<PRE>
[Federal Register: January 12, 2001 (Volume 66, Number 9)]
[Proposed Rules]               
[<strong>Page</strong> <strong>3109</strong>-<strong>3145</strong>]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja01-40]                         
 
[[pp. <strong>3109</strong>-<strong>3145</strong>]] National Pollutant Discharge Elimination System Permit Regulation 
and Effluent Limitations Guidelines and Standards for Concentrated 
Animal Feeding Operations
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BILLING CODE 6560-50-C
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3. Energy Impacts
    The proposed regulatory options may result in increased energy use 
for operations that currently do not capture their runoff or other 
process wastewater. These operations would need to capture the feedlot 
runoff, divert it to a waste management system, and use this wastewater 
for irrigation or dispose of it by some alternative means.
    For the land application areas, the proposed regulatory options 
assume all CAFOs will apply their manure and wastewater using 
agricultural application rates. In many instances this means that 
facilities would have to limit the amount of manure applied to the land 
which may result in decreased energy usage at the CAFO. However, total 
energy requirements for land application increase under all options due 
to the increased transportation of waste off-site. Additional energy is 
also required to operate composting equipment, and at swine CAFOs to 
operate recirculating pumps to reuse lagoon effluent as flush water.
    Option 6 includes the use of anaerobic digesters with energy 
recovery to manage animal waste for large dairy and swine operations. 
Digesters require a continuous input of energy to operate the holding 
tank mixer and an engine to convert captured methane into energy. The 
energy required to continuously operate these devices, as well as the 
amount of energy generated by the system, have been determined from the 
FarmWare model, which was also used for estimating compliance costs. 
Under Option 6, EPA anticipates a net decrease in electricity use due 
to the energy savings from methane recovery.
B. Quantitative and Monetized Benefits
    In addition to costs and impacts, EPA also estimated the 
environmental and human health benefits of today's proposed 
requirements. Benefits identified as a result of this proposed rule are 
associated with improvements in water quality.
    EPA is not currently able to evaluate all human health and 
ecosystem benefits associated with water quality improvements 
quantitatively. EPA is even more limited in its ability to assign 
monetary values to these benefits. The economic benefit values 
described below and in the ``Environmental and Economic Benefits of the 
NPDES/ELG CAFO Rules'' (Benefit Report) should be considered a subset 
of the total benefits of this rule and should be evaluated along with 
descriptive assessments of benefits and the acknowledgment that even 
these may fall short of the real-world benefits that may result from 
this rule. For example, the economic valuation considers the effects of 
nitrogen, phosphorous, pathogens and sediment but does not evaluate the 
economic impacts of metals or hormones which can produce significant 
adverse environmental impacts.
    Within these confines, EPA analyzed the effects of current water 
discharges and assessed the benefits of reductions in these discharges 
resulting from this proposed regulation. The CAFO industry waste 
effluents contain pollutants that, when discharged into freshwater and 
estuarine ecosystems, may alter aquatic habitats, affect aquatic life, 
and adversely affect human health.
    For this proposed rule, EPA conducted four benefit studies to 
estimate the impacts of controlling CAFO manure. The first study is a 
national water quality model (National Water Pollution Control 
Assessment Model) that estimates runoff from land application areas to 
rivers, streams, lakes and impoundments in the U.S. This study 
estimates the value society places in improvements in surface water 
quality associated with the different regulatory scenarios. Another 
study examines the expected improvements in shellfish harvesting as a 
result of CAFO regulation. A third study looks at incidences of fish 
kills that are attributed to animal feeding operations and estimates 
the cost of replacing the lost fish stocks. A fourth study estimates 
the benefits associated with reduced groundwater contamination. Each of 
these studies is described below.
1. Benefit Scenarios
    There are eight benefit scenarios under consideration, four 
scenarios (1, 2/3, 4a and 4b) using a nitrogen application rate and the 
same 4 scenarios using a phosphorus application rate. Scenarios 1 \2/3\ 
have a three-tiered structure similar to the current rule. Tier 1 is 
1,000 AU and greater; Tier 2 is 300--999 AU; Tier 3 is less than 300 
AU. Scenarios 4a and 4b have a two-tiered structure. Under Scenario 4a, 
Tier 1 is 500 AU and greater; Tier 2 is less than 500 AU. Under 
Scenario 4b, Tier 1 is 300 AU and greater; Tier 2 is less than 300 AU. 
EPA is co-proposing a two-tier and a three-tier structure (phosphorus--
Scenario \2/3\ and Phosphorus--Scenario 4a). Table 11-9 summarizes the 
regulatory scenarios considered in the benefits analysis.
  Table 11-9.--Regulatory Scenarios Considered in the Benefits Analysis
------------------------------------------------------------------------
                                                            Effluent
      Regulatory scenario           NPDES revisions        guidelines
                                                            revisions
------------------------------------------------------------------------
Baseline......................  CAFOs include any AFO   Manure
                                 with over 1,000 AUs,    application not
                                 as well as AFOs with    regulated.
                                 300 or more AUs that
                                 meet certain
                                 requirements.
Nitrogen--Scenario 1..........  Baseline scenario plus  Nitrogen-based
                                 dry poultry and         manure
                                 immature swine and      application.
                                 heifer operations.
Nitrogen--Scenario 2/3........  New NPDES conditions    Nitrogen-based
                                 for identifying CAFOs   manure
                                 among AFOs with 300-    application.
                                 1000 AUs, plus dry
                                 poultry and immature
                                 swine and heifer
                                 operations.
Nitrogen--Scenario 4a.........  CAFOs include all AFOs  Nitrogen-based
                                 with 500 or more AUs,   manure
                                 plus dry poultry,       application.
                                 immature swine and
                                 heifer manure
                                 operations.
Nitrogen--Scenario 4b.........  CAFOs include all AFOs  Nitrogen-based
                                 with 300 or more AUs,   manure
                                 plus dry poultry,       application.
                                 immature swine and
                                 heifer operations.
Phosphorus Scenario 1.........  Baseline scenario plus  Phosphorus-based
                                 dry poultry and         manure
                                 immature swine and      application.
                                 heifer operations.
Phosphorus Scenario 2/3*......  New NPDES conditions    Phosphorus-based
                                 for identifying CAFOs   manure
                                 among AFOs with 300-    application.
                                 1000 AUs, plus dry
                                 poultry and immature
                                 swine and heifer
                                 operations.
Phosphorus Scenario 4a*.......  CAFOs include all AFOs  Phosphorus-based
                                 with 500 or more AUs,   manure
                                 plus dry poultry,       application.
                                 immature swine and
                                 heifer operations.
[[<strong>Page</strong> 3116]]
Phosphorus Scenario 4b........  CAFOs include all AFOs  Phosphorus-based
                                 with 300 or more AUs,   manure
                                 plus dry poultry,       application.
                                 immature swine and
                                 heifer operations.
------------------------------------------------------------------------
* Proposed scenarios.
    EPA has developed a model facility analysis to assess changes in 
pollutant loadings under baseline conditions and proposed regulatory 
scenarios. First, the analysis disaggregates the universe of AFOs 
according to a suite of characteristics directly affecting manure 
generation, manure management, and pollutant loadings. AFOs are then 
grouped into five geographic regions. Within each geographic region, 
EPA defines model facilities by production sector, subsector, and size 
(number of animals).
    EPA then calculates manure production and the associated production 
of pollutants for each model facility. EPA multiplies the number of 
animal units per model facility by the manure production per animal 
unit to determine total manure production. EPA then calculates total 
generation of nutrients based on the typical pollutant concentrations 
per unit of recoverable manure for each animal type.
    The core modeling analysis focuses on land application practices 
for each model facility and the capacity for soil and crop removal of 
nutrients applied to the land.\1\ EPA divides the total nitrogen and 
phosphorus generated in manure by the average total acreage available 
for land application for an operation in the given region, size class, 
and production sector. The ratio of nutrients applied to crop nutrient 
requirements provides a measure of the excess nutrients applied in the 
manure. This in turn forms the foundation for loadings analyses of 
regulatory scenarios that call for adherence to agronomic rates of 
nutrient application.
---------------------------------------------------------------------------
    \1\ In addition to modeling loadings based on manure 
application, EPA develops two complementary analyses to examine 
loadings from storage structures and feedlots.
---------------------------------------------------------------------------
    EPA models ``edge-of-field'' loadings (i.e., pollutant loadings at 
the boundary of the model facility) using the Groundwater Loading 
Effects of Agricultural Management Systems (GLEAMS) model. This field-
scale model simulates hydrologic transport, erosion, and biochemical 
processes such as chemical transformation and plant uptake. The model 
uses information on soil characteristics and climate, along with 
nutrient production data, to model losses of nutrients in surface 
runoff, sediment, and groundwater leachate. Loadings are modeled for 
the pre- and post-regulatory scenarios to estimate changes in loadings 
attributable to the proposed standards.
    Finally, EPA extrapolates from the model facilities to develop 
national estimates of baseline and post-regulatory pollutant loadings 
from AFOs. Using the USDA Census of Agriculture, EPA determines the 
number of operations that raise animals under confinement. Then, EPA 
determines the number of CAFOs based on operations that are defined as 
CAFOs and smaller operations that are designated as CAFOs based on 
site-specific conditions, as established by the permitting authority. 
Finally, AFOs and CAFOs by region are placed into counties (and 
eventually watersheds) using published county level Census data. 
Therefore, the end product of the GLEAMS modeling is a spatial 
distribution of aggregated edge-of-field loadings that can be used in 
the water quality modeling and benefits monetization process described 
below.
    National Surface Water Pollution Study. The National Water 
Pollution Control Assessment Model (NWPCAM) was employed to estimate 
national economic benefits to surface water quality resulting from 
implementation of various scenarios for regulating CAFOs. NWPCAM is a 
national-scale water quality model for simulating the water quality and 
economic benefits that can result from various water pollution control 
policies. NWPCAM is designed to characterize water quality for the 
Nation's network of rivers and streams, and, to a more limited extent, 
its lakes. Using GLEAMS output data, NWPCAM is able to translate 
spatially varying water quality changes resulting from different 
pollution control policies into terms that reflect the value 
individuals place on water quality improvements. In this way, NWPCAM is 
capable of deriving economic benefit estimates for scenarios for 
regulating CAFOs.
    NWPCAM estimates pollutant loadings to the stream (nitrogen, 
phosphorous, metals, pathogens and sediment) for each regulatory 
scenario. These loadings by scenario (NWPCAM output) are used as input 
to the other studies. Thus, all stream loading estimates are derived 
from NWPCAM.
1. NWPCAM Loading reductions
    Table 11-10 shows the estimated pollutant reduction for nitrogen, 
phosphorus, fecal coliform, fecal streptococci, and sediment for each 
of the five NPDES regulatory scenarios based on either nitrogen or 
phosphorus manure land application. Nitrogen reductions range from 14 
million to 33 million kgs per year; phosphorus ranges from 35 million 
to 59 million kgs per year; fecal coliform from 26 billion to 38 
billion colonies per year; fecal streptococci from 37 to 65 billion 
colonies per year; and sediment from 0 kgs to 38 million kgs per year.
    The proposed Phosphorus--Scenario 2/3 shows a reduction of 30 M kg 
(66M lbs) of nitrogen, 54M kg (119M lbs) of phosphorus, 34 billion 
colonies of fecal coliform, 60 billion colonies of fecal strep, and 35B 
kg (77B lbs) of sediment. Phosphorus--Scenario 4a shows a reduction of 
29 million kg (64M lbs)of nitrogen, 52 million kg (115 M lbs) of 
phosphorus, 32 billion and 58 billion colonies of fecal coliform and 
fecal streptococci, respectively and 34 billion kg (75B lbs) of 
sediment to our nation's waters each year.
[[<strong>Page</strong> 3117]]
   Table 11-10.--Pollutant Reduction Based on Nitrogen or Phosphorus Manure Application Rates by NPDES Scenario
----------------------------------------------------------------------------------------------------------------
                                                                                 Fecal       Fecal      Sediment
                                                        Nitrogen  Phosphorus   Coliform      Strep     (billion
                                                       (million    (million    (billion    (billion    (billion
                                                          kg)         kg)      colonies)   colonies)      kg)
----------------------------------------------------------------------------------------------------------------
 Nitrogen--Scenario 1...............................         14          35          26          37           0
 Nitrogen--Scenario 2/3.............................         16          45          31          45           0
 Nitrogen--Scenario 4a..............................         15          42          29          44           0
 Nitrogen--Scenario 4b..............................         18          48          34          47           0
 Phosphorus--Scenario 1.............................         25          42          29          50          26
 Phosphorus--Scenario 2/3*..........................         30          54          34          60          35
 Phosphorus-- Scenario 4a*..........................         29          52          32          58          34
 Phosphorus--Scenario 4b............................         33          59          38          65         38
----------------------------------------------------------------------------------------------------------------
*proposed scenarios.
    In addition, EPA estimated loadings reductions to surface waters 
for various metals found in manure: zinc, copper, cadmium, nickel and 
lead. The range of loadings reductions is shown in Table 11-11.
     Table 11-11.--Range of Metal Loading Reductions Across Scenarios
------------------------------------------------------------------------
              Metal                    low (kg)            high (kg)
------------------------------------------------------------------------
 Zinc...........................  10 M..............  19 M
 Copper.........................   546 K............  1,051 K
 Cadmium........................  23 K..............  39 K
 Nickel.........................  219 K.............  418 K
 Lead...........................  395 K.............  777 K
------------------------------------------------------------------------
    Table 11-12 is a list of metals and load reductions per year for 
the proposed scenarios.
   Table 11-12.--Metal Loading Reductions for Scenario 2/3-Scenario 4a
------------------------------------------------------------------------
                  Metal                             Kilograms*
------------------------------------------------------------------------
 Zinc..................................  18 million/17 million.
 Copper................................  1 million/895 thousand.
 Cadmium...............................  37 thousand/35 thousand.
 Nickel................................  400 thousand/345 thousand.
 Lead..................................  740/690 thousand.
------------------------------------------------------------------------
*rounded to the nearest 10.
    The methods used to develop these loading reduction estimates are 
outlined in detail in the Environmental and Economic Benefits of the 
NPDES/ELG CAFO Rules.
2. Monetized Benefits
    a. National Water Pollution Control Assessment Model (NWPCAM). 
Economic benefits associated with the various AFO/CAFO scenarios are 
based on changes in water quality use-support (i.e., boatable, 
fishable, swimmable) and the population benefitting from the changes. 
Benefits are calculated state-by-state at the State (local) scale as 
well as at the national level. For each State, benefits at the local-
scale represent the value that the State population is willing to pay 
for improvements to waters within the State or adjoining the State. For 
each State, benefits at the national-scale represent the value that the 
State population is willing to pay for improvements to waters in all 
other states in the continental United States.
    Based on the NWPCAM analysis, the total national willingness-to-pay 
(WTP) benefits at the local-scale for all water quality use-supports 
ranged from approximately $4.3 million (1999 dollars) for the least 
stringent scenario to $122.1 million for the most stringent scenario. 
The total national WTP benefits at the national-scale for all water 
quality use-supports ranged from approximately $0.4 million (1999 
dollars) for the least stringent scenario to $22.7 million for the most 
stringent scenario. Total WTP benefits (i.e., sum of local-scale and 
national-scale) for all water quality use-supports ranged from 
approximately $4.9 million (1999 dollars) for the least stringent 
scenario to $145 million for the most stringent scenario.
    Table 11-13 summarizes the resulting estimates of economic benefits 
for each of the six regulatory scenarios analyzed. EPA estimates that 
the annual benefits of Phosphorus--Scenario 2/3 is approximately $127 
million per year; for Phosphorus--Scenario 4a is $108 million per year.
   Table 11-13.--Economic Benefit of Estimated Improvements in Surface
                              Water Quality
                      [In millions of 1999 dollars]
------------------------------------------------------------------------
                                                                Annual
                    Regulatory scenario                        benefits
------------------------------------------------------------------------
Nitrogen--Scenario 1.......................................         $4.9
Nitrogen--Scenario 2/3.....................................          6.3
Nitrogen--Scenario 4a......................................          5.5
[[<strong>Page</strong> 3118]]
Nitrogen--Scenario 4b......................................          7.2
Phosphorus--Scenario 1.....................................         87.6
Phosphorus--Scenario 2/3*..................................        127.1
Phosphorus--Scenario 4a*...................................        108.5
Phosphorus--Scenario 4b....................................       145.0
------------------------------------------------------------------------
*Proposed scenarios.
    b. Shellfish Beds. Pathogen contamination of coastal waters is a 
leading cause of shellfish bed harvest restrictions and closures. 
Sources of pathogens include runoff from agricultural land and 
activities. Using The 1995 National Shellfish Register of Classified 
Growing Waters (shellfish register) published by the National Oceanic 
and Atmospheric Administration (NOAA), EPA estimated the possible 
improvements to shellfish bed harvesting due to expected pathogen 
reductions of each regulatory scenario.
    First, EPA characterized the baseline annual shellfish bed 
loadings. Then, EPA estimated the area of shellfish-growing waters for 
which current loadings are harvested. For the third step, EPA 
calculated the average annual per-acre yield of shellfish form 
harvested waters. Next, EPA estimated the area of shellfish-growing 
waters that are currently unharvested as a result of pollution from 
AFOs. From this, EPA calculated the potential harvest of shellfish from 
waters that are currently unharvested as a result of pollution from 
AFOs. Estimates for all scenarios range from $1.8 million to $2.9 
million. Phosphorus--Scenario3 is $2.7 million and Phosphorus--Scenario 
4a is $2.4 million.
    c. Fishkills. Episodic fish kill events resulting from spills, 
manure runoff, and other discharges of manure from animal waste feeding 
operations continue to remain a serious problem in the United States. 
The impacts from these incidents range from immediate and dramatic kill 
events to less dramatic but more widespread events. Manure dumped into 
and along the West Branch of the Pecatonica River in Wisconsin resulted 
in a complete kill of smallmouth bass, catfish, forage fish, and all 
but the hardiest insects in a 13 mile stretch of the river. Less 
immediate catastrophic impacts on water quality from manure runoff, but 
equally important, are increased algae growth or algae blooms which 
remove oxygen from the water and may result in the death of fish. 
Manure runoff into a shallow lake in Arkansas resulted in a heavy algae 
bloom which depleted the lake of oxygen, killing many fish.
    Fish health and fish kills are an indication of water quality. If 
fish cannot survive or are sick in their natural habitat then the 
public may view the water as unsuitable for recreational activities and 
fish unfit for human consumption. Parts of the Eastern Shore of the 
United States have been plagued with problems related to pfiesteria, a 
dinoflagellate algae that exist in rivers at all times, but can 
transform itself into a toxin that eats fish. Fish attacked by 
pfiesteria have lesions or large, gaping holes on them as their skin 
tissue is broken down; the lesions often result in death. The 
transformation of pfiesteria to the toxic form is believed to be the 
result of high levels of nutrients. Fish kills related to pfiesteria in 
the Neuse River in North Carolina have been blamed on the booming hog 
industry and the associated waste spills and runoff from the hog farms.
    There is preliminary evidence that suggests that there are human 
health problems associated with exposure to pfiesteria. As a result, 
people most likely would limit or avoid recreational activities in 
waters with pfiesteria-related fish kills. The town of New Bern, a 
popular summer vacation spot along the Neuse River in North Carolina, 
was concerned about a decline in tourism after several major fish kills 
in the summer of 1995. Not only were fish killed, people became sick 
after swimming or fishing in the waters. People swimming in the waters 
reported welts and sores on their body. Summer camps canceled boating 
classes and children were urged to stay out of the water. Fishing boats 
were concerned about taking people fishing on the river. People were 
warned not to eat fish that were diseased or sick. At one point, after 
seeing miles and miles of dead fish, a top environmental official 
issued a warning urging people not to swim, fish, or boat in the fish-
kill zone. Many blame the heavy rainfall which pumped pollutants from 
overflowing sewage plants and hog lagoons into the river, creating 
algae blooms, low oxygen and pfeisteria outbreaks as the cause of the 
fish kills.
    Reports on fish kill events in the United States were collected by 
the Natural Resources Defense Council and the Izaak Walton League. 
Nineteen states reported information on historical and current fish 
kills. Using these data, EPA estimated the benefits related to reduced 
fish being killed for each regulatory scenario. At a seven percent 
discount rate, benefits range from $2 million to $42 million. Benefots 
for Phosphorus--Scenario 3 range from $2.4 million to $30.6 million; 
for Phosphorus--Scenario 4a, from $2.8 million to $34.5 million.
    d. Groundwater Contamination. CAFOs can contaminate groundwater and 
thereby cause health risks and welfare losses to people relying on 
groundwater sources for their potable supplies or other uses. Of 
particular concern are nitrogen and other animal waste-related 
contaminants (originating from manure and liquid wastes) that leach 
through the soils and the unsaturated zone and ultimately reach 
groundwaters. Nitrogen loadings convert to elevated nitrate 
concentrations at household and community system wells, and elevated 
nitrate levels in turn pose a risk to human health in households with 
private wells (nitrate levels in community wells are regulated to 
protect human health). The proposed regulation will generate benefits 
by reducing nitrate levels in household wells, and there is clear 
empirical evidence that households have a positive willingness to pay 
to reduce nitrate concentrations in their water supplies.
