Issues Raised in the 11/09/01 Notice of Data Availability (NODA)

1. Issues Raised in the 11/09/01 Notice of Data Availability (NODA) • Definitions and implications of “catastrophic” and “chronic” design standard for holding ponds • Feasibility and species-specific application of the “no discharge standard” • Other species-specific provisions • Option 6 -- ?

2. Issue 1. 25-yr, 24-hr emergency release exemption and design basis • Regulatory Deficiencies: • Reflects severe but not chronic events • Does not account for the farm system’s hydrologic needs • Affects regions non-uniformly

3. Issue 1. 25-yr, 24-hr emergency release exemption and design basis • Proposal: • Incorporate a uniform national requirement for emergency spillways for earthen ponds • Hydrologic needs assessment (wettest year in 10) plus 10-yr, 10-day rainfall event

4. Issue 1. 25-yr, 24-hr emergency release exemption and design basis Justification: Ø HNA accounts for irrigation & evaporation demands Ø Passing “small” emergency flows safely is preferable to breaching embankments

6. “Catastrophic” Event Any single precipitation event that exceeds: • The 25-yr, 24-hr storm for open-lot systems; OR • Twice the 25-yr, 24-hr storm for fully confined systems or hybrid systems

7. “Chronic” Event Any precipitation event or sequence of events wherein the catastrophic design volume is exceeded AND that design volume cannot be (safely and reasonably?)* restored before release due to adverse soil conditions *Irrigation on saturated or frozen ground is generally preferred to either (a) the breach of an unprotected structure or (b) the use of an emergency spillway.

8. Issue 2. Eliminating arbitrary distinctions between species • Regulatory Deficiencies: • Distinction between beef/dairy and swine/ poultry/veal is unrelated to any explicit water quality objective • Divisive; discourages pooling of educational and technical resources • Arbitrary distinctions feed the perception that regulations embody objectives beyond the scope of the environmental goals originally stated

9. Issue 2. Eliminating arbitrary distinctions between species • Proposal: • Eliminate no-discharge distinction between swine/poultry/veal & beef/dairy • Replacement discharge authorizations, if needed, should be made on the basis of: • a) solid vs. liquid manure-handling systems • b) above-ground vs. in-ground storages • c) earthen vs. synthetic storages • d) open lots vs. confinement buildings

10. Issue 2. Eliminating arbitrary distinctions between species Justification: Ø Species-based distinctions ARE NOT directly related to water quality Ø Manure handling and storage systems DO relate to risk of water pollution Ø EPA can achieve its environmental objectives on the basis of explicit scientific principles rather than dubious, arbitrary distinctions

11. Issue 3. Eliminating the no-discharge standard (NDS) • Regulatory Deficiencies: • NDS as applied to existing AFOs is an impractical goal • NDS discourages innovation of technologies to treat effluent to discharge standards commensu-rate with other industries (e. g., publicly owned treatment works)

12. Issue 3. Eliminating the no-discharge standard (NDS) • Proposal: • Replace NDS with performance criteria for “non-discharging systems” • Set design volume for stormwater retention structures at the larger of: • The stormwater yield from a catastrophic (as defined previously) event; OR • The minimum volume required to satisfy a month-by-month hydrologic needs assessment within a consecutive 12-month period, based on the 10 wettest 12-month periods on record

13. Issue 3. Eliminating the no-discharge standard (NDS) Justification: Ø Ties emergency release exemption to a flexible, scientific framework based on mass balance Ø Ties emergency release exemption directly to water quality protection

14. Issue 4. Output-based designation of AFO/CAFO status • Regulatory Deficiencies: • Current regulations distinguish among and within species on an arbitrary basis without direct relation to the water quality objectives of the Clean Water Act • Current regulations discourage technical innovation and source reduction

15. Issue 4. Output-based designation of AFO/CAFO status • Proposal: • AFO/CAFO designation should be based on species equivalent, maximum herd-aggregated 45-day average of 84 lb/day elemental P as determined from MWPS- published values • Allow capacity/herd-size adjustments after track record established

16. Issue 4. Output-based designation of AFO/CAFO status Justification: Ø P has no significant loss pathways in the gas phase; approximates a “conservative tracer” Ø Encourages source reduction of nutrients Ø P is directly linked to surface water impairment Ø Creates a clear regulatory basis among livestock species Ø Equity across species derives from the inherent objectivity of an output criterion

17. Issue 5. “Option 6” NODA pp. 17-18. “Option 6 adds to Option 2 by requiring that large hog and dairy operations install and implement anaerobic digestion and gas combustion to treat their manure.”

18. Issue 5. “Option 6” • Regulatory Deficiencies: • Anaerobic digestion/biogas systems do not significantly reduce the volume of fluid or solid waste that must be eventually used or disposed • Therefore, specifying anaerobic digestion for a class of AFOs does little to reduce the environmental risk associated with manure production, collection, storage, handling and use or disposal

19. Issue 5. “Option 6” • Regulatory Deficiencies: • Option 6 prescribes technology that may not be economically or technically feasible in individual cases • EPA should restrict the scope of its technology guidelines to performance standards rather than prescribing specific technologies for broad categories of AFOs

20. Option 6 Proposed Remedy: Issue 5. “Option 6”