PROPOSED RULEMAKING
ENVIRONMENTAL
QUALITY BOARD
[25 PA. CODE CHS. 91 AND 92]
Concentrated Animal Feeding Operations and Other Agricultural Operations
[34 Pa.B. 4353] The Environmental Quality Board (Board) proposes to amend §§ 91.1, 91.35, 91.36, 92.1 and 92.5a. This proposed rulemaking conforms current Department of Environmental Protection (Department) regulations to the revised Federal regulations for concentrated animal feeding operations (CAFOs). The proposed rulemaking also makes some substantive and organizational changes to existing regulations regarding agricultural operations in this Commonwealth.
This proposed rulemaking was adopted by the Board at its meeting on April 20, 2004.
A. Effective Date
The proposed rulemaking will go into effect upon final-from publication in the Pennsylvania Bulletin.
B. Contact Persons
For further information, contact Cedric Karper, Chief, Division of Conservation Districts and Nutrient Management, Bureau of Watershed Management, Rachel Carson State Office Building, P. O. Box 8465, Harrisburg, PA 17105-8465, (717) 783-7577; or Douglas Brennan, Assistant Counsel, Bureau of Regulatory Counsel, Rachel Carson State Office Building, 400 Market Street, Harrisburg, PA 17101-2301, (717) 787-9373. Information regarding submitting comments on this proposed rulemaking appears in Section I of this preamble. Persons with a disability may use the AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposed rulemaking is available on the Department's website: www.dep.state.pa.us.
C. Statutory Authority
The proposed rulemaking is being made under the authority of sections 5(b)(1) and 402 of The Clean Streams Law (35 P. S. §§ 691.5(b)(1) and 691.402) and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
D. Background and Purpose
The primary purpose of the proposed rulemaking is to allow the Commonwealth to maintain delegation of the National Pollutant Discharge Elimination System (NPDES) CAFO program, which was revised by the Federal government in 2003. The proposed rulemaking is also intended to implement a regulatory program for livestock operations that reasonably controls the risk to the environment in a sustainable way, with due regard for the economic importance of the industry and other societal benefits, using the input from important stakeholders and relying as much as possible on the existing successful CAFO program. The proposed rulemaking also strengthens existing requirements in key areas and codifies The Clean Streams Law requirement that smaller agricultural operations protect the quality of this Commonwealth's waters.
The proposed rulemaking is directly related to and an integral part of Governor Rendell's directive that was issued with his veto of HB 1222. This directive includes development of a comprehensive, progressive plan to address municipal ordinances enacted in conflict with the act of June 10, 1982 (P. L. 454, No. 133) (3 P. S. §§ 951--957), known as the Right-to-Farm Law, and Nutrient Management Act (3 P. S. §§ 1701--1718) and the concerns over animal feeding operations that are driving these ordinances. As a result of that directive, the definition of ''CAFO'' was expanded in this proposed rulemaking to include all operations defined by Federal regulations as large CAFOs and a stream buffer/manure application setback provision was added in Chapter 91 (relating to general provisions). The proposed rulemaking also includes specific setback and buffer requirements for CAFOs. The expanded coverage of the CAFO permitting program and provisions for buffers/setbacks respond to local concerns behind municipal ordinances. A special request for public comment on the buffer/setback provisions is included in this publication. This public input will be considered in finalizing the rulemaking and in shaping the comprehensive, progressive plan requested in the directive.
The most recent (2002) Pennsylvania report on the quality of surface waters listed agriculture as the second leading cause of impairment. Improper management of nutrients such as manure and fertilizers, as well as lack of stormwater runoff controls, are the primary contributing factors to these water quality problems around this Commonwealth. Livestock operations, including large-scale operations whose animals generate large amounts of manure, present risks of water pollution. In addition, many of this Commonwealth's agricultural operations are in the Chesapeake Bay watershed. This requires a special focus on best management practices to protect and restore that important resource.
At the same time, agriculture is an important industry in this Commonwealth, providing livelihood for thousands of citizens and their families. In addition, agricultural lands provide significant aesthetic and environmental benefits to this Commonwealth. Finally, agriculture is an important part of the cultural fabric of this Commonwealth.
To address the environmental risks posed by large-scale livestock operations, the United States Environmental Protection Agency (EPA) promulgated a comprehensive set of revised regulations governing CAFOs in February 2003. These regulations greatly expand existing Federal rules put in place over 20 years ago, to strengthen the existing regulatory program for CAFOs. The regulations revise 40 CFR Parts 122 and 412.