    The federal health-based National Primary Drinking Water Standard 
for nitrate is 10 mg/L, and this Maximum Contaminant Level (MCL) 
applies to all Community Water Supply systems. Households relying on 
private wells are not subject to the federal MCL for nitrate but levels 
above 10 mg/L are considered unsafe for sensitive subpopulations (e.g., 
infants). Several economic studies indicate a considerable WTP by 
households to reduce the likelihood of nitrate levels exceeding 10 mg/L 
(e.g., $448 per year per household (Poe and Bishop, 1991)). There also 
is evidence of a positive household WTP to reduce nitrate levels even 
when baseline concentrations are considerably below the MCL 
(approximately $2 per mg/L of reduced nitrate concentration 
(Crutchfield et al., 1997, De Zoysa, 1995)).
    Based on extensive U.S. Geologic Survey (USGS) data on nitrate 
levels in wells throughout the country, an empirical model was 
developed to predict how each regulatory option would affect the 
distribution of nitrate concentrations in household wells. Table 11-14 
indicates the number of household wells that are estimated to have 
baseline (i.e., without regulation) concentrations above 10 mg/L and 
that will have these concentration reduced to levels below the MCL for 
each option.
[[<strong>Page</strong> 3119]]
Also shown are the households with predicted nitrate levels that are 
below the MCL at baseline, but that will experience further reductions 
in nitrate levels due to the proposed regulation.
 Table 11-14.--Reduction in Households Exceeding MCL and mg/L of Nitrate
                                in Wells
------------------------------------------------------------------------
                                       Reduction, from
                                       baseline, in #    Total number of
         Regulatory Scenario             households      mg/L reduced in
                                      exceeding 10 mg/  wells at 1-10 mg/
                                              L            L baseline
------------------------------------------------------------------------
Baseline # of households affected...         1,277,137         6,195,332
Nitrogen--Scenario 1................           152,204           961,741
Nitrogen--Scenario 2/3..............           152,204         1,007,611
Nitrogen--Scenario 4a...............           161,384         1,186,423
Nitrogen--Scenario 4b...............           161,384         1,186,423
Phos.--Scenario 1...................           161,384         1,103,166
Phos--Scenario 2/3*.................           161,384         1,159,907
Phos--Scenario 4a*..................           165.974         1,374,990
Phos--Scenario 4b...................           165,974        1,374,990
------------------------------------------------------------------------
* Proposed scenarios.
    The monetized benefits of these nitrate concentration reductions is 
estimated to be $49.4 million per year for Phosphorus--Scenario 2/3, as 
shown in Table 11-15. The total benefits of this scenario consist of 
$47.8 million for the households that have nitrate levels reduced to 
below the MCL from baseline concentrations above 10 mg/L, plus an 
additional $1.5 million for those households with nitrate reductions 
relative to baseline levels below the MCL. The monetized benefits of 
these nitrate concentration reductions is estimated to be $51.0 million 
per year for Phosphorus--Scenario 4a. The total benefits of this option 
consist of $49.2 million for the households that have nitrate levels 
reduced to below the MCL from baseline concentrations above 10 mg/L, 
plus an additional $1.7 million for those households with nitrate 
reductions relative to baseline levels below the MCL. The household 
benefits of the other options are also shown in the table, and range 
from $46.4-$50.1 million per year.
           Table 11-15.-- Annualized Monetary Benefits Attributable To Reduced Nitrate Concentrations
----------------------------------------------------------------------------------------------------------------
                                                                              Benefits from      Benefits from
                                                                                households         households
                    Regulatory scenario                     Total benefits   exceeding MCL at   between 1 and 10
                                                                                 baseline       mg/L at baseline
----------------------------------------------------------------------------------------------------------------
Nitrogen--Scenario 1......................................     $46,372,457        $45,118,803         $1,219,763
Nitrogen--Scenario 2/3....................................      46,432,250         45,118,803          1,276,293
Nitrogen--Scenario 4a.....................................      49,386,622         47,840,089          1,498,104
Nitrogen--Scenario 4b.....................................      49,386,622         47,840,089          1,498,104
Phosphorus--Scenario 1....................................      49,278,094         47,840,089          1,396,043
Phosphorus--Scenario 2/3*.................................      49,352,058         47,840,089          1,465,648
Phosphorus--Scenario 4a*..................................      50,993,067         49,200,732          1,729,337
Phosphorus--Scenario 4b...................................      50,993,067         49,200,732         1,729,337
----------------------------------------------------------------------------------------------------------------
* Proposed scenarios.
    e. Total Benefit of Proposed Regulatory Scenario. Table 11-16 shows 
the annualized benefits for each of the studies conducted. Table 11-17 
shows the summary of annualized benefits for three discount rates (3, 
5, and 7 percent). The total monetized benefits for this proposed rule 
are, at a minimum, $163 million for Phosphorus--Scenario 2/3 and $146 
million for Phosphorus--Scenario 4a, discounted at seven percent. At a 
three percent discount rate, the annualized benefits for Phosphorus--
Scenario 3 are $180 million and for Phosphorus--Scenario 4a, $163 
million. These represent the lower bound estimates for this analysis. 
The upper end of the range would include estimates for drinking water 
treatment plant cost savings, surface water improvements from 
nonboatable to boatable water quality conditions, and other benefits 
that we were unable to estimate at this time. We plan to include some 
of these monetized benefits in the final rule.
                     Table 11-16.--Estimated Annualized Benefits of Revised CAFO Regulations
                                            [1999 dollars, millions]
----------------------------------------------------------------------------------------------------------------
                                                        Recreational                                  Reduced
                 Regulatory Scenario                     and non-use     Reduced      Improved     private well
                                                          benefits      fish kills  shellfishing   contamination
----------------------------------------------------------------------------------------------------------------
Nitrogen--Scenario 1.................................             4.9      0.1-0.2       0.1-1.8       33.3-49.0
Nitrogen--Scenario 2/3...............................             6.3      0.1-0.3       0.2-2.4       33.3-49.1
Nitrogen--Scenario 4a................................             5.5      0.1-0.3       0.2-2.2       35.5-52.2
Nitrogen--Scenario 4b................................             7.2      0.1-0.3       0.2-2.6       35.5-52.2
[[<strong>Page</strong> 3120]]
Phosphorus--Scebarui 1...............................            87.6      0.2-0.3       0.2-2.1       35.4-52.1
Phosphorus--Scenario 2/3*............................           127.1      0.2-0.4       0.2-2.7       35.4-52.1
Phosphorus--Scenario 4a*.............................           108.5      0.2-0.4       0.2-2.4       36.6-53.9
Phosphorus--Scenario 4b..............................           145.0      0.2-0.4       0.2-3.0      36.6-53.9
----------------------------------------------------------------------------------------------------------------
* Proposed scenarios.
                                  Table 11-17.--Summary of Annualized Benefits
                                            [1999 dollars, millions]
----------------------------------------------------------------------------------------------------------------
                                                                                  Discount rates
                                                                 -----------------------------------------------
                       Regulatory scenario                           3 percent       5 percent       7 percent
                                                                 -----------------------------------------------
                                                                    Low    High     Low    High     Low    High
----------------------------------------------------------------------------------------------------------------
Nitrogen--Scenario 1............................................    54.1    55.9    45.0    46.9    38.4    40.2
Nitrogen--Scenario 2/3..........................................    55.7    58.0    46.6    48.9    39.9    42.3
Nitrogen--Scenario 4a...........................................    58.0    60.2    48.3    50.5    41.2    43.4
Nitrogen--Scenario 4b...........................................    59.7    62.3    50.1    52.6    43.0    45.5
Phosphorus--Scenario 1..........................................   140.0   142.1   130.4   132.4   123.3   125.4
Phosphorus--Scenario 2/3*.......................................   179.7   182.3   170.0   172.7   163.0   165.6
Phosphorus--Scenario 4a*........................................   162.8   165.1   152.8   155.2   145.5   147.9
Phosphorus--Scenario 4b.........................................   199.4   202.2   189.4   192.2   182.1  185.0
----------------------------------------------------------------------------------------------------------------
* Proposed scenarios.
XII. Public Outreach
A. Introduction and Overview
    EPA has actively involved interested parties to assist it in 
developing a protective, practical, cost-effective regulatory proposal. 
EPA has provided many opportunities for input in this rulemaking 
process. EPA has met with various members of the stakeholder community 
on a continuing basis through meeting requests and invitations to 
attend meetings, conferences, and site visits. These meetings with 
environmental organizations, agricultural organizations, producer 
groups, and producers representing various agricultural sectors have 
allowed EPA to interact with and receive input from stakeholders about 
the Unified Strategy and the NPDES and effluent limitations regulatory 
revisions. In addition, EPA convened a Small Business Advocacy Review 
Panel to address small entity concerns. EPA also sent an outreach 
package to and met with several national organizations representing 
State and local governments. More detailed information on EPA's public 
outreach is provided in the rulemaking record.
B. Joint USDA/EPA Unified AFO Strategy Listening Sessions
    In the fall of 1998, EPA and USDA announced eleven public outreach 
meetings designed to allow public comment on the Draft Unified National 
AFO Strategy. The meetings were held in the following cities: Tulsa, 
Oklahoma; Harrisburg, Pennsylvania; Ontario, California; Madison, 
Wisconsin; Seattle, Washington; Des Moines, Iowa; Chattanooga, 
Tennessee; Indianapolis, Indiana; Fort Worth, Texas; Denver, Colorado; 
and Annapolis, Maryland. Each meeting included a pre-meeting among 
state and regional officials, EPA, and USDA representatives to discuss 
the draft strategy and the issues posed by CAFOs in general. All 
participants in the public sessions, including numerous small entities, 
were given the opportunity to sign up and provide their comments to a 
panel consisting of EPA, USDA, and local representatives. Many of the 
commenters made points or raised issues germane to small entities. A 
transcript of these comments was used by EPA and USDA in developing the 
final Unified National AFO Strategy. These comments and concerns have 
been considered by EPA in the development of the revised NPDES CAFO 
regulations. The transcripts of these meetings are available on the OWM 
Web Site (<A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.epa.gov/owm/afo.htm">www.epa.gov/owm/afo.htm</A>) and are available in the record.
C. Advisory Committee Meeting
    EPA was invited to meet with the Local Government Advisory 
Committee, Small Community Advisory Subcommittee on September 8, 1999. 
At this Federal Advisory Committee Act meeting, EPA described the CAFO 
regulatory revisions being considered, and responded to questions 
concerning the effect of EPA's regulatory actions on small communities. 
While the CAFO regulations do not directly affect small communities, 
AFOs do have an effect on local economies and on the local environment. 
Thus, how they are regulated (or not regulated) has implications for 
local governments. EPA is keeping local government concerns in mind as 
it proceeds with the CAFO regulatory revisions and general public 
outreach activities.
D. Farm Site Visits
    EPA conducted approximately 110 site visits to collect information 
about waste management practices at livestock and poultry operations. 
Agency staff visited a wide range of operations, including those 
demonstrating centralized treatment or new and innovative technologies. 
EPA staff visited livestock and poultry operations throughout the 
United States, the majority of which were chosen with the assistance of 
the leading industry trade associations and also by the Natural 
Resources Defense Council, the Clean Water Network, university experts, 
State cooperative and extension agencies, and state and EPA regional 
representatives.
[[<strong>Page</strong> 3121]]
EPA also attended USDA-sponsored farm tours, as well as tours offered 
at industry, academic, and government conferences. Details on these 
visits are provided in the rulemaking record.
    EPA staff visited cattle feeding operations in Texas, Oklahoma, 
Kansas, Colorado, California, Indiana, Nebraska, and Iowa, as well as 
veal operations in Indiana. The capacities of the beef feedlots varied 
from 500 to 120,000 head. EPA also visited dairies in Pennsylvania, 
Florida, California, Colorado, and Wisconsin, with the total mature 
dairy cattle at the operations ranging from 40 to 4,000 cows. In 
addition, EPA visited broiler, layer and turkey facilities in Georgia, 
Arkansas, North Carolina, Virginia, West Virginia, Maryland, Delaware, 
Pennsylvania, Ohio, Indiana, and Wisconsin. EPA visited hog facilities 
in North Carolina, Ohio, Iowa, Minnesota, Texas, Colorado, Oklahoma, 
and Utah.
E. Industry Trade Associations
    Throughout regulatory development, EPA has worked with 
representatives from the national trade groups, including: National 
Cattlemen's Beef Association (NCBA); American Veal Association (AVA); 
National Milk Producers Federation (NMPF); Professional Dairy Heifers 
Growers Association (PDHGA); Western United Dairymen (WUD); National 
Pork Producers Council (NPPC); United Egg Producers and United Egg 
Association (UEP/UEA); National Turkey Federation (NTF); and the 
National Chicken Council (NCC). All of the above organizations have 
provided assistance by helping with site visit selection, submitting 
supplemental data, reviewing descriptions of the industry and waste 
management practices, and participating in and hosting industry 
meetings with EPA.
F. CAFO Regulation Workgroup
    EPA established a workgroup that included representatives from USDA 
and seven states, as well as EPA Regions and headquarters offices. The 
workgroup considered input from stakeholders and developed the 
regulatory options presented in today's proposal.
G. Small Business Advocacy Review Panel
1. Summary of Panel Activities
    To address small business concerns, EPA's Small Business Advocacy 
Chairperson convened a Small Business Advocacy Review (SBAR) Panel 
under section 609(b) of the Regulatory Flexibility Act (RFA) as amended 
by the Small Business Regulatory Enforcement Fairness Act (SBREFA). 
Participants included representatives of EPA, the Small Business 
Administration (SBA) and the Office of Management and Budget (OMB). 
``Small Entity Representatives'' (SERs), who advised the Panel, 
included small livestock and poultry producers as well as 
representatives of the major commodity and agricultural trade 
associations. Information on the Panel's proceedings and 
recommendations is in the Final Report of the Small Business Advocacy 
Review Panel on EPA's Planned Proposed Rule on National Pollutant 
Discharge Elimination System (NPDES) and Effluent Limitations Guideline 
(Effluent Guidelines) Regulations for Concentrated Animal Feeding 
Operations (hereinafter called the ``Panel Report''), along with other 
supporting documentation included as part of the Panel process. This 
information can be found in the rulemaking record.
    Prior to convening a SBAR Panel, EPA distributed background 
information and materials to potential SERs on September 3, 1999 and 
September 9, 1999. On September 17, 1999, EPA held a conference call 
from Washington, D.C. which served as a pre-panel forum for small 
business representatives to provide input on key issues relating to the 
proposed regulatory changes to the ``CAFO Rule.'' Twenty-seven small 
business representatives from the beef, dairy, swine, poultry, and 
exotic animal livestock industries participated in the conference call. 
A summary of the conference call is included in the Panel Report. 
Following the conference call, 19 of the 41 small business advisors and 
national organizations invited to participate on the conference call 
submitted written comments. These written comments are included in the 
Panel Report.
    The SBAR Panel for the ``CAFO Rule'' was formally convened on 
December 16, 1999. On December 28, 1999, the Panel distributed an 
outreach package to the final group of SERs, which included many of the 
participants in EPA's September 17, 1999 outreach conference call. The 
package included: a SER outreach document, which provided a definition 
of a small business and described those entities most likely to be 
affected by the rule; an executive summary of EPA's cost methodology; 
regulatory flexibility alternatives; a cost methodology overview for 
the swine, poultry, beef, and dairy sectors; a cost annualization 
approach; and a list of questions for SERs. Additional modeling 
information was also sent to SERs on January 7, 2000 and January 10, 
2000. A complete list of these documents can be found in the Panel 
Report; all information sent to the SERs is included in the record.
    The SERs were asked to review the information package and provide 
verbal comments to the Panel during a January 5, 2000 conference call, 
in which 22 SERs participated. During this conference call, SERs were 
also encouraged to submit written comments. SERs were given an 
additional opportunity to make verbal comments during a second 
conference call held on January 11, 2000, in which 20 SERs 
participated. During both conference calls, SERs were asked to comment 
on the costs and viability of the proposed alternatives under 
consideration by EPA. A summary of both conference calls can be found 
in the Panel Report. Following the calls, the Panel received 20 sets of 
written comments from 14 SERs. A complete set of these comments is 
included in the Panel Report.
2. Summary of Panel Recommendations
    A full discussion of the comments received from SERs and Panel 
recommendations is included in the Panel Report. The major issues 
summarized are as follows.
    a. Number of Small Entities. The Panel reviewed EPA's methodology 
to develop its estimate of the small entities to which the proposed 
rule will likely apply. EPA proposed two alternative approaches to 
estimate the number of small businesses in these sectors. Both 
approaches identify small businesses in these sectors by equating SBA's 
annual revenue definition with the number of animals at an operation 
and estimate the total number of small businesses in these sectors 
using farm size distribution data from USDA. One approach equates SBA's 
annual revenue definition with operation size using farm revenue data, 
as described in Section X.J.2 of this document. Another approach 
equates SBA's annual revenue definition with the operation size using a 
modeling approach developed by EPA that calculates the amount of 
livestock revenue at an operation based market data, including the 
USDA-reported price received by producers, average yield, and the 
number of annual marketing cycles. (Additional information on this 
latter approach is in the rulemaking record.)
    During the Panel process, and following formal consultation with 
SBA, the Panel participants agreed to use the first approach to 
estimate the number of small businesses in these sectors. More details 
on this approach is provided in Section X.J.2 and in Section 9 of the
[[<strong>Page</strong> 3122]]
Economic Analysis. More detail on the Panel's deliberation of the 
approach used to determine the number of small businesses is provided 
Sections 4 and 5 of the Panel Report and in other support documentation 
developed during the SBAR Panel process. The Panel noted that the 
revised methodology may not accurately portray actual small businesses 
in all cases across all sectors. The Panel also recognized that, under 
this small business definition, EPA would be regulating some small 
facilities, but urged EPA to consider the small business impacts of 
doing so.
    b. Potential Reporting, Record Keeping, and Compliance 
Requirements. Record Keeping Related to Off-Site Transfer of Manure. 
The Panel reviewed EPA's consideration of record keeping and reporting 
requirements in connection with off-site transfer of manure. The Panel 
recommended that EPA review and streamline the requirements for small 
entities. In response to this recommendation, EPA is limiting its 
proposal to keep records of the name and address of the entity to which 
the CAFO is transferring manure, how much is being transferred and the 
nutrient content of the manure on-site. This information would allow 
EPA to track manure, and to follow-up with the third party recipient to 
ascertain whether the manure was applied in accordance with Clean Water 
Act requirements that may apply. EPA is also proposing under one co-
proposed option that a CAFO obtain a certification from recipients that 
land application is done in accordance with proper agricultural 
practices. EPA assumes recipients of manure are mostly field crop 
producers who already maintain appropriate records relating to nutrient 
management. EPA is not proposing to establish specific requirements for 
these offsite recipients.
    Permit Application and Certification Requirements. The Panel asked 
EPA to consider the burden associated with increasing the number of 
entities subject to permit between 300 AU and 1,000 AU. Furthermore, 
the Panel recommended that EPA carefully consider appropriate 
streamlining options before considering a more burdensome approach. EPA 
considered several alternative scenarios for the scope of permit 
coverage of facilities in this size group, and decided to 
simultaneously co-propose two scenarios, as each offers different means 
of accomplishing similar environmental outcomes.
    The first alternative proposal would retain the current three-tier 
structure, but would require an operation in the 300-1,000 AU size tier 
to certify to the permitting authority that it does not meet any of the 
``risk-based'' conditions (described in Section VII), and thus is not 
required to obtain a permit. The three-tier structure would require all 
AFOs with 300 AU or more to, at a minimum, obtain a permit nutrient 
plan and submit a certification to the permit authority. This 
alternative would provide the permit authority the opportunity to 
implement effective programs to assist AFOs in order to minimize how 
many would be required to apply for a permit. Because those certifying 
would not be CAFOs, however, they would have access to section 319 
nonpoint source funds. This co-proposed alternative does not meet one 
of the goals of today's proposal, as recommended by the Panel, that is, 
to simplify the regulations to improve understanding and therefore 
compliance by the regulated community. Further, the conditions are such 
that all facilities with 300 AU or more would incur some cost 
associated with certifying they do not meet any of the conditions. EPA 
is also requesting comment on a variation of the three-tier structure 
that was presented to the SERs and generally favorably received by the 
Panel (see detailed discussion in Section VII.B.3).
    The second alternative proposal would adopt a two-tier structure 
that defines all operations with 500 AU or more as CAFOs. (EPA is also 
requesting comment on a 750 AU threshold.) This proposal would provide 
regulatory relief for operations between 300 AU and 500 AU that may be 
considered CAFOs under the existing regulations. Operations in this 
size group would not be subject to the certification process and would 
not incur the costs associated with certification, such as the costs to 
obtain a certified Permit Nutrient Plan and to submit a certification 
to the permit authority. Under the two-tier structure, operations with 
more than 500 AU would all be required to apply for a permit. All 
facilities with fewer than 500 AU would be subject to permitting as 
CAFOs only through case-by-case designation based on a finding that the 
operation is a significant contributor of pollution by the permit 
authority. This proposal offers simplicity and clarity as to which 
entities will be subject to the proposed regulations and those that 
will not, which was recommended by the Panel, as well as indicated by 
the regulated community as one of the goals of today's proposal. 
