Concentrated Animal Feeding Operations

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Concentrated Animal Feeding Operations

• Wayne Anderson, MPCA
• MSBA CLE
• March, 5, 2009

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Clean Water Act context

• A discharge of a pollutant from a point
  source to waters of the United States is
  prohibited unless the discharge is in compliance
  with a permit.
• A person who discharges or proposes to discharge
  must apply for a permit.
• Permits authorize discharge in certain
  circumstances. They can provide liability
  protection when natural disasters cause a
  discharge.

3
Clean Water Act and Agriculture

• Point Sources
• Concentrated animal feeding operations (CAFOs)
• Nonpoint Sources
• Animal feeding operations (AFOs)
• Agricultural storm water

4
CAFO Rule History
EPA revises rule
EPA proposes revisions to the rule
EPA issues CAFO rule
2006 2009
2005
2003
2003/4
1999
1972 1974/76
Waterkeeper court decision
EPA/USDA Unified National Strategy for AFOs
Lawsuits on 2003 rule
NMP deadline
Clean Water Act
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2003 Rule(68 Fed. Reg. 7176, February 12,
2003)- 40 CFR 122,123 412

• What is a CAFO?
• Which CAFOs must apply for permits?
• What are permit conditions for CAFOs?
• Production area
• Land application area
• Large vs. Medium or Small CAFO

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Definitions

• What is an AFO?
• Animals confined for 45 days in 12 months
• No vegetation in confinement area
• What is a CAFO?
• Large number of animals
• Medium number of animals plus discharge
• to stream running through production area or
• via man-made device
• Small case-by-case

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Large CAFOs

Animal Type Threshold
Mature Dairy Cows 700
Veal Calves 1,000
Beef Cattle or Heifers 1,000
Swine 2,500 (55 lbs or more) 10,000 (under 55 lbs)
Horses 500
Sheep or Lambs 10,000
Turkeys 55,000
Chickens, liquid manure 30,000
Chickens, other than liquid manure 125,000 (not laying hens) 82,000 (laying hens)
Ducks 5,000 (liquid manure) 30,000 (other than liquid manure)
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Medium CAFOs

Animal Type Range
Mature Dairy Cows 200 - 699
Veal Calves 300 - 999
Beef Cattle or Heifers 300 - 999
Swine 750 - 2,499 (55 lbs or more) 3,000 - 9,999 (under 55 lbs)
Horses 150 - 499
Sheep or Lambs 3,000 - 9,999
Turkeys 16,500 - 54,999
Chickens, liquid manure 9,000 - 29,999
Chickens, other than liquid manure 37,500 -124,999 (not laying hens) 25,000 - 81,999 (laying hens)
Ducks 1,500 4,999 (liquid manure) 10,000 29,999 (other than liquid manure)
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Definitions- What is the production area?

• Animal confinement area
• Manure, litter and process wastewater containment
  and storage area
• Raw material storage area
• Egg washing and mortality management areas

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What is manure, litter, and process wastewater?

• Urine and manure
• Bedding and litter (used)
• Compost
• Leachate
• Water used at the AFO
• Watering
• Washing
• Flushing
• Animal cooling
• Swimming
• Dust control

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• What is manure, litter, and process wastewater?
• Precipitation that comes into contact with
• Animals,
• Urine or manure,
• Litter,
• Compost,
• Bedding,
• Feed, or
• Mortalities

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Highlights of Final Rule

• Revises Duty to Apply
• Replaces 2003 requirement for all CAFOs to apply
  for NPDES permits instead requires only those
  CAFOs that discharge or propose to discharge to
  apply for permits.
• New certification option
• Adds voluntary no discharge certification
  option for CAFOs that do not discharge or propose
  to discharge.

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Duty to Apply

• Some conditions that may result in a discharge
• Production area not designed or operated to
  achieve zero discharge
• Precipitation exceeding the operating capacity of
  the storage structure
• Inundation of production area due to Flooding
• Runoff from open feed bunkers, stockpiles exposed
  to precipitation

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Highlights of Final Rule

• Additional nutrient management plan (NMP)-related
  requirements
• Operators to submit NMPs w/permit application
• Review of NMP by permit authorities and public
• Includes terms of NMP into permit
• Allows 2 approaches for developing terms of NMP-
  linear and narrative

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Additional Details Nutrient Management Plans

• Is the entire NMP required to be publicly
  noticed?
• Yes, the permitting authority is required to make
  the entire NMP and the draft terms of the NMP
  available to public.
• Is the entire NMP incorporated into the permit?
• The permitting authority must incorporate the
  terms of the NMP into the permit.

