March 6, 2000
STATE OF MINNESOTA
POLLUTION
CONTROL AGENCY
To
Rules Governing Animal Feedlots OAH Docket No.
and
Storage, Transportation, and 6-2200-12162-1
Utilization
of Animal Manure,
Minn.
R. 7001.0020 and 7002.0210 MPCA
STAFF INITIAL
To
7002.0280 and Chapter 7020. POST-HEARING RESPONSES
This rulemaking involves the proposed amendments under Minnesota (Minn.) Rules (R.) 7001.0020 and 7002.0210 to 7002.0280 and Chapter 7020. Chapter 7020 regulates animal feedlots and the collection, transportation, storage, processing, and disposal of livestock manure for the prevention and abatement of environmental pollution. Parts 7002.0210 to 7002.0280 establish permit fees. Part 7001.0020 relates to permit issuance procedures.
The
Minnesota Pollution Control Agency (MPCA, agency or Agency) has presented
information to demonstrate that the proposed rule amendments are both needed
and reasonable. The MPCA has received
comments, both oral and written, addressing the need for and reasonableness of
the rules. Thirteen public hearings
were held around the state from January 24 to February 14, 2000. These public hearings were attended by over
2,600 individuals. As of February 25,
2000, more than 750 comment letters were received. The MPCA staff has reviewed all of these comments and will
continue to review all submittals made into the record. However, due to the large volume of comments
and the relatively short period of time for preparing post-hearing responses,
staff is unable to specifically answer each of these letters. Many of the letters addressed similar issues
and concerns. In reviewing these
letters and preparing responses, the MPCA grouped the issues and concerns into
both general and rule-specific responses.
MPCA also identified and responded to specific letters or comments in
some limited circumstances.
The
MPCA staff divides its responses into the following sections:
I.
Summary
of Focus and Key Elements of Proposed Rule Amendments.
II.
General
Responses.
A.
Rule
adoption before completion of Generic Environmental Impact Statement (GEIS).
B.
Permit
fees.
C.
Regulation
of pastures.
D.
Need
to regulate feedlots and manure storage areas with fewer than 300 animal units.
E.
Regulating facilities by
animal unit capacity versus current number on-site.
III. Specific Rule Part Responses.
IV. Miscellaneous Responses.
A. County Delegation.
B. NPDES Permit Conditions.
C. Financial Assurance.
V. Responses to SONAR Economic Analysis Comments.
VI. Program Implementation.
A. Permit Process and Accountability.
B. NPDES permit program implementation.
C. Registration Receipt and Renewal Notices.
D. General permit criteria.
VII. Closing and Conclusion.
VIII. Attachments.
The MPCA presented two changes to the proposed rules during the hearings. These changes were explained on Hearing Exhibit 12, presented by the MPCA representatives at the January 24, 2000, hearing in Little Canada. These changes will be discussed under pts. 7020.0405, subp. 1, item B, subitem (3) and 7020.2003, subp. 5, item B, subitem (1), unit (a) in section III of this document.
MPCA
staff are also submitting additional documents with this memo in response to
the testimony, submittals and other comment and public input during this
rulemaking process. Those attachments
are identified in the Attachment Index and, to the extent possible, in the memo
as “Att. ____.”
I.
Summary of Focus and Key
Elements of Proposed Rule Amendments.
The
Agency received thousands of comments on the proposed rules. This is a summary of the amendments that
have been made or will be made to the proposed rules. Given the large number of
comments received, and the relatively short time period allowed under the
Administrative Procedures Act, which regulates how and when the Agency must
respond to comments, the amended rules will not contain all amendments related
to pastures and land application of manure until March 13, 2000. For pastures and land application of manure,
discussion in this initial memo will provide the reader the direction that the
Agency is intending to move the proposed rules. Numerous changes have been made to the proposed rule and those
proposed changes are discussed in the following pages; this section I,
summarizes some of the key changes and MPCA staff may recommend additional rule
changes in its March 13, 2000 response.
It
is the impression of the Agency that a significant portion of those persons
that commented on the rule were from smaller livestock operations. Many that commented made the argument that
the proposed rules would significantly and negatively impact smaller
operations, especially cow/calf or pasture operations. It was not the intent of the proposed rules
to significantly or negatively impact pasture operations because, as was stated
by many in hearings and in written comment, pasture operations have the ability
to be the most benign of all animal agriculture operations. The Agency believes that, in most cases,
this statement is accurate. For this
reason, the proposed rules will be amended to effectively regulate pastures as
they are currently regulated; that is on a case-by-case basis under the water
quality and ground water quality rules, Minnesota Rules chapters 7050 and
7060.
Many
commenters stated that the manure management plan and record keeping
requirements were excessive for smaller operations; that the manure management
plans would cost too much to prepare and
maintain and the cost to keep the required records was too high. The Agency intends to amend the proposed rules
such that two levels of manure management plans and the corresponding
recordkeeping will be required. Animal
feedlots capable of holding fewer than 300 animal units and manure storage
areas capable of holding manure produced by fewer than 300 animal units will be
required to prepare a significantly simplified manure management plan and keep
fewer records. Animal feedlots capable
of holding 300 or more animal units or manure storage areas capable of holding
manure produced by 300 or more animal units will, for the most part, be
required to prepare a manure management plan and the keep records as originally
proposed. Additionally, the smaller
animal feedlots and manure storage areas will have a longer period of time in
which to prepare the required manure management plans.
Many
of the comments received were directed at the proposed definition of “animal
units.” The following amendments have
been made to the proposed rule:
·
Clarify
that the term “animal units” means the capacity of the animal feedlot or manure
storage area rather than the number of animal units actually at the facility at
any one time; and
·
The
refinement of the multiplication factor for the following animal types:
·
Dairy
cattle;
·
Beef
cattle;
·
Swine;
·
Horses;
·
Sheep;
and
·
Chickens.
Several comments received were directed at the
proposed extended compliance schedule, allowed under proposed part 7020.2003,
subpart 4 to 6, for animal feedlots capable of holding fewer than 300 animal
units with runoff from one or more open lots.
Commenters were concerned that the proposed compliance dates of October
1, 2003 for installation and operation of interim control and October 1, 2009
for coming into compliance with applicable discharge standards were too
aggressive. The dates are amended to
October 1, 2005 for interim controls and October 1, 2010 for the final
compliance date.
Many comments received were directed at the duration
of short-term stockpiles. The vast
majority of these comments were that the proposed requirement to remove all
manure from a short-term stockpiling site within 6 months of initiating the
stockpile was too short. The amendments
increase the time frame for removal to one year and in doing so delete the
6-month extensions allowed under the propose rule for circumstances such as
weather and soil conditions which are no longer needed.
The amendments also remove the requirement to
re-vegetate a short-term stockpile area prior to reuse if that area is used no
more than 6 times per year for no more than 10 days for each use and the
stockpiling site is within 150 feet of the animal holding area from which the
manure was removed. These are typically
push-out areas for only solid manure from confinement barns (e.g. poultry
houses).
II.
General Responses.
A. Rule adoption before completion of Generic Environmental Impact
Statement (GEIS).
Many
commenters have stated that MPCA should have waited for the completion of the
Generic Environmental Impact Statement on Animal Agriculture (GEIS) before
proposing amendments to Minnesota Rules chapter 7020, the feedlot rules. There are no provisions in the Agency’s
statutory authority that require such a delay.
In addition, there was no such limitation placed in the 1998 legislation
authorizing the GEIS, and the legislature was aware then that the MPCA was
proceeding with the feedlot rule amendments.
However,
Minnesota Statutes section 116.07 subd. 7 (e) does require that the Agency
cooperate closely with other agencies.
The MPCA is cooperating with the Minnesota Environmental Quality Board
(EQB) in the development of the GEIS in several ways. The first is that Gretchen Sabel, Feedlot Coordinator for the
MPCA, is a member of the Citizen’s Advisory Committee for the GEIS (CAC). She has provided the committee with
information on the rule process and content.
In addition, there are a number of common members between the CAC and
FMMAC, further strengthening the coordination between the two parallel efforts. The literature summary (a 1500 + page
summary of published, peer-reviewed literature regarding feedlots) now
completed for the GEIS has been used as a reference in development of the rule
as now proposed. Both efforts
compliment each other, but are able to proceed individually.
Many
of the commenters favoring delay cite the vast amount of information on both
social and environmental topics that will be available when the GEIS is
complete. These commenters have
indicated that the GEIS will provide additional science, possibly, better
science to the rulemaking process. The
impacts of high strength waste products on water quality are well documented,
as is the need to provide some level of control through design or operational
activities to prevent negative impacts.
The proposed rule reflects this existing base of knowledge and
anticipates the incorporation of new understanding from the GEIS or other
sources in an effort to define performance standards and technical
standards. The use of best management practices
and certain permit options allows variations from the specified standards as
long as performance standards are met.
It is important to recognize that the GEIS information was considered in
the rulemaking process, that the two parallel processes are indeed related, but
that the rules can proceed on the current, well-understood issues of design,
construction and best management practices.
The
Agency agrees with commenters that the GEIS will be valuable for state policy
makers in their deliberations on policy issues relating to animal
agriculture. But, as pointed out by
some commenters, the MPCA has been working on this rulemaking since 1995. It is important that the rulemaking process
is completed for a number of reasons.
1.
Facility
owners with existing pollution problems at their sites need defined parameters
in order to develop and use management plans that address the problems in
accordance with standards. These
standards help producers get the financial assistance needed to environmentally
improve their facilities.
2.
Facility
owners looking to locate in Minnesota need a defined set of standards by which
they might develop not only design and construction plans but also business
plans without further delays or uncertainties created by the unfinished GEIS
process.
3.
Where
pollution hazards exist, the MPCA has an obligation to require a change in
operation or facility design to correct the problem. The MPCA estimates that 8000 - 12,000 facilities have open lot
runoff problems out of the estimated 40,000 total facilities. This is roughly twenty percent of the
facilities with just this problem alone.
4.
The
proposed rules represent the efforts of many producer groups, individuals,
local government staff, state agency staff and the MPCA staff. Many hours of research, evaluation and
meetings went into development of a reasonable set of standards for a
heterogeneous industry. While the GEIS
process can and has provided a significant amount of information, it cannot
begin to match the entire universe of solutions with existing problems. It is important to start to move forward
with rules that reflect today’s agricultural practices, many of which have
changed greatly since the last rule revision in 1978.
Without
the rule change, MPCA will have to continue to use the current Minnesota Rule
ch. 7020. The current rules provide
broad standards, but little specifics that guide either regulators or regulated
parties in how to comply with the standards.
Many facility owners have already waited through the current rulemaking
process and desire to move forward. A
rule reflecting the state of knowledge today will be easier to modify with any
new information from the GEIS than a rule that will be nearly thirty years old
by the time the GEIS findings could be implemented. For these reasons, and since there was no specific legislative
direction that these two efforts should be directly linked, the MPCA is
proceeding to fulfill its duties of rule revision.
The
attached fact sheet shows the process being followed for development of the
GEIS. Attachment 1. There are yet many
unknowns about the GEIS, however. One
is when it will be completed. The fact
sheet states that the study will “be complete in two to three years”, which
pushes the projected completion date out to late 2001 or early 2002. The Timber Harvesting and Forest Management
in Minnesota GEIS (EQB, April 1994) took more than four years to complete. Due to the larger scope and complexity of
the GEIS on Animal Agriculture compared to the Forestry GEIS project, one may
assume that at least this long will be required for this second GEIS.
In
reviewing the number and complexity of issues to be addressed by the GEIS, one
can easily envision the difficulties in developing a generic environment impact
statement that would generate the type of specific standards encompassed in the
proposed rules. The GEIS must look
broadly at a number of factors and cannot focus on a specific facility design
in a specific setting. To expect the
GEIS to provide specific environmental technical standards as a final product
is probably too much to expect from the GEIS final product.
The
attached fact sheet should be read with a focus on the last section, “What will
the Generic Environmental Impact Statement Accomplish?” Att. 1.
The goal is to understand issues, not to provide specific
solutions. The value of the GEIS will
be measured on how well it educates, informs and is reflected in policy
initiatives, not in setting specific standards. Minnesota Rules Chapter 7020 is in need of a significant,
expeditious update. It would be
irresponsible for the agency to wait for completion of the GEIS before
promulgating rules. When the GEIS is
complete, one product will be a series of recommendations to the
legislature. At that time, there will
be an opportunity for the MPCA to consider the need to reopen the Chapter 7020
rules to address the new findings and the GEIS recommendations.
B. Permit fees.
Permit fees are addressed under parts 7002.0210 to
7002.0280. The topic of permit fees
received two very different comments:
1) charge more permit fees to raise more money and have adequate program
resources; and 2) do not charge any fees for permits that regulate animal
feedlots or manure storage.
Background
Permit fees are always a heavily debated issue. Fees for permits that regulate animal
feedlots or manure storage received much discussion during the 1999 legislative
Session because the MPCA was, at that time, proposing to issue all of these
facilities with 50 or more animal units a permit and charge fees for nearly all
of these permits. The MPCA received the
clear message through debates in countless legislative hearings that permit
fees for the small operations were not acceptable. The MPCA did not receive the increase in its permit fee
appropriation, but the Legislature did not reduce the existing appropriation
that already had been increased several years before to include fees for
facilities that would be issued NPDES permits.
This appropriation increase request had been based on the number of
NPDES CAFO facilities with 1,000 or more animal units only. The MPCA had been planning for years to
issue this category of facilities NPDES permits, but delays in the rule
revision effort and a focus on construction projects during a period of
increased construction activity delayed this effort.
Permit fees make up a portion of the MPCA’s
operating budget. The Legislature
determines how much the MPCA may collect as permit fees in the form of an
appropriation. This appropriation is
like a loan. The MPCA borrows general
fund money for annual operation costs, but must collect and re-pay the money
within 2 years. As a result of the
MPCA’s delay in issuing NPDES permits to all CAFO facilities requiring this
permit under federal regulations, the agency has not been collecting its full
fee appropriation.
Legislative Auditor.
The Legislative Auditor conducted a review of MPCA’s
feedlot regulatory program. The
findings and recommendations were published in the “Animal Feedlot Regulation A
Program Evaluation Report,” January 1999.
This document is SONAR Exhibit G-1.
In this report, the Legislative Auditor identified that the MPCA would
need more resources to make needed program improvements. On page 84 of the report, the Auditor
concludes that the MPCA and counties would probably need additional resources
to address certain problems in feedlot regulation.
Without
additional resources, MPCA is unlikely to be able to conduct periodic
inspections of operating feedlots or to monitor whether feedlots have been
properly closed. We also think that
progress identifying and addressing long-standing pollution problems with small
feedlots in non-delegated counties will be slow. MPCA may be able to develop strategies to help delegated counties
make progress, but the MPCA feedlot program does not have the resources to run
what would amount to 35 to 40 county programs in the non-delegated
counties.
Response to comments.
More fees.
Like the Legislative Auditor, the Minnesota Center
for Environmental Advocacy (MCEA) raised concern about MPCA’s resources for the
feedlot program. Kris Sigford and Mark
Ten Eyck, 1/19/00 letter pg. 2, and Kris Sigford, 2/14/00 letter pg. 2. MCEA does not believe that the MPCA can
implement the feedlot regulatory program under the proposed rules with the
existing level of resources. To solve
the resource inadequacies, MCEA recommends that the proposed rules should be
changed so that interim, construction short-form, SDS and NPDES permits are
charged permit fees. Under the proposed
rules, only NPDES permits and SDS permits (SDS permits for facilities with
1,000 or more animal units) would be charged fees. MCEA also highlights the need for permit fee amounts that when
combined with appropriated general funds will sufficiently support the costs of
the program.
The MPCA plans to make no rule changes in response
to these comments. The MPCA appreciates
MCEA’s recommendation. However,
decisions relating to program funding levels are not in the hands of MPCA management,
but in the hands of the Minnesota Legislature.
The Legislature determines how much money MPCA will receive, both in
general funds and permit fees, for feedlot regulatory program resources. The MPCA request to increase the permit fee
appropriation for the feedlot regulatory program made during the 1999 session
was denied. The proposed fee rules were
designed based on the current fee appropriation level. Agency staff working on the proposed rules
and the program re-design have tried to balance existing resources with
targeted environmental gains. Their
efforts are detailed in the draft program plan, SONAR Exhibit I-4.
No fees.
Comments were received stating that no fees should
be charged for permits issued for feedlots and manure storage and that this
position was the decision made by the Legislature during the 1999 session. Tr. Mr. Preisler, 2/11/00, 2168.
The MPCA plans to make no changes in response to
this comment. As previously discussed,
fees for feedlot and manure storage permits were discussed at great length
during the 1999 session. However, the
statute did not state that no fees could be charged for permits that regulate
animal feedlots or manure storage areas.
The 1999 Minnesota Session Laws chapter 231, section 2, subdivision 2,
reads “Until July 1, 2001, the agency shall not approve additional fees on
animal feedlot operations,” SONAR Exhibit F-3.
As discussed on page 52 to 56 of the SONAR, the MPCA
is not proposing to change the amounts of the existing fees. Fees are currently being charged for NPDES
permits that regulate animal feedlots and manure storage areas. Therefore, no additional fee is being
proposed for these permits. Since no
permit fees are currently being charged for SDS permits that regulate animal feedlots
and manure storage areas, the proposed fees for SDS permits regulating
facilities with 1,000 or more animal feedlots could be construed as additional
fee even though there is no proposed changes to the SDS permit fees under Minn.
R. 7002.0310. Therefore, the MPCA
stated in the proposed rules that these fees would not begin until July 2,
2001, after the statutory prohibition period ended. This fee will also be reviewed by the Legislature during the 2001
budget session. This review process is
discussed in more detail on page 55 of the SONAR.
Permit fees for NPDES facilities are needed by the
MPCA to meet the current permit fee appropriation for the feedlot program. As previously discussed, the current
appropriation amount is based on the issuance of 800 NPDES permits that
regulate animal feedlots and manure storage areas. The MPCA has delayed its plan to issue these permits, which has
contributed to the agency’s inability to collect its full permit fee appropriation. The “Fiscal Detail” page of SONAR exhibit
F-4 shows a deficit in the agency’s water quality fee balance for fiscal years
1999, 2000, and 2001. The MPCA
completed the required Department of Finance review for the proposed fee rule
changes. A discussion of this process
is found on SONAR page 54. SONAR
exhibit F-4 includes the Department of Finance approval.
C. Regulation of pastures.
The
MPCA has heard the public's comments and attempted to vigorously address the
confusion that many pasture owners had with the proposed rules regarding
pastures at livestock operations. As
noted below, the MPCA has decided, in response, to examine the pasture
situation outside of the context of this proposed rule. Therefore, the MPCA is proposing to remove
the pasture registration requirements and the pasture lake-access restrictions,
and make other similar pasture-related rule modifications.
The
existing feedlot rules (Minn. R. ch. 7020) define pastures as "areas where
grass or other growing plants are used for grazing ... such that vegetation
cover is maintained during the growing season..." Additionally, the
definition of animal feedlot clearly states that pastures are not considered
animal feedlots. Thus, a livestock producer who
maintains cover grass, such as rotational grazing, or open pasture lands, does
not have a feedlot and is not required to obtain a permit as such. However, some pasture operations have
confined feeding locations associated with them for winter months or for use in
breeding or calving operations. These
areas may be considered a feedlot operation under the existing MPCA feedlot
program, if vegetative cover cannot be maintained in these areas during the
growing season.
In
the SONAR, pages 72 and 73, the proposed changes to the pasture definition were
explained. The definition of animal
feedlot did not change. Thus, if
pasture conditions were maintained, the feedlot provisions did not apply. Did the requirements change for pastures? Yes, three provisions were added. First, as for animal feedlots and manure
storage areas, owners of pastures were required to register. Currently, under the feedlot inventory
program managed by counties with the Board of Water and Soil Resources (BWSR),
pastures are to be included. The
requirement to register was not unreasonable considering the registration
information would be equivalent to an inventory based on the BWSR guidebook.
(SONAR Exhibit I-1) The registration
requirement is further explained in the SONAR, pages 79 -81. Registration does not mean facilities are
pollution hazards or are defined to be animal feedlots. Second, the definition of pastures required
temporary feedbunks to be kept outside special protection areas. The area around feedbunks has similar
characteristics as a feedlot but when kept away from vulnerable areas such as
water bodies, can be managed to limit manure-contaminated runoff from impacting
surface or ground water. Third,
facility owners needed to control access to three Department of Natural
Resources designated lakes. For pasture
operations, the originally proposed rules did not require fencing around these
lakes or any stream, river, ditch, or other water body; fencing was merely one
option that could be used to restrict access.
With
the above understanding, the MPCA was surprised at the number of concerns
raised in letters and public comment received at rule hearings. The amount of concern was particularly
confusing because the Feedlot and Manure Management Advisory Committee (FMMAC)
did not raise these provisions as one of the top nine concerns remaining as of
June 1999. The MPCA drafted the
provisions relative to pastures in an effort to clarify those actions needed to
protect the waters of the state. The
MPCA did not intend and the proposed rules do not equate pastures and feedlots.
Testimony
at the public hearings and in many of the letters received during the public
comment period suggested that the proposed pasture provisions would drive small
producers out of the livestock business.
As the public comment period progressed, the MPCA recognized that
livestock producers were unable to determine that only the provisions
containing a reference to pastures were applicable to their operations. The many comments received were similar to
those submitted by Mr. Robert Padula of PM Ranch in Montevideo, Minnesota,
dated February 14, 2000, or Rep. Rod Skoe in his letter dated February 7, 2000.
On
page 3 of Mr. Padula's letter, he requests that the definition of pastures
(Minn. R. 7020.0300, subp. 18) should be modified to delete the phrase "of
perennial grasses or forages". Mr.
Padula asserts that production practices should not be dictated. Mr. Padula raises sheep and to reduce
pesticide use on his cropland, he stocks animals in concentrations such that
cover is not maintained. Mr. Padula
further explains that his normal practice involves annual crops and pasture
rotation. The cow-calf and beef
producers raised similar concerns on operational controls across the state.
Rep.
Skoe suggests in his letter that a major change in the proposed rules was to
begin regulating pasture operations.
Further, Rep. Skoe states "Part of the problem is that the MPCA is
looking on beef-grazing and cow-calf pasture operations as a kind of
feedlot..." Rep. Skoe mistakenly
asserted that the proposed rules require pasture operations to develop manure
management plans, develop manure diversion systems, and limit actions along 300
feet of all waterways. Rep. Skoe
further believes that these "additional" feedlot requirements on
pastures will end this type of livestock operation and more land will be placed
into row crops. The amount of
herbicides, commercial fertilizers, and erosion associated with row crops
concern Rep. Skoe.
Both
letters reflect concerns with the MPCA's efforts relative to pastures. First, the definition of pasture is not
sufficiently flexible to deal with the multiple arrangements pasture operations
employ. Second, livestock producers,
local government staff and others have easily equated pastures with animal feedlots
in reading the proposed rules. Mr. Ron Harnack, Executive Director of the Board
of Water and Soil Resources, in his letter dated February 18, 2000, offered
suggested language to correct the misunderstanding: change pasture to land
application areas and clearly state that the access control is based on best
management practices. Robert Mensch and
Alan Larsen, professional engineers, in their letter suggested alternative
language to clarify the placement of feedbunks. Mensch/Larsen suggested that temporary and permanent feeding
areas be used instead of feedbunks.
