
and the degree to which dry matter (``volatile solids'' or ``VS'') are 
destroyed. (TDD, p. 8-131 to 8-132.) Due to the lack of reliable data 
on the overall effectiveness of the technology in reducing fecal 
coliform, the operational similarities to windrow composting (an option 
already evaluated), and limited applications to limited types of 
poultry CAFOs, EPA rejects deep stacking as not technically feasible 
for consideration as a BCT candidate.
    For more general composting practices (e.g., windrow composting), 
EPA notes that the effectiveness of the technology is weather 
dependent, it requires a large amount of land, and additional runoff 
controls and wastewater storage, and its use would impose a much higher 
operating cost on CAFOs. (TDD, p. 8-102 to 8-110; Cost Report, Section 
5.12.) Not withstanding these limitations, some CAFOs successfully use 
composting technologies. Windrow composting in particular is available 
to a range of CAFOs, and was included in technology option 5a for beef 
and dairy operations in the 2003 rule. Composting is also a

[[Page 37767]]

technically feasible technology for incremental pathogen removals at 
most poultry operations. Composting was therefore further evaluated for 
cost reasonableness for beef, dairy, and poultry operations as part of 
today's proposal.
    As with the digester option, the model farms used in the analysis 
were the same as those used in the 2003 final CAFO rule. Costs were 
based on windrow composting, and include turning equipment, labor, 
berms for runoff controls, a storage pond for collection of compost 
site effluent, and solid-liquid separation for beef and dairy 
facilities. For purposes of this analysis, EPA assumes 99 percent 
reduction of fecal coliform in the manure or litter prior to overflows 
from storage ponds or runoff from land application of the manure. EPA 
is aware that some composting operations today offset their costs 
through sales of the composted material. EPA believes regulatory 
requirements that resulted in all facilities in a geographical area 
composting their manure would flood the local market and significantly 
reduce a CAFO's ability to offset costs through compost sales. For this 
reason, compost sales cannot reliably be included as cost offsets for 
this option.
    Ground water controls. As discussed above, the ground water option 
(2003 CAFO rule Option 3) may result in decreased discharges of 
pollutants in comparison to the final BPT requirements. However, EPA 
concludes the conventional pollutant reductions for Option 3 are small. 
In analyzing this option, soil permeability was used to determine 
leakage values (a reflection of the pollutant mobility in the soil 
under the manure storage area). Estimated costs included a retrofit 
installation of synthetic liners plus monitoring wells in the vicinity 
of manure storage structures. EPA estimated national pollutant 
reductions by first looking at each geographical region's probability 
for ground water contamination. Factors influencing potential for 
ground water contamination include the presence of sandy soils, shallow 
groundwater tables, and the presence of karst or karst-like terrain 
(see Table 29 in section III.G of the Loads Report). Regional loads 
were summed to generate a national load estimate. The incremental costs 
and pollutant reductions for this option in the 2003 CAFO rule analysis 
are presented in Table E.2.
    No discharge option. As discussed above, the no discharge option 
for existing swine and poultry facilities (2003 CAFO rule Option 5) 
would result in decreased discharges of conventional pollutants in 
comparison to the final BPT requirements. In the earlier rulemaking, 
EPA rejected this option for BAT because it was not found to be 
economically achievable. Consequently, this option is not an available 
BCT technology. The incremental costs and pollutant reductions from the 
2003 CAFO rule analysis are presented in Table E.2.
    Production Area Management Practices. One mechanism for pathogen 
discharges to surface waters is catastrophic spills. In the 2003 rule, 
EPA required various production area management practices to address 
catastrophic spills, and has not identified any additional production 
area management practices that would further reduce pathogen discharges 
from the production area.
    EPA expects that the 2003 rule requirements for no discharge from 
the production area, as well as routine inspection and mandatory 
management practices for the control of liquid impoundment levels, will 
reduce catastrophic spills (40 CFR 412.37(a)(1) and (2)). At the 
production area, operators are required to handle animal mortalities in 
a manner so as to prevent contamination of surface water (40 CFR 
412.37(a)(4)). The proper use of manure as a fertilizer is closely 
linked with manure storage, typically resulting in increased storage 
capacity and longer retention times of both liquid and solid manure 
allowing increased opportunity for die-off of pathogens due to 
competition, UV, and other factors. For example, runoff from fields 
receiving poultry litter that had been stored prior to application 
showed no significant difference in pathogen content from runoff from 
control fields to which manure had not been applied (GEIS, 1999), 
demonstrating that pathogen reductions from lengthy storage times are 
significant. (See Response to Comments Document, CAFO400085-16.)
    Minimum storage periods, while site-specific, are nonetheless 
necessary to meet the land application requirements of the 2003 CAFO 
rule (see ``Cost Methodology'' report for more information on typical 
storage periods; see Chapter 2 of ``Managing Manure'' for more 
information on the link between adequate storage and land application 
practices). Adequate storage, though not specifically defined by the 
2003 CAFO rule, already accomplishes significant pathogen reductions. 
(See ``Loads Report'' for pollutant reduction estimates attributed to 
storage and the production area management practices required by the 
final CAFO rules.) EPA has not identified any additional production 
area management practices that will result in additional reductions of 
pathogens.
    Land Application Practices. Although the requirements of the 2003 
rule related to land application of manure were not specifically 
designed to reduce the pathogens in animal wastes, they are effective 
at achieving reductions of pathogens in CAFO discharges. In addition to 
the production area management practices described above, CAFO 
discharges of pathogens are further reduced by applying manure at rates 
that ensure appropriate agricultural utilization of nutrients and 
establishing setbacks or buffers where manure, litter, and other 
process wastewater are not applied. Accordingly, the final rule 
requirements include several land application practices, such as 
appropriate rates and timing of application, overall consideration of 
whether any land application should occur, and application setbacks and 
buffers. The 2003 CAFO rule also requires field-specific assessments of 
the potential for nutrient transport for each field to which manure may 
be land applied. Such assessments must address the source, form, 
timing, and method of application. Application rates must minimize 
phosphorus and nitrogen transport from the field to surface waters (40 
CFR 412.4(c)(2)). Application rate has been identified as the single 
most important factor affecting pollution of surface waters from fields 
receiving manure. In one case study, swine lagoon effluent applied to 
tile drained fields at 1.1 inches showed no difference in runoff 
quality from the control fields, but application at three times this 
rate yielded high levels of fecal coliform in the adjacent surface 
water.
    The final selected option also specifies that manure, litter, or 
other process wastewaters are not to be applied within 100 feet of any 
down-gradient surface waters, open tile line intake structures, 
sinkholes, agricultural well heads, or other conduits to surface waters 
(40 CFR 412.4(c)(5)). This setback is an area where manure, litter, or 
other process wastewaters are not applied, but crops may continue to be 
grown. The setback achieves pollutant reductions by increasing the 
distance pollutants have to travel to reach surface waters. The 
transport of nutrients and other pollutants (including pathogens) in 
manure to surface waters and the rate at which transport occurs is 
dependent on the land use, geography, topography, climate, amount and 
method of manure application, and the nature and density of vegetation 
in the area. As a compliance alternative to the setbacks

[[Page 37768]]

