1. Overview of the 2008 CAFO Rule November 30, 2010 Multi-state CNMP Symposium, Mitchell SD Qian K. Zhang, P.E. Donna Porter EPA Region 8 EPA Region 7 303-312-6267 913-551-7929 zhang.qian@epa.govzhang.qian@epa.gov porter.donna@epa.gov

2. Presentation Outline –CAFO Rule History –Overview of 2005 Appeals Court Case –Highlights of 2008 CAFO Rule Duty to Apply Terms of the NMP Annual Report Requirements –Litigation on 2008 CAFO Rule

3. CAFO Rule History 1972Congress enacts the CWA 1974/1976 EPA establishes first effluent limitation guidelines and permit regulations for CAFOs February 2003 EPA issues revised CAFO regulations February 2005 2 nd Circuit court of Appeals Decision in Waterkeeper v. EPA June 2006 Proposed rule published to address Waterkeeper decision March 2008Supplemental proposed rule with additional options November 2008CAFO rule revisions published in Federal Register

4. Overview of 2005 Appeals Court Case Waterkeeper Alliance, et. al., v. EPA U.S. Court of Appeals for the 2 nd Circuit decided challenges to 2003 CAFO rule brought by environmental and industry petitioners: –Upheld technical requirements of 2003 rule –Required EPA to revise duty to apply –CAFOs must submit NMPs; permit authorities must review and add NMP terms to permit and must offer public review of NMPs Remanded certain new source performance standards and technology requirements for fecal coliform

5. Highlights of 2008 CAFO Rule (Publication Date: November 20, 2008) (Effective Date: December 22, 2008) CAFOs that “discharge or propose to discharge” must apply for NPDES permit Provides new certification option Establishes additional nutrient management plan (NMP)-related requirements Revises alternative NSPS provision for new source swine, poultry and veal calf facilities Affirms BCT limitations for fecal coliform

6. Who must apply for an NPDES Permit –National Pollutant Discharge Elimination System (NPDES) permit is needed if the CAFO discharges or proposes to discharge to waters of the US; based on the CAFO’s design, construction, operation, and maintenance. –Site-specific assessment should also consider climatic (rainfall, evaporation), hydrologic (proximity to surface water), topographic (drainage), geologic factors (soils), discharge history, exposure of manure and feed to precipitation….

7. Voluntary Certification Option An unpermitted CAFO that does not discharge or propose to discharge may choose to voluntarily certify. What is the incentive for an unpermitted CAFO to certify? –In the event of a discharge from a properly certified CAFO, the CAFO would only be subject to liability for the unpermitted discharge, not for failure to seek permit coverage prior to the discharge. What are the qualifications for the voluntary certification option? –A technical evaluation of manure storage structures that ensures no discharge and development and implementation of an NMP. –Must submit a signed statement, general information about the facility, and description of eligibility. If a properly certified CAFO discharges, can it recertify? –After a discharge from a properly certified CAFO, the CAFO can recertify if it permanently fixes the cause of the discharge and it has not previously recertified after a discharge from the same cause. States are not required to adopt the provisions for no discharge certification.

8. CAFO Owner/Operator Do not apply Do not certify Manage CAFO with no discharge CAFO does not discharge other than agricultural storm water CAFO discharges 301 violation 308 violation in almost all cases Decide to certify Satisfy eligibility Submit certification to permitting authority Manage CAFO with no discharge CAFO does not discharge other than agricultural storm water CAFO discharges 301 violation No 308 violation if properly certified Apply for NPDES permit Permit coverage issued Manage CAFO with no discharge CAFO does not discharge other than agricultural storm water CAFO discharges Discharge either allowed under the permit or eligible for “upset/bypass” affirmative defense Discharge in violation of permit 301 violation

9. Discharges from Land Application Areas CAFOs that land apply do not need an NPDES permit in order to qualify for the Agricultural Storm water exemption if they meet the requirements of 122.23(e)… If an operator land applies in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure…as outlined in 122.42(e)(vi)-(ix) then a precipitation related discharge is defined as agricultural storm water. Nutrient management planning and appropriate recordkeeping will be necessary to support an operator’s claim to the exemption.