The
Minnesota Lakes Association (MLA) in their letter of February 11, 2000,
indicated that the proposed rules were not sufficiently restrictive. The MLA suggested that livestock be
prohibited from all surface waters. To
support this position, the MLA included a fact sheet indicating that every time
one cow defecated into water, approximately 7.5 pounds of algae are enabled to
grow. Additionally, the MLA is
concerned with phosphorus loading and the destabilization of stream banks by
pasture operations.
The
MPCA believes that the number of questions raised relative to pasture
operations and how the proposed rules will approach implementation indicate
that another look at pastures is needed.
Thus, the MPCA proposes that it return the rule focus on pastures to
that provided in the existing rules.
This means that pasture operations will not be required to register but
that pastures developing feedlot conditions will be treated as feedlots. Additionally, the establishment of best management
practices on individual pasture operations will continue as a voluntary effort
between the livestock producer and the local soil and water conservation
district or other regulatory authority where no water pollution violations
exist. The MPCA will continue to work
with pasture owners on a case-by-case basis, as it has done under the current
rules, to prevent and abate any water quality standard violations (e.g. Minn.
R. ch. 7050 and 7060) that may be created by poor pasture management practices. This re-examination will provide the MPCA,
livestock producers, and others time to review the entire pasture situation and
consider the need for rules that more clearly establish conditions that protect
the environment but do not reduce the flexibility in managing a pasture
operation.
The
MPCA intends to make the appropriate rule changes to align the proposed rules
with the above discussions. However,
time constraints preclude from this section containing all the proper citations
and showing the necessary rule language changes needed to reflect these
decisions. These specific changes will
be presented to Judge Klein by March 13, 2000, and posted on MPCA's website.
D. Need to regulate feedlots
and manure storage areas with fewer than 300 animal units.
Many commenters suggested that the Agency should not regulate smaller animal feedlots. What these commenters considered “smaller” varied; some thought that the cut off should be 300 animal units, others thought 1,000 animal units. Both arguments were that smaller feedlots are not significant sources of pollution and, therefore should not be regulated with the larger feedlots that are the problem. The discussion here will focus primarily on those with fewer than 300 animal units; however, the same arguments are equally applicable to those with fewer than 1,000 animal units.
The
Agency disagrees with these assertions and stated in many places in the SONAR
that animal feedlots of all sizes are, or have the potential to be, significant
sources of pollution either individually or in aggregate. Smaller animal feedlots, those with fewer
than 300 animal units represent a significant and chronic threat to many
Minnesota waterbodies. As stated in the SONAR, “(i)t is estimated that 8,000 to
12,000 of the 40,000 or so feedlots in the state have fewer than 300 animal
units and significant manure-contaminated runoff from an open lot. This manure-contaminated runoff pollutes
innumerable rivers, lakes and streams that result in waters that cannot support
life other than vegetation and some rough fish.” SONAR p 38.
Based
on information from MPCA permitting data bases and Minnesota Agriculture
Statistics, it has been estimated that 30 to 40 percent of all manure being
spread on cropland is from operations with fewer than 300 animal units. In a recently published study (Att. 15)
Shepard (2000) analyzed survey data from 1928 farms in Wisconsin to determine
overall nutrient application rates and use of best management practices. The overall findings of this behavioral analysis
indicates that:
·
Few
farmers are using best management practices for nutrient crediting, and among
those that do, inaccuracy is the norm rather than the exception.
·
In
comparing recommended levels to actual rates applied, Shepard showed that
farmers over-apply commercial nitrogen and phosphorus. On average, farmers used an excess of 38
pounds per acre of nitrogen. This
includes nitrogen from all sources.
·
Shepard's
study indicated that the majority of the excesses come from inaccurate
crediting of manure nutrients.
·
Similar
results were found for phosphorus application rates. On average, farmers applied an excess of 74 pounds per acre of
phosphorus (compared to the University of Wisconsin recommendations for growing
corn).
It is reasonable to assume that Minnesota farmers are not significantly different than Wisconsin farmers in these regards. Given the significant quantity of manure produced at smaller operations and credible evidence that this manure is not being properly managed in all cases, it is reasonable to regulate these facilities to improve their environmental performance.
Delegated county feedlot officers recognize that smaller animal feedlots present a significant threat to Minnesota waterbodies. Ms. Tina Rosenstein, representing county feedlot officers from several southern Minnesota counties, suggested that the proposed rules require all animal feedlots and manure storage areas proposing construct an new or expand an existing animal feedlot to obtain a permit prior to construction. Ms. Rosenstein stated “I know that is where most of the water quality problems are with those smaller guys, and they don’t even know if it’s a problem or not.” The proposed rules do not require this since the Agency believes that the proposed system of technical standards, notification requirements and increased field presence by Agency staff and CFOs will achieve the same or superior environmental results at a lower cost.
Given
the significant impacts that manure and manure-contaminated runoff can have on
water quality, it is needed and reasonable to regulate animal feedlots with
fewer than 1,000 animal units including those with fewer than 300 animal
units. SONAR, p 10 – 22.
E. Regulating facilities by animal unit capacity versus current
number on-site.
Many comments were received
regarding the calculation and application of the number of animal units at a
facility. Where the proposed rule uses
the term “animal units,” the agency intends that number be applied to the
capacity of the facility to hold a number of animal units (or the manure
generated by that number of animal units). This number is not intended to
reflect the number of animals present at feedlots at any given time. Many comments suggested that the triggers
for requirements based on animal units would be affected by the birth of
animals at the facility. This situation
would create needless paperwork for the counties, the Agency and the owners and
that was not the intent of the proposed rules.
The applicability of the proposed rules is intended to be based on the
capacity of the facility to hold animals or animal manure, and not the actual
number of animal units or quantity of manure at a facility at any given time, a
number or quantity that may frequently fluctuate.
In many places the rule
clearly requires the facility capacity to be used in determining the number of
animal units. For example, the
provision located under Minn. R. 7020.0405, subp. 1, item B, subitem 1, “the construction and operation of an animal
feedlot or manure storage area that has been demonstrated not to meet the
criteria for CAFO and is capable of holding 1,000 or more animal units or the
manure produced by 1,000 or more animal
units;”
and the requirement to apply for the permit are clearly based on the capacity
of the facility. Other parts of the
proposed rule are not as clear.
The MPCA proposes to change
the rules to consistently identify the intention of using capacity throughout
the rules. This clarification impacts
several parts of the rules. A list of
these changes follows:
·
7002.0270, item F, subitem (2) SDS permits that regulate an animal feedlot or manure storage area capable of holding 1,000
or more animal units or the manure produced by 1,000
or more animal units, the same
fees required under subitem (1) after July 2, 2001;
·
7020.0300,
Subp. 5. Animal unit. "Animal unit" means a unit of measure used for
any animal feedlot, manure storage area, or pasture calculated by multiplying
the number of animals of each type in items A to J by the respective multiplication
factor and summing the resulting values for the total number of animal units. Unless otherwise specified, the animal unit
capacity of an animal feedlot or manure storage area is used in these parts for
determining applicable regulatory requirements. For purposes of parts 7020.0200 to 7020.2225, the following
multiplication factors in items A to J shall apply.
·
7020.0300,
Subp. 11a.
Expansion or expanded.
"Expansion" or "expanded" means construction or any
activity that has resulted or may result in an increase in the number of animal units at that an animal feedlot is
capable of holding or an increase in
storage capacity of a manure storage area that is not located at an animal
feedlot.
·
7020.0505. PERMIT
APPLICATIONS AND PROCESSING PROCEDURES. Subp. 4. Content of permit application. In addition to the requirements of item A, a
permit application for an animal feedlot or manure storage area for capable of
holding 1,000 animal units or more, or the manure produced by 1,000
animal units or more, must contain:
·
7020.1600 AUTHORITIES AND REQUIREMENTS FOR DELEGATED
COUNTIES. Subp. 3. Resolutions and
delegation agreements. To assume responsibility for administering the delegated
county feedlot program under this part, a Minnesota county board shall complete
the requirements in items A to D.
Counties that have received delegation authorization from the
commissioner prior to the effective date of this subpart may administer the
delegated county feedlot program provided that the requirements of item B are
completed by June 1, 2001. Delegation
agreements must be reviewed and revised by the commissioner and the county
annually to determine if the requirements of item B are being fulfilled and to
establish new goals.
B. Submit to the commissioner, for review and
approval, a delegation agreement that contains:
(1) inspection
goals for facilities capable of holding or the
manure produced by with fewer
than 300 animal units:
(2) inspections
conducted at facilities capable of holding or the
manure produced by with 300 to
999 animal units for the facilities meeting the conditions under subitem (1),
units (a) and (b);
·
Subp. 4. Permit
application processing procedures. The
processing of permit applications by a delegated county shall be conducted
according to the procedures in items A to D.
B. The
county feedlot pollution control officer shall forward to the commissioner for
issuance all permit applications and all other applicable documents, comments,
and recommendations for the following:
(1) all facilities that are required
to apply for a permit under part 7020.0405, subpart 1, item A or B;
(2) all facilities where all animal
manure is not used as domestic fertilizer;
(3) all facilities with 500 or more
animal units that are proposing liquid manure storage areas within 1,000 feet
of an open or filled sinkhole, a known cave, a resurgent spring, a disappearing
stream, a karst window, or a blind valley;
(4) all facilities capable of holding or the manure produced by with 500 or more animal units that are within
a vulnerable drinking water supply management area, as described on a Minnesota
Department of Health approved wellhead protection plan; and
(5) all facilities for which an
application for a variance under part 7020.0505, subpart 6, is submitted.
·
7020.2000 OVERVIEW. Subp. 5. Government notifications
of proposed construction or expansion.
An owner proposing to construct or expand an animal feedlot or manure
storage area shall notify the government authorities listed in items A and
B. Notification must be on a form
provided by the commissioner and include the information in subpart 4, items A
to F.
A.
The commissioner, or in a delegated county the county feedlot pollution
control officer, at least 30 days prior to commencement of construction of a
new animal feedlot or manure storage area or an expansion of an existing animal
feedlot or manure storage area capable of holding or
the manure produced by with
fewer than 300 animal units after construction. Notification under this item is complete if the owner is
proposing construction or modification of a liquid manure storage area and has
submitted plans and specifications in accordance with part 7020.2100, subpart
4.
·
7020.2003 WATER
QUALITY DISCHARGE STANDARDS. Subp. 4.
Eligible open lot feedlots with
capable of holding fewer than 300
animal
units. Owners of animal feedlots capable of holding having
fewer than 300 animal units and having open lots meeting the
eligibility requirements in items A to D shall comply with subparts 5 and 6. If
the facility expands to a capacity of 300 or more
animal units, the facility is not eligible under this subpart. This subpart applies only to open lots that
existed on the effective date of this part; discharges from other parts of the
animal feedlot, including manure storage areas, must comply with the effluent
limitations in part 7050.0215 and other applicable federal and state
requirements.
·
7020.2005
LOCATION RESTRICTIONS AND EXPANSION LIMITATIONS. Subp. 2. Shoreland expansion limitations. An existing animal feedlot or manure storage
area located in shoreland may not expand to a capacity
of 1,000 animal units or more. An existing animal feedlot or manure storage
area expanding in shoreland shall not locate any portion of the expanded animal
feedlot or manure storage area closer to the ordinary high water mark than any
existing portion of the animal feedlot or manure storage area.
·
7020.2015
LIVESTOCK ACCESS TO WATERS RESTRICTION. Subpart 1. CAFOs and facilities with capable
of holding 1,000 or more animal units.
Animals of a CAFO or of a facility with capable of holding 1,000
or more animal units must not be allowed to enter waters of the state.
·
7020.2100 LIQUID MANURE STORAGE AREAS. Subp. 2. Site restrictions. Except as provided in item C, the construction or expansion of a
liquid manure storage area is prohibited in the areas identified under part
7020.2005 and items A and B.
B.
In areas which are susceptible to soil collapse or sinkhole formation,
the minimum separation distance to bedrock and the manure storage area liner
design standards and prohibitions must be in accordance with subitems (1) to
(3).
(1) Animal feedlots or manure storage
areas with capable
of holding or the manure produced by fewer than 300 animal units
that contribute to liquid manure storage areas at the facility must comply with
the following:
(2) Animal feedlots and manure storage
areas with capable
of holding or the manure produced by 300 or more and fewer than
1,000 animal units that contribute to liquid manure storage areas at the
facility shall comply with the following:
(3) Animal feedlots or manure storage areas with capable of holding
or the manure produced by 1,000 or more animal units that contribute
to liquid manure storage areas at the facility shall comply with the following:
C. Where construction or modification is
required to correct a pollution hazard at an existing animal feedlot or
manure storage area having capable of holding fewer than 300 animal
units, construction or modification is not prohibited. Construction or modification under this item
must not result in an expansion of the animal feedlot or manure storage area to
a capacity to hold or the manure produced by 300 animal units or greater.
Subp.
3. Design standards. A. A
new or modified liquid manure storage area at an animal feedlot or manure
storage area with capable of holding 1,000 animal units or more or the manure produced by must be designed to
provide a minimum of nine months of storage capacity.
·
7020.2110 UNPERMITTED OR NONCERTIFIED LIQUID MANURE
STORAGE AREAS. Subpart 1. Schedule for facilities with capable
of holding 1,000 animal units or more or construction after June 3,
1991. An owner that has a facility capable of holding 1,000 or more animal units and an unpermitted or uncertified liquid manure storage area,
or that uses an unpermitted or noncertified liquid manure storage area for
which construction commenced after June 3, 1991, shall, by October 1, 2001:
Subp.
2. Schedule for facilities with the
capacity to hold fewer than 1,000 animal units. Except as required in subpart 1 or as provided in subpart 3, an
owner that uses an unpermitted or noncertified liquid manure storage area and the
facility has the capacity to hold or the manure
produced by fewer than 1,000 animal
units shall, by October 1, 2003:
A.
complete one of the provisions under subpart 1, items A to C E; or
·
7020.2225 LAND
APPLICATION OF MANURE.
Subpart
1. In general. D.
When ownership of manure is transferred for application to land not
owned or leased by the owner of an animal feedlot or manure storage area with capable of holding
or the manure produced by 100 or more animal units, any person
receiving the manure shall
Subp.
4. Manure management plan requirements.
A.
An owner or operator of an animal feedlot with
capable of holding 100 or more
animal units shall prepare and retain on file a manure management plan that
complies with item D according to the following schedule:
(1) upon application for an NPDES, SDS, or construction
short‑form permit;
(2) an owner of an animal
feedlot with capable of holding
300 or more animal units that is not required to obtain an NPDES, SDS, or
construction short‑form permit shall prepare a manure management plan by
October 1, 2002;
(3) an owner of an animal
feedlot with capable of holding
100 or more and fewer than 300 animal units shall prepare a manure management
plan by October 1, 2005; and
(4) the owner of a new or expanded animal feedlot or
manure storage area that has is capable of
holding or the manure produced by 300 animal units or more after
October 1, 2002, or that has is capable of
holding or the manure produced by 100 animal units or more after
October 1, 2005, shall prepare a manure management plan within one year of
exceeding the applicable animal unit threshold.
Subp.
5. Recordkeeping. A.
Any person receiving manure from a facility with
capable of holding 100 or more
animal units shall maintain records of manure application on file, which
include all nutrient additions for the cropland where the manure is applied:
III. Specific Rule Part Responses.
7020.0200 SCOPE.
MPCA received several comments regarding part
7020.0200, Scope, and specifically, the last sentence addressing the local
governments’ abilities to address feedlot-related issues through the zoning and
zoning-related authorities provided those governments by statute. For example, the Minnesota Pork Producers
Association (MPPA) letter, dated February 10, 2000, suggested that the Scope
language expanded township authority and ignored land use zoning authorities
afforded both townships and counties.
On the contrary, the proposed Scope language is nothing more than a
restatement of the current preamble, part 7020.0100, that recognizes that local
units of government are responsible and have legal authorities to carry out those
responsibilities regarding land use issues related to animal feedlots.
At one point in time during the feedlot rule
drafting process, the MPCA proposed to repeal language in the existing preamble
related to local governments. Local
governments raised concerns with the MPCA about that proposal. SONAR, p. 57. In response, the MPCA decided to expand the proposed Scope text
to reflect what had previously been stated in the chapter 7020 preamble. The MPPA’s letter, at page 5, expressly
recognizes that both towns and municipalities have land use zoning authorities
that can apply to feedlots. Minnesota
appellate courts have also held that counties and townships have the
authorities to regulate animal feedlots.
See Blue Earth County Pork
Producers, Inc. v. County of Blue Earth, 558 N.W.2d 25 (Minn. App. 1997), review denied (Minn. Mar. 26, 1997); Canadian Connection v. New Prairie Township,
581 N.W.2d 391 (Minn. App. 1998), review
denied (Minn. Sept. 30, 1998).
Nothing in the MPCA’s proposed Scope language changes those governments’
existing statutory authority or the case law interpreting those
authorities. The proposed language
merely clarifies that this rule does not limit local governments to adopt and
enforce requirements on animal feedlots to the extent allowed by their
respective statutes and other law. This
rule does not and cannot possibly be a definitive legal treatise on the law of
preemption or conflicts law in this area.
Consequently, the MPCA does not propose any changes to the Scope language.
In their February 14, 2000 letter, Robert Mensch and Alan Larsen asked the MPCA to adopt Scope language restricting counties, townships and cities regarding construction standards. The MPCA is concerned that this proposal did not receive any public review or comment by the local units of government and the MPCA has not had adequate time to study the implications and ramifications, including whether MPCA has legal authorities to impose the restrictions of this proposal. The Mensch/Larsen letter clearly indicates that such a rule and restriction could create implications regarding the state building code. Finally, the MPCA is not aware of problems resolved by the Mensch/Larsen proposal. For these reasons, the MPCA will not propose additional Scope text imposing any restrictions on counties, townships or cities regarding design and construction standards. It is reasonable for those legal entities to use whatever authorities exist in law to address those issues without potential impairment from an MPCA rule restriction that has not been subject to public comment and review, or comprehensive consideration by the MPCA.
7020.0205 INCORPORATION BY
REFERENCE.
In the introductory paragraph of this part, the word
“not” was inadvertently omitted during the drafting of the proposed rules. The incorporated references are not
subject to frequent change and this part has been revised accordingly.
The proposed changes delete part 7020.0205, items K,
M, and N. Contained else where in this
document is the deletion of the proposed amendments regarding animal access to
water in pastures (proposed part 7020.2015, subp. 3). The reasons for the deletion of part 7020.2015, subp. 3 and other
requirements related to pastures are discussed elsewhere in this document. Since part 7020.2015, subp. 3 is deleted and
is also the only place in the proposed rules that the documents in Minn. R.
7020.0205, items K, M, and N are referenced, it is reasonable to delete these
items.
The
MPCA is proposing changes to part 7020.0205 as follows.
·
7020.0205 INCORPORATION BY REFERENCE. For the purposes of parts 7001.0020 and
7020.0200 to 7020.2225, the documents in items A to N are incorporated by
reference. These documents are not subject to frequent change.
K. United
States Department of Agriculture, Natural Resource Conservation Service,
Natural Range and Pasture Handbook, Chapter 5, Management of Grazing Lands,
Part 2(i), September 1997. This
publication is available through the Minitex interlibrary loan system. Annual
Book of American Society for Testing and Materials (ASTM), Part 4, ASTM
D 2922, Test Methods for Density of Soil and Soil-Aggregate in Place by Nuclear
Methods (Shallow Depth). 1996
Edition. This publication is available
through the Minitex interlibrary loan system.
L. An Evaluation
System to Rate Feedlot Pollution Potential, United States Department of
Agriculture, Agricultural Research Service, April 1982. This publication is available through the
Minitex interlibrary loan system.
M.
Minnesota Natural Resources Conservation Service, Conservation Practice
Standard, Prescribed Grazing, Code No. 528A, July 1998. This publication is available through the
Minitex interlibrary loan system.
N.
Minnesota Natural Resources Conservation Service, Conservation Practice Standard,
Heavy Use Area Protection, Code No. 561, Second Draft, November 1991. This publication is available through the
Minitex interlibrary loan system.
7020.0250 SUBMITTALS AND
RECORDS. Subpart 2. Record retention,
access to records, and inspections.
Item B.
Item B discusses the duty of persons that store, transport, dispose or utilize animal manure or process wastewaters to provide the MPCA staff and county feedlot pollution control officers access to property and records. One comment stated that this item should be deleted because the commenters believe it opens owners of feedlots, manure storage areas and pastures up to unfair and possibly unconstitutional search, seizure and public demonstration. Robert L. Mensch and Alan Larsen, 2/14/00 letter page 1.
The MPCA plans to make no changes to the proposed
rules in response to this comment. This
subpart and item simply reiterates the powers afforded to the MPCA, under Minn.
Stat. sec. 115.04. These authorities
were given to the MPCA to fulfill the duties assigned to the MPCA under sec.
115.03 to protect the quality of waters of the state.
7020.0300 DEFINITIONS. Subpart 5. Animal Units.
The agency proposes to make several modifications to
the animal units definition under part 7020.0300, subpart 5. Some of these modifications incorporate
comments received during the rulemaking hearings and letters submitted by
livestock producer groups and others clarify the agency’s intent for animal
unit factors as described in the SONAR.
In proposing these changes, the agency considered
the numerous comments and concerns that suggested animal unit factors were not
equitable between animal types. As the
SONAR describes on page 61, the agency considered many factors in development
of the animal unit values. Those same
factors were again considered during our post hearing evaluation. What is again very apparent is that not one
single criterion such as animal weight, manure volume produced, nitrogen or
phosphorus content of the manure or BOD concentration in the manure, can be
used to establish animal unit values and at the same time maintain consistency
with the federal regulations. Specific
changes are as follows.
·
Subp.
5. Animal unit. "Animal unit" means a unit of measure used for any
animal feedlot, or manure storage area, or pasture
calculated by multiplying the number of animals of each type in items A to J by
the respective multiplication factor and summing the resulting values for the
total number of animal units. The
animal unit capacity of an animal feedlot or manure storage area is used in
this chapter for determining applicable regulatory requirements. For purposes of parts 7020.0200 to
7020.2225, the following multiplication factors in items A to J shall
apply.
A. one mature dairy cattle(whether milked or dry):
(1) one mature cow
(whether milked or dry):
(a) over 1,000 pounds, 1.4 animal unit; or
(b) under 1,000 pounds, 1.0 animal unit;
(2) one heifer, 0.7
animal unit;
(3) one calf, 0.2
animal unit.
B. beef cattle:
(1) one slaughter
steer, feeder cattle or heifer or stock cow, 1.0 animal unit;
(2) one feeder cattle
(stocker or backgrounding) or heifer, 0.7 animal units;
(3) one cow-calf pair,
1.2 animal unit;
(4) one calf, 0.2
animal unit.