requirement, CAFOs may use vegetated buffers (40 CFR 412.4(c)(5)). 
EPA's record shows numerous examples of buffers with trapping 
efficiencies as high as 91% (e.g., see DCNs 385026, 321083, 22374). 
Buffer strips stabilize streambanks and shorelines, and prevent loss of 
pollutants from bank erosion and slumping. (Response to Comments 
Document, CAFO400085-16.) As indicated above, EPA considered and 
selected nutrient management and use of setbacks or buffers for the BPT 
ELGs (see 40 CFR 412.4 and 412.37). Because pathogen transport often 
occurs through adherence to soil or other solid particles, management 
practices that reduce discharges of other pollutants, particularly TSS, 
will also reduce pathogen discharges.
    As described previously, pathogen die-off occurs during the period 
manure is stored prior to land application, and further die-off of 
pathogens occurs when the animal waste is exposed to sunlight following 
surface application to land. Pathogenic bacteria in particular are 
sensitive to changes in environmental conditions. EPA applied the 
GLEAMS model to estimate changes in pollutants leaving the land 
application areas of CAFO facilities. EPA also calculated reductions in 
pathogen indicator loadings from the production area of facilities. 
(See Response to Comments Document, Appendix A, Essay: CAFOs as Sources 
of Pathogens and Related Risks).
    Additional factors affecting pathogen content in the runoff from 
land application areas include incorporation methods, tillage 
practices, saturation of the receiving field, and elapsed time 
following application before a rainfall. These factors are expected to 
be addressed, where appropriate, in the State technical standards 
required under 40 CFR 412.4(c)(2). For examples, see ``Managing 
Manure,'' 2-12 for a discussion of additional storage capacity for the 
winter season; Appendix L for technical guidance on minimizing risks of 
runoff of manure in the winter; and Appendix M for guidance on 
estimating the minimum level of rainfall at which runoff begins.
    In the 2003 CAFO rule, 40 CFR 412.4 requires technical standards 
for nutrient management to address the form, source, timing, and method 
of application to each field. At the time EPA evaluated, but did not 
select, technology Option 7 (same as Option 2 plus prohibition of land 
application of manure to frozen, snow-covered, or saturated ground). 
The incremental costs and pollutant reductions from the 2003 CAFO rule 
analysis for this option for beef and dairy facilities are presented in 
Table E.3. Today, EPA also presents the costs and conventional 
pollutant reductions of this technology option for swine facilities. To 
comply with this requirement at swine facilities, EPA has calculated 
the costs for additional storage capacity (up to six months additional 
storage in the Midwest and Mid-Atlantic regions; facilities in the 
Southern region were assumed not to need additional containment for 
manure storage over the winter). In all other respects, the cost models 
and model farms are the same as those used in the 2003 CAFO rule. EPA 
notes some incremental pollutant reductions from the productions area 
occur as a result of this requirement due to a reduction in frequency 
of overflows from manure storage areas, and that minimal reductions 
occur from the land application areas because the technical standards 
and NMPs required by the 2003 CAFO rule, while not banning application 
of manure to frozen, snow covered and saturated fields outright, 
already address timing issues associated with application of manure. 
EPA did not identify any additional land application management 
practices that will result in additional reductions of pathogens.
(b) Do Any of These Technologies Pass the BCT Cost-Reasonableness Test?
    In addition to other factors specified in Section 304(b)(4)(B), the 
CWA requires that EPA establish BCT limitations after consideration of 
a two part ``cost-reasonableness'' test. The ``cost reasonableness'' 
test evaluates ``the reasonableness of the relationship between costs 
of attaining a reduction in effluent and the effluent reduction 
benefits derived, and the comparison of the cost and level of reduction 
of such pollutants from the discharge of POTWs to the cost and level of 
reduction of such pollutants from a class or category of industrial 
sources * * *'' EPA explained its methodology for the development of 
BCT limitations in July 1986 (51 FR 24974). In developing the BCT 
methodology, EPA was guided by legislative history of the Clean Water 
Act, in particular, Congress' concern that controls for conventional 
pollutants at levels more stringent than BPT were likely to be 
unreasonably expensive in some cases. The BCT methodology answers the 
question of whether it is ``cost-reasonable'' for industry to control 
conventional pollutants at a level more stringent than BPT already 
requires.
    Establishing BCT effluent limitations for an industrial category or 
subcategory begins by identifying technology options that provide 
additional conventional pollutant control beyond that provided by 
application of BPT effluent limitations. EPA evaluates the candidate 
technologies by applying the two-part BCT cost test. To ``pass'' the 
POTW test (the first part of the cost-reasonableness test), the cost 
per pound of incremental conventional pollutant removed in upgrading 
from BPT to the candidate BCT must be less than the cost per pound of 
incremental conventional pollutant removed in upgrading POTWs from 
secondary treatment to advanced secondary treatment. The second part of 
the test that the ``candidate'' BCT technology must pass is the 
industry cost-effectiveness test, discussed below.
    Historically, EPA has evaluated the cost-reasonableness of each 
technology option on a subcategory basis. However, the candidate BCT 
technologies being evaluated for CAFOs vary significantly in costs and 
feasibility by animal type within a subcategory of CAFOs (Cost 
Methodology Report, EPA-821-R-03-004). For CAFOs, the specific 
candidate technologies are not universally applicable. If EPA were to 
evaluate each technology across a subcategory, there would not be any 
technology that could be applied to an entire subcategory to be 
evaluated, and EPA would conclude no technology exists that could be 
used to potentially establish BCT limitations more stringent than BPT. 
Therefore EPA has evaluated each candidate technology on a species-
specific basis (the animal species for which the technology is believed 
to be technologically available). These species-specific results may 
then be assembled into candidate technology options that are practical 
for a subcategory. This provides a meaningful evaluation of cost-
reasonableness for the entire subcategory, and is therefore both 
appropriate and necessary for applying the BCT cost reasonableness 
methodology to CAFOs.
    As described in the 1986 BCT methodology, the two conventional 
pollutants used in calculating the POTW pollutant removal benchmark are 
BOD and TSS. As previously discussed, EPA relied primarily on sediment 
removals as an indicator of conventional pollutant reductions. The 
models available for simulating pollutant reductions from land 
application practices (GLEAMS, EPIC, and BASINS) do not measure BOD, 
and EPA was not able to quantify BOD loadings from land application in 
the 2003 CAFO rule. Runoff from land application areas contains BOD 
from manure and process wastewaters, but it also contains BOD from 
organic matter including background soil organic materials and crop 
residues. In contrast to crop

[[Page 37769]]

residues, manure BOD is highly sensitive to moisture and aerobic 
conditions, and quickly forms inorganic materials and nutrients after 
land application, as evidenced by significant off-gassing (odor) as the 
manure decomposes. (DCN 1-01230.) BOD deliveries to surface water are 
also highly variable, but current literature suggests the timing of 
land application in relation to future rainfall events is a key 
parameter.
    Since the 2003 CAFO rule, models including WAM (Watershed 
Assessment Model) and WMM (Watershed Management Model) were developed 
that have some watershed level BOD modeling capability (for example, 
see ``TMDLs for Nutrient, DO, and BOD for Delaney Creek,'' March 2005, 
DCN 1-01222). The data required for the WMM model include: Area of all 
the land use categories and the area served by septic tanks; percent 
impervious area for each land use category; event mean concentration of 
runoff (EMC) for each pollutant type and land use category; percent EMC 
of each pollutant type that is in suspended form; and annual 
precipitation. The lack of data/literature to support estimation of 
national BOD loadings from land applied manure is a significant issue. 
EPA concludes the capability is still not available to model BOD 
runoff.
    The 2003 CAFO rule prohibits dry weather discharges from land 
application areas, and the BPT land application requirements (including 
technical standards for timing, form, and rate of application, as well 
as the required vegetated buffer, setback, or equivalent practices) 
already minimize discharges of BOD from land application areas. 
However, the reductions in BOD in runoff from land application areas, 
specifically the BOD attributable to manure and process wastewater, are 
minimal in comparison to production area discharges of BOD. Therefore 
EPA's load reductions for BOD include production area discharges 
(overflows and runoff from manure storage), but do not include land 
application. (See the TDD for discussion of EPA's modeling of overflows 
from the production area and runoff from land application areas; also 
see ``Loads Report'.) Table E.1 provides a summary of the costs and 
pollutant reductions of the 2003 CAFO rule BPT.

                           Table E.1.--2003 CAFO Rule BPT Costs and Pollutant Removals
----------------------------------------------------------------------------------------------------------------
                                       Annualized costs                        TSS removed        Total pounds
               Sector                 ($2001, millions,     BOD removed      (million pounds    removed (million
                                           pre tax)       (million pounds)      sediment)           pounds)
----------------------------------------------------------------------------------------------------------------
Beef................................                 86                  0               1201               1201
Dairy...............................                128                  0                 99                 99
Swine...............................                 25                  0                113                113
Poultry.............................                 41                  6                181                187
----------------------------------------------------------------------------------------------------------------

    Table E.2 provides incremental costs and incremental pollutant 
removals of candidate technologies in relation to BPT. Incremental 
costs are the costs of the technology option minus the BPT costs from 
Table E.1. Incremental load reductions are the pounds removed by the 
technology option minus the BPT load reductions from Table E.1. Total 
incremental reductions include BOD and TSS. See Section D.1(c) of 
today's preamble for additional discussion of pathogens (fecal 
coliform) reductions.

                               Table E.2.--Incremental Costs and Conventional Pollutant Removals of Candidate Technologies
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                          Annualized
                                                                                           cost of
                                                                                          candidate   Incremental  Incremental  Incremental     Total
                                                                                          technology     costs     BOD removed  TSS removed  incremental
              Candidate technology                            Animal sector                 option      ($2001,      (million     (million    reductions
                                                                                           ($2001,     millions,     pounds)       pounds      (million
                                                                                          millions,     pre-tax)                 sediment)     pounds)
                                                                                           pre-tax)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ground water Controls \1\......................  Beef..................................          231          145            0            0            0
                                                 Dairy.................................          316          188            0            0            0
                                                 Swine.................................           61           36            0            0            0
No Discharge...................................  Swine.................................          133          108            7            1            8
Composting.....................................  Beef..................................        1,367         1281            3           25           28
                                                 Dairy.................................          277          149            1            7            8
                                                 Poultry...............................          508          467            0            0            0
Anaerobic Digestion............................  Dairy.................................          505          377            2            9           11
                                                 Swine.................................           79           54            6            0            7
Land Application Timing Restrictions...........  Beef..................................          112           26            0            0            0
                                                 Dairy.................................          318          190            2            7            9
                                                 Swine.................................           37           12            7            1           8
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Only reduced discharges to surface waters via a hydrologic connection are included in this analysis.