Representatives of some State programs, however, have indicated that 
they would prefer an option that allows State non-NPDES programs to 
address issues at CAFOs in their states, rather than being required to 
write permits.
    EPA is also proposing to provide regulatory relief to small 
businesses by eliminating the mixed animal calculation. As a result, 
smaller operations that house a mixture of animal types where none of 
these animal types independently meets the regulatory threshold are not 
considered CAFOs under either of today's proposals, unless they are 
individually designated. EPA believes that this will provide maximum 
flexibility for these operations since most are now participating in 
USDA's voluntary CNMP program, as outlined in the AFO Strategy. For 
more information, see discussion in Section VII. A summary of EPA's 
economic analysis is provided in Section X.J of this preamble.
    Frequency of Testing. The Panel reviewed EPA's consideration of 
requiring periodic soil testing. The Panel agreed that testing manure 
and soil at different rates may be appropriate, but expressed concern 
about the burden of any inflexible testing requirements on small 
businesses. The Panel recommended that EPA consider leaving the 
frequency of required testing to the discretion of local permit 
writers, and request comment on any testing requirements that are 
included in the proposed rule. The Panel further recommended that EPA 
weigh the burden of testing requirements to the need for such 
information.
    EPA is proposing to require soil testing of each field every three 
years and manure testing once per year. The proposed frequency is 
consistent with standards in many states and also recommendations from 
agricultural extension services. To ensure that soils have not reached 
a critical concentration of phosphorus, EPA believes that it is 
necessary to establish a minimum sampling frequency and testing 
requirements for all CAFOs, regardless of size. Since it is believed 
that much of the water pollution from agriculture comes from field 
runoff, information on manure and soil content is essential for the 
operator to determine at what rate manure should be applied. EPA 
believes this information is essential for the permitting authority to 
know whether the manure is being land applied at proper rates. The 
local permit writer retains the discretion to require more frequent 
testing.
    Groundwater Requirements Where Linked to Surface Water. The Panel 
reviewed EPA's consideration of an option that would require 
groundwater controls at facilities that are determined to have a direct 
hydrological connection
[[<strong>Page</strong> 3123]]
to surface water since there is reasonable potential for discharges to 
surface water via ground water at these facilities (``Option 3''). 
Because of the potentially high costs to small operators associated 
with both making a determination of a hydrologic link and installing 
controls (such as lagoon liners, mortality composting devices, 
groundwater monitoring wells, concrete pads, and other technologies), 
the Panel recommended that EPA examine this requirement, giving careful 
consideration to the associated small entity impacts, in light of the 
expected environmental benefits resulting from this option. The Panel 
further recommended that if EPA decides to propose any such 
requirements that it consider streamlining the requirements for small 
entities (e.g., sampling at reduced rates) or exempting them 
altogether.
    (i) Existing CAFOs. EPA is proposing to require existing beef and 
dairy CAFOs to install groundwater controls when the groundwater 
beneath the production area has a direct hydrologic connection to 
surface water (Option 3, as described in Section VIII). This includes 
installation of wells and biannual sampling to monitor for any 
potential discharge from the production area. CAFOs are also expected 
to construct concrete pads or impermeable surfaces, as well as install 
synthetic liners if necessary to prevent discharges to surface water 
via direct hydrologic connection. The groundwater controls which are 
part of the proposed BAT requirements are in addition to the land 
application requirements which ensure that the manure and wastewater 
application to land owned or controlled by the CAFO is done in 
accordance with a PNP and does not exceed the nutrient requirements of 
the soil and crop. EPA has determined that this option represents the 
best available technology for existing beef and dairy CAFOs and that 
this requirement is economically achievable under both proposed 
permitting scenarios (i.e. the two-tier and three-tier structures), 
although some CAFOs in these sectors may experience increased financial 
burden. Because the risks from discharged pollutants from groundwater 
to surface water are location-specific, EPA believes that the proposed 
groundwater requirements are necessary at CAFOs where there is a 
hydrologic connection to surface waters. EPA's is proposing that these 
requirements are economically achievable by operations that are defined 
as CAFOs and are also small businesses. The results of EPA's small 
business analysis is provided in Section X.J of this preamble. 
Moreover, EPA believes that the estimated benefits in terms of 
additional groundwater-surface water protections would be significant. 
EPA's pollution reduction estimates across options are presented in the 
Development Document.
    EPA is not proposing BAT requirements for the existing swine, veal 
and poultry subcategories on the basis of Option 3, i.e., EPA rejected 
proposing groundwater monitoring and controls in the effluent 
guidelines for these CAFOs. As described in Section VIII of this 
preamble, EPA is proposing Option 5 as the best available technology 
economically achievable, which requires zero discharge from the animal 
production area with no exception for storm events. Were EPA to add the 
requirement to control discharges to groundwater that is directly 
connected to surface waters in addition to the Option 5 requirements, 
the costs would result in much greater financial impacts to hog and 
poultry operations. EPA's analysis shows that the full cost of 
groundwater controls (``Option 3'') in addition to requirements under 
Option 5 would not be economically achievable by operations in these 
sectors.
    (ii) New CAFOs. EPA is proposing to require that all new CAFOs in 
all subcategories install groundwater controls. EPA expects that 
requiring groundwater monitoring is affordable to new facilities since 
these facilities do not face the cost of retrofit. EPA's economic 
analysis of new facility costs is provided in Section X.F.1(b) of this 
preamble. More detailed information is provided in the Economic 
Analysis and the Development Document.
    c. Relevance of Other Federal Rules. The Panel did not note any 
other Federal rules that may duplicate, overlap, or conflict with the 
proposed rule.
    d. Regulatory Alternatives. The Panel considered a wide range of 
options and regulatory alternatives for reducing the burden on small 
business in complying with today's proposal. These included:
    Revised Applicability Thresholds. The Panel recommended that EPA 
give serious consideration to the issues discussed by the Panel when 
determining whether to establish less stringent effluent limitations 
guidelines for smaller facilities, and whether to preserve maximum 
flexibility for the best professional judgement of local permit 
writers. The Panel also recommended that the Agency carefully evaluate 
the potential benefits of any expanded requirements for operations with 
between 300 and 1,000 AU and ensure that those benefits are sufficient 
to warrant the additional costs and administrative burden that would 
result for small entities.
    EPA is proposing to apply the effluent limitation guidelines to all 
facilities that are defined as CAFOs, although EPA is also requesting 
comment on an option under which they would only apply to facilities 
with greater than 1,000 AUs. Thus, under the three-tier structure all 
CAFOs with 300 AU or more would be subject to the effluent guidelines. 
Under the two-tier structure, all CAFOs with 500 AU or more would be 
subject to the effluent guidelines. EPA is also requesting comment on a 
750 AU threshold for the two-tier structure. Under both of the co-
proposed alternatives, EPA is proposing to eliminate the ``mixed'' 
animal calculation for operations with more than a single animal type 
for determining which AFOs are CAFOs. As a result, smaller operations 
that house a mixture of animal types where none of these animal types 
independently meets the regulatory threshold are not considered CAFOs 
under today's proposed rulemaking, unless they are individually 
designated. EPA believes that this will provide maximum flexibility for 
these operations since most are now participating in USDA's voluntary 
CNMP program, as outlined in the AFO Strategy. For more information, 
see discussion in Section VII.
    EPA's two-tier proposal provides additional relief to small 
businesses. Under the two-tier structure, EPA is proposing to establish 
a regulatory threshold that would define as CAFOs all operations with 
more than 500 AU. This co-proposed alternative would provide relief to 
small businesses since this would remove from the CAFO definition 
operations with between 300 AU to 500 AU that under the current rules 
are defined as CAFOs. These operations would no longer be defined as 
CAFOs and may avoid being designated as CAFOs if they take appropriate 
steps to prevent discharges. In addition, if operations of any size 
that would otherwise be defined as CAFOs can demonstrate that they have 
no potential to discharge, they would not need to obtain a permit. 
Also, under the two-tier structure, EPA is proposing to raise the size 
standard for defining egg laying operations as CAFOs from 30,000 to 
50,000 laying hens. This alternative would remove from the CAFO 
definition egg operations of this size that under the current rules are 
defined as CAFOs, if they utilize a liquid manure management system.
    EPA believes that revising the regulatory thresholds below 1,000 AU 
is necessary to protect the environment
[[<strong>Page</strong> 3124]]
from CAFO discharges. At the current 1,000 AU threshold, less than 50 
percent of all manure and wastewater generated annually would be 
captured under the regulation. Under the co-proposed alternatives, 
between 64 percent (two-tier) and 72 percent (three-tier) would be 
covered. (See Section IV.A of this preamble.) Total pre-tax compliance 
costs to CAFOs with fewer than 1,000 AU is estimated to range between 
$226 million annually (two-tier) to $298 million annually (three-tier), 
or about one-third of the total estimated annual costs (see Section 
X.E.1). EPA believes that the estimated benefits in terms of additional 
manure coverage justify the estimated costs. EPA estimates that 60 
percent (two-tier) to 70 percent (three-tier) of all operations that 
are defined as CAFOs and are also small businesses are operations with 
less than 1,000 AU. EPA's economic analysis, however, indicates that 
these small businesses will not be adversely impacted by the proposed 
requirements. EPA's estimates of the number of small businesses and the 
results of its economic analysis is provided in Section X.J of this 
preamble.
    Under each co-proposed alternative, EPA is proposing that 
operations that are not defined as CAFO (i.e., operations with fewer 
animals than the AU threshold proposed) could still be designated as 
CAFOs on a case-by-case basis. During the Panel process, the Panel 
urged EPA not to consider changing the designation criteria for 
operations with less than 300 AU. This includes the criterion that the 
permitting authority must conduct an on-site inspection of any AFO, in 
making a designation determination. EPA is not proposing to eliminate 
the on-site inspection requirement. EPA believes it is appropriate to 
retain the requirement for an on-site inspection before the permitting 
authority determines that an operation is a ``significant contributor 
of pollution.'' No inspection would be required to designate a facility 
that was previously defined or designated as a CAFO. EPA is, however, 
requesting comment on whether or not to eliminate this provision or to 
redefine the term ``on-site'' to include other forms of site-specific 
data gathering. In addition, EPA is proposing to delete two criteria, 
including discharge from manmade device and direct contact with waters 
of the U.S., as unnecessary to the determination of whether an 
operation should be designated as a CAFO. EPA is also proposing to 
clarify EPA's designation authority in States with NPDES approved 
programs. For more information, see Section VII.
    25-year, 24-hour Storm Event. At the time of SBREFA outreach, EPA 
indicated to SERs and to the Panel that it was considering removing the 
exemption, but not changing the design requirement for permitted CAFOs. 
The Panel expressed concern about removing this exemption for 
operations with fewer than 1000 AU. The Panel recommended that if EPA 
removes the exemption, it should fully analyze the incremental costs 
associated with permit applications for those facilities that are not 
presently permitted that can demonstrate they do not discharge in less 
than a 25-year, 24-hour storm event, as well as any costs associated 
with additional conditions related to land application, nutrient 
management, or adoption of BMPs that the permit might contain. The 
Panel recommended that EPA carefully weigh the costs and benefits of 
removing the exemption for small entities. The Panel also urged EPA to 
consider reduced application requirements for small operations affected 
by the removal of the exemption.
    EPA is proposing to require that all operations that are CAFOs 
apply for a permit. EPA is proposing to remove the 25-year, 24-hour 
storm exemption from the definition of a CAFO. It is difficult to 
monitor, and removal of this exemption will make the rule simpler and 
more equitable. However, we are proposing to retain the 25-year, 24-
hour storm event as a design standard in the effluent limitation 
guidelines for certain animal sectors (specifically, the beef and dairy 
cattle sectors). As a result, operations in these sectors that 
discharge only in the event of a 25-year, 24-hour storm would not be 
exempt from being defined as CAFOs, but would be in compliance with 
their permit as long as they met the 25-year, 24-hour storm design 
standard. EPA is proposing to establish BAT for the swine, poultry, and 
veal subcategories on the basis of Option 5 which bans discharge from 
the production area under any circumstances. The technology basis for 
this option is covered lagoons, and does not establish a different 
design standard for these lagoons. Removal of the exemption from the 
CAFO definition should have no impact on operations that are already 
employing good management practices. More information is provided in 
Sections VII and VIII of this document. Prior to proposing to remove 
this exemption, EPA evaluated the incremental costs associated with 
permit applications for those facilities that are not presently 
permitted and other associated costs to regulated small entities. EPA's 
economic analysis is provided in Section X.J of this preamble. 
Estimated costs to the NPDES Permitting Authority are presented in 
Section X.G.1. Section X.I presents a comparison of the annualized 
compliance costs and the estimated monetized benefits.
    Manure and Wastewater Storage Capacity. The Panel noted the SERs' 
concern about the high cost of additional storage capacity and 
recommended that EPA consider low-cost alternatives in its assessment 
of best available technologies economically achievable, especially for 
any subcategories that may include small businesses. The Panel was 
concerned about the high cost of poultry storage and asked EPA to 
consider low cost storage. EPA is proposing that facilities may not 
discharge pollutants to surface waters. To meet this requirement, 
facilities may choose to construct storage sheds, cover manure, collect 
all runoff, or any other equally effective combination of technologies 
and practices. The proposal does not directly impose any minimum 
storage requirements.
    Land Application. The Panel recommended that EPA continue to work 
with USDA to explore ways to limit permitting requirements to the 
minimum necessary to deal with threats to water quality from over-
application and to define what is ``appropriate'' land application, 
consistent with the agricultural stormwater exemption. The Panel 
recommended that EPA consider factors such as annual rainfall, local 
topography, and distance to the nearest stream when developing any 
certification and/or permitting requirements related to land 
application. The Panel also noted the high cost of P-based application 
relative to N-based application, and supported EPA's intent to require 
the use of P-based application rates only where necessary to protect 
water quality, if at all, keeping in mind its legal obligations under 
the CWA. The Panel recommended that EPA consider leaving the 
determination of whether to require the use of P-based rates to the 
permit writer's discretion, and continue to work with USDA in exploring 
such an option.
    EPA recognizes that the rate of application of the manure and 
wastewater is a site-specific determination that accounts for the soil 
conditions at a CAFO. Depending on soil conditions at the CAFO, EPA is 
proposing to require that the operator apply the manure and wastewater 
either according to a nitrogen-standard or,
[[<strong>Page</strong> 3125]]
where necessary, on a phosphorus-standard. If the soil phosphorus 
levels in a region are very high, the CAFO would be prohibited from 
applying any manure or wastewater. EPA believes that this will improve 
water quality in some production regions where the amount of phosphorus 
in animal manure and wastewater being generated exceeds crop needs and 
has resulted in a phosphorus build-up in the soils in those regions. 
Evidence of manure-phosphorus generation in excess of crop needs is 
reported in analyses conducted by USDA. Other data show that larger 
operations tend to have less land to land apply manure nutrients that 
are generated on-site. EPA believes that each of the co-proposed 
alternatives establish a regulatory threshold that ensures that those 
operations with limited land on which to apply manure are permitted. 
Under the three-tier structure, EPA is proposing risk conditions that 
would require nutrient management (i.e., PNPs) at operations with 300 
to 1,000 AU. In addition, EPA is proposing under one co-proposed option 
to require letters of certification be obtained from off-site 
recipients of CAFO manure. Operations that are not defined as CAFOs, 
but that are determined to be a ``significant contributor of 
pollution'' by the permit authority, may be designated as CAFOs.
    EPA is proposing a method for assessing whether phosphorus-based 
application is necessary that is consistent with USDA's policy on 
nutrient management. In all other areas, a nitrogen-based application 
rate would apply. EPA's proposal grants flexibility to the states in 
determining the appropriate basis for land application rates. EPA will 
continue to work with USDA to evaluate appropriate measures to 
distinguish proper agricultural use of manure.
    Co-Permitting. The Panel reviewed EPA's consideration of requiring 
corporate entities that exercise substantial operational control over a 
CAFO to be co-permitted. The Panel did not reach consensus on this 
issue. The Panel was concerned that any co-permitting requirements may 
entail additional costs and that co-permitting cannot prevent these 
costs from being passed on to small operators, to the extent that 
corporate entities enjoy a bargaining advantage during contract 
negotiations. The Panel thus recommended that EPA carefully consider 
whether the potential benefits from co-permitting warrant the costs 
particularly in light of the potential shifting of those costs from 
corporate entities to contract growers. The Panel also recommended that 
if EPA does require co-permitting in the proposed rule, EPA consider an 
approach in which responsibilities are allocated between the two 
parties such that only one entity is responsible for compliance with 
any given permit requirement. This would be the party that has primary 
control over that aspect of operations. Flexibility could also be given 
to local permit writers to determine the appropriate locus of 
responsibility for each permit component. Finally, the Panel 
recommended that if EPA does propose any form of co-permitting, it 
address in the preamble both the environmental benefits and any 
economic impacts on small entities that may result and request comment 
on its approach. If EPA does not propose a co-permitting approach, the 
Panel recommended that EPA discuss the strengths and weaknesses of this 
approach and request comment on it.
    EPA is proposing in the rule to clarify that co-permitting is 
appropriate where a corporate or other entity exercises substantial 
operational control over a CAFO. Data show that some corporations 
concentrate growers geographically, thus producing a high concentration 
of nutrients over a limited area. EPA is leaving to the States 
decisions on how to structure co-permitting. A discussion of the 
strength and weaknesses of co-permitting is contained in Section 
VII.C.5 with several solicitations of comment. EPA is also soliciting 
comment on an Environmental Management System as a sufficient program 
to meet co-permitting requirements. Please refer to Section VII.C.5 for 
further discussion of Environmental Management Systems.
    CNMP Preparer Requirements. The Panel reviewed EPA's consideration 
of requiring permittees to have CNMPs (Comprehensive Nutrient 
Management Plans) developed by certified planners. The Panel 
recommended that EPA work with USDA to develop low cost CNMP 
development services or allow operators to write their own plans. The 
Panel was concerned about the cost of having a certified planner 
develop the plans and urged EPA to continue to coordinate with other 
federal, state and local agencies in the provision of low-cost CNMP 
development services, and should facilitate operator preparation of 
plans by providing training, guidance and tools (e.g., computer 
programs).
    EPA is proposing that CAFOs, regardless of size, have certified 
Permit Nutrient Plans (PNPs) that will be enforceable under the permit. 
The proposal states that USDA's Technical Guidance for Developing CNMPs 
may be used as a template for developing PNPs. EPA believes that USDA 
documentation and standards will be appropriate for use as the primary 
technical references for developing PNPs at CAFOs. In the proposal, EPA 
has identified certain practices that would be required elements of 
PNPs in order to protect surface water from CAFO pollutant discharges. 
These practices are consistent with some of the practices recommended 
in USDA's CNMP guidance; however, the PNP would not need to include all 
of the practices identified in the USDA guidance. As an enforceable 
part of the permit, the PNP would need to be written either by a 
certified planner or by someone else and reviewed and approved by a 
certified planner. EPA believes it is essential that the plans be 
certified by agriculture specialists because the permit writer will 
likely rely to a large extent on their expertise. The plans would need 
to be site specific and meet the requirements outlined in this rule. 
EPA is continuing to coordinate with other regulatory agencies and with 
USDA on the development of these proposed requirements. EPA has 
concluded that development of the PNP is affordable to small businesses 
in these sectors and will improve manure management and lead to cost 
savings at the CAFO. EPA's economic analysis is provided in Section X.J 
of this preamble. More detailed information on the cost to develop a 
PNP is in the Development Document.
    General vs. Individual Permits. The Panel reviewed EPA's 
consideration of requiring individual permits for CAFOs that meet 
certain criteria, or increasing the level of public involvement in 
general permits for CAFOs. The Panel recommended that EPA not expand 
the use of individual permits for operations with less than 1,000 AU. 
EPA believes that individual permits may be warranted under certain 
conditions such as extremely large operations, operations with a 
history of compliance problems, or operations in environmentally 
sensitive areas. Accordingly, EPA is co-proposing two options. In one 
option, each State develops its own criteria, after soliciting public 
input, for determining which CAFOs would need to have individual rather 
than general permits. EPA is also coproposing an option that would 
establish a national criteria for issuing individual permits. The 
criteria identifies a threshold that represents the largest operations 
in each sector. (See Section XII for a detailed discussion.)
    Immature Animals. The Panel reviewed EPA's consideration to include 
immature animals for all animal types in determining the total number 
of
[[<strong>Page</strong> 3126]]
animal units at a CAFO. The Panel recommended that EPA count immature 
animals proportionally to their waste generation. EPA is proposing to 
continue to account for only the mature animals at operations where all 
ages of animals are maintained (mostly dairy and hog operations). Once 
an operation is covered by the existing regulations, however, all 
manure and wastewater generated by immature animals that are confined 
at the same operation with mature animals would also be subject to the 
requirements. EPA is proposing to maintain this requirement because all 
young animals are not always confined and immature populations vary 
over time, whereas the mature herd is of a more constant size. 