C. one swine:
(1) over 55300
pounds or one sow with litter, 0.4 animal unit; or
(2) 55 to 300 pounds,
0.3, animal unit;
(3) under 55
pounds, 0.05 animal unit.
D. one horse:
(1) over 1000 pounds,
2.0 animal unit;
(2) under 1000 pounds,
1.0 animal unit;
E. one sheep or lamb:
(1) over 60 pounds,
0.1 animal unit;
(2) under 60 pounds,
0.02 animal unit;
F. chickens:
(1)
one laying hen or broiler, if the facility has a liquid manure system, 0.033
animal unit;
(2) except as required in
subitem (1):
(a) one chicken over three pounds laying hen,
0.01 animal unit;
(b) one chicken under three pounds
broiler, 0.0053 animal unit;
I. For animals types not listed in items A to H, the
number of animal units shall be the average weight of the animal in pounds
divided by 1,000 pounds.
Several commenters, including Mr. Robert Mensch and
Mr. Alan Larsen in their letter of February 14, 2000, commented that the
threshold to which an animal unit value applied refered to the capacity of
the animal feedlot or manure storage area and not the actual number of animal
units at the facility at any given moment.
For example, consider a facility having 250 animal units actually
on-site while the site itself has a capacity to hold 350 animal units. The number of animal units that are used to
determine the applicability of permitting, manure management plans, air
emission plans, etc. is 350.
Conversely, if an animal feedlot has the capacity for 350 animal units
but has only 250 animal units actually on-site, the facility is not expanding
if up to another 100 animal units are added.
This was discussed at length in the SONAR for Minn. R. 7020.0300, subp.
11a for the definition of the term "expansion" or
"expanded" and applies to all thresholds that are based on animal
units. The requirements of proposed
Minn. R. 7020.2000, subparts 4 and 5 related to newspaper and government
notifications are triggered on the capacity of the animal feedlot or manure
storage area. This is also discussed in
the SONAR for these rules parts.
The addition of the underlined text in the opening
paragraph of the definition of the term "animal unit" is intended to
clarify that when the proposed rule uses the term "animal unit" that
this means the capacity of the facility to hold that number of animals or that
quantity of animal manure from that number of animal units. The trigger for various rule requirements
(permitting, technical standards, etc.) is the animal unit capacity and not the
actual number of animals on-site at any given time. A varying number of 4-H or FFA animals at an animal feedlot will
not trigger the need to submit a permit application, provided the facility is
permitted or registered for a capacity to hold these animals. Therefore, no rule change is needed to
address concerns related to 4-H or FFA animals. One commenter suggested that re-registration of these 4-H or FFA
animals as they change over time could also address the issue. The agency agrees, although the rule as
proposed would not require this.
Under item A, the agency proposes to add animal unit
values for heifers and calfs to meet the intent of the originally proposed item
I for these animals. At least one
commenter also raised the concern that the rule was not clear on what value to
assign to calves and dairy youngstock or heifers. The values the agency intends to apply to the heifer (or
comparable dairy youngstock) and calf types are included in the SONAR
discussion under item I, examples 3 and 1, respectively, on pages 63 and 64. Therefore, these additions are
clarifications of the agency’s original intent. This change and similar changes in items B to F will further
clarify that only animal types not specifically listed in items A to H are
subject to the average weight divided by 1000 pounds provision in item I. Item I will be used, for example, for animal
types such as elk, buffalo and ostriches.
Under item B the agency proposes to add animal unit
values for a cow-calf pair and for a calf for the reasons discussed above for
calves. Example 2 on page 64 of the
SONAR describes the cow-calf pair value of 1.2. The agency also proposes to shift the feeder cattle and heifer
values from 1.0 each to 0.7 each. The
proposed heifer value of 0.7 is very similar to the discussion under example 3
on page 64 of the SONAR. The feeder
cattle value of 0.7 applies to backgrounding cattle that are not being finished
at the site. Based on several comments
during the hearings, agency staff described cattle that were (background) fed
at facilities where they were not reaching market weight as being considered
under item I. To simplify this
process and provide a consistent value to be used for the state program, the
agency believes that 0.7 reasonably fits this group of animals for two reasons. First the heifer value is consistent with the
heifer value under the dairy cattle provision.
Second, stocker cattle or backgrounding cattle range from approximately
500 to 800 pounds (based on testimony at the Nisswa hearing, pages 637-639),
and taking an approximate average weight of 650 to 700 pounds.
Under item C, the agency proposes to make two
changes to the swine animal types.
First the agency is responding to the Minnesota Pork Producers
Association letter dated February 10, 2000, in which they request adding a new
category for finishing swine between 55 and 300 pounds and assigning these
animal a value of 0.3. Second, the
value for a sow with litter has been added to reflect the discussion in example
4 on page 64 of the SONAR.
Under item D, the agency is proposing to separate
the values for horses over and under 1000 pounds, assigning them values of 2.0
and 1.0 respectively. This is in
response to many comments during the hearings and in letters that very small
horses or ponies, for example, would be assigned a value of 2.0 if this is not
changed. In practice the agency
estimates that the federal regulatory status of very few, if any, horse
facilities would be affected as a result of this change.
Under item E, the agency is responding to comments
submitted by PM Ranch in their letter dated February 14, 2000. The agency proposes to separate sheep or
lamb values to over and under 60 pounds.
The 60-pound threshold was suggested in the PM Ranch letter although the
commenter suggested to exempt all sheep or lamb under 60 pounds. The agency believes that the comments
suggest that reasonable number to assign the animals under 60 pounds is
0.2. This fits well with the discussion
on page 2 of the PM Ranch letter that identifies a 140 pound ewe having 2 or 3
ten-pound lambs totaling about 170 pounds.
Under the agency’s proposal these animals would total 0.16 animal units
(1 ewe and 3 lambs) instead of the 0.4 using the existing value of 0.1 each.
Under item F the agency proposed two changes to
address several comments from poultry industry representatives (Gold'n Plump
letter, Zenus Baer letter) during the hearings and more generally suggestions
over the past months related to animal units.
In subitem (a), “chicken over three pounds” has been changed to “laying
hen” and in (b) “chicken under three pounds” has been changed to “broiler” with
a change in the value from 0.003 to 0.005.
These changes are also consistent with the state of Wisconsin proposed
animal unit values for broilers and laying hens, as shown in the Gold'n Plump
letter.
7020.0300 DEFINITIONS. Subp. 5a. Concentrated animal feeding operation or CAFO.
Comments were received requesting changes to the definition of CAFO in part 7020.0300, subp. 5. In its February 10, 2000 letter, MPPA requested the deletion of the phrase referencing the clarification under the Minnesota statute. In his letter dated February 13, 2000, Zenas Baer argued for the same deletion and the insertion of clarifying language (e.g. as may be from time to time amended) about future amendments of the cited federal regulation and a part of the existing definition of CAFO in part 122.23(b)(3) (e.g. Appendix B).
The proposed definition in subpart 5 covers all three CAFO categories included in the federal definition of “concentrated animal feeding operation,” SONAR, p. 27. Under 40 C.F.R. part 122.23(b)(3), “concentrated animal feeding operation” is defined as an animal feeding operation that meets the criteria in appendix B of part 122 or which is designated a CAFO by EPA or the delegated state NPDES authority under paragraph (c) of section 122.23. The defnition of CAFO in party 122.23 (b)(3) already includes the express reference to Appendix B so MPCA does not see a need to repeat that phrase in MPCA’s rule definition which the definition is already based on the entire meaning of CAFO in part 122.23(b)(3), which includes all three CAFO categories. MPCA intends to follow the federal definition which incorporates Appendix B and EPA's guidance on that regulation, and the federal definition is used in the MPCA rule.
Mr. Baer also suggested language that would make express reference to future amendments of the federal definition so that any revisions would be automatically incoporated into MPCA’s definition. MPCA agrees with Mr. Baer’s intention and MPCA also intended that future changes in the federal definition would be automatically included in MPCA’s rule definition. MPCA staff discussed Mr. Baer’s proposed language with Ms. Carla Riehle of the Office of Revisor of Statutes and it was decided that Mr. Baer’s proposed language may cause confusion and actually defeat MPCA’s intent to use automatically future amendments to the federal CAFO definition.
MPCA has already incorporated by reference the entire CAFO meaning in 40 C.F.R. part 122.23(b)(3). See part 7020.0205. By that incorporation by reference, MPCA has adopted by reference any subsequent amendments to part 122.23(b)(3). Minn. Stat. sec. 645.31, subd. 2 (1998).
MPCA is the delegated NPDES agency that is required to administer the EPA NPDES CAFO regulations consistent with EPA’s requirements to promote uniformity. By ensuring the MPCA rule definition remains consistent with any EPA changes, uniformity is promoted and maintained. MPCA’s rule definition consequently assists and supplements the uniform implementation of the federal CAFO permit program when it keeps consistent with any federal EPA amendments and EPA's guidance implementing the regulations.
Upon further review, MPCA staff agree that the state statute addresses NPDES permitting issues for animal feedlots and that it does not provide any additional clarification of the existing federal definition in part 122.23(b)(3). MPCA recommends that phrase be deleted.
In accordance with this discussion, MPCA proposes to change the subpart 5 definition as follows:
·
Subpart 5. Concentrated animal feeding operation or
CAFO. “Concentrated animal feeding
operation” or “CAFO” means animal feedlots and manure storage areas meeting the
definition of a CAFO in Code of Federal Regulations, title 40, section 122.23,
and clarified under Minnesota Statutes, section 116.07, subdivision 7c.
7020.0300 DEFINITIONS. Subp.
9. County feedlot pollution control officer.
In
the definition of county feedlot pollution control officer add back the
language “knowledgeable in agriculture and who is”.
Numerous commenters in almost all of the thirteen
hearings and many more in their written comments suggested that the agency
retain the language above so that the county feedlot officer (CFO) has an
understanding of agricultural operations.
The agency agrees that this is important and will clarify it’s original
intent to those reading this section.
The definition with this language as described in the SONAR does not
identify what specific type of agriculture the CFO must be knowledgeable in and
therefore the provision may allow a person not knowledgeable in livestock
agriculture. The agency believes that
the counties hiring these individuals will hire qualified individuals and the
agency also intends to train the CFOs in applicable areas of the feedlot
program.
·
Subp.
9. County
feedlot pollution control officer.
“County feedlot pollution control officer” means an employee or officer
of a delegated county who is knowledgeable in agriculture and who is
designated by the county board...
7020.0300 DEFINITIONS. Subp. 9c. Discharge.
During the hearings and the public comment process, MPCA received comments regarding the definition of discharge in part 7020.0300, subp. 9c, located on page 10 of the Revisor’s rule edition, dated December 1, 1999. At this time, the MPCA proposes to make the following revisions to the rule:
·
Subpart
9c. “Discharge” means the addition of a
pollutant to waters of the state, including a release of animal manure,
manure-contaminated runoff or process wastewater from an animal feedlot, a
manure storage area or pasture an animal manure land application site
by leaking, pumping, pouring, emitting, emptying, dumping, escaping, seeping,
leaching, or any other means. Discharge
includes both point source and nonpoint source discharges. Seepage from a
manure storage area that has been permitted or demonstrated to be properly
designed, constructed and operated is not a discharge.
The term “pasture” was deleted consistent with
previous discussion in this memo. Discharges from pasture operations that
violate the MPCA rules protecting ground water or surface waters will be
addressed on a case-by-case basis rather than as a specific part of this
proposed chapter 7020 update. In
addition, the phrase “an animal manure land application site” was added in
response to comments from such organizations as the Minnesota Lakes Association
and Minnesota Center for Environmental Advocacy (MCEA) that indicated the
phrase had inadvertently been excluded from the definition. The SONAR discussion, page 68, clearly
showed MPCA’s intent that this definition would include reference to land
application site discharges. Finally,
MPCA proposes to delete the last sentence referring to seepage in response to
the MCEA letter, dated January 19, 2000.
After further consideration, MPCA recognizes the confusion and potential
absurdity of trying to define away an actual discharge. MPCA’s initial proposal was merely
attempting to recognize that certain discharges (e.g. those authorized seepage
rates through properly designed liners) were acceptable under the rules. However, MPCA’s initial proposal is
confusing and attempts to say a discharge is not a discharge by definition. In response to the public comment, MPCA
reviewed the rule and determined that the deletion of the last sentence will
not affect MPCA’s initial intent or the ability of MPCA to authorize seepage
that occurs in accordance with MPCA rules.
In a letter dated February 13, 2000, Zenas Baer
argued that the phrase “nonpoint source” should be deleted from this definition
so that only the narrow federal CAFO definition of point source would
apply. The deletion of that phrase is
inconsistent with MPCA rules that protect surface and ground water from the
universe of potential sources, point and nonpoint combined, of discharges of
pollutants. For example, MPCA’s water
quality standards, Minn. R. ch. 7050, apply to point and nonpoint source
discharges. Minn. R. 7050.0110
(1997). By excluding the nonpoint
sources and focussing solely on the narrow federal point source definition of
CAFO as Mr. Baer suggests, MPCA would be ignoring discharge sources that are
not always included in the more narrow federal CAFO definition as a point
source but that are included in the broad definition of point source as used in
both the federal and state pollution control laws. For example, it is possible and it has occurred, that non-CAFO
feedlot facilities have been found to have installed pipes and hoses that discharge
manure to surface waters. Clearly,
these pipes and hoses at non-CAFO sites are point sources under the federal
Clean Water Act and Minn. Stat. §
115.01, subd. 11 and the definition of discharge should not be so narrowly
defined as to avoid recognizing those discharge points as point sources. In addition, MPCA knows of incidents at
non-CAFO feedlots of the inappropriate application and over-application of
manure that have discharged to surface waters creating nuisance conditions and
violating water quality standards.
These discharges did not always occur from point sources but sometimes
were the result of runoff of a diffuse nature over land. MPCA’s regulatory definition of discharge
should be consistent with the federal and state laws that regulate the entire
universe of point and nonpoint sources to protect waters and to prevent
pollution. Mr. Baer’s proposal too
narrowly interprets the nature of discharge and ignores the need for MPCA to be
able to respond to and regulate nonpoint discharges that potentially violate
surface and ground water standards.
MPCA does not propose to modify the definition as argued by Mr. Baer.
7020.0300 DEFINITIONS. Subpart 13b. Manure-contaminated runoff.
The phrase "animals or" was a typo and
that text was not intended to be included in the definition. This issue was raised by numerous commenters
in hearings and many more in written comments.
·
Subpart
13b. Manure-contaminated runoff. “Manure-contaminated runoff” means a liquid
that has come into contact with animals or animal manure and drains over
land from any animal feedlot, manure storage area, pasture, or animal manure
land application site.
In a letter dated February 13, 2000, Zenas Baer
argued that the definition of manure-contaminated runoff should be revised so
that manure that runs off, if applied according to an approved manure management plan, would not be defined as
manure-contaminated runoff. MPCA does
not intend to make the proposed revision for the following reasons. First, the proposed rules are intended to
get staff, both MPCA and county delegated officers, into the field more often
and lessen the amount of time needed in the office reviewing paperwork. The proposed rule amendments do not
contemplate that manure management plans (MMPs) will “approved.” If the rules were revised to require MMP
approval, it would significantly affect MPCA’s ability to accomplish a major
goal of these rules, the increased field presence of MPCA and county feedlot
officers (CFOs). Staff would instead be
required to do a comprehensive and detailed review of each MMP in order to
“approve” it. This review would require
extensive staff time checking out the various parts of the MMP to ensure each
part complies with the rules themselves.
For example, it would require a double-checking of appropriate setbacks
on each of the producer’s proposed land application sites and possibly soil
checks of each field. This type of
evaluation is not currently done under the existing rules and program. If approval of MMPs is required, a primary
goal of these rule amendments would be impaired because staff would be tied to
the office going over the additional paperwork in order to issue the approvals.
Second, the Baer proposal does not take into account
that MMPs are “living” documents. Plans
are modified on a constant basis to account for changing conditions at the
feedlot and related manure management practices. Even if the MPCA or CFO “approved” an initial MMP, the producers
are constantly changing various aspects of the feedlot including feed
ingredients, timing of application, cover crops, and changing land application
sites. These changes affect the content
and application of the initial MMP. The
rules do not anticipate that the MPCA or CFO would review and then “approve”
each of these revisions or changes. The
need for constantly reviewing and approving modified MMPs would again swamp
staff with paperwork and help defeat a primary goal of these amended
rules. It is not reasonable to
“approve” an initial MMP under the Baer concept and then not require the MPCA and
CFO to see and approve each change in order to ensure the MMP is adequate so
that MPCA could reasonably determine that no violations would occur. Under the current and proposed systems, MPCA
and CFOs will not likely see modified MMPs on a routine basis so the “approval”
may not have much meaning after the MMP is modified. Such modifications could so substantially alter the originally
approved MMP without any regulatory oversight so as to render the original approval
moot.
Third, MMPs are not the type of comprehensive
document that can be used to expressly state in rule that manure run-off, even
applied in accordance with the MMP, should not be defined as
manure-contaminated runoff or that the effects of such runoff should not be
considered a violation if in fact, the runoff violates water quality
standards. Clearly, the typical MMP
produced today or contemplated under the revised rules does not provide the
level of detail upon which MPCA could reasonably determine, on a case-by-case
basis, that no violations of the rules or water quality standards will
occur. The MMPs are intended to prevent
those occurrences from happening but the MMPs do not take into account or have
sufficient detail to address every aspect of the application process. Each MMP will be different and the level
of technical or scientific
understanding of best management
practices (BMPs) included in those MMPs and the BMPs ability to eliminate or
sufficiently reduce manure presence in the runoff, when applied on a
case-by-case basis, is not adequately advanced to the point that MPCA could
reasonably determine absolutely no runoff will occur and that the runoff will
not cause or contribute to a pollution hazard, including water quality
problems.
Finally, the Baer argument that such a run-off
discharge, even if occurring when the manure was applied in accord with a MMP,
should not be the basis for a violation is inconsistent with and contrary to
EPA’s NPDES permit program for CAFOs.
EPA anticipates that comprehensive nutrient management plans (CNMPs)
will be principal substantive conditions in NPDES CAFO permits. See SONAR, Ex. P-2, ch. 3. CNMPs are similar to MMPs in that they
contain information regarding manure handling and storage, land application
details such as nutrient sources and record keeping. Ex. P-2, p. 3-2. EPA
anticipates that the NPDES CAFO permits will contain BMPs needed to meet the
technology- or water quality-based effluent limitations in the permit. Ex. P-2, p. 3-8. However, where the NPDES permit for a CAFO does contain
technology or water quality based effluent limitations other than BMPs,
compliance with the BMPs contained in the CNMP alone does not constitute
compliance with the permit. Id. The CAFO must meet and comply with the
effluent limitations in its NPDES permit as well as implement any BMPs
contained in the CNMP. Id. As a result, it is possible that even if the
CAFO is complying with its MMP, it could have manure-contaminated runoff
discharges that would violate the effluent limitations that are contained in
the NPDES permit under 40 C.F.R. part 412.
So while the MMP is designed to help ensure compliance with the entire
permit and all permit terms and conditions, including the effluent limitations,
mere adherence to the MMP alone is not in and of itself assurance that no
violations will or can occur. MPCA
anticipates that if permit or rule violations do occur even if the producer is
applying manure in accordance with his MMP, the producer will be advised to
modify and improve the MMP and his application practices to eliminate the
violations, or abate or reduce the discharges accordingly to come into
compliance with any applicable permit or rule.
However, mere adherence to a CNMP or MMP does not provide the basis to
conclude no violations are possible or did not occur if not in compliance with
other aspects of the NPDES permit.
The Baer proposal is not as simple as it may
initially appear. The feedlot rule
amendments were not structured to provide the detailed rule criteria and human
resources needed to “approve” MMPs and all subsequent MMP revisions to
accomplish the proposal. MMPs currently
and under the new rules are not the comprehensive, detailed document that would
be needed to accomplish the Baer proposal.
Finally, the NPDES permit program requires more than adherence to a CNMP
in order to eliminate noncompliance or to make a determination that no
violations exist. For these reasons,
MPCA will not make the recommended revision.
7020.0300 DEFINITIONS. Subpart 15. New animal feedlot.
Many commenters during the hearings and many more in
letters, including Robert Mensch and Alan Larsen in their February 14, 2000
letter, suggested changing the three year threshold back to the original five
years for classifying an unused feedlot as a new feedlot. The agency discussed this proposed change in
the SONAR and included a description of one of the primary concerns, that being
physical damage to a liquid manure storage area such as erosion of an earthen
basin liner. Mensch and Larsen
suggested an alternative to the agency’s five-year approach that the agency is
adding to part 7020.2100, subpart 1, as described later in this document. With this addition in part 7020.2100, the
agency believes that the change back to five years as in the existing rule is
reasonable.
·
Subpart
15. New animal feedlot. “New animal feedlot” means an animal feedlot
or manure storage areas:
A. constructed, established, or operated at a site where no animal
feedlot or manure storage area existed previously; or
B. that existed previously and has been used for five three
years or more.
7020.0300 DEFINITIONS. Subpart 16
National Pollutant Discharge Elimination System.
In its January 19, 2000 letter, MCEA commented on
the proposed revision to the existing definition of NPDES permit (current rule,
Minn. R. 7020.0300, subp. 16) that would strike the phrase “point sources
including concentrated animal feeding operations.” MCEA accurately pointed out that, with this deletion, the MPCA might
inadvertently be suggesting that a NPDES permit is not needed for other point
source discharges. This is not the
MPCA’s intent. In its proposed
revision, the MPCA was not intending to narrow the definition of point sources
needing NPDES permits to only CAFOs.
The MPCA recognizes that non-CAFO feedlots, manure storage areas and
even land application sites may be constructed or operated with “point sources”
that do not meet the CAFO provision of point source. For example, the regulatory definition of point source is
purposefully broad in scope and includes pipes, ditches and conduit from which
pollutants are or may be discharged. See
Minn. Stat. § 115.01, subd. 11 (1998); 40 C.F.R. part 122.2 (1999). In MPCA’s historic experience, MPCA staff
have seen numerous examples of point sources (e.g. pipes, hoses, man-made
constructed channels, etc.) at non-CAFO feedlots and related facilities that
were being operated as discharge mechanisms to waters of the state and thus,
were subject to the NPDES permit requirements.
Typically, the owner and operator would eliminate the discharge and
thus, avoid the need to get a NPDES permit.
MPCA agrees with MCEA’s concern that the proposed
deletion may inadvertently imply that other point sources are not subject to
the NPDES requirements. That
implication is not intended and to avoid any further confusion, MPCA proposes
to remove the proposed deletion. At
this time, MPCA staff are proposing that subpart 16 would read as follows:
·
Subpart
16. National Pollutant Discharge
Elimination System (NPDES) permit
or NPDES permit. “National Pollutant Discharge
Elimination System (NPDES)
permit” or “NPDES” means a permit issued by the agency for the purpose
of regulating the discharge of pollutants from point sources including
concentrated animal feeding operations (CAFOs).
7020.0300 DEFINITIONS. Subpart 19a. Pollution Hazard.
In its January 19, 2000 letter, MCEA had several
comments regarding the definition of pollution hazard in part 7020.0300, subp.
