
[Federal Register: March 7, 2008 (Volume 73, Number 46)]
[Proposed Rules]               
[Page 12321-12340]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07mr08-26]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[EPA-HQ-OW-2005-0037; FRL-8539-9]
RIN 2040-AE94

 
Revised National Pollutant Discharge Elimination System Permit 
Regulations for Concentrated Animal Feeding Operations; Supplemental 
Notice of Proposed Rulemaking

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: This action is a supplemental notice of proposed rulemaking 
(SNPRM) to EPA's June 30, 2006, notice of proposed rulemaking (NPRM) 
revising the National Pollutant Discharge Elimination System (NPDES) 
permitting requirements for concentrated animal feeding operations 
(CAFOs), in response to the order issued by the U.S. Court of Appeals 
for the Second Circuit in Waterkeeper Alliance et al. v. EPA, 399 F.3d 
486 (2d Cir. 2005). In the June 2006 NPRM, EPA proposed to require only 
CAFOs that discharge or propose to discharge to seek coverage under a 
permit. In this SNPRM, EPA is proposing a voluntary option for CAFOs to 
certify that the CAFO does not discharge or propose to discharge based 
on an objective assessment of the CAFO's design, construction, 
operation, and maintenance. The June 2006 proposal also discussed the 
terms of the nutrient management plan (NMP) that would need to be 
incorporated into NPDES permits. This SNPRM proposes a framework for 
identifying the terms of the NMP and three alternative approaches for 
addressing rates of application of manure, litter, and process 
wastewater when identifying terms of the NMP to be included in the 
permit. This supplemental proposal focuses solely on certification and 
terms of the NMP and is not opening any other provisions of the June 
2006 proposal and existing NPDES regulations or

[[Page 12322]]

Effluent Limitations Guidelines and Standards for public comment.

DATES: Comments must be received on or before April 7, 2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2005-0037 by one of the following methods:
    (1) http://www.regulations.gov: Follow the online instructions for 
submitting comments.
    (2) E-mail: ow-docket@epa.gov, Attention Docket ID No. EPA-HQ-OW-
2005-0037.
    (3) Mail: Send the original and three copies of your comments to: 
Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. 
OW-2005-0037.
    (4) Hand Delivery: Deliver your comments to: EPA Docket Center, EPA 
West, Room B102, 1301 Constitution Avenue, NW., Washington, DC, 
Attention Docket ID No. OW-2005-0037. Such deliveries are only accepted 
during the Docket's normal hours of operation and special arrangements 
should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2005-
0037. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Water Docket, EPA Docket 
Center, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
Water Docket is (202) 566-2426.

FOR FURTHER INFORMATION CONTACT: Rebecca Roose, Water Permits Division, 
Office of Wastewater Management (4203M), Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone 
number: (202) 564-0758; e-mail address: roose.rebecca@epa.gov.

SUPPLEMENTARY INFORMATION: 
I. General Information
    A. Does This Action Apply to Me?
    B. What Should I Consider as I Prepare my Comments for EPA?
II. Background
III. This Proposal
    A. No Discharge Certification
    B. Terms of Nutrient Management Plan
    C. Compliance Deadlines
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act

I. General Information

A. Does This Action Apply to Me?

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

                              Table 1.--Entities Potentially Regulated by this Rule
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                                                                                       North         Standard
                                                                                     American       industrial
                  Category                      Examples of regulated entities     industry code  classification
                                                                                      (NAIC)           code
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Federal, State, and Local Government:
    Industry...............................  Operators of animal production
                                              operations that meet the
                                              definition of a CAFO:
                                                Beef cattle feedlots (including           112112            0211
                                                 veal).
                                                Beef cattle ranching and farming          112111            0212
                                                Hogs............................           11221            0213
                                                Sheep...........................    11241, 11242            0214
                                                General livestock except dairy             11299            0219
                                                 and poultry.
                                                Dairy farms.....................           11212            0241
                                                Broilers, fryers, and roaster              11232            0251
                                                 chickens.
                                                Chicken eggs....................           11231            0252
                                                Turkey and turkey eggs..........           11233            0253
                                                Poultry hatcheries..............           11234            0254
                                                Poultry and eggs................           11239            0259

[[Page 12323]]


                                                Ducks...........................          112390            0259
                                                Horses and other equines........           11292            0272
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your facility may be regulated under this rulemaking, you should 
carefully examine the applicability criteria in 40 CFR 122.23. If you 
have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

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

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

II. Background

    Congress enacted the Federal Water Pollution Control Act (1972), 
also known as the Clean Water Act (CWA), to ``restore and maintain the 
chemical, physical, and biological integrity of the nation's waters'' 
(CWA section 101(a)). Among the core provisions, the CWA establishes 
the NPDES permit program to authorize and regulate the discharge of 
pollutants from point sources to waters of the U.S. (CWA section 402). 
Section 502(14) of the CWA specifically includes CAFOs in the 
definition of the term ``point source.'' Section 502(12) defines the 
term ``discharge of a pollutant'' to mean ``any addition of any 
pollutant to navigable waters from any point source'' (emphasis added). 
EPA has issued comprehensive regulations that implement the NPDES 
program at 40 CFR part 122. The Act also provides for the development 
of technology-based and water quality-based effluent limitations that 
are imposed through NPDES permits to control the discharge of 
pollutants from point sources. CWA sections 301(a) and (b).
    EPA began regulating wastewater and manure from CAFOs in the 1970s. 
EPA initially issued national effluent limitations guidelines and 
standards for feedlots on February 14, 1974 (39 FR 5,704), and NPDES 
CAFO regulations on March 18, 1976 (41 FR 11,458).
    In February 2003, EPA issued revisions to these regulations, 
focusing on the 5% of the nation's animal feeding operations (AFOs) 
that present the highest risk of impairing water quality and public 
health (68 FR 7,176) (``the 2003 CAFO rule''). The 2003 CAFO rule 
required the owners or operators of all CAFOs \1\ with a potential to 
discharge to apply for an NPDES permit. A number of CAFO industry 
organizations (American Farm Bureau Federation, National Pork Producers 
Council, National Chicken Council, and National Turkey Federation 
(NTF), although NTF later withdrew its petition) and several 
environmental groups (Waterkeeper Alliance, Natural Resources Defense 
Council, Sierra Club, and American Littoral Society) filed petitions 
for judicial review of certain aspects of the 2003 CAFO rule. This case 
was brought before the U.S. Court of Appeals for the Second Circuit. On 
February 28, 2005, the court ruled on these petitions and upheld most 
provisions of the 2003 rule but vacated and remanded others. 
Waterkeeper Alliance, et al. v. EPA, 399 F.3d 486 (2d Cir. 2005). 
Provisions of the 2003 CAFO rule that were challenged by the 
petitioners but upheld by the court include the Agency's land 
application regulatory framework and interpretation of ``agricultural 
stormwater,'' and the Agency's determination regarding effluent 
limitations guidelines pertaining to groundwater controls and best 
available technology for waste management. The court vacated the 2003 
rule requirement that all CAFOs must apply for permits or demonstrate 
that they do not have the potential to discharge. The court also found 
that the terms of the nutrient management plan (NMP) are themselves 
``effluent limitations'' and, therefore, must be made part of the 
permit and be enforceable as required by CWA sections 301 and 402, made 
subject to public comment, and reviewed and approved by the permitting 
authority. The court also remanded several aspects of the 2003 CAFO 
rule for further clarification and analysis.
    On June 30, 2006, EPA published a proposed rule to revise several 
aspects of the Agency's regulations governing discharges from CAFOs in 
response to

[[Page 12324]]

the Waterkeeper decision. 71 FR 37,744. EPA is briefly describing the 
proposed revisions to the 2003 CAFO here for context only. The proposed 
provisions in response to the Waterkeeper decision are beyond the scope 
of this final rule, and EPA is not addressing those provisions in this 
final rule.
    In summary, EPA proposed to require only owners or operators of 
those CAFOs that discharge or propose to discharge to seek 
authorization to discharge under a permit. Second, EPA proposed to 
require CAFOs seeking authorization to discharge under individual 
permits to submit their NMPs with their permit applications or, under 
general permits, with their notices of intent. Permitting authorities 
would be required to review the NMP and provide the public with an 
opportunity for meaningful public review and comment. Permitting 
authorities would also be required to incorporate terms of the NMP as 
NPDES permit conditions. The proposed rule also addressed the remand of 
issues for further clarification and analysis. These issues concern 
clarifications regarding the applicability of water quality-based 
effluent limitations (WQBELs); new source performance standards for 
swine, poultry, and veal CAFOs; and ``best conventional technology'' 
effluent limitations guidelines for fecal coliform.
    In addition to the proposed revisions in the 2006 proposed rule, 
EPA has extended certain deadlines in the NPDES permitting requirements 
and ELGs in two separate rulemakings in order to allow the Agency 
adequate time to complete this rulemaking in response to the 
Waterkeeper decision, in advance of those deadlines. The first rule 
revised dates established in the 2003 CAFO rule by which facilities 
newly defined as CAFOs were required to seek permit coverage and by 
which all permitted CAFOs were required to develop and implement 
nutrient management plans. 71 FR 6978. Because EPA was unable to 
complete this final rule prior to July 31, 2007, EPA again revised the 
compliance dates on July 24, 2007, further extending those dates from 
July 31, 2007, to February 27, 2009. 72 FR 40248.

III. This Proposal

    This notice supplements the 2006 proposed rule by proposing 
additional options being considered by EPA for inclusion in the 
rulemaking to respond to the Second Circuit's decision in the 
Waterkeeper case. EPA is only seeking comment on the issues presented 
in this supplemental proposal. No provisions promulgated in the 2003 
final rule are affected or reopened by this supplemental proposal, nor 
is EPA reopening the comment period on the 2006 proposed rule. In 
addition, EPA is taking comment on the compliance deadlines established 
in the second date change rule.
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    \1\ The Clean Water Act regulates the conduct of persons, which 
includes the owners and operators of CAFOs, rather than the 
facilities or their discharges. To improve readability in this 
preamble, reference is made to ``CAFOs'' as well as ``owners and 
operators of CAFOs.'' No change in meaning is intended.
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A. No Discharge Certification

    In this notice, the Agency is proposing a new provision that would 
allow CAFOs to voluntarily certify that the CAFO does not discharge or 
propose to discharge. This supplemental proposal seeks comment on this 
voluntary certification option, described below.
1. Background
    The 2003 CAFO rule required all CAFOs to seek coverage under an 
NPDES permit unless the Director determined that the CAFO has no 
potential to discharge. 68 FR 7176 (Feb. 12, 2003). This duty to apply 
for a permit based on a potential discharge was successfully 
challenged. Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 
2005). The court found that the duty to apply, which the Agency had 
based on a presumption that most CAFOs have at least a potential to 
discharge, was invalid because the CWA subjects only actual discharges 
to permitting requirements rather than potential discharges. 
Waterkeeper, 399 F.3d at 506. The court acknowledged EPA's policy 
considerations for seeking to impose a duty to apply solely on the 
basis of a CAFO's potential to discharge but found that the Agency 
lacked statutory authority to do so.
    In June 2006, in response to the Waterkeeper decision, EPA proposed 
to amend the duty to apply provision for CAFOs, found at 40 CFR 
122.23(d), to require all CAFOs that ``discharge or propose to 
discharge'' to seek NPDES permit coverage. 71 FR 37744 (June 30, 2006). 
As discussed in the preamble to the 2006 proposed rule, the CAFO 
operator would decide whether or not to apply for a permit. 71 FR 
37749. EPA received several hundred comments on the 2006 proposed rule 
related to how a CAFO operator would decide whether to seek permit 
coverage. In particular, many commenters asked EPA to specify 
conditions at a CAFO that would clearly trigger the requirement to 
apply for a permit, while others stated the position that there is no 
``duty to apply'' for CAFOs in advance of any discharge because an 
NPDES permit is only required for actual discharges. In response to 
these comments EPA has developed an option that would allow a CAFO that 
determines it does not need to seek permit coverage to certify to the 
Director that the operation does not discharge or propose to discharge. 
The proposal would establish clear criteria, described in detail below, 
that a CAFO must meet in order to be eligible for the certification. 
The certification option proposed in this notice would not change the 
duty to apply requirement proposed in 2006 that CAFOs that discharge or 
propose to discharge would be required to seek permit coverage. It 
would, however, provide a structured process for CAFOs that wish to 
certify to establish that they do not discharge or propose to 
discharge. EPA believes that such a structured process would be helpful 
to CAFOs as they determine whether or not to seek permit coverage. 
Furthermore, a CAFO with a valid no discharge certification would not 
be subject to liability for violation of the duty to apply at 122.23(d) 
in the unlikely event that a discharge should occur, though it would 
still be liable for violation of the prohibition on unpermitted 
discharges in CWA section 301. EPA wishes to emphasize that submission 
of a no discharge certification is voluntary. Only CAFOs that discharge 
or propose to discharge would be subject to NPDES permit requirements, 
whether or not they submit a certification.
2. Overview of Certification
    EPA is proposing a voluntary option for CAFOs to certify to the 
Director that the CAFO does not discharge or propose to discharge based 
on an objective assessment of the CAFO's design, construction, 
operation, and maintenance. This objective assessment would take into 
account the CAFO's production area design and construction and its 
operating parameters as described in its nutrient management plan 
(NMP). The CAFO operator would certify that the CAFO does not discharge 
or propose to discharge by signing and submitting a certification 
statement to the Director. A CAFO's no discharge certification would 
not be subject to approval by the permitting authority and there would 
not be an opportunity for the public to comment and request a hearing 
regarding the certification. The proposed eligibility requirements, 
submission requirements, and conditions for a valid certification are 
discussed in detail below.
3. Certification Eligibility Criteria
    EPA is proposing to establish specific eligibility criteria for 
CAFO certification at 40 CFR 122.23(h)(2). Meeting these criteria would 
establish that the CAFO does not ``discharge or propose to discharge'' 
for purposes of proposed Sec.  122.23(d), for as long as the 
certification is valid. The two proposed