    The POTW upgrade cost is referred to as the POTW benchmark; its 
derivation is described in the 1986 final BCT methodology notice (51 FR 
24974). The upgrade cost to industry must be less than the POTW 
benchmark of $0.25 per pound (in 1976 dollars) or $0.65 per pound (in 
2001 dollars). Table E.3 provides the cost per pound of conventional 
pollutants (BOD and TSS) removed by the candidate technology. (See the 
Addendum to the TDD, DCN 1-10227 for additional information on the POTW 
benchmark.)

[[Page 37770]]



                                         Table E.3.--Cost Test Part One
                                               [POTW test results]
----------------------------------------------------------------------------------------------------------------
                                                                   Incremental cost
                                                                  per pound removed
        Candidate technology                Animal sector         by technology ($/       POTW test  result
                                                                         lb)
----------------------------------------------------------------------------------------------------------------
Ground water controls..............  Beef.......................              \1\NC  Fail.
                                     Dairy......................                 NC  Fail.
                                     Swine......................                 NC  Fail.
No discharge.......................  Swine......................              13.55  Fail.
Composting.........................  Beef.......................              46.39  Fail.
                                     Dairy......................              17.84  Fail.
                                     Poultry....................                 NC  Fail.
Anaerobic Digestion................  Dairy......................              34.15  Fail.
                                     Swine......................               7.89  Fail.
Land Application Timing              Beef.......................             366.65  Fail.
 Restrictions.
                                     Dairy......................              20.90  Fail.
                                     Swine......................               1.55  Fail.
----------------------------------------------------------------------------------------------------------------
\1\ Values were not calculated because no additional pollutant reductions to surface waters were expected for
  these options.

    In all cases, the POTW benchmark is lower than the cost per pound 
of conventional pollutants removed by the candidate technology. Since 
the candidate technologies all fail the POTW cost test, the candidate 
technologies are not cost-reasonable. EPA notes that even though a 
candidate technology may be affordable for a subcategory, the candidate 
technologies must be cost-reasonable to be considered as a basis for 
setting BCT limitations.
    EPA concludes that since all candidate technologies fail the POTW 
test for each species evaluated, any technology option developed for 
subcategories C or D utilizing a combination of these candidate 
technologies also fails the POTW test. In addition, EPA believes the 
results presented here for beef, dairy, swine, and poultry operations 
are reasonably extrapolated to veal calf operations (which are 
typically total confinement operations like swine) and heifer 
operations (which use similar waste management technologies to beef 
feedlots). EPA notes veal calf and heifer operations comprise 
approximately two percent of all Large CAFOs. Once the candidate 
technology fails the POTW test, the candidate technology fails the 
cost-reasonableness test. The industry cost-effectiveness test (the 
second test for determining cost reasonableness) is only relevant if 
the POTW test (the first test) is passed. The following discussion of 
the industry cost-effectiveness test is provided today for 
completeness.
    The second test that the candidate BCT technology must pass to be 
considered cost-reasonable is the industry cost-effectiveness test. To 
pass the industry cost test, EPA computes a ratio of two incremental 
costs. The first incremental cost is the cost per pound removed by the 
candidate technology relative to BPT. The second incremental cost is 
the cost per pound removed by BPT relative to no treatment (i.e., raw 
wasteload). As in the POTW test, the ratio of the first cost divided by 
the second cost is compared to an industry cost benchmark. The industry 
cost benchmark is the ratio of two incremental costs: The cost per 
pound to upgrade a POTW from secondary treatment to advanced secondary 
treatment is divided by the cost per pound to initially achieve 
secondary treatment. If the industry ratio is lower than the benchmark, 
then the candidate technology passes the cost test. The industry cost 
benchmark is 1.29 (see 51 FR 24974; also see the Pulp and Paper Final 
Rule Technical Development Document, EPA-821-R-97-011). Table E.4 shows 
the ratio of the incremental costs for the candidate technology 
options. (See Addendum to the TDD for additional information on the 
cost ratio calculations.)

                                         Table E.4.--Cost Test Part Two
                                   [Industry cost-effectiveness test results]
----------------------------------------------------------------------------------------------------------------
                                                          Candidate
     Candidate technology          Animal sector       technology cost     Industry cost     Industry cost test
                                                            ratio            benchmark             result
----------------------------------------------------------------------------------------------------------------
Ground water controls........  Beef.................                 NC               1.29  Fail.
                               Dairy................                 NC               1.29  Fail.
                               Swine................                 NC               1.29  Fail.
No discharge.................  Swine................              61.15               1.29  Fail.
Composting...................  Beef.................             647.70               1.29  Fail.
                               Dairy................              13.86               1.29  Fail.
                               Poultry..............                 NC               1.29  Fail.
Anaerobic digestion..........  Dairy................              26.52               1.29  Fail.
                               Swine................              35.63               1.29  Fail.
Land Application Timing        Beef.................           5,119.52               1.29  Fail.
 Restrictions.
                               Dairy................              16.23               1.29  Fail.
                               Swine................               6.99               1.29  Fail.
----------------------------------------------------------------------------------------------------------------


[[Page 37771]]

    In all cases, the candidate technology's cost ratio is higher than 
the industry cost benchmark, and the technology would fail the second 
test. EPA concludes that since all candidate technologies fail the 
industry cost-effectiveness test for each species evaluated, any 
technology option developed for subcategories C or D utilizing a 
combination of these candidate technologies also fails the industry 
cost test for similar reasons described above.
(c) How Is EPA Evaluating Pathogens in Its BCT Cost Reasonableness 
Analysis?
    As stated above, EPA establishes BCT effluent limitations for an 
industrial category or subcategory by identifying technology options 
that provide additional conventional pollutant control beyond that 
provided by application of BPT technologies. EPA evaluates candidate 
technologies by applying the two-part BCT cost test where one 
requirement is that the cost per pound of conventional pollutant 
removed in upgrading from BPT to the candidate BCT must be less than 
the cost per pound of conventional pollutant removed in upgrading POTWs 
from secondary treatment to advanced secondary treatment. The two 
conventional pollutants used in calculating the POTW pollutant removal 
benchmark are BOD and TSS.
    For the candidate technology's cost comparison, the 1986 BCT 
methodology describes the use of BOD and TSS, and also oil and grease 
when appropriate in the context of the industry and technology being 
evaluated. When the Agency promulgated the BCT methodology (including 
descriptions of how to apply the cost test), fecal coliform and pH were 
not included in the calculations because, unlike BOD and TSS, these 
pollutants were not measurable as ``pounds removed.'' Section 
304(b)(4)(B) authorizes EPA to consider other appropriate factors in 
establishing BCT. The 1986 methodology envisioned the need for 
adjustments to the BCT cost test methodology in future rulemakings to 
account for lack of comparable data or other industry-specific factors. 
(51 FR 24974, 24976 (July 9, 1986).) For CAFOs, where pathogen 
reductions are a factor to be considered, including fecal coliform for 
the determination of BCT cost reasonableness is an appropriate 
application of such flexibility.
    The Second Circuit directed EPA to make an affirmative finding that 
the BCT-based ELGs adopted in the 2003 CAFO rule do in fact represent 
the best conventional pollutant control technology for reducing 
pathogens, specifically fecal coliform. Although fecal coliform is not 
typically used in BCT cost calculations, in light of the Second 
Circuit's direction and the flexibility inherent in the BCT 
methodology, EPA developed procedures to evaluate cost-reasonableness 
for fecal coliform removal for this industry. Therefore, today's 
proposal includes an additional set of cost comparisons to directly 
account for pathogens by specifically including fecal coliform, the 
only conventional pollutant that is a possible pathogen. EPA thus adds 
fecal coliform to the BCT determination, which is an appropriate 
adjustment to the BCT methodology for the CAFO industry. The proposed 
approach parallels the two-part cost-reasonableness test conducted 
above for pounds of conventional pollutants, but here, pounds of 
conventional pollutants is replaced by colony forming units (CFU) of 
fecal coliform. Table E.5 presents the costs and fecal coliform (FC) 
removals of the 2003 CAFO rule (BPT).

          Table E.5.--2003 CAFO Rule BPT Costs and FC Removals
------------------------------------------------------------------------
                                     Annualized costs
              Sector                ($2001, millions,      FC removed
                                         pre-tax)        (million CFU)
------------------------------------------------------------------------
Beef..............................                 86     10.56 x 10\13\
Dairy.............................                128      0.97 x 10\13\
Swine.............................                 25      0.42 x 10\13\
Poultry...........................                 41      6.74 x 10\13\
------------------------------------------------------------------------

    Table E.6 provides incremental costs and incremental fecal coliform 
(FC) removals of candidate technologies in relation to BPT. In this 
analysis, EPA has again evaluated the candidate technologies first on a 
species-specific basis. These results may then be combined to form 
candidate technology options that can be used to conduct the cost-
reasonableness test on a subcategory wide basis. Costs are the same as 
those presented in Table E.2. Fecal coliform removals were determined 
using the 2003 CAFO rule methodology as described above in section 
E.3(a).