Furthermore, the exclusion of immature animals adds to the simplicity 
we are seeking in this rulemaking. However, EPA is proposing to include 
immature animals as subject to the regulations only in stand-alone 
nursery pig and heifer operations. For stand-alone nursery pig 
operations, EPA is proposing to account for immature animals 
proportionate to their waste generation, as discussed in Section VIII. 
Stand-alone heifer operations are included under the beef subcategory 
and are subject to the proposed regulations if they confine more than 
500 heifers (two-tier) or more than 300 AU, under certain conditions 
(three-tier).
    e. Other Recommendations. Benefits. The Panel recommended that the 
EPA evaluate the benefits of the selected regulatory options and that 
EPA carefully evaluate, in a manner consistent with its legal 
obligations, the relative costs and benefits (including quantified 
benefits to the extent possible) of each option in order to ensure that 
the options selected are affordable (including to small farmers), cost-
effective, and provide significant environmental benefits. EPA has 
conducted an extensive benefit analysis of all the options and 
scenarios considered. The findings of the benefit analysis are found in 
Section XI of this report. More detailed information is provided in the 
Benefits Analysis. Section X.I presents a comparison of the annualized 
compliance costs and the estimated monetized benefits.
    Estimated Compliance Costs. The Panel recommended that EPA continue 
to refine the cost models and consider additional information provided. 
EPA has continued to refine the cost models and has reviewed all 
information provided to help improve the accuracy of the models. A 
summary of EPA's cost models is provided in Section X of this preamble. 
More detailed information is provided in the Economic Analysis and 
Development Document provided in the rulemaking record.
    Public Availability of CNMP. The Panel urged EPA to consider 
proprietary business concerns when determining what to make publicly 
available. To the extent allowed under the law, EPA should continue to 
explore ways to balance the operators' concerns over the 
confidentiality of information that could be detrimental if revealed to 
the operators' competitors, with the public's interest in knowing 
whether adequate practices are being implemented to protect water 
quality. EPA is not requiring CAFOs to submit the PNPs to the permit 
authority. However, EPA is proposing that the PNPs must be available 
upon the request of States and EPA. The agencies would make the plans 
available to the public on request. EPA is proposing to require the 
operator of a permitted CAFO to make a copy of the PNP cover sheet and 
executive summary available for public review. EPA is also requesting 
comment as to whether CAFOs should be able to claim these elements of 
the PNP as confidential business information and withhold those 
elements of the PNP from public review on that basis, or alternately, 
that whether other portions of the PNP should be made available as 
well.
    Dry Manure. The Panel asked EPA to consider the least costly 
requirements for poultry operations with dry manure management systems. 
The Panel recommended that in evaluating potential requirements for dry 
manure poultry operations, EPA consider the effects of any such 
requirements on small entities. EPA is not mandating a specific storage 
technology or practice, but is proposing a zero discharge performance 
standard and a requirement that poultry operations develop and 
implement a PNP. EPA is also proposing that certain monitoring and 
recordkeeping requirements would be appropriate. EPA's economic 
analysis is provided in Section X.J of this preamble. More detailed 
cost information is provided in the Development Document.
    Coordination with State Programs. The Panel recommended that EPA 
consider the impact of any new requirements on existing state programs 
and include in the proposed rule sufficient flexibility to accommodate 
such programs where they meet the minimum requirements of federal NPDES 
regulations. The Panel further recommended that EPA continue to consult 
with states in an effort to promote compatibility between federal and 
state programs. EPA has consulted with states. There were seven states 
represented on the CAFO workgroup (see Section XII.G.1). In addition, 
EPA asked for comment on the proposed options from nine national 
associations that represent state and local government officials. (See 
Section XIII.G.) In conducting its analyses for this rulemaking, EPA 
accounted for requirements under existing state programs. A summary of 
EPA's estimated costs to the NPDES Permitting Authority are presented 
in Section X.G.1 and Section XIII.B.
XIII.Administrative Requirements
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 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;
    (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.''
    It has been determined that this proposed rule is a ``significant 
regulatory action'' under the terms of Executive Order 12866. As such, 
this action was submitted to OMB for review. Changes made in response 
to OMB suggestions or recommendations will be documented in the public 
record.
B. Regulatory Flexibility Act (RFA) as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.
    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis for 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.
[[<strong>Page</strong> 3127]]
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    The RFA provides default definitions for each type of small entity. 
It also authorizes an agency to use alternative definitions for each 
category of small entity, ``which are appropriate to the activities of 
the agency'' after proposing the alternative definition in the Federal 
Register and taking comment. 5 U.S.C. Sec. 601(3)-(5). In addition to 
the above, to establish an alternative small business definition, 
agencies must consult with the Small Business Administration (SBA) 
Chief Counsel for Advocacy.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) a small business based on 
annual revenue standards established by SBA, with the exception of one 
of the six industry sectors where an alternative definition to SBA's is 
proposed; (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.
    The definitions of small business for the livestock and poultry 
industries are in SBA's regulations at 13 CFR 121.201. These size 
standards were updated in September, 2000. SBA size standards for these 
industries define a ``small business'' as one with average revenues 
over a 3-year period of less than $0.5 million annually for dairy, hog, 
broiler, and turkey operations, $1.5 million for beef feedlots, and 
$9.0 million for egg operations. In today's rule, EPA is proposing to 
define a ``small'' egg laying operation for purposes of its regulatory 
flexibility assessments under the RFA as an operation that generates 
less than $1.5 million in annual revenue. Because this definition of 
small business is not the definition established under the RFA, EPA is 
specifically seeking comment on the use of this alternative definition 
as part of today's notice of the proposed rulemaking. EPA has consulted 
with the SBA Chief Counsel for Advocacy on the use of this alternative 
definition. EPA believes this definition better reflects the 
agricultural community's sense of what constitutes a small business and 
more closely aligns with the small business definitions codified by SBA 
for other animal operations. A summary of EPA's analysis pertaining to 
the alternative definition is provided in Section 9 of the Economic 
Analysis. A summary of EPA's consultation with SBA is provided in the 
record.
    In accordance with Section 603 of the RFA, EPA prepared an initial 
regulatory flexibility analysis (IRFA) that examines the impact of the 
proposed rule on small entities along with regulatory alternatives that 
could reduce that impact. The IRFA is available for review in the 
docket (see Section 9 of the Economic Analysis). This analysis is 
summarized in Section X.J of this preamble. Based on available 
information, there are no small governmental operations or nonprofit 
organizations that operate animal feeding operations that will be 
affected by today's proposed regulations.
    The majority (95 percent) of the estimated 376,000 AFOs are small 
businesses, as defined by SBA. Of these, EPA estimates that there are 
10,550 operations that will be subject to the proposed requirements 
that are small businesses under the two-tier structure. Under the 
three-tier structure, an estimated 14,630 affected operations are small 
businesses. The difference in the number of affected small businesses 
is among poultry producers, particularly broiler operations. Section 
X.J.2 provides additional detail on how EPA estimated the number of 
small businesses.
    Based on the IRFA, EPA is proposing concludes that the proposed 
regulations are economically achievable to small businesses in the 
livestock and poultry sectors. EPA's economic analysis concludes that 
the proposed requirements will not result in financial stress to small 
businesses in the veal, dairy, hog, turkey, and egg sectors. However, 
EPA's analysis concludes that the proposed regulations may result in 
financial stress to 150 to 280 small broiler operations under the two-
tier and three-tier structure, respectively. In addition, EPA estimates 
that 10 to 40 small beef and heifer operations may also experience 
financial stress under each of the proposed tier structures. EPA 
considers these operations--comprising about 2 percent of all affected 
small CAFO businesses--may be vulnerable to closure. Details of this 
economic assessment are provided in Section X.J.
    EPA believes that moderate financial impacts that may be imposed on 
some operations in some sectors is justified given the magnitude of the 
documented environmental problems associated with animal feeding 
operations, as described in Section V of this document. Section IV 
further summarizes EPA's rationale for revising the existing 
regulations, including: (1) address reports of continued discharge and 
runoff from livestock and poultry operations in spite of the existing 
requirements; (2) update the existing regulations to reflect structural 
changes in these industries over the last few decades; and (3) improve 
the effectiveness of the existing regulations. Additional discussion of 
the objectives of and legal basis for the proposed rule is presented in 
Sections I through III.
    Section XIII.F summarizes the expected reporting and recordkeeping 
requirements required under the proposed regulation based on 
information compiled as part of the Information Collection Request 
(ICR) document prepared by EPA.
    Section X.J.4 summarizes the principal regulatory accommodations 
that are expected to mitigate future impacts to small businesses under 
the proposed regulations. Under both of the co-proposed alternatives, 
EPA is proposing to eliminate the ``mixed'' animal calculation for 
operations with more than a single animal type for determining which 
AFOs are CAFOs. As a result, smaller operations that house a mixture of 
animal types where none of these animal types independently meets the 
regulatory threshold are not considered CAFOs under today's proposed 
rulemaking, unless they are individually designated. Additional 
accommodations are being proposed under the two-tier structure. Under 
the two-tier structure, EPA is proposing to establish a regulatory 
threshold that would define as CAFOs all operations with more than 500 
AU. EPA is also considering a two-tier alternative that would define 
all operations with more than 750 AU as CAFOs. The two-tier structure 
would provide relief to small businesses since this would remove from 
the CAFO definition operations with between 300 AU and 500 AU (or 750 
AU) that under the current rules may be defined as CAFOs. Also, under 
the two-tier structure, EPA is proposing to raise the size standard for 
defining egg laying operations as CAFOs. This alternative would remove 
from the CAFO definition egg operations with between 30,000 and 50,000 
laying hens (or 75,000 hens) that under the current rules are defined 
as CAFOs, if they utilize a liquid manure management system. Additional 
information on the regulatory relief provisions being proposed by EPA 
is provided in Section VII of this preamble.
    As required by section 609(b) of the RFA, as amended by SBREFA, EPA 
also conducted outreach to small entities and convened a Small Business 
Advocacy Review Panel to obtain advice and recommendations from 
representatives of the small entities that potentially would be subject 
to the rule's requirements. Consistent with the
[[<strong>Page</strong> 3128]]
RFA/SBREFA requirements, the Panel evaluated the assembled materials 
and small entity comments on issues related to the elements of the 
IRFA. A complete summary of the Panel's recommendations is provided in 
the Final Report of the Small Business Advocacy Review Panel on EPA's 
Planned Proposed Rule on National Pollutant Discharge Elimination 
System (NPDES) and Effluent Limitations Guideline (Effluent Guidelines) 
Regulations for Concentrated Animal Feeding Operations (April 7, 2000). 
This document is included in the public record. As documented in the 
panel report, the participants of the Small Business Advocacy Review 
Panel did not identify any Federal rules that duplicate or interfere 
with the requirements of the proposed regulation.
    Section XII.G of this document provides a full summary of the 
Panel's activities and recommendations. This summary also describes 
each of the subsequent actions taken by the Agency, detailing how EPA 
addressed each of the Panel's recommendations. EPA is interested in 
receiving comments on all aspects of today's proposal and its impacts 
on small entities.
C. Unfunded Mandates Reform Act
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
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 the 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 
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 today's proposed regulations contain a 
Federal mandate that may result in expenditures of $100 million or more 
for the private sector in any one year. Accordingly, EPA has prepared 
the written statement required by section 202 of the UMRA. This 
statement is contained in the Economic Analysis and also the Benefits 
Analysis for the rule. These support documents are contained in the 
record. In addition, EPA has determined that the rules contain no 
regulatory requirements that might significantly or uniquely affect 
small governments. Thus, today's rules are not subject to the 
requirements of section 203 of the UMRA. Additional information that 
supports this finding is provided below.
    A detailed discussion of the objectives and legal basis for the 
proposed CAFO regulations is presented in Sections I and III of the 
preamble. A consent decree with the Natural Resources Defense Council 
established a deadline of December 2000 for EPA to propose effluent 
limitations for this industry.
    EPA prepared several supporting analyses for the final rules. 
Throughout this preamble and in those supporting analyses, EPA has 
responded to the UMRA section 202 requirements. Costs, benefits, and 
regulatory alternatives are addressed in the Economic Analysis and the 
Benefits Analysis for the rule. These analyses are summarized in 
Section X and Section XI of this preamble. The results of these 
analyses are summarized below.
    EPA prepared a qualitative and quantitative cost-benefit assessment 
of the Federal requirements imposed by today's final rules. In large 
part, the private sector, not State, local and tribal governments, will 
incur the costs of the proposed regulations. Under the two-tier 
structure, total annualized compliance costs to industry are projected 
at $831 million (pre-tax)/$572 million (post-tax). The cost to off-site 
recipients of CAFO manure is estimated at $10 million per year. Under 
the three-tier structure, costs to industry are estimated at $930 
million per year (pre-tax)/$658 million (post-tax), and the annual cost 
to off-site recipients of manure is estimated at $11 million. This 
analysis is summarized in Section X.E.1 of this preamble.
    Authorized States are expected to incur costs to implement the 
standards, but these costs will not exceed the thresholds established 
by UMRA. Under the two-tier structure, State and Federal administrative 
costs to implement the permit program are estimated to be $6.2 million 
per year: $5.9 million for States and $350,000 for EPA. Under the 
three-tier structure, State and Federal administrative costs to 
implement the permit program are estimated by EPA at $7.7 million per 
year, estimated at $7.3 million for States and $416,000 for EPA. This 
analysis is summarized in Section X.G.1 of this preamble. More detailed 
information is provided in the Economic Analysis. The Federal resources 
(i.e., water pollution control grants) that are generally available for 
financial assistance to States are included in Section 106 of the Clean 
Water Act. There are no Federal funds available to defray the costs of 
this rule on local governments. Since these rules do not affect local 
or tribal governments, they will not result in significant or unique 
impacts to small governments.
    Overall, under the two-tier structure, the projected total costs of 
the proposed regulations are $847 million annually. Under the three-
tier structure, total social costs are estimated at $949 million 
annually.
    The results of EPA's economic impact analysis show that the 
percentage of operations that would experience financial stress under 
each of the proposed tier structures represent 7 percent of all 
affected CAFOs (Section X.F.1). This analysis is conducted without 
taking into account possible financial assistance to agricultural 
producers that could offset the estimated compliance costs to CAFOs to 
comply with the proposed regulations, thus mitigating the estimated 
impacts to these operations. Federal programs, such as USDA's 
Environmental Quality Incentives Program (EQIP), and other State and 
local conservation programs provide cost-share and technical assistance 
to farmers and ranchers who install structural improvements and 
implement farm management practices, including many of the requirements 
that are being proposed today by EPA. EQIP funds are limited to 
livestock and poultry operations with fewer than 1,000 animal units 
(AUs), as defined by USDA, but could provide assistance to operations 
with less than 1,000 AU as well as to some larger operations in the 
poultry and hog sectors.
[[<strong>Page</strong> 3129]]
    EPA also conducted an analysis that predicts and quantifies the 
broader market changes that may result due to compliance. This analysis 
examines changes throughout the economy as impacts are absorbed at 
various stages of the food marketing chain. The results of this 
analysis show that consumer and farm level price changes will be 
modest. This analysis is summarized in Section X.F.3.
    EPA does not believe that there will be any disproportionate 
budgetary effects of the rules on any particular area of the country, 
particular types of communities, or particular industry segments. EPA's 
basis for this finding with respect to the private sector is addressed 
in Section 5 of the Economic Analysis based on an analysis of community 
level impact, which is summarized in Section X.G.2 of the preamble. EPA 
considered the costs, impacts, and other effects for specific regions 
and individual communities, and found no disproportionate budgetary 
effects. EPA's basis for this finding with respect to the public sector 
is available in the record.
    The proposed mandate's benefits are primarily in the areas of 
reduced health risks and improved water quality. The Benefits Analysis 
supporting the rulemaking describes, qualitatively, many such benefits. 
The analysis then quantifies a subset of the benefits and, for a subset 
of the quantified benefits, EPA monetizes (i.e., places a dollar value 
on) selected benefits. EPA's estimates of the monetized benefits of the 
proposed regulations are estimated to range from $146 million to $165 
million under the two-tier structure. Under the three-tier structure, 
estimated benefits range from $163 million to $182 million annually. 
This analysis is summarized in Section XI of this preamble.
    EPA consulted with several States during development of the 
proposed rules. Some raised concerns that the national rule would have 
workload and cost implications for the State. Some States with 
implementation programs underway or planned want to have their programs 
satisfy the requirements of the proposed rule. Other States expressed 
concerns about the loss of cost-share funds to AFOs once they are 
designated as point sources. There were additional comments regarding 
inconsistencies with the Unifed Strategy. See Section IX.A for a 
discussion of alternative State programs, Section X.G for a discussion 
of State costs and the workload analysis, Sections III.D and VII.B for 
a discussion of consistency with the AFO Strategy, and Section IX.E for 
a discussion of cost-share funds.
    For the regulatory decisions in today's rules (allowing for the 
options reflected by the co-proposal), EPA has selected alternatives 
that are consistent with the requirements of UMRA in terms of cost, 
cost-effectiveness, and burden. The proposal is also consistent with 
the requirements of the CWA. This satisfies section 205 of the UMRA. As 
part of this rulemaking, EPA had identified and considered a reasonable 
number of regulatory alternatives. (See Section VII for NPDES Scenarios 
and Section VIII for effluent guidelines technology options). Section 
X.E compares the costs across these alternatives. Section X.H provides 
a cost-effectiveness analysis that shows that the proposed BAT Option 
is the most cost-effective of these alternatives. Sections VII and VIII 
of the preamble are devoted to describing the Agency's rationale for 
each regulatory decision. Section IV of this document further 
summarizes EPA's rationale for revising the existing regulations.
D. Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks''
    Executive Order 13045 (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 and 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 proposed rule is subject to E.O. 13045 because it is an 
economically significant regulatory action as defined by E.O. 12866, 
and we believe that the environmental health or safety risks addressed 
by this action have or may have disproportionate effects on children. 
Accordingly, we have evaluated, to the extent possible, the 
environmental health or safety effects of pollutants from CAFOs on 
children. The results of this evaluation are contained in sections V.C 
and XI.B of the preamble as well as the Environmental Assessment and 
Benefits Assessment (these documents have been placed in the public 
docket for the rule).
    The Agency believes that the following pollutants have or may have 
a disproportionate risk to children: nitrates, pathogens, trace metals 
such as zinc, arsenic, copper, and selenium, pesticides, hormones, and 
endocrine disruptors. These health risks are summarized in Section V.C 
and described in detail in the Environmental Assessment. With the 
exception of nitrates in drinking water, the Agency has very little of 
the detailed information necessary to conduct an assessment of these 
risks to children for these pollutants. The Agency solicits risk and 
exposure data and models that could be used to characterize the risks 
to children's health from CAFO pollutants.
    There is evidence that infants under the age of six months may be 
at risk from methemoglobinemia caused by nitrates in private drinking 
water wells, typically when ingesting water with nitrate levels higher 
than 10 micrograms/liter. The Agency only has enough information to 
determine that a chronic dose of 10 micrograms/liter may cause an 
adverse health effect, but there is no dose-response function for 
nitrates, nor does the Agency have other information necessary to 
conduct a detailed health risk assessment (for example, the actual 
number of cases of methemoglobinemia are not reported and are thus 
highly uncertain). Instead, the Agency has estimated the reduction in 
the number of households that will be exposed to drinking water with 
nitrate levels above 10 micrograms/liter in Chapter 8 of the Benefits 
Assessment (noting that the Agency does not have information on the 
number of households exposed to nitrates that also have infants). The 
Agency assumes that nitrate levels lower than 10 micrograms/liter pose 
no risk of methemoglobinemia.
    The Agency estimates that there are approximately 13.5 million 
households with drinking water wells in counties with animal feeding 
operations. Of these, the Agency estimates that approximately 1.3 
million households are exposed to nitrate levels above 10 micrograms/
liter. The Agency further estimates that approximately 166,000 
households would have their nitrate levels brought below 10 micrograms/
liter under the two-tier structure. Approximately 161,000 households 
would have their nitrate levels brought below 10 micrograms/liter under 
the three-tier structure. Furthermore, the Agency estimates that 
options more stringent than those proposed would have small incremental 
changes in pollutant loadings to groundwater (see the Technical 
Development Document). Thus, the Agency expects the number of 
additional households protected from nitrate levels greater than 10 
micrograms/liter would be negligible under more stringent options. The 
Agency therefore does not believe that requirements more stringent than 
those
[[<strong>Page</strong> 3130]]
proposed would provide meaningful additional protection of children's 
health risks from methemoglobinemia. Furthermore, the Agency is only 
able to regulate groundwater quality through NPDES permits if there is 
a direct hydrologic connection to surface water (see Section 
VII.C.2.j).
    Methemoglobinemia is only one children's health risk caused by CAFO 
pollutants, as discussed above, in Section V.C, and elsewhere in the 
record. It was the only risk to children's health which the Agency was 
able to quantify (if incompletely) in any way. The options considered 
by the Agency, as well as the rationale for the proposed options, are 
discussed in detail in Sections VII and VIII of this preamble. To the 
extent possible under the authority of the CWA, EPA chose options that 
were protective of environmental and human health, including children's 
health. These option selections were based on the best risk assessments 
possible given the limited data available. The public is invited to 
submit or identify peer-reviewed studies and data, of which the Agency 
might not be aware that assessed results of early life exposure to 
nitrates or any other pollutant discharged by CAFOS.
E. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments
    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments nor imposes substantial direct 
compliance costs on them. First, there are currently no tribal 
governments that have been authorized to issue NPDES permits. Thus, 
there will be no burden to tribal governments. Second, few CAFO 
operations are located on tribal land. Therefore, compliance costs to 
tribal communities will not be significant. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.
    However, EPA has let tribal communities know about this rulemaking 
through a presentation of potential rule changes at the National 
Environmental Justice Advisory Committee meeting in Atlanta in June, 
2000 and through notices in tribal publications.
F. 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. An 
Information Collection Request (ICR) document has been prepared by EPA 
(ICR No. 1989.01) and a copy may be obtained from Sandy Farmer by mail 
at Collection Strategies Division; U.S. Environmental Protection Agency 
(2822); 1200 Pennsylvania Ave., NW, Washington, DC 20460, by email at 
<A HREF="mailto:farmer.sandy@epamail.epa.gov">farmer.sandy@epamail.epa.gov</A>, or by calling (202) 260-2740. A copy may 
also be downloaded off the internet at <A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.epa.gov/icr">http://www.epa.gov/icr</A>.
    Today's proposed rule would require all animal feeding operations 
(AFOs) that meet the proposed CAFO definition to apply for a permit and 
develop a certified permit nutrient plan and to implement that plan. 
Implementation of the plan includes the cost of recording animal 
inventories, manure generation, field application of manure and other 
nutrients (amount, rate, method, incorporation, dates), manure and soil 
analysis compilation, crop yield goals and harvested yields, crop 
rotations, tillage practices, rainfall and irrigation, lime 
applications, findings from visual inspections of feedlot areas and 
fields, lagoon emptying, and other activities on a monthly basis. 
Records may include manure spreader calibration worksheets, manure 
application worksheets, maintenance logs, and soil and manure test 
results.
    The average annual burden for this rule covering both the private 
and public sector for the three-tiered option is 1.6 million hours and 
$37 million annually; for the two-tiered option, burden is 1.2 million 
hours annually at $29 million annually. These values do not account for 
State programs that may already be requiring some of the recordkeeping 
and reporting requirements already. Thus, this burden would be an 
overestimate to the degree that some States already require such 
actions.
    For the three-tiered structure, the average annual CAFO burden is 
estimated to be 80 hours with the frequency of responses based on 
requirements ranging from two times per year to once every five years. 
There are 19,519 likely CAFO respondents and 28 states. Under this 
scenario, the state annual average burden is estimated at 3,214 hours. 
The average annual operation and maintenance costs are estimated at 
$4.3 million for CAFOs and $60,000 for States; labor costs are 
estimated at $28.9 million for CAFOs and $2.6 million for States; 
capital costs are estimated at $1.6 million for CAFOs and $0.0 for 
States.
    For the two-tiered structure, CAFO average annual burden per 
respondent is 81 hours and the State burden is 2,500 hours. There are 
15,015 likely CAFO respondents and 28 states. The 28 state count is an 
average over three years assuming that half the delegated states will 
have a program established in year one, half in year 2 and all in year 
three. Average annual operation and maintenance costs are $3.3 million 
for CAFOs and $60,000 for States; labor costs are $22.6 million for 
CAFOs and $2.0 million for States; capital costs are $1.3 million for 
CAFOs and $0.0 for States.
    The burden required for this rulemaking will allow EPA to determine 
whether a CAFO operator is monitoring his waste management system in an 
environmentally safe way. This data will be used to assess compliance 
with the rule and help determine enforcement cases. The Permit Nutrient 
Plan data requirements ensure that the CAFO owner has established the 
appropriate application rate for their fields on which they spread 
manure; is providing adequate operation and maintenance for the storage 
area and feedlot, and is meeting the requirements to keep agriculture 
waste out of the Nation's waters. The information requested herein is 
mandatory (33 U.S.C. 1318 (Section 308 of the Clean Water Act)). Twqhe 
Agency is requesting comment in this proposal on how much, if any of 
this information should be confidential business information.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, disclose or provide 
information to or for a Federal
[[<strong>Page</strong> 3131]]
agency. Burden estimates include 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. Additional burden has been 
estimated for off-site recipients who must certify that they are 
applying manure in an appropriate manner.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless the collection form 
displays a currently valid OMB control number. The OMB control numbers 
for EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 
15.
    Comments are requested on the Agency's need for this information, 
the accuracy of the provided burden estimates, and any suggested 
methods for minimizing respondent burden, including through the use of 
automated collection techniques. Send comments on the ICR to the 
Director, Collection Strategies Division; U.S. Environmental Protection 
Agency (2822); 1200 Pennsylvania Ave., NW, Washington, DC 20460; and to 
the Office of Information and Regulatory Affairs, Office of Management 
and Budget, 725 17th St., N.W., Washington, DC 20503, marked 
``Attention: Desk Officer for EPA.'' Include the ICR number in any 
correspondence. Since OMB is required to make a decision concerning the 
ICR between 30 and 60 days after [January 12, 2001 Federal Register], a 
comment to OMB is best assured of having its full effect if OMB 
receives it by February 12, 2001. The final rule will respond to any 
OMB or public comments on the information collection requirements 
contained in this proposal.
G. 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.''
    This proposed rule does not have Federalism implications. It will 
not have substantial direct effects on the States, on this 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 $6.0 million. EPA 
does not consider an annual impact of $6 million on States 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.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy, EPA consulted with representatives of State and local 
governments in developing this proposed rule. EPA sent a summary 
package outlining the proposed changes to the State and local 
associations that represent elected officials including the National 
Governor's Association, National Conference of State Legislators, U.S. 
Conference of Mayors, Council of State Governments, International City/
County Management Association, National Association of Counties, 
National Association of Towns and Townships, and County Executives of 
America. In addition, as discussed in Section XII.F., there was State 
representation on the CAFO Regulation Workgroup.
    EPA received four responses from these national associations, the 
National Governor's Council, the National League of Cities, the 
National Council of State Legislators and the National Association of 
Conservation Districts. EPA also received a letter from the Governor of 
Delaware and the Delaware Congressional delegation. The National 
Governor's Association (NGA), the National League of Cities (NLC) and 
the National Association of Conservation Districts (NACD) disagree with 
EPA's assessment that the rule would have minimal impact on the States. 
Except for this issue, the NLC supported the rule package especially 
the coverage of poultry and immature animals, the clarification of 
stormwater runoff exemptions, the lower threshold, and the seven 
strategic issues EPA listed to address pollution from animal feeding 
operations. NLC encouraged EPA to exercise its authority to issue NPDES 
permits where a delegated State has not taken appropriate action.
    NGA and Delaware want the flexibility to design functionally 
equivalent programs. NGA and NACD expressed concern regarding lowering 
the threshold as this would bring in more entities to be permitted and 
the States already have a permit backlog. In addition, they are 
concerned that 319 and EQIP funds will no longer be available to 
operations that are defined as CAFOs. Another concern is the 
elimination of the 25 year/24 hour exemption. NGA comments address the 
burden on the State permitting authority (backlog issue) and the 
unfairness of facilities that work with states to eliminate discharges 
would still have to get a permit. On the issue of adequate public 
involvement in general permits as well as the site specific 
requirements of the Effluent Limitation Guideline, NGA is concerned the 
advantage of general permits as a time saver for the states may be 
lost. In response to NGA's concerns, EPA met with NGA and discussed the 
package and its potential impacts. EPA, also upon request, met with the 
National Association of State Legislators to review the package and 
answer their questions. (See Section IX for discussion of alternative 
State programs. See Section VII.B for a discussion of rule scope. See 
Section X.G for costs to permitting authorities. See Section VII.C for 
discussion of the 25 year/24 hour storm exemption. See Section VII.E 
for discussion of public involvement.)
    The primary concern raised by the States represented on the CAFO 
Regulation Workgroup was to clarify and simplify the rules to make them 
more understandable and easier to implement. Many of the proposed 
changes were made with this objective in mind. Also, the States wanted 
EPA to accept functionally equivalent State programs. To address this 
concern, as stated in the Joint Unified USDA/EPA AFO Strategy (see 
``Strategic Issue #3''), where a State can demonstrate that its program 
meets the requirements of an NPDES program consistent with 40 CFR Part 
123, EPA is proposing to amend the current NPDES authorization to 
recognize the State program. In addition, States were concerned about 
the cost of implementing any changes to the program. EPA believes the 
costs to the States for implementing this
[[<strong>Page</strong> 3132]]
proposed rule will not be high. EPA is assuming that all States will 
adopt the sample general permit. Some States already have a general 
permit that would just need to be modified.
    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.
H. Executive Order 12898: ``Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations''
    The requirements of the Environmental Justice Executive Order are 
that* * *'' EPA will * * * review the environmental effects of major 
Federal actions significantly affecting the quality of the human 
environment. For such actions, EPA reviewers will focus on the spatial 
distribution of human health, social and economic effects to ensure 
that agency decisionmakers are aware of the extent to which those 
impacts fall disproportionately on covered communities.'' EPA has 
determined that this rulemaking is economically significant. However, 
the Agency does not believethis rulemaking will have a disproportionate 
effect on minority or low income communities. The proposed regulation 
will reduce the negative affects of CAFO waste in our nation's waters 
to benefit all of society, including minority communities.
    The National Environmental Justice Advisory Committee (NEJAC) 
submitted a set of recommendations to EPA regarding CAFOs that included 
recommendations to be addressed in revisions to EPA's regulations for 
CAFO's. Each recommendation is addressed below.
    The NEJAC recommended that EPA ``promulgate new, effective 
regulations that set uniform, minimum rules for all AFOs and CAFOs in 
the United States.'' In response, EPA believes that today's proposed 
rule revisions would represent new, uniform and effective requirements 
for CAFOs (AFOs by definition are not point sources and so would not be 
subject to today's proposed CAFO rules).
    The Committee requested that EPA impose a zero discharge standard 
on runoff from land application of CAFO wastes. For the reasons 
described in section VIII. C.3., BAT Options Considered, of today's 
notice, EPA believes it is not appropriate to set a technology-based 
standard at this level with respect to land application runoff.
    NEJAC requested that EPA prohibit or restrict the siting of 
facilities in certain areas such as flood plains. Siting of private 
industry is primarily a local issue and should be addressed at the 
local level. Discharge limitations proposed today should, however, 
discourage operators from locating in flood plains. Proposed 
requirements for swine, veal and poultry CAFOs would require no 
discharge under any circumstances. Beef and dairy CAFOs would have to 
comply with zero discharge except in the event of a chronic or 
catastrophic storm which exceeds the 25 year, 24 hour storm. If 
existing operations are located in flood plains it is in their best 
interest to divert uncontaminated storm water away from their 
production area to avoid inundation of the production area and 
potential breaching of their manure storage system during flood events. 
EPA proposes to prohibit manure application to crop or pasture land 
within 100 feet of surface waters, tile intake structures, agricultural 
drainage wells, and sinkholes which will also minimize the risk of 
discharge under flood conditions.
    NEJAC requested monitoring requirements in the rule. EPA has 
proposed an appropriate set of monitoring requirements to be included 
in CAFO permits (See section XIII of today's notice).
    NEJAC also requested public notification of the construction or 
expansion of CAFOs or issuance of permits. Under today's proposed 
rules, EPA would require individual permits, which are subject to 
individual public notice and comment, for facilities that are located 
in an environmentally sensitive area; have a history of operational or 
compliance problems; are an exceptionally large or significantly 
expanding facility; or where the Director is aware of significant 
public concern about water quality impacts from the CAFO. For all other 
facilities that are to be covered by general permits, for purposes of 
public notice, today's proposal would require the permitting authority 
to publish on a quarterly basis its receipt of Notices of Intent (NOIs) 
submitted by CAFOs.
    NEJAC further recommended that EPA require States and tribes to 
develop inspection programs that allow unannounced inspections of all 
CAFOs and to make these programs available for public comment. This 
concern is already addressed by existing Clean Water Act requirements. 
Specifically, under the Act, EPA may conduct unannounced inspections, 
and States must have the authority to inspect to the same extent as 
EPA. Although there is no specific requirement that State inspection 
plans be made publicly available, they may be available under State 
law.
    NEJAC requested that EPA require the adoption of non-lagoon 
technology. Section XIII of today's notice describes the control 
technologies that EPA has investigated and which ones EPA proposes to 
identify in these regulations as the best available technologies. As 
described in Section XIII, this proposal finds that it would not be 
appropriate to prohibit the use of lagoon technologies.
    NEJAC recommended requiring States and tribes to implement 
remediation programs for phased-out CAFO operations. In today's 
proposed rule, EPA proposes to require a CAFO to remain under permit 
coverage until it no longer has the potential to discharge manure or 
associated wastewaters.
    Finally, NEJAC recommended that EPA impose stringent penalties on 
violating facilities. The Clean Water Act provides authority to subject 
violators to substantial penalties. The issue of which penalties are 
appropriate to impose in individual situations is beyond the scope of 
this rulemaking.
I. National Technology Transfer and Advancement Act
    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) of 1995, (Pub. L. No. 104-113 Sec. 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 the Office of Management and Budget (OMB), 
explanations when the Agency decides not to use available and 
applicable voluntary consensus standards.
    This rulemaking involves technical standards. The rule requires 
operations defined as CAFOs in the beef and dairy subcategories to 
monitor groundwater for total dissolved solids (TDS), total chlorides, 
fecal coliform, total coliform, ammonia-nitrogen and TKN. EPA performed 
a search to identify potentially voluntary consensus standards that 
could be used to measure the analytes in today's proposed guideline. 
EPA's search revealed that consensus standards exist and are already 
specified in the tables at 40 CFR Part 136.3 for measurement of many of 
the analytes. All pollutants in today's proposed rule have voluntary 
consensus
[[<strong>Page</strong> 3133]]
methods. EPA welcomes comments on this aspect of the proposed 
rulemaking and, specifically, invites the public to identify 
potentially-applicable voluntary consensus standards and to explain why 
such standards should be used in this regulation.
XIV. Solicitation of Comments
A. Specific Solicitation of Comment and Data
    EPA solicits comments on all aspects of today's proposal. In 
addition, throughout this preamble, EPA has solicited specific comments 
and data on many individual topics. The Agency reiterates its interest 
in receiving comments and data on the following issues:
    1. EPA solicits comment on the use of a two tier structure based on 
lowering the existing 1,000 animal unit threshold to 500 for 
determining which AFOs are defined as CAFOs, and the elimination of the 
existing 300 to 1,000 animal unit category. EPA also solicits comment 
on the effect of a 500 AU threshold on the horse, sheep, lamb and duck 
sectors, as well as on the use of a 750 animal unit threshold for all 
sectors.
    2. EPA solicits comment on the use of a three tier structure, 
including the proposed criteria that could result in an AFO in the 
middle Group being defined as a CAFO and on whether to use different 
criteria that provide more flexibility than those in today's proposal.
    3. EPA solicits comment on revising the requirements for 
designation to eliminate the direct contact and man-made device 
criteria from the designation requirements of the CAFO regulations, and 
allow the designation of CAFOs by EPA in States with NPDES authorized 
programs. EPA also solicits comment on whether or not to eliminate the 
``on-site'' requirement for conducting inspections and, instead, allow 
other forms of site-specific information gathering to be used.
    4. EPA solicits comment on its proposal to clarify the definition 
of an AFO to clearly distinguish feedlots from pasture land and clarify 
coverage of winter feeding operations.
    5. EPA solicits comment on eliminating the use of the term ``animal 
unit'' or AU and the mixed animal calculation in determining which AFOs 
are CAFOs.
    6. EPA solicits comment on removing the 25-year, 24-hour storm 
event exemption from the definition of a CAFO.
    7. EPA solicits comment on the proposal to remove the limitation on 
the type of manure handling or watering system employed at poultry 
operations (i.e., subjecting dry poultry operations to the CAFO 
regulations). With regard to a two tier structure, EPA solicits comment 
on establishing the threshold for poultry operations at 50,000 birds or 
greater.
    8. EPA solicits comment on including immature swine and dairy 
cattle, or heifers, when confined apart from the dairy, for purposes of 
defining potential CAFOs. With regard to a two tier structure, EPA 
solicits comment on establishing the threshold limit for immature swine 
(weighing 55 pounds or less) at 5,000.
    9. EPA solicits comment on requiring, under a two tier structure, 
all CAFOs to apply for a NPDES permit and issuing permits to those 
operations that cannot demonstrate they have no potential to discharge 
pollutants.
    10. EPA solicits comment on requiring, under a three tier 
structure, all AFOs from 300 AU to 1000 AU to certify they do not meet 
threshold conditions, receive a determination they have no potential to 
discharge, or apply for a permit.
    11. EPA solicits comments on the proposed co-permitting provisions 
and the factors for determining substantial operational control. EPA 
solicits comment on whether there are additional factors that indicate 
substantial operational control which should be included in the 
regulation. EPA also requests comment on how to structure the co-
permitting provisions of the rulemaking to achieve the intended 
environmental outcome without causing negative impacts on growers. EPA 
requests comments on its cost passthrough assumptions in general and as 
they relate to the analysis of processor level impacts under the 
proposed co-permitting requirements.
    12. EPA solicits comment on addressing discharges to ground water 
with a direct hydrological connection to surface water. EPA requests 
comment on how a permit writer might identify CAFOs at risk of 
discharging to surface water via ground water. EPA is also requesting 
comment on the proposal to place the burden on the permit applicant to 
provide a hydrologist's statement when rebutting the presumption that a 
CAFO has potential to discharge to surface water via direct 
hydrological connection with ground water. EPA solicits comment on the 
assumption that 24 percent of the affected operations have a hydrologic 
connection to surface waters.
    13. EPA solicits comment on the definition of CAFO including the 
production area and land application area, and on the proposed 
requirements that would subject land application to specified permit 
requirements.
    14. EPA solicits comment on defining the agricultural storm water 
discharge exemption to apply only to those discharges which occurred 
despite the implementation of all the practices required by today's 
proposal at CAFO land application areas. EPA also requests comments on 
the alternative applications of the agricultural storm water discharge 
exemption discussed.
    15. EPA solicits comment on requiring a certification from off-site 
recipients of CAFO-generated manure that such manure is being land 
applied according to proper agricultural practices or, the alternative 
of tracking such off-site transfers through record keeping and 
providing information to the recipients regarding proper management.
    16. EPA solicits comment on restricting the land application of 
manure to those conditions where it serves an agricultural purpose and 
does not result in pollutant discharges to waters of the U.S. 
(potentially including prohibiting land application at certain times or 
using certain methods).
    17. EPA solicits comment on requiring CAFO operators to develop and 
implement a PNP for managing manure and wastewater at both the 
production area and land application area.
    18. EPA invites comment on today's proposal to define PNPs as the 
effluent guideline subset of elements addressed in the CNMP. EPA is 
especially interested in knowing whether PNP is the best term to use to 
refer to the regulatory components of the CNMP, and whether EPA's 
explanation of both the differences and relationship between these two 
terms (PNP and CNMP) is clear and unambiguous. EPA is also soliciting 
comments on whether a PNP with the addition of erosion control 
practices would be sufficient additional controls to prevent runoff. 
EPA further requests comment on the proposal to require that PNPs be 
developed, or reviewed and modified, by certified planners, as well as 
on conditions, such as no changes to the crops, herd or flock size, 
under which rewriting the PNP would not be necessary and therefore, 
would not require the involvement of a certified planner.
    19. EPA requests comment on the public availability of PNPs, 
including whether it is proper to determine that the PNPs must be 
publicly available under CWA Section 402(j) and under CWA Section 308 
as ``effluent data,'' or whether only a portion of PNP information 
should be publically
[[<strong>Page</strong> 3134]]
available. EPA solicits comment on today's proposal that the operator 
of a permitted CAFO must make a copy of the PNP cover sheet and 
executive summary available for public review. EPA is also requesting 
comment on whether CAFOs should be able to claim these elements of the 
PNP as confidential business information and withhold those elements of 
the PNP from public review on that basis, or alternately, that whether 
other portions of the PNP should be made available as well. EPA also 
requests comment on the proposal to require new facilities seeking 
coverage under a general permit, as well as applicants for individual 
permits, to submit a copy of the PNP to the permit authority along with 
the NOI or permit application, and whether, for individual permits, the 
PNP should be part of the public notice and comment process along with 
the permit.
    20. EPA is requesting public comment on the suitability of 
requiring erosion control as a special condition of a NPDES permit to 
protect water quality from sediment eroding from fields where CAFO 
manure is applied to crops. If erosion control is desirable, EPA is 
soliciting comment as to which approach would be the most cost-
efficient. EPA solicits comment and data on the costs and benefits of 
controlling erosion and whether erosion control should be a required 
component of PNPs.
    21. EPA solicits comment on requiring an operator of a permitted 
CAFO that ceases to be a CAFO to maintain permit coverage until his or 
her facility is properly closed.