[[Page 12325]]

criteria are as follows: (1) An objective evaluation of the production 
area design, construction, operation, and maintenance, which shows that 
the production area will not discharge, and (2) development, 
implementation, and maintenance on-site of a nutrient management plan 
(NMP) that addresses the elements set forth in 40 CFR 122.42(e)(1) and 
412.37(c), including operation and maintenance practices for the 
production area and land application areas under the control of the 
CAFO. While a description of how the CAFO meets the eligibility 
criteria would be required to be submitted to the Director, this 
proposed rule would not require that the documents necessary to meet 
the eligibility criteria be submitted to the permitting authority, nor 
would they be subject to permitting authority approval. However, during 
the certification period a properly certified CAFO would be required to 
maintain such documents on site or make them readily available, along 
with any associated records created to support the basis for the 
certification. Certified CAFOs, like any other permitted or unpermitted 
CAFO, would be subject to potential inspection by EPA or State 
inspectors, during which they could be required to produce the 
documentation showing that the CAFO meets the eligibility criteria, 
including that the CAFO has been and is being operated and maintained 
in accordance with the NMP.
    The first proposed eligibility criterion for valid certification 
would cover the design, construction, operation, and maintenance of the 
CAFO's production area. Proposed Sec.  122.23(h)(2)(i) would require 
the CAFO to maintain documentation on site to demonstrate that the 
CAFO's production area is designed, constructed, operated, and 
maintained so as not to discharge. This demonstration would be the same 
as the demonstration provided for in proposed 40 CFR 412.46 (71 FR 
37786), which would allow swine, poultry, and veal calf operations 
subject to new source performance standards (NSPS) to demonstrate that 
there will be no discharge from their production area. However, the no 
discharge certification would be available to all unpermitted CAFOs 
that do not discharge or propose to discharge, not just new sources in 
the swine, poultry and veal calf sectors with open storage. Due to the 
variations in production area design based on the type of containment 
system used at the operation, the proposed regulatory text for the 
first eligibility criterion has two parts: the first for open manure 
storage structures and the second for any part of the production area 
not considered to be open containment.
    EPA is proposing that any CAFO with an open surface manure storage 
structure seeking to certify that it does not discharge or propose to 
discharge would be required to perform a technical evaluation. This 
evaluation would include the same elements as the technical evaluation 
required for open storage new source swine, poultry and veal calf 
operations seeking to demonstrate no discharge under 40 CFR 
412.46(a)(1). In the 2006 proposed rule, EPA proposed to revise the 
provisions at 40 CFR 412.46(a)(1) to allow such new sources with open 
containment to meet the no discharge requirement for their NPDES permit 
using best management practices based in part on a rigorous site-
specific technical evaluation that includes use of the Soil Plant Air 
Water (SPAW) Hydrology Tool or equivalent model. See the 2006 proposed 
regulation at 71 FR 37786-87 and corresponding preamble discussion at 
71 FR 37760-62. Under this proposed certification, any unpermitted CAFO 
with open storage seeking to certify its operation as no discharge, not 
just new source swine, poultry, and veal calf operations, would be 
required to undertake a technical evaluation in accordance with the 
elements of the technical evaluation in Sec.  412.46(a)(1)(i)-(vii) to 
demonstrate that it meets the production area requirement for 
certification under proposed Sec.  122.23(h)(2)(i)(A). Today's proposed 
rule does not reopen for additional comment the 2006 proposed revisions 
to section 412.46 relating to NSPS. The comment period on the revised 
NSPS requirements is closed. Rather, EPA is now seeking comment on 
whether the elements of the technical evaluation set forth in proposed 
Sec.  412.46(a)(1)(i)-(vii) provide an appropriate basis for an 
unpermitted CAFO to certify, on the basis of its design, construction, 
operation, and maintenance, that its open surface manure storage 
structure will not discharge.
    In order to meet the second part of the first eligibility 
criterion, this proposed rule would require, in Sec.  
122.23(h)(2)(i)(B), that any certifying CAFO must demonstrate that all 
of its production area, as defined at 40 CFR 122.23(b)(8), not just 
open surface containment structures, is designed, constructed, 
operated, and maintained such that there will be no discharge of 
manure, litter, process wastewater, or raw materials, such as feed, to 
surface waters. For a CAFO without open containment, this provision 
would require a demonstration of no discharge from the entire 
production area. For a CAFO that has an open containment structure, 
this provision would require a demonstration that the remainder of the 
production area (other than the open containment structure subject to 
the demonstration in 122.23(h)(2)(i)(A)), also will not discharge. 
Because of the special risk of discharge from open manure storage 
structures, greater specificity is provided regarding the elements of 
the demonstration in 122.23(h)(2)(i)(A); however, the demonstration in 
122.23(h)(2)(i)(B) must also be technically sound and must be adequate 
to demonstrate that the production area is designed, constructed, 
operated and maintained for no discharge. This demonstration must be 
based on an evaluation of site-specific characteristics, including, 
among others, the amount of manure generated during the storage period, 
the size of the storage structure, control measures to ensure diversion 
of clean water, and seasonal restrictions on land application. Some 
CAFOs may have a combination of open manure storage structures and 
covered structures, while others will house all animals and store all 
manure, feed and by-products under cover. In either case, all parts of 
the production area will need to be covered by the demonstrations 
required under Sec.  122.23(h)(2)(i)(A) and (B). In addition, like 
permitted new source swine, poultry, and veal calf operations, any 
unpermitted CAFO seeking to certify no discharge would be required to 
implement the measures set forth in 40 CFR 412.37(a) and (b) for the 
production area. These additional measures pertain to operation and 
maintenance and include provisions for visual inspections, depth 
markers for all open surface liquid impoundments, corrective action, 
mortality handling and recordkeeping. Since both these permitted new 
source operations and unpermitted certified CAFOs would need to ensure 
no discharge from the production area under the permit and 
certification requirements, respectively, EPA believes it is 
appropriate to rely, in part, on those provisions to establish 
eligibility criteria for no discharge certification. The documents that 
would be necessary to satisfy this eligibility requirement would 
include design documentation and all recordkeeping and operation and 
maintenance planning necessary to address the elements of proposed 
Sec.  122.23(h)(2)(i), which includes the measures set forth in Sec.  
412.37(a) and (b). EPA is considering developing a recordkeeping 
checklist for use by certified CAFOs. Such a checklist would be made 
available to all CAFO

[[Page 12326]]

operators through EPA guidance published subsequent to issuance of the 
final CAFO rule. EPA requests comment on whether such a checklist would 
be useful.
    The second eligibility criterion would require the CAFO to develop, 
implement, and maintain on site an NMP that addresses, at a minimum, 
the elements set forth in 40 CFR 122.42(e)(1) and 40 CFR 412.37(c), and 
addresses all operation and maintenance practices necessary to ensure 
that the CAFO will not discharge. The NMP would include provisions 
regarding nutrient management in the production area as well as in all 
land application areas under the control of the CAFO where the CAFO 
will land-apply manure. EPA believes that implementation of an NMP is 
an essential component of any CAFO's efforts to ensure that it will not 
discharge from its production or land application areas. EPA notes that 
a comprehensive nutrient management plan (CNMP), developed in 
accordance with Natural Resources Conservation Service (NRCS) technical 
guidance for CNMPs,\2\ would be sufficient to meet this eligibility 
criterion as long as the CNMP addresses the minimum elements set forth 
in 40 CFR 122.42(e)(1) and Sec.  412.37(c), and the CAFO addresses all 
the necessary operation and maintenance protocols either in the CNMP or 
one or more operation and maintenance plans. It is common for an 
operation to have one or more operation and maintenance plans in order 
to properly implement a number of NRCS conservation practice standards 
simultaneously. Also, to the extent that the necessary operation and 
maintenance requirements to implement any provision of the NMP are not 
included in the NMP itself, those requirements would need to be 
included in an operation and maintenance plan to be implemented and 
maintained on site.
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    \2\ Technical Guidance for Developing Comprehensive Nutrient 
Management Plans, USDA Natural Resources Conservation Service 
(2003), available at http://policy.nrcs.usda.gov/
viewerFS.aspx?id=3073.
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    Proper certification would require the CAFO to revise its NMP if 
any of the design specifications, practices or other NMP provisions 
changed over time. For example, if the CAFO decided to land-apply 
manure on a field that was not included in the NMP, the CAFO would need 
to calculate rates of application in accordance with the protocols 
required by Sec.  122.42(e)(1)(viii) and revise the NMP to include the 
new field and the corresponding application rates. Because valid 
certification would require the CAFO to at all times be designed, 
constructed, operated, and maintained such that it meets the 
eligibility criteria to establish that the operation does not discharge 
or propose to discharge (see proposed Sec.  122.23(h)(4), discussed 
below), to maintain a valid certification, a CAFO should make the 
adjustments necessary to accommodate a change in circumstances, before 
the circumstances change. For example, if an increase in animals would 
cause the operation to exceed the existing storage capacity for 
precipitation, manure and process wastewater required for no discharge, 
to remain certified the CAFO would need to remedy the storage capacity 
problem prior to bringing the additional animals to the operation.
    EPA would encourage a CAFO preparing the documents necessary for 
the proposed certification to consult with a professional engineer and 
an NRCS-certified technical service provider (TSP) or other qualified 
nutrient management planner. Any professional consulted by the CAFO 
should have the requisite training, experience and expertise to conduct 
and/or substantively review the required analyses, and to advise the 
owner or operator as to whether the CAFO is, in fact, designed, 
constructed, operated, and maintained such that it will not discharge.
4. Submitting the Certification
    Under the proposed certification option, a CAFO seeking to certify 
that it does not discharge or propose to discharge would be required to 
submit the certification to the permitting authority. Under proposed 
Sec.  122.23(h)(3), the submission to the Director would include: (1) 
The CAFO owner or operator's name, address and phone number; (2) 
information regarding the CAFO's location, including latitude and 
longitude; (3) a description of the manner in which the CAFO satisfies 
the eligibility requirements of Sec.  122.23(h)(2); (4) the 
certification statement set forth in proposed Sec.  122.23(h)(3)(iv); 
and (5) an official signature that meets the signatory requirements of 
40 CFR 122.22. The signed certification would make the CAFO legally 
responsible for its representations to the Director regarding the 
design, construction, operation, and maintenance of the CAFO. The 
language regarding legal liability for making a false statement under 
the proposed option is consistent with language in 40 CFR 122.26(g) 
which applies to facilities seeking to obtain a ``no exposure'' 
exclusion for industrial storm water.
    Today's proposed rule would make no changes to the existing 
regulations concerning how CAFOs may make Confidential Business 
Information (CBI) claims with respect to information they must submit 
to the permitting authority and how those claims will be evaluated. A 
facility may make a claim of confidentiality under the existing 
regulations at 40 CFR part 2, subpart B.
    The third item the Agency is proposing for submission to the 
Director, as listed above, is a statement describing the manner in 
which the CAFO satisfies the certification eligibility criteria. EPA 
believes that, at a minimum, the description to be submitted to the 
Director should include: (1) The type and number of animals; (2) the 
type and capacity of manure and wastewater storage and/or containment; 
(3) storm size used as basis for containment design; (4) whether the 
CAFO consulted with a professional engineer or TSP; (5) identification 
of the documents maintained on site in accordance with the eligibility 
criteria; and (6) any technical standards, tools (e.g., RUSLE and 
Phosphorus Index) and formulas used to calculate application rates of 
manure, litter, and process wastewater. EPA seeks comment on whether 
this is the scope and type of information that should be submitted, as 
well as suggestions of other information that should be included in the 
eligibility description submitted for certification.
    The authority given to the permitting authority under section 308 
of the CWA to conduct inspections at point source operations would not 
be affected by this proposed rule. Therefore, any CAFO, whether it is 
certified, permitted, or neither, may be subject to an information 
gathering request or inspection, at the Director's discretion and for 
any of the reasons provided by section 308 of the Clean Water Act. 33 
U.S.C. 1318.
    Under the proposal, the certification would become effective upon 
submission to the Director. The proposed rule would require the use of 
certified mail or equivalent method of documentation for identifying 
the date of submission.
5. Limitations on Certification
    This proposed rule also includes several limitations on 
certification related to the term of a valid certification, reporting, 
and re-certification when a certification becomes invalid. EPA proposes 
that the certification would be valid for five years from the date of 
certification or would terminate when the CAFO has either discharged or 
ceases to be