The Department already has in place NPDES permit regulations for CAFOs in § 92.5a (relating to CAFOs). These regulations were previously approved by the EPA as part of a delegation agreement to administer the Federal program in this Commonwealth. To maintain delegation of the Federal program, the Department must demonstrate that its regulations meet the new Federal requirements. In the case of the Commonwealth, the existing CAFO regulations, along with Chapter 83, Subchapter D (relating to nutrient management) promulgated by the State Conservation Commission (Commission), Chapter 91 and Chapter 102 (relating to erosion and sediment control), already contain many of the new Federal requirements. These regulations have been in place for several years and have achieved wide acceptance in the agricultural community as well as various stakeholders such as Department regional offices, the Department of Agriculture, the Commission, the Nutrient Management Advisory Board and the county conservation districts.
To develop the proposed rulemaking revising the current CAFO program, the Department created a CAFO Stakeholder Group (Group) in early 2003 to obtain advice from the various interested sectors of this Commonwealth--government, industry, environmental and academia--similar to the group convened in 1999 when the initial CAFO regulations were developed. The Group met six times between March and November 2003 to assist the Department in developing the proposed rulemaking. Much of the content of the proposed rulemaking reflects input from the Group.
During the Group meetings, water quality problems associated with this Commonwealth's numerous smaller livestock operations were identified. A variety of strategies were presented and discussed. Proposed § 91.36(c) (relating to pollution control and prevention at agricultural operations) emphasizes the responsibility of all agricultural operations to prevent the discharge of pollutants to waters of this Commonwealth under The Clean Streams Law. In addition, the proposed rulemaking extends the requirement for permits for manure storage to smaller operations to minimize the risk of impacts to water resources.
The Department has also sought the advice of the Agricultural Advisory Board in developing this proposed rulemaking. However, the Agricultural Advisory Board took no position and decided not to submit formal comments on the version reviewed by the Agricultural Advisory Board.
Summary of Regulatory Requirements
The regulatory scheme for agricultural operations contains several levels of requirements, which increase in stringency as the risk of impacts to water resources increases. The proposed rulemaking makes changes at several of those levels, and is being proposed concurrently with a proposed rulemaking by the Commission under Chapter 83 (relating to State Conservation Commission), which affect both CAFOs and other agricultural operations.
1. CAFOs. The main focus of this proposed rulemaking is CAFOs, the largest livestock operations in this Commonwealth. The basic requirement for CAFOs will continue to be to obtain a permit under the Department's program implementing the NPDES Program. The NPDES permit has several fundamental requirements, some of which are new or which contain new elements to conform to the new Federal requirements. These requirements, with the corresponding applicable regulation or law, are:
* Proper construction and operation of manure storage facilities (§ 91.36(a)).
* An erosion and sediment control plan for plowing and tilling (Chapter 102).
* A nutrient management plan (NMP) addressing stormwater runoff around the farmstead and application of nutrients on croplands (Chapter 83, Subchapter D).
* A preparedness, prevention and contingency (PPC) plan for chemicals (§ 92.5a(4)).
* Implementation of management controls on the export of manure away from the CAFO (Chapter 83, Subchapter D).
* Compliance with 3 Pa.C.S. §§ 2301--2389 (relating to the Domestic Animal Law) when handling animal mortality.
a. Manure Management. First, agricultural operations in this Commonwealth, including CAFOs, must meet construction and operation requirements for manure storage and management. These broad-based requirements are currently described in § 91.35 (relating to wastewater impoundments) and § 91.36, which are administered by the Department. The proposed rulemaking consolidates them into one section, § 91.36. CAFOs, which have large manure storage facilities, have special permitting requirements above and beyond those of most other livestock operations, and this proposed rulemaking preserves that extra protection. For poultry operations, these protections are increased in the proposed rulemaking, consistent with the revised Federal CAFO regulations.
b. Conservation Practices. Second, all agricultural operations that conduct plowing and tilling must develop and implement an erosion and sediment control plan to limit runoff, under Chapter 102, also administered by the Department. This applies to CAFOs. These plans are important to the prevention of surface water pollution by phosphorus from manure and other nutrients applied to the land as fertilizer. The proposed rulemaking specifies that the conservation practices must meet setback and buffer requirements approved by the Department.
c. Nutrient Management. Third, the approximately 800 ''concentrated animal operations'' (many of which are also CAFOs) regulated under Chapter 83 based on their concentration of animals (as opposed to their absolute numbers of animals) must meet a series of requirements related to nutrient management. These requirements include testing of soils and manure for nitrogen and phosphorus, determination of agronomic needs of the crops based on nitrogen, land application of manure based on those tests and on crop needs and stormwater runoff controls around the farmstead. These requirements, including the need to have a NMP approved by the local county conservation district, are also imposed on CAFOs under the existing and proposed regulations. The NMPs are subject to appeal to the Environmental Hearing Board.
Chapter 83 is promulgated by the Commission and is administered primarily through county conservation districts. Chapter 83 is currently undergoing sweeping revisions in a timeframe similar to this proposed rulemaking. (Editor's Note: For the document relating to these revisions see 34 Pa.B. 4361 (August 7, 2004).