                     Table E.6.--Incremental Costs and FC Removals of Candidate Technologies
----------------------------------------------------------------------------------------------------------------
                                                                               Incremental
                                                                             annualized cost     Incremental FC
          Candidate technology                      Animal sector           ($2001, millions,  removed  (million
                                                                                 pre-tax)             CFU)
----------------------------------------------------------------------------------------------------------------
Ground water controls...................  Beef............................                145             \1\ ND
                                          Dairy...........................                188                 ND
                                          Swine...........................                 36                 ND
No discharge............................  Swine...........................                108       7.4 x 10\13\
Composting..............................  Beef............................               1281       250 x 10\13\
                                          Dairy...........................                149      30.4 x 10\13\
                                          Poultry.........................                467     0.460 x 10\13\
Anaerobic digestion.....................  Dairy...........................                377      22.9 x 10\13\
                                          Swine...........................                 54       136 x 10\13\
Land Application Timing Restriction.....  Beef............................                 26     0.560 x 10\13\
                                          Dairy...........................                190      22.9 x 10\13\

[[Page 37772]]

 
                                          Swine...........................                 12      136 x 10\13\
----------------------------------------------------------------------------------------------------------------
\1\ Values were non-zero, but too small to report in the indicated units.

    EPA needed to develop a new benchmark to use for this alternative 
POTW part of the BCT cost test which reflects the cost to reduce fecal 
coliform at a POTW. To do this, EPA first examined the costs of removal 
of fecal coliform at secondary and advanced secondary plants. EPA 
defined both secondary and advanced secondary plants in the same way as 
in the 1986 BCT cost methodology. Secondary plants are assumed to be 
activated sludge plants and advanced secondary plants are activated 
sludge plants with polymer addition. EPA reviewed the POTW costs 
presented in the July 9, 1986, Federal Register Notice, and confirmed 
that the costs reflect both chlorination and biological treatment (see 
51 FR 24982). Performance data show that the majority of fecal coliform 
removal (90 to 98 percent) occurs during secondary treatment and is 
accomplished through removal of the biosolids. Disinfection, such as 
through chlorination or ultraviolet decomposition, is used as a 
polishing step to reduce fecal coliform to below 200 CFU/100 mL. EPA 
concludes that the POTW benchmark must reflect the cost of biological 
treatment as well as a polishing step for disinfection.
    Second, EPA evaluated the amount of fecal coliform removed at 
POTWs. EPA evaluated reported influent and effluent fecal coliform data 
reported by POTWs on their discharge monitoring reports (as assembled 
in EPA's Permit Compliance System). EPA determined, however, that there 
were insufficient influent data to develop a representative national 
influent concentration for fecal coliform. Therefore, EPA used 
reference data on typical domestic wastewater concentrations of fecal 
coliform (Metcalf and Eddy, Wastewater Engineering: Treatment, 
Disposal, and Reuse (1991 3d ed.), DCN 1-01002.) EPA notes that the 
limited PCS influent data falls within the range of the domestic 
wastewater reference data. (See DCN 1-01002.)
    Final effluent fecal coliform concentration from POTWs with 
secondary treatment was set at 200 CFU per 100 mL (Ambient Water 
Quality Criteria for Bacteria, DCN 1-01004). EPA used data from EPA's 
Permit Compliance System to evaluate national effluent concentrations 
of fecal coliform from POTWs with advanced secondary treatment. The 
data shows those POTWs with advanced secondary treatment generally 
achieved fecal coliform effluent concentrations of 20 to 40 CFU/100 mL, 
with a median effluent of 21 CFU per 100 mL. (See DCN 1-01005.)
    Finally, EPA estimated the benchmark cost to remove a trillion CFU 
per year for each of the five flow categories evaluated in the 1986 BCT 
cost methodology, and weighted the costs by total POTW flow for the 
category. The resulting incremental cost per trillion CFU removed was 
$0.33 (2001). (See Addendum to the TDD for additional information on 
the POTW benchmark calculations.) Table E.7 shows the POTW test results 
using this fecal coliform POTW benchmark for conducting part one of the 
cost-reasonableness test.

                                  Table E.7.--Fecal Coliform Cost Test Part One
                                               [POTW test results]
----------------------------------------------------------------------------------------------------------------
                                                                  Cost per trillion
        Candidate technology                Animal sector           CFU removed by        POTW  test result
                                                                      technology
----------------------------------------------------------------------------------------------------------------
Ground water controls..............  Beef.......................            \1\ NC1  Fail.
                                     Dairy......................                 NC  Fail.
                                     Swine......................                 NC  Fail.
No discharge.......................  Swine......................               1.46  Fail.
Composting.........................  Beef.......................               0.51  Fail.
                                     Dairy......................               0.49  Fail.
                                     Poultry....................             101.44  Fail.
Anaerobic digestion................  Dairy......................               1.64  Fail.
                                     Swine......................               0.04  Pass.
Land Application Timing              Beef.......................               4.58  Fail.
 Restrictions.
                                     Dairy......................               0.83  Fail.
                                     Swine......................               0.01  Pass.
----------------------------------------------------------------------------------------------------------------
\1\ NC means not calculated.

    For most sectors, the alternate POTW benchmark is lower than the 
cost per CFU removed by the candidate technology. In these cases, the 
candidate technologies fail the POTW test for fecal coliform. The 
remaining candidate technologies are assumed to pass the POTW test and 
move on to the second cost test.
    The second test that the candidate BCT technology must pass to be 
considered cost-reasonable is the industry cost-effectiveness test. As 
described previously, to pass the industry cost test, EPA computes a 
ratio of two incremental costs. In the alternative cost test, the fecal 
coliform reductions are used in lieu of pounds of TSS and BOD. The 
first incremental cost is therefore the cost per trillion CFU removed 
by the candidate technology relative to BPT. This is divided by the 
cost per trillion CFU removed by BPT relative to no treatment (i.e., 
raw

[[Page 37773]]

wasteload). The industry cost benchmark is the ratio of two incremental 
costs: The cost per trillion CFU to upgrade a POTW from secondary 
treatment to advanced secondary treatment over the cost per trillion 
CFU to initially achieve secondary treatment. If the industry ratio is 
lower than the benchmark, then the candidate technology passes the cost 
test. The industry cost benchmark is 0.04. Table E.8 shows the ratio of 
the incremental costs for the candidate technology options and the 
results of the second test. (See Addendum to the TDD for detailed 
calculations of the industry cost benchmark.)

                                         Table E.8.--Cost Test Part Two
                   [Industry cost-effectiveness test results for the fecal coliform cost test]
----------------------------------------------------------------------------------------------------------------
                                                          Candidate
     Candidate technology          Animal sector       technology cost     Industry cost     Industry cost test
                                                            ratio            benchmark             result
----------------------------------------------------------------------------------------------------------------
Anaerobic digestion..........  Swine................               6.63               0.04  Fail.
Land Application Timing        Swine................               1.48               0.04  Fail.
 Restrictions.
----------------------------------------------------------------------------------------------------------------

    In both cases, the industry cost ratio is higher than the 
benchmark. Therefore, none of the candidate technologies pass the 
industry cost-effectiveness test. Since all candidate technologies fail 
the BCT cost test for each species evaluated, any technology option 
developed for subcategories C or D utilizing a combination of these 
candidate technologies also fails the cost test. EPA notes the 
reductions in fecal coliform achieved by the candidate technologies 
(i.e., greater than 99 percent fecal coliform removal in the case of 
digesters and composting) represent the upper bound attainable by any 
technology. Finally, EPA's record shows all candidate technologies 
would fail the second test even under EPA's sensitivity analyses that 
assume considerable cost-offsets and cost-sharing. (See Addendum to TDD 
for additional information on the sensitivity analysis for cost-
offsets. EPA solicits comment on all of these data and analyses.)
(d) What BCT Limitations Are Proposed Today?
    EPA found that the primary sources of discharges from CAFOs were 
production area overflows due to inadequate operation and maintenance 
of the infrastructure for containing and transporting liquid manure and 
wastewater, and discharges from the application area due to 
agriculturally improper application of manure, litter, and process 
wastewater. EPA previously concluded that the BPT standards requiring 
operation, maintenance, and record-keeping BMPs along with no discharge 
from the production area, and land application BMPs that require 
appropriate agricultural utilization of manure, litter, and process 
wastewater, significantly reduce water pollutant discharges, including 
pathogen loads.
    The technologies already evaluated by EPA generally show high 
removals (99 percent) of conventional pollutants. In order to pass the 
cost-reasonableness test, EPA believes any additional candidate 
technologies would need to show similar pollutant removals and 
significantly lower costs. EPA is also aware of technologies that may, 
on a site-specific basis, be used to provide further reductions of 
conventional pollutants. However, EPA's record shows these other 
technologies are not available engineering alternatives for most CAFOs, 
and they are therefore not technologically feasible candidates. (See 
Chapter 8 of the TDD and the docket accompanying today's proposal for 
descriptions of these additional technologies.) EPA further assumes 
variations of the technologies evaluated today (for example, plug-flow 
or complete mix anaerobic digesters versus activated sludge systems) 
will have comparable or higher costs and comparable pollutant 
reductions. Therefore, EPA concludes that variations of the candidate 
technologies evaluated today will not pass the cost-reasonableness 
test. EPA solicits comment on these findings.
    In summary, EPA identified several candidate technologies that can 
potentially achieve greater removals of conventional pollutants than 
the BPT standards. EPA evaluated these candidate technologies by 
conducting the two-part cost reasonableness test. If any candidate 
technologies are feasible and pass both the POTW and the industry cost 
test, then the most stringent technology option among them becomes the 
basis for setting BCT effluent limitations. Alternatively, if no 
candidate technology more stringent than BPT passes, then BCT effluent 
limitations are set equal to BPT effluent limitations. Today EPA finds 
that all candidate technologies fail the cost-reasonableness test. EPA 
also finds that all candidate technologies fail the alternative cost-
reasonableness test that is based on fecal coliform. Accordingly, EPA 
proposes BCT effluent limitations equal to the 2003 CAFO rule BPT 
limitations, and affirms that the 2003 CAFO rule BPT limitations do in 
fact represent the best conventional pollutant control technology. EPA 
solicits comment on all aspects of the cost-reasonableness analysis and 
the alternative cost test presented today.