    22. EPA requests comment on whether the procedures discussed 
regarding general permits are adequate to ensure public participation 
or whether individual permits should be required for any of the 
categories of facilities discussed above. Specifically, EPA requests 
comment on whether individual permits should be required for (a) 
Facilities over a certain size threshold; (b) all new facilities; (c) 
facilities that are significantly expanding; (d) facilities that have 
historical compliance problems; or (e) operations that are located in 
areas with significant environmental concerns.
    23. EPA solicits comment on the applicability of the proposed 
revised effluent limitations guidelines, including the thresholds under 
the two tier and three tier structure, the inclusion of veal production 
as a new subcategory, and the changes regarding applicability to 
chickens, mixed animals, and immature swine and dairy. EPA also 
requests comment on another three-tier option for defining a CAFO under 
which the effluent guidelines proposed today would not be applicable to 
facilities with 1,000 AU or less.
    24. EPA solicits comment on the proposed revised effluent 
limitations guidelines for CAFOs, specifically today's proposed 
requirements on the land application of manure and wastewater. EPA 
solicits comment on the proposal to allow States to establish the 
appropriate phosphorus-based method to be used as the basis for the 
land application rate at CAFOs.
    25. EPA requests comment on its analysis and on its proposed 
determination that Option 3 is economically achievable as BAT for the 
beef and dairy sectors. In addition, consistent with its intention at 
the time of the SBREFA outreach process, EPA requests comment on 
retaining the 25-year, 24-hour storm design standard (and thus basing 
BAT on Option 2) for the swine, veal and poultry subcategories.
    26. EPA solicits comment on the assumptions used for estimating the 
compliance cost impacts for feedlots to implement each of the model 
technologies considered for the proposed standards. EPA also solicits 
comment on the proposal's impact on small businesses.
    27. EPA solicits comment on the new source option for dairies that 
would prohibit any wastewater discharge from the production area. 
Specifically whether this option is technically feasible, since it 
assumes that all animals in confinement will be maintained under roof.
    28. EPA solicits comment on establishing BAT requirements on 
pathogens. Specifically on the appropriate technologies that will 
reduce pathogens and the estimated cost for these technologies.
B. General Solicitation of Comment
    EPA encourages public participation in this rulemaking. EPA asks 
that comments address any perceived deficiencies in the record 
supporting this proposal and that suggested revisions or corrections be 
supported by data.
    EPA invites all parties to coordinate their data collection 
activities with the Agency to facilitate mutually beneficial and cost-
effective data submissions. Please refer to the FOR FURTHER INFORMATION 
section at the beginning of this preamble for technical contacts at 
EPA.
List of Subjects
40 CFR Part 122
    Administrative practice and procedure, confidential business 
information, Hazardous substances, Reporting and recordkeeping 
requirements, water pollution control.
40 CFR Part 412
    Environmental protection, Feedlots, livestock, waste treatment and 
disposal, Water pollution control.
    Dated: December 15, 2000.
Carol M. Browner,
Administrator.
    For the reasons set out in the preamble title 40, chapter I 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. Amend Sec. 122.21 by adding paragraphs (i)(1)(iv) through (ix) 
to read as follows:
Sec. 122.21  Application for a permit (applicable to State programs, 
see Sec. 123.25).
* * * * *
    (i) * * *
    (1) * * *
    (iv) Either a copy of the cover sheet and executive summary of the 
permittee's current Permit Nutrient Plan that meet the criteria in 40 
CFR 412.37(b) and is being implemented, or draft copies of these 
documents together with a statement on the status of the development of 
its Permit Nutrient Plan. If the CAFO is subject to 40 CFR part 412 and 
draft copies are submitted, they must, at a minimum, demonstrate that 
there is adequate land available to the CAFO operator to comply with 
the land application provisions of part 412 of this chapter, if 
applicable, or describe an alternative to land application that the 
operator intends to implement.
    (v) Acreage available for application of manure and wastewater;
    (vi) Estimated amount of manure and wastewater that the applicant 
plans to transfer off-site;
    (vii) Name and address of any person or entity that owns animals to 
be raised at the facility, directs the activity of persons working at 
the CAFO, specifies how the animals are grown, fed, or medicated, or 
otherwise exercises control over the operations of the facility;
[[<strong>Page</strong> 3135]]
    (viii) Indicate whether buffers, setbacks or conservation tillage 
are implemented at the facility to control runoff and protect water 
quality; and
    (ix) Latitude and longitude of the CAFO, to the nearest second.
    3. Section 122.23 is revised to read as follows:
Sec. 122.23  Concentrated animal feeding operations (applicable to 
State NPDES programs, see Sec. 123.25).
    (a) Definitions applicable to this section: (1) For land on which 
manure from an animal feeding operation or concentrated animal feeding 
operation has been applied, the term ``agricultural storm water 
discharge'' means a discharge composed entirely of storm water, as 
defined in Sec. 122.26(a)(13), from a land area upon which manure and/
or wastewater has been applied in accordance with proper agricultural 
practices, including land application of manure or wastewater in 
accordance with either a nitrogen-based or, as required, a phosphorus-
based manure application rate.
    (2) An animal feeding operation or AFO is a facility where animals 
(other than aquatic animals) have been, are, or will be stabled or 
confined and fed or maintained for a total of 45 days or more in any 
12-month period. Animals are not considered to be stabled or confined 
when they are in areas such as pastures or rangeland that sustain crops 
or forage growth during the entire time that animals are present. 
Animal feeding operations include both the production area and land 
application area as defined below.
Option 1 for Paragraph (a)(3)
    (3) Concentrated animal feeding operation or CAFO means an AFO that 
either:
    (i) Confines a number of animals equal to or greater than the 
number specified in any one or more of the following categories. For 
the purposes of determining the number of animals at an operation, two 
or more AFOs under common ownership are considered to be a single AFO 
if they adjoin each other or if they use a common area or system for 
the disposal of wastes. Once an operation is defined as a CAFO, the 
requirements of this section apply with respect to all animals in 
confinement at the operation and all wastes and waste waters generated 
by those animals, regardless of the type of animal.
    (A) 350 mature dairy cattle;
    (B) 500 veal;
    (C) 500 cattle other than veal or mature dairy cattle;
    (D) 1,250 swine each weighing over 25 kilograms (approximately 55 
pounds);
    (E) 5000 swine each weighing less than 25 kilograms (approximately 
55 pounds);
    (F) 250 horses;
    (G) 5,000 sheep or lambs;
    (H) 27,500 turkeys;
    (I) 50,000 chickens; or
    (J) 2,500 ducks; or
    (ii) Is designated as a CAFO under paragraph (b) of this section.
Option 2 for Paragraph (a)(3):
    (3) Concentrated animal feeding operation or CAFO means an AFO 
which either is defined as a CAFO under paragraph (a)(3)(i) or (ii) of 
this section, or is designated as a CAFO under paragraph (b) of this 
section. Two or more AFOs under common ownership are considered to be a 
single AFO for the purposes of determining the number of animals at an 
operation, if they adjoin each other or if they use a common area or 
system for the disposal of wastes. Once an operation is defined as a 
CAFO, the requirements of this section apply with respect to all 
animals in confinement at the operation and all wastes and waste waters 
generated by those animals, regardless of the type of animal.
    (i) Tier 1 AFOs. An AFO is a CAFO if more than the numbers of 
animals specified in any of the following categories are confined:
    (A) 700 mature dairy cattle;
    (B) 1,000 veal;
    (C) 1,000 cattle other than veal or mature dairy cattle;
    (D) 2,500 swine each weighing over 25 kilograms (approximately 55 
pounds);
    (E) 10,000 swine each weighing less than 25 kilograms 
(approximately 55 pounds);
    (F) 500 horses;
    (G) 10,000 sheep or lambs;
    (H) 55,000 turkeys;
    (I) 100,000 chickens; or
    (J) 5,000 ducks.
    (ii) Tier 2 AFOs. (A) If the number of animals confined at the 
operation falls within the following ranges for any of the following 
categories, the operation is a Tier 2 AFO. A Tier 2 AFO is a CAFO 
unless it meets all of the conditions in paragraph (a)(3)(ii)(B) of 
this section and its operator submits to the Director a certification 
that it meets those conditions. The certification shall take the form 
specified in section 122.22(d).
    (1) 200 to 700 mature dairy cattle,
    (2) 300 to 1,000 veal,
    (3) 300 to 1,000 cattle other than veal or mature dairy cattle,
    (4) 750 to 2,500 swine each weighing over 25 kilograms 
(approximately 55 pounds),
    (5) 3,000 to 10,000 swine each weighing less than 25 kilograms 
(approximately 55 pounds),
    (6) 150 to 500 horses,
    (7) 3,000 to 10,000 sheep or lambs,
    (8) 16,500 to 55,000 turkeys,
    (9) 30,000 to 100,000 chickens, or
    (10) 1,500 to 5,000 ducks.
    (B) A Tier 2 AFO is not a CAFO if it meets all of the following 
conditions and its operator submits to the Director a certification 
that it meets the following conditions:
    (1) Waters of the United States do not come into direct contact 
with the animals confined in the operation;
    (2) There is sufficient storage and containment to prevent all 
pollutants from the production area from entering waters of the United 
States as specified in 40 CFR Part 412.
    (3) There has not been a discharge from the production area within 
the last five years;
    (4) No part of the production area is located within 100 feet of 
waters of the United States;
    (5) In cases where manure or process-generated wastewaters are land 
applied, they will be land applied in accordance with a Permit Nutrient 
Plan that includes the BMP requirements identified at 40 CFR 412.31(b) 
and 412.37; and
Option 2a for Paragraph (a)(3)(ii)(B)(6)
    (6) With respect to the off-site transfer of manure or process-
generated wastewaters to persons who receive 12 tons or more of manure 
or wastewater in any year, the owner or operator will first obtain 
assurances that, if the manure will be land applied, it will be applied 
in accordance with proper agriculture practices, which means that the 
recipient shall determine the nutrient needs of its crops based on 
realistic crop yields for its area, sample its soil at least once every 
three years to determine existing nutrient content, and not apply the 
manure in quantities that exceed the land application rates calculated 
using one of the methods specified in 40 CFR 412.31(b)(1)(iv); adequate 
assurances include a certification from the recipient, the fact that 
the recipient has a permit, or the existence of a State program that 
requires the recipient to comply with requirements similar to 40 CFR 
412.31(b). The owner or operator will provide the recipient of the 
manure with a brochure to be provided by the state permitting authority 
or EPA that describes the recipient's responsibilities for appropriate 
manure management.
Option 2b for Paragraph (a)(3)(ii)(B)(6)
    (6) With respect to manure or process-generated wastewaters that 
are
[[<strong>Page</strong> 3136]]
transferred off-site, the owner or operator will first provide the 
recipient of the manure with an analysis of its content and a brochure 
to be provided by the State permitting authority or EPA that describes 
the recipient's responsibilities for appropriate manure management.
    (4) The term land application area means any land under the control 
of the owner or operator of the production area whether it is owned, 
rented, or leased, to which manure and process wastewater from the 
production area is or may be applied.
    (5) The term operator, for purposes of this section, means:
    (i) An operator as that term is defined in Sec. 122.2; or
    (ii) A person who the Director determines to be an operator on the 
basis that the person exercises substantial operational control of a 
CAFO. Whether a person exercises substantial operational control 
depends on factors that include, but are not limited to, whether the 
person:
    (A) Directs the activity of persons working at the CAFO either 
through a contract or direct supervision of, or on-site participation 
in, activities at the facility;
    (B) Owns the animals; or
    (C) Specifies how the animals are grown, fed, or medicated.
    (6) The term production area means that part of the AFO that 
includes the animal confinement area, the manure storage area, the raw 
materials storage area, and the waste containment areas. The animal 
confinement area includes but is not limited to open lots, housed lots, 
feedlots, confinement houses, stall barns, free stall barns, milkrooms, 
milking centers, cowyards, barnyard, exercise yards, animal walkways, 
and stables. The manure storage area includes but is not limited to 
lagoons, sheds, liquid impoundments, static piles, and composting 
piles. The raw materials storage area includes but is not limited to 
feed silos, silage bunkers, and bedding materials. The waste 
containment area includes but is not limited to settling basins, and 
areas within berms, and diversions which separate uncontaminated storm 
water Also included in the definition of production area is any eggwash 
or egg processing facility.
    (b) Designation as a CAFO. The EPA Regional Administrator, or in 
States with approved NPDES programs, either the Director or the EPA 
Regional Administrator, may designate any AFO as a CAFO upon 
determining that it is a significant contributor of pollutants to the 
waters of the United States.
    (1) In making this designation, the Director or the EPA Regional 
Administrator shall consider the following factors:
    (i) The size of the AFO and the amount of wastes reaching waters of 
the United States;
    (ii) The location of the AFO relative to waters of the United 
States;
    (iii) The means of conveyance of animal wastes and process waste 
waters into waters of the United States;
    (iv) The slope, vegetation, rainfall, and other factors affecting 
the likelihood or frequency of discharge of animal wastes and process 
waste waters into waters of the United States; and,
    (v) Other relevant factors.
Option 1 for Paragraph (b)(2)
    (2) No AFO shall be designated under this paragraph (b) until the 
Director or the EPA Regional Administrator has conducted an on-site 
inspection of the operation and determined that the operation should 
and could be regulated under the permit program; except that no 
inspection is required to designate a facility that was previously 
defined or designated as a CAFO.
Option 2 for Paragraph (b)(2)
    (2) No AFO shall be designated under this paragraph (b) until the 
Director or the EPA Regional Administrator has conducted an on-site 
inspection of the operation and determined that the operation should 
and could be regulated under the permit program; except that no 
inspection is required to designate a facility that was previously 
defined or designated as a CAFO. In addition, no AFO with less than 300 
animal units may be designated as a concentrated animal feeding 
operation unless:
    (i) Pollutants are discharged into waters of the United States 
through a manmade ditch, flushing system, or other similar manmade 
device; or
    (ii) Pollutants are discharged directly into waters of the United 
States 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.
    (c) Who must apply for an NPDES permit? (1) All CAFOs must apply 
for a permit. For all CAFOs, the CAFO owner or operator must apply for 
an NPDES permit, except as provided in paragraph (c)(2) of this 
section. Specifically, the CAFO owner or operator must either apply for 
an individual NPDES permit or submit a notice of intent for coverage 
under a CAFO general permit. If the Director has not made a general 
permit available to the CAFO, the CAFO owner or operator must apply for 
an individual permit.
    (2) Exception. The CAFO owner or operator does not need to apply 
for an NPDES permit if the owner or operator has received from the 
Director a determination under paragraph (e) of this section that the 
CAFO has no potential to discharge.
    (3) Co-permitting. Any person who is an ``operator'' of a CAFO on 
the basis that the person exercises substantial operational control of 
a CAFO (see Sec. 122.23(a)(5)(ii)) must apply for a permit. Such 
operators may apply for an NPDES permit either alone or together as co-
permittees with other owners or operators of the CAFO.
    (d) In which case will the Director not issue an NPDES permit? The 
Director shall not issue an NPDES permit if the Director has determined 
that the CAFO has ``no potential to discharge'' pursuant to paragraph 
(e) of this section.
    (e) ``No potential to discharge'' determinations. (1) Determination 
by Director. The Director, upon request, may make a case-specific 
determination that a CAFO has no potential to discharge pollutants to 
waters of the United States. In making this determination, the Director 
must consider the potential for discharges from both the production 
area and any land application areas, and must also consider any 
potential discharges via ground waters that have a direct hydrologic 
connection to surface waters. For purposes of this subsection, the term 
``no potential to discharge'' means that there is no potential for any 
CAFO manure or waste waters to be added to waters of the United States, 
without qualification. For example, a CAFO may not claim that there is 
no potential to discharge even if the only pollutants that the CAFO has 
a potential to discharge would be exempt from NPDES requirements. A 
CAFO has a potential to discharge if it has had a discharge within the 
preceding five years.
    (2) Supporting information. In requesting a determination of no 
potential to discharge, the CAFO owner or operator must submit any 
supporting information along with the request. The Director has 
discretion to accept or reject any additional information that is 
submitted at a later date.
    (3) Requesting a ``no potential to discharge'' determination does 
not postpone the duty to apply for a permit. The owner or operator must 
apply for a permit according to the date specified in section (f) 
unless it has received a no potential to discharge determination before 
that date.
    (4) CAFO bears the risk of any actual discharge. Any unpermitted 
CAFO that discharges pollutants into the waters of the United States is 
in violation of the
[[<strong>Page</strong> 3137]]
Clean Water Act even if it has received a ``no potential to discharge'' 
determination from the Director.
    (f) By when must I apply for a permit for my CAFO? (1) For all 
CAFOs, the owner or operator of the CAFO must apply for an NPDES permit 
no later than [insert date that is three years after the date of 
publication of the final rule], except as provided in paragraphs (f)(2) 
through (6) of this section.
    (2) Operations that are defined as CAFOs prior to [insert date that 
is three years after the date of publication of the final rule]. For 
operations that are CAFOs under regulations that are in effect prior to 
[insert date that is three years after the date of publication of the 
final rule], the owner or operator must apply for an NPDES permit under 
40 CFR 122.21(a) within the time period specified in 40 CFR 122.21(c).
    (3) Operations that become CAFO new sources or new dischargers 
after [insert date that is three years after the date of publication of 
the final rule]. For operations that meet the criteria in 40 CFR 122.23 
for being defined as a CAFO for the first time after [insert date that 
is three years after the date of publication of the final rule], the 
owner or operator must apply for an NPDES permit 180 days prior to the 
date on which they first meet those criteria.
    (4) Operations that are designated as CAFOs. For operations for 
which EPA or the Director has issued a case-specific designation that 
the operation is a CAFO, the owner or operator must apply for a permit 
no later than 90 days after issuance of the designation.
    (5) Persons who are operators because they exercise ``substantial 
operational control'' over a CAFO. Persons who the Director determines 
to be operators because they exercise substantial operational control 
over a CAFO must apply for a permit within 90 days of the Director's 
determination.
    (6) No potential to discharge. Notwithstanding any other provision 
of this section, a CAFO that has received a ``no potential to 
discharge'' determination under paragraph (e) of this section is not 
required to apply for an NPDES permit.
    (g) Are AFOs subject to Clean Water Act requirements if they are 
not CAFOs? AFOs that are neither defined nor designated as CAFOs are 
subject to NPDES permitting requirements if they discharge the 
following from a point source:
    (1) Non-wet weather discharges: discharges from their production 
area or land application area that are not composed entirely of storm 
water as defined in Sec. 122.26(b)(13).
    (2) Wet weather discharges: discharges from their land application 
area that are composed entirely of storm water as defined in 
Sec. 122.26(b)(13), if the discharge has been designated under 
Sec. 122.26(a)(1)(v) as requiring an NPDES permit. Discharges may be 
designated under Sec. 122.26(a)(1)(v) if they are not agricultural 
storm water discharges as defined in Sec. 122.23(a)(1).
    (h) If I do not operate an AFO but I land apply manure, am I 
required to have a NPDES permit? If you have not been designated by 
your permit authority, you do not need a NPDES permit to authorize the 
discharge of runoff composed entirely of storm water from your manure 
application area. The land application of manure that results in the 
point source discharge of pollutants to waters of the United States may 
be designated pursuant to Sec. 122.26(a)(1)(v) as requiring a NPDES 
permit if the application is not in accordance with proper agriculture 
practices. Proper agricultural practices means that the recipient shall 
determine the nutrient needs of its crops based on realistic crop 
yields for its area, sample its soil at least once every three years to 
determine existing nutrient content, and not apply the manure in 
quantities that exceed the land application rates calculated using one 
of the methods specified in 40 CFR 412.31(b)(1)(iv).
    (i) What must be required in NPDES permits issued to CAFOs. Permits 
issued to CAFOs must require compliance with the following:
    (1) All other requirements of this part.
    (2) The applicable provisions of part 412.
    (3) Duty to Maintain Permit Coverage. No later than 180 days before 
the expiration of the permit, the permittee must submit an application 
to renew its permit. However, the permittee need not reapply for a 
permit if the facility is no longer a CAFO (e.g., where the numbers of 
confined animals has been reduced below the level that meets the 
definition of a CAFO) and the permittee has demonstrated to the 
satisfaction of the Director that there is no remaining potential for a 
discharge of manure or associated waste waters that were generated 
while the operation was a CAFO. With respect to CAFOs, this section 
applies instead of Secs. 122.21(d) and 122.41(b).
    (4) Co-permittees. In the case of a permit issued to more than one 
owner or operator of the CAFO, the permit may allocate to one of the 
permit holders the sole responsibility for any permit requirement, 
except that all permit holders must be jointly responsible for the 
management of manure in excess of what can be applied on-site in 
compliance with part 412
    (5) Permits issued to CAFOs that meet the applicability 
requirements of Subpart C (Beef and Dairy) or Subpart D (Swine, Poultry 
and Veal) of 40 CFR Part 412 shall also require compliance with 
paragraph (j) of this section.
    (6) Permits issued to CAFOs that do not meet the applicability 
requirements of Subpart C or Subpart D of 40 CFR Part 412 (including 
beef, dairy, swine, poultry or veal facilities not subject to those 
parts, and facilities with other types of animals) shall also require 
compliance with paragraph (k) of this section.