The proposed amendments to Chapter 83 include new, additional requirements for addressing the impacts on water quality from phosphorus (in addition to nitrogen) and more frequent soil and manure testing for nitrogen and phosphorus. They also propose to significantly increase the regulation of the export of manure. These amendments are relevant to CAFOs because § 92.5a requires CAFOs to have an NMP under Chapter 83.
d. Federal CAFO Requirements. Finally, Chapter 92 (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance) contains the Department's NPDES regulations and § 92.5a governs CAFOs. Section 92.5a incorporates the other requirements already applicable to agricultural operations found in Chapters 83, 91 and 102 and adds special requirements for CAFOs within the Department's NPDES permit program. The proposed rulemaking makes several changes to § 92.5a, as well as the related definitions in § 92.1 (relating to definitions), to conform to the new EPA CAFO regulations:
* A revised definition of ''CAFO'' to expand the scope of these regulations.
* A new definition of ''livestock'' to include horses.
* A timetable for poultry operations with dry manure to apply for NPDES CAFO permits.
* Setback requirements from water bodies for land application of manure.
* Recordkeeping and reporting requirements that are identified in the NPDES permit and also in the Department's implementation strategy to be published later in 2004.
* A PPC plan for chemicals.
* Implementation of management controls on the export of manure away from the CAFO.
* Compliance with 3 Pa.C.S. §§ 2301--2389 when handling animal mortality.
The Board seeks comments in particular on two aspects of these amendments:
i. Definition of a ''CAFO.'' The Board proposes to amend the definition of a ''CAFO'' to alter the way in which a discharge to surface waters from the operation would trigger the CAFO requirements. The existing regulations consider any agricultural operation, no matter how small, to be a CAFO if it has a discharge to surface waters. The proposed rulemaking eliminates that threshold. This proposed amendment is based on the focus of the CAFO regulations: large animal operations. For the most part, these regulations do not allow discharges. Smaller operations that have discharges are subject to other, more basic requirements and prohibitions under The Clean Streams Law. The Board believes that the CAFO program should keep its focus on permitting (and monitoring) larger operations. The proposed rulemaking adds new language highlighting The Clean Streams Law general prohibitions against unpermitted discharges to surface waters.
In addition, the Board proposes to add a category of operations that will be a CAFO--operations designated as large CAFOs by the EPA. The purpose of this provision is to satisfy the new Federal definition of a CAFO, which does not use the Pennsylvania approach of ''animal equivalent units.''
Further, the Board proposes language that gives it the flexibility to include any agricultural operation that requires closer scrutiny under a permit based on certain risk factors.
Finally, the proposed rulemaking allows discharges designed to meet specified effluent limitations. This provision will encourage technologies that use manure for energy production. Some of these technologies include a treated wastewater discharge and, with this provision, can be covered under the CAFO rather than the more complex NPDES industrial waste permitting process. Public comment is specifically requested on other options that could be employed to further encourage use of manure for energy production.
ii. Setback requirements. The Board proposes to adopt new provisions to require manure land application setbacks as stated in the new EPA CAFO regulations--100 feet setback or 35 feet of vegetated buffer. However, the Board is soliciting comments on another option under consideration. Under that option, the setback requirement would refer solely to current setbacks allowed by the ''Pennsylvania Technical Guide.'' The ''Pennsylvania Technical Guide,'' published by the United States Department of Agriculture, Natural Resources Conservation Service (NRCS), is an integral part of the regulatory scheme in this Commonwealth. It contains design standards developed by the NRCS, with the assistance of cooperating agencies such as the Department, other State and Federal agencies, farm organizations and environmental groups. The current design standard for a vegetated buffer is 50 feet, which is more stringent than the Federal CAFO regulations. However, alternative buffer designs may be developed after scientific evaluation by the NRCS, review by cooperating agencies and approved by the State conservationist.