19a. First, MCEA discussed subpart 19a,
item A. regarding the two-prong criteria in that item and questioned whether a
facility discharging in excess of applicable water quality standards or not
adhering to some other portion of the rule is automatically a pollution hazard,
without regard to the SDS or NPDES permitting.
Item A is intended to address the situation where the feedlot owner is
proposing an alternative construction or operating method that achieves
equivalent results to the requirements in parts 7020.2000 to 7020.2225 and that
owner then must obtain at least a SDS permit under part 7020.0405, subp.
1.B.(3). Item A does not contemplate
that actual water quality standards (e.g. the discharge standards in part
7020.2003 or chapters 7050 and 7060) are being violated and any such violations
will not
be allowed under the SDS permit requirements of part
7020.0405. Any alternative construction
or operating method will have to comply with those various standards, either
immediately or under a schedule of compliance in the permit or other compliance
tool.
The situations questioned by MCEA do not give rise
to an automatic pollution hazard determination, under item A. Item B would require an inspection and the
MPCA staff’s or CFO’s consideration of the factors in item B in order to make
the pollution hazard determination which could cover violations of any
applicable water quality standards (e.g. part 7020.2003, chapters 7050 and
7060, etc.) or noncompliance with any other provision of chapter 7020. By making chapter 7020 more detailed in
terms of the various prescriptive and performance standards under parts
7020.2000-.2225, owners should be able to more easily identify that they are in
noncompliance with the applicable MPCA requirements and immediately implement
corrective and protective measures before any MPCA or CFO inspection is
needed. It is not in the owner’s
interest to continue any noncompliance with the more descriptive rule
requirements because, upon inspection, the noncompliance will be subject to
remediation through the permit process and such noncompliance could create the
potential for an enforcement action depending upon the nature, extent, effects,
etc. of the violations. On that basis,
the MPCA believes that the more descriptive chapter 7020 requirements contain
or they create a “self-actualization”
incentive for owners to take actions to get into and maintain compliance with
chapter 7020 and other applicable rules such as the surface and ground water
standards found in chapters 7050 and 7060.
Second, MCEA and some other comments expressed concern
that pollution hazard did not expressly identify potential air quality issues
(e.g. odor or air quality standards) in the determination criteria. Chapter 7020 focuses primarily, but not
exclusively, on practices, methods, requirements and the like related to land
and water pollution. However, the
largest feedlots and manure storage areas must draft an air emission plan,
including an odor complaint protocol, under part 7020.0505, subp. 4.B. The issues of odor and air quality have
always been issues for feedlots and manure handling, storage and disposal, but
it is only within the last approximate five to six years that MPCA and other
regulatory entities have begun focusing research and resources to addressing
the expanding odor/air quality issues that have been associated with increasing
animal densities and the proliferation of larger feedlots with larger manure
storage areas (e.g. basins, lagoons and large under-barn pits). The MPCA’s learning curve and experience,
and the science associated with these issues have not sufficiently developed to
the point where the MPCA is comfortable proposing detailed rules to address
these potential odor and air quality problems.
For the largest facilities, the MPCA believes the requirements for the
air emission plan is a good first step to address the issues on a broader
scale. That is not to say that MPCA is
without the regulatory authority to address these issues whether it be under
the MPCA’s air quality rules directly or through the revised chapter 7020 rules
for any size site or facility. For
example, the MPCA still intends, when deemed necessary on a case-by-case basis,
to impose odor and air quality preventative provisions and monitoring,
contingency and remedial requirements in the various chapter 7020 permits (e.g.
NPDES, SDS, interim and construction short form). This practice is consistent with the requirements of chapter 7020
(e.g. interim permit requirements under part 7020.0535, subp. 7.C. imposing
requirement that the interim permit contain additional requirements related to
specific site or operation as determined necessary to ensure compliance with
applicable rules) and the MPCA permit issuance rules, part 7001.0140, subp. 1,
that require the permitted activity or facility to comply with all applicable
state and federal pollution control statutes and rules administered by the
MPCA.
Other comments were received about part 7020.0300,
subp. 19a, item B regarding that provision’s allowance that a pollution hazard
can occur based on the fact that the site or facility or operations thereof
would present a “potential” source of water pollution. The proposed rule is consistent with the
existing rule (e.g. definition of “potential pollution hazard”) that is
intended to identify situations that will likely cause or contribute to
pollution problems and to initiate preventative measures to avoid the pollution
from occurring in the first place. In
addition, this phrase was added to address concerns from some delegated counties
regarding MPCA’s proposal to not require a permit for construction at
facilities of less than 300 animal units. 24 S.R. 851 (December 20, 1999);
SONAR, pp. 75-76. With this rule, and
if any plans or specifications or construction is found to violate or have the
potential to violate the rules, the facility is defined as a pollution hazard
and the rules require an interim permit to address the problem. The
effectiveness of the rule and of MPCA’s ability to address prospective
pollution issues would be substantially impaired if potential pollution
situations could not be addressed, and MPCA and CFOs were forced to wait for
actual pollution to occur before actions could be taken.
The ability of MPCA staff and CFOs to inspect a
facility and require immediate implementation of protective or corrective
measures based on the detailed observations made during that inspection is an
integral part of the pollution-prevention aspects of the proposed rule and it
is consistent with the goals and purposes of the authorizing pollution control
statutes. Like federal pollution control laws, MPCA’s authorizing statutes were
intended to provide MPCA with the means to prevent
pollution as well as to control or abate pollution once it occurs. The ability to prevent pollution from occurring is exactly what is accomplished
with the ability of the MPCA staff and CFOs to determine the existence of a
pollution hazard when potential water pollution exists based on conditions at
the feedlot, manure storage area or land application site and other related
facilities. MPCA’s statutes authorize
MPCA to adopt rules to prevent pollution. See Minn. Stat. §§ 115.03, subd.
1(e)(1), (2), (3), (4); 116.07, subds. 2 and 4 (1998). The “pollution-prevention” concept is
already part of the existing chapter 7020 where a feedlot owner is required to
submit a permit application when an inspection by MPCA or the CFO determines
that a potential pollution hazard exists.
Minn. R. 7020.0500, subp. 1a. (1997).
While MPCA is revising the definitions regarding pollution hazard, MPCA
is not changing the rules to limit the ability to prevent pollution from
occurring in the first place. By using
the term potential in the definition
of pollution hazard, MPCA is being consistent with Minnesota statutes, the
current rule and past practice to ensure the owner is properly notified of
conditions that could violate the MPCA rules and create actual pollution
situations.
Not only do the statutes authorize MPCA to adopt
rules to identify and prevent potential pollution situations, but MPCA has
numerous rules that incorporate that prevention goal. For example, MPCA’s Lake Superior water quality standards include
procedures to impose permit conditions when technical evaluations show that
effluent from a source has a reasonable potential to cause or contribute to an
excursion above applicable standards. See
Minn. R. 7052.0240, subp. 3 (Supp. no. 2, 1998). MPCA air quality rules also regulate facilities on the basis of
potential pollution emissions. See
e.g., Minn. R. 7007.3000 and 7007.4020 (1997). The proposed use of pollution hazard, using either the potential
or immediate sources of pollution, is consistent with the pollution prevention
goals of the rule and MPCA statutes. By
using both terms, potential and immediate, MPCA ensures the rule covers the universe
of pollution conditions, possible and existing, so that nothing is overlooked
or ignored. Using this method, the
owners will be notified of problem conditions in many cases before actual water
pollution violations actually occur.
The owners can them implement protective or corrective measures and
avoid the pollution and the possible costly remedial actions (e.g. clean-up and
restoration) if the pollution problems are major in nature.
Minn. R. 7020.0300, subp. 19a, item B, specifies
factors that must be considered when the MPCA staff or CFO is determining
whether a pollution hazard exists at a facility. SONAR, p. 75. These
factors are similar to the criteria used in the NPDES CAFO rules for
case-by-case designations of CAFOs. See
40 C.F.R. part 122.23(c) (1999). These
factors are important because they give the inspector, as well as the facility
operator and owner, the framework for focusing the inspection on conditions
that give rise to pollution situations such as water quality standard rule violations. Using this framework, the inspector can
systematically review the facility conditions and assess compliance or
potential problems. These factors are
the primary framework for the inspection but the rule is not an exhaustive list
of every potential factor that may exist at all facilities. It would be nearly impossible to come up
with a comprehensive, universal list of factors that might need to be assessed
at the variety of facilities that might exist at Minnesota’s estimated 40,000
feedlots and related facilities. U.S.
EPA’s 1995 Guide Manual and EPA’s 1999 Guidance Manual identify additional
“inspection focus” criteria to address each factor in part 122.23. SONAR, Exhibit P-1, p. 10; Exhibit P-2, p.
2-8.
In their February 14, 2000 letter, Robert Mensch and
Alan Larsen argued that item B(3) was not an appropriate criterion for
determining a pollution hazard and that it was redundant to item B(5). First, these criteria have been in use in
EPA’s CAFO rule for many years and there is no technical basis for asserting
the factors are redundant in all cases.
For example, in the context of MPCA’s rules, item B(3) addresses not
only location to surface waters but also the proximity of the facility to
potential groundwater sources. The
proximity to groundwater sources would not necessarily be accounted for by the
slope, vegetation and rainfall criteria found in item B(5). MPCA intends to keep all proposed
factors. By doing so, MPCA is
consistent with EPA’s factors and as the
example above shows, item B(5) does not necessarily
provide the owners or inspectors with the appropriate framework in every case
related to such conditions as location relative to ground water sources.
In its February 10, 2000 letter, the MPPA argued
that item B should include a factor that included measures and devices that
will prevent the migration of pollutants to waters of the state. As noted above, it is extremely difficult if
not nearly impossible to draft up a comprehensive list of all observations that
need to be made by the inspector that address all of the various permutations
that exist at Minnesota’s estimated 40,000 feedlots when making a pollution
hazard determination. However, the MPCA
agrees with the MPPA that existing protective and corrective measures at the
site should be considered and MPCA believes that this consideration can be
taken into account under the provisions of item B(5) that addresses other
factors affecting the likelihood or frequency of discharge. The MPCA also
prefers to have factors that are, to the extent possible, consistent with
factors used by EPA. In maintaining
that type of consistency, the MPCA and CFOs can more easily integrate EPA
insights, suggestions and recommendations into the state program. For example, EPA’s 1999 Guidance Manual not
only discusses the designation factors but also includes more detailed lists of
inspection focus for each factor.
SONAR, Exhibit P-2, p. 2-8. The
EPA inspection focus includes elements that are similar to the MPPA’s
recommendation including: feedlot design capacity, drainage controls, buffers
and storage structures. The MPCA will
train its staff and CFOs to make observations of the various measures that have
already been installed to prevent pollutant migration as part of the pollution
hazard determination, but the MPCA does not see a need to expand the current
rule factors to address that particular element of a much broader scope of
elements that could be or will be considered on each inspection taking into
account the variety of facility situations that will be confronted.
7020.0300 DEFINITIONS. Subpart
25. Unpermitted or
noncertified liquid manure storage
area.
The Minnesota Center for Environmental Advocacy
commented in their letter of January 19, 2000, that the word “and” in part 7020.0300,
subp. 25, item B should be “or.” The
MPCA concurs with this assessment. The
proposed rules do not always require a permit to be issued for the construction
of a manure storage area. For example,
a facility with fewer than 300 animal units that constructs in accordance with
the requirements of part 7020.2100 need only complete certain required
notifications. As the MCEA describes,
this change is necessary so that it is clear that the owner must comply with
the technical standards and with permit requirements, if applicable. Therefore, it is reasonable that if either
of the conditions in item B exist, the manure storage area in question is an
unpermitted or uncertified manure storage area.
The
MPCA is proposing changes to the definition of “unpermitted or noncertified
liquid manure storage areas,” as follows.
·
Subpart 25
"Unpermitted or noncertified liquid manure storage area" means
a liquid manure storage area that is in operation and:
A. the owner does not have an agency or delegated county permit or
certificate of compliance for the manure storage area and was required to apply
for and obtain a permit or certificate of compliance prior to the construction
or operation of the manure storage area; or
B. the owner has not complied with the preoperational requirements
of part 7020.2100 and or permit requirements, if applicable.
7020.0300 DEFINITIONS. Subpart 26. Waters of the State.
During this rulemaking process, numerous comments
were received about MPCA’s proposal to insert a definition for waters of the
state in part 7020.0300, subp. 26. Many
comments were critical of the extensive nature of the coverage in the proposed
definition. As MPCA staff responded in
the public hearing process, this definition is identical to the statutory definition
established in Minn. Stat. § 115.01, subd. 22.
The MPCA staff also noted that the MPCA has been cautious in the
implementation of this definition to avoid potentially absurd applications. For example, the statutory definition
includes “irrigation systems” but the MPCA has not applied that definition to
assert that center pivot irrigation systems or traveling guns are waters of the
state. SONAR, p. 79. This statutory definition has been around
for many years and MPCA staff have routinely responded to similar assertions
(e.g. the glass of water or the puddle in your driveway). In doing so, MPCA staff have emphasized its
reasonable application of the definition to address those waters that were
intended to be protected under the various clean water regulatory
programs. The MPCA staff understand the
concerns expressed about the broad nature of the definition but it is broad in
order to cover the innumerable situations that may exist regarding the various
types of water bodies that may need to be protected for environmental and
public health protection purposes. This
same definition is used in the MPCA’s water quality standards program and other
water quality programs (e.g. permitting, stormwater, etc.) so it is prudent to
remain consistent in this rule revision.
For these reasons, the MPCA will keep the statutory definition in the
rule.
7020.0350 registration
requirements for animal feedlots and manure storage areas.
The word “pastures” is
proposed to be deleted from the part heading as part of the over all approach
for dealing with the regulation of pastures as discussed in this memo.
In her January 28, 2000
letter, Ms Colleen Landkamer commented that it is unreasonable to assume that
an owner can identify environmental problems when completing a registration
form. In response, these revised rules
lay out in more detail the types of feedlot conditions and practices that are
acceptable and those that are not acceptable.
By being more prescriptive compared to the existing rules, the MPCA
intended that owners and operators would get more detail on what is expected on
them in their operations. With this
detail, the owners and operators should be able to better self-identify
conditions at their operations that may be violating the rules and to then adjust
their practices accordingly. However,
the form does not ask the owner to identify rule violations or to make any
subjective assessments about whether the facilities or operation are in fact
pollution hazards. The form instead
focussed on collecting factual information.
The registration form is
intended to solicit and collect information that the owner can provide through
objective knowledge or observations about the owner's facilities and
operations. These objective
observations can then be entered on the form and this will assist the MPCA and
CFOs in their evaluation and assessment of the relative risks that may be
associated with the facility. This
information and these evaluations will then be used by the MPCA and CFOs to
prioritize the dissemination of educational and technical assistance as well as
inspection resources.
7020.0350 REGISTRATION. Subpart 5. Penalty for
Non-Registration.
Numerous
public comments and submittals were received on part 7020.0350, subp. 5. This rule provision gives express notice to
owners of feedlots and manure storage areas that a failure to register in
accordance with the rules subjects the owner to potential penalties. The oral and written comments varied in
content but two predominant comments were suggestions that the rule identify
the specific penalty that applies and that registration not be required for
pastures. As discussed in other
sections of this memorandum, the pasture registration requirement is being withdrawn
and subpart 5 will also be revised to reflect that change. However, the MPCA is
not proposing to delete this subpart or to include a specific penalty amount as
discussed further below.
The
need and reasonableness for subpart 5 is discussed in detail in the SONAR,
pages 90-91, and will not be repeated here.
However, during the rulemaking process, the MPCA was encouraged by some
FMMAC members to include an express penalty notice as a means to give upfront
information to owners about potential ramifications if they failed to comply
with the registration rule. The MPCA
still believes that this upfront notice is important but is more concerned with
the perceptions created by the notice.
For example, potentially more serious ramifications can occur if an
owner fails to register than any potential the MPCA imposed penalty. For example, the MPCA and the delegated
counties will not be able to forward regulatory and education information to
the owners if the owners' names and addresses are not available to the
regulatory agencies. One of the basic
reasons for registration is to provide an efficient means to provide timely
information, including educational opportunities and technical assistance, to
owners through mailings from the MPCA, delegated counties and other assistance
organizations such as the U of M Extension Service and local soil and water
conservation (SWCD) boards. No owner
registration impairs that effort and prevents the owner from obtaining
information that may assist the operations.
In addition, registration is a pre-condition, under part 7020.2003,
subp. 4.C., for eligibility for the extended compliance deadlines for
eligible
open lot feedlots with a holding capacity fewer than 300 animal units. No owner registration eliminates the
availability of this rule option for that owner. These ramifications are likely more serious in nature than
potential penalties from the MPCA.
The
MPCA has discussed in the SONAR, pages 81-82, its intentions to do an extensive
outreach and information program to educate affected parties through the summer
of 2001, and up close to the initial registration deadline of October 1,
2001. This outreach and educational
effort, with the ongoing outreach, inventories and assistance by delegated
counties, should minimize the numbers of owners that do not register and thus,
minimize the need for any MPCA or delegated county follow-up. However, if there is noncompliance with the
registration rule, the MPCA does have the authority to use various enforcement
tools, including the remedies under Minn. Stat. section 115.071 and the
administrative penalty order (APO) under Minn. Stat. section 116.072. Of course, the MPCA needs to prioritize the
use of all resources, including the few enforcement resources, at its disposal. In all likelihood, non-registration alone would
likely result in the MPCA's use of a low-level, nonformal enforcement tool such
as a Letter of Warning (LOW) or a Notice of Violation (NOV) as a first level of
effort to get registration compliance.
MPCA anticipates that most owners will be cooperative with initial
registration and that the nonformal enforcement tools will promote substantial
compliance. Given these efforts, the
MPCA's considerations of proposing any enforcement tools that would be more
formal (e.g. a nonforgivable APO) will likely be reserved for recalcitrant
non-registering owners. For those
potentially few situations, the MPCA needs to maintain discretion to decide the
nature of the proposed penalty based on the circumstances unique to each
situation. Based on current experience,
the MPCA cannot determine a specific monetary civil penalty amount that would
be an appropriate incentive to promote compliance from potentially recalcitrant
owners that would intentionally refuse to register. If a rule-specific penalty is set, it would likely be too low to
create the appropriate deterrent effect.
The current rulemaking record lacks sufficient evidence on which to
determine an appropriate, specific penalty amount and the MPCA does not yet
have the past experience to propose a generic penalty that would be applicable
in all cases. As a result, the MPCA
will not propose a specific penalty for inclusion in this part. Instead, the MPCA proposes to use its enforcement
discretion to deal with non-registration on a case-by-case basis to the extent
appropriate and if formal enforcement tools are used, considering the facts of
each specific case.
7020.0400 permits
and certificates issued prior to effective date of this part.
The
Minnesota Center for Environmental Advocacy (MCEA) made several comments in
their testimony and letter of January 19, 2000, regarding interim permits. These comments are summarized as:
1.
The
Legislative Auditor found that one-half of the interim permits that were issued
and have expired were never converted to certificates of compliance; the
proposed rule should require these facilities to apply for a SDS or NPDES
permit;
2.
The
proposed rules appear to extend the term of interim permits issued and
unexpired on the effective date of the proposed rules an additional 24 months;
3.
Owners
could get up to 7 ¼ years to correct a pollution hazard under the proposed
rules;
4.
Facilities
that have been determined to be a “pollution hazard” should not be allowed to
expand and interim permits should not be used for construction; and
5.
The
Agency should not allow new business opportunities in sensitive areas by not
prohibiting construction of liquid manure storage areas at animal feedlots with
fewer than 300 animal units.
The
MCEA suggested that there may be some facilities in Minnesota that were issued
interim B permits to correct a pollution hazard for which the required work is
not complete and the permit has expired.
If the required work was not completed in the time allotted under the
permit and no other permit was applied for and issued, this is a violation of
Minnesota rules and the permit and should be dealt with through the enforcement
process. MCEA suggested that the rules
require the owner then to apply for a NPDES permit. However, this would remove the flexibility that the Agency needs
in enforcement cases to appropriately deal with specific circumstances. For these reasons, the proposed rule remains
unchanged.
The
MCEA suggested that the rules appear to extend the term of unexpired interim
permits by 24 months; the Agency disagrees.
Proposed part 7020.0405, subp. 3, item B states, “If the requirements
for which an Interim B permit was issued are not complete on the expiration
date of the Interim B permit, the owner shall comply with part 7020.0535,
subpart 5, except that the owner shall complete the notification requirement
prior to the expiration date of the Interim B permit.” Proposed part 7020.0535, subpart 5 states,
“If the pollution hazard for which an interim permit was issued is not
corrected upon expiration of the permit, the expiration date may be extended by
no more than 90 days …” The Agency
interprets and intends this to mean that if an interim permit was issued prior
to the effective date of the proposed rules and the work required under the
permit is not complete, the owner may request an extension of 90 days,
or if the work cannot be completed in 90 days, the owner must apply for
a SDS or NPDES permit under part 7020.0405, subp. 1, items A and B(2). The owner may also be subject to enforcement
action depending upon the specific circumstances.
The
MCEA suggested that owners may get up to 7 ¼ years to correct a pollution
hazard under the proposed rules. This
is not the MPCA's interpretation or intention of the proposed rules. The intent of the proposed rules is to have
all pollution hazards that can be corrected under the time frame allowed under
the interim permit to be corrected in an expeditious time frame but no longer
than 24 months. It is not the intent
that all interim permits are issued for 24 months. The proposed rules allow shorter schedules under this permit and
it is the intent of the Agency that if a pollution hazard can be corrected in
six months that it is corrected in that time frame. The interim permit that is issued should reflect that shortened
time frame when applicable.
The
proposed rules do allow a SDS permit to be issued in the case where the work
was not completed under the schedule allowed under an interim permit that was
issued. The proposed rules allow
shorter schedules under SDS permits also.
Again, it is the intent of the Agency to have pollution hazards
corrected as quickly as possible. One
possible circumstance under which a long schedule to correct a pollution hazard
would occur is if during the period of time that an owner is correcting a
pollution hazard under an interim permit, another unforeseen problem is
identified or occurs (an act of God, for example).
The
intent of the proposed rules is to allow the flexibility necessary to deal with
specific unforeseen situations as they occur.
MPCA and the CFOs will be expected to work with the owner when the
interim permit application is received to determine the most expeditious
schedule that is reasonable within the 24-month limitation of the interim
permit. If the appropriate, reasonable
schedule is shorter than the 24-month limit, the MPCA and the CFOs are expected
to issue the interim permit with the shorter schedule. There may be situations where the entire
24-month period is reasonable and in those situations, the owner may ultimately
be faced with circumstances that were unforseen to the MPCA, the CFO and the
owner at the time of the initial interim permit issuance. Clearly, the MPCA’s preference is that such
circumstances can be quickly addressed with an extension of less than 90 days,
but the full 90 days is available if the owner can demonstrate that full 90
days is needed. If the circumstances
require an additional time period due to circumstances that demonstrate the
owner did not cause the problem to be extended (e.g. failure to timely mobilize
resources to get the job done or intentionally delaying corrective work), the MPCA should then be able to issue the
appropriate operational permit (e.g. SDS or NPDES) to get that job done
quickly.