[[Page 12327]]

designed, constructed, operated and maintained in accordance with the 
documentation supporting the certification (i.e., its production area 
design documentation and nutrient management plan), whichever is 
sooner. See proposed Sec.  122.23(h)(4). EPA is proposing that a valid 
certification would need to be renewed, if desired by the CAFO, every 
five years. This is the maximum statutory term of an NPDES permit. The 
permit renewal process provides the opportunity for operations of a 
permitted CAFO to be reviewed to ensure that they still meet the 
requirements of the Clean Water Act and for new conditions to be 
imposed as necessary. EPA believes that a five-year term for no 
discharge certifications will similarly prompt the CAFO to periodically 
reevaluate whether it is designed, constructed, operated, and 
maintained so as not to discharge and make adjustments to operations 
where necessary. EPA seeks comment on whether five years is an 
appropriate length of time for a no discharge certification.
    In the unlikely event of a discharge from a certified CAFO, the 
CAFO operator, although subject to liability for the discharge itself, 
would not be liable for a violation of the duty to apply in Sec.  
122.23(d), but the certification would cease to be valid. Similarly, 
should a CAFO fail to continue to meet any of the eligibility criteria, 
the CAFO's certification would no longer be valid. Circumstances that 
could result in the certification becoming invalid would include, for 
example, an increase in animals that exceeds the capacity of the 
production area for manure storage and handling, a loss of land 
application areas such that the assumptions in the NMP concerning land 
application would no longer be appropriate, and a discharge of 
pollutants to waters of the United States (other than discharges of 
agricultural stormwater from the land application area, which is exempt 
from permitting requirements).
    Once a certification ceased to be valid, the operator would not be 
able to rely on it if an enforcement action were brought for a 
subsequent violation of the duty to apply for a permit. In sum, a 
discharge by the CAFO or failure of a certified CAFO to continue to be 
designed, constructed, operated, and maintained in accordance with the 
eligibility criteria and certification statement would render the 
certification invalid and put the CAFO in the same position as any 
other unpermitted and uncertified CAFO.
    Failure to continue to meet the eligibility requirements for 
certification in proposed Sec.  122.23(h)(2) would not, in and of 
itself, be a violation of any regulatory requirement, since 
certification would be strictly voluntary. For example, failure to 
implement the measures set forth in Sec.  412.37(a)-(b), which would be 
required for no discharge certification eligibility under proposed 
Sec.  122.23(h)(2)(i), would not be a violation of Sec.  412.37(a)-(b) 
but would render the certification invalid.
    Under proposed Sec.  122.23(h)(5) a CAFO could withdraw its 
certification at anytime by notifying the Director, by certified mail 
or equivalent method of documentation, that it was withdrawing its 
certification. The certification would be withdrawn on the date the 
notification was submitted to the Director. If a CAFO certification 
becomes invalid, proposed Sec.  122.23(h)(5) would require the CAFO 
operator to withdraw its certification within three days of the date on 
which the CAFO's no discharge certification became invalid.
    The CAFO operator would not be required to notify the Director of 
the reason for withdrawing the certification, or even if it was 
withdrawn because some change in circumstances had rendered it invalid 
or merely because the operator no longer chooses to maintain it. For 
example, an operator might decide that particular recordkeeping 
requirements needed for certification were more burdensome than the 
certification was worth, and choose to withdraw the certification so as 
not to have to keep such records. While EPA believes it is important 
for permitting authorities to have an accurate and up-to-date record of 
which unpermitted CAFOs have a valid no discharge certification, and 
thus to require operators to withdraw any certification which ceases to 
be valid, EPA also wishes to emphasize that certification is strictly 
voluntary, and can be withdrawn by the operator without explanation at 
any time.
    If a certification is withdrawn because it ceases to be valid, the 
operator could seek to re-certify that the CAFO does not discharge or 
propose to discharge by revising its operations to address the 
deficiency and submitting a new certification statement. If the 
certification was rendered invalid by a discharge, under proposed Sec.  
122.23(h)(5), in order to re-certify, a CAFO would have to submit to 
the Director the information required under Sec.  122.23(h)(3) and 
additional information describing the discharge, including the time, 
date, cause, and approximate volume of the discharge, and the steps 
taken by the CAFO to permanently address the cause of the discharge, 
i.e., to ensure that no discharge from this cause occurs in the future. 
While review and approval of the technical basis for certification by 
the permitting authority is not generally required, EPA believes it is 
appropriate in situations where a certified CAFO has in fact discharged 
and still believes that it can certify that it does not discharge or 
propose to discharge, for the operator to provide sufficient 
information to assure the Director that the cause of the discharge has 
been adequately addressed to ensure that there will not be future such 
discharges. EPA would generally consider a recurring discharge as 
evidence that a CAFO is not eligible for certification or re-
certification and would need to seek permit coverage.
6. Additional Rationale
    As stated above, under the 2006 proposed revisions to 40 CFR 
122.23(d)(1), a CAFO that does not discharge or propose to discharge 
would not be subject to the duty to apply for an NPDES permit. However, 
as discussed in the preamble to the 2006 proposed rule, if an 
unpermitted CAFO discharges, the CAFO would be in violation of section 
301(a) of the CWA due to the unpermitted discharge and could be in 
violation of the duty to apply if the CAFO could have reasonably 
foreseen that the discharge would occur and did not seek permit 
coverage prior to discharge. A valid certification, however, would 
document the CAFO operator's basis for making an informed decision not 
to seek permit coverage because the CAFO does not discharge or propose 
to discharge, and would protect the CAFO from being held liable for not 
applying for the permit prior to discharge. In the unlikely event that 
a properly certified CAFO discharges, the CAFO would not be subject to 
liability for failure to seek permit coverage prior to discharge in 
violation of 40 CFR 122.23(d) and section 308 of the CWA. However, any 
discharge even from a properly certified CAFO would be an unpermitted 
discharge in violation of CWA section 301 subject to applicable 
injunctive relief and penalties.
    EPA believes that providing protection from liability for violation 
of 40 CFR 122.23(d) and section 308 for a properly certified CAFO is 
reasonable and justified. Certification would require a CAFO owner or 
operator to undertake and document a rigorous analysis of the 
operation's structure and design, and to be committed to operation and 
maintenance protocols designed to ensure no discharge. As stated above, 
certification is entirely voluntary for a CAFO that does not discharge 
or propose to discharge. EPA

[[Page 12328]]

believes that a CAFO owner or operator that would make the effort and 
take the steps needed to certify no discharge should be afforded 
protection from enforcement for failure to have applied for a permit 
prior to discharge if, in the future, there is an unanticipated 
discharge from the CAFO, so long as there has been no lapse in the 
CAFO's eligibility for certification. The operator of an unpermitted 
CAFO choosing not to make and document this certification in accordance 
with each element listed in 40 CFR 122.23(h)(2)-(3) would not receive 
the liability protection provided by a no discharge certification.
    Unlike the 2003 rule that required all CAFOs to seek permit 
coverage in order to operate unless they obtained a determination of 
``no potential to discharge,'' the certification provision proposed 
here would be entirely voluntary. The purpose of the certification 
would be to provide a mechanism by which a CAFO can document that it 
does not discharge or propose to discharge and be assured that even if 
the CAFO does discharge in the future, it would not face an enforcement 
action for failure to apply for a permit. The certification process 
would not, in and of itself, establish whether the CAFO must apply for 
a permit. As proposed in 2006, the requirement for a CAFO to apply for 
a permit would be triggered only when a CAFO discharges or proposes to 
discharge. 71 FR 37,784. The decision to seek permit coverage or no 
discharge certification would be made by the operator based on an 
objective assessment of conditions at the facility, in contrast to the 
2003 rule, which required the operator either to seek permit coverage 
or prove to the satisfaction of the Director that the CAFO had no 
potential to discharge. Therefore, under this proposed rule and Sec.  
122.23(d)(1), the operator would decide whether (1) to obtain permit 
coverage; (2) to certify under the provisions at 122.23(h); or (3) to 
operate without either a permit or certification. EPA notes that a CAFO 
that chooses to operate without a permit implicitly faces more 
stringent requirements than permitted CAFOs because discharges in any 
size storm event are prohibited from unpermitted CAFOs, while certain 
exceptions may be applicable to permitted CAFOs. NPDES permit coverage 
reduces CAFO operator risk and provides certainty to CAFO operators 
regarding activities and actions that are necessary to comply with the 
Clean Water Act.

B. Terms of the Nutrient Management Plan

    In this notice, the Agency is proposing a framework for identifying 
the terms of the nutrient management plan (NMP) that must be 
enforceable requirements of a CAFO's NPDES permit. The proposed 
framework includes three alternative approaches for specifying terms of 
the NMP with respect to rates of application, which are needed to 
satisfy the requirement that the NMP include ``protocols to land apply 
manure, litter or process wastewater * * * that ensure appropriate 
agricultural utilization of the nutrients.'' 40 CFR 122.42(e)(1)(viii). 
For Large CAFOs, these proposed alternatives would also satisfy the 
requirements set forth in 40 CFR 412.4. The proposed framework would 
include supplemental annual reporting requirements for permitted CAFOs 
to accompany these proposed alternative approaches. In addition, this 
supplemental proposal includes two revisions to the 2006 proposed rule 
with respect to changes to a CAFO's NMP, including revisions to the 
proposed conditions that would constitute substantial change to the 
terms of the NMP. This supplemental proposal seeks comment on the 
proposed framework for specifying terms of the NMP to be included in an 
NPDES permit, and on the proposals for changes to the NMP included in 
this notice. No NMP provisions promulgated in the 2003 final rule are 
affected or reopened by this supplemental proposal, nor is EPA 
reopening the comment period on the 2006 proposed rule.
1. Background
    As discussed in the June 2006 proposed rule, the Waterkeeper court 
held that the ``terms of the NMP'' are effluent limitations that must 
be included in the permit. Waterkeeper Alliance v. EPA, 399 F.3d 486, 
502 (2d Cir. 2005). In the preamble to the proposed rule, EPA discussed 
how the ``terms'' of a CAFO's NMP could be identified and included in 
the permit. As stated in the June 2006 proposed rule, the terms of the 
NMP would need to address the nine minimum required elements in 40 CFR 
122.42(e)(1)(i)-(ix) and 412.4(c) (for Large CAFOs, as applicable). 71 
FR 37753.
    The 2006 proposed rule preamble identified a number of factors that 
are necessary to the development of an NMP, including: The maximum 
amount of manure that the CAFO may apply to land application areas 
under its control; an inventory of the fields for land application and 
the associated acreage, soil types, soil tests and testing protocols; 
setbacks and other conservation measures; and a list of all of the 
crops the CAFO may wish to grow on each of those fields with a matrix 
of the associated realistic yield expectations and land application 
rates consistent with the various field conditions. 71 FR 37755. The 
Agency also stated that the NMP should include calculations necessary 
to determine rates of application for the array of crops most likely to 
be planted in accordance with the cropping system utilized by the CAFO 
operator and could include likely alternative scenarios for other crops 
that could be planted. In the Agency's view, listing alternative 
cropping plans would allow a CAFO some flexibility in utilizing 
different combinations of crops and crop rotations for land 
application. However, the Agency added that the NMP should reasonably 
forecast the practices most likely to be utilized by the CAFO. In the 
proposed rule preamble, EPA solicited comment on the degree of 
flexibility that should be allowed in NMPs, particularly regarding the 
terms of the NMP included as permit conditions, and highlighted the 
advantages and disadvantages of allowing some flexibility to the CAFO 
operator. 71 FR 37753-55.
    With respect to portions of the NMP that would be incorporated as 
permit terms, the Agency also proposed regulatory language for 
accommodating changes to the NMP that involve changes to the terms 
during the permit period. The proposed rule identified changes to the 
terms of the NMP that would be considered substantial changes and those 
that would be considered nonsubstantial changes. The items listed as 
constituting a substantial change to the terms of the NMP included 
changes that could result in an increase in runoff of manure, litter, 
or process wastewater from the facility and changes that could result 
in an increase in the rate of nutrients from manure, litter, or process 
wastewater applied to the land application area that is significant in 
relation to technical standards established by the Director. 71 FR 
37,756.
    EPA received many comments on the NMP issues highlighted in the 
proposed rule preamble. Commenters stressed the complexity associated 
with nutrient management planning, particularly with respect to land 
application, and the need to address changes in operation as well as 
changes due to circumstances beyond the CAFO's control arising during 
the permit term, especially where such changes would lead to different 
rates of application of manure, litter, and process wastewater. Many