The following table summarizes the requirements in the Federal regulations and the associated Pennsylvania regulations that will satisfy those requirements if this proposed rulemaking is finalized:
Issue EPA--New Rule Department/Commission Proposed
Amendments
CAFO definition §§ 122.23(b)(4) and (6) § 92.1 NMP §§ 122.42(e)(1) and 412.4(c)(1) § 92.5a(e)(1) and Chapter 83 --Manure storage § 122.42(e)(1)(i) §§ 91.36(a) and 92.5a(e)(4) --Dead animals §§ 122.42(e)(1)(ii) and 412.37(a)(4) § 92.5a(e)(3) --Stormwater management § 122.42(e)(1)(iii) § 92.5a(e)(1) and Chapter 83 --Animal contact with waters of the United States § 122.42(e)(1)(iv) § 92.5a(e)(1) and Chapter 83 --Chemical handling § 122.42(e)(1)(v) § 92.5a(e)(1) --Conservation practices § 122.42(e)(1)(vi) § 92.5a(e)(1) and Chapters 83 and 102 --Testing of manure and soil §§ 122.42(e)(1)(vii) and 412.4(c)(3) § 92.5a(e)(1) and Chapter 83 --Land application protocols §§ 122.42(e)(1)(viii) and 412(c)(2) § 92.5a(e)(1) and Chapter 83 --Recordkeeping for NMP
§§ 122.42(e)(1)(ix) and (e)(2) and 412.37(b) and (c) § 92.5a(e)(5) Manure transfer (export) § 122.42(e)(3) § 92.5a(d)(1) and (e)(1) and Chapter 83 Annual report § 122.42(e)(4) § 92.5a(e)(5) Nitrogen and Phosphorus § 412.4(c)(1) § 92.5a(e)(1) and Chapter 83 Maintenance of land application equipment § 412.4(c)(4) § 92.5a(e)(1) and Chapter 83 Setback requirements § 412.4(c)(5) § 92.5a(d)(1) Discharge prohibition from production areas § 412 §§ 91.36(a)(4) and 92.5a(e)(4) Voluntary alternative performance standard § 412.31(a)(2) § 92.1 Visual inspections of production area § 412.37(a)(1) and (3) § 92.5a(e)(1) and Chapter 83 Depth markers § 412.37(a)(2) §§ 91.36(a)and 92.5a(e)(4)
3. Other agricultural operations. The Group that assisted the Department in the development of this proposed rulemaking identified smaller livestock operations as causing a substantial portion of pollution problems created by agriculture. To address this, the proposed amendments to § 91.36(c) emphasize the responsibility of all agricultural operations to prevent the discharge of pollutants to waters of this Commonwealth under The Clean Streams Law. In addition, the proposed amendments in § 91.36(a)(3) and (7) require permits for liquid or semisolid manure storage at smaller operations than currently permitted to minimize the risk of impacts to water resources. Section 91.36(a)(3) establishes specific size, type and location criteria for new and expanded manure storage facilities. Section 91.36(a)(7) sets the general criteria for other facilities. These facilities would be evaluated on a case-by-case basis, taking site-specific conditions into consideration, such as the proximity to special protection waters or impaired waters, and considering the risk of pollution based on various factors such as the type of geology, the type of storage structure and the size of the structure. Department staff would perform this evaluation.
Finally, the Board is proposing to add § 91.36(b)(2), which establishes Statewide setback and buffer requirements. The Board seeks comments on this requirement, and in particular on the appropriate standard for water quality protection. As a starting point, the Department's current Manure Management Manual recommends setbacks consistent with the Commission's nutrient management regulations. These primarily involve proximity to environmentally sensitive areas such as drinking water sources, and, during times of frozen, saturated or snow covered ground, from streams, lakes, ponds and other surface water conveyances. In addition, proposed § 92.5a(d)(1) requires setbacks or buffers for CAFOs that would be consistent with the Federal rule: 100 foot setback from surface water (throughout the year) or a 35-foot wide vegetated buffer, in addition to the requirements of the nutrient management regulations. The Board seeks comments on whether and to what extent either of these setback and buffer standards, or others, would be appropriate for all agricultural operations Statewide.
E. Benefits, Costs and Compliance
Benefits
Human health and the environment will benefit because agricultural operations, including CAFOs, will be required to effectively manage the manure that they produce. The largest and most concentrated operations are targeted under the CAFO program. The Department estimates that there will be a total of 350 CAFOs in this Commonwealth, as defined under this proposed rulemaking (there are approximately 160 now), mostly in the central parts of this Commonwealth. The population of the Susquehanna River Basin, in particular, will benefit from enhanced water quality and associated economic and recreational benefits. The proposed rulemaking will also complement the Commonwealth's efforts to meet its commitments to the Chesapeake Bay Program and will help to address agricultural nonpoint sources of pollution that are among the most significant sources of water quality impairment in this Commonwealth. The CAFO permitting process will also help farmers critically assess the costs and benefits of developing CAFOs before they make substantial financial commitments.
Compliance Costs
There will be compliance costs for some agricultural operations around this Commonwealth, especially existing poultry producers that will be newly regulated as CAFOs, new or expanded operations which will be CAFOs and some agricultural operations with manure storage capacity greater than 1 million gallons.
The approximately 190 operations that are expected to be directly affected by the new CAFO regulations should not be surprised by the changes. The EPA began soliciting comments on the proposed Federal rule changes about 3 years ago. Fact sheets, reports and the Federal AFO/CAFO Strategy were widely circulated to both government and industry for review and comment. The large poultry and swine integrators have been expecting these changes. In addition, Department staff have met with the poultry and swine representatives during the development of the proposed rulemaking. The technical capacity in the private sector for preparing the permit applications exists, although the timeline established by the Department in § 92.5a(c) will dictate the burden placed on these resources.
The Department does not have detailed information on the anticipated CAFO compliance costs in this Commonwealth. Using information from the EPA on the average costs of obtaining an NPDES CAFO permit, costs are estimated to be no more than the following:
--Existing operation, general permit: $1,000 to $2,500.