    (j) What must be required in NPDES permits issued to CAFOs that are 
subject to part 412, Subparts C (Beef and Dairy) and D (Swine, Poultry 
and Veal)? Permits issued to CAFOs that meet the applicability 
requirements of Subpart C or Subpart D of 40 CFR Part 412 must require 
compliance with all of the following:
    (1) Requirements to use the method in 40 CFR 412.31(b)(1)(iv) 
chosen by the Director to determine phosphorous field conditions and to 
determine appropriate manure application rates. The permit shall 
specify the factors to be considered and the analytical methods to be 
employed when determining those rates.
    (2) Prohibitions against or restrictions on applying manure to land 
during times and using methods which, in light of local crop needs, 
climate, soil types, slope and other factors, would not serve an 
agricultural purpose and would be likely to result in pollutant 
discharges to waters of the United States.
    (3) Requirement to notify the Director when the permittee's Permit 
Nutrient Plan has been developed or revised. Notification of the 
development of the permittee's initial Permit Nutrient Plan must be 
submitted no later than 90 days after the CAFO submits its NOI or 
obtains coverage under an individual permit. With the notice, the 
permittee shall provide a copy of the cover sheet and executive summary 
of the permittee's current Permit Nutrient Plan that has been developed 
under 40 CFR 412.37(b).
Option 1 for Paragraphs (j)(4) and (5)
    (4) Transfer of manure to other persons. The Director may waive the 
requirements of this paragraph if an enforceable state program subjects 
the recipient of CAFO wastes to land application requirements that are 
equivalent to the requirements in 40 CFR 412.31(b). The requirements of 
paragraph (f) of this section apply only to transfers to persons who 
receive 12
[[<strong>Page</strong> 3138]]
tons or more of wastes from the CAFO in any year. Prior to transferring 
manure and other wastes to other persons, the permittee shall:
    (i) Obtain from each intended recipient of the CAFO waste (other 
than haulers that do not land apply the waste) a certification that the 
recipient will do one of the following. The certification must contain 
a statement that the recipient understands that the information is 
being collected on behalf of the U.S. Environmental Protection Agency 
or State and that there are penalties for falsely certifying. The 
permittee is not liable if the recipient violates its certification;
    (A) Land apply the wastes in accordance with proper agriculture 
practices, which means that the recipient shall determine the nutrient 
needs of its crops based on realistic crop yields for its area, sample 
its soil at least once every three years to determine existing nutrient 
content, and not apply the manure in quantities that exceed the land 
application rates calculated using the method specified in 40 CFR 
412.31(b)(1)(iv) chosen by the Director;
    (B) Land apply the wastes in compliance with the terms of an NPDES 
permit that addresses for discharges from the land application area; or
    (C) Use the manure for purposes other than land application.
    (ii) Obtain from any commercial waste hauler the name and location 
of the recipient of the wastes, if known;
    (iii) Provide the recipient of the manure with an analysis of its 
content; and
    (iv) Provide the recipient of the manure with a brochure to be 
provided by the State permitting authority or EPA that describes the 
recipient's responsibilities for appropriate manure management.
    (5) Record keeping requirements. Requirements to keep, maintain for 
five years and make available to the Director or the Regional 
Administrator:
    (i) Records of the inspections and of the manure sampling and 
analysis required by 40 CFR 412.37(a);
    (ii) Records required by 40 CFR 412.37(e) related to the 
development and implementation of Permit Nutrient Plans required by 40 
CFR 412.37(b); and
    (iii) Records of each transfer of wastes to a third party, 
including date, recipient name and address, quantity transferred, an 
analysis of manure content and a copy of the certifications required by 
paragraph (j)(4) of this section. If the waste is transferred to a 
commercial waste hauler, records of where the hauler indicated it would 
take the waste, if known. If the waste is to be packaged as fertilizer, 
incinerated or used for a purpose other than direct land application, 
records of the analysis of the manure are not required.
Option 2 for Paragraphs (j)(4) and (5):
    (4) Transfer of manure to other persons. Prior to transferring 
manure and other wastes to other persons, the permittee shall:
    (i) Provide the recipient of the manure with an analysis of its 
content;
    (ii) Provide the recipient of the manure with a brochure to be 
provided by the State permitting authority or EPA that describes the 
recipient's responsibilities for appropriate manure management; and
    (iii) Obtain from any commercial waste hauler the name and location 
of the recipient of the wastes, if known.
    (5) Record keeping requirements. Requirements to keep, maintain for 
five years and make available to the Director or the Regional 
Administrator:
    (i) Records of the inspections and of the manure sampling and 
analysis required by 40 CFR 412.37(a);
    (ii) Records required by 40 CFR 412.37(e) related to the 
development and implementation of Permit Nutrient Plans required by 40 
CFR 412.37(b); and
    (iii) Records of each transfer of wastes to a third party, 
including date, recipient name and address, quantity transferred, and 
an analysis of manure content. If the waste is transferred to a 
commercial waste hauler, records of where the hauler indicated it would 
take the waste, if known. If the waste is to be packaged as fertilizer, 
incinerated or used for a purpose other than direct land application, 
records of the analysis of the manure are not required.
    (6) For CAFOs subject to 40 CFR 412.43 (existing swine, poultry and 
veal facilities), the Director must determine based on topographical 
characteristics of the region whether there is a likelihood that a CAFO 
may discharge from the production area via ground water that has a 
direct hydrologic connection to waters of the United States. If the 
Director finds there is such a likelihood, and the Director determines 
there is the potential for an excursion of State water quality 
standards due to such discharge, the Director must impose any water 
quality-based effluent limits necessary to comply with Sec. 122.44(d). 
The Director may omit such water quality-based effluent limits from the 
permit if the permittee has provided a hydrologist's statement that 
demonstrates to the Director's satisfaction that there is no direct 
hydrologic connection from the production area to waters of the United 
States.
    (k) What additional terms and conditions must be required in NPDES 
permits issued to CAFOs that are not subject to part 412, Subparts C 
and D? (1) All CAFOs not subject to part 412. In cases where a CAFO has 
fewer than the number of animals necessary to make it subject to the 
requirements 40 CFR Part 412, and the Director is establishing effluent 
limitations on a case-by-case basis based on best professional judgment 
under section 402(a)(1)(B) of the Act, the Director shall consider the 
need for the following effluent limitations:
    (i) Limits on the discharge of process wastewater pollutants from 
the production area, including limits based on the minimum duration and 
intensity of rainfall events for which the CAFO can design and 
construct a system to contain all process-generated wastewaters from 
such event;
    (ii) Limits on discharges resulting from the application of manure 
to land, including restrictions on the rates of application of nitrogen 
and phosphorous;
    (iii) Requirements to implement best management practices to ensure 
the CAFO achieves limitations under paragraphs (k)(1)(i) and (k)(1)(ii) 
of this section;
    (iv) Requirements to develop and implement a Permit Nutrient Plan 
that addresses requirements developed under paragraphs (k)(1)(i), (ii), 
and (iii) of this section; and
    (v) If the CAFO is in an area with topographic characteristics that 
indicate a likelihood that ground water has a direct hydrologic 
connection to waters of the United States, requirements necessary to 
comply with Sec. 122.44, unless the permittee submits a hydrologist's 
statement that the production area is not connected to surface waters 
through a direct hydrologic connection.
    (2) CAFOs subject to part 412, Subparts A and B. In addition to the 
applicable effluent limitations, when developing permits to be issued 
to CAFOs with horses, sheep or ducks subject to Subparts A and B of 40 
CFR 412, the Director shall consider the need for effluent limitations 
for wastestreams not covered by Subparts A and B, including the need 
for the requirements described in paragraphs (k)(1)(ii) through (v) of 
this section.
    (l) How will the public know if a CAFO is implementing an adequate 
permit nutrient plan?
    (1) The Director shall make publicly available via the worldwide 
web or other publicly available source, and update every 90 days:
[[<strong>Page</strong> 3139]]
    (i) A list of all CAFOs that have submitted a notice of intent for 
coverage under a general permit, and
    (ii) A list of all CAFOs that have submitted a notice that their 
permit nutrient plan has been developed or revised.
    (2) The Director shall make publicly available the notices of 
intent, notice of plan development, and the cover sheet and executive 
summary of the permittee's Permit Nutrient Plan. If the Director does 
not have a copy of the cover sheet and executive summary of the 
permittee's current Permit Nutrient Plan and the cover sheet and 
executive summary are not publicly available at the CAFO or other 
location, the Director shall, upon request from the public, obtain a 
copy of the cover sheet and executive summary. Until required by the 
Director, the CAFO operator is not required to submit cover sheet or 
executive summary to the Director.
    (3) Confidential business information. The information required to 
be in Permit Nutrient Plan cover sheet and executive summary, and 
required soil sampling data, may not be claimed as confidential. Any 
claim of confidentiality by a CAFO in connection with the remaining 
information in the Permit Nutrient Plan will be subject to the 
procedure in 40 CFR Part 2.
    4. Section 122.28 is amended by:
    a. Removing the word ``or'' at the end of paragraph (a)(2)(i) and 
adding the word ``or'' at the end of paragraph (a)(2)(ii)(D).
    b. Adding paragraph (a)(2)(iii).
    c. Adding two sentences to the end paragraph (b)(2)(ii)
    d. Redesignating paragraph (b)(3)(i)(G) as paragraph (b)(3)(i)(H) 
and adding a new paragraph (b)(3)(i)(G).
    e. Adding paragraph (b)(3)(vi).
    The additions read as follows:
Sec. 122.28  General permits (applicable to State NPDES programs, see 
Sec. 123.25).
    (a) * * *
    (2) * * *
    (iii) Concentrated animal feeding operations.
* * * * *
    (b) * * *
    (2) * * *
    (ii) * * * Notices of intent for coverage under a general permit 
for confined animal feeding operations must include: a topographic map 
as described in Sec. 122.21(f)(7); name and address of any other entity 
with substantial operational control; a statement whether the owner or 
operator has developed and is implementing its Permit Nutrient Plan 
and, if not, the status of the development of its Permit Nutrient Plan. 
New sources subject to 40 CFR Part 412 shall also provide a copy of a 
draft plan that, at a minimum, demonstrates that there is adequate land 
available to the CAFO operator to comply with the land application 
provisions of 40 CFR Part 412 or describes an alternative to land 
application that the operator intends to implement.
* * * * *
    (3) * * *
    (i) * * *
    (G) The discharge is from a CAFO. In addition to the other criteria 
in paragraph (b)(3) of this section, the Director shall consider 
whether general permits are appropriate for the following CAFOs:
    (1) CAFOs located in an environmentally or ecologically sensitive 
area;
    (2) CAFOs with a history of operational or compliance problems;
    (3) CAFOs that are exceptionally large operation as determined by 
the Director; or
    (4) Significantly expanding CAFOs.
* * * * *
    (vi) Prior to issuing any general permits for CAFOs, the Director, 
after considering input from the public, shall issue a written 
statement of its policy on which CAFOs will be eligible for general 
permits, including a statement of how it will apply the criteria in 
paragraph (b)(3)(i)(G) of this section.
Appendix B to Part 122 [Removed and Reserved]
    6. Remove and reserve Appendix B to part 122.
    9. Part 412 is revised to read as follows:
PART 412--CONCENTRATED ANIMAL FEEDING OPERATIONS (CAFOs) POINT 
SOURCE CATEGORY
Sec.
412.0   General applicability.
412.1   General definitions.
412.2   General pretreatment standards.
Subpart A--Horses and Sheep
412.10   Applicability.
412.11   Special definitions.
412.12   Effluent limitations attainable by the application of the 
best practicable control technology currently available (BPT).
412.13   Effluent limitations attainable by the application of the 
best available control technology economically achievable (BAT).
412.15   New source performance standards (NSPS).
Subpart B--Ducks
412.20   Applicability.
412.21   Special definitions.
412.22   Effluent limitations attainable by the application of the 
best practicable control technology currently available (BPT).
412.25   New source performance standards (NSPS).
412.26   Pretreatment standards for new sources (PSNS).
Subpart C--Beef and Dairy
412.30   Applicability.
412.31   Effluent limitations attainable by the application of best 
practicable control technology currently available (BPT).
412.32   Effluent limitations attainable by the application of the 
best control technology for conventional pollutants (BCT).
412.33   Effluent limitations attainable by the application of the 
best available control technology economically achievable (BAT).
412.35   New source performance standards (NSPS).
412.37   Additional measures.
Subpart D--Swine, Veal and Poultry
412.40   Applicability.
412.41   Effluent limitations attainable by the application of best 
practicable control technology currently available (BPT).
412.42   Effluent limitations attainable by the application of the 
best control technology for conventional pollutants (BCT).
412.43   Effluent limitations attainable by the application of the 
best available control technology economically achievable (BAT).
412.45   New source performance standards (NSPS).
    Authority: 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342 and 
1361.
Sec. 412.0  General applicability.
    This part applies to process wastewater discharges resulting from 
concentrated animal feeding operations (CAFOs). Manufacturing 
activities which may be subject to this part are generally reported 
under one or more of the following Standard Industrial Classification 
(SIC) codes: SIC 0211, SIC 0213, SIC 0241, SIC 0259, or SIC 3523 (1987 
SIC Manual).
Sec. 412.1  General Definitions.
    As used in this part:
    (a) The general definitions and abbreviations at 40 CFR part 401 
shall apply.
    (b) Concentrated Animal Feeding Operation (CAFO) is defined at 40 
CFR 122.23(a)(3).
    (c) Fecal coliform means the bacterial count (Parameter 1) at 40 
CFR 136.3 in Table 1A, which also cites the approved methods of 
analysis.
    (d) Process wastewater means water directly or indirectly used in 
the operation of the CAFO for any or all of the following: spillage or 
overflow from animal or poultry watering systems; washing, cleaning, or 
flushing pens, barns, manure pits, or other CAFO
[[<strong>Page</strong> 3140]]
facilities; direct contact swimming, washing or spray cooling of 
animals; litter or bedding; dust control; and stormwater which comes 
into contact with any raw materials, products or by-products of the 
operation.
    (e) Certified specialist shall mean someone who has been certified 
to prepare Comprehensive Nutrient Management Plans (CNMPs) by USDA or a 
USDA sanctioned organization.
    (f) Land application area means any land under the control of the 
CAFO operator, whether it is owned, rented, or leased, to which manure 
and process wastewater is or may be applied.
    (g) New source means a source that is subject to subparts C or D of 
this part and, not withstanding the criteria codified at 40 CFR 
122.29(b)(1): Is constructed at a site at which no other source is 
located; or replaces the housing including animal holding areas, 
exercise yards, and feedlot, waste handling system, production process, 
or production equipment that causes the discharge or potential to 
discharge pollutants at an existing source; or constructs a production 
area that is substantially independent of an existing source at the 
same site. Whether processes are substantially independent of an 
existing source, depends on factors such as the extent to which the new 
facility is integrated with the existing facility; and the extent to 
which the new facility is engaged in the same general type of activity 
as the existing source.
    (h) Overflow means the process wastewater discharge resulting from 
the filling of wastewater or liquid manure storage structures to the 
point at which no more liquid can be contained by the structure.
    (i) Production area means that part of the CAFO that includes the 
animal confinement area, the manure storage area, the raw materials 
storage area, and the waste containment areas. The animal confinement 
area includes but is not limited to open lots, housed lots, feedlots, 
confinement houses, stall barns, free stall barns, milkrooms, milking 
centers, cowyards, barnyard, exercise yards, animal walkways, and 
stables. The manure storage area includes but is not limited to 
lagoons, sheds, under house or pit storage, liquid impoundments, static 
piles, and composting piles. The raw materials storage area includes 
but is not limited to feed silos, silage bunkers, and bedding 
materials. The waste containment area includes but is not limited to 
settling basins, and areas within berms, and diversions which separate 
uncontaminated stormwater. Also included in the definition of 
production area is any egg washing or egg processing facility.
    (j) Setback means a specified distance from surface waters or 
potential conduits to surface waters where manure and wastewater may 
not be land applied. Examples of conduits to surface waters include, 
but are not limited to, tile line intake structures, sinkholes, and 
agricultural well heads.
    (k) Soil test phosphorus is the measure of the phosphorus content 
in soil as reported by approved soil testing laboratories using a 
specified analytical method.
    (l) Phosphorus threshold or TH level is a specific soil test 
concentration of phosphorus established by states. The concentration 
defines the point at which soluble phosphorus may pose a surface runoff 
risk.
    (m) Phosphorus index means a system of weighing a number of 
measures that relate the potential for phosphorus loss due to site and 
transport characteristics. The phosphorus index must at a minimum 
include the following factors when evaluating the risk for phosphorus 
runoff from a given field or site:
    (1) Soil erosion.
    (2) Irrigation erosion.
    (3) Run-off class.
    (4) Soil phosphorus test.
    (5) Phosphorus fertilizer application rate.
    (6) Phosphorus fertilizer application method.
    (7) Organic phosphorus application rate.
    (8) Method of applying organic phosphorus.
    (n) Permit Nutrient Plan means a plan developed in accordance with 
Sec. 412.33 (b) and Sec. 412.37. This plan shall define the appropriate 
rate for applying manure or wastewater to crop or pasture land. The 
plan accounts for soil conditions, concentration of nutrients in 
manure, crop requirements and realistic crop yields when determining 
the appropriate application rate.
    (o) Crop removal rate is the application rate for manure or 
wastewater which is determined by the amount of phosphorus which will 
be taken up by the crop during the growing season and subsequently 
removed from the field through crop harvest. Field residues do not 
count towards the amount of phosphorus removed at harvest.
    (p) 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. The technical paper is available at <A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nws.noaa.gov/er/hq/Tp40s.html">http://
www.nws.noaa.gov/er/hq/Tp40s.html</A>.
    (q) The parameters that are regulated or referenced in this part 
and listed with approved methods of analysis in Table 1B at 40 CFR 
136.3 are defined as follows:
    (1) Ammonia (as N) means ammonia reported as nitrogen.
    (2) BOD<INF>5</INF> means 5-day biochemical oxygen demand.
    (3) Chloride means total chloride.
    (4) Nitrate (as N) means nitrate reported as nitrogen.
    (5) Total dissolved solids means non-filterable residue.
    (r) The parameters that are regulated or referenced in this part 
and listed with approved methods of analysis in Table 1A at 40 CFR 
136.3 are defined as follows:
    (1) Fecal coliform means fecal coliform bacteria.
    (2) Total coliform means all coliform bacteria.
Sec. 412.3  General pretreatment standards.
    Any source subject to this part that introduces process wastewater 
pollutants into a publicly owned treatment works (POTW) must comply 
with 40 CFR part 403.
Subpart A--Horses and Sheep
Sec. 412.10  Applicability.
    This subpart applies to discharges resulting from the production 
areas at CAFOs where sheep are confined in open or housed lots; and 
horses are confined in stables such as at racetracks. This subpart does 
not apply to such CAFOs with less than the following capacities:
                            Applicable CAFOs
------------------------------------------------------------------------
               Livestock                         Minimum capacity
------------------------------------------------------------------------
Sheep..................................  10,000
Horses.................................  500
------------------------------------------------------------------------
[[<strong>Page</strong> 3141]]
Sec. 412.11  Special definitions.
    For the purpose of this subpart:
    (a) Housed lot means totally roofed buildings, which may be open or 
completely enclosed on the sides, wherein animals are housed over 
floors of solid concrete or dirt and slotted (partially open) floors 
over pits or manure collection areas, in pens, stalls or cages, with or 
without bedding materials and mechanical ventilation.
    (b) Open lot means pens or similar confinement areas with dirt, 
concrete paved or hard surfaces, wherein animals are substantially or 
entirely exposed to the outside environment, except where some 
protection is afforded by windbreaks or small shed-type shaded areas.
Sec. 412.12  Effluent limitations attainable by the application of the 
best practicable control technology currently available (BPT).
    (a) Except as provided in 40 CFR 125.30 through 125.32 and when the 
provisions of paragraph (b) of this section apply, any existing point 
source subject to this subpart must achieve the following effluent 
limitations representing the application of BPT: There must be no 
discharge of process wastewater pollutants into U.S. waters.
    (b) Whenever rainfall events cause an overflow of process 
wastewater from a facility designed, constructed and operated to 
contain all process-generated wastewaters plus the runoff from a 10-
year, 24-hour rainfall event at the location of the point source, any 
process wastewater pollutants in the overflow may be allowed to be 
discharged into U.S. waters.
Sec. 412.13  Effluent limitations attainable by the application of the 
best available technology economically achievable (BAT).
    (a) Except as provided in 40 CFR 125.30 through 125.32 and when the 
provisions of paragraph (b) of this section apply, any existing point 
source subject to this subpart must achieve the following effluent 
limitations representing the application of BAT: There must be no 
discharge of process wastewater pollutants into U.S. waters.
    (b) Whenever rainfall events cause an overflow of process 
wastewater from a facility designed, constructed and operated to 
contain all process-generated wastewaters plus the runoff from a 25-
year, 24-hour rainfall event at the location of the point source, any 
process wastewater pollutants in the overflow may be allowed to be 
discharged into U.S. waters.
