Overview of Clean Water Act CAFO Rule - Outline

Transcription

1 Overview of Clean Water Act CAFO Rule - Outline CWA prohibits the discharge of pollutants from point sources into waters of the US (WOUS) without a permit Point sources include concentrated animal feeding operations (CAFOs) Pollutant undefined On Nov. 20, 2008, EPA finalized regulations establishing the National Pollutant Discharge Elimination System (NPDES) permit requirements for animal feeding operations Product of 10 years of debate Started formally w/2001 proposed rule Final rule in 2003 Waterkeeper 2 nd Circuit Court decision 2005 Final rule implementing Waterkeeper 2008 Expands the regulation of livestock and poultry operations to protect water quality Purpose of a NPDES permit is to enable CAFOs to discharge legally Definitions AFO is a lot or facility where: 1. Animals have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period, and 2. Crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of lot or facility CAFO means an AFO defined as a large CAFO (1000 head cattle) or as a medium CAFO in certain circumstances 1. Cattle includes heifers, steers, bulls, and cow/calf pairs 2. Two or more AFOs under common ownership are considered to be a single AFO for purposes of determining the number of animals at an operation, if they adjoin eachother or if they use a common area or system for the disposal of wastes (122.23(b)(2)) Land application area means land under the control of an AFO owner/operator, whether it is owned, rented, or leased, to which manure/wastewater from production area is or may be applied Manure includes manure, bedding, compost, and raw materials or other materials commingled with manure or set aside for disposal Medium CAFO means AFO w/ head cattle, and either one of following conditions are met: 1. Pollutants are discharged into WOUS through a manmade ditch, flushing system, or other similar manmade device, or 2. Pollutants are discharged directly into WOUS which originate outside of and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation (122.23(b)(6)(ii) Small CAFO is AFO designated as CAFO, but is not medium CAFO 1. How may AFO be designated as a CAFO? 2. State Director or Regional Administrator may designate any AFO as a CAFO upon determining that it is a significant contributor of pollutants to WOUS» Factors considered when making designation:» Size of AFO and amount of manure reaching WOUS

2 » Location of AFO relative to WOUS» Means of conveyance to WOUS» Slope, vegetation, rainfall, other factors affecting likelihood or frequency of discharge to WOUS» Others 3. In order to designate AFO as CAFO, Director or RA must conduct onsite inspection, and same conditions must be present as in medium CAFO 4. Once an AFO is defined as a CAFO for at least one type of animal, NPDES requirements for CAFOs apply to all animals in confinement at the operation and all manure/wastewater generated by those animals, regardless of the type of animal (122.23(a)) Who is covered by the rule? Essentially all AFOs are covered Who Must Get a Permit? 2003 all CAFOs must get permit 2005 Waterkeeper CAFOs that have the potential to discharge do not need permit 1. CWA regulates only actual discharges 2008 rule CAFOs that discharge or propose to discharge must get NPDES permit 1. Case-by-case evaluation by owner/operator 1. Must evaluate production area & land application area 2. Propose to discharge means CAFO is designed, constructed, operated or maintained in such a way that a discharge will occur. CAFOs that do not discharge or intend to discharge may apply for a permit 1. It is a CAFO s decision to make But, any unpermitted CAFO that discharges will be subjected to significant CWA penalties if discharge occurs When must owner/operator seek coverage? As soon as CAFO proposes to discharge 1. Operations defined as CAFOs prior to 4/14/03, owner/operator must comply with permit 2. Operations not defined as CAFOs prior to 4/4/03 must have sought coverage by 2/27/09 3. New construction, 180 days prior to commencement 4. Others w/in 90 days of becoming CAFO 5. Permit renewal must be submitted 180 days prior to expiration of permit 6. States had up to one year to revise NPDES regulations to adopt requirements of final rule, or two years if statutory changes are needed 1. States not required to adopt no discharge certification provisions in this time period 7. States with unexpired general permits (GPs), CAFOs may seek coverage under them 8. Where GPs are not available, individual permits 9. Submission of permit application does not equate to permit coverage In General Discharges are not allowed from a CAFO s production area or land application area except in certain circumstances 1. Production area