[[Page 12329]]

commenters wanted clarification of the terms associated with land 
application, and a number of commenters suggested factors that should 
be included as terms of the NMP.
    In reviewing these comments, the Agency has determined that a 
provision specifically identifying the terms of the NMP required to be 
included in the permit would address a number of these concerns. In 
particular, the comments indicated a need to clarify what constitutes 
the terms of the NMP regarding rates of application, given the 
complexity of factors used to determine rates of application and the 
dynamics associated with such factors. This clarification would 
facilitate a common understanding of the terms of the NMP required in a 
CAFO's permit, and thereby reduce the likelihood of confusion and 
promote better awareness of what the permitting authority must do to 
ensure that the permit complies with the Clean Water Act and these 
regulations and of what a CAFO must do to comply with its permit. 
Moreover, specifically identifying the terms that must be included for 
each CAFO would enhance the public's ability to participate 
meaningfully in the development, revision, and enforcement of the terms 
of the NMP as called for by the Second Circuit in the Waterkeeper 
decision.
2. Supplemental Proposal for Terms of the NMP To Be Included in the 
Permit
    In light of these concerns, EPA is supplementing the June 2006 
proposed rule with a proposal to specify in the regulation what 
elements of the NMP would be terms of the NMP that would be required to 
be included as enforceable terms of a CAFO's NPDES permit. The rule 
would require that the terms of the NMP must include the information, 
protocols, best management practices, and other conditions identified 
in a CAFO's nutrient management plan and determined by the permitting 
authority to be necessary to meet the requirements of 40 CFR 
122.42(e)(1). For Large CAFOs subject to the land application 
requirements of the effluent limitations guideline, the terms would 
include the best management practices in 40 CFR 412.4(c) in addition to 
the requirements of part 122.
    The ``information, protocols, best management practices, and other 
conditions'' that would constitute the terms of the NMP would include 
what the CAFO operator would be required to do to properly implement 
its NMP and determinative conditions upon which such actions are based. 
For example, both the structural design capacity necessary to satisfy 
the storage requirement of Sec.  (e)(1)(i) and the associated 
operational and maintenance conditions necessary to ensure adequate 
storage, would be considered terms of the NMP. Likewise, the terms of 
the NMP would need to ensure, for example, proper management of 
mortalities and diversion of clean water. However, the number of 
animals confined would not necessarily need to be a term of the NMP 
because a CAFO operator would be required to properly operate and 
maintain the CAFO's storage facilities regardless of the number of 
animals or the volume of manure, litter, or process wastewater 
generated. On the other hand, the Director could, for example, include 
an upper limit on the number of animals as a term.
    For CAFOs that land apply manure, litter, and process wastewater, 
the fields the CAFO plans to use for land application would be a term 
of the NMP. Similarly, as discussed in greater detail below, field-
specific, crop-specific application rates would be terms of the NMP, as 
would certain factors needed to determine the rates. However, 
background information that is fixed and unchangeable, such as actual 
historic yields used in the development of an NMP, while important for 
determining rates of application, would not need to be terms of the 
NMP.
3. Rates of Application
    40 CFR 122.42(e)(1)(viii) requires the nutrient management plan to 
include ``protocols to land apply manure, litter or process wastewater 
in accordance with site specific nutrient management practices that 
ensure appropriate agricultural utilization of the nutrients in the 
manure, litter or process wastewater.'' As EPA noted in the June 2006 
proposed rule, the Waterkeeper court focused on rates of application as 
perhaps the most important term of the NMP, in particular the 
provisions of the effluent limitations guidelines in 40 CFR 412.4(c), 
and emphasized their site-specific nature. 71 FR 37753. In considering 
the elements of an NMP that should be identified as the minimum terms 
with respect to land application rates, in light of comments received 
on the 2006 proposed rule, two general principles emerged. First, rates 
of application depend on the information on which they are based, such 
as information about the field, crops, and nutrient content of the 
manure. Second, this information can change, and in order to address 
changing circumstances during the period of a permit (ordinarily five 
years), there is a need for some flexibility in establishing rates of 
application. The Agency proposes three alternative approaches, 
discussed below, which vary in the degree of flexibility with respect 
to expressing rates of application and factors to be included in the 
permit as terms of the NMP. However, all three approaches would ensure 
that legally-enforceable field- and crop-specific application rates are 
included in the permit.
    Rates of application are field-specific and are designed to ensure 
that crops receive sufficient nutrients to meet yield goals, while 
minimizing the amounts of nutrients that could be transported from the 
field. The total amount of plant available nutrients necessary to meet 
yield goals includes residual nutrients already in the field and the 
nutrients added for a particular crop. Residual nutrients are those in 
the soil or on the field remaining from prior applications of manure, 
litter, process wastewater, or chemical fertilizer, or from other 
sources such as crop residues and nitrogen fixing legumes. The addition 
of nutrients to a field includes application of chemical fertilizer, as 
well as application of manure, litter, or process wastewater.
    The NMP must consider the capacity of the field for manure, litter, 
or process wastewater application, generally depending on the capacity 
of the soil to retain phosphorus. State technical standards generally 
require the use of the phosphorus index or a similar tool for assessing 
the potential for nutrient transport from a field and for determining 
the limiting nutrient (phosphorus or nitrogen) for application of 
manure, litter, or process wastewater. The outcome of the assessment of 
the potential for phosphorus transport does not typically change from 
year to year. However, because soil phosphorus levels tend to change 
incrementally depending upon the buffering capacity of the soil, this 
assessment may limit the amount of phosphorus, and thus the amount of 
manure, litter, and process wastewater, that may be added to a field.
    Once the residual nutrients and potential for nutrient transport 
from the fields has been determined, the next step is to identify the 
crops to be planted, or other uses, for each field where land 
application will occur and the nitrogen and phosphorus needs of these 
crops or other uses. The NMP also must identify the realistic yield 
expected from the crop or crops planted in the field, in order to 
calculate the proper amount of nutrients to apply. A crop's nutrient 
needs are generally determined in accordance with the

[[Page 12330]]

nutrient recommendations for a given crop (or other planting, such as 
forage or pasture) and the per acre realistic yield goal for such crop, 
both of which are typically set by the State land grant university or 
based on equations provided by the land grant university. The realistic 
yield rate can also be based on historic field-specific yield data.
    Finally, the amount of manure, litter, or process wastewater, in 
tons or gallons, to be land applied in order to meet, but not exceed, 
crop nutrient needs (after considering residual nutrients and potential 
for nutrient transport from fields) depends on the nutrient content of 
the manure, litter, and process wastewater, as well as the source and 
form of nutrients to be land applied and the method and timing of land 
application. Whereas one CAFO operator may wish to follow the planned 
sequence of steps for planting crops and applying manure, litter, and 
process wastewater described in the NMP submitted to the Director, 
another operator may want or need to vary from that linear sequence of 
events, due to choices made in the course of normal operations, or in 
response to events or circumstances beyond the CAFO's control, such as 
weather, crop failure, or market conditions. EPA addressed these 
concerns in the preamble to the 2006 proposed rule, and stated that the 
proposed approach could accommodate such changes.
    In the proposed rule preamble discussion concerning changes to the 
terms of the nutrient management plan, EPA encouraged CAFO operators to 
develop NMPs that anticipate contingencies and changes in operations 
that may occur over the term of the permit. Such contingencies may 
include other potential crops that could be planted, or possible crop 
rotations or other alterations in cropping patterns with accompanying 
field-specific calculations for manure, litter, and process wastewater 
application rates based on realistic crop yield goals, soil 
characteristics, typical weather patterns, and other site-specific 
field conditions. The Agency noted that the public would then have the 
opportunity to review all anticipated operational scenarios and 
associated field-specific manure, litter, and process wastewater 
application rates, including the calculations on which these rates were 
based. The Agency viewed this approach as allowing an NMP to address 
most year-to-year changes in nutrient management practices anticipated 
during the period of permit coverage and greatly reduce the need for 
NMP and associated permit modifications, as the NMP would have already 
accounted for a range of potential operational scenarios.
    With respect to identifying annual rates of application as terms of 
the NMP, a number of commenters stated that it was unrealistic for EPA 
to expect all CAFOs to be able to establish rates of application as 
terms of the NMP for the full period of permit coverage and asked EPA 
for a process to establish rates on an annual basis. They based their 
comments on the variability, range, and interdependency of factors 
associated with the determination of rates of application. Some 
commenters preferred greater flexibility for CAFO operators in setting 
such rates, while others thought that application rates should be made 
available for public comment each year.
    In this supplemental proposal, EPA is proposing to include in the 
rule three distinct alternative approaches for expressing the terms of 
the nutrient management plan with respect to rates of application. Each 
approach would establish annual maximum rates of application of manure, 
litter, and process wastewater by field and crop for each year of 
permit coverage and would identify the minimum required terms of the 
NMP specific to that approach. Each approach would also require annual 
reporting requirements to provide actual data that would be publicly 
available concerning compliance with permit requirements during the 
previous year.
    The three approaches would express field-specific maximum rates of 
application, respectively, as follows: (1) As tons or gallons of 
manure, litter, and process wastewater to be applied; (2) as the amount 
of nitrogen and phosphorus from manure, litter, and process wastewater 
to be applied; or (3) as a narrative rate for calculating the amount of 
manure, litter, and process wastewater to be applied. The first 
approach would require a permit modification to exceed the amount of 
manure, litter, and process wastewater specified for a particular crop 
or field in the original permit. The second approach is more flexible 
in that it would allow CAFOs to adjust the level, method and timing of 
manure, litter, and process wastewater application as long as the 
field- and crop-specific amounts of nutrients were not exceeded without 
having to seek permit modifications. The third approach is the most 
flexible, because it would use a methodology and actual field data to 
calculate in real time the amount of manure, litter, and process 
wastewater to be land applied, and is thus best suited to allow the 
operator to adjust application rates in response to changes in field 
specific conditions.
    All three approaches would require the CAFO operator to develop an 
NMP that projects for each field and for each year of permit coverage 
the crops to be planted, crop rotation, crop nutrient needs, expected 
yield, and projected rates of application of manure, litter, and 
process wastewater. However, each approach is different in identifying 
which of these projections would be required to be ``terms of the 
NMP.'' Each approach would result in annual rates of application of 
manure, litter, and process wastewater that are maximum application 
rates stated in the permit and that would be enforceable, and each 
would require that application rates be specific for each crop that 
would be planted on a specific field.
    A properly developed NMP must evaluate the condition of the fields 
to be used for land application based on soil test levels, the form(s) 
and amount(s) of manure, litter, or process wastewater generated by the 
CAFO, and the uses for each field; for example, crop, pasture, or 
fallow land. An NMP must also describe on a field-by-field basis how 
the application rates are calculated, which for large CAFOs must be in 
accordance with State technical standards.
    These calculations must also take into account, with respect to 
each crop to be grown or other agricultural use, the source and form of 
nutrients to be land applied, the method of application of manure, 
litter, and process wastewater, and the timing of when application will 
occur. Although a properly developed NMP involves consideration of all 
of these factors, some operators may have multiple sources of manure, 
litter, or process wastewater and may need to make the determination as 
to which source to draw from for land application to a particular field 
in a given year at some point in time after the NMP has been developed. 
The method of application depends on the source and form of manure, 
litter, or process wastewater, on the location of a particular field 
and the equipment available for such field, and on the crop to be 
planted. For example, wastewater may be spray-irrigated, surface 
applied, or injected, whereas poultry litter is most likely to be 
surface applied by a manure spreader.
    The forms of plant available nitrogen and phosphorus to be factored 
into calculations for rates of application should be identified in the 
technical standards established by the Director or in other 
documentation referenced in the State's technical standards. Typically, 
the amounts of plant available phosphorus are determined based on the 
amount of phosphate and the amount of organic phosphorus that

