Concentrated Animal Feeding Operations

1. Concentrated Animal Feeding Operations Wayne Anderson, MPCA MSBA CLE March, 5, 2009

2. 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. Clean Water Act context

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 2005 19721974/76 1999 2003 2003/4 20062009 Waterkeeper court decision EPA/USDA Unified National Strategy for AFOs Lawsuits on 2003 rule NMP deadline Clean Water Act

5. 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

6. 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

7. Large CAFOs

8. Medium CAFOs

9. 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

10. 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

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

12. 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 todischarge to apply for permits. • New certification option: Adds voluntary “no discharge certification” option for CAFOs that do not discharge or propose to discharge.

13. 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

14. 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

15. 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.

16. 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

17. 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.

18. 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.

19. 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 CAFO’s 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.

20. 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 CAFO’s recertification is submitted for a 30-day review.

21. 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.

22. Comparison of the MPCA NPDES Permit Activities to Other Region V States * Note: This information is from September, 2008 state reports to EPA Region V.

23. 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

24. 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

25. Wayne AndersonMPCA Wayne.p.anderson@state.mn.us 651-757-2195