The MCEA suggested that construction should not be allowed under an interim permit and that facilities that have been determined to be a pollution hazard should not be allowed to expand. Proposed part 7020.0405, subp. 2 prohibits owners from populating the expansion prior to correction of the pollution hazard for which an interim permit was issued. Many commenters said that the cost to correct pollution problems at their facilities is very high. One method of reducing the impact of that cost is to expand at or about the same time that the problem is being fixed. Since one of the stated purposes of the proposed rules is to correct existing pollution problems at existing facilities, and it is not the purpose of the proposed rules to force the affect facilities out-of-business, it is reasonable to allow the construction activities to corrected a pollution hazard and construction related to the expansion to occur simultaneously. Since the reason for the rules is to first correct existing pollution problems it is also reasonable to require that the expansion cannot be populated with animals until the pollution hazard is corrected.
The
MCEA suggested that the proposed rules should strictly prohibit the
construction of liquid manure storage areas at animal feedlots with fewer than
300 animal units under the same geological conditions for larger animal
feedlots in part 7020.2100, subp. 2. The MCEA commented that the “Agency should
not allow new business opportunities in these sensitive areas.” The proposed rules do not allow new
opportunities. The proposed rules allow
construction in these areas only as a means to correct a pollution hazard. Often the options to correct the pollution
hazard are not limited to constructing a liquid manure storage area or ceasing
operation. Often, the owners may be
able to correct the pollution hazard through moving the feeding area,
constructing a filter or buffer area and/or installing clean water
diversions. However, for a small
percentage of owners, the only other alternative to constructing the required
liquid manure storage area would be for the owner to cease operation in that
location. For some, the preferred
option may be to cease operation instead of construction a liquid manure
storage area considering the range of costs for these systems.
The
proposed rules (part 7020.2100, subp. 2, item C) limit the growth of the animal
feedlot at that location to 299 or fewer animal units. As stated in the SONAR (p. 156) in
situations where the proposed requirements are used, the intended outcome is to
eliminate an existing pollution hazard and to minimize the risk of future
pollution hazards and allow the owner of the animal feedlot in question to
continue to operate. For these reasons,
the suggested change is not incorporated.
Permits & Certificates
In its
February 10, 2000 letter, the Minnesota Pork Producers Association (MPPA)
expressed concern about the expiration of permits that had been issued prior to
the effective date of these new rule amendments. When the MPCA staff heard this issue, staff were concerned that
the MPPA’s comments were related to an earlier edition of the proposed rule
that did discuss the possibility that the rule would terminate those permits
effective the date of the effective date of the new rule. Subsequent to receipt of the MPPA’s
comments, the MPCA staff discovered that the State Register notice contained an
inaccuracy regarding part 7020.0400, an inaccuracy that reflected an earlier
rule version. The notice indicated that
SW-A permits, five-year permits and certificates of compliance issued under the
existing rule expire on the effective date of the rule amendment. 24 S.R. 850 (December 20, 1999). That statement is not accurate and does not
reflect the proposed part 7020.0400.
Under
the current proposed rules, the typical five-year permit (e.g. the combined
NPDES/SDS or sole SDS permits) would remain in effect to the extent provided by
the terms of the issued permit. See
part 7020.0400, subp. 4. Of course,
those permits would remain subject to the MPCA’s permit rule, Minn. R. ch.
7001. Owners with SW-A permits are
required to apply for the applicable permit under these new amendments and at
the time of permit application review, the SW-A permit would be reconsidered in
accordance with applicable rules. See
part 7020.0400, subp. 1. Permittees
with Interim A or Interim B permits must follow the procedures in subpart 3
during the transition into the new rule amendments. Finally, owners with certificates are required to comply, to the
extent applicable, with the various permitting requirements. See part 7020.0400, subp. 2. Under the current rules, the certificates
are not permits but are instead, letters indicating the facility’s status with
regard to agency requirements; the letter contains a determination made at the point
in time when either the MPCA or CFO had up-to-date information on the
facility. If subsequent to that
determination, new information was obtained by the MPCA staff or CFO (usually
through an onsite inspection) that a potential pollution hazard or rule
violation existed, the initial determination regarding compliance would no
longer be correct or valid. Under the
proposed rules, owners with certificates are required to not only comply with
the new permitting requirements but they must also comply with the other
applicable parts of the rules, including registration and the technical
standards. SONAR, p. 92. Owners will have to review the new rules to
ensure their operations are now compliant with any applicable new requirements
and the MPCA and its delegated CFOs will provide compliance determination
assistance. Obviously, determinations
of compliance with the new rule amendments have not yet been made by the MPCA
or CFOs so the owners will be encouraged to do their own evaluations too when
the rules become finalized.
The
MPPA argues that existing permits and certificates should remain in effect
until any new permit is issued. As
discussed above, some permits will expire by rule (e.g. current Interim A and B
permits have a 10 month limit under Minn. R. 7020.0300, subp. 13) or by the
very nature of the terms of the permit (e.g. five-year permit). MPCA’s proposed rules acknowledge those
existing requirements so the owner is not prejudiced by operation of the new
rule itself. Many facilities that currently
have certificates may not need permits under the new rules so it would be
inconsistent with the nature of the certificate to adopt a provision, that by
rule, they remain in effect if the facility doesn’t need a permit. It would also be contrary to the rule to
have a provision that mandates for a certificate remain in effect if an MPCA
inspector or CFO determines the facility is violating feedlot rules or other
applicable standards (e.g. surface or ground water standards). Under the existing rules, such a
determination means the initial determination is no longer correct or
valid. It only makes common sense that
a new determination, especially such a determination made after an onsite
inspection, should be the controlling determination and if necessary, the owner
should take the appropriate steps to remedy the problems.
It
appears that the MPPA’s comments were the result, at least in part, of prior
rule drafts that discussed possible expiration issues and the State Register
notice that inaccurately stated the effect of these rules. Based on the current proposed rule text and
for reasons stated above, no additional rule changes are proposed to address
this comment.
7020.0405 Permits Requirements.
Ms.
Tina Rosenstein, Nicollet County Feedlot Officer, testified on February 11,
2000. She was representing county
feedlot pollution control officers from several southern Minnesota
counties. In her testimony, she
suggested that the proposed rules should require the issuance of a permit for
all construction or expansion at all animal feedlots or manure storage areas
with 50 or more animal units even when the owner is proposing to construct or
expand in accordance with the proposed standards for discharge, design,
construction, operation, and closure (parts 7020.2000 to 7020.2225). (Tr.
2/11/00, p. 2306)
The
proposed rules require the owner of any animal feedlot a capacity of holding
fewer than 300 animal units to obtain a permit only if:
¨ the facility has been
determined to be a pollution hazard; or
¨ the owner is proposing to
construct, expand or operate in a method that is not in accordance with
proposed standards for discharge, design, construction, operation, and closure
(parts 7020.2000 to 7020.2225).
The Agency understands that the CFO’s primary reason for requiring permits is to prohibit construction activities until the owner has received permission from the permitting authority to proceed. The Agency also understands that one of the primary reasons for the prohibition would be to require communication between the owner and the permitting authority prior to construction.
As stated in many places in the SONAR, the agency
supports the need for greater “field presence” and agrees when Ms. Rosenstein
says the greatest gains are made when an Agency person or CFO deals with the
owner on a one-on-one and ongoing basis.
The Agency believes that the proposed rules provide all of the tools
that are needed to foster this ongoing relationship. The primary means of supporting the notion of increased “field
presence” is through the reduction of the administrative burden on the Agency
and delegated counties to issue permits that are not needed. The technical standards in the proposed
rules provide the means to regulate the construction of the vast majority of the
facilities of potential environmental concern (i.e. manure storage areas and
some animal holding areas). Owners that
wish to construct something other than what is included in the technical
standards are required to apply for an SDS or NPDES permit.
The proposed rules (part 7020.2000, subpart 5) require any owner proposing construction or expansion to notify the permitting authority and local zoning authorities.
Parts 7020.2100, subparts 4 and 5 also require
notification specifically for the construction of liquid manure storage areas. These parts are intended address the need
for communication between the owner and the permitting authority.
The Agency understands that these county feedlot
pollution control officers (CFO) are also concerned about the possibility that
the proposed requirements in the technical standards for discharge, design,
construction, operation, and closure (parts 7020.2000 to 7020.2225) may not be
protective enough for all construction or expansion plans. For example, consider the implications of a
proposed facility just under the size restrictions and just outside the
location restrictions. It is possible
that an owner may propose to construct a 290 animal unit facility at the top of
a hill, just outside a special protection area. The Agency believes that these county feedlot pollution control
officers felt that the proposed rules should allow the permitting authorities a
method to intervene prior to construction of the facility.
In
response to this concern, in part, the proposed rules include the term
“potential” in the definition of term “pollution hazard” (part 7020.0300,
subpart 19a, item B). This is intended
to address this concern. Under the
proposed rule, the permitting authority could issue interim permits for the construction
or expansion of a facility capable of holding fewer than 300 animal units
through the following possible process:
The Agency believes that the existence of the term
“potential” in the definition of “pollution hazard” addresses any concerns for
the construction or expansion of these facilities.
When notified about the pollution hazard
determination, it is anticipated the MPCA staff, the CFO and the owner would
engage in discussions that might result in project modifications to eliminate
the pollution hazard before the owner proceeds with any construction or
expansion. Such modifications would be
included in the interim permit to ensure no pollution hazard is created.
As discussed on pages 23
through 25 of the SONAR, the agency considered the Rosenstein-proposal
requirement and rejected it due to the considerable administrative cost to
issue these permits and the fact that feedlot program resources will not allow
further resources dedicated to issuing permits. The MPCA estimates that 38 full-time-equivalents (FTEs) are
required to fully implement the program plan for the proposed rule and that
there are approximately 22 FTEs currently in the animal feedlot program. (page
41 of the SONAR) Dedicating more of the
limited FTEs to issuing permits would in the agency’s view be counter
productive.
Ms. Rosenstein also suggested that the proposed
rules require an inspection of all sites prior to expansion or approval to
expand. As stated repeatedly in the
SONAR for the proposed rule (e.g. page 38).
The agency supports the premise of increased inspections and “field
presence”. The MPCA states on page 45 of
the SONAR “The potential environmental gains that the proposed system would allow
will not be realized without a strong ‘field presence’.” However, given the limited resources
available to the agency and some delegated counties, it is unwise to require an
inspection of all sites prior to expansion or approval to expand.
Under the program plan (SONAR Exhibit I-4), the
agency proposes to prioritize all inspections taking into consideration the
risks associated with type of project proposed:
¨ is it at an existing
facility with an open lot and does that open lot produce a significant quantity
of runoff?
¨ is the watershed that would
potentially receive any discharge from the project particularly sensitive?
¨ what is the likelihood of
contaminating that water?
¨ the size of the project and
other relevant factors.
The agency believes that there may be great value in
inspecting existing facilities but little value in inspecting a site that is a
corn field located far from any surface water.
There may be great value in inspecting a poorly run open lot, but little
value in inspecting well-run total confinement facility. The rules as proposed allows the agency and
delegated counties the flexibility needed to prioritize inspections to make the
best use of limited staffing resources and for this reason, it is reasonable to
not require an inspection prior to expansion or approval to expand.
The Agency does not have the resources to issue all
of the permits for these facilities in the non-delegated counties. One suggestion has been to require only
delegated counties to issue these permits to facilities capable of holding
fewer than 300 animal units. The MPCA
intends to adopt a rule that provides some consistency whether the facility is
in a delegated or non-delegated county recognizing that counties can impose
more stringent conditions. Counties (delegated
as well as non-delegated) also have the authority to promulgate ordinances that
require a conditional use permit to be issued prior to commencement of any
construction.
For these reasons, the MPCA believes that:
¨ Permits are not needed to
regulate the vast majority of facilities less than 300 animal units, the
proposed rules will provide all the authority needed;
¨ The Agency in particular and
presumably many delegated counties have limited staffing resources;
¨ The staff needed to issue
these permits would be better used to increase the “field presence” of the
Agency staff and CFOs;
¨ Any county is allowed to
require conditional use permits for any construction activity under the
county’s own authority; and
¨ The proposed rules allow any
CFO to require any owner of any facility that the CFO decides is a “potential”
pollution hazard to obtain an interim permit.
It
is reasonable to not require animal feedlots capable of holding fewer than 300
animal units that are constructing in compliance with the technical standards
to apply for a state (construction short-form) permit.
Many commenters expressed opposition to the alleged “permit-by-rule” portions of the proposed rules. These comments are apparently referring to the lack of a requirement to obtain a permit for facilities that are under 300 animal units and those that have 300 – 999 animal units that are not constructing and have not been determined to be a “pollution hazard.” Note however, the MPCA does not agree with the “permit-by-rule” characterization. These facilities do not have a permit-by-rule; permits must be issued under the rules. A primary, and often, stated objection to the proposed permitting requirements is that since no permit is issued, counties are denied the opportunity to deny a permit “if other factors outside the rules warrant denial.” (Comment letter from David Schmit date 1/19/00). This seems to clearly state what has been an objection by many industries to the process of obtaining an environmental permit from the MPCA. The objection is to matters other than the environmental impact of a project are unfairly brought into the permitting process and the permit applicant is required to defend itself. These issues typically come down to land use issues, which are the responsibility of the zoning authority and not the MPCA. Counties and other local government units have the authority to establish ordinances to regulate the land use within its jurisdiction. This is the appropriate forum for these issues; not environmental permitting. For this reason, it is not reasonable to not require a permit for the sole purpose of allowing zoning authorities to review a project. Those zoning authorities should use their existing authorities to address their zoning issues.
Ms.
Amy Fredregill of the Izaak Walton League commented in her letter of January
19, 2000, that all facilities issued an interim permit should be required to go
through the public notice and comment period, and that permitting system
streamlining should not sacrifice public involvement. The current rule does not require interim permit applicants to go
through the public notice and comment periods.
The proposed rules do not change this requirement.
Given
the definition of the term “pollution hazard,” there is more than one tool
available to the agency to bring a facility that has been determined to be a
“pollution hazard” into compliance if violations exist. One tool is the enforcement procedures by
which an agreement or order is obtained through the legal processes. This method is typically more resource
intensive, takes longer and is more costly (requiring more agency staff and
legal counsel). For these reasons, the
proposed rules retain the concept of the interim permit as a less costly and
quicker method of bringing a facility into compliance, if violations exist, or
to eliminate pollution hazards where measures are needed to prevent violations
from occurring in the first place.
The
SONAR states on page 95 that “If the problem is such that it cannot be resolved
in the 24-month period allowed under the proposed interim permit, it is
significant enough that the interested parties should have the right to be
informed of the action and given the opportunity to comment on the problem and
proposed solution.” As is evident in
this statement, the agency considered the degree of public involvement in great
detail during the development of the proposed rules. Also as stated in the SONAR on page 96, “Since a construction
short-form or interim permit is issued in accordance with Minn. R. ch. 7001 and
7020, these permits are subject to the provisions under which an interested
party can request a contested case hearing over the issuance of the permit;
this protects an interested person’s ability to participate in the permitting of
that facility.”
For
these reasons, the proposed rules for interim permits do not sacrifice public
involvement for the sake of streamlining the permitting process and are
reasonable.
Ms.
Karen T. Harder representing the Sierra Club commented in her letter of January
19, 2000, that “by restricting the permit’s content to what is listed in this
proposed rule to avoid a public notice period, the delegated county official is
dissuaded from including any other limitations or conditions in the permit due
to a triggering of a public notice.”
The agency interprets this comment to mean that counties will not impose
adequate control on some animal feedlots because construction short-form
permits don’t require a public notice and comment period and SDS permits do.
The
proposed rules, and the proposed construction short-form permits are intended
to be issued to those facilities, which are eligible for the permit and are
able to comply with the requirements of the technical standards, and for which
there are no other relevant environmental issues that are not addressed in the
proposed technical standards. Issues
other than environmental ones such as land use issues should be addressed
through local ordinances and/or conditional use permits issued by local
governing bodies.
Environmental
issues outside of those included in the technical standards can and should be
addressed through the application for, and issuance of, an SDS or NPDES permit,
if the issues cannot be addressed using the construction short-form permit. The current and proposed rules require
delegated counties to submit the SDS or NPDES applications to the MPCA for
processing. Counties that do not
forward these issues to the agency are in violation of the proposed rules and
are subject to sanction by the MPCA including the possible revocation of the
delegation to implement the animal feedlot program. For these reasons, the proposed rules allow and require counties
to impose the proper controls on all animal feedlots. If it is determined that a county is not operating in compliance
with the proposed county delegation requirements, the agency can deal with that
situation through the delegation agreement requirements of the proposed rule.
The February 2, 2000 letter from Patricia Bloomgren,
the Minnesota Department of Health (page 2) recommended that all feedlots and
manure spreading areas be required to be permitted if they are located in a
portion of a drinking water supply management area where the aquifer has been
determined to be vulnerable. The
Department of Health letter describes the potential for feedlots to contaminate
ground water, but provides no explanation as to why permitting will result in
greater protection of ground water. The
technical standards for manure storage, discharge and land application are
designed to protect water supplies. All
feedlot operators must meet all technical standards from 7020.2000 through
7020.2225. The agency does not need to require
feedlot facilities to have a permit in order to enforce these technical standards. However, the agency or delegated county
could consider this situation a potential pollution hazard on a case-by-case
basis and require a permit.
7020.0405 PERMIT
REQUIREMENTS. Subpart 1. Permit required, Item B.
SDS Permit Requirements.
MPCA
intends to use a state disposal system (SDS) permit for three distinct areas
under part 7020.0405, subp. 1.B: for
the largest sized facilities that are not required to obtain the federal NPDES
permit, for facilities that are in noncompliance with agency requirements and
need more time to correct those situations than provided under the new 24-month
interim permit and for facilities that propose to use alternative construction
and operating methods that achieve equivalent environmental results. Where the rules and federal law require the
issuance of an NPDES permit, MPCA will issue a combined NPDES/SDS permit. SONAR, p. 94. This is consistent with MPCA’s past practice, not only for
feedlots, but also for other point sources such as publicly-owned wastewater
treatment plants and industrial factories.
This practice reflects the authorities in Minn. Stat. Ch. 115 (e.g.
sections 115.03, subd. 1(e); 115.07, etc.) to issue SDS permits for disposal
systems; thus, even if there was no federal Clean Water Act or any federal
requirement for a NPDES permit, MPCA would regulate those discharge points
using the SDS permit process as a means to protect both surface and ground
water.
In
his February 13, 2000 memo, Zenas Baer commented that the SDS permit
requirements had dubious authority. The
SONAR provides extensive explanation and rationale for both the need and
reasonableness of the SDS permit requirements for all three intended purposes
and that discussion will not be repeated in detail here. See SONAR, pp. 29-31, 36, 43-44,
49-50, 94-96. The legal authority, as
noted above, for the SDS permit requirements is found expressly in Minn. Stat.
ch. 115. SONAR, pp. 3-7. In addition, the need for the SDS
operational permit for the large industrial-sized non-CAFO facilities has its
basis, in part, on the MPCA’s need to protect more than just the narrow subject
matter of surface waters, the limitation of the federal CWA NPDES program. Using the SDS permit, the MPCA can address groundwater
and air quality issues at these large facilities and incorporate other
mitigation measures that may result from the environmental assessment worksheet
(EAW) process required of these large facilities in the revised EQB feedlot
environmental review rules. The
potential environmental and public health concerns related to large facilities
are not just limited to those facilities covered by the NPDES permit
requirements where there are discharges or the potential to discharge to
surface waters exists, the narrow coverage allowed under the federal NPDES
permit program. The MPCA intends to
address concerns related to permitting procedures for SDS permits by developing
a general SDS permit that could be used to more effectively address the subset
of SDS permitted facilities.
7020.0505 PERMIT
APPLICATIONS AND PROCESSING PROCEDURES.
Subpart 4. Content of permit application, item B.
As
a part of the USDA/EPA Unified CAFO strategy, site-specific Comprehensive
Nutrient Management Plans (CNMPs) must be developed and incorporated as
conditions of NPDES permits. SONAR,
Exhibit P-2, pp. 3-1, 3-8, F-6, F-9.
CNMPs reflect a collection of best management practices (BMPs) that
will, in most cases, be necessary to meet the technology - or water-quality
based effluent limitations in the permits.
Id., p. 3-8; Steve Jann, Tr. 2/11/00, pp. 2177 and 2181. CNMPs must be implemented as a condition of
the NPDES permit. Steve Jann, Tr.
2/11/00, p. 2178.
As
part of EPA's comments to the MPCA in this process, the EPA expressed concern
about whether the rules covered the necessary CNMP BMPs for CAFOs. Steve Jann, Tr. 2/11/00, pp. 2181-2182. In response to this concern, the MPCA
reviewed the rule requirements for permit applications and manure management
plans and compared the current rule coverage with the CNMP components in the
USDA/EPA Guidance Manual, SONAR Exhibit P-2.
The Guidance Manual notes that CNMPs are site-specific and that the
specific requirements of each CNMP will vary depending on the conditions at each
facility. SONAR, Exhibit P-2, p. 3-2. In doing the comparison, the MPCA staff
acknowledge that the current rule does not have a specific item that expressly
addresses each specified CNMP component.
In
addition, the MPCA agrees that it is difficult to draft a rule that could
contain every possible BMP to fit every site-situation. The EPA, itself, acknowledges that CNMPs are
site-specific. SONAR, Exhibit P-2, p.
3-2. While the MPCA has the necessary
authority under chapter 7001 to impose such other BMPs as are necessary to
comply with any applicable requirements, the MPCA also recognizes the EPA's
concerns that chapter 7020 may not itself contain the express terms that would
satisfy EPA that all CNMP components are addressed. Consequently, the MPCA proposes to revise part 7020.0505, subp.
4, item B(2) to expand the coverage of the pollution prevention plan to include
such other BMPs as are needed to comply with the effluent limitations, other
applicable rules and the permit requirements.
This
addition will merely make express in chapter 7020 what the MPCA has the
authority to do under chapter 7001 regarding the imposition of BMPs. See Minn. R. 7001.1080, subps. 1 and 3
(1997). The owner will then have the
responsibility to propose BMPs for the MPCA's review, and in that process, the
EPA can be assured that the MPCA will observe that CNMP-like BMPs are
implemented as needed, on a site-specific basis, to ensure permit
compliance. These same type of BMP
requirements are also appropriate for all facilities that have the capacity for
1000 animal units or more or the capacity for manure from 1000 animal units or
more.
The
MPCA proposes that the modified language read:
·
7020.0505,
subpart 4, item B: "...operations;
and for the development and implementation of best management practices necessary
to comply with the effluent
limitations, terms and conditions of the permit, and other applicable rules;
and
Subpart 4. Content of permit application, item E.
Item
E requires the owner of an animal feedlot or manure storage area to submit
information in addition to a permit application if requested to do so by the
MPCA commissioner or county feedlot pollution control officer for the purposes
of evaluating compliance with applicable federal and state law.
