[35 Pa.B. 5796]
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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 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 3 Pa.C.S. § 503 (relating to definitions).
Act--The Clean Streams Law (35 P. S. §§ 691.1--691.801).
Agricultural operations--The management and use of farming resources for the production of crops, livestock or poultry as defined in 3 Pa.C.S. § 503.
Agricultural process wastewater--Wastewater from agricultural operations, including from spillage or overflow from livestock or poultry watering systems; washing, cleaning or flushing pens, milkhouses, barns, manure pits; direct contact swimming, washing or spray cooling of livestock or poultry; egg washing; or dust control.
Application--The Department's form for requesting approval to construct and operate a wastewater collection, conveyance or treatment facility under a new water quality management permit, or the modification, revision or transfer of an existing water quality management permit.
CAFO--Concentrated animal feeding operation--An agricultural operation that meets the criteria established by the Department in § 92.1 (relating to definitions).
CAO--Concentrated animal operation--An agricultural operation that meets the criteria established by the State Conservation Commission in regulations under 3 Pa.C.S. Chapter 5 (relating to nutrient management and odor management) in Chapter 83, Subchapter D (relating to nutrient management).
Facility--A structure built to collect, convey or treat wastewater which requires coverage under a water quality management permit.
Federal Act--The Federal Water Pollution Control Act (33 U.S.C.A. §§ 1251--1387).
General water quality management permit or general permit--A water quality management permit that is issued for a clearly described category of wastewater treatment facilities, which are substantially similar in nature.
Manure--
(i) Animal excrement, including poultry litter, which is produced at an agricultural operation.
(ii) The term includes materials such as bedding and raw materials which are commingled with that excrement.
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 capacity--The total volume in gallons of a manure storage facility, less any required freeboard, sufficient and available to contain all of the following:
(i) Accumulated manure and agricultural process wastewater during the storage period.
(ii) Normal precipitation less evaporation on the surface of the facility.
(iii) Normal runoff during the storage period.
(iv) The design storm precipitation and runoff (25 year or 100 year, as appropriate under § 91.36(a).
(v) Solids remaining after liquids have been removed.
Manure storage facility--A permanent structure or pond, a portion of a structure or pond, or a group of structures or ponds at one agricultural operation, utilized for the purpose of containing manure or agricultural process wastewater. This includes concrete, metal or other fabricated tanks and underbuilding structures, as well as earthen and synthetically-lined manure storage ponds.
NOI--Notice of Intent--A complete form submitted as a request for general water quality management permit coverage.
Operator--A person or other legal entity responsible for the operation or maintenance of a facility or activity subject to this chapter.
Owner--The person or other legal entity holding legal title to a facility or activity subject to this chapter.
Pennsylvania Technical Guide (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 United States Department of Agriculture.
(ii) The Guide contains technical information, including design criteria, about conservation of soil, water, air, plant and animal resources specific to this Commonwealth.
(iii) The Guide is also referred to as the Field Office Technical Guide in Federal regulations and other documents.
Pollutant--A contaminant or other alteration of the physical, chemical or biological properties of surface water which causes or has the potential to cause pollution as defined in section 1 of the act (35 P. S. § 691.1).
Pollution prevention--Source reduction and other practices (for example--direct reuse or in-process recycling) that reduce or eliminate the creation of pollutants through increased efficiency in the use of raw materials, energy, water or other resources, or protection of natural resources by conservation.
Pollution prevention measures--Practices that reduce the use of hazardous materials, energy, water or other resources and that protect natural resources and human health through conservation, more efficient use, or effective pollutant release minimization prior to reuse, recycling, treatment or disposal.
Schedule of compliance--A schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with effluent limitations, other limitations, prohibitions or standards.
Single residence sewage treatment plant--A system of piping, tanks or other facilities serving a single family residence located on a single family residential lot which collects, disposes and treats solely direct or indirect sewage discharges from the residences into waters of this Commonwealth.
Stormwater--Runoff from precipitation, snow melt runoff and surface runoff and drainage.
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.
Wastewater impoundment--A depression, excavation or facility situated in or upon the ground, whether natural or artificial and whether lined or unlined, used to store wastewater including sewage, animal waste or industrial waste.
Water quality management permit--A permit or equivalent document (Part II Permit) issued by the Department to authorize one of the following:
(i) The construction, erection and location of a wastewater collection, conveyance or treatment facility.
(ii) A discharge of wastewater to groundwaters of this Commonwealth.
MANAGEMENT OF OTHER WASTES § 91.35. Wastewater impoundments.
