I. BACKGROUND TO CHANGES TO THE OREGON PROGRAM
The current changes to the Oregon CAFO program are a product of efforts by two agencies, the Department of Agriculture ("ODA") and the Department of Environmental Quality ("DEQ"), over the years to streamline regulatory authority over feedlot operations. The federal NPDES permit has been available to federal CAFOs since the mid-1970s. But beginning in the late 1980s, Oregon (through DEQ) decided to issue the state Water Pollution Control Facilities ("WPCF") permit to CAFOs. This permit is more stringent than the federal NPDES permit in that it prohibits all discharges to surface waters. But the Oregon CAFO program was not equivalent to the federal program in several other ways. First, administration of the Oregon program was divided between two agencies: DEQ had permitting and enforcement authority while ODA had other duties, such as providing technical assistance and inspecting facilities. In 1993, the Oregon legislature directed DEQ to transfer the permitting authority to ODA. ODA, however, was not authorized to issue federal CWA permits. Also, Oregon CAFO inspection and enforcement authority was less stringent than the federal requirements.
Events of the late 1990s prompted a greater need for changes to the Oregon program. The United States Environmental Protection Agency ("EPA") decided to focus its attention on the feedlot industry. It pursued enforcement actions against numerous Oregon feedlot operations that were deemed to be federal CAFOs and were in violation of the CWA. Many of these facilities allegedly discharged into regulated surface waterbodies without an NPDES permit. Also, at the end of 2000, EPA announced that the Oregon program was out of compliance with the CWA because of the lack of sufficient inspection and enforcement authority. Finally, in April 2003, EPA promulgated numerous changes to the federal CAFO program.
In July 2001, the Oregon legislature authorized both agencies to bring the CAFO program into compliance with the CWA, including authority for ODA to issue NPDES permits.
II. REGULATED FEEDLOT OPERATIONS
The new permitting changes will apply to an estimated 700 to 1,000 feedlot operations throughout Oregon that meet the definitions of an Oregon CAFO or a federal CAFO.
A facility is an Oregon CAFO if it is a concentrated confined feeding or holding of animals or poultry, including but not limited to horse, cattle, sheep, or swine feeding areas, dairy confinement areas, slaughterhouse or shipping terminal holding pens, poultry and egg production facilities, and fur farms (1) in buildings or in pens or lots where the surface has been prepared with concrete, rock, or fibrous material to support animals in wet weather; (2) that have wastewater treatment works; or (3) that discharge any wastes into waters of the state.
A federal CAFO is different from an Oregon CAFO because the former depends on the number of days the animal is confined. Under the recently revised definition, a facility is a federal CAFO if it meets the following conditions: (1) animals (other than aquatic animals) have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period; (2) crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over the portion of the lot or facility; and (3) the facility stables or confines at least a specified number of certain animals (see chart below).
| Sector | Large CAFO | Medium CAFO | Small CAFO |
|---|---|---|---|
| cattle or cow/calf pairs | 1,000 or more | 300 - 999 | less than 300 |
| mature dairy cattle | 700 or m ore | 200 - 699 | less than 200 |
| veal calves | 1,000 or m ore | 300 - 999 | less than 300 |
| swine (weighing over 55 pounds) | 2,500 or m ore | 750 - 2,499 | less than 750 |
| swine (weighing less than 55 pounds) | 10,000 or more | 3,000 - 9,999 | less than 3,000 |
| horses | 500 or m ore | 150 - 499 | less than 150 |
| sheep or lambs | 10,000 or more | 3,000 - 9,999 | less than 3,000 |
| turkeys | 55,000 or more | 16,500 - 54,999 | less than 16,500 |
| laying hens or broilers (liquid manure handling system) | 30,000 or more | 9,000 - 29,999 | less than 9,000 |
| chickens other than laying hens (other than a liquid manure handling system) | 125,000 or more | 37,500 - 124,999 | less than 37,500 |
| laying hens (other than a liquid manure handling system) | 82,000 or more | 25,000 - 81,999 | less than 25,000 |
| ducks (other than a liquid manure handling system) | 30,000 or more | 10,000 - 29,999 | less than 10,000 |
| ducks (liquid manure handling system) | 5,000 or m ore | 1,500 - 4,999 | less than 1,500 |
Under the recently revised federal definition, EPA eliminated the 25-year, 24-hour storm event exemption from the definition of a CAFO. That is, a facility can no longer claim that it is not a federal CAFO merely because it discharges only as a result of a large storm that qualifies as a 25-year, 24-hour storm.