--Existing operation, individual permit: $1,500 to $3,500.
--New or expanded operation: $10,000 to $15,000.
In addition to the costs for obtaining a CAFO permit, smaller CAFOs and some agricultural operations will incur expenses to obtain permits for large manure storage facilities. The Department estimates those costs to be up to $1,500 to $3,500 per storage facility.
Compliance Assistance Plan
To help these livestock operations meet the proposed rulemaking's requirements, Congress increased funding for land and water conservation programs in the 2002 Farm Bill by $20.9 billion Nationwide, bringing total funding for these programs to $51 billion over the next decade. The Environmental Quality Incentives Program (EQIP) was authorized at $200 million in 2002 and will ultimately go up to $1.3 billion in 2007; 60% of those funds must go to livestock operations. The Commonwealth's allocation is approximately $8 to $10 million annually. New technology is also being perfected to aid farmers in meeting the proposed rulemaking.
Several financial assistance programs are available to livestock producers in this Commonwealth. Federal grants, such as EQIP and the Conservation Reserve Enhancement Program are available. State cost share and grant programs such as the Chesapeake Bay Program, Growing Greener and the Nutrient Management Program grants and low interest loans through Agrilink are also available.
Additionally, compliance assistance efforts following the enactment of the new regulations will be in the form of education and outreach by the conservation districts, Penn State Extension and Department trainings and fact sheets.
Paperwork Requirements
The proposed rulemaking will cause no additional paperwork (for example, reporting forms, recordkeeping, application forms, letters, public notices, and the like) for existing CAFOs in this Commonwealth.
It should be noted that the Department has been actively endorsing electronic data reporting instead of conventional paper form reporting to water systems throughout this Commonwealth. If employed, electronic data reporting would greatly reduce a CAFO's current paperwork requirements.
G. Sunset Review
The proposed rulemaking will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on July 28, 2004, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.
I. Public Comments
Written Comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed rulemaking to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477 (express mail: Rachel Carson State Office Building, 15th Floor, 400 Market Street, Harrisburg, PA 17105-2301). Comments submitted by facsimile will not be accepted. Comments, suggestions or objections must be received by the Board by November 5, 2004. Interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by November 5, 2004. The one-page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final regulations will be considered.
Electronic Comments--Comments may be submitted by e-mail to the Board at RegComments@state.pa.us and must also be received by the Board by November 5, 2004. A subject heading of the proposed rulemaking and a return name and address must be included in each transmission. If an acknowledgement of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.
J. Public Meetings and Hearings
The Department will hold two public informational meetings on this proposed rulemaking in conjunction with the meetings scheduled for the revised nutrient management regulations. The public informational meetings will be held at 6:30 p.m., September 13, 2004, at the Holiday Inn, 5401 Carlisle Pike, Mechanicsburg and at 6:30 p.m., September 16, 2004, at the Ramada Inn, 191 United Road, DuBois.
The Board will hold two public hearings coordinated with the revised nutrient management regulations. The hearings will be held at 7 p.m. on October 13, 2004, at the Holiday Inn, 5401 Carlisle Pike, Mechanicsburg and October 14, 2004, at the Ramada Inn, 191 United Road, DuBois.
Persons wishing to present testimony at a public hearing are requested to contact the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477, (717) 787-4526 at least 1 week in advance of the hearing to reserve a time to present testimony. Oral testimony is limited to 10 minutes for each witness. Witnesses are requested to submit three written copies of their oral testimony to the hearing chairperson at the hearing. Organizations are limited to designating one witness to present testimony on their behalf at each hearing.
Persons in need of accommodations as provided for in the American With Disabilities Act of 1990 should contact the Board at (717) 787-4526 or through the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD) to discuss how the Department my accommodate their needs.
KATHLEEN A. MCGINTY,
ChairpersonFiscal Note: 7-391. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE II. WATER RESOURCES
CHAPTER 91. GENERAL PROVISIONS
GENERAL § 91.1. Definitions.
The definitions in section 1 of [the act of June 22, 1937 (P. L. 187, No. 394)] The Clean Streams Law (35 P. S. § 691.1) apply to this article. In addition, the following words and terms, when used in this article, have the following meanings, unless the context clearly indicates otherwise:
AEU--Animal equivalent unit--One thousand pounds live weight of livestock or poultry animals, regardless of the actual number of individual animals comprising the unit, as defined in section 3 of the Nutrient Management Act (3 P. S. § 1703).
* * * * * [Animal equivalent unit--One thousand pounds live weight of livestock or poultry animals, regardless of the actual number of individual animals comprising the unit, as defined in section 3 of the Nutrient Management Act.]
* * * * * Earthen waste storage pond--A manure storage facility with an earthen structure lined with clay, plastic, concrete or other material acceptable to the Department.