3 1. Must be designed, constructed, operated, maintained to contain all manure/wastewater including runoff and direct precipitation from a 25- year, 24-hour storm event 2. Production area is operated according to regulations, including routine visual inspections of production area» Weekly inspections of stormwater diversion devices, etc» Daily inspection of water lines» Weekly inspections of manure /wastewater containment» All open surface liquid impoundments must have depth marker» Identified deficiencies must be corrected» Appropriate mortality handling» Recordkeeping for five years 2. Land application area only allowed if discharge is agricultural stormwater (defined below) Agriculture Stormwater Exemption (ASE) In precipitation event, runoff reaching WOUS would qualify for ASE as long as the application of manure and wastewater to land under CAFO control is properly managed in accordance with Nutrient Management Plan (NMP) containing EPA requirements 1. Applies to permitted and unpermitted CAFOs 2. Ensures nutrients are applied in accordance with appropriate agronomic and conservation practices 3. Must use up-to-date soil and manure tests 4. Must document the use of practices in recordkeeping system CAFOs that use NMP, with associated records, would be exempt from being considered an illegal point source discharge. CAFOs that do not have a NMP, or keep up-to-date records of their proper use of the plan could be liable for penalties CAFOs w/npdes permit will qualify for ASE by following NMP submitted with permit application, reviewed by public, and approved for use by permitting authority Non-NPDES permitted CAFOs will need NMP that meets these same ASE standards 1. Get NMP comparable to that required under NPDES permit, and keep records 2. Or, practice nutrient management in manner consistent with practice standards in NMP, as interpreted by the state. Full records must be kept. General permit development Permitting authority develops draft permit, and provides public opportunity for review, comment, and hearing Permit is finalized after considering and responding to significant comments Facilities may then submit NOI seeking coverage under final GP NOI application available from Region 7 office Procedures for CAFOs Seeking GP Coverage Application information includes: 1. Name of owner/operator 2. Facility location and mailing address 3. Latitude and longitude of production area 4. Topographic map of geographic area where CAFO is located 5. Number/type of animals, type of confinement 6. Type of containment/storage capacity for manure/wastewater 7. # acres under applicant control available for land application 8. Estimated amounts manure/wastewater generated per year

4 9. Estimated amounts manure/wastewater transferred to others 10. Strict Nutrient Management Plan 1. All NMPs must be reviewed by permitting authority 2. Public must have adequate participation in the development, revision, and enforcement of NMPs 3. Terms of NMPs included as enforceable provisions in permit Owners/operators submit NOI to Director Directors must review NOI to ensure it includes required information, including NMPs and ELGs Director may request additional information If Director makes preliminary determination that NOI meets requirements, he must notify public of his intent to grant coverage to the CAFO and make available for public review, comment, and hearing on the NOI submitted by CAFO, including NMP and draft terms of NMP to be incorporated into permit 1. Director has discretion re how best to notify public, and time for review 2. Second round of notice/comment/hearing required for GP coverage Director must respond to significant comments received, and may require CAFO to revise NMP After consideration of public comments, permitting authority may either 1. Grant coverage under GP 2. Require CAFO to seek coverage under individual permit 3. Deny coverage When Director authorizes coverage under GP, terms of NMP become incorporated as terms and conditions of permit Director notifies CAFO and public that coverage has been authorized and of terms of NMP incorporated as terms and conditions of permit Individual permits 1. NMP will be submitted and reviewed as part of permit application 2. If necessary, CAFOs can modify plan or provide additional information as requested 3. Procedures for public participation were already established in NPDES regulations 4. Regulations provide for 30 day public notice period for proposed coverage Identification of Terms of the NMP Terms of the NMP are information, protocols, best management practices, and other conditions identified in the CAFO s NMP and determined by the permitting authority to be necessary to meet all of the measures required to be included in a CAFO s NMP for both the production area and the land application area (i.e. 40 CFR (e)(1) and 412.4). Also, 1. The fields available for land application (i.e. new fields must first be added to NMP and the permit before they could be used by the CAFO for land application) 2. Field-specific, crop-specific rates of manure/wastewater application 3. Timing limitations in NMP that would make fields unavailable for land application at certain times or under certain conditions EPA specifies minimum terms, states can be more stringent Rates of Application 1. NMP must include protocols to land apply manure, litter, or process wastewater in accordance with site-specific nutrient management practices that ensure