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Additional Details Rates of Application

• What are substantial changes to the NMP and that
  require a permit modification?
• Changes to the NMP that constitute a substantial
  change that would trigger permit modification
  include
• Addition of new land application areas not
  previously included in the NMP
• Addition of any crop not included in the NMP and
  corresponding field-specific rates of
  application.
• Any increase of risk of nutrient transport

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Additional Details Technology-based Eff.
Limitations

• What are the best conventional pollutant control
  technology (BCT) effluent limitations for fecal
  coliform?
• EPA did not identify any economically achievable,
  technologically available, and cost reasonable
  technologies on which to establish national
  effluent limitations for fecal coliform.
• EPA affirmed the BCT limitations are the same as
  the 2003 rule BPT and BAT limitations
• No discharge from production area.
• Limited exemption for precipitation-based
  overflows under specified conditions.
• Land application rates that minimize transport of
  nutrients required setback or vegetated buffer.

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Additional Details Water Quality-based Eff.
Limitations

• EPA clarifies that permit writers may require
  water quality-based effluent limitations (WQBELs)
  in CAFO permits if necessary to meet applicable
  water quality standards
• To further limit discharges from the production
  area and/or
• With respect to any non-agricultural stormwater
  discharges from the land application areas.

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Additional Details Duty to Apply

• Which CAFOs Must Seek Permit Coverage
• How does a CAFO know if it needs to apply for
  permit coverage?
• The Final Rule calls for a case-by-case
  determination of whether the CAFO does or will
  discharge from its production or land application
  area based on an objective assessment of the
  CAFOs design, construction, operation, and
  maintenance.
• If an unpermitted CAFO previously discharged and
  has permanently fixed the cause of the discharge,
  does it need to apply for a permit?
• A CAFO that has had a discharge in the past and
  has taken the steps necessary to permanently fix
  the cause of the discharge is not required to
  apply for a permit if it is designed,
  constructed, operated, and maintained for no
  discharge.
• Does a CAFO need to obtain permit coverage to
  claim the agricultural stormwater exemption for
  precipitation-related discharges from land
  application?
• A CAFO that does not have any discharge other
  than agricultural stormwater and that does not
  propose to discharge is not required to seek
  permit coverage. In the Final Rule EPA clarifies
  the applicability of the agricultural stormwater
  exemption to unpermitted CAFOs.

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Additional Details Voluntary Certification
Option

• Voluntary No Discharge Certification Option
• What is the incentive for an unpermitted CAFO to
  certify?
• A properly certified CAFO makes an up-front
  demonstration to the Director that it does not
  have to get a permit. In the event of a discharge
  from a CAFO with a valid certification, the CAFO
  would only be subject to liability for the
  unpermitted discharge, not for failure to seek
  permit coverage prior to the discharge.
• What are the qualifications for the voluntary
  certification option?
• In order to properly certify under the voluntary
  option, a CAFO must be designed, constructed,
  operated and maintained for no discharge in
  accordance with rigorous eligibility criteria,
  including a technical evaluation of open manure
  storage structures and development and
  implementation of an NMP that ensures no
  discharge.
• The CAFO also must submit a signed statement,
  general information about the facility, and
  description of eligibility. If a CAFO meets all
  of the eligibility and submission requirements
  its certification will become effective upon
  submission without required review by the
  permitting authority.
• If a properly certified CAFO discharges, can it
  recertify?
• After a discharge from a properly certified CAFO,
  the CAFO can recertify if it permanently fixes
  the cause of the discharge and it has not
  previously recertified after a discharge from the
  same cause. The CAFOs recertification is
  submitted for a 30-day review.

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Implementation Status

• About 23 States, including IN, MI, OH, and WI,
  have revised their programs to align with the
  2003 regulation (MN decided we did not need to
  revise our program).
• About 44 percent of the 19,000 CAFOs are
  currently permitted. In Region 5, 63 percent of
  Large CAFOs are permitted.

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Comparison of the MPCA NPDES Permit Activities to
Other Region V States
State Total CAFOs CAFO w/NPDES Permits CAFOs w/o NPDES Permits NPDES Coverage to Date ()
Illinois 500 8 492 2
Indiana 655 507 148 77
Michigan 202 181 21 90
Minnesota 1,116 1,110 6 99
Ohio 175 44 131 25
Wisconsin 176 176 0 100
TOTAL 2,760 1,975 785 72
Note This information is from September,
2008 state reports to EPA Region V.
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Minnesota Authorities

• Mn Stat. 116.07 subd 7c
• (a)MPCA must issue NPDES permits for feedlots
  with 1000 animal units or more and that meet the
  definition of CAFO in CFR 40, Sec 122.23
• (h)MPCA commissioner must develop criteria for
  determining which feedlots are required to apply
  for and obtain NPDES permits and which must
  obtain State Disposal system (SDS) permits based
  on actual or potential to discharge

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Attorney General Review

• MPCA has authority to administer the NPDES
  program for all CAFOs
• authority to require NPDES permits for CAFOs
• Authority to require CAFOs to meet federal
  discharge limits
• MPCA has adequate time to make permit decisions
  in light of MN Stat. 15.99
• MPCA has adequate authority to condition permits
  and to take enforcement action

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Wayne AndersonMPCA

• Wayne.p.anderson_at_state.mn.us
• 651-757-2195