* * * * * Manure Management Manual--The guidance manual published by the Department that is entitled ''Manure Management Manual for Environmental Protection,'' including its supplements and amendments. The manual describes approved manure management practices for all agricultural operations as required by § 91.36. (relating to pollution control and prevention at agricultural operations).
Manure storage facility--A permanent structure or facility [or], a portion of a structure or facility, or a group of structures or facilities at one agricultural operation, utilized for the purpose of containing manure [as defined in § 83.201 (relating to definitions)].
* * * * * Pennsylvania Technical Guide--
(i) The Pennsylvania Soil and Water Conservation Technical Guide, including supplements and amendments, which is the primary technical guide published by the Pennsylvania office of the Natural Resources Conservation Service of the U.S. Department of Agriculture.
(ii) The Guide contains technical information, including design criteria, about conservation of soil, water, air, plant and animal resources specific to Pennsylvania.
(iii) The Guide is also referred to as the Field Office Technical Guide in Federal regulations and other documents.
* * * * * Setback--A specified distance from surface waters or potential conduits to surface waters where manure, litter, and process wastewater may not be land applied.
* * * * * Vegetated buffer--A permanent strip of dense perennial vegetation established parallel to the contours of and perpendicular to the dominant slope of the field for purposes that include slowing water runoff, enhancing water infiltration, and minimizing the risk of any potential pollutants from leaving the field and reaching surface waters.
Waste storage structure--A manure storage facility that is a fabricated structure for storage of animal wastes or other organic agricultural wastes that is not an earthen waste storage pond.
* * * * *
MANAGEMENT OF OTHER WASTES § 91.35. Wastewater impoundments.
(a) Except as otherwise provided under subsections (c)--[(e)](d), a person may not operate, maintain or use or permit the operation, maintenance or use of a wastewater impoundment for the production, processing, storage, treatment or disposal of pollutants unless the wastewater impoundment is structurally sound, impermeable, protected from unauthorized acts of third parties, and is maintained so that a freeboard of at least 2 feet remains at all times. The person owning, operating or possessing a wastewater impoundment has the burden of satisfying the Department that the wastewater impoundment complies with these requirements.
* * * * * (c) Except when a wastewater impoundment is already approved under an existing permit from the Department, a permit from the Department is required approving the location, construction, use, operation and maintenance of a wastewater impoundment subject to subsection (a) in the following cases:
* * * * * (4) [If the impoundment is a new or expanded manure storage facility at an agricultural operation with more than 1,000 animal equivalent units, regardless of the capacity of the impoundment.
(5)] If the Department determines that a permit is necessary for effective regulation to insure that pollution will not result from the use, operation or maintenance of the wastewater impoundment.
(d) [The following types of agricultural operations are not subject to subsections (b) and (c) or the freeboard requirements of subsection (a), but shall provide a 12-inch freeboard for all waste storage ponds as defined in the ''Pennsylvania Technical Guide'' and a 6-inch freeboard for all waste storage structures at all times:
(1) An agricultural operation, which contains less than 1,001 animal equivalent units.
(2) An agricultural operation in existence prior to January 29, 2000, and designed in accordance with the ''Pennsylvania Technical Guide'' and addenda or amendments thereto.
(e)] This section does not apply to [ residual ]:
(1) Manure storage facilities at agricultural operations, which are governed by § 91.36 (relating to pollution control and prevention at agricultural operations).
(2) Residual waste processing, disposal, treatment, collection, storage or transportation.
§ 91.36. Pollution control and prevention at agricultural operations.
(a) Animal manure storage facilities. [Except as provided in paragraphs (1) and (2), animal manure storage facilities do not require a water quality management permit from the Department if the design and operation of the storage facilities are in accordance with the Department approved manure management practices as described in the publication entitled ''Manure Management for Environmental Protection'' and addenda or amendments thereto prepared by the Department, ''The Pennsylvania Technical Guide'' and addenda and amendments thereto, and when applicable, § 83.351 (relating to minimum standards for the design, construction, location, operation, maintenance and removal from service of manure storage facilities) and each animal manure storage facility is designed to prevent discharges to surface waters during a storm event of less than a 25-year/24-hour storm. In addition, in the case of animal manure storage facilities located at animal operations with over 1,000 animal equivalent units on or before January 29, 2000, a water quality management permit is not required if a registered professional engineer certifies that the design and construction of each manure storage facility is consistent with the ''Pennsylvania Technical Guide.''
(1) A permit is required under § 91.35 (relating to wastewater impoundments) for the design, construction and operation of any new or expanded animal manure storage facility at an agricultural operation with more than 1,000 animal equivalent units. In addition to the requirements of § 91.35, the permit shall incorporate the requirements of this section.
(2) If a person chooses to design or construct manure storage facilities using criteria other than those described in ''Manure Management for Environmental Protection'' prepared by the Department and the ''Pennsylvania Technical Guide'' and addenda or amendments to those publications, approval of the Department or a permit under § 91.35 will be required. Operations which are required to or volunteer to submit nutrient management plans shall comply with the nutrient management regulations in Chapter 83 (relating to State Conservation Commission).]