III. NEW FEDERAL REQUIREMENTS FOR CAFOS
A. Oregon NPDES Permits Required for CAFOs
Under the new rules, a feedlot that falls into one of the following categories must obtain a NPDES permit: (1) an Oregon CAFOs that confines the animal more than four months and has a wastewater control facility; (2) a large federal CAFO; (3) medium federal CAFO that discharges pollutants: (a) into waters of the United States through a man-made ditch, flushing system, or similar device; or (b) directly into waters of the United States that originate outside the facility and pass over, across, or through the facility or otherwise come into direct contact with the confined animals; or (4) a small CAFO that has been designated as such by ODA or EPA, based on its contribution of pollutants to navigable waters and it is not a large or medium facility.
ODA will issue general NPDES permits to most CAFOs. Individual NPDES permits are issued to certain CAFOs that are deemed, in part, to be significant contributors of pollution or are unable to comply with the general permit, or when there is a change in available technology.
A facility that complies with an NPDES permit will be considered to be in compliance with both state and federal law. The 500 or so Oregon CAFOs with existing WPCF permits will receive NPDES permits. Facilities that now fall into any of the federal CAFO category must submit an Application to Register to ODA by certain dates specified in the rules.
The following highlights some of the key requirements and conditions of the Oregon general NPDES permit for CAFOs.
B. Discharge Limitations
The Oregon NPDES permit incorporates most of the federal requirements with respect to discharge limitations. The extent of the limitations is based on certain areas of the facility from which discharges may occur and the size and type of the facility.
1. Production Area
Oregon adopted the federal effluent limitations guidelines ("ELG"), which are technology-based discharge limitations, to control and contain process waste water generated in the "production area." EPA recently added a definition of "production area" to the federal CAFO program to delineate the regulated areas at a site. The production area broadly includes the confinement area, the manure storage area, the raw materials storage area, and the waste containment area. Interestingly, the confinement area is defined to include not only houses, lots, and barns where animals are actually confined, but also walkers, walkways, yard, and stables where animals are more spread out.
All CAFOs are prohibited from discharging into the groundwater and from violating water quality standards. Also, all CAFOs, except new source, large federal CAFO confining swine, poultry, and veal facilities, are prohibited from discharging into surface water from the production area except when rainfall events cause an overflow of process waste water from a facility designed, constructed, operated, and maintained to contain all process-generated waste waters plus runoff and direct precipitation from a 25-year, 24-hour rainfall event ("25-year, 24-hour ELG"). The 25-year, 24-hour ELG also applies to regulated small and medium CAFOs, even though under the federal program they are subject to technology-based discharge limitations based on the permit writer's best professional judgment, which takes site-specific conditions into consideration.
Large federal CAFOs confining swine, poultry, and veal that are considered "new sources" (construction commenced after April 14, 2003) cannot discharge into surface water from the production area except as a result of an overflow from a facility designed, constructed, operated, and maintained to contain all process-generated waste waters plus runoff and direct precipitation from a 100-year, 24-hour rainfall event.
Although it may appear that some discharges are allowed under the ELGs, in reality it is difficult to design and construct a system that meets such requirements. The CAFO must construct a system that can contain, store, and treat millions of gallons of contaminated water likely to be generated by a 25-year, 24-hour rainfall event and a 100-year, 24-hour rainfall event. This is a daunting task for CAFOs in the wet western regions of Oregon (e.g., dairies in Tillamook) and those with limited land space to accommodate a large wastewater management facility (e.g., feedlots in urban areas). It will likely require such operators and owners to invest large sums of money to study, design, and construct an appropriately-sized waste water control system. But even if a facility is designed to meet such requirement, it may still be in violation of its permit if discharges occur during the allowable storm event, but the operator improperly operated or managed the system.