IV. Impact Analysis

A. Environmental Impacts

    When EPA issued the revised CAFO regulations on February 12, 2003, 
it estimated annual pollutant reductions for the rule at 56 million 
pounds of phosphorus, 110 million pounds of nitrogen, and two billion 
pounds of sediment. The new proposed rule will retain these 
environmental benefits since the technical requirements for facilities 
that discharge are not affected and all facilities will still need to 
control nutrient releases from the production and land application 
areas. The overall magnitude of the benefits will increase over 2003 
due to growth in the industry, but the analysis for today's proposed 
rule does not recalculate these effects since the increase is not due 
to changes in the CAFO regulations.
    The premise that environmental benefits are retained is based in 
large part on the assumption that facilities that do not apply for 
permits will, in fact, not discharge and will still manage wastewater, 
manure and litter appropriately at both production and land application 
areas. The preamble for the proposed rule makes clear that, although it 
is not necessary for a CAFO to be covered by an NPDES permit in order 
to qualify for the agricultural storm water exemption, it is the 
Agency's view that if a facility wants to claim that precipitation-
related discharges from land-application areas are agricultural storm 
water runoff, the CAFO should be land-applying at agronomic rates that 
correspond to the requirements in 40 CFR 122.42(e)(1)(vi)-(ix) for land 
application.

[[Page 37774]]

    The premise that benefits are retained is also based on the 
conventional modeling assumption of ``full compliance,'' which in this 
case involves assuming that all facilities that discharge will seek 
permit coverage. EPA is aware that the permitting history of CAFOs to 
date could be viewed as calling into question the validity of this 
assumption. At the time of the 2003 CAFO rule, current estimates 
indicated that only 4,000 CAFOs were permitted out of a total universe 
of approximately 13,000 CAFOs potentially covered under the pre-2003 
CAFO regulations. (See the Technical Development Document for the 2003 
rule, Chapter 9.) This difference was driven by two key factors. First, 
many operations claimed the 25-year, 24-hour storm exemption available 
under the old regulations. Second, many authorized States were at that 
point still developing their NPDES CAFO programs and were using a 
variety of mechanisms to control discharges from CAFOs.
    The ongoing reporting on NPDES CAFO permitting completed by EPA 
since passage of the 2003 rule continues to augment information on 
CAFOs, and indicates that the number of permitted CAFOs is growing. 
Currently, EPA estimates that approximately 8,500 CAFOs are covered by 
NPDES permits. EPA plans to continue to work to ensure full NPDES 
coverage for discharging CAFOs by expanding its partnership with 
industry stakeholders.
    EPA seeks comment on its assumptions regarding the benefits of the 
rule (no change from the 2003 rule).

B. Administrative Burden Impacts

    Since there is no change in technical requirements, changes in 
impacts on respondents are estimated to result exclusively from changes 
in the information collection burden. To determine the administrative 
burden for the Paperwork Reduction Act (PRA) analysis for today's 
proposed rule, the Agency examined the two key permitting changes 
resulting from the Waterkeeper decision and how they would be 
implemented under the proposal. These two permitting features are the 
change in the duty to apply for CAFOs and the change to the NMP-related 
provisions for CAFO permits.
    The 2003 CAFO rule had a universal duty to apply requirement which 
required virtually all CAFOs to obtain NPDES permit coverage. The 
supporting analysis for the rule estimated that as a result of this 
requirement, approximately 15,500 CAFOs would ultimately receive NPDES 
permits. (See the Technical Development Document for the 2003 rule, 
Chapter 9.) Today's proposed rule changes the duty to apply requirement 
so that only CAFOs that discharge or propose to discharge would need to 
seek NPDES coverage. To derive the number of CAFOs that could 
ultimately fall into this category, EPA first estimated industry size 
for 2005 by projecting industry growth from the 2003 estimates using 
both USDA 2002 Census of Agriculture statistics as well as Agency-based 
sector expertise. This exercise yielded an estimate of approximately 
18,800 total CAFOs for 2005. EPA then combined the 2005 projections for 
each animal sector with information on standardized operational 
profiles to anticipate the numbers of facilities as of 2005 that might 
experience discharges. For example, when inclement weather precludes 
land application or dewatering activities, open lot type facilities, 
such as beef lots and dairy operations, are more likely to experience 
conditions that could result in a discharge due to the use of open on-
site lagoons common at many of these facilities. Additionally, EPA 
assumed that all dairies generate wastewater from the production area 
and generally have uncovered on-site lagoons. Thus, for purposes of 
burden estimates, EPA assumed that all dairies and most beef feedlots 
would apply for permits.
    Even though the industry grew to roughly 18,800 CAFOs from 2002 to 
2005 (an aggregate growth factor of approximately 22% due to industry 
expansion and the trend toward larger, more concentrated facilities), 
the change in the duty to apply requirement is anticipated to reduce 
the number of facilities needing permit coverage to approximately 
14,000 CAFOs. Based on these updated figures, EPA estimates that 
approximately 25 percent fewer CAFOs would ultimately receive permits 
under today's proposed rule than under the requirements of the 2003 
rule. These projections are discussed in more detail in documentation 
available in the public record for today's proposal.
    These figures may overestimate CAFO NPDES permits in that they make 
conservative categorical assumptions about the likelihood of a 
discharge based on broad operational profiles and do not account for 
more subtle stratifications within specific operational categories. For 
instance, although most dairies generate washwater from the production 
area and have on-site lagoons, there do, in fact, exist dairies 
designed to be zero-discharge operations.
    Using the CAFO universe numbers discussed above, EPA projects that 
CAFO operators will experience an aggregate administrative burden 
reduction of nearly $15.5 million annually as a result of the court 
decision to vacate the duty to apply requirement since fewer facilities 
will need to apply and submit the paperwork for NPDES permits. 
Similarly, permit authorities (``State respondents'') will experience a 
roughly $5.2 million reduction in administrative burden due to the 
court decision to vacate the duty to apply requirement.
    In contrast, the administrative burden impacts from the NMP-related 
changes made in response to the court ruling go up. EPA is revising the 
permitting process for both individual and general permits to ensure 
that CAFOs seeking permits submit their NMPs with their permit 
application. (NMPs were already required for all CAFOs under the 2003 
rule.) EPA projects that facilities collectively would only experience 
a minimal increase in administrative burden--nearly $111,000 for all 
facilities annually--as a consequence of this change. However, State 
permitting authorities would face a $5.7 million annual increase in 
administrative burden as a result of the significant effort needed to 
review the NMPs for each permittee, arrange for public review and 
conduct public hearings if requested, respond to comments, and 
incorporate the terms of the NMP into the NPDES CAFO permit. For permit 
authorities, these costs would more than offset the burden reduction 
from the change in the duty to apply and the resulting decline in the 
number of CAFO permits.
    Table 1 below summarizes the administrative burden changes expected 
to occur as a result of the proposed rule. Baseline A presents the 
costs to facilities and permitting authorities of implementing the 2003 
CAFO rule as described above. In addition, Table 1 provides an 
illustration in Baseline B of the administrative burden costs in the 
absence of EPA's proposed rule. The permit processing burden (``duty to 
apply'') for State permitting authorities in this scenario would 
increase rather than decrease due to a lack of clarity on the 
appropriate permitting processes for implementing the court ruling. 
Specifically, under this baseline, EPA assumes that States would not be 
able to realize time savings from the use of general permits for CAFOs 
because of the Court's directive that CAFO permits include facility-
specific terms of the CAFO's NMP. EPA instead used burden estimates 
associated with the individual permit process when costing the burden 
for CAFO permits under Baseline B. The proposed rule provides a 
mechanism for States to realize some time savings through the use of 
general permits while

[[Page 37775]]

still complying with the Court's directive.
BILLING CODE 6560-50-P
[GRAPHIC] [TIFF OMITTED] TP30JN06.048

    Overall, under Baseline A as previously described, the 
administrative burden under the proposed rule (i.e., the difference 
between Baseline A and the proposed costs of the proposal) is projected 
to decline to a total of approximately $64 million, which constitutes a 
reduction of roughly $15 million compared to the 2003 CAFO rule. This 
burden impact estimate accounts both for growth in the industry and 
changes in labor rates since the 2003 rule was issued. In addition, the 
changes are based on annualized impacts, and assume a permit term of 
five years as stipulated in the Clean Water Act. More documentation on 
the administrative burden impacts is available in the public record for 
today's proposal in the supporting documents for the Paperwork 
Reduction Act analysis.