(1) Except as provided in paragraphs (2) and (3), a manure storage facility shall be designed, constructed, operated and maintained in accordance with the Manure Management Manual and the Pennsylvania Technical Guide. For liquid or semi-solid manure storage facilities constructed after January 29, 2000, the owner or operator shall meet one of the following:
(i) The design and construction of the facility shall be certified to meet the ''Manure Management Manual'' and ''Pennsylvania Technical Guide'' by a registered professional engineer.
(ii) The owner or operator shall obtain a water quality management permit from the Department for the manure storage facility.
(2) In the case of a liquid or semisolid manure storage facility located at an animal operation with over 1,000 AEUs for the first time after January 29, 2000, a water quality management permit is required.
(3) For a new or expanded agricultural operation after ______ (Editor's Note: The blank refers to the effective date of adoption of this proposal.), the following requirements apply to a liquid or semi-solid manure storage facility:
(i) Where the manure storage capacity is between 1 million and 2.5 million gallons, a water quality management permit is required for any manure storage facility that meets one of the following:
(A) It is a clay-lined earthen waste storage pond.
(B) The nearest downgradient stream is classified as a High Quality or Exceptional Value water under Chapter 93 (relating to water quality standards).
(C) The nearest downgradient stream that has been assessed and has been determined by the Department to be impaired from nutrients from agricultural activities and the manure storage facility is on an agricultural operation that is not implementing a Nutrient Management Plan approved by the State Conservation Commission under Chapter 83, Subchapter D (relating to nutrient management).
(ii) Where the manure storage capacity is 2.5 million gallons or more, a water quality management permit is required.
(4) A manure storage facility at a CAFO as defined in Chapter 92 (relating to NPDES permitting, monitoring and compliance) shall be designed, constructed, operated and maintained to prevent discharges to surface waters during a storm event up to and including a 25-year/24-hour storm, except for new or expanded agricultural operations that are CAFOs, that commenced operations after April 13, 2003, and that include swine, poultry or veal calves. The facilities for those swine, poultry or veal calves shall prevent discharges to surface waters during a storm event up to and including a 100-year/24-hour storm.
(5) For a liquid or semisolid manure storage facility, the following minimum freeboard requirements apply and shall be maintained:
(i) For an agricultural operation with over 1,000 AEUs that was a new or expanded operation after January 29, 2000, a minimum 24-inch freeboard.
(ii) For all other facilities as follows:
(A) Earthen waste storage ponds, a minimum 12-inch freeboard, as described in the Pennsylvania Technical Guide.
(B) For all waste storage structures containing animal wastes, a minimum 6-inch freeboard, as described in the Pennsylvania Technical Guide.
(6) The requirements in this section are in addition to and do not replace those in Chapter 83, Subchapter D.
(7) The Department may require a water quality management permit for any manure storage facility, based on relevant criteria such as proximity to special protection waters or impaired waters under Chapter 93, or the risk of pollution.
(b) Land application of animal manure, litter and process wastewater; setbacks and buffers.
(1) The land application of animal manures [does not require], litter and process wastewaters requires a permit or approval from the Department [if] unless the operator can demonstrate that the land application [of manure] is in accordance with [the] requirements of paragraph (2) and one of the following is satisfied:
(i) The land application is in accordance with [Department approved manure management] practices as described in the [publication entitled ''] Manure Management Manual [for Environmental Protection'' and addenda or amendments thereto prepared by the Department. If a person chooses to apply animal manure using the criteria other than those described in ''Manure Management Manual for Environmental Protection'' and addenda or amendments thereto prepared by the Department, approval of the Department or a permit will be required. Operations which are required to or volunteer to submit nutrient management plans shall comply with Chapter 83].
(ii) For CAOs, the land application is in accordance with an approved nutrient management plan under Chapter 83, Subchapter D.
(iii) For CAFOs, the land application is in accordance with a CAFO permit as described in § 92.5a (relating to CAFOs).
(2) Appropriate vegetated buffers and setbacks established by the Department shall be followed to protect and maintain water quality.
(c) Discharge of pollutants. It is unlawful for agricultural operations to discharge pollutants to waters of this Commonwealth except as allowed by regulations or a permit administered by the Department. The Department is authorized to take an enforcement action against any agricultural operation in violation of this requirement. In addition, when an agricultural operation is found to be in violation of The Clean Streams Law (35 P. S. §§ 691.1--691.1001), the Department may require the agricultural operation to develop and implement a nutrient management plan under Chapter 83, Subchapter D, for abatement or prevention of the pollution.