2. Land Application Area
CAFOs that apply wastewater to land are expected to do so at an agronomic rate and in accordance with a waste management plan (details below). Discharges to surface water may occur as long as the discharges are in accordance with the waste management plan. Discharges to groundwater below the root zone from the land application area cannot violate the groundwater quality protection standard. Land application is prohibited during rainfall events that are expected to result in saturated soils and surface runoff.
C. Storage Facility and Setback Requirements
CAFOs must have appropriate storage capacity for solid and liquid waste at all times so that land application occurs only during periods when soil and weather conditions allow for agronomic application and in compliance with the term. Large federal CAFOs are subject to more stringer storage requirement in that they must have depth marks in all surface liquid impoundments (e.g., lagoons, ponds, tanks) indicating maximum design volume, maximum capacity to contain the appropriate ELG requirement, and depth of manure and process wastewater.
Furthermore, large federal CAFOs must also comply with a setback requirement: maintain a setback area of 100 feet of any down-gradient surface waters, open tile line intake structures, sinkholes, agricultural wellheads, or other conduits to surface waters. In the alternative, these CAFOs can establish a 35-foot vegetated buffer or demonstrate why such a buffer is unnecessary.
The storage and setback conditions assume that the regulated CAFOs have appropriate lands. With respect to the storage condition if CAFOs do not have such spaces, they must develop an acceptable alternative system to store the waste and wastewater and consistently de-water the containment system. One such alternative system is to send the wastewater to a municipal sanitary sewer system for treatment. But even assuming that the municipality has the capacity to accept the wastewater, it may be a costly measure to operate.
D. Waste Management Plans
All CAFOs, including federal CAFOs, will need to develop and implement a waste management plan (Oregon CAFOs were already subject to a similar requirement). Under the new permit, the plan must: (1) ensure adequate collection, handling, and storage of manure, litter, and process wastewaster, operation of storage facilities, and diversion of clean water away from the regulated production area; (2) identify (a) conservation (best management) practices to limit contaminated runoff into groundwater and surface water, and (b) records to be maintained; and (3) contain appropriate protocol for land application in accordance with site-specific nutrient management practices. Finally, large federal CAFOs must also have specific protocols to test the manure, litter, process wastewater, and soil. The protocols for large federal CAFOs must be based on actual data instead of data referenced in literature. All plans must be updated if there is an expansion in the facility or the operation that results in new or increased waste generation or if terms of the permit are violated.
E. Increased Monitoring, Reporting, and Record-Keeping
To be consistent with the federal rules, the Oregon NPDES permit will also require increased routine monitoring of discharges and land applications, reporting, and record-keeping by all CAFOs. With these new conditions, CAFOs will be brought under a closer scrutiny of ODA as well as interested private citizens.
For example, a CAFO must maintain all information required by the NPDES permit, including an approved waste management plan, on-site for at least five years and make them available for inspection. If the following records are not already provided in the waste management plan, the permittee must maintain them: expected crop yields, land application information (amount, location, method of application), and amount of manure or wastewater transferred to other persons. Large federal CAFOs are expected to keep the date and amount of each transfer and name and address of each recipient. They must also keep records of mortality management.
In addition, CAFOs are expected to submit an annual report to ODA (by March 15 of each year) detailing the following information about the previous year: maximum number of animals confined and maintained at the facility; estimated total amount of manure and wastewater generated by the CAFO and amount transferred to another person; total number of acres for land application covered by the waste management plan and acres actually used by the CAFO; summary of all discharges from the production area; and a statement whether the waste management plan was developed or approved by a certified waste management planner.
Finally, a CAFO must notify ODA within 24 hours when there has been a discharge or land application in violation of the permit and then follow up within five days with a written report.
IV. CONCLUSION
These changes to the Oregon CAFO program are long overdue. They seek to consolidate and streamline Oregon CAFO regulatory authority as well as to make the Oregon program more consistent with the federal program. A CAFO that has an Oregon NPDES permit and operates in compliance with the permit terms can now be assured that it will be deemed to be in compliance with both state and federal laws.