A
number of comments were received regarding this provision. The commenters request that this provision
either be removed or a time limit for requesting information be
established. Comments received from the
Minnesota Pork Producers Association provide an example of these comments. The Association states that the agency has
been criticized for having moving targets by continually asking for additional
information on a permit application.
These requests lengthen permit turn-around time and possibly hold up
permits for an indefinite period. The
Association suggests that the ability to request additional information should
be limited to information needed to evaluate new technologies or systems that
have not been previously permitted.
Dave Preisler, 2/10/00 letter page 2.
Another comment suggests that a time limit for requesting additional
information be placed on the MPCA and county pollution control officers. The comment suggests the appropriate time
limit to be “within twenty (20) days of receipt of the application or it is
deemed to be a complete application.”
Zenas Baer, 2/13/00 letter page 7.
The
MPCA plans to make no changes to the proposed rules in response to these
comments. The need for the MPCA to have
this ability to obtain other relevant data is supported by the Environmental Protection
Agency, Region 5. Testimony given by
Stephen Jann from EPA, Region 5, supports this need. In his testimony Jann states that MPCA needs the ability to
request additional information so that MPCA has all the information it needs to determine whether to
issue a NPDES permit or establish conditions in the NPDES permit. Stephen M. Jann, 2/11/00 letter page 7. A similar data request provision has been
part of the MPCA’s generic permit application process. See Minn. R. 7001.0050 (1997).
Comments
have also been received that state the rules and regulations cannot be “one
size fits all.” The agency agrees and
the requirement to submit additional information is one example of how the
rules are not one size fits all. The
MPCA cannot remove the opportunity to request additional information from the
regulatory authorities because the level of information needed to identify and
evaluate issues that have the potential to cause environmental pollution varies
greatly from site to site and operation to operation throughout the state. A mechanism is needed to discuss these site
specific issues and to allow staff to ferret out problems.
A
more specific example is the application requirement to submit plans as they
are required in the rules, such as the manure management plan The rules do not specify every detail that
must be included in the plan so that plans can be crafted in a manner that is
appropriate for the actual site, soil, manure, operation, environmental resources,
etc. However, this flexibility brings
the need to request additional information if the plan submitted with a permit
application does not include all the information needed by the MPCA and county
feedlot officers to understand the site specific situation or to meet the
criteria for a complete plan. While
much specificity has been included in the rules regarding facility siting,
construction, and operation and manure storage, there is no way to write the
rules so that they cover everything or every possible situation. The rules must reach a balance between
specificity and flexibility. The
provision that allows MPCA staff and county feedlot officers the ability to
request additional information helps to achieve this balance.
Limiting
the ability to acquire additional to new technologies or systems that have not
been permitted before would be problematic for the MPCA and permit applicants
and could result in preventable environmental problems. If information that was submitted with an
application raised a question for MPCA staff or county pollution control
officer, no information could be requested to find an answer. The MPCA and delegated counties may have to
resort to denying a permit because of the inability to seek clarifying
information. Permitted systems are not
without problems and concerns. A system
that has received a permit could still be considered a pollution hazard based
on post-permit changes made by the owner.
There are many issues, such as operation changes, maintenance issues,
weather-related issues, change is livestock species, sink hole problems, and
expansion, that could raise the need for information to be requested in
addition to routine permit application for a system that had previously
received a permit.
Limiting
requests for additional information to within twenty days of receipt of the
application is also problematic. When
does the twenty-day clock begin? Not
every permit application submitted provides complete information. Address information is left off or
incomplete, manure management plans are not included when required, required
maps are not included, signatures are missing, etc. MPCA staff experience has shown that there may be weeks or months
delay before the basic information required on the application can be completed
or submitted by applicants. In these
cases, the twenty days could have passed before the MPCA has an application
that is complete enough to make a determination as to whether or not additional
information is needed.
MPCA
staff resources and workload variations could result in twenty days passing
before a permit application can be reviewed.
While MPCA’s goal is to issue permits in a timely manner and have
streamlined the permit process, there is no guarantee that application
processing and review can be completed in 20 days due to fluctuations in staff
resources and work load. Often the
spring (pre-construction season) brings a high volume of permit applications,
which slows down application review. Funding
sources, problematic sites, enforcement efforts and Environmental Assessment
Worksheet (EAW)/ Environmental Impact Statement (EIS) projects all contribute
to the unpredictability of the number of staff that will be available for
application review at any given time.
Allowing a permit application that has not been reviewed to be
considered complete would be irresponsible for the MPCA.
Even
though the MPCA is not proposing to change this provision, staff are aware of
the need for changes in the permit process.
The MPCA has distributed workload to outstate offices the responsibility
for the feedlot program. The process
time for permits has decreased significantly with this change. The MPCA acknowledges that the existing
permitting process can be lengthy and the requirements sometimes unclear,
resulting in frustration for persons seeking permits. The Legislative Auditor’s
report touched on concerns related to the “moving target” by recommending that
the MPCA should strive to reduce its permitting backlog and reduce the amount
of time producers wait for their application to be reviewed and that the agency
should track the timeliness of its performance in issuing permit applications,
SONAR Exhibit G-1, page 78.
One
of the driving goals for the MPCA staff in developing the proposed rules and
the associated regulatory program re-design was to bring clarity and efficiency
to compliance requirements and permitting.
Staff tried to clarify requirements by including facility siting,
construction standards and design criteria in the proposed rules. Efficiencies were proposed for the
permitting process by
¨ eliminating the Certificate
of Compliance,
¨ eliminating permits for
construction done according to rule standards for facilities with a capacity of
less than 300 animal units,
¨ using a new permit tool
called the “construction short-form permit” to expedite permit issuance for
construction projects at facilities according to the rule standards with a
capacity of 300 to 999 animal units, and
¨ utilizing general NPDES
permits for a majority of facilities with a capacity of 1,000 or more animal
units.
Under
the proposed permit requirements, it is anticipated that fewer facility owners
will be subjected to the “additional information” submittal requirement because
fewer facilities are being required to submit permit applications than under
the existing rules. Like the new permit
structure, this information requirement will be targeted at the facilities and
operations that have a higher potential to be a pollution concern: large operations storing a large amount of
manure, discharges into state waters, environmentally sensitive sites,
facilities that do not meet the proposed requirements, and pollution hazards.
The
MPCA staff believes that these changes will go far to reducing the “moving
target” and improving the permit turn-around time for applicants. However, there are time constraints and
requirements that contribute a great deal to the “moving target” that lie
outside the scope of the rules proposed under Chapter 7020 and lie in the hands
of other state agencies. One large
factor is the environmental assessment requirements, which are the
Environmental Quality Board rules, Minn. Rules Ch. 4410. Projects that are required to be analyzed by
the EAW or EIS process experience a much higher level of scrutiny and most
often must produce more information and experience a longer permit issuance
process from the date of actual application submittal. The MPCA will continue to work in a
cooperative effort with the Environmental Quality Board to improve the EAW/EIS
process as it relates to the MPCA and delegated county permitting process.
7020.0535 CONSTRUCTION
SHORT-FORM AND INTERIM PERMITS.
Subp. 4. No circumvention.
In
their February 14, 2000 submittal, Robert Mensch and Alan Larsen recommended
the deletion of subpart 4 of part 7020.0535 and the insertion of proposed text
that would make the subpart applicable to all permits and include a specific
monetary civil penalty for the submission of false information on a permit
application. The MPCA is not proposing
any change in the current proposed rule language in response to this
comment. Subpart 4 is a notice
provision, intended to provide a cautionary note to owners submitting permit
applications for interim permits and construction short-form permits on
potential enforcement ramifications for circumventing the permit application
process if the owner's facility were required to obtain SDS or NPDES permits
instead. The need and reasonableness of
this subpart 4 is discussed in the SONAR, page 107, and it will not be repeated
here.
Subpart
4 is specifically designed to give notice to owners applying for interim and
construction short-form permits. These
types of permits are not subject to the same public notice and comment
requirements as SDS and NPDES permits, so if there is any potential for
circumvention of the permit application process, it is more likely to occur
with owners seeking to avoid the additional requirements of the SDS and NPDES
permits, additional requirements that could include permit fees. Mensch and Larsen provided no evidence to
show there was a substantial likelihood that owners would be purposefully
applying for SDS and NPDES permits as a means to circumvent the less-stringent
requirements of the interim and construction permits. The MPCA is concerned that by making the subpart more generic in
its language, the notice to the most likely persons to circumvent the rule
would be neutralized and diminished in its effect. For these reasons, the MPCA believes the more specific language,
as currently proposed, gives the more specific notice to the appropriate subset
of permit applicants.
Also,
subpart 4 is intended to give notice of a potential enforcement action for
construction without a permit. The MPCA
decision, to take enforcement action or not, and the nature of the action,
should be determined on a case-by case basis taking into account the particular
circumstances giving rise to the issuance of the non-applicable permit. Mensch and Larsen propose a specific
monetary penalty related to animal units without any rationale or evidence
supporting whether this level of penalty will be an appropriate deterrent to
circumvention of the permit rule. The
MPCA does not have the current experience to determine a generic penalty level that
would be appropriate for this provision.
The MPCA believes that circumvention by any owner will be based in
substantial part on the potential negative economic implications of applying
for the SDS or NPDES permit and that those economic implications will be
substantially different in each situation.
If monetary penalties are sought by regulatory agencies, a fundamental
premise is that the penalty should, at a minimum, create a level playing field
by at least recapturing any economic gain achieved by the violator for
proceeding with the violation. Economic
gain will be very situation-specific, possibly taking into account the size of
the expansion or construction at issue and other site or situation-specific
facts. The Mensch/Larsen proposal
doesn't discuss how their proposal addresses this issue or how their specific
amount creates the appropriate deterrent.
By setting a specific amount, the MPCA merely sets a basis against which
owners intending to circumvent will judge their economic gains and losses
without any evidence that the rule basis achieves the requisite deterrent or
adheres to the policies inherent in the MPCA's penalty policies. For these reasons, the MPCA believes it is
not reasonable to guess at a specific monetary penalty level for this rule part
and that the intended goal of providing "notice" is achieved as the
part is currently proposed.
7020.1600 AUTHORITIES AND
REQUIREMENTS FOR DELEGATED COUNTIES.
At
the Friday, February 11 public hearing, Steve Jann, U.S. EPA Region V NPDES
Watershed Manager, presented oral and written comments regarding the delegated
county program and potential implications of the delegated county inspection
program for CAFO facilities, especially those CAFO facilities in the 301-999
animal unit range with one or both of the methods of discharge identified in
the EPA CAFO regulations. See
Steve Jann, Tr. 2/11 pp. 2182-83. Mr.
Jann recommended adding language that established a requirement for delegated
counties inspecting such facilities that the counties would forward the
inspection report to the MPCA. The MPCA
believes the proposed rule (7020.1600, subp. 4) accomplishes that request in
part but as discussed below, the MPCA is proposing additional rule text to make
that requirement more explicit.
The
rule is clear that the MPCA will process and issue any NPDES or SDS
permits. However, U.S. EPA’s 1999
Guidance Manual indicates that the EPA expects many animal feeding operations
(AFOs) meeting the criteria in 40 C.F.R. part 122, Appendix B(b) may avoid
NPDES permitting altogether by changing their mode of operation so that they no
longer meet one of the methods of discharge criteria that cause them to fall
within the CAFO regulatory definition.
SONAR, Exhibit P-2, p. 2-6. These facilities are typically less than
1000 animal units and they meet the “method of discharge” criterion if
pollutants are discharged or have the potential to be discharged in one of the
following ways:
¨ Into surface waters through
a man-made ditch, flushing system, or other similar man-made device; or
¨ Directly into surface waters
that originate outside the facility and pass over, across, or through the
facility or otherwise come into direct contact with the confined animals.
The
EPA’s Guidance Manual encourages the states to work with appropriate agencies
to promote voluntary efforts to ensure that these smaller CAFO facilities do
not become a priority for NPDES permitting.
SONAR, Exhibit P-2, p. 2-6.
Given the scope of the delegated county program regarding those
facilities less than 1000 animal units, MPCA believes the CFOs will be in an
advantageous position to assist owners to take the voluntary actions needed to
eliminate the “method of discharge” that subjects the facility to the NPDES
permit program. However, the MPCA also
believes that the use of the 24-month interim permit is also a potential tool
that can be used as an “off ramp” for the NPDES permit requirement. The MPCA intends to train CFOs to assist in
determining whether an interim permit could be issued so that the discharge
methods could be eliminated in that two-year time frame under the interim
permit, and thus avoid the need to issue a NPDES permit for that particular
facility. Through this training, CFOs
and the MPCA staff should be able to work with owners that want to avoid NPDES
permitting requirements if the discharge methods can be eliminated
expeditiously. If the CFO or the MPCA
initially determine that a two-year schedule of compliance is not sufficient to
eliminate the discharge or potential to discharge, then the MPCA will proceed
to cover the facility with a NPDES permit as required by the federal CAFO
regulations.
If
the EPA approves the use of the interim permit as an “off ramp” alternative,
the MPCA will want to ensure the CFOs are obtaining the appropriate permit
applications, including any related to CAFO permitting requirements, and
apprising MPCA of the status of these facilities so that the MPCA can fulfill
its NPDES delegated responsibilities to the EPA. The MPCA will be able to accomplish these goals through CFO
training and the delegated county annual reports.
The
MPCA agrees with Mr. Jann’s recommendation and, at this time, the MPCA staff
are proposing the following additional revisions to part 7020.1600, subp.
2. The first change would be a separate
lettered item under subpart 2 and the second change would be additional text in
subpart 2, item I., subitem (3).
7020.1600 AUTHORITIES AND
REQUIREMENTS FOR DELEGATED COUNTIES.
Subp. 2. County feedlot
pollution control officer requirements.
In
part 7020.1600, subp. 2, insert the following text as a separate lettered item
and re-letter accordingly:
·
7020.1600,
subpart 2, K. forward to the commissioner all permit applications,
inspection reports and all other applicable documents for the facilities
identified in part 7020.1600, subp. 4, item B.
This
revision merely reflects the county’s existing requirements under subpart 4 so
no new requirements are being imposed on the delegated county. This revision does, however, explicitly
identify the inspection reports as recommended by Mr. Jann.
In
part 7020.1600, subp. 2, item I.(3), revise the existing text by adding the
underlined language:
·
7020.1600,
subpart 2, item I(3) permitting summary information from the previous year, including information
regarding permits for facilities with less than 1000 animal units that are
CAFOs under 40 C.F.R. part 122, Appendix B(b);
This
revision merely makes it more explicit that the annual report will provide
information about facilities that may be using county or MPCA-issued interim
permits to eliminate the “method of discharge” for the category of CAFOs less
than 1000 animal units having one of the two discharge methods in Appendix B(b)
of the EPA CAFO regulation. By
following the annual reports, the MPCA and the EPA will be able to keep apprised
of the status of these CAFO facilities to ensure the owners are moving forward
with the elimination of the discharge methods and thus, the need to be covered
by a NPDES permit.
STANDARDS FOR DISCHARGE,
DESIGN, CONSTRUCTION, OPERATION, AND CLOSURE
7020.2000 OVERVIEW. Subp. 3. Manure packs and mounding.
Several
commenters during the hearings and in written comments, including Robert Mensch
and Alan Larsen in their February 14, 2000, letter suggest not limiting the use
of manure packs and mounding to one year.
Mensch and Larsen provide two points of justification. First, if the are is not causing pollution
there should be no reason to require removal of the manure. Second, requiring the manure to applied in
one year may result in forced land application practices which are not
environmentally sound. The agency
agrees that the intent is not to force improper land application and that
manure packs in buildings create little pollution risk. The agency’s experience has been that some
manure packs and mounding in open lots can create or maintain a surface water
or groundwater pollution hazard if not managed appropriately. The surface water concerns are typically a
concern when there are no runoff controls in place to capture and contain the
manure-contaminated runoff from the open lot.
Groundwater concerns may arise when the manure pack is left in an open
lot with no livestock present for long periods of time, allowing the soil to
loosen and leach manure nutrients to the groundwater. These issues are addressed adequately in other parts of the rule,
therefore the agency proposes to modify this part to include language similar
to that suggested by Mensch and Larsen.
·
7020.2000,
Subpart. 3. Manure packs and
mounding. Manure accumulations created
by manure packs or mounding must be managed such that a pollution hazard is
not created or maintained. removed
annually and applied on land Land application of this manure shall be in
accordance with part 7020.2225.
7020.2000 OVERVIEW. Subpart 4. Newspaper notification of
proposed construction or expansion, Item F.
The
agency heard several concerns related to inclusion of item F into the newspaper
notification requirement under this subpart.
The Minnnesota Pork Producers Association (MPPA) also raised concerns
for this part in their letter dated February 10, 2000. The agency proposes to clarify the two
primary intentions of inclusion of this item by the modifications listed. First, the agency believes it is important
for citizens to have an opportunity to become aware of the proposed presence of
open-air liquid manure storage area and some idea of the size of the
structure. The agency agrees that
identifying the quantity of manure does not accomplish this task in the best
manner and as the MPCA suggests it may actually cause more concern than is
warranted. Therefore the agency
proposes to modify item F, subitem (1) to identify that the surface area of the
storage area in acres is a much more useful information to include in the
notification as it is much more understandable to most persons. Second, the agency believes it is important
to give some context to the size of a manure storage area that has no animals
located at the site. While rare, these
projects do occur and identifying the quantity and type of manure in the
notification is reasonable.
·
7020.2000,
subpart 4, item F. for manure storage areas:, the total quantity of
manure that each can hold.
(1) if an open-air liquid
manure storage area, list the total surface area in acres; and
(2) if located where no
animal feedlot exists, list the quantity and animal type of the manure to be
stored.
7020.2000 OVERVIEW. Subp. 5. Government notifications of proposed construction or expansion.
This
part specifies when a facility owner must provide notification to a
governmental entity of its proposed activities. Item A requires that the MPCA commissioner or delegated county be
contacted at least 30-days before commencement of construction for facilities
with a final capacity of less than 300 animal units. Item B requires all zoning authorities to be notified of proposed
construction or expansions.
Nancy
Barsness presented comments on the notification requirements at the hearing in
Alexandria. Tr. 1/26/00, page 180. She stated the notification required under
item B was only for proposed feedlots over 500 animal units. She may have had the proposed rule language
confused with an earlier draft rule or with the newspaper notice requirement
under subpart 4. The notification under
item B is required for facilities of all sizes.
Ms.
Barsness stated that all local, county, township, and city governments, whether
or not they have zoning, should be notified of proposed feedlots and that many
townships have comprehensive plans without zoning. She also recommended that notification be given to cities if the
feedlot is within a mile of the city limits.
The
MPCA proposes no rule change in response to these comments because the rule is
intended as a notification mechanism for zoning authorities. The notification under item B was proposed
as a way to ensure some communication occurred between the owner and the other
regulatory entities so that the owner will be apprised of any other local
zoning requirements. The notification
requirement is being proposed as a method of ensuring the zoning authority is
made aware of projects that might be required to follow the local zoning
decision process so that the authority can contact the owner.
Ms.
Barsness also commented that the notification requirement for zoning authorities
does not specify what information should be included in the notification. However, the proposed rules already do
include this requirement. Under subpart
5 (12/01/99 Revisor version, page 36, lines 21 to 23), the notification to
zoning authorities must contain the same information as the newspaper
notification required under subpart 4.
Ms.
Barsness further commented that the rules should establish a deadline for when
the notification must be made to the zoning authority. She recommends that the notification be made
within at least one week of applying for a state or federal permit. Another recommendation was made to remove
the local zoning authority notification because no time frame was established,
local government notification already occurs if a conditional use permit is
required, and the newspaper notification required under subpart 4 should be
adequate notification. Robert L. Mensch
and Alan Larsen, 2/14/00 letter page 3.
The
MPCA is sensitive to the concern of added requirements and has no intention of
duplicating procedures that already exist.
Application for a conditional use permit would meet the notification
requirement and the MPCA would not require a separate notification to be
submitted. However, conditional permit
requirements vary from jurisdiction to jurisdiction. The newspaper notice requirement is not required for facilities
capable of holding fewer than 300 animal units. The requirement to give notification directly to the zoning
authority establishes a consistent and uniform process. The authority does not have to review
newspaper notices for facilities with 300 or more animal units because it
automatically receives notification from smaller facilities.
The
MPCA agrees with Ms. Barsness that a notification deadline should be included
in the rule. However, the zoning
authority would not receive notice from many owners if the deadline were tied
to the requirement to apply for a state or federal permit. Owners with fewer than 300 animal units are
not required to have a state or federal permit as long as the construction is
completed according to rule specifications and the facility is not a pollution
hazard or a CAFO. To insure that all
facilities are required to submit the notification, the MPCA instead proposes a
30-day submittal deadline, which is consistent with the deadline required under
item A. The rule would be changed as
follows.
·
7020.2000,
Subpart 5. Government notifications of proposed construction or expansion. An
owner proposing to construct or expand an animal feedlot or manure storage area
shall notify the government authorities listed in items A and B. Notification must be on a form provided vy
the commissioner and include information in subpart 4, items A to F.
B. All local zoning authorities, including county, town, and city zoning authorities, of the proposed construction or expansion at least 30 days prior to commencement of construction of a new animal feedlot or manure storage area or an expansion of an existing animal feedlot or manure storage area.
7020.2000 OVERVIEW. Subpart 6. Record of Livestock Owners and
manure sources.
In
proposing the new rule amendments, the MPCA recognized that the rules needed to
contain sufficient flexibility to address the constantly changing face of the
livestock industry and the variety of new facility/livestock ownership
arrangements that are proliferating.
Many years ago, the MPCA could generally depend on the historic
situation that the owner of the land and buildings constituting the feedlot or
manure storage area also owned all of the animals at the facility or all of the
animals creating the manure located at the manure storage area. While those situations may still be the
predominant ownership situation, the MPCA is aware of the growing number of
situations where owners of the feedlot and manure storage areas are entering
into a variety of arrangements, some contractual, where those owners don’t own
any or all of the animals at those sites but where the owners of the animals
control and manage certain aspects of feedlot operations. It is not currently possible to draft rules
addressing every alternative arrangement to take into account the various
permutations of control, interests and possession that may exist when there are
potentially multiple owners responsible for regulatory compliance so the MPCA
thinks it important that records be maintained for a short period of time in
case the MPCA needs to address compliance issues at these facilities.
In
their February 14, 2000 submittal, Robert Mensch and Alan Larsen argued that
the name of the owner of livestock in a custom feedlot should not be of any
concern to the MPCA. Their view may be
correct in regard to the particular fact scenario that they had in mind (but
their letter lacked the detail about the nature of the responsibilities of the
various owners in their hypothetical scenario), depending upon the nature of
the livestock owner’s involvement at the applicable facility. But the Mensch/Larsen example may be too simplistic
because they do not acknowledge that there are numerous arrangements that could
lead to a variety of ownership responsibilities. Alternatives were discussed
with the FMMAC group, and the group discussed that it was reasonable to require
the owner to record this information and maintain it on file for a limited time
period. SONAR, p. 131. As the SONAR noted at page 131, this
provision allows the MPCA to obtain at least minimal information that may be
needed to identify potentially responsible parties. In addition, the variety of owners at a facility can decide to
contract or arrange their respective responsibilities, but all owners will have
some incentive to ensure the facility is maintaining compliance with the
rules. SONAR, p. 131. The Mensch/Larsen argument, if adopted,
would significantly inhibit the MPCA’s attempts to ensure that all owners
potentially involved with control of the facility and related matters take the
appropriate measures to ensure ongoing compliance. For these reasons, MPCA will not delete this provision as recommended
by Mensch/Larsen.
