Producers around the country continue to express concerns over the Environmental Protection Agency’s proposed regulations for “Animal Feeding Operations” and “Confined Animal Feeding Operations” (AFO/CAFO). EPA consequently has extended the public comment period for the proposed rule to July 30, 2001. The agency also plans to publish a notice of availability of new data in the fall, with a period of 45 days for the public to comment.

University of Nebraska Extension Engineer Christopher Henry recently posed several producers’ questions about the proposed rules to regional EPA official Karen Metchis.

Q: How would a 300-1000 AU unit in the three tier structure certify that they do not require an NPDES permit. Specifically what items or criteria would be used to determine "permit required" and what evidence would a producer have to provide in writing or otherwise that a permit is not needed?
A: A preprinted certification checklist would be made available to the middle tier operations. The checklist would include the following conditions:
1. there is no direct contact of animals with waters of the U.S.;
2. there is sufficient storage and containment at the production area to prevent discharges from reaching waters of the U.S.;
3. there is no evidence of a discharge form the production area in the last five years;
4. the production area is not located within 100 feet of waters of the U.S.;
5. the operator has, and is implementing, a Permit Nutrient Plan; and
6. less than 12 tons of manure is transported off-site to a single recipient annually. If more than 12 tons is transported off-site, the operator is complying with requirements for off-site transfers (as describe in our proposal).

If the operation meets all of these conditions, then the operator would sign the certification form, indicating that they are not a CAFO, and would send it to the permit authority.

Q: What is the reasoning for limiting the use of "Best Professional Judgement (BPJ)" in the ability of the permit authority to make a judgement call concerning a AFO? I'm having trouble finding this in the Federal Register, but I located some discussion on this topic in the executive order 13132 document.
A: This issue is discussed in the Jan. 12, 2001 issue of the Federal Register on page 3050, under Section VIII.B.1 of the preamble, entitled "Effluent Guidelines Applicability."
Under CWA, EPA sets national limits for all facilities in an industry where data allow us to determine what technologies are available, taking costs into account across the industry. Where we don't have the data, or otherwise have not made national determinations, the permit writer must use their best professional judgement to determine on a case by case basis, which technologies are available to form the basis for permit terms. For this proposed regulation, EPA was able to gather sufficient data to propose national technology based standards for all facilities that will be defined as CAFOs. The determination of appropriate technologies is not left to the determination of the permit writer where EPA has been able to make a determination on a national basis. BPJ is still available for use by permit writers to address site specific matters that were not addressed in the national standards.


Q: The producers were concerned about the 100 ft setback. They agreed that it sounded good on paper, but they thought it was not practical. I'll try to explain. One crop producer felt that it would mean that if his neighbor (a livestock producer) spread manure on a field in the fall, and they adhere to the 100 ft setback, then they would have to return to the field in the spring with their anhydrous applicator and try to guess where they spread the manure and fill in the gaps, most likely over-applying or under applying in the process. They felt that it would be
too much work and involve too much uncertainty and that they would most likely just refuse the manure, in light of making things simpler for their management. They also mentioned that if they, (the crop producers) were required to come up with a CNMP so that their neighbor (livestock producer) could spread manure on their land they would choose not to do so. In their
words, "It's too much trouble." a) They asked what the difference was between broadcast application of ammonium nitrate and manure? b) They also asked if manure is incorporated, why a setback would be needed (how would it be different than an application of anhydrous ammonia)? I'm not sure if these are questions or really comments. Perhaps you could respond to some of their concerns.
A: The proposed setback requirement is intended to prevent manure from being inadvertently "discharged" into a stream in the process of application and to minimize the pollutants, including pathogens and metals, reaching the stream. We propose this setback requirement to apply to CAFOs. There are many differences between ammonium nitrate and manure, including the fact that not all of the manure nitrogen is immediately available for the crop which should be taken into account in the application rate and application rates in subsequent years. Also manure will contain a variety of other trace elements and other nutrients
including phosphorus and metals. Finally manure also contains microorganisms, some of which can have detrimental impacts on humans. We did discuss a number of alternatives in the preamble (Section VIII.C.3 pp 3054-3055) and are seeking comment on the setback requirement. We would be interested in hearing whether any of the alternatives we describe could be more workable.

Q: They also posed to me how they would meet a zero discharge to groundwater. I told them that it was my understanding that even synthetic liners have a specific discharge (seepage) and that I couldn't explain how that standard would be applied. Could you comment on how this
would be applied if the proposed rules go into place. I understand from the register that some areas may be designated as unsuitable or connected" but I can't find where it talks about the technical criteria that will be used to satisfy the proposed "zero discharge" requirement. How would a hydrologist certify that a connection exists or doesn't exist?
A: EPA has assumed for the purpose of estimating costs and economic impacts of this requirement that operations would install a clay liner overlain with a synthetic liner and then overlain with soil to protect the synthetic liner. If care in removing material from the pond or lagoon is used so that the synthetic liner is not damaged, the Agency believes that this liner design will not seep. However, if you have information indicating otherwise, including any data on seepage rates, please send it as part of your comments on the proposed regulation.
Section VII.C.2.j, in the Federal Register on pages 3015-3020, and VII.E.5.d, on pages 3040-3041, discuss the issue of "groundwater with direct hydrological connection to surface water."

We have described a variety of ways to determine when a CAFO is located in areas that are likely have groundwater with direct hydrological connection to surface water. We have not specified the exact criteria, as it would be difficult to establish a nationally applicable criterion for the many differences in regional topography and hydro-geology. In practical terms, it is important to understand that the permit authority is the State in 44 states. Thus, EPA envisions that the State will determine its criteria for when it is likely that a CAFO may discharge to surface water via groundwater, and for what is satisfactory evidence that there is no such
connection.

We have asked for comment on how a permit writer might identify CAFOs at risk of discharging to ground water with a direct hydrological connection to surface water, as well as on our cost estimates for the permittee to have a hydrologist make such a determination.