V. Cross Media Approaches

    Since 2003, EPA and some stakeholders have been interested in 
developing a framework to enable CAFOs to pursue superior environmental 
performance across all media. We are aware that today some CAFOs 
voluntarily conduct whole-farm audits to evaluate releases of 
pollutants to all media through Environmental Management Systems, self-
assessment tools, EPA's performance track, ISO 14001 certification, and 
state-approved trade offs in reducing discharges to water and emissions 
to air that accomplish the best overall level of protection given state 
and local conditions. EPA continues to believe that the development of 
new and emerging technologies offers the potential to achieve 
equivalent or greater pollutant reductions relative to those achieved 
by the effluent guidelines and standards. Many of these are superior 
from a cross media perspective, and EPA would like to encourage 
superior cross media solutions. These regulations regarding nutrient 
management plans may provide a unique opportunity for EPA to encourage 
cross media approaches at CAFOs. For example, the nutrient value in the 
animal byproducts provides a valuable source of fertilizer for crops. 
However, inappropriate application can lead to preventable discharges 
to water and emissions to air. Optimal application technologies and 
rates reduce potential water quality and air quality standards 
violations.
    EPA would like to take comment on the feasibility (including 
consideration of legal, technical, and implementation issues) of 
allowing flexibility in how facilities can meet various programmatic 
requirements, for instance those of the Clean Air Act and the Clean 
Water Act, in order to achieve greater cross-media pollutant 
reductions. We are interested in exploring this type of approach for 
both existing and new CAFOs.
    EPA continues to believe the development of new and emerging 
technologies offers the potential to match or surpass the pollutant 
reductions achieved by today's effluent guidelines and standards. EPA 
does not want to discourage approaches that are superior from a cross 
media perspective. Some CAFOs today voluntarily conduct whole-farm 
audits to evaluate releases of pollutants to all media. EPA plans to 
consider future opportunities and incentives for CAFOs to participate 
in such activities. We are not currently proposing such an approach 
through this action. The development of any such approach would proceed 
through future notice and comment rulemaking.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    1. Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;

[[Page 37776]]

    2. Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    3. Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    4. Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, OMB has notified 
EPA that it considers this a ``significant regulatory action'' within 
the meaning of the Executive Order. EPA has submitted this action to 
OMB for review. Changes made in response to OMB suggestions or 
recommendations will be documented in the public record.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR number 1989.03.
    Under the 2003 rule, all CAFOs were required to apply for a permit 
and develop and implement a nutrient management plan. Today's proposed 
rule would reduce the universe of CAFOs that are subject to these 
requirements specifically to those CAFOs that discharge or propose to 
discharge.
    Overall, the administrative burden under the proposed rule is 
projected to decline to a total of approximately $64 million, which 
constitutes a reduction of approximately $15 million compared to the 
2003 CAFO rule. The overall labor burden decreases by 777,366 hours. 
Much of this burden reduction arises from the reduced burden to 
facility respondents--i.e., those CAFOs subject to permitting. EPA 
estimates that these operations will experience an aggregate 
administrative burden reduction of nearly $15.5 million annually 
(810,751 labor hours) as a result of the portion of the court decision 
that vacates the duty to apply requirement since fewer facilities will 
need to apply and submit the paperwork for NPDES permits. However, 
State permitting authorities would face an increase in administrative 
burden as a result of the significant effort needed to review the NMPs 
for each permittee, arrange for public review and conduct public 
hearings if requested, respond to comments, and incorporate the terms 
of the NMP into the NPDES CAFO permit. This increase in burden to 
States offsets the burden reduction experienced by CAFOs, and is 
explained in more detail in Section IV of the impact analysis for 
today's proposal.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR Part 9.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, including the use of automated collection 
techniques, EPA has established a public docket for this rule, which 
includes this ICR, under Docket ID number EPA-HQ-OW-2005-0037. Submit 
any comments related to the ICR for this proposed rule to EPA and OMB. 
See ADRESSES section at the beginning of this notice for where to 
submit comments to EPA. Send comments to OMB at the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for 
EPA. Since OMB is required to make a decision concerning the ICR 
between 30 and 60 days after June 30, 2006, a comment to OMB is best 
assured of having its full effect if OMB receives it by July 31, 2006. 
The final rule will respond to any OMB or public comments on the 
information collection requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration (SBA) at 13 CFR 121.201 
size standards; (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (3) a small organization 
that is any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
adverse economic impact on a substantial number of small entities since 
the proposed rule involves a net burden reduction compared to the 
burden placed on facilities under the 2003 CAFO rule. Additionally, 
this proposed rule would not affect small governments as the permitting 
authorities are State or federal agencies. We continue to be interested 
in the potential impacts of the proposed rule on small entities and 
welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the

[[Page 37777]]

Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this proposed rule would not contain a 
federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or the 
private sector in any one year. The proposed rule would increase the 
burden to the States by $502,000 (30,300 hours) annually, which 
reflects the fact that although States will need to process fewer 
permits, the effort associated with each permit is greater. The 
proposed rule would also decrease the burden to CAFO respondents by 
nearly $15.4 million (807,659 hours) annually due to the smaller number 
of facilities that will need permits. In total, EPA estimates a net 
reduction of $15 million annually (777,366 hours) in the information 
collection burden as a result of the proposed rule. Thus, today's 
proposed rule is not subject to the requirements of sections 202 and 
205 of the UMRA. For the same reason, EPA has determined that this rule 
contains no regulatory requirements that might significantly or 
uniquely affect small governments. Thus, today's proposed rule is not 
subject to the requirements of section 203 of UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6(b) of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. Under section 6(c) of Executive 
Order 13132, EPA may not issue a regulation that has federalism 
implications and that preempts State law, unless the Agency consults 
with State and local officials early in the process of developing the 
proposed regulation.
    EPA has concluded that this proposed rule does not have federalism 
implications. It will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
EPA estimates that the average annual impact on all authorized States 
together is $502,000. EPA does not consider an annual impact of this 
magnitude on States to be a substantial effect. In addition, EPA does 
not expect this rule to have any impact on local governments.
    Further, the revised regulations would not alter the basic State-
federal scheme established in the Clean Water Act under which EPA 
authorizes States to carry out the NPDES permitting program. EPA 
expects the revised regulations to have little effect on the 
relationship between, or the distribution of power and responsibilities 
among, the federal and State governments. Thus, Executive Order 13132 
does not apply to this rule.
    Consistent with EPA policy, EPA nonetheless consulted with 
representatives of State governments early in the process of developing 
the proposed regulation to permit them to have meaningful and timely 
input into its development. Through a variety of meetings with State 
associations, States have been apprized of the issues related to 
addressing the court's decisions. States provided input during these 
meetings. State concerns generally focused on the process for 
incorporating NMPs into permits and the related public review process, 
and also on guidance related to what is a discharge from a CAFO given 
that the proposal would now require only those operations that have a 
discharge to apply for a permit. These concerns have been addressed in 
detail in this proposal in such a way as to build in flexibility, yet 
accountability, for the new permit application requirements and review 
processes proposed herein today.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled, ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the federal government and Indian tribes, or on 
the distribution of power and responsibilities between the federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule.
    In the spirit of Executive Order 13175, and consistent with EPA 
policy to promote communications between EPA and tribal governments, 
EPA specifically solicits additional comment on this proposed rule from 
tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under E.O. 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This regulation is not subject to Executive Order 13045 because it 
is not economically significant as defined under E.O. 12866, and 
because the Agency does not have reason to believe

[[Page 37778]]

the environmental health and safety risks addressed by this action 
present a disproportionate risk to children. The benefits analysis 
performed for the 2003 CAFO rule determined that the rule would result 
in certain significant benefits to children's health. (Please refer to 
the Benefits Analysis in the record for the 2003 CAFO final rule.) 
Today's action does not affect the environmental benefits of the rule.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it 
is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub. L. 104-113, Section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standard bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    Today's proposal does involve the use of technical standards for 
land application of manure and elimination of discharges from the 
production area. However, the specific standards applicable to a 
specific operator are generally determined by the permitting authority 
on a State-wide or site-specific BPJ basis. EPA encourages the use by 
permitting authorities of voluntary consensus standards, such as those 
developed by USDA, in establishing the site-specific technical 
requirements in CAFO permits.