5 appropriate agricultural utilization of the nutrients in the manure, litter, or process wastewater. 2. Two approaches are allowed for determining rates of application 1. The linear approach 2. The narrative rate approach 3. Linear approach 1. Terms: Maximum application rates for each year of permit coverage, for each crop identified in the NMP, in pounds per acre, per year, for each field to be used for land application, and other factors 2. Approach is linear because it is based on» the use of only those crops included in planned crop rotations in the NMP» The amounts of N and P from manure/wastewater is land applied according to a planned schedule (including source, method, and timing of application)» Projected values for plant available N and P from other sources 3. A single set of field-specific rates of application would be established based on the predicted sequence of activities the CAFO plans to follow in implementing its NMP» CAFO would be required to follow the sequence identified in the NMP for each field, specific crop rotation, and each planned step for land application of nutrients. 4. CAFO must land apply nutrients in amounts that will result in the application of no more than the amounts of N and P specified for each field in the NMP, following the schedule and methods of application described in the NMP, taking into account annual manure test results, so as not to exceed nutrient needs of crops 5. Any change in terms would be permit modification 6. Flexibility more than one crop rotation plan/application rate can be in NMP 4. Narrative Rate Approach 1. Rates of application can be expressed as narrative rate that includes the amount of plant available nutrients from all sources, combined w/specific, quantitative method for calculating the amount, in tons or gallons, of manure/wastewater allowed to be land applied 2. Terms include the maximum amounts of N and P from all sources of nutrients for each crop identified in the NMP, in chemical forms acceptable to the Director, in pounds per acre, for each field. Other terms include:» Outcome of field specific assessment of the potential for N and P transport from each field (i.e. phosphorus index)» Crop or crops to be planted in each field or any other uses such as pasture or fallow fields» Realistic yield goal for each crop or use identified for each field» N and P recommendations from sources specified by the Director for each crop or use identified for each field» Methodology by which the NMP accounts for certain factors when calculating amounts of manure/wastewater to be land applied 3. CAFO using this approach is required to land apply in accordance w/ resulting calculations that must be recalculated at least annually

6 4. Rates of application can be changed w/o requiring formal permit modification process 5. Regulation specifies factors that must be included in methodology used by CAFO. These factors are not terms, but the methodology is a term 6. This approach requires CAFOs to project in their NMPs the amount of manure/wastewater to be land applied, but projection is not a term» Purpose of projections is to give permitting authority/public the opportunity to review, prior to permit issuance, the adequacy of methodology 7. Crop rotations not included in planned rotation in NMP are allowed 8. Calculations and data from which they are derived must be included in annual report for the previous 12 months Process for Incorporating NMP Terms Into GP When permit is granted, terms of NMP must be incorporated into GP, and the CAFO owner/operator and public must be informed that coverage has been authorized, and of applicable terms and conditions of permit 1. Director is given discretion to determine how to incorporate terms 1. Could attach entire NMP and require compliance with terms, or 2. Could specifically identify each term in permit Changes to Permitted CAFO s NMP CAFOs are required to notify Director of all changes to NMP, excluding the results of calculations since these changes must be included in annual report Regulation lists changes to the NMP that would constitute substantial changes to the terms of the NMP, thus triggering public notice and permit modifications. Substantial changes include: 1. Addition of new application areas not previously included in CAFO s NMP (unless land was part of another NMP) 2. Any changes in maximum field specific rates of application or to the maximum amounts of N and P derived from all sources for each crop, using linear or narrative approaches 1. For narrative approach, this means any increase in rate of application above maximum rate determined by methodology in NMP 3. Addition of any crop not included in terms of NMP and corresponding field specific rates of application 4. Changes in field that are likely to increase N or P transport Process for Review of Changes to NMP and for Modifying Terms When CAFO s NMP is revised, operator must submit revised NMP to permitting authority and identify changes from previous version 1. Enables Director to determine whether revisions necessitate revisions to the terms, and if so, whether changes are substantial or non-substantial 2. Non-substantial changes 1. Not subject to public notice and comment before permit is revised 2. Director must notify CAFO that permit does not have to be modified» Upon notification, CAFO may implement revised NMP 3. Substantial changes 1. Director will modify permit by incorporating revised terms of NMP, but only after public review and comment on NMP changes