Sec. 412.15  New source performance standards (NSPS).
    (a) Except as provided in paragraph (b) of this section, any new 
point source subject to this subpart must achieve the following 
performance standards: There must be no discharge of process wastewater 
pollutants into U.S. waters.
    (b) Whenever rainfall events cause an overflow of process 
wastewater from a facility designed, constructed and operated to 
contain all process-generated wastewaters plus the runoff from a 25-
year, 24-hour rainfall event at the location of the point source, any 
process wastewater pollutants in the overflow may be allowed to be 
discharged into U.S. waters.
Subpart B--Ducks
Sec. 412.20  Applicability.
    This subpart applies to discharges resulting from dry and wet duck 
feedlots with a capacity of at least 5000 ducks.
Sec. 412.21  Special definitions.
    For the purpose of this subpart:
    (a) Dry lot means a facility for growing ducks in confinement with 
a dry litter floor cover and no access to swimming areas.
    (b) Wet lot means a confinement facility for raising ducks which is 
open to the environment, has a small number of sheltered areas, and 
with open water runs and swimming areas to which ducks have free 
access.
Sec. 412.22  Effluent limitations attainable by the application of the 
best practicable control technology currently available (BPT).
    Except as provided in 40 CFR 125.30 through 125.32, any existing 
point source subject to this subpart shall achieve the following 
effluent limitations representing the application of BPT:
                                              Effluent Limitations
----------------------------------------------------------------------------------------------------------------
                                                                             Maximum                   Maximum
                     Regulated parameter                        Maximum      monthly      Maximum      monthly
                                                               daily \1\     avg.\1\     daily \2\     avg.\2\
----------------------------------------------------------------------------------------------------------------
BOD<INF>5</INF>........................................................         3.66          2.0         1.66         0.91
Fecal coliform..............................................        (\3\)        (\3\)        (\3\)       (\3\)
----------------------------------------------------------------------------------------------------------------
\1\ Pounds per 1000 ducks.
\2\ Kilograms per 1000 ducks.
\3\ Not to exceed MPN of 400 per 100 ml at any time.
Sec. 412.25  New source performance standards (NSPS).
    Any new source subject to this subpart must achieve the following 
standards:
    (a) Except as provided in paragraph (b) of this section, there must 
be no discharge of process wastewater pollutants into U.S. waters.
    (b) Whenever rainfall events cause an overflow of process 
wastewater from a facility designed, constructed and operated to 
contain all process-generated wastewaters plus the runoff from a 25-
year, 24-hour rainfall event at the location of the point source, any 
process wastewater pollutants in the overflow may be allowed to be 
discharged into U.S. waters.
Sec. 412.26  Pretreatment standards for new sources (PSNS).
    (a) Except as provided in 40 CFR Sec. 403.7 and in paragraph (b) of 
this section, any new source subject to this subpart must achieve the 
following pretreatment standards: There must be no discharge of process 
wastewater pollutants into a POTW.
    (b) Whenever rainfall events cause an overflow of process 
wastewater from a facility designed, constructed and operated to 
contain all process-generated wastewaters plus the runoff from a 25-
year, 24-hour rainfall event at the location of the new source, the 
discharge of any process wastewater pollutants in the overflow may be 
allowed.
Subpart C--Beef and Dairy
Sec. 412.30  Applicability.
    This subpart applies to concentrated animal feeding operations 
(CAFOs), as defined in 40 CFR Sec. 122.23, and includes the following 
types of animals: Mature dairy cows, either milking or dry; and cattle 
other than mature dairy or veal.
[[<strong>Page</strong> 3142]]
Sec. 412.31  Effluent limitations attainable by the application of the 
best practicable control technology currently available (BPT).
    Except as provided in 40 CFR Sec. 125.30 through Sec. 125.32, any 
existing point source subject to this subpart must achieve the 
following effluent limitations representing the application of BPT:
    (a) For CAFO production areas:
    (1) Except as provided in paragraph (a)(2) of this section, there 
must be no discharge of process wastewater pollutants into U.S. waters.
    (2) Whenever rainfall causes an overflow of process wastewater, 
pollutants in the overflow may be discharged into U.S. waters during 
those periods subject to following conditions:
    (i) The production area is designed and constructed to contain all 
process wastewaters including the runoff from a 25 year, 24 hour 
rainfall event; and
    (ii) The production area is operated in accordance with the 
requirements of Sec. 412.37(a)(1) through (3).
    (b) For CAFO land application areas:
    (1) Discharges resulting from the application of manure or process 
wastewater to land owned or under the control of the CAFO must achieve 
the following:
    (i) Develop and implement a Permit Nutrient Plan (PNP) that 
includes the requirements specified at Sec. 412.37; and establishes 
land application rates for manure in accordance with Sec. 412.31 
(b)(1)(iv).
    (ii) The PNP must be developed or approved by a certified 
specialist.
    (iii) The PNP must be written taking into account realistic yield 
goals based on historic yields from the CAFO, or county average data 
when historic yields are not appropriate. County average data may be 
used when a facility plants a crop that no yield data for that CAFO 
land application area has been obtained within the previous 10 years. 
CAFOs shall review the PNP annually and revise as necessary, and must 
rewrite the PNP at least once every five years.
    (iv) Apply manure and process wastewater at a rate established in 
accordance with one of the three methods defined in tables 1 through 3 
of this section. State approved indices, thresholds, and soil test 
limits shall be utilized such that application does not exceed the crop 
and soil requirements for nutrients:
                       Table 1.--Phosphorus Index
------------------------------------------------------------------------
   Phosphorus index rating       Manure and wastewater application rate
------------------------------------------------------------------------
Low Risk.....................  Application of manure and wastewater may
                                not exceed the nitrogen requirements of
                                the crop.
Medium Risk..................  Application of manure and wastewater may
                                not exceed the nitrogen requirements of
                                the crop.
High Risk....................  Application of phosphorus in manure and
                                wastewater may not exceed the amount of
                                phosphorus removed from the field with
                                crop harvest.
Very High Risk...............  No land application of manure or
                                wastewater.
------------------------------------------------------------------------
                     Table 2.--Phosphorus Threshold
------------------------------------------------------------------------
  Soil phosphorus threshold
            level                Manure and wastewater application rate
------------------------------------------------------------------------
 \3/4\ TH application........  Manure and wastewater may not exceed the
                                nitrogen requirements of the crop.
> \3/4\ TH,  2 TH application  Phosphorus in manure and wastewater may
                                not exceed the amount of phosphorus
                                removed from the field with crop
                                harvest.
> 2 TH application...........  No land application of manure or
                                wastewater.
------------------------------------------------------------------------
                     Table 3.--Soil Test Phosphorus
------------------------------------------------------------------------
  Soil test phosphorus level     Manure and wastewater application rate
------------------------------------------------------------------------
Low..........................  Application of manure and wastewater may
                                not exceed the nitrogen requirements of
                                the crop.
Medium.......................  Application of manure and wastewater may
                                not exceed the nitrogen requirements of
                                the crop.
High.........................  Application of phosphorus in manure and
                                wastewater may not exceed the amount of
                                phosphorus removed from the field with
                                crop harvest.
Very High....................  No land application of manure and
                                wastewater.
------------------------------------------------------------------------
    (2) Multi-year phosphorus applications are prohibited when either 
the P-Index is rated high, the soil phosphorus threshold is between \3/
4\ and 2 times the TH value, or the soil test phosphorus level is high 
as determined in paragraph (b)(1) (iv) of this section unless:
    (i) Manure application equipment designed for dry poultry manure or 
litter cannot obtain an application rate low enough to meet a 
phosphorus based application rate as determined by the PNP In the event 
a phosphorus application occurs during one given year which exceeds the 
crop removal rate for that given year, no additional manure or process 
wastewater shall be applied to the same land in subsequent years until 
all applied phosphorus has been removed from the field via harvest and 
crop removal.
    (ii) [Reserved]
Sec. 412.32  Effluent limitations attainable by the application of the 
best control technology for conventional pollutants (BCT).
    Except as provided in 40 CFR 125.30 through 125.32 and 412.41(2), 
any existing point source subject to this subpart must achieve the 
following effluent limitations representing the application of BCT:
    (a) For CAFO production areas: Discharges must achieve the same 
requirements as specified in Sec. 412.31(a).
    (b) For CAFO land application areas:
    Discharges resulting from the application of manure or process 
wastewater to crop or pasture land owned or under the control of the 
CAFO must achieve the same requirements as specified in Sec. 412.31(b) 
and Sec. 412.37.
Sec. 412.33  Effluent limitations attainable by the application of the 
best available technology economically achievable (BAT).
    Except as provided in 40 CFR 125.30 through 125.32 and 
412.33(a)(2), any existing point source subject to this
[[<strong>Page</strong> 3143]]
subpart must achieve the following effluent limitations representing 
the application of BAT:
    (a) For CAFO production areas:
    (1) There must be no discharge of process wastewater pollutants 
into U.S. waters, including any pollutants discharged to ground water 
which has a direct hydrologic connection to surface waters.
    (2) Whenever rainfall causes an overflow of process wastewater, 
pollutants in the overflow may be discharged into U.S. waters during 
those periods when the following conditions are met:
    (i) The production area is designed and constructed to contain all 
process wastewaters including the runoff from a 25 year, 24 hour 
rainfall event; and
    (ii) The production area is operated in accordance with the 
requirements of Sec. 412.37(a).
    (3)(i) The ground water beneath the production area must be sampled 
twice annually to demonstrate compliance with the no discharge 
requirement unless the CAFO has determined to the satisfaction of the 
permitting authority that the ground water beneath the production area 
is not connected to surface waters through a direct hydrologic 
connection.
    (ii) Ground water samples shall be collected up-gradient and down-
gradient of the production area and analyzed for:
    (A) Total coliforms.
    (B) Fecal coliform.
    (C) Total dissolved solids.
    (D) Nitrates.
    (E) Ammonia.
    (F) Chloride
    (b) For CAFO land application areas:
    Discharges resulting from the application of manure or process 
wastewater to crop or pasture land owned or under the control of the 
CAFO must achieve the same requirements as specified in Sec. 412.31(b) 
and Sec. 412.37.
Sec. 412.35  New source performance standards (NSPS).
    Any new source subject to this subpart must achieve the following 
standards:
    (a) For CAFO production areas:
    Subject to the provisions of paragraph (c) of this section, 
discharges must achieve the same requirements as specified in 
Sec. 412.33(a).
    (b) For CAFO land application areas:
    Subject to the provisions of paragraph (c) of this section, 
discharges resulting from the application of manure or process 
wastewater to crop or pasture land owned or under the control of the 
CAFO must achieve the same requirements as specified in Sec. 412.31(b) 
and Sec. 412.37.
    (c) Any new source subject to the provisions of this section that 
commenced discharging after [insert date 10 years prior to the date 
that is 60 days from the publication date of the final rule] and before 
[insert date that is 60 days from the publication date of the final 
rule] must continue to achieve the standards specified in the 2000 
version of Sec. 412.15, provided that the new source was constructed to 
meet those standards. For toxic and nonconventional pollutants, those 
standards shall not apply after the expiration of the applicable time 
period specified in 40 CFR 122.29(d)(1); thereafter, the source must 
achieve the standards specified in paragraphs (a) and (b) of this 
section.
Sec. 412.37  Additional measures.
    (a) Each CAFO subject to this subpart must implement the following 
requirements:
    (1) There must be routine visual inspections of the CAFO production 
area to check the following:
    (i) Weekly inspections of all stormwater diversion devices, such as 
roof gutters, to ensure they are free of debris that could interfere 
with the diversion of clean stormwater;
    (ii) Weekly inspections of all stormwater diversion devices which 
channel contaminated stormwater to the wastewater and manure storage 
and containment structure, to ensure that they are free of debris that 
could interfere with ensuring this contaminated stormwater reaches the 
storage or containment structure;
    (iii) Daily inspections of all water lines providing drinking water 
to the animals to ensure there are no leaks in these lines that could 
contribute unnecessary volume to liquid storage systems or cause dry 
manure to become too wet;
    (iv) Runoff diversion structures and animal waste storage 
structures must be visually inspected for: seepage, erosion, 
vegetation, animal access, reduced freeboard, and functioning rain 
gauges and irrigation equipment, on a weekly basis manure storage area 
to ensure integrity of the structure. All surface impoundments must 
have a depth marker which indicates the design volume and clearly 
indicates the minimum freeboard necessary to allow for the 25 year 24 
hour rainfall event. The inspection shall also note the depth of the 
manure and process wastewater in the impoundment as indicated by this 
depth marker.
    (2) Any deficiencies found as a result of these inspections shall 
be corrected as soon as possible. Deficiencies and corrective action 
taken shall be documented.
    (3) Mortalities may not be disposed of in any liquid manure or 
stormwater storage or treatment system, and must be handled in such a 
way as to prevent discharge of pollutants to surface water.
    (4) Land application of manure generated by the CAFO to land owned 
or controlled by the CAFO must be done in accordance with the following 
practices:
    (i) Manure may not be applied closer than 100 feet to any surface 
water, tile line intake structure, sinkhole or agricultural well head.
    (ii) The CAFO must take manure samples at least once per year and 
analyzed for nitrogen, phosphorus and potassium. Samples must be 
collected from all manure storage areas, both liquid and dry storage, 
as well as any wastewater or storm water storage. The CAFO must take 
soil samples once every three years if they apply manure to crop or 
pasture land under their control, and analyze the soil sample for 
phosphorus. Samples shall be collected in accordance with accepted 
Extension protocols and the analyses must be conducted in accordance 
with the state nutrient management standard. These protocols shall be 
documented in the PNP.
    (iii) Manure that is transported off-site must be sampled at least 
once a year for nitrogen, phosphorus and potassium. The results of 
these analyses must be provided to the recipient of the manure.
    (iv) Manure application equipment must be calibrated prior to land 
application of manure and/or process wastewaters at a minimum of once 
per year.
    (b) Record keeping requirements:
    Each CAFO must maintain on its premises a complete copy of the 
current PNP and the records specified in paragraphs (b)(1) through (12) 
of this section. The CAFO must make the PNP available to the permitting 
authority and the Regional Administrator, or his or her designee, for 
review upon request. Records must be maintained for 5 years from the 
date they are created.
    (1) Cover Sheet which includes the following information:
    (i) the name and location of the CAFO,
    (ii) name and title of the owner or operator
    (iii) name and title of the person who prepared the plan,
    (iv) date the plan was prepared,
    (v) date the plan was amended
    (2) Executive Summary which includes the following information:
    (i) Total average herd or flock size
[[<strong>Page</strong> 3144]]
    (ii) Identification of manure collection, handling, storage, and 
treatment practices
    (iii) Amount of manure generated annually
    (iv) Identification of planned crops (rotation)
    (v) Realistic yield goal as described in Sec. 412.31(b)(1)(iii)
    (vi) Field condition as determined by the phosphorus index, soil 
test phosphorus, or phosphorus threshold (for each field unit that will 
receive manure)
    (vii) number of acres that will receive manure
    (viii) amount of manure transported off-site
    (ix) animal waste application rate (gallons or tons/acre)
    (x) identification of watershed or nearest surface water body
    (3) Records documenting the inspections required under paragraph 
(a)(1) of this section.
    (4) Records tracking the repairs performed on drinking water lines, 
automated feeding equipment, feed storage and silos, manure storage, 
manure treatment facilities, as well as maintenance of berms and 
diversions that direct clean stormwater away from any manure and other 
process wastewater.
    (5) Records documenting the following information about manure 
application and crop production.
    (i) Expected crop yield based on historical data for the CAFO for 
its land application area, or county average yield data when the CAFO 
does not have a prior history of crop yields
    (ii) The date(s) manure is applied,
    (iii) Weather conditions at time of application and for 24 hours 
prior to and following application,
    (iv) Results from manure and soil sampling,
    (v) Test methods used to sample and analyze manure and soil,
    (vi) Whether the manure application rate is limited to nitrogen, 
phosphorus, or some other parameter,
    (vii) The amount of manure and manure nutrients applied,
    (viii) The amount of any other nutrients applied to the field 
reported in terms of nitrogen, phosphorus and potassium (including 
commercial fertilizer, legume credits, and biosolids),
    (ix) Calculations showing the total nutrients applied to land,
    (x) Calibration of manure application equipment,
    (xi) The rate of application of manure,
    (xii) The method used to apply the manure, estimated nitrogen 
losses based on application method used, and the route of nitrogen 
loss,
    (xiii) The field(s) to which manure was applied and total acreage 
receiving manure,
    (xiv) What crop(s) was planted,
    (xv) The date that crops were planted in the field, and
    (xvi) The crop yields obtained.
    (6) Records of the total volume or amount of manure and process 
wastewater generated by all animals at the facility during each 12 
month period. This must include milk parlor washwater and egg 
washwater. The volume or amount may be determined through direct 
measurements or an estimated value provided all factors are documented.
    (7) Records of rainfall duration, amount of rainfall, and the 
estimated volume of any overflow that occurs as the result of any 
catastrophic or chronic rainfall event.
    (8) A copy of the emergency response plan for the CAFO.
    (9) Records of how mortalities are handled by the CAFO.
    (10) Name of state approved specialist that prepared or approved 
the PNP, or record and documentation of training and certification for 
owners or operator writing their own PNP.
Subpart D--Swine, Poultry and Veal
Sec. 412.40  Applicability.
    This subpart applies to operations defined as concentrated animal 
feeding operations (CAFOs) under 40 CFR 122.23 and includes the 
following animals: Swine, each weighing 55 lbs. or more; swine, each 
weighing less than 55 lbs.; veal; cattle; chickens; and turkeys.
Sec. 412.41  Effluent limitation attainable by the application of the 
best practicable control technology currently available (BPT).
    Except as provided in 40 CFR 125.30 through 125.32, any existing 
point source subject to this subpart must achieve the following 
effluent limitations representing the application of BPT:
    (a) For CAFO production areas:
    Discharges must achieve the same requirements as specified in 
Sec. 412.31(a).
    (b) For CAFO land application areas:
    Discharges resulting from the application of manure or process 
wastewater to crop or pasture land owned or under the control of the 
CAFO must achieve the same requirements as specified in Sec. 412.31(b) 
and Sec. 412.37.
Sec. 412.42  Effluent limitations attainable by the application of the 
best control technology for conventional pollutants (BCT).
    Except as provided in 40 CFR 125.30 through 125.32 , any existing 
point source subject to this subpart must achieve the following 
effluent limitations representing the application of BCT:
    (a) For CAFO production areas:
    The limitations are the same as specified in Sec. 412.41(a).
    (b) For CAFO land application areas:
    The limitations are the same as specified in Sec. 412.41(b).
Sec. 412.43  Effluent limitations attainable by the application of the 
best available technology economically achievable (BAT).
    Except as provided in 40 CFR 125.30 through 125.32, any existing 
point source subject to this subpart must achieve the following 
effluent limitations representing the application of BAT:
    (a) For CAFO production areas:
    (1) There must be no discharge of process wastewater pollutants 
into U.S. waters.
    (2) Any CAFO subject to this subpart must also comply with the 
requirements specified in Sec. 412.37(a)(1) through (3).
    (b) For CAFO land application areas:
    The limitations are the same as specified in Sec. 412.41(b).
Sec. 412.45  New source performance standards (NSPS).
    Any new source subject to this subpart must achieve the following 
standards:
    (a) For CAFO production areas:
    (1) There must be no discharge of process wastewater pollutants 
into U.S. waters, including any pollutants discharged to ground water 
which have a direct hydrological connection to surface waters.
    (2) The ground water beneath the production area must be sampled 
twice annually to demonstrate compliance with the provisions of 
paragraph (a)(1) of this section, unless the CAFO has determined to the 
satisfaction of the permitting authority that the ground water beneath 
the production area is not connected to surface waters through a direct 
hydrologic connection. Ground water samples must be collected up-
gradient and down-gradient of the production area. and analyzed for:
    (i) Total coliforms
    (ii) Fecal coliform
    (iii) Total dissolved solids
    (iv) Nitrates
    (v) Ammonia
    (vi) Chloride
    (3) Any CAFO subject to this subpart must also comply with the 
requirements specified in Sec. 412.37(a)(1) through (3).
    (b) For CAFO land application areas:
    Discharges resulting from the application of manure or process 
wastewater to crop or pasture land
[[<strong>Page</strong> <strong>3145</strong>]]
owned or under the control of the CAFO must achieve the same 
requirements as specified in Sec. 412.31(b) and Sec. 412.37.
    (c) Any new source subject to the provisions of this section that 
commenced discharging after [insert date 10 years prior to the date 
that is 60 days from the publication date of the final rule] and before 
[insert date that is 60 days from the publication date of the final 
rule] must continue to achieve the standards specified in Sec. 412.15, 
provided that the new source was constructed to meet those standards. 
For ``toxic'' and nonconventional pollutants, those standards shall not 
apply after the expiration of the applicable time period specified in 
40 CFR Sec. 122.29(d)(1); thereafter, the source must achieve the 
standards specified in paragraphs (a) and (b) of this section.
[FR Doc. 01-1 Filed 1-11-01; 8:45 am]
BILLING CODE 6560-50-P
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