7020.2002 HYDROGEN SULFIDE AMBIENT AIR QUALITY
STANDARD APPLICABILITY.
Numerous
commenters (Julie Jansen, Zenas Baer) suggested that the MPCA used little or no
science in developing the provisions of this part. In fact, the basis for the provisions of this part are found in
field collected data by the MPCA and the University of Minnesota. The discussion below will first discuss the
data collected and then the exemption provided under this part and how the MPCA
will ensure compliance.
Liquid
animal waste is typically stored in earthen storage structures, concrete pits
or glass-lined steel tanks. These
methods of liquid manure storage are anaerobic in nature. Incomplete anaerobic decomposition of
organics can result in offensive by-products, primarily of which are hydrogen
sulfide, ammonia, and intermediate organic acids and typically result in
offensive odors. Agitating the liquid
manure, prior to pumping and land applying the manure, is required to
homogenize the mixture by reducing composition variability and achieve proper
agronomic rates during land application.
However, this process allows large volumes of air to contact the liquid
manure and increases the transfer rate of the volatile organics, sulfides and
nitrogen bearing compounds, resulting in peak odor events. The odor event is a sharp increase in
ambient hydrogen sulfide air concentrations, well above the state regulatory
standards for air quality.
The
MPCA and the University of Minnesota collected field data to determine if the
agitation/pump out process is a regulatory concern and would justify a
temporary exemption of the state ambient hydrogen sulfide air quality standard.
Prior to the proposed rules, several producers indicated a concern that compliance with the hydrogen sulfide standards may be difficult during the manure storage agitation and pump out process. In response to these concerns, the MPCA conducted air monitoring at select sites during the agitation and pump out process. The MPCA contacted several feedlot facility owners that have had an existing potential to exceed and asked for their assistance in collecting field data during agitation and pump out. As a result, the MPCA collected 23 one-half hour hydrogen sulfide samples with a Jerome Meter during the agitation/pump out process in the fall of 1998. Hydrogen sulfide levels found at the various facilities were similar to levels found during normal operating conditions (summer months) with some exceptions. The agitation and pump out process caused elevated hydrogen sulfide levels at several earthen storage systems. Four of these facilities demonstrated a potential to exceed the ambient hydrogen sulfide standard during this process. The MPCA also observed that facilities with enclosed concrete pits emitted elevated levels of hydrogen sulfide during brief pump out periods lasting no more than 10 minutes at a time, resulting in a one-half hour average less than 30 ppb. This information is detailed in the Minnesota Pollution Control Agency Feedlot Air Quality Summary, Spring 1999. SONAR Exhibit G-3.
The MPCA is currently collecting hydrogen sulfide data during the agitation/pump out process using continuous air monitoring (CAM) units at the Hancock Pro Pork facility in Stevens County, Minnesota. During the agitation/pump out procedure at the facility, the CAM data indicated that hydrogen sulfide emissions exceeded state standards and resulted in violations. Data collected before and after agitation/pump out indicates hydrogen sulfide emission values typically in the single digits. A copy of this data is attached (see Attachment 5).
The
University of Minnesota Department of Biosystems and Agricultural Engineering
in conjunction with the National Pork Producers Council has conducted ambient
air sampling of hydrogen sulfide during the agitation and pump out of a liquid
manure storage system at a swine nursery facility (see Attachment 6). All data was collected using continuous air
monitoring (CAM) units. The data
indicates that hydrogen sulfide concentrations can exceed the state ambient
standards at distances of up to 250 meters during the agitation and pump out
process. Station 2 had an average H2S
concentration of 5.8 ppb Attachement 6.
There were two times that values were greater than 92 ppb (during
pumping). After pumping, values were
between 0 and 40 ppb (11 values greater than 30 ppb). Station 3 had an average H2S of 10.9 ppb. Attachment 6. There were two times that values were greater than 92 ppb (during
pumping). After pumping, values were
between 0 and 40 ppb (20 values greater than 30 ppb).
The
proposed rules contain an exemption provision for the state ambient hydrogen
sulfide air quality standard. The
exemption provides for a maximum of 17 days per year in which a feedlot
facility may be agitated and pumped for the purpose of land application. However, the proposed exemption does not
apply to each individual liquid manure storage system at a facility. For example, the rule does not allow a
facility to get 68 days of exemption because it has four seaparate pits or
lagoons. To be eligible for the
exemption, a facility owner must notify the MPCA or county feedlot officer that
the liquid manure system will be pumped.
The 17-day period is extended to the entire livestock production
facility. In the event that a facility
documents a potential to exceed or violates the state ambient hydrogen sulfide
air quality standard during agitation and pump out beyond the 17 day exemption
period, the facility owner must take actions to bring the facility back into
compliance.
The
MPCA has the authority to direct immediate discontinuance or abatement of
pollution without notice or a hearing if there is imminent and substantial
danger to health and welfare under Minn. Stat. §116.11. Nothing in the language of the proposed
state ambient hydrogen sulfide air quality rule exemption shall be interpreted
to preempt the MPCA’s emergency powers as provided in Minn. Stat. §116.11 or to
preclude appropriate actions from being taken by the MPCA to protect public
health.
Producers
at the hearings suggested that the 17 days per year were not sufficient. They argued that self-haulers often can only
do one or two loads each day and that it may take as much as 120 days. Robert Mensch and Alan Larsen in their
letter dated February 14, 2000, suggested 30 days per year was more
appropriate. Mensch/Larsen were
concerned that the 17-day time frame would force producers to maximize their
manure handling systems and increase the risk for spillage. On the other hand, Julie Jansen in her
letter of January 26, 2000, suggsted that no exemption should be provided. Ms. Jansen suggests that it is during the
agitation and pumpout period facility owners and nearby neighbors are most at
risk due to the release of high concentrations.
In
discussions with producers attending the public hearings, MPCA staff learned
that individuals feeling the need for more than 17 days often handled solid
manure and had smaller operations. The
MPCA’s experience shows that these types of facilities are not found to violate
the state air quality standard for hydrogen sulfide and therefore, would rarely
need to use the exemption.
In
response to Mensch/Larsen’s request for a change in the total days, the MPCA
finds no need for more time based on the monitoring done to date. The MPCA reminds the authors that the
exemption is not mandatory and thus, the facility owner need only call and give
notice when the exemption is needed.
In
response to Ms. Jansen’s request to eliminate the exemption, the MPCA
respectfully declines the proposal to eliminate the exemption. The data shows the risk exists for
exceedances of the ambient hydrogen sulfide standard. However, a violation has not been found. Furthermore, the MPCA has emergency powers
that it may use if an imminent health risk is found.
The
MPCA has carefully reviewed and is responding to Governor Ventura's
correspondence of May 25, 1999, that explained why he vetoed 1999 Minnesota
Laws, Chapter 204 (House File 1235).
Chapter 204, if enacted into law, would have given feedlot operators a
limited exemption from complying with state hydrogen sulfide ambient air
quality standards during the removal of liquid manure form barns or manure
storage facilities. The Governor wanted
the MPCA's feedlot rule revision process to have a chance to address this
issue, taking into account citizen input.
The Governor recommended that farmers be allowed a period of not less
than 14 days per year and not more than 21 days per year, for agitation and
pump out. Based on the Governor's
message a limited exemption was drafted and presented to the members of the
Feedlot Manure Management Advisory Committee for review. At total of 17 days was chosen as it
represents the mid-point between the period of not less than 14 days per year
and not more than 21 days per year, for agitation and pump out as discussed in
Governor Ventura's correspondence of May 25, 1999. The determination also reflects a reasonable conclusion in light
of the respective House and Senate findings.
SONAR, p. 132, Exhibit G-4, p. 1.
Hydrogen sulfide is a toxic gas with known
deleterious health effects. The state
of Minnesota has an interest in protecting the general public from long term
exposure to this substance.
Unfortunately, the necessary equipment to conduct long-term ambient air
monitoring is expensive and difficult to operate and manage. Fortunately, the human nose can detect
hydrogen sulfide concentrations at levels in the lower part per billion
range. The annoyance threshold for hydrogen
sulfide corresponds to various human health responses including nausea,
vomiting, depression, diarrhea, etc. and serves as a first-line warning system
for potentially hazardous concentrations of hydrogen sulfide. The current state of Minnesota ambient
hydrogen sulfide standard is based on this approach. The ability to quantify and determine the annoyance threshold has
existed for approximately forty years.
A complete discussion on the origin and justification of the state
ambient hydrogen sulfide air quality standard is included as an attachment to
this document (see Attachment 7).
The
MPCA monitored a variety of manure storage methods around the state. These included concrete pits (typically
beneath the total confinement unit buildings), earthen storage systems, above
ground concrete and fiberglass-lined steel manure storage tanks, solid stacking
slabs, daily haul management (no structure), stockpiling (no structure), manure
pack in buildings, and various other forms and combinations of manure
storage’s. Based upon the information
in the MPCA, 1999, report, dry storage of animal waste does not appear to be a
significant source of hydrogen sulfide emissions. The hydrogen sulfide field
screening data was plotted and compared with animal species type to determine
if a relationship exists between livestock type and ambient hydrogen sulfide
concentration. Based on the data
collected in the field, the highest concentrations of hydrogen sulfide (greater
than 30 ppb) are found at swine and dairy facilities. A one-half hour average greater than 30 ppb was also recorded at
a chicken manure stockpiling facility and at a beef operation where stockpiling
was used as the method of manure storage.
However, factors such as moisture content of the animal waste, storage
and handling are important factors that influence the hydrogen sulfide emission
strength (aside from waste strength of the manure). In general, poultry production facilities using dry litter manure
storage do not appear to be a significant source of hydrogen sulfide
emissions. However, every facility in
the state of Minnesota, regardless of size or industry type is expected and
required to stay in compliance with all state and federal environmental rules
and standards.
7020.2003
WATER QUALITY DISCHARGE STANDARDS.
A general comment was received relative to part
7020.2003. This comment will be
discussed first, followed by specific subparts.
The February 2, 2000 letter from Patricia Bloomgren
of the Minesota Department of Health (MDH) recommended (page 9) that a ground
water monitoring well be required at all feedlots with 300 animal units or more
in drinking water supply management areas where the aquifer is designated as
vulnerable and ground water flow is characterized by porous media flow. Ms. Bloomgren recommended that the water
from the wells be analyzed for nitrate and disease causing organisms.
Through part 7060.0600 the Agency has authority to
require ground water monitoring at locations where pollutants discharged to the
unsaturated zone may “actually or potentially preclude or limit the use of the
underground waters as a potable water supply.”
In accordance with Minn. R. 7060.0600, subp. 2 “all such sources of
pollutants shall be monitored at the discharger’s expense as directed by the
agency.” The Agency has used this
authority at more than 20 feedlots to require ongoing ground water
monitoring. Minn. R. Ch. 7060 can be
used as a basis for requiring ground water monitoring at feedlot facilities
where there may be reasons to believe that the feedlot or manure storage area
has a potential to preclude or limit the use of underground waters as a potable
water supply.
The potential for affecting ground water quality
will depend on numerous characteristics about the manure storage area,
including: liner type and construction,
capacity, age of the system, maintenance history, and existence of a perimeter
tile line. The potential for affecting
ground water quality will also depend greatly on the soil, geologic, and
hydrologic conditions at the site. The
agency uses existing and ongoing research and monitoring results in Minnesota
and other states to evaluate which combination of variables show a potential
for polluting ground water when making decisions about where and how ground water
monitoring should be conducted.
Proximity to drinking water supply wells is another consideration used
when evaluating the need for requiring ground water monitoring.
Ground water monitoring at existing feedlots does
not support the need for the monitoring recommendation as proposed by MDH. The agency is aware of little evidence
indicating that seepage of bacteria or other pathogens from liquid manure
storage systems pose a threat to ground water supplies to the extent requiring
the scope of monitoring proposed by MDH.
Nitrogen has been shown to migrate to ground water below some liquid
manure storage areas, especially where cohesive soil liner’s are absent or were
constructed using substandard methods.
See SONAR Exhibit A-11, and A-1 pages G-35 to G-39.
Meaningful data requires a more intensive monitoring
effort than suggested by MDH.
Evaluation of background nitrate concentrations at feedlot facilities is
important when considering monitoring of ground water nitrate. Results in Minnesota have shown average
nitrate concentrations in ground water at new feedlot construction sites (ave.
16 mg/l nitrate-N) to be well above drinking water standards (10 mg/l
nitrate-N) prior to construction of new feedlots. This high background nitrate is presumably due in most cases to
current or past fertilization practices in the area. Research has also shown that one or two monitoring wells is
usually not enough to detect potential seepage problems from liquid manure storage
systems. A more extensive monitoring
network is needed to define background conditions and increase the probability
of detecting seepage problems. The
cost of conducting meaningful ground water monitoring at a manure storage
facility is expected to range between $12,000 and $30,000 for the first five
years of sampling.
For the above reasons, the agency does not believe
requiring a monitoring well at all types of sites, as recommended by the
Minnesota Department of Health, is a reasonable approach. Instead, the agency proposes to evaluate the
need for ground water monitoring on a case-by-case basis in association with
construction short form permit applications, NPDES and SDS permit applications,
and as requested by the Minnesota Department of Health and other organizations.
7020.2003 WATER QUALITY
DISCHARGE STANDARDS. Subp. 1. Animal
feedlots, manure storage areas, and pastures.
Minnesota Center for Environmental Advocacy commented in their letter of January 19, 2000, that Minn. R. 7020.2003, subp. 1 should include manure in the list of materials that are prohibited from entering areas that can be a conduit to ground water. In the SONAR, pages 133 and 134, the MPCA clearly intended to include animal manure in this
provision. It was an inadvertent oversight that it was not included in the Revisor’s draft dated December 1, 1999. This is a reasonable clarification.
·
7020.2003, subpart 1.
Animal feedlots, manure storage
areas, and pastures.
Animal manure, Mmanure‑contaminated
runoff, process wastewater, or process‑generated wastewater from any
animal feedlot, including CAFOs;, or manure storage area or pasture
flowing into a sinkhole;, fractured bedrock;, well;, surface tile intake;, mine;, or quarry is prohibited.
7020.2003 WATER QUALITY DISCHARGE STANDARDS. Subp. 4. Eligible open lot feedlots with
fewer than 300 animal units. Item B.
The
agency proposes this correction to clearly state the original intent of this
provision that the manure-contaminated runoff must result in a discharge to
waters of the state. At several
hearings, commenters raised the question of the difference between
manure-contaminated runoff and a discharge.
Again, as described in the SONAR under these definitions, having
manure-contaminated runoff from a facility would not in itself constitute a
violation of these rules. A discharge
by definition enters waters of the state.
The proposed rule modification clarifies that the facility must have a
discharge from an open lot in order to be eligible under this provision. Without a discharge, there would be no need
for a schedule of compliance because there may be no pollution hazard with the
open lot portion of the feedlot.
·
7020.2003,
subpart 4, item B. The animal feedlot has manure-contaminated runoff from one
or more open lots that discharges to waters of the state and:
7020.2003 WATER QUALITY DISCHARGE STANDARDS. Subp. 5. Interim corrective measures
for eligible open lots. and Subp. 6. Final corrective measures for eligible
open lots.
In
the water quality discharge standards provisions applicable to eligible open
lot feedlots having fewer than 300 animal units, the agency is changing the
interim compliance year 2003 to the year 2005 on page 39, line 15, and
changing the final compliance year 2009 to the year 2010 on page 40,
line 11.
·
7020.2003,
subpart 5 item B. comply with the following by October 1, 20052003:
·
7020.2003,
subpart 6, item A. except as required in item B, comply with part 7050.0215 for
all eligible open lots by October 1, 20102009; and
Throughout
the hearings, several commenters suggested that the interim and final
compliance dates were too aggressive considering the availability of financial
and technical assistance. Several
suggested changes were offered including interim compliance dates ranging from
2005 to 2009 and final compliance dates ranging from 2010 to 2025. One commenter at the Lewiston hearing, Steve
Drazkowski on pages 1532 - 1537 of the hearing transcript, testified that the
final compliance requirements of Minn. R. 7050.0215 should be completely
rescinded from the application to livestock operations. Mr. Drazkowski opined that it is virtually
impossible to achieve this standard for most operations in southeast Minnesota,
even by the year 2009. The agency
understands Mr. Drazkowski’s concerns for application of Minn. R. 7050.0215,
but does not agree that compliance with this part is not achievable at the
majority of feedlots.
The
agency agrees that Minn. R. 7050.0215 is not achievable statewide in the short
term, but has developed these rules to allow a ten year time frame for feedlot
owners to obtain financial and technical assistance to correct their pollution
hazards. Another key difference between
the agency and Mr. Drazkowski’s position is based on Mr. Drazkowski’s assertion
that most or all of these facilities will need to install a liquid manure
runoff collection and containment structure.
The agency has not required this in the rule nor has the agency required
this at all feedlots under the current program to achieve compliance with Minn.
R. 7050.0215. There are alternatives
which the agency has described in the SONAR such as filter strips, buffer
areas, moving lot locations, and other management practices. It is true that the typical system being
designed and installed now is a full runoff collection and containment
structure. There are several reasons
for this including Natural Resource Conservation Service design standards for
cost share projects and ease of management compared to other alternatives. The agency’s experience has been that a
combination of other practices can work very well, although many do require a
greater degree of management and maintenance when compared to a runoff control
basin.
The
Minnesota Board of Water and Soil Resources (BWSR) letter dated February 18,
2000, suggests a different approach to application of the effluent limitations
in part 7020.2003, subparts 3 and 5.
BWSR suggests using the delegation agreement with a county to establish
effluent limits specific to each county taking into consideration other
programs already in place within the county such as Comprehensive Local Water
Planning (CLWP) programs and Clean Water Partnership (CWP) programs. The agency agrees that these programs are
very valuable to assist in feedlot pollution abatement and regulation. The agency does not believe that the feedlot
program delegation agreement is the appropriate place to establish effluent
limits. The delegation agreement does,
however, allow the county to set goals and priorities for focusing feedlot
program resources to address issues in related programs such as the CLWP and
CWP programs mentioned above.
The
agency is also very interested in maintaining a consistent standard throughout
the state because the agency does not believe it would be appropriate or
prudent to have 53 or more different sets of compliance schedules based on the
resources that a county commits to the delegated program. Such a situation would likely put feedlot
owners in different counties in different situations in terms of expending
moneys, resultin in disparate competitive advantages depending upon
location. Owners, under similar
conditions, would likely end up being treated differently based on the
particular county's resources and specific county program activities. The agency believes that a fundamental fairness
issue exists and is best addressed by maintaining a statewide effluent standard
that applies to all equally. This
proposed approach by Board of Water and Soil Resources may also add a
significant resource issue for both the counties and for the MPCA when
considering the oversight needed to evaluate a variety of different
schedules.
Two
additional concerns the agency has with the BWSR suggestion are enforceability
and implications with the NPDES permitting program. Clearly, by having effluent limitations addressed in the MPCA
rules, they are enforceable. The
enforceability is not so clear if the effluent limits were established in a
delegation agreement. Finally, MPCA is
obligated to ensure compliance with the effluent limitations under the NPDES
program. By apparently shifting some of
that responsibility to delegated counties it at least raises legal issues that
have not been addressed by the BWSR approach.
·
The
agency also reiterates that Exhibit 12, introduced into the record by the
agency on January 24, 2000, included a description of a rule change on page 39,
line 22. The word and was
replaced with the word or.
The
Exhibit 12 change was a significant correction to a typographical error in the
context of several commenters, including PM Ranch in it’s letter dated February
14, 2000, was concerned that all of the requirements under subpart 5, item B
were needed for a facility to comply with the discharge standards. The SONAR describes this section in more
detail, however, it is important to again note here that owners agreeing to the
extended schedule of compliance under this part must only meet one of the two
interim measure provisions, subitem (1) or subitem (2), under item B.
7020.2005 LOCATION
RESTRICTIONS AND EXPANSION LIMITATIONS.
Subp. 1. Location restrictions.
In
the February 2, 2000, submittal from Patricia Bloomgren, Director of the
Environmental Health Division, Minnesota Department of Health (MDH), she
suggested, in "Item 5", that the 1,000-foot setback from a community
water supply well or other well serving a school of child care center in
geologically sensitive areas be applied only to those wells where a wellhead
protection area hs not been delineated.
However, MDH requested, the required offset should be changed to a one year
horizontal time of travel in ground water in cases where the MDH has approved a
wellhead protection area.
In
response to MDH, the MPCA is considering modifications to this item. At this time, the MPCA does not believe
changes to this item will be in the manner requested by MDH. The MPCA intends to discuss this matter with
MDH and will identify proposed changes by March 13, 2000, if applicable.
7020.2005 LOCATION RESTRICTIONS
AND EXPANSION LIMITATIONS. Subp. 2.
Shoreland expansion limitations.
Several
commenters, including Minnesota Center for Environmental Advocacy and Minnesota
Department of Health, suggested that Minn. R. 7020.2005 contain a requirement
to install ring dikes around animal feedlots and manure storage areas in the Red River of the North floodplain. Neither the MDH nor the MCEA provided
details to the extent of which the ring-dike proposal should be used. Would the rules require the installation of
a ring dike around only the feedlot portion of the facility or all areas where
manure accumulates, feed bunkers and buildings that hold animals? Would the requirement apply to all existing
and new facilities of all sizes? The
costs and implications could be significant and have not been considered in the
drafting of the proposed rules. The
cost implications are reflected in the fact that much of the cost-share dollars
in the Red River Valley are used for site protection often in the form of ring
dikes. Given the significant costs and
implications associated with the suggestion, the Agency is not prepared to add
this requirement to the proposed rule. The Agency believes such a specific
requirement would be unreasonable in an area where the floodplain extends 15 to
20 miles. This requirement can and
should be considered on a project specific, case-by-case basis for new or
expanding facilities in these areas.
Several commenters suggested that there be a
prohibition provision to construct in a floodplain for the Red River of the North floodplain and to
the tributaries of the Red River. The
Agency considered this during the drafting of the proposed rules and concluded
that this exemption would not be extended to the tributaries because:
·
There
are a large number of tributaries; and
·
The
majority of the tributaries and the flooding that occurs along those
tributaries occurs within the area that is already exempted in the proposed
rules; and
Additionally, the agency
believes that the 1,000 foot setback from the ordinary high water mark for the
Red River is consistent with the floodplain to it tributaries and other areas
around the rest of the state For these reasons, the suggested change was
rejected.