[[Page 12331]]

will mineralize during the growing season, and the amount of plant 
available nitrogen is based on the amount of nitrate and ammonium-
nitrogen and the amount of organic nitrogen that will mineralize during 
the growing season. As previously discussed, it is the plant available 
forms of nitrogen and phosphorus that are relevant in determining rates 
of application. If there is any disagreement as to the appropriate 
forms of nitrogen and phosphorus to be factored into these 
calculations, the Director would determine the acceptable approach. The 
amount of plant available nitrogen also depends on the nitrogen 
volatilization rate associated with the source of nutrients and the 
timing and method of land application.
    EPA expects a complete NMP to also account for any other additions 
of crop available nutrients during the crop year, such as chemical 
fertilizer, irrigation water (groundwater may have measurable 
concentrations of nutrients), and biosolids, where applied. Crediting 
for all residual nitrogen and phosphorus in the field that will be 
plant available, including crediting for additions from each prior year 
of the permit term, as well as accounting for other additions of 
nitrogen and phosphorus, should be done in accordance with the 
directions provided in the technical standards (required for all 
permitted Large CAFOs). Since organic forms of nutrients typically 
become plant available when they are converted to inorganic forms, such 
as nitrate, ammonium, and phosphate, crediting generally identifies the 
amount of organic nutrients likely to be converted to inorganic forms 
that will be plant available. Credits would be based on the soil test 
results included in the NMP and projected applications of nutrients 
from manure, litter, and process wastewater during intervening years, 
as well as other additions, including from crops (e.g., where crops are 
plowed under or residues are left on the field), commercial fertilizer, 
and other sources of nutrients remaining on the field that would be 
plant available during the next growing season. Credits would also be 
based on mineralization rates and crop uptake of nutrients.
    Because a CAFO operator could plant more than one crop on a field 
in a given year, the plant available amount of nitrogen and phosphorus 
would need to be calculated with reference to the nutrient needs of all 
the crops to be planted on such field in a given year in order to be 
accurate. This would include accounting for other field uses for 
agricultural purposes, such as pasture and cover crops, because EPA 
expects a complete NMP to account for other uses of a field.
    Under all three of the proposed approaches, the terms of the NMP 
would be required to include specific factors used for the development 
of rates of application. These would include:
     The outcome of the field-specific assessment of the 
potential for nitrogen and phosphorus transport from each field;
     The crop or crops to be planted in each field or any other 
uses such as pasture or fallow fields;
     The realistic annual yield goal for each crop or use 
identified for each field; and
     The nitrogen and phosphorus recommendations from sources 
acceptable to the Director for each crop or use identified for each 
field.
    The phrase ``outcome of the field-specific assessment of the 
potential for nitrogen and phosphorus transport from each field'' 
reflects the terminology typically associated with the use of the 
phosphorus index in accordance with the USDA conservation practice 
standard 590 that has been adopted by many States. However, EPA 
contemplates that, since the 590 standard allows States to use other 
methodologies, such as soil test phosphorus and phosphorus threshold, 
any one of these would satisfy the requirements of this proposed rule. 
Ultimately, the purpose of the field-specific assessment of the 
potential for nitrogen and phosphorus transport is to determine the 
appropriate limiting nutrient for developing land application rates, 
i.e., whether phosphorus or nitrogen limits the amount of manure, 
litter, or process wastewater that can be applied and the degree to 
which the limiting nutrient restricts land application.
    Each of the three approaches differ in the way that they would 
account for other information necessary for determining the appropriate 
rates of application. This information relates to: (1) Credits for 
residual nitrogen and phosphorus available in each successive year 
during the five-year term of the permit; (2) accounting for additions 
of commercial fertilizer and other additions of nitrogen and phosphorus 
during each successive year; (3) the form (liquid, solid) and source 
(e.g., lagoon, compost, process wastewater) of the material to be land 
applied; (4) nitrogen and phosphorus content of the manure, litter, or 
process wastewater; (5) timing of application; and (6) method of 
application (e.g. spreading, spray, injection).
    The following three sections of the preamble describe the specific 
aspects of each of the approaches and how each approach accounts for 
these factors. See the table that summarizes what the terms would be 
for each of the three approaches, available in the docket for this 
rulemaking, EPA-HQ-OW-2005-0037.
(a) Linear Approach--Rates Expressed in Tons and Gallons of Manure, 
Litter, and Process Wastewater
    The first proposed approach would allow the CAFO to express rates 
of application as tons of manure or litter, and gallons of manure or 
wastewater. The terms of the NMP would include maximum application 
rates for each year of permit coverage, for each crop identified in the 
NMP, in tons of manure or litter, or gallons of manure or process 
wastewater, per acre, per year, for each field to be used for land 
application. In addition, the terms of the NMP would include:
     The outcome of the field-specific assessment of the 
potential for nitrogen and phosphorus transport from each field;
     The crop or crops to be planted in each field or any other 
uses such as pasture or fallow fields;
     The realistic annual yield goal for each crop or use 
identified for each field;
     The nitrogen and phosphorus recommendations from sources 
acceptable to the Director for each crop or use identified for each 
field;
     Credits for all nitrogen and phosphorus in the field that 
will be plant available;
     Accounting for all other additions of plant available 
nitrogen and phosphorus to the field;
     The form and source of manure, litter, and process 
wastewater to be land applied; and
     The timing and method of land application.
    This approach is considered a ``linear'' approach because it is 
based on the use of only those crops included in the planned crop 
rotations in the NMP; the amounts of manure, litter, and process 
wastewater to be land applied according to the planned schedule for 
land application (including source and method and timing of 
application); and the projected values for plant available nitrogen and 
phosphorus from other sources. Under this approach, rates would follow 
the conventions by which NMPs have been developed and would require the 
CAFO to follow the sequence identified in the NMP for each field-
specific crop rotation and each planned step for land application of 
manure, litter or process wastewater.

[[Page 12332]]

    While important to the development of the NMP, some underlying 
factors necessary for calculating rates of application using this 
linear approach in the NMP, and necessary to be included in the NMP, 
would not be required to be terms of the NMP. These factors include the 
methodology for determining rates of application, and the values and 
formulas used in the methodology for calculating volatilization rates 
for nitrogen and mineralization rates for organic nitrogen and 
phosphorus. Because the maximum rates of application using this 
approach are expressed as amounts of manure, litter, or process 
wastewater and are terms of the NMP, and are based on the use of these 
factors, these factors themselves do not need to be terms of the NMP. 
Whether these factors been applied correctly and whether the rates as 
calculated in the NMP are consistent with applicable requirements, are 
issues which are properly addressed when the NMP is subject to review 
by the Director and by the public. These are analogous to the types of 
calculations and data submitted in a permit application and found in 
the fact sheet that accompanies a draft NPDES permit for other types of 
permitted point sources.
    Under this approach, the CAFO would land apply manure, litter, and 
process wastewater, in the amounts specified for each field in the NMP, 
following the schedule and the methods of application described in the 
NMP. However, Large CAFOs would need to take into account the annual 
manure test results required by the 2003 final rule, so as to not 
exceed the nutrient needs of the crops, and limit actual rates of 
application by adjusting the amount of manure, litter, and process 
wastewater to be applied if the concentrations of nitrogen or 
phosphorus in the manure were higher than those projected in the plan.
    The environmental and operational integrity of this approach hinges 
on the CAFO making accurate predictions in the NMP that are not 
disrupted by changes to the CAFO's operation or by circumstances beyond 
the control of the CAFO operator. Any changes to the terms of the NMP 
would constitute a change to the terms of the permit, which would 
require a permit modification. (See discussion of substantial changes 
below.) For example, any changes to the planned crop sequence, such as 
the addition of a second crop to a field, where a CAFO might need to 
land apply more than the maximum amount of manure, litter, or process 
wastewater in a given year would require a permit modification.
    On the other hand, the advantage of this approach is simplicity for 
the CAFO operators with predicable land application needs and for the 
public. This would be particularly suitable for operations that 
consistently plant one crop or two crops in rotation on the same 
fields, using the same source and form of manure, litter, or process 
wastewater, and that land apply on a regular annual schedule using the 
same application method(s).
    EPA notes that even under the linear approach, operators could 
retain some flexibility by specifying more than one field-specific crop 
rotation plan in the NMP, with application rates of manure, litter, and 
process wastewater specified for each alternative plan and included in 
the permit. This might be practical for operators who are reasonably 
confident that they will follow one of two or three potential crop 
rotations. EPA has developed the other two approaches for operators 
needing a greater degree of flexibility.
(b) Matrix Approach: Application Rates Expressed as Pounds of 
Phosphorus and Nitrogen
    The second proposed approach (``matrix approach'') would express, 
for each year of permit coverage, rates of application as the maximum 
amount of plant available nitrogen and phosphorus, in pounds, from 
manure, litter, and process wastewater that could be land applied for a 
particular crop on a given field in a given year, rather than amounts, 
in tons or gallons, of the manure, litter, and process wastewater. 
Also, under this approach, operators would be able to identify for each 
field alternative crops that they would reasonably expect to plant in a 
given year, along with allowable rates of application for nitrogen and 
phosphorus for each specified crop on the field.
    This option would provide more flexibility to operators than the 
first approach because it would allow the operator to vary the sequence 
of crops in the planned rotation or substitute other crops for those 
identified in the planned rotation if the permit specified different 
maximum rates of application of nitrogen and phosphorus for each crop 
and field for a given year, without relying on permit modifications to 
allow such changes. Such flexibility would be possible because credits, 
when utilizing such flexibility, would be based on the ``baseline'' 
amount of residual nitrogen and phosphorus determined when the NMP was 
developed and then used to calculate maximum rates of application for 
each of the crops identified in the NMP for a given field. Addition or 
substitution of other crops identified in the NMP and changes to the 
sequence described in the NMP would then result in the CAFO being 
limited to use of the crop-specific maximum rates of nitrogen and 
phosphorus from manure litter and process wastewater for the crop 
actually planted.
    Typically, an NMP is written with crop rotations that extend over 
several years and generalized schedules for land application of manure, 
litter, or process wastewater. EPA is proposing that CAFO operators who 
choose this approach for expressing rates of application would be 
allowed to identify in the NMP other crops that could be planted on a 
field in the form of a matrix, with field-specific yield goals, 
nutrient recommendations, and maximum rates of nitrogen and phosphorus 
application for each crop.
    Unlike the linear approach, which would rely on projections of the 
amount, in tons or gallons, of manure, litter, and process wastewater 
to be land-applied, based on prescribed sources, methods of 
application, and timing, in the matrix approach, the terms of the NMP 
would include maximum limitations on the amount of nitrogen and 
phosphorus, in pounds, from manure, litter, and process wastewater that 
could be land applied and the methodology by which these factors would 
be used to calculate how much manure, litter, and process wastewater 
would be allowed to be applied so that the maximum application rates of 
nitrogen and phosphorus would not be exceeded. This would provide 
flexibility to the CAFO in selecting the source of manure, litter or 
process wastewater, and the choice of method of application, all of 
which could vary during the period of permit coverage. This approach 
would ensure that the amount of manure, litter, or process wastewater 
allowed to be land-applied would be based on the results of the most 
recent annual manure test (which, for permitted Large CAFOs, must be 
done at least annually, as required by 40 CFR 412.4(c)(3)), rather than 
on manure tests and projections used in the development of the NMP.
    For CAFOs using the matrix approach, the minimum factors used to 
determine the rates of application in the CAFO's NMP that would be 
required to be included as terms of the NMP would be:
     The outcome of the field-specific assessment of the 
potential for nitrogen and phosphorus transport from each field;
     The crop or crops to be planted in each field or any other 
uses such as pasture or fallow fields;

[[Page 12333]]

     The realistic annual yield goal for each crop or use 
identified for each field;
     The nitrogen and phosphorus recommendations from sources 
acceptable to the Director for each crop or use identified for each 
field;
     Credits for all nitrogen and phosphorus in the field that 
will be plant available;
     And accounting for all other supplemental plant available 
additions of nitrogen and phosphorus to the field.
    In addition, this second approach would add as a term of the NMP 
the methodology by which the NMP accounts for the following factors 
when calculating the amounts of manure, litter, and process wastewater 
to be land applied:
     The form and source of manure, litter, and process 
wastewater;
     The timing and method of application; and
     The values and formulas used to calculate volatilization 
of nitrogen and mineralization of organic nitrogen and phosphorus, 
which are necessary for determining the availability of nitrogen and 
phosphorus for crop uptake in different forms of manure, depending on 
method and timing of land application.