BILLING CODE 6560-50-P

[[Page 37779]]

[GRAPHIC] [TIFF OMITTED] TP30JN06.049


[[Page 37780]]


[GRAPHIC] [TIFF OMITTED] TP30JN06.050


[[Page 37781]]


[GRAPHIC] [TIFF OMITTED] TP30JN06.051


[[Page 37782]]


[GRAPHIC] [TIFF OMITTED] TP30JN06.052


[[Page 37783]]


[GRAPHIC] [TIFF OMITTED] TP30JN06.053


[[Page 37784]]


[GRAPHIC] [TIFF OMITTED] TP30JN06.054

BILLING CODE 6560-50-C

OMB No. 2040-0250

List of Subjects

40 CFR Part 122

    Administrative practice and procedure, Hazardous substances, 
Reporting and recordkeeping requirements, Water pollution control.

40 CFR Part 412

    Feedlots, Livestock, Waste treatment and disposal, Water pollution 
control.

    Dated: June 22, 2006.
Stephen L. Johnson,
Administrator.

    For the reasons set out in the preamble, chapter I of title 40 of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

    1. The authority citation for part 122 continues to read as 
follows:

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

    2. Section 122.21 is amended by revising the last sentence in 
paragraph (a)(1), and revising paragraph (i)(1)(x), to read as follows:


Sec.  122.21  Application for a permit (applicable to State programs, 
see Sec.  123.25).

    (a) * * *
    (1) * * * The requirements for concentrated animal feeding 
operations to seek coverage under an NPDES permit are described in 
Sec.  122.23(d).
* * * * *
    (i) * * *
    (1) * * *
    (x) A nutrient management plan that at a minimum satisfies the 
requirements specified in Sec.  122.42(e)(1). In addition, the nutrient 
management plan for all CAFOs subject to 40 CFR part 412, subpart C or 
subpart D, must satisfy the applicable requirements of 40 CFR 412.4(c).
* * * * *
    3. Section 122.23 is amended by revising paragraphs (a), (d)(1), 
(d)(2), (f), and (g) and by removing paragraph (h) to read as follows:


Sec.  122.23  Concentrated animal feeding operations (applicable to 
State NPDES programs, see Sec.  123.25).

    (a) Permit requirement for CAFOs. Concentrated animal feeding 
operations, as defined in paragraph (b) of this section, are point 
sources. Once an operation is defined as a CAFO, the NPDES requirements 
for CAFOs that discharge or propose to discharge pollutants apply with 
respect to all animals in confinement at the operation and all manure, 
litter and process wastewater generated by those animals or the 
production of those animals, regardless of the type of animal.
* * * * *
    (d) * * *
    (1) All owners or operators of a CAFO that discharges or proposes 
to discharge pollutants must apply for a permit. All owners or 
operators of a CAFO that discharges or proposes to discharge pollutants 
must seek coverage under an NPDES permit. Specifically, the CAFO owner 
or operator must either apply for an individual NPDES permit or submit 
a notice of intent for coverage under an NPDES general permit. If the 
Director has not made a general permit available to the CAFO, the CAFO 
owner or operator must submit an application for an individual permit 
to the Director.
    (2) Information to submit with permit application. A permit 
application for an individual permit must include the information 
specified in Sec.  122.21. A notice of intent for a general permit must 
include the information specified in Sec. Sec.  122.21 and 122.28.
* * * * *
    (f) When must the owner or operator of a CAFO seek coverage under 
an NPDES permit? (1) Operations defined or designated as CAFOs as of 
[the effective date of the final rule]. The owner or operator of a CAFO 
that discharges or proposes to discharge pollutants must seek to obtain 
coverage under an NPDES permit by a date specified by the Director, but 
no later than July 31, 2007.
    (2) Operations that become defined as CAFOs after [the effective 
date of the final rule], but which are not new sources. For newly 
constructed AFOs that discharge or propose to discharge pollutants and 
AFOs that make changes to their operations that result in becoming 
defined as CAFOs for the first time, after [the effective date of the 
final rule], but are not new sources and that discharge or propose to 
discharge pollutants, the owner or operator must seek to obtain 
coverage under an NPDES permit, as follows:

[[Page 37785]]

    (i) For newly constructed operations not subject to effluent 
limitations guidelines, 180 days prior to the time CAFO commences 
operation; or
    (ii) For other operations (e.g., resulting from an increase in the 
number of animals), as soon as possible, but no later than 90 days 
after becoming defined as a CAFO.
    (3) New sources. The owner or operator of a new source that 
discharges or proposes to discharge pollutants must seek to obtain 
coverage under a permit at least 180 days prior to the time that the 
CAFO commences operation.
    (4) Operations that are designated as CAFOs after [the effective 
date of the final rule]. For operations designated as a CAFO in 
accordance with paragraph (c) of this section, the owner or operator 
must seek to obtain coverage under a permit no later than 90 days after 
receiving notice of the designation.
    (g) Duty to Maintain Permit Coverage. No later than 180 days before 
the expiration of the permit, or as provided by the Director, the 
permittee must submit an application to renew its permit, in accordance 
with Sec.  122.21(d), unless permit coverage has been terminated 
consistent with Sec.  122.64(b).
    4. Section 122.28 is amended by adding a sentence before the last 
sentence of paragraph (b)(2)(iv), and by adding paragraph (d), to read 
as follows:


Sec.  122.28  General permits (applicable to State NPDES programs, see 
Sec.  123.25).

* * * * *
    (b) * * *
    (2) * * *
    (iv) * * * Except that CAFO owner or operators seeking coverage 
under a general permit must undertake the process described in 
paragraph (d) of this section. * * *
* * * * *
    (d) Concentrated animal feeding operations. (1) The Director must 
review notices of intent submitted by CAFO owners or operators to 
ensure that the information meets the requirements of Sec. Sec.  
122.21(i)(1) and 122.42(e)(1) and to identify the terms of the nutrient 
management plan to be incorporated into the permit. When additional 
information is necessary to complete the notice of intent or clarify, 
modify, or supplement previously submitted material, the Director may 
request such information from the owner or operator. If the Director 
tentatively decides that the notice of intent meets the requirements of 
Sec. Sec.  122.21(i)(1) and 122.42(e)(1), the Director must notify the 
public of its receipt and make it available for public review and 
comment along with the identified terms of the nutrient management plan 
to be incorporated into the permit. The Director must specify by 
regulation or in the permit an appropriate period of time for the 
public to comment and request a hearing on the information submitted 
and the terms of the facility's nutrient management plan to be 
incorporated into the permit. The hearing and public comment process 
must follow the procedures for draft permits set forth in 40 CFR 124.11 
through 124.13. The Director must respond to all significant comments 
received during the comment period, and, as appropriate, require the 
CAFO owner or operator to revise the terms of the nutrient management 
plan to be incorporated into the permit. When the Director grants 
permit coverage to the CAFO owner or operator, the draft terms of the 
nutrient management plan, as revised by the Director, shall become 
incorporated as terms and conditions of the permit. The Director must 
notify the owner or operator of the terms and conditions that are 
incorporated into the permit.
    (2) For EPA-issued permits only. Upon incorporation of the terms of 
the nutrient management plan into the general permit, any person who 
submitted comments or participated in the public hearing and who 
objects to the incorporation of the terms of the nutrient management 
plan into the permit may appeal the permit decision in accordance with 
the procedures of 40 CFR 124.19.
    (3) Nothing in this paragraph (d) shall affect the authority of the 
Director to require an individual permit under paragraph (b)(3) of this 
section.
    5. Section 122.42 is amended by revising paragraphs (e) 
introductory text and (e)(1) introductory text, and by adding paragraph 
(e)(5), to read as follows:


Sec.  122.42  Additional conditions applicable to specified categories 
of NPDES permits (applicable to State NPDES programs, see Sec.  
123.25).

* * * * *
    (e) Concentrated animal feeding operations (CAFOs). Any permit 
issued to a CAFO must include the requirements in paragraphs (e)(1) 
through (e)(4) of this section:
    (1) Requirements of a nutrient management plan. Any permit issued 
to a CAFO must include and require the CAFO owner or operator to 
implement the terms of the most current version of a facility-specific 
nutrient management plan submitted in accordance with 40 CFR 122.21(i) 
that meets the requirements of this paragraph and the applicable 
effluent limitations and standards of 40 CFR 412.4(c). At a minimum, a 
nutrient management plan must include best management practices and 
procedures necessary to implement applicable effluent limitations and 
standards, including, for CAFOs subject to 40 CFR part 412, subpart C 
or subpart D, the limitations and standards specified in 40 CFR 
412.4(c). The nutrient management plan must, to the extent applicable:
* * * * *
    (5) Changes to a CAFO Nutrient Management Plan. (i) When a CAFO 
owner or operator changes a CAFO's nutrient management plan, the CAFO 
owner or operator must provide the permitting authority with the most 
current version of the CAFO's nutrient management plan and identify 
changes from the previous version. The Director must review the 
submitted information to ensure that it meets the requirements of 40 
CFR 122.42(e)(1) and 40 CFR 412.4(c) of this chapter and decide whether 
to allow any changes to the terms of the nutrient management plan that 
have been incorporated into a permit issued to the CAFO. If the 
Director determines that the changes to the nutrient management plan 
are not substantial, the Director must include the revised NMP in the 
permit record and make any necessary revisions to the terms of the 
nutrient management plan incorporated into the permit. If the Director 
determines that the changes to the nutrient management plan are 
substantial, the Director must modify the permit to incorporate such 
changes in accordance with the procedures identified in paragraph 
(e)(5)(ii) of this section. The Director must notify the public of any 
changes to the terms of the nutrient management plan that are 
incorporated into the permit.
    (ii) If the Director determines that the changes to the nutrient 
management plan are substantial, the Director must notify the public of 
the substantial changes; identify those changes to the terms of the 
nutrient management plan proposed to be incorporated into the permit; 
and make the proposed changes and the information submitted by the CAFO 
owner or operator available for public review and comment. The Director 
must specify by regulation or in the permit an appropriate period of 
time for the public to comment and request a hearing on the information 
submitted and the revised terms of the facility's nutrient management 
plan to be incorporated into the permit. The hearing and public comment 
process must follow the procedures for draft permits set forth in 40 
CFR 124.11 through 124.13. The Director must respond to all significant 
comments received during the comment period,