(a) Except as otherwise provided under subsections (c) and (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.
(b) A person owning, operating or in possession of an existing wastewater impoundment containing pollutants, or intending to construct or use a wastewater impoundment, shall promptly submit to the Department a report or plan setting forth the location, size, construction and contents of the wastewater impoundment and other information as the Department may require.
(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:
(1) If a variance is requested from the requirements in subsection (a).
(2) If the capacity of one wastewater impoundment or of two or more interconnected wastewater impoundments exceeds 250,000 gallons.
(3) If the total capacity of polluting substances contained in wastewater impoundments on one tract or related tracts of land exceeds 500,000 gallons.
(4) 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) This section does not apply to:
(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.
(1) Except when more stringent requirements are contained in paragraphs (2)--(5), a manure storage facility shall be designed, constructed, operated and maintained in accordance with current engineering and agronomic practices to ensure that the facility is structurally sound, water-tight, and located and sized properly, to prevent pollution of surface water and groundwater, including design to prevent discharges to surface waters during a storm up to and including a 25-year/24-hour storm.
(i) The Manure Management Manual and the Pennsylvania Technical Guide contain current engineering and agronomic practices which can be used to comply with the requirements in paragraph (1).
(ii) If the criteria in the Manure Management Manual and the Pennsylvania Technical Guide are not followed, the owner or operator shall obtain a water quality management permit or other approval from the Department for the manure storage facility.
(2) For liquid or semisolid manure storage facilities constructed after January 29, 2000, the owner or operator shall obtain a water quality management permit from the Department for the manure storage facility unless the design and construction of the facility are certified to meet the ''Manure Management Manual'' and ''Pennsylvania Technical Guide'' by a registered professional engineer. The owner or operator shall retain a copy of the certification at the operation and provide a copy to the Department upon request.
(3) In the case of a new or expanded 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.
(4) For a new or expanded liquid or semisolid manure storage facility after October 22, 2005:
(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 is a pond and one of the following applies:
(A) The nearest downgradient stream is classified as a High Quality or Exceptional Value water under Chapter 93 (relating to water quality standards).
(B) The nearest downgradient stream has been determined by the Department to be impaired from nutrients from agricultural activities.
(ii) Where the manure storage capacity is 2.5 million gallons or more, a water quality management permit is required.
(5) For new or expanded CAFOs that commenced operations after April 13, 2003, and that include swine, poultry or veal calves, the CAFO shall prevent discharges to surface waters during a storm event up to and including a 100-year/24-hour storm from manure storage facilities that contain manure from those swine, poultry or veal calves.
(6) 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, except for enclosed facilities that are not exposed to rainfall, which must have a minimum freeboard of 6 inches.
(ii) For all other facilities, a minimum 12-inch freeboard for manure storage facilities that are ponds, and a minimum 6-inch freeboard for all other manure storage facilities.
(7) The requirements in this section are in addition to and do not replace any more stringent requirements in Chapter 83, Subchapter D (relating to nutrient management).
(b) Land application of animal manure and agricultural process wastewater; setbacks and buffers.
(1) The land application of animal manures and agricultural process wastewater requires a permit or approval from the Department unless the operator can demonstrate that the land application meets one of the following:
(i) The land application follows current standards for development and implementation of a plan to manage nutrients for water quality protection, including soil and manure testing and calculation of proper levels and methods of nitrogen and phosphorus application. The Manure Management Manual contains current standards for development and implementation of a plan to manage nutrients for water quality protection which can be used to comply with the requirements in paragraph (1).
(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) Unless more stringent requirements are established by statute or regulation, the following agricultural operations may not mechanically land apply manure within 100 feet of surface water, unless a vegetated buffer of at least 35 feet in width is used, to prevent manure runoff into surface water:
(i) A CAO.
(ii) An agricultural operation receiving manure from a CAO directly, or indirectly through a broker or other person.
(iii) An agricultural operation receiving manure from a CAFO directly, or indirectly through a broker or other person.
(3) CAFOs shall meet the setback requirements in § 92.5a(e)(1)(i).
(4) For purposes of paragraph (2) only, ''surface water'' means a perennial or intermittent stream with a defined bed and bank, a lake or a pond.
(c) Discharge of pollutants.
(1) 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.
(2) An operation that has a discharge that is not authorized under the act and that meets the definition of either a medium or small CAFO under 40 CFR 122.23 (relating to concentrated animal feeding operations (applicable to State NPDES programs, see 123.25)) is considered to have an illegal discharge and is subject to enforcement action under the act.