7 2. Director must respond to all significant comments, and require revisions if necessary 3. Once terms incorporated, CAFO must be notified 4. Director may establish period of time for review/comment /hearing Annual Reporting Requirements All permitted CAFOs must submit annual report, including 1. Actual crops planted in each field 2. Actual yields for each field 3. Actual N and P content of manure/wastewater applied to each field during previous 12 months 4. If use narrative rate approach, results of all soil testing and concurrent calculations to account for residual N and P in soil, all recalculations, and the new data from which they are derived 5. Amounts of manure/wastewater/chemical fertilizer applied to each field during preceding 12 months 6. Total amount of plant available N and P from all sources Requirement intended to ensure that CAFO has been operating in compliance with terms of NMP Manure Management Planner software for NMP Penalties Up to $25,000/day for each violation of permit Plus, duty to apply penalty up to $25,000/day for each day CAFO has not had permit since the day EPA determines CAFO discharged or proposed to discharge 1. Discharging CAFO is liable for penalty for failure to obtain NPDES permit prior to the discharge 2. Applies as soon as CAFO proposes to discharge 1. Discharging CAFO has the burden of establishing that it did not propose to discharge Obtaining permit is only way to avoid these penalties in event of discharge 1. Exception no discharge certification (see below) No Discharge Certification Unpermitted CAFOs can avoid duty to apply penalty in the event of a discharge by certifying, based on objective assessment, that the CAFO does not discharge or propose to discharge 1. In case of discharge, CAFO would still be liable for discharging without a permit CAFOs seeking no discharge certification must 1. Have NMP with same requirements as NPDES permit 2. Conduct study of production area to show it is designed, constructed, operated, and maintained so that it will not discharge using Animal Waste Mgmt (AWM) software, or equiv., and the Soil Plant Air Water (SPAW) hydrology tool, or equiv 3. Maintain documentation onsite, at nearby office, or where it can be made readily available 4. Submit signed certification statement to Director certifying that CAFO has taken these steps, and also provides basic information about operation 1. Makes CAFO legally responsible for representations to Director Certification is not subject to review by the permitting authority or the public because it is not a permit requirement

8 Nor must annual NMP report be submitted as is required of NPDES permit holder CAFO with certification is presumed not to propose to discharge 1. If certified CAFO does discharge, burden will be on Director to establish that CAFO proposed to discharge prior to the discharge in order to hold CAFO liable for the duty to apply penalty 1. (In the event an uncertified, unpermitted CAFO discharges the burden is on the CAFO to establish it did not propose to discharge) A certified CAFO that has a discharge may re-qualify its operation for no-discharge status by correcting the problem Certification expires five years after the effective date, unless CAFO voluntarily withdraws certification or it becomes invalid during the 5 year term Certification can be renewed under certain circumstances Conclusion Regarding Producer Options Get NPDES permit with associated NMP that has been reviewed and commented on by public and approved by permitting authority, and comply with the terms of the permit Decline to get NPDS permit, but operate CAFO so as not to have a discharge under any circumstances, use sound NMP for land application of manure that complies with ASE requirements, demonstrates through modeling that production area will not discharge, and certify in writing all of this to the permitting authority Decline to get an NPDES permit, operate CAFO so as not to have a discharge under any circumstances, and use sound NMP for the land application of manure that complies with ASE requirements