[[Page 37786]]

and, as appropriate, require the CAFO owner or operator to further 
revise the terms of the nutrient management plan to be incorporated 
into the permit. Once the Director incorporates the revised terms of 
the nutrient management plan into the permit, the Director must notify 
the owner or operator of the revised terms and conditions of the 
permit.
    (iii) For EPA-issued permits only. Upon incorporation of the 
revised terms of the nutrient management plan into the permit, any 
person who submitted comments or participated in the public hearing and 
who objects to the incorporation of the revised terms of the nutrient 
management plan into the permit may appeal the permit decision in 
accordance with the procedures of 40 CFR 124.19.
    (iv) Substantial changes to a nutrient management plan include, but 
are not limited to: changes that could result in an increase in runoff 
of manure, litter, or process wastewater from the facility that would 
otherwise not occur under the terms of the nutrient management plan 
that were incorporated into the permit; an increase in the rate of 
nutrients from manure, litter, or process wastewater applied to the 
land application area that is significant in relation to the technical 
standards established by the Director; a significant change in the 
nutrient balance at the CAFO caused by an increase in the ratio of 
animals or manure, litter, or process wastewater to the available land 
application acreage or storage capacity; changes in the CAFO's methods 
for handling, storage, treatment, or land application of manure, 
litter, or process wastewater; a significant increase in the number of 
animals; or a significant reduction of manure, litter, or process 
wastewater transferred to other persons when there is no equivalent 
decrease in the amount of manure, litter, or process wastewater 
produced; and the addition of land application areas not previously 
included in the nutrient management plan.
    (v) Upon request by a CAFO owner or operator to implement 
substantial changes to the nutrient management plan, the Director may 
allow an owner or operator to implement such changes before completion 
of the public notification procedures identified in paragraph 
(e)(5)(ii) of this section for no more than 180 days if the Director 
determines that the changes to a nutrient management plan will not 
result in increased runoff of manure, litter, or process wastewater 
from the CAFO. The Director must append such changes to the CAFO's 
permit and make them publicly available so that other persons have 
access to such information. Appropriate notice to the public of such 
expedited decisions must take place within 14 days of the effective 
date.
    6. Section 122.62 is amended by adding paragraph (a)(17) to read as 
follows:


Sec.  122.62  Modification or revocation and reissuance of permits 
(applicable to State programs, see Sec.  122.25).

* * * * *
    (a) * * *
    (17) Nutrient Management Plans. The incorporation of the terms of a 
CAFO nutrient management plan into the terms and conditions of a 
general permit when a CAFO obtains coverage under a general permit in 
accordance with Sec.  122.28(d)(1) is not a cause for modification 
pursuant to the requirements of this section.
* * * * *
    7. Section 122.63 is amended by adding paragraph (h) to read as 
follows:


Sec.  122.63  Minor modification of permits.

* * * * *
    (h) Incorporate changes to the terms of a CAFO's nutrient 
management plan that have been revised in accordance with the 
requirements of Sec.  122.42(e)(5).

PART 412--CONCENTRATED ANIMAL FEEDING OPERATIONS (CAFO) POINT 
SOURCE CATEGORY

    8. The authority citation for part 412 continues to read as 
follows:

    Authority: 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, 1361.

    9. Section 412.2 is amended by revising paragraph (i) to read as 
follows:


Sec.  412.2  General definitions.

* * * * *
    (i) Ten (10)-year, 24-hour rainfall event and 25-year, 24-hour 
rainfall event mean precipitation events with a probable recurrence 
interval of once in ten years, or twenty five years, respectively, as 
defined by the National Weather Service in Technical Paper No. 40, 
``Rainfall Frequency Atlas of the United States,'' May, 1961, or 
equivalent regional or State rainfall probability information developed 
from this source.
* * * * *
    10. Section 412.37 is amended by revising paragraph (a)(2) to read 
as follows:


Sec.  412.37  Additional measures.

    (a) * * *
    (2) Depth marker. All open surface liquid impoundments must have a 
depth marker which clearly indicates the minimum capacity necessary to 
contain the runoff and direct precipitation of the 25-year, 24-hour 
rainfall event.
* * * * *
    11. Section 412.46 is amended by revising paragraphs (a)(1), (a)(2) 
and (d) to read as follows:


Sec.  412.46  New source performance standards (NSPS).

* * * * *
    (a) * * *
    (1) Any CAFO subject to this subpart may request that the Director 
establish NPDES permit best management practice effluent limitations 
designed to ensure no discharge of manure, litter or process wastewater 
based upon a site-specific evaluation of the CAFO's open surface manure 
storage structure. In the case of any CAFO using an open surface manure 
storage structure for which the Director establishes such effluent 
limitations, ``no discharge of manure, litter, or process wastewater 
pollutants,'' as used in this section, means that the storage structure 
is designed, operated and maintained in accordance with best management 
practices established by the Director on a site-specific basis after a 
technical evaluation of the storage structure. The technical evaluation 
must include the following elements:
    (i) Information to be used in the design of an open manure storage 
structure including but not limited to minimum storage periods for 
rainy seasons, additional minimum capacity for chronic rainfalls, 
applicable technical standards that prohibit or otherwise limit land 
application to frozen, saturated, or snow-covered ground, planned 
emptying and dewatering schedules consistent with the CAFO's Nutrient 
Management Plan, adequate storage capacity for manure intended to be 
transferred to another recipient at a later time, and any other factors 
that would impact the sizing of the open manure storage structure.
    (ii) The design of the open manure storage structure as determined 
by the most recent version of the National Resource Conservation 
Service's Animal Waste Management (AWM) software. CAFOs may use 
equivalent design software or procedures as approved by the Director.
    (iii) All inputs used in the open manure storage structure design 
including actual climate data for the previous 30 years consisting of 
historical average monthly precipitation and evaporation values, the 
number and types of animals, anticipated animal sizes or weights, any 
added water and bedding, any other process wastewater, and the size and 
condition of outside areas exposed to rainfall and

[[Page 37787]]

contributing runoff to the open manure storage structure.
    (iv) The planned minimum period of storage in months. Alternatively 
the CAFO may indicate months when the storage pond will be emptied 
consistent with the CAFO's Nutrient Management Plan.
    (v) Site-specific predicted design specifications including 
dimensions of the storage facility, daily manure and wastewater 
additions, the size and characteristics of the land application areas, 
and the total calculated storage period in months.
    (vi) An evaluation of the adequacy of the designed manure storage 
structure using the most recent version of the Soil Plant Air Water 
(SPAW) Hydrology Tool. The evaluation must include all inputs to SPAW 
including but not limited to daily precipitation, temperature, and 
evaporation data for the previous 100 years, user-specified soil 
profiles representative of the CAFO's land application areas, planned 
crop rotations consistent with the CAFO's Nutrient Management Plan, and 
the final modeled result of no overflows from the designed open manure 
storage structure. CAFOs may use equivalent evaluation procedures as 
approved by the Director.
    (vii) Waste management and storage facilities designed, 
constructed, operated, and maintained consistent with the site-specific 
analysis conducted in paragraphs (a)(1)(i) through (a)(1)(vi) of this 
section and operated in accordance with the additional measures and 
records required by Sec.  412.47(a) and (b), will fulfill the 
requirements of this section.
    (2) The production area must be operated in accordance with the 
additional measures required by Sec.  412.47(a) and (b).
* * * * *
    (d) Any source subject to this subpart that commenced discharging 
after April 14, 1993, and prior to [X days from effective date 
of the final rule], which was a new source subject to the standards 
specified in Sec.  412.15, revised as of [X days from 
effective date of the final rule], must continue to achieve those 
standards for the applicable time period specified in 40 CFR 
122.29(d)(1). Thereafter, the source must achieve the standards 
specified in Sec.  412.43(a) and (b).
* * * * *
[FR Doc. 06-5773 Filed 6-29-06; 8:45 am]
BILLING CODE 6560-50-P