Under this approach, none of these latter factors would itself be a 
term of the NMP. Rather, the methodology used in the NMP, which would 
be a term, would allow the Director and the public to predict how rates 
of application of manure, litter, and process wastewater would be 
calculated based upon consistent use of the methodology in accounting 
for all of these factors.
    Most CAFO operators plan a specific crop rotation around several 
crops that may be planted on a given field. Although crops are 
generally planted in a manner that follows established crop rotations, 
an operator may make farming decisions that result in a different crop 
being planted than was scheduled for a given year in the CAFO's NMP. A 
CAFO may change its rotation for any number of reasons including but 
not limited to, drought, excessive rainfall, or changed market 
conditions. The advantage of the matrix approach is that it would not 
lock the CAFO into a single planting sequence for each field, nor into 
applying manure from a particular source, at a particular time, in a 
particular way, thus reducing the need for CAFOs to seek permit 
modifications.
    A concern associated with the matrix approach is that, in 
determining maximum rates of application when deviating from the 
planned rotation, the levels of crop available nutrients in the soil 
used for calculating rates would be the baseline levels established 
when the NMP is developed and so would not take into account any 
changes in crop available nitrogen and phosphorus on the field up to 
that point in the term of the permit. Instead, the methodology would 
need to estimate current levels of crop available nutrients by 
estimating residuals remaining from the prior year(s) of crops, land 
application, and other additions of nutrients since the beginning of 
the permit period. Thus, a CAFO applying at the maximum levels of 
nitrogen and phosphorus allowed by the permit could actually overapply 
nitrogen and phosphorus if the amount of crop available nitrogen or 
phosphorus in the field were in fact higher than the amounts estimated 
using the soil test data available when the NMP was developed. 
Conversely, if the crop available nitrogen or phosphorus on the field 
was lower than the amount used in calculating the maximum rates 
incorporated into the permit, a CAFO applying at the maximum rate 
allowed by the permit might be applying less nitrogen and phosphorus 
from manure, litter, and process wastewater than the amount needed for 
the crop, and would need to seek a permit modification if more 
nutrients from manure, litter, and process wastewater were needed.
    This problem also exists to a lesser degree for the linear 
approach, in that factors not under the control of the operator (eg, 
actual crop yields) might affect the residual nutrients on the field 
and thus the appropriate amounts of manure, litter, and process 
wastewater to apply. Where the maximum application rates, under either 
approach, are too high, because residual nutrients on the field are 
higher than projected, the operator may adjust the application rates 
downward to reflect these changes. However, where the maximum rates are 
insufficient to provide for the nutrient needs of the crops, the 
operator will need to either (1) increase the supply of nutrients from 
other sources (eg, commercial fertilizer) or (2) apply for a change to 
the permit. EPA expects that operators will generally use realistic 
yield assumptions that will minimize, but not eliminate, the need for 
such permit changes. The third approach for determining permit terms, 
discussed below, avoids this problem by allowing the operator to 
recalculate the specific amounts of manure, litter, and process 
wastewater to be applied based on field-specific conditions in the year 
of application.
(c) Narrative Rate Approach--Rates Derived From Total Amounts of Crop 
Available Nitrogen and Phosphorus
    EPA is proposing a third approach that would allow rates of 
application to be expressed as a narrative rate that includes the total 
amount of crop available nutrients from all sources combined with a 
specific, quantitative method for calculating the amount, in tons or 
gallons, of manure, litter, and process wastewater to be land applied. 
For this quantitative approach, the terms of the NMP would include the 
maximum amounts of total nitrogen and phosphorus from all sources of 
nutrients for each year of permit coverage for each crop or other field 
use identified in the nutrient management plan in chemical forms 
determined to be acceptable to the Director in pounds per acre per year 
for each field.
    The narrative rate approach would include as terms the four terms 
required under all three approaches:
     The outcome of the field-specific assessment of the 
potential for nitrogen and phosphorus transport from each field;
     The crop or crops to be planted in each field or any other 
uses such as pasture or fallow fields;
     The realistic annual yield goal for each crop or use 
identified for each field; and
     The nitrogen and phosphorus recommendations from sources 
acceptable to the Director for each crop or use identified for each 
field.

In addition, as in the matrix approach, this second approach would 
include as a term of the NMP the methodology by which the NMP accounts 
for certain factors when calculating the amounts of manure, litter, and 
process wastewater to be land applied.
    Unlike the linear approach, the amount of manure, litter, and 
process wastewater to be applied as projected in the NMP submitted with 
the permit application or NOI would not be a term of the NMP. Instead, 
the rate would be the amount of manure, litter, and process wastewater 
calculated using the methodology and based on actual amounts of plant 
available nitrogen and phosphorus from all sources at the time of land 
application. The amounts of total nitrogen and phosphorus from all 
sources would include the amounts, in pounds, of plant available 
nitrogen and phosphorus already on the field and applied as commercial 
fertilizer, as well as the amounts in the manure, litter, and process 
wastewater to be land applied.
    This approach would eliminate certain issues associated with a 
five-year planning cycle previously discussed in

[[Page 12334]]

connection with the two approaches presented above. A key difference of 
this proposed approach is that it would require the use of annual soil 
tests for determining actual soil phosphorus levels. EPA is proposing 
this approach to allow CAFOs that may need to adjust their rates of 
application of manure, litter, and process wastewater due to changes in 
soil levels of nitrogen and phosphorus to do so without requiring the 
permit to be modified. Therefore, it is important to ensure that the 
actual changes in soil levels of plant available nitrogen and 
phosphorus are taken into account, rather than relying on projected 
fluctuations provided in the NMP. The results of the annual soil test 
and manure test data would be used to calculate, in real time, the 
amount of manure, litter and wastewater to be applied, to supply the 
remaining nitrogen and phosphorus needed for the actual crop being 
planted on the field.
    In addition to accounting for the crop and field information, the 
methodology for making this calculation would be required to account 
for a number of other variables, including the form and source of the 
manure, litter, and process wastewater and the timing and method of 
application. In other words, the maximum application rate for land 
application of manure, litter, and process wastewater would be a 
requirement that the operator apply not more than the maximum amount of 
nitrogen and phosphorus calculated using the methodology.
    As stated above, the terms of the NMP would include the complete 
methodology for calculating the amount of manure, litter, or process 
wastewater to be applied. The proposed rule would require the 
methodology to account for the following factors:
     Results of soil tests conducted in accordance with 
protocols identified in the nutrient management plan, as required by 40 
CFR 122.42 (e)(1)(vii);
     Credits for all nitrogen and phosphorus in the field that 
will be plant available;
     The amount of nitrogen and phosphorus in the manure, 
litter, and process wastewater to be applied;
     All other additions of plant available nitrogen and 
phosphorus to the field;
     The form and source of manure, litter, and process 
wastewater;
     The timing and method of land application; and
     The values and formulas used to calculate volatilization 
of nitrogen and mineralization of organic nitrogen and phosphorus.
    The factors listed above would not themselves be terms in the 
narrative rate approach, but the methodology used to account for them 
in the CAFO's permit would be. Thus, the terms of the NMP under this 
approach would not include the amount of nitrogen and phosphorus in the 
manure, litter, or process wastewater to be land-applied as set forth 
in the NMP. Nor would the terms of the NMP include the predicted 
source, form, timing, and method of application of manure, litter, or 
process wastewater set forth in the NMP. These factors would be subject 
to recalculation during the period of permit coverage, using the 
methodology in the NMP for calculating the amount of manure, litter or 
process wastewater allowed to be applied.
    Under this proposed approach, the NMP would include planned crop 
rotations for each field and corresponding projected amounts, in tons 
or gallons, of manure, litter, and process wastewater to be applied, 
including all of the calculations for determining such projected 
amounts, for the period of permit coverage. This would give the 
permitting authority and the public an opportunity to review, prior to 
permit issuance, the adequacy of the CAFO's methodology and the way the 
CAFO would use the methodology to calculate the appropriate amount of 
manure, litter, and process wastewater to be applied, based on the 
operator's planned crop rotation at the time of permit issuance.
    The narrative rate approach would require the CAFO to recalculate 
the application rates projected in the NMP, in tons and gallons, of 
manure, litter, and process wastewater, using the methodology in the 
NMP, at least once a year, throughout the period of permit coverage. In 
recalculating these rates, a CAFO would be required to use annual soil 
tests and concurrent calculations of credits for all plant available 
nitrogen and phosphorus in the field. The CAFO would then calculate the 
maximum amount of nitrogen and phosphorus from manure, litter, and 
process wastewater allowed to be applied, as a portion of the total 
amount of nitrogen and phosphorus from all sources, using the 
methodology in the NMP. In order to ensure that such recalculations are 
made available to the Director and the public, the recalculations and 
the new data from which they are derived would be required to be 
reported in the CAFO's annual report for the previous twelve months. In 
other words, the rate of application would be an objective, enforceable 
rate, because the permit would specify the methodology required for 
calculating the rate, certain values or sources of information required 
to be used in the methodology, and would limit the total amount of 
nitrogen and phosphorus from all sources for each year of the permit. 
Failure to comply with the rate established under the permit would be a 
violation of the permit.
    EPA believes that the flexibility of this proposed approach would 
reduce the burden on permitting authorities and CAFO operators by 
decreasing the number of substantial changes to the permit, which 
require public notice and comment, arising from changes to the CAFO's 
crop rotations, while ensuring that all effluent limitations applicable 
to a permitted CAFO are incorporated as terms of the permit, as 
required by the Waterkeeper decision.
    As many commenters on the 2006 proposed rule pointed out and EPA 
recognizes, there may be changes in field conditions or practices at a 
CAFO, including, for example, those that alter the projected levels of 
crop available nitrogen and phosphorus in the soil, or in the manure, 
over the period of permit coverage. Such changes introduce some 
uncertainty in setting application rates for five years as enforceable 
terms of the permit. This third approach is designed to accommodate 
these concerns, by allowing a CAFO to compensate for changes in soil 
levels of crop available nutrients, in manure content, or in the timing 
and method of application, by adjusting the application rates 
accordingly without the need for a permit modification. However, the 
operator would be limited to the total crop-specific amount of nitrogen 
and phosphorus from all sources and would have to adhere to a 
methodology that would establish the way in which such rates could be 
calculated. Thus, in the second and later years of the permit term, 
this approach would provide an accurate and verifiable means of 
achieving realistic production goals while minimizing transport of 
phosphorus and nitrogen from the field. This would help CAFOs to avoid 
the possibility of over-application of nitrogen or phosphorus because 
of increased levels of nutrients in the soil, compared to what was 
projected at the time of permit issuance, and, conversely, the 
possibility of failing to meet crop agronomic needs due to under-
application of nitrogen or phosphorus.
4. Changes to Nutrient Management Plans
    It is well understood that agricultural operations modify their 
nutrient management and farming practices during the normal course of 
their operations. Such alterations may require