CHAPTER 92. NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM PERMITTING, MONITORING AND COMPLIANCE
GENERAL PROVISIONS § 92.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context indicates otherwise:
* * * * * CAFO--Concentrated animal feeding operation--A CAO with greater than 300 AEUs any agricultural operation with greater than 1,000 AEUs [or an agricultural operation with a discharge to surface waters during a storm event of less than a 25-year/24-hour storm], any agricultural operation with a discharge to surface waters that is authorized by Department permit limits and conditions, any agricultural operation defined as a large CAFO under 40 CFR 122.23(b)(4) (relating to concentrated animal feeding operations (applicable to state NPDES programs, see 123.25)), or any other agricultural operation designated as a CAFO by the Department based on risk of pollution of surface waters using relevant criteria such as the size, location and management plan of the operation.
* * * * * Livestock--
(i) Animals raised, stabled, fed or maintained on an agricultural operation with the purpose of generating income or providing work, recreation or transportation. Examples include: dairy cows, beef cattle, goats, sheep, swine and horses.
(ii) The term does not include aquatic species.
* * * * * Setback--A specified distance from surface waters or potential conduits to surface waters where manure, litter and process wastewater may not be land applied.
* * * * * Vegetated buffer--A permanent strip of dense perennial vegetation established parallel to the contours of and perpendicular to the dominant slope of the field for purposes that include slowing water runoff, enhancing water infiltration, and minimizing the risk of any potential pollutants from leaving the field and reaching surface waters.
* * * * *
PERMITS § 92.5a. CAFOs.
(a) [Each] Except as provided in subsections (b) and (c), each CAFO shall [apply] have applied for an NPDES permit on the following schedule:
* * * * * (3) Prior to beginning operation, for any new or expanded CAFO that [begins] began operation after November 18, 2000, and before ______ (Editor's Note: The blank refers to the effective date of adoption of this proposal.).
(b) A poultry operation that is a CAFO, which is in existence on ______ (Editor's Note: The blank refers to the effective date of adoption of this proposal.) and that is not using liquid manure handling systems, shall apply for an NPDES permit no later than the following:
(1) ______ (Editor's Note: The blank refers to a date 6 months after the effective date of adoption of this proposal.) for operations with 500 or more AEUs.
(2) ______ (Editor's Note: The blank refers to a date 15 months after the effective date of adoption of this proposal.) for operations with 300--499 AEUs.
(c) After ______ (Editor's Note: The blank refers to the effective date of adoption of this proposal.), a new operation, and an existing operation that will become a CAFO due to changes in operations such as additional animals or loss of land suitable for manure application, shall do the following:
(1) Apply for an NPDES permit no later than 180 days before the operation commences or changes.
(2) Obtain an NPDES permit prior to commencing operations.
[(b)](d) The NPDES permit [for each CAFO shall include conditions requiring] application requirements shall include, but not be limited to, the following:
(1) A nutrient management plan meeting the requirements of Chapter 83 [(relating to State Conservation Commission)], Subchapter D (relating to nutrient management) and approved by the county conservation district or the State Conservation Commission. The plan must include written agreements with importers or brokers related to the land application of manure, and nutrient balance sheets or a nutrient management plan for the importing farms. The plan must also include one of the following, whichever is more stringent:
(i) Buffers and manure application setbacks for the CAFO of no less than 100 feet from downgradient surface water, or vegetated buffer no less than 35 feet in width.
(ii) Buffers and setbacks as required by § 91.36(b)(2) (relating to pollution control and prevention at agricultural operations).
(2) An erosion and sediment control plan for plowing and tilling operations meeting the requirements of Chapter 102 (relating to erosion and sediment control).
(3) [For earth disturbances of 5 acres or more, an NPDES permit for stormwater discharges associated with a construction activity meeting the requirements of Chapter 102.] When required under § 91.36(a), a water quality management permit, permit application, or engineer's certification, as required.
(4) A preparedness, prevention and contingency plan for pollutants related to the CAFO operation.
[(c)](e) [In addition to the requirements of subsection (b), the] NPDES [permit] permits for each CAFO [with greater than 1,000 AEUs] shall include, but not be limited to, conditions requiring the following:
[(1) A water quality management permit under § 91.36(a) (relating to pollution control and prevention at agricultural operations).
(2) A preparedness, prevention and contingency plan for chemicals related to the CAFO operation.
(3) Written agreements with importers or brokers related to the land application of manure and nutrient balance sheets for all exported manure.]
(1) Compliance with the Nutrient Management Plan, the Preparedness, Prevention and Contingency Plan and the Erosion and Sediment Control Plan.
(2) A separate NPDES permit for stormwater discharges associated with a construction activity meeting the requirements of Chapter 102 for any earth disturbance of 1 acre of more with a point source discharge to surface waters, or 5 acres or more regardless of the planned runoff.
(3) Compliance with 3 Pa.C.S. §§ 2301--2389 (relating to the Domestic Animal Law).
(4) Compliance with § 91.36.
(5) Recordkeeping and reporting requirements as described in the permit.
[Pa.B. Doc. No. 04-1473. Filed for public inspection August 6, 2004, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