10. Regulatory Framework 2 nd Circuit Court Decision –NMP terms constitute effluent limitations –NMP terms must be made available for public review –NMP terms must be incorporated into the permit Final rule –NMP must be submitted with application/NOI –Agency review of NMP/identification of terms –Public review of NMP and terms

11. Nutrient Management Technical Standard Established and adopted by State Permitting Authority Addresses –Field-specific assessment of N and P transport from field to WOUS (waters of the US) –Address form, source, amount, timing and method of application of nutrients –Balance nutrient needs of crops and potential adverse water quality impacts in setting methods and criteria to determine application rates. –Soil and manure sampling methods –Crop removal rates, yields

12. Nine Minimum Measures for Nutrient Management Plan Applicable to all permitted and certified CAFOs –Implementation of a NMP that contains BMPs that address the nine minimum requirements [§122.42(e)(1)(i)-(ix)] 1.Adequate storage with O&M 2.Mortality management 3.Clean water diversion from the production area 4.Prevention of direct animal contact with WOUS 5.Chemical containment 6.Site specific conservation practices Setbacks and buffers 7.Manure and soil testing 8.Protocols for land application 9.Record Keeping Unpermitted Large CAFOs claiming agricultural stormwater exemption

13. Comparison of NMP and CNMP Elements NPDES NMP Minimum PracticesUSDA CNMP Elements Adequate storage capacity Animal mortality Diversion of clean water Manure and wastewater handling and storage Conservation practices to control nutrient loss Land treatment practices Protocols for the land application of manure and wastewater Protocols for manure and soil testing Nutrient management Record keeping Feed management Other utilization options Chemical handling Preventing direct contact of animals with WOUS

14. NMP Terms: Protocols for Land Application of Manure and Process Wastewater Protocols for land application must be in the State Director identified technical standards –State technical standards commonly include State NRCS 590 conservation standards 2008 CAFO Rule –Site specific terms –Terms for each approach for expressing application rates Linear Narrative Rate

15. Site Specific Terms Site specific terms for protocols for land application are required by the regulations to follow either a linear or narrative rate approach. Terms for both approaches –Fields available for land application –Timing restrictions/prohibitions (may be standard terms) –Outcome of the N and P transport risk assessment for each field –Planned crop or other use or alternative crop –Realistic annual yield goal –N and P recommendation for each crop (may be standard terms)

16. Terms for Linear Approach only –Credits for all N in the field that will be plant available –Consideration of multi-year P application –Accounting for all other additions of plant available N and P –Form and source of manure, litter, and process wastewater –Timing and method of application –Application rate in pounds of N and P from manure, litter, and process wastewater –Methodology to account for the amount of N and P in the manure, litter, and process wastewater Site Specific Terms: Linear Approach

17. Terms for Narrative Rate Approach only –Maximum amount of N and P from all sources –Methodology to account for: plant available N in the field soil test results non-manure N and P sources Consideration of multi-year P application form and source of manure timing and method of application volatilization/mineralization Site Specific Terms: Narrative Rate Approach

18. Fields Available for Land Application Field Specific Components –Table Field name or ID Total field acres to receive manure Location –Maps Fields should be easily related to fields listed in table by; –Field name or ID and/or; –Location Example: MMP Field Data Report : Location not shown

20. Timing as a Term and as a Factor of the Methodology As a term: –Macro-scale; Timing limitations or conditional restraints –Set by State standards Verification of permit writer –Examples: Prohibitions November through March –Term: All fields for this time period Application to frozen ground only allowed on fields with slopes that are ≤ 4% –Term: Fields that do not meet this requirement must be listed As factor of the narrative rate methodology: –Micro-scale; Timing conditions that impact nutrient availability –Example: If land application is incorporated after 5 days of being surfaced applied a different volatilization factor will be used compared to if manure was injected

21. Outcome of the Field Specific Assessment Assessment method should be defined by the State’s technical standard. Term should include: –Method used Technical Standard may have multiple options –The risk rating (if applicable) Example: Soil test thresholds do not determine a “risk” –The corresponding application rate MMP report out for P-Index: MMP report out for Soil Test : Report for each field for each year of the permit Risk Application Rate

22. Crops to be Planted and Yield Goals Crop Data Report from MMP Crop needs to be linked to a field and year Yield goal needs to be linked to a crop –Needs Units –Source is not included as part of the term –Allowable source should be defined by the technical standards –Permit writer has the authority to request the source Technical standards may provide options

23. Maximum amount of N and P from all Sources Identifying the Sources of Nutrients The maximum amount of N –Sources will include; Applied N (manure, fertilizer, biosolids, irrigation water) In field available N ( N credits from previous manure applications, legumes) –Maximum term should match the crop recommendation term The maximum amount of P –Sources will include; Applied P (manure, fertilizer, biosolids) –Soil P can not be included as a ‘source’ of nutrients Non-linear relationship among P applied and P in the soil The maximum amount of P will not necessarily match crop recommendation 1.Field risk assessment may allow an N-base rate application of manure 2.Even if manure application is a P-based rate, removal rate may be followed