[[Page 12335]]

changes to a permitted CAFO's NMP during the period of permit coverage.
    As discussed in the preamble to the 2006 proposed rule, the permit 
does not need to be modified for all operating changes. Because of the 
way NMPs are developed, most routine changes at a facility should not 
require changes to the NMP itself. To minimize the need for revision, 
nutrient management plans should anticipate and accommodate routine 
variations inherent in agricultural operations such as anticipated 
changes in crop rotation, as well as changes in numbers of animals and 
volume of manure, litter, or process wastewater resulting from normal 
fluctuations or a facility's planned expansion. Typically, an NMP is 
developed to accommodate, for example, normal fluctuations in herd or 
flock size, capacity for manure, litter, and process wastewater 
storage, the fields available for land application and their capacity 
for nutrient applications. Moreover, as discussed in this preamble, EPA 
would encourage operators to develop an NMP that includes reasonably 
predictable alternatives that a CAFO may implement during the period of 
permit coverage. However, unanticipated changes to a nutrient 
management plan may nevertheless be necessary.
    In the 2006 proposed rule, EPA proposed a process that CAFOs and 
the permitting authority would need to follow when a CAFO makes changes 
to its NMP. The proposal also included criteria for determining when a 
change to a CAFO's NMP should be considered a substantial change. In 
this supplemental notice, the Agency is soliciting comment on several 
modifications to the 2006 proposal.
(a) Changes to a Permitted CAFO's Nutrient Management Plan
    EPA is proposing to revise the proposed list of changes to the NMP 
that would constitute a substantial change to the terms of a facility's 
NMP, thus triggering public notice and permit modification. Substantial 
changes would include: (1) Addition of new land application areas not 
previously included in the CAFO's nutrient management plan; (2) any 
changes to the maximum field-specific land application rates for 
nitrogen and phosphorus, as expressed in accordance with either the 
linear approach, the matrix approach or the narrative rate approach; 
(3) addition of any crop not included in the terms of the CAFO's 
nutrient management plan and corresponding field-specific rates of 
application; and (4) changes to field-specific components of the CAFO's 
nutrient management plan, where such changes are likely to increase the 
risk of nitrogen and phosphorus transport from the field to waters of 
the U.S.
    EPA is also proposing one exception to the first type of 
substantial change (a land application area being added to the nutrient 
management plan), where such additional land is already included in the 
terms of another existing nutrient management plan incorporated into an 
existing NPDES permit. If, under the revised NMP, the CAFO owner or 
operator applies manure, litter, or process wastewater on such land 
application area in accordance with the existing field-specific terms 
of the existing permit, such addition of new land would not be a 
substantial change to the terms of the CAFO owner or operator's 
nutrient management plan.
    The Agency believes that these revised proposed criteria are better 
designed to address changes that most directly affect fundamental 
components of the NMP that relate to the land application of manure, 
litter, and process wastewater, which was a primary focus of the 
Waterkeeper decision. First, by proposing the addition of new land 
application areas not originally included in the terms of the NMP as a 
substantial change, the Agency makes clear that the fields to be used 
for land application would be fundamental permit conditions, as all 
permitted CAFOs would be required to land apply manure, litter, and 
process wastewater at field-specific agronomic rates. The 
identification of land application areas in the NMP is essential for 
determining the effluent limitations applicable to a particular CAFO, 
which the Waterkeeper decision required be made available for public 
review and comment and incorporated into the permit. Under Waterkeeper, 
the public must have such opportunity to review the fields planned for 
land application during both the initial permit issuance phase and any 
subsequent permit modification phase. The proposed exception for the 
addition of new fields already covered by an existing NPDES permit is 
consistent with the Waterkeeper decision because the rates of 
application for those land application areas will have already been 
publicly reviewed, approved, and incorporated into a permit as required 
by Waterkeeper.
    The second proposed substantial change is any change to the field-
specific maximum rates of application. The Waterkeeper decision makes 
clear the importance of these rates as terms of the NMP.
    The third proposed substantial change is the addition to the NMP of 
crops not previously included in the CAFO's NMP, together with the 
corresponding maximum field-specific rates of application for those 
crops. Because rates of application are based on the yield goals for 
each specific crop, any crops newly added to the plan will require 
corresponding newly calculated rates of application. Because the 
maximum rates of application must be made available to the public for 
review prior to incorporation as terms of the permit, consistent with 
Waterkeeper, the addition of new crops and their corresponding rates of 
application would be considered a substantial change.
    Finally, any change to field-specific components of the CAFO's 
nutrient management plan that is likely to increase the risk of 
nitrogen and phosphorus transport from the field to waters of the U.S. 
would be a substantial change. The Agency recognizes a number of 
changes as potentially triggering this requirement, including the 
following examples: (1) Alternate timing of land application that would 
diminish the potential for plant nutrient uptake; (2) methods of land 
application not provided for in the NMP calculation of amount of 
manure, litter, and process wastewater to be applied; (3) changes to 
conservation practices; and (4) changes in the CAFO's procedures for 
handling, storage, or treatment of manure, litter, and process 
wastewater. The actual crop planted, timing and method of land 
application, crop uptake, and conservation practices utilized with 
respect to the land application areas are all key factors that affect 
nitrogen and phosphorus runoff from the land application area. Changes 
to any of the planning considerations listed above can directly (and 
measurably) alter the outcome of the decisions made in an NMP and the 
efficacy of that plan in ensuring appropriate agricultural utilization 
of those nutrients that are land applied.
    Such substantial changes would apply to all permitted CAFOs, 
regardless of which of the three proposed approaches for expressing 
rates of application was followed in the CAFO's NMP. However, the 
specific changes that would constitute substantial changes would 
necessarily, to some extent, be dependent on which of the three 
proposed approaches was used. For example, while a change to the method 
or timing of application might be a substantial change under the linear 
approach, if it increased the risk of nutrient transport to surface 
waters, it would not be a substantial change under the matrix or 
calculated rate approaches, provided that the

[[Page 12336]]

methodology (itself a permit term) for converting maximum amounts of 
nutrients into allowable amounts of manure, litter, or process 
wastewater was able to appropriately account for the change in method 
or timing.
(b) Limited Exceptions
    Because changes to the NMP could result in a change to a permit 
term, the 2006 proposed rule provided that whenever a CAFO makes any 
change to its NMP, the owner or operator would be required to provide 
the Director with the revised NMP and identify the changes from the 
previous version submitted. EPA is proposing a limited exception for 
CAFOs following either the second (``matrix'') or third 
(``quantitative'') approaches described above for the terms of the NMP 
regarding rates of application. Such CAFOs would not be required to 
submit to the Director any changes in crop rotations so long as the 
rates of application of nitrogen and phosphorus are in accordance with 
the outcome of the field-specific assessment of the potential for 
nitrogen and phosphorus transport, do not exceed the maximum 
application rates identified in the nutrient management plan for the 
crop actually planted, and account for any residual nitrogen and 
phosphorus in the field.
5. Annual Reporting Requirements
    In the 2006 proposed rule, EPA discussed the use of annual reports 
to balance greater flexibility for CAFO operators in making cropping 
decisions with ensuring appropriate permitting authority and public 
oversight of permit compliance. The preamble solicited comment as to 
whether the annual report requirements should be modified to require 
all permitted CAFOs to submit information in their annual reports 
indicating how the CAFO achieved substantive compliance with the terms 
of the NMP as set forth in the permit. In this supplemental notice, the 
Agency is proposing additional annual reporting requirements for CAFOs 
that relate to the proposed provisions in this notice regarding the 
terms of the NMP. This proposal would not affect any of the annual 
report requirements promulgated in the 2003 CAFO rule, and EPA is not 
taking comment on any revisions to the requirements promulgated in 
2003.
    The Agency is proposing to require all permitted CAFOs to include 
in their annual reports the actual crop(s) planted and actual yield(s) 
for each field, the actual nitrogen and phosphorus content of the 
manure, litter, and process wastewater, and the amount of manure, 
litter, or process wastewater applied to each field during the previous 
12 months. The Agency believes that it would be important for the 
permitting authority to obtain this information on an annual basis in 
order to ensure that the CAFO has been operating in compliance with the 
terms of its permit. The annual report would inform the Director and 
the public how the operator has operated, given the flexibility 
proposed for the terms of the NMP incorporated into the permit.
    The Agency is also proposing to require CAFOs that follow the third 
(``narrative rate'') approach for describing rates of application in 
the NMP to submit as part of their annual report the results of all 
soil testing and concurrent calculations to account for residual 
nitrogen and phosphorus in the soil, all recalculations, and the new 
data from which they are derived. The CAFO would be required to report 
the amounts of manure, litter, process wastewater and the amount of 
chemical fertilizer applied to each field during the preceding 12 
months. Together with the total amount of crop available nitrogen and 
phosphorus from all sources, the information that would be required to 
be included in the annual report would provide the information 
necessary to determine that the CAFO was adhering to the terms of its 
permit when recalculating rates of application. The Agency seeks 
comment on these proposed annual reporting requirements for each of the 
approaches to identifying terms of the NMP for rates of application.

C. Compliance Deadlines

    As discussed in the Background section of this notice, EPA has 
twice extended the compliance dates for several requirements which were 
originally established in the 2003 final rule. February 27, 2009, is 
the date by which the following much occur: (1) Operations defined as 
CAFOs as of April 14, 2003, that were not defined as CAFOs prior to 
that date, must seek NPDES permit coverage; (2) operations that become 
defined as CAFOs after April 14, 2003, due to operational changes that 
would not have made them a CAFO prior to April 14, 2003, and that are 
not new sources, must seek NPDES permit coverage; and (3) permitted 
CAFOs are required to develop and implement nutrient management plans. 
As explained in the preamble to the second compliance date revision, 
February 27, 2009, is an appropriate deadline for these requirements 
because it would provide additional time from the date of the final 
rule in response to the Waterkeeper decision for States, the regulated 
community, and other stakeholders to adjust to the new regulatory 
requirements. See 72 FR 40,248 (July 24, 2007).
    EPA plans to complete the regulatory revisions in response to 
Waterkeeper in the summer of 2008, since the Agency has had adequate 
time to consider the comments submitted on the 2006 proposed rule and 
the scope of this supplemental notice of proposed rulemaking is narrow 
relative to the context of what was proposed in 2006. This would leave 
six to eight months from promulgation of the final rule until the 
February 27, 2009, deadline for AFOs not previously defined as CAFOs to 
submit permit applications, for CAFOs to submit nutrient management 
plans to their permitting authorities, and for permitting authorities 
to incorporate the terms of these nutrient management plans as 
enforceable permit conditions in accordance with the provisions of the 
final rule. Given that both operators and permitting authorities have 
known for several years generally what will be required under the final 
rule, EPA believes that six to eight months is sufficient time for 
these remaining permitting actions to be completed, and is thus not 
intending at this time to extend those deadlines. However, the Agency 
is interested in taking comment on this issue.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51,735, October 4, 1993), 
this action is not a ``significant regulatory action.''

B. Paperwork Reduction Act

    The information collection requirements in this supplemental notice 
have been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. 
The Information Collection Request (ICR) document prepared by EPA has 
been assigned EPA ICR number 1989.05.
    This SNPRM contains three proposed regulatory actions that would 
add to the paperwork burden associated with the CAFO NPDES regulations 
as presented in the PRA analysis for the 2006 proposed rule. First, 
today's notice proposes supplemental annual reporting requirements for 
permitted CAFOs as part of all three proposed approaches for specifying 
terms of the NMP with respect to rates of application. In addition, the 
notice proposes a no discharge certification option and a new

[[Page 12337]]

