[Federal Register: March 7, 2008 (Volume 73, Number 46)]
[Proposed Rules]
[Page 12321-12340]
[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

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<EMAIL_ADDRESS>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<PHONE_NUMBER>, and the telephone number for the
Water Docket is<PHONE_NUMBER>.

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:<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>
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

                                                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

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

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

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

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

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

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

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

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.

    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;

     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

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

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

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

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

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