(3) When an agricultural operation is found to be in violation of the act, 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:
* * * * * Agricultural process wastewater--Wastewater from agricultural operations, including from spillage or overflow from livestock or poultry watering systems; washing, cleaning or flushing pens, milkhouses, barns, manure pits; direct contact swimming, washing or spray cooling of livestock or poultry; egg washing; or dust control.
* * * * * CAFO--Concentrated animal feeding operation--A CAO with greater than 300 AEUs, any agricultural operation with greater than 1,000 AEUs, or any agricultural operation defined as a large CAFO under 40 CFR 122.23 (relating to concentrated animal feeding operations).
CAO--Concentrated animal operation--An agricultural operation that meets the criteria established by the State Conservation Commission in regulations under the authority of 3 Pa.C.S. Chapter 5 (relating to nutrient management and odor management) in Chapter 83, Subchapter D (relating to nutrient management).
* * * * * 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.
* * * * * Manure--
(i) Animal excrement, including poultry litter, which is produced at an agricultural operation.
(ii) The term includes materials such as bedding and raw materials which are commingled with that excrement.
* * * * * Setback--A specified distance from the top of the bank of surface waters, or potential conduits to surface waters, where manure and agricultural process wastewater may not be land applied. Examples of conduits to surface waters includes, but are not limited to:
(i) Open tile line intake structures.
(ii) Sinkholes.
(iii) Agricultural wellheads.
* * * * * 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) Except as provided in subsections (b)--(d), each CAFO shall have applied for an NPDES permit on the following schedule, and shall have obtained a permit:
(1) By May 18, 2001, for any CAFO in existence on November 18, 2000, with greater than 1,000 AEUs.
(2) By February 28, 2002, for any other CAFO in existence on November 18, 2000.
(3) Prior to beginning operation, for any new or expanded CAFO that began operation after November 18, 2000, and before October 22, 2005.
(b) A poultry operation that is a CAFO, which is in existence on October 22, 2005, and that is not using liquid manure handling systems, shall apply for an NPDES permit no later than the following, and shall obtain a permit:
(1) By April 24, 2006, for operations with 500 or more AEUs.
(2) By January 22, 2007, for all other operations.
(c) After October 22, 2005, 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 at least 180 days before the operation commences or changes.
(2) Obtain an NPDES permit prior to commencing operations or making changes, as applicable.
(d) Other operations not described in subsections (a)--(c) that will become newly regulated as a CAFO for the first time due to the changes in the definition of a CAFO in § 92.1 (relating to definitions) shall apply for a permit by April 24, 2006, and obtain a permit.
(e) The NPDES permit application requirements shall include, but not be limited to, the following:
(1) A nutrient management plan meeting the requirements of Chapter 83, Subchapter D (relating to nutrient management) and approved by the county conservation district or the State Conservation Commission. The plan must include:
(i) Manure application setbacks for the CAFO of at least 100 feet, or vegetated buffers at least 35 feet in width.
(ii) A statement that manure that is stockpiled for 15 consecutive days or longer shall be under cover or otherwise stored to prevent discharge to surface water during a storm event up to and including the appropriate design storm for that type of operation under § 91.36(a)(1) and (5) (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) When required under § 91.36(a), a water quality management permit, permit application, approval or engineer's certification, as required.
(4) A preparedness, prevention and contingency plan for pollutants related to the CAFO operation.
(5) A water quality management permit application as required by this chapter and Chapter 91 (relating to general provisions), when treatment facilities that would include a treated wastewater discharge are proposed.
(6) Measures to be taken to prevent discharge to surface water from storage of raw materials such as feed and supplies. These measures may be included in the nutrient management plan.
(f) NPDES permits for each CAFO shall include, but not be limited to, conditions requiring the following:
(1) Compliance with the Nutrient Management Plan, the Preparedness, Prevention and Contingency Plan and the Erosion and Sediment Control Plan for plowing and tilling operations.
(2) A separate NPDES permit for stormwater discharges associated with a construction activity meeting the requirements of Chapter 102 (relating to erosion and sediment control) when applicable.
(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.
(6) When applicable, effluent limitations and other conditions as required under § 92.2a (relating to treatment requirements) to meet water quality standards, for treated wastewater discharges.
(7) Measures needed to be taken to prevent discharge to surface water from storage of raw materials such as feed and supplies, which are not otherwise included in the nutrient management plan.
[Pa.B. Doc. No. 05-1945. Filed for public inspection October 21, 2005, 9:00 a.m.]
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