narrative rate approach for incorporating the terms of an NMP into the 
permit. The no discharge certification and the quantitative approach 
would both be optional for CAFOs. Nevertheless, EPA has assessed the 
administrative burden associated with these approaches in order to 
characterize the burden likely to be experienced by facilities that 
elect to pursue these options.
    This impact analysis covers a three year period from 2008-2010. 
Over this time period, the industry is expected to experience slight 
growth from approximately 20,700 facilities in 2008 to 22,100 
facilities in 2010. Projections for burden hours according to the 
various additional requirements in this supplemental proposal were 
derived using these projections, and then annualized over the three 
years in calculating overall results. These analyses are very complex 
in that they also take into account the activities that are already 
occurring in the field in some cases, and rough estimates of the number 
of facilities that will be meeting these requirements, which grows over 
the three year period. Therefore, some of the impact results presented 
below and how they match up with the number of CAFOs and the projected 
burden hours will not be immediately apparent. For example, as 
described below, due to the additional annual reporting requirements, 
the Agency estimates an annual burden of 15,800 hours. The basis for 
this burden estimate is that for 2008 it is estimated that 
approximately 15,300 CAFOs would incur an additional hour of time to 
meet this requirement. On the surface, that would equate to an added 
annual burden of 15,300 hours. However, because this is an analysis 
that is annualized over a 3 year period, the burden is actually 
calculated to be 15,800 hours, which takes into account the growth of 
the industry over the 3 years. The Agency directs the reader to the 
public docket to review the draft ICR report which provides details of 
all calculations.
    Compared to the 2006 proposed rule, the total administrative burden 
is expected to increase by approximately $1.4 million (52,600 hours) 
annually due expressly to the proposed options in this supplemental 
notice. This change derives from annual increases of $480,000 (15,800 
hours) due to the expanded requirements for annual reporting, $460,000 
(14,500 hours) due to the added cost of certification, and $470,000 
(22,300 hours) due to the added cost of the new narrative rate 
approach.
    For purposes of costing the burden increment that would arise from 
the additional requirements for annual reporting, EPA assumed that the 
new requirements would add an extra hour of labor burden to the 
existing costs per facility for annual reporting. This new burden would 
be incurred by all permitted CAFOs annually as part of completing the 
required annual reports, with the result that the burden increment 
would be experienced by an estimated 15,300 CAFOs as of 2008.
    For purposes of costing the burden increment due to certification, 
EPA assumed that the burden per CAFO for certification would add 6.5 
hours of labor burden every five years when a facility submits its 
certification. EPA's burden calculations further assumed that the 
certification option would be chosen by 25 percent of all CAFOs, 
yielding an estimate of approximately 5,400 CAFOs that would choose to 
certify as of 2008.
    To cost the burden for soil sampling under the narrative rate 
approach, EPA assumed that CAFOs would incur an average of 10 hours of 
additional labor burden per facility annually to complete the sampling. 
In addition, the burden estimate is based on an assumption that one-
half of permitted CAFOs that land-apply would use the proposed 
narrative rate approach for expressing rates of application. This 
assumption resulted in a projection that as of 2008, roughly 5,900 
CAFOs would use the narrative rate approach--approximately 30 percent 
of the current projection of 20,700 total CAFOs for 2008. Note that EPA 
discounted the sampling burden for CAFOs in states that are already 
requiring this practice. EPA's estimate of the PRA burden impact due to 
the narrative rate approach also took into account the burden reduction 
that permitting authorities could potentially experience as a result of 
needing to process fewer permit modifications due to changes to NMPs. 
For this aspect of the analysis, EPA estimated that permitting 
authorities would process roughly 300 fewer permit modifications 
annually, each representing a labor savings of approximately 12 hours. 
These calculations represent a projected burden reduction compared to 
the number of permit modifications projected for the PRA analysis 
originally presented for the 2006 proposed rule.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR Part 9.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, including the use of automated collection 
techniques, EPA has established a public docket for this proposed rule, 
which includes this ICR, under Docket ID number EPA-HQ-OW-2005-0037. 
Submit any comments related to the ICR for this proposed rule to EPA 
and OMB. See Addresses section at the beginning of this notice for 
where to submit comments to EPA. Send comments to OMB at the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for 
EPA. Since OMB is required to make a decision concerning the ICR 
between 30 and 60 days after March 7, 2008, a comment to OMB is best 
assured of having its full effect if OMB receives it by April 7, 2008. 
The final rule will respond to any OMB or public comments on the 
information collection requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's supplemental 
notice on small entities, small entity is defined as: (1) A small 
business as defined by the Small Business Administration (SBA) at 13 
CFR 121.201 size standards; (2) a small governmental jurisdiction that 
is a government of a city, county, town, school district or special 
district with a

[[Page 12338]]

population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's supplemental 
notice of proposed rulemaking on small entities, I certify that this 
action will not have a significant adverse economic impact on a 
substantial number of small entities. The proposed approaches for 
incorporating the terms of an NMP into the permit are generally 
consistent with the 2006 proposed rule, but with greater specificity. 
Within these approaches, the expanded annual reporting requirements for 
permitted facilities would not impose a ``significant adverse economic 
impact'' on any small entities. With the exception of the soil sampling 
data, the information that would be reported is all information that 
small entities are required to prepare and maintain under the 2003 CAFO 
rule; only the requirement to include this information in the annual 
report to the Director is new.
    The other two revisions proposed in today's notice, the no 
discharge certification option and the new narrative rate approach, 
would be voluntary, so presumably small entities will only choose them 
if they see an economic advantage from doing so.
    This supplemental notice would not affect small governments, as the 
permitting authorities are State or federal agencies. We continue to be 
interested in the potential impacts of the proposed rule on small 
entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and to 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 this supplemental notice would not contain 
a Federal mandate that may result in expenditures of $100 million or 
more for State, local, and tribal governments, in the aggregate, or the 
private sector in any one year. Today's supplemental notice is in fact 
anticipated to result in a net reduction in burden to State permitting 
authorities as a consequence of needing to process fewer permit 
modifications due to changes to NMPs. Specifically, State permitting 
authorities are projected to experience a net burden reduction of 
approximately $169,000 (4,200 hours) annually. The supplemental notice 
would increase the burden to CAFOs by approximately $1.6 million 
(56,800 hours) annually due collectively to activities called for under 
the new annual reporting requirements, the certification option, and 
the new quantitative approach. Thus, today's supplemental notice is not 
subject to the requirements of sections 202 and 205 of the UMRA. For 
the same reason, EPA has determined that this supplemental notice 
contains no regulatory requirements that might significantly or 
uniquely affect small governments. Thus, today's supplemental notice is 
not subject to the requirements of section 203 of UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6(b) of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. Under section 6(c) of Executive 
Order 13132, EPA may not issue a regulation that has federalism 
implications and that preempts State law, unless the Agency consults 
with State and local officials early in the process of developing the 
proposed regulation.
    EPA has concluded that this supplemental notice does not have 
Federalism implications. It will not have any direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 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 proposed rule.
    Consistent with EPA policy, EPA nonetheless consulted with 
representatives of State governments early in the process of developing 
the Agency's response to the Waterkeeper court ruling to permit them to 
have meaningful and timely input into its development. Through a 
variety of meetings with State associations, States have been appris2ed 
of the issues related to addressing the court's decisions. States 
provided input during these meetings. State concerns generally focused 
on the process for incorporating NMPs into permits and the related 
public review process, and also on guidance related to what is a 
discharge from a CAFO given that the 2006 proposed rule would require 
only those

[[Page 12339]]

operations that discharge or propose to discharge to apply for a 
permit. This supplemental notice provides additional guidance 
addressing both of these concerns.
    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 supplemental 
notice from State and local officials.

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

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

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

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under E.O. 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This supplemental notice is not subject to Executive Order 13045 
because it is not economically significant as defined under E.O. 12866, 
and because the Agency does not have reason to believe the 
environmental health and safety risks addressed by this action present 
a disproportionate risk to children. The benefits analysis performed 
for the 2003 CAFO rule determined that the rule would result in certain 
significant benefits to children's health. (Please refer to the 
Benefits Analysis in the record for the 2003 CAFO final rule.) Today's 
action does not affect the environmental benefits of the rule.

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

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

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, Section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standard bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    The 2006 proposed rule involved the use of technical standards for 
land application of manure and elimination of discharges from the 
production area. In the 2006 proposal, EPA noted that the specific 
standards applicable to a specific operator are generally determined by 
the permitting authority on a State-wide or site-specific best 
professional judgment basis. Today's supplemental notice does not 
pertain to this aspect of the CAFO rulemaking, and EPA continues to 
encourage the use by permitting authorities of voluntary consensus 
standards, such as those developed by USDA, in establishing the site-
specific technical requirements in CAFO permits.

List of Subjects in 40 CFR Part 122

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Reporting and 
recordkeeping requirements, Water pollution control.

    Dated: March 3, 2008.
Stephen L. Johnson,
Administrator.
    For the reasons stated in the preamble, the Environmental 
Protection Agency proposes to amend 40 CFR part 122 as follows:

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

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

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

    2. Section 122.23 is amended by revising paragraph (h) to read as 
follows:


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

* * * * *
    (h) No Discharge Certification Option. (1) The owner or operator of 
a CAFO that meets the eligibility criteria in paragraph (h)(2) of this 
section may certify to the Director that the CAFO does not discharge or 
propose to discharge. A CAFO owner or operator who certifies that the 
CAFO does not discharge or propose to discharge is not required to seek 
coverage under an NPDES permit pursuant to paragraph (d)(1) of this 
section, provided that the CAFO is designed, constructed, operated, and 
maintained in accordance with the documents and certification required 
by paragraphs (h)(2) through (3) of this section, and subject to the 
limitations in paragraph (h)(4) of this section.
    (2) Eligibility Criteria. In order to certify that a CAFO does not 
discharge or propose to discharge, the owner or operator of a CAFO must 
document, based on an objective assessment of the conditions at the 
CAFO, that the CAFO is designed, constructed, operated, and maintained 
in a manner such that the CAFO will not discharge, as follows:
    (i) The CAFO's production area is designed, constructed, operated, 
and maintained so as not to discharge. The CAFO must maintain 
documentation on site that demonstrates that:
    (A) Any open surface manure storage structures are designed, 
constructed, operated, and maintained to achieve no discharge based on 
a technical evaluation in accordance with the elements of the technical 
evaluation set forth in 40 CFR 412.46(a)(1)(i)-(vii);

[[Page 12340]]

    (B) Any part of the CAFO's production area that is not addressed by 
paragraph (h)(2)(i)(A) of this section is designed, constructed, 
operated, and maintained such that there will be no discharge of 
manure, litter, or process wastewater; and
    (C) The CAFO implements the additional measures set forth in 40 CFR 
412.37(a) and (b); and
    (ii) The CAFO maintains on site and implements an up-to-date 
nutrient management plan that addresses, at a minimum, the elements of 
Sec.  122.42(e)(1)(i) through (ix) and 40 CFR 412.37(c), and that 
includes all land application areas under the control of the CAFO where 
the CAFO will land-apply manure, litter, or process wastewater, and 
that includes all operation and maintenance practices necessary to 
ensure that the CAFO will not discharge.
    (3) Submission to the Director. In order to certify that a CAFO 
does not discharge or propose to discharge, the CAFO owner or operator 
must complete and submit to the Director, by certified mail or 
equivalent method of documentation, a certification that includes, at a 
minimum, the following information:
    (i) The legal name, address and phone number of the CAFO owner or 
operator (see ]122.21(b));
    (ii) The CAFO name and address, the county name and the latitude 
and longitude where the CAFO is located;
    (iii) A statement that describes the manner in which the CAFO 
satisfies the eligibility requirements identified in paragraph (h)(2) 
of this section; and
    (iv) The following certification statement: ``I certify under 
penalty of law that I am the owner or operator of a concentrated animal 
feeding operation (CAFO), identified as [Name of CAFO], and that said 
CAFO meets the requirements of 40 CFR 122.23(h). I have read and 
understand the eligibility requirements of 40 CFR 122.23(h)(2) for 
certifying that a CAFO does not discharge or propose to discharge and 
further certify that this CAFO satisfies the eligibility requirements. 
As part of this certification, I am including the information required 
by 40 CFR 122.23(h)(3). I also understand the conditions set forth in 
40 CFR 122.23(h)(5) regarding loss of certification. I certify under 
penalty of law that this document and all other documents required for 
this certification were prepared under my direction or supervision and 
that qualified personnel properly gathered and evaluated the 
information submitted. Based upon my inquiry of the person or persons 
directly involved in gathering and evaluating the information, the 
information submitted is to the best of my knowledge and belief true, 
accurate and complete. I am aware there are significant penalties for 
submitting false information, including the possibility of fine and 
imprisonment for knowing violations.''; and
    (v) The certification must be signed in accordance with the 
signatory requirements of 40 CFR 122.22.
    (4) Term of Certification. Certification shall be effective for 
five years from the date on which it is submitted or until the 
certification is no longer valid or is withdrawn, whichever occurs 
first. A certification is no longer valid when a discharge has occurred 
or when the CAFO ceases to meet the eligibility criteria in paragraph 
(h)(2) of this section.
    (5) Withdrawal of Certification; Re-certification. (i) At any time, 
a CAFO may withdraw its certification by notifying the Director by 
certified mail or equivalent method of documentation. A certification 
is withdrawn on the date the notification is submitted to the Director. 
The CAFO does not need to specify any reason for the withdrawal in its 
notification to the Director.
    (ii) If a certification becomes invalid in accordance with 
paragraph (h)(4) of this section, the CAFO must withdraw its 
certification within three days of the date on which the CAFO's 
certification becomes invalid. Such a CAFO remains subject to the 
requirement under paragraph (d) of this section to seek permit coverage 
if it discharges or proposes to discharge.
    (iii) A previously certified CAFO may re-certify in accordance with 
paragraph (h) of this section, provided the following additional 
criteria are met if the previous certification was invalidated due to 
an actual discharge from the CAFO:
    (A) The owner or operator modifies the CAFO's design, construction, 
operation, and/or maintenance as necessary to permanently address the 
cause of the discharge and ensure that no discharge from this cause 
occurs in the future; and
    (B) In addition to the certification submission requirements 
provided in paragraph (h)(3) of this section, the CAFO submits to the 
Director a description of the discharge, including the date, time, 
cause, duration, and approximate volume of the discharge, and a 
detailed explanation of the steps taken by the CAFO to permanently 
address the cause of the discharge.

[FR Doc. E8-4504 Filed 3-6-08; 8:45 am]

BILLING CODE 6560-50-P