24. Including NMP Terms in NPDES Permits Approaches for writing permit terms for the minimum measures –Site-specific terms Required for protocols for land application Strongly encouraged for adequate storage and conservation practices –Generally applicable terms Discretionary for mortality management, clean water diversions, prevention of direct animal contact with water, chemical handling, manure and soil testing, and recordkeeping EPA encourages these generally applicable terms to be supplements with site-specific information provided by the NMP Methods for writing terms in the permit –Incorporation the entire NMP by reference –Incorporation of only the terms by reference, using language that parallels the regulatory provisions for the terms of the NMP –Specifically identify what is a permit term in an NMP

25. Enforceability of NMP Terms Once incorporated into the permit, NMP terms, like all other permit conditions, are enforceable. Permit writers should consider enforceability of identified terms –Concrete practices, activities, BMPs, etc. –Specific frequencies, procedures, etc., where applicable Ambiguous terms = ambiguous enforcement

26. Changes to NMPs: Substantial Changes Addition of new land application areas –Unless already included in an approved NMP Any Change to application rates –maximum application rates (N and P in manure)(linear approach) –maximum amounts of N and P form all sources (narrative rate approach) Addition of any crops Changes that are likely to increase the risk of N and P transport to WOUS

27. Changes to NMPs: Substantial Changes (cont.) Process for substantial changes –Public review/comment period and opportunity for public hearing (same as for draft permits) –Director requires CAFO to further revise NMP if necessary –Revised NMP terms incorporated into permit –CAFO and public informed of changes to NMP terms

28. Medium CAFO Discharge Criteria To meet the Medium CAFO definition, an AFO must meet the animal confinement threshold and meet one of the following criteria: 1.Pollutants are discharged into WOUS through a man-made ditch, flushing system, or other similar man-made device, or 2.Pollutants are discharged directly into WOUS that originate outside of the facility and pass over, across, or through the facility or otherwise come into contact with the confined animals.

29. Figure 2.1.5.1a NPDES Permitted Facilities in the Elkhorn River Basin

30. Figure 2.1.5.1b Active Animal Feeding Operations in the Elkhorn River Basin

31. Annual Report Requirements (2003) Number and type of animals Estimated amount of manure/wastewater generated, applied, and transferred in previous 12 months (tons/gallons) Total # of land application acres and # of acres applied to in previous 12 months Summary of production area discharges Statement indicating if nutrient management plan developed or approved by a certified planner

32. Additions to Annual Report in 2008 Most recent manure test results (both approaches) Actual crop planted (both approaches) Actual yield for each crop in each field (both approaches) Actual amount of manure applied to each field (both app.) The most recent soil test results (narrative rate only) Amount of chemical fertilizer applied (narrative rate only) The results of calculations of the maximum amounts of manure, litter, and wastewater to be applied each year (narrative rate only)

33. Legal Challenges to the 2008 CAFO Rule Six petitions for review pending: –One from three environmental groups (NRDC, Waterkeeper Alliance and Sierra Club) –Five from industry groups (American Farm Bureau, National Pork Producers Council and several state member councils (NC and OK); United Egg Producers and National Milk Producers) Petitions consolidated for review in U.S. Court of Appeals for the Fifth Circuit

34. Legal Challenges Con’t EPA signed a settlement agreement with environmental petitioners on May 25, 2010 regarding litigation challenging the Agency’s 2008 CAFO rule. As part of the agreement, EPA will propose a rule to collect information from both permitted and unpermitted CAFOs, and will take final action on the proposed rule within two years of the settlement agreement (May 2012). EPA will seek public comment as part of the rulemaking process. EPA developed a guidance document to clarify the 2008 CAFO rule regarding when CAFOs “discharge or propose to discharge” and therefore clarifying when the CAFO needs to apply for a permit (released on May 28, 2010, available at http://www.epa.gov/npdes/caforule). http://www.epa.gov/npdes/caforule Litigation is still ongoing with the industry petitioners in the 5 th Circuit Court of Appeals. The court heard oral arguments regarding the litigation in October.

35. Additional information For copies of the latest updates and outreach materials…. http://www.epa.gov/npdes/caforulehttp://www.epa.gov/npdes/caforule (HQ) http://www.epa.gov/region8/water/cafohttp://www.epa.gov/region8/water/cafo (R8)