Zenas Baer questioned in his
letter of February 13, 2000, if the requirements of Minn. R. 7020.2005, subp. 2
prohibited the expansion of existing animal feedlots with a capacity of 1,000
or more animal units and are located in shoreland. Mr. Baer also asked the question that if it does prohibit this
expansion, does it also prohibit the expansion of that animal feedlot outside
of shoreland.
The proposed Minn. R.
7020.2005, subp. 2 is intended to prohibit the expansion of any animal feedlot
located in shoreland to fewer than 1,000 animal units. Those facilities located in shoreland on the
effective date will not be allowed to further expand in the shoreland area.
However, the owner would be allowed to expand, in compliance with the proposed
rules and permit conditions, if applicable, outside of the shoreland area. It is not the intent of the proposed rules
to prohibit expansion of an animal feedlot for the sole reason that some of the
animal feedlot is located in shoreland.
Mr. Baer also suggested that
this provision should also contain an exemption for areas where the surrounding
shoreland area slopes away from the water.
The
Agency experience is that this would be a very rare situation when considering
that the vast majority of the land near a shoreland area ultimately drains to
that shoreland area, even though the initial drainage pattern may be away from
the shoreland. For this reason, the
suggested change is not incorporated.
The Agency believes that part 7020.2005 establishes reasonable criteria
for the prevention of pollution in floodplains and shoreland areas. A facility owner presented with a hardship
under this provision may request a variance as provided under part 7020.0505,
subpart 6.
7020.2015 LIVESTOCK ACCESS
TO WATERS RESTRICTION.
Part
7020.2015 is being revised, as discussed previously in this memo, to eliminate
subpart 3, access restrictions for pastures.
However, in their February 14, 2000 submittal, Robert Mensch and Alan
Larsen commented that the rule should be revised by deleting the access
prohibitions in subpart 1 (CAFOs and facilities capable of holding 1000 or more
animal units) and in subpart 2 (non-CAFO feedlots from three MDNR public waters
lakes) and inserting only an access restriction provision limited to two MDNR
lake classifications. The MPCA is not
proposing to modify the rule in response to this comment, in part, because the
proposed revision would not be consistent with the federal NPDES CAFO program,
and in part, because the revision would not afford the necessary protection for
MDNR-identified public waters lakes from confined feedlot situations that do
not have protective and pollution-minimizing measures such as vegetative ground
cover similar to properly maintained pastures.
Subpart
1 is intended to comply with the federal CAFO effluent limitations for all
industrial-sized feedlots, including CAFOs.
The MPCA administers and implements the NPDES program in Minnesota, and
as a result of that delegation, MPCA is required, at all times, to implement
the program in accordance with the U.S. EPA federal NPDES regulations. 40 C.F.R. 123.1. States like Minnesota, which administer the NPDES program, must control
CAFOs "with the same stringency and in a manner consistent with the
federal regulations." 58 Fed. Reg.
7612 (February 8, 1993, U.S. EPA Region 6 public notice of the final permitting
decision on the general NPDES permit for CAFOs). To address environmental and public health concerns, EPA has
established an effluent limitation for larger CAFOs. 40 C.F.R. part 412. The
effluent limitation establishes a prohibition on the discharge of process waste
pollutants from these CAFOs. 40 C.F.R.
412.13(a). That effluent limitation
(e.g. discharge prohibition) establishes a limited exception (e.g. 25-year,
24-hour rainfall event) if the discharge occurs in accordance with a properly
issued NPDES permit. 40 C.F.R.
412.13(b).
Consistent with the discharge prohibition in part 412.13, EPA has interpreted that part to require that animals in a CAFO must be prohibited from having direct contact with applicable surface waters. The basis for this position is, in part, EPA's determination that process generated waste waters include water directly or indirectly used in the CAFO operation and includes direct contact swimming, washing or spray cooling of animals. 58 Fed. Reg. 7620 (February 8, 1993, U.S. EPA Region 6 General NPDES CAFO permit notice). In addition, if the confined animals have direct access to the surface waters, a discharge is presumed. 63 Fed Reg. 34876 (June 26, 1998, U.S. EPA Region 6 notice of proposed reissuance of the General NPDES CAFO permit). In accordance with these determinations, the EPA Region 6 General NPDES CAFO permit, part III.B.1.e., issued in 1993 included the following access prohibition: "No waters of the U.S. shall come into direct contact with the animals confined on the Concentrated Animal Feeding Operation. Fences may be used to restrict such access." 58 Fed. Reg. 7629 (1993). EPA Region 6 is proposing to keep that same prohibition in the reissued permit. 63 Fed. Reg. 34879 (1998).
EPA
Region 10 included a similar access prohibition in its general NPDES CAFO
permit for the state of Idaho. The EPA
explained that the access prohibition was intended to prevent direct contact of
confined animals with the surface waters and that the provisions of the NPDES
CAFO permit could not be met without that restriction because discharges would
enter the surface waters directly from the animals during subchronic and
subcatastrophic rainfall events. 60
Fed. Reg. 44493 (August 28, 1995, U.S. EPA Region 10 General NPDES CAFO permit
notice for Idaho). In its final permit
notice, EPA Region 10 noted that without the access restriction, the "no
discharge" requirement could not be achieved. 62 Fed. Reg. 20178 (April 25, 1997, U.S. EPA Region 10 notice of
a final General permit). Region 10's
permit, part II.B.4, stated: "No flowing surface waters (e.g. rivers,
streams, or other waters of the United States) shall come into direct contact
with the animals confined on the CAFO.
Fences may be used to restrict such access." 62 Fed. Reg. 20183 (April 25, 1997).
Subpart
1 is consistent with the EPA's implementation of part 412 for CAFOs. On the contrary, the Mensch/Larsen proposal
would be inconsistent with the EPA regulations and would make the rules less
stringent than allowed under the federal regulations. The MPCA will not propose a rule change that would jeopardize the
NPDES program requirements.
As
currently proposed, part 7020.2015, subp. 2 prohibits the entry of animals in
non-CAFO feedlots (e.g. non-CAFO or those feedlots less than 1000 animal units)
into three MDNR-classified public waters lakes. The rationale for this subpart is in the SONAR, p. 147, and will
not be repeated here but the MPCA does not agree that a mere controlling of
access is an adequate protective measure for these particularly valued water
bodies in light of the discharge conditions that will likely exist from the
feedlot itself. These feedlot
situations include areas specifically designed as a confinement area in which
manure may accumulate or where the concentration of animals is such that a
vegetative cover cannot be maintained within the enclosure. Minn. R. 7020.0300, subp. 3 (1997). These situations are not the typical pasture
situation that was intended to be addressed by the prior subpart 3. Instead, these feedlot conditions provide
direct access for manure and manure contaminated runoff to be discharged
directly into the lakes without any protective measures such as filter areas or
buffer strips.
Subpart
2 is also extremely limited in the types of waters that are being
protected. The three lake types are
those included in the MDNR's shoreland and floodplain management rules, Minn.
R. ch. 6120. Those rules recognize that
the uncontrolled use of shorelands adversely affects the public health, general
welfare and safety by contributing to pollution of public waters and those
rules were intended to preserve and enhance the quality of the surface waters
and conserve the economic and natural environment values of those shorelands.
Minn. R. 6120.2600 (1997). The three lake
types demonstrate the limited ability to assimilate discharges of large
quantities of pollutants that would likely be discharged from a feedlot on the
lake shore with animal access directly to the lake itself without substantially
affecting the environmental conditions or the nearby public. Natural environment lakes are generally
small, often shallow lakes with limited capacities for assimilating the impacts
of development or recreational use.
Minn. R. 6120.3000, subp. 1a(A.) (1997). Recreational development lakes are generally medium-sized lakes
that are often characterized by moderate levels of recreational use and
existing development. The development
mainly consists of seasonal and year-round residences and
recreationally-oriented commercial uses. Minn. R. 6120.3000, subp. 1a(B.)
(1997). General development lakes are
generally large, deep lakes that often are extensively used for recreation and
except for very large lakes, are heavily developed around the shore and it is
fairly common to have second and third tier development.
As
noted by EPA, when confined animals have direct access to surface waters, a
direct discharge is presumed. That EPA
rationale and the very nature of feedlots creates the potential for discharges
that will create nuisance conditions or contribute to water quality standards
violations or lake euthrophication. As
MDNR's classifications demonstrate, these three lake types have limited
assimilative capacity and the potential for human exposure to pollutants from
the feedlot discharges is direct. The
proposed access prohibition does not limit the ability of the owner to use the
water from the lake for watering livestock; it merely limits direct contact in
an effort to promote implementation of additional BMPs by the owner to further
eliminate feedlot discharges with such practices such as setbacks or vegetated
buffer areas. Given the high potential
pollution nature of the feedlot conditions being addressed by this subpart, the
Mensch/Larsen proposal does not ensure the same level of protection of the lake
or the lake users and thus, MPCA will not propose the inclusion of their
proposal.
As
described earlier, the requirement in subpart 3 to restrict access to the MDNR
lake classifications has been eliminated.
The MPCA believes it has adequate authority to address situations on a
case-by-case basis where pastures has developed feedlot conditions and are
impacting waters of the state. While
BWSR in their comment letter dated February 18, 2000, suggests language to
clarify subpart 3, it does not address the confusion and main concerns as
explained in section II, item C. The
MPCA appreciates the effort taken by BWSR to provide clarifying language, but
believes that the more prudent and reasonable course of action at this time is to
remove subpart 3.
7020.2100
LIQUID MANURE STORAGE AREAS.
The February 2, 2000 letter from Patricia Bloomgren
of the Minnesota Department of Health (MDH) recommended on pages 5-7 that
contingency plans be required where a liquid manure storage basin is located
within a drinking water supply management area characterized by karst or
fractured bedrock. The MDH recommended
that the contingency plan include a) procedures to notify the public water
supplier, b) wells to be sampled and sampling protocol, c) name of person
responsible for sampling potentially affected public water supply wells, d)
identification of alternative drinking water supplies, if necessary, e)
identification of private water supply wells that are at risk and that will be
sampled, f) the name of the laboratory that will be used to analyze for
pathogens, and g) identification of how the contingency plan is consistent with
the contingency planning element of the wellhead protection plan for the public
water supply.
The MPCA believes that the requirements proposed in
part 7020.2100 for construction of liquid manure storage systems in the karst
region will greatly minimize the probability of catastrophic manure releases
from occurring in this region. However,
the agency recognizes that the proposed measures do not completely eliminate
all risk of a soil collapse or sinkhole from occurring below a liquid manure
storage system. The agency questions
the need and reasonableness of requiring such contingency plans at feedlot
operations, given that: a) the plans as proposed by the MDH appear costly to
complete, b) the risks of catastrophic manure releases are very low, and c)
most of the responses in the contingency plan are dependent on the nature of
the failure and on the corresponding advice of ground water contamination
experts at the state and county level.
Instead of the contingency plans as advised by the
MDH, the agency proposes that all feedlots in drinking water supply management
areas be notified by the state, county or city of who to contact in the event
of a catastrophic manure release. The
state and local government should work together to develop an emergency
response plan to deal with such an event, if it were to occur.
7020.2100 LIQUID MANURE
STORAGE AREAS. Subp. 1. General.
As
stated previously in the modifications to the definition of new animal feedlot,
the agency heard many comments in hearings and received many more in letters
suggesting to the change the three-year time frame back to a five years. Robert Mensch and Alan Larsen suggested
language in their letter dated February 14, 2000, to address one of the
agency’s primary concerns with unused feedlots, that being earthen manure
storage basins. This proposed addition,
which is based on the Mensch/Larsen suggestion addresses the agency’s concerns
related to unused liquid manure storage areas.
As stated in the SONAR under the definition of new animal feedlot, the
agency’s concerns for unused basins is, for example, related to freeze-thaw
damage to any type of liner or erosion and burrowing animals on earthen
liners. Without proper repair and
maintenance these damaged areas would significantly increase seepage rates of
manure from the basin and likely to have exceedances of the seepage standards.
Add
the underlined language to the end of existing text on page 43 line 3.
·
7020.2100,
subpart 1. General. This part describes site restrictions and
requirements for design, construction, maintenance, and operation of liquid
manure storage areas. An owner shall
submit a permit application, as applicable, under part 7020.0405, subparts 1
and 2. Except as required in subpart 2,
all liquid manure storage areas must be designed, constructed, and operated in
accordance with subparts 3 to 7. An
owner of a liquid manure storage area that has been unused for a period of three
years or more shall, prior to using the structure for storing manure, have a
design engineer evaluate and prepare a report on the condition of the liner and
include this report with a permit application submitted according to part
7020.0405.
7020.2100
LIQUID MANURE STORAGE AREAS. Subp. 2.
Site restrictions.
Item A.
Recommendation
to modify requirements for constructing liquid manure storage systems around
karst features.
In the February 2, 2000 letter from Patricia
Bloomgren, the Minnesota Department of Health (MDH) recommended on page 4 that
7020.2100, subpart 2.A. be modified so that construction of liquid manure
storage systems over 250,000 gallons is prohibited where one or more
sinkhole feature is found within 1000 feet of the proposed construction site,
instead of four or more sinkholes as proposed by the agency. MDH bases this recommendation on discussions
with “researchers at the University of Minnesota who study and map karst
features” who indicate that the occurrence of one sinkhole demonstrates that
active karstification is occurring.” At
the Little Canada hearing on February 11, 2000, Dr. Calvin Alexander, a
researcher from the University of Minnesota who studies and maps karst
features, made the same recommendation about using one sinkhole within 1000
feet as the basis for preventing construction.
The agency agrees that one nearby sinkhole indicates
that karstification is occurring. It is
for this reason that the agency proposes to prohibit new feedlots or manure
storage systems within 300 feet of one or more sinkhole in accordance with part
7020.2005, subp. 1. The intent of the
agency in prohibiting construction of liquid manure storage systems in areas
where there is one sinkhole within 300 feet or four or more sinkholes within 1000
feet was to prevent construction in areas with a very high risk for
catastrophic failure to occur. Areas
with four or more sinkholes within 1000 feet are typically in sinkhole plains
where sinkholes are the predominant landform.
The agency believes that the MDH proposed revision
is not needed or reasonable. This is
based on the above discussion and two additional considerations. First, the liner requirements and separation
to bedrock requirements proposed in part 7020.2025, subp. 2, item B are designed
to significantly reduce the risk of soil collapse or sinkholes from occurring
below liquid manure storage systems.
Secondly, determining the probability of soil
collapse or sinkhole formation below a
liquid manure storage system involves a rather complex analysis of
numerous variables. There are many
different possible scenarios and combinations of variables to consider when
evaluating the risk of sinkhole collapse.
These variables include, but are not limited to:
1. density of sinkhole distribution;
2. topographic and geologic
setting which sinkholes are forming in the area;
3. patterns and
characteristics of nearby sinkhole formation;
4. type and condition of first encountered bedrock;
5. depth to bedrock;
6. soil and subsoil types;
7. proximity of karst features, including sinkholes, disappearing
streams, blind valleys, caves, and resurgent springs; and
8. the size and design of the manure storage system.
The proposed rules require permit applicants to
identify and describe certain karst features within one-half mile from the
facility (7020.2100 Subpart 4 item A(7)) and to submit soil boring information
taken at the site (7020.2100 Subpart 4 items A(2) and A(4)). Through the NPDES permitting process, SDS
permitting process, construction short form permitting process, construction
notifications, and Environmental Assessment Worksheets required by the
Environmental Quality Board (4410.4300 Subpart 29, item B), the agency will
have the opportunity to review potentially hazardous situations and make an
assessment regarding the probability of soil collapse probability. The agency has been conducting such reviews
during the past five years and has drafted guidelines to maintain a certain
level of consistency in its permitting decisions in the karst region (see SONAR
Exhibit M-13). The guidelines consider
the many variables noted above and indicate where a more protective liner is
needed or where the probability of failure is too great to permit construction.
Given the diverse conditions found at each proposed construction site, it is
important to make permitting decisions based on these site-specific
analyses.
The Minnesota Department of Health also recommended
(February 2, 2000 Bloomgren letter, page 4) that manure storage areas with a capacity
of 250,000 gallons should be restricted from 1000 feet of all the karst
features specified in the EQB feedlot rules, presumably those referred to in
part 4410.4300, subp. 29, item B. The
agency proposes to keep the rule language in part 7020.2100, subp. 2, item A as
was proposed for the public hearings.
The presence of karst features such as dry valleys, blind valleys or
resurgent springs within 1000 feet do not create such a heightened risk of soil
collapse that construction should be prohibited based on the proximity of these
features alone. To make a determination
about relative risk of soils collapses, the proximity of these karst features
should be evaluated in conjunction with the other variables previously
mentioned.
7020.2100
LIQUID MANURE STORAGE AREAS. Subp. 2.
Site restrictions,
Item B.
In the February 2, 2000 letter from Patricia
Bloomgren, the Minnesota Department of Health (MDH) recommended on page 4 that
the depth to bedrock restrictions in part 7020.2100, subp. 2, item B should be
the same for all sizes of feedlot operations, using the standards proposed for
feedlots with 1000 animal units or more.
Separation to bedrock distances proposed in part
7020.2100, subp. 2, item B increase for the larger feedlot operations for
several reasons. The larger feedlots
generally handle and store more manure and therefore represent more potential
threat to the environment and need a greater separation distance to bedrock to
provide equal protection as smaller operations. The larger feedlots choosing to construct liquid manure storage
systems are usually major expansions or new feedlots. When new feedlots are to be constructed or major expansions are
to occur, it is reasonable to expect the owners to have more flexibility in
locating the operation. Smaller
feedlots are usually those facilities that have been in operation by the farm
home for many years and they typically have fewer options where they can
construct the manure storage system. It
is reasonable to expect the larger operations to investigate soils and geologic
conditions to find the best possible site for construction, which are sites
that present the least environmental threat.
The MPCA staff and county feedlot officers have
reviewed soil boring results from hundreds of farms in southeastern
Minnesota. These experiences have shown
that feedlot expansion and construction of liquid manure storage systems would
be severely restricted in southeastern Minnesota if all feedlots were required to
meet the separation to bedrock restrictions proposed for feedlots with 1,000
animal units or more. Many farmers
hoping to have moderate expansions in order to remain in business during the
future would be forced to move their home and entire farm operation to another
location. The agency would consider
this a significant change to the rule, which is unwarranted.
Several
commenters at the Lewiston hearing provided general comments that the
requirements for karst areas were unclear or that it was hard to understand
what applies to a given facility. The
proposed changes are intended to clarify these requirements and that the liner
types listed as options under subpart 2, item B, subitems (1) to (3), are those
listed in subpart 3, item B.
·
7020.2100,
subpart 3, item B. In areas which are susceptible to soil collapse or sinkhole
formation, the minimum separation distance to bedrock and the manure storage
area liner design standards under subpart 3, item B, and prohibitions
must be in accordance with subitems (1) to (3).
The
MPCA also notes the need for a correction on page 44, lines 8 and 23. To restore the agency’s intent as listed at
the end of line 19 on page 43 for the comparable provision in subitem (1),
MPCA proposes to change part 7020.2100, subpart 2, item B, subitems (2)(c) as
follows:
·
ii.
concrete-lined with a secondary liner consisting of a synthetic liner,
HDPE liner, or one foot or greater cohesive soil liner; and or
The
MPCA proposes to change part 7020.2100, subpart 2, item B, subitems (3)(c) as
follows:
·
ii.
concrete-lined with a secondary liner consisting of a synthetic liner,
HDPE liner, or one foot or greater cohesive soil liner; and or
7020.2100
LIQUID MANURE STORAGE AREAS. Subp. 2.
Site restrictions. Items A and B.
In a letter dated February 7, 2000, Ms. Christine Sukalski
expressed concern that the restrictions required in part 7020.2100, subp. 2,
items A and B will apply to manure storage systems, which have already been
constructed.
The proposed rules in item A are not intended or
written to preclude use of existing manure storage systems over 250,000 gallons
which are already constructed in areas with four or more sinkholes within 1000
feet. Also the proposed rules in item B
are not intended or written to preclude the addition of animals to a feedlot at
or above the 300 and 1000 animal unit thresholds. Subpart 2 refers only to “construction or expansion of a liquid
manure storage area.” Subpart 2 does
not refer to operation of existing manure storage areas. If a producer intends to construct a new
liquid manure storage area as a result of adding animals, and the producer is
unable to meet requirements of Subpart 2, then the producer may apply for an
SDS or NPDES permit in accordance with 7020.0405.
7020.2100 LIQUID MANURE
STORAGE AREAS. Subp. 3. Design standards. Item A.
The
agency received many comments in hearings and in letters regarding the required
storage term of nine months for new or modified liquid manure storage areas
having 1000 or more animal units.
Suggestions ranged widely on both sides of the 9-month requirement with
most recommendations falling between 6 to18 months. The agency is not proposing to change this provision for several
reasons. First, the agency’s experience
in recent years is that the majority of new or expanding facilities having 1000
or more animal units that are using liquid storage structures are designing
storage systems that provide 12 months or more of storage capacity. Second, the provision does not apply to
feedlots under 1000 animal units. This
is important because commenters suggesting the change to six months were
concerned that costs may be increased for smaller projects. Again, the agency’s experience has been that
most of the Natural Resources Conservation Service (NRCS) projects are for
facilities under 1000 animal units and are therefore only subject to NRCS
design standard (SONAR Exhibit M-9), which typically results in six months or
more of storage. Finally, the agency
relies on the arguments in the SONAR which describe the reasonableness of this
provision through consideration of the environmental risks associated with
shorter term storage.
7020.2100 LIQUID MANURE
STORAGE AREAS. Subp. 3. Design standards. Item B.
Several registered professional engineers including:
Robert Mensch and Alan Larsen in their February 14, 2000, letter; Ralph Bartz
in his letter dated February 8, 2000; and Dennis Johnson in his submittal at
the Hadley hearing, commented on the requirement of steel reinforcing in all
concrete liquid manure storage area floors.
Several other commenters also raised this concern during hearings and
written testimony including the Minnesota Pork Producers Association in their
letter dated February 10, 2000.
Mensch/Larsen, Bartz and Johnson all suggest that alternatives to
reinforcing steel should be allowed, and Mensch/Larsen and Bartz specifically
suggested fiber reinforcing as an alternative.
The agency recognizes these concerns and is proposing to allow design
engineers to specify fiber reinforcing as an alternate, provided that the fiber
dosage rate and fiber type is specified in the plans and specifications. At
least one commenter, Arlo Habben, works with a professional engineer in
designing many such projects in southeastern Minnesota and states in his letter
dated February 6, 2000, the importance of reinforcing in concrete manure
storage floors.
·
(2)
concrete-lined manure storage areas must be designed and constructed with:
water stops or joint sealant materials at all construction joints; sealing of
all cracks which may extend through the liner with appropriate materials; and a
floor having a concrete thickness of not less than five inches. and
The floor must have:
(i) steel reinforcing based on
subgrade drag theory in American Concrete Institute, Slabs on Grade, ACI-360,
or
(ii) fiber-reinforcing. If fiber reinforcing is used, the design
engineer must specify the type of fibers and the dosage rate in subpart 4, item
F.; and
The second issue related to concrete floors that was
commented on by Bartz, the Minnesota Pork Producers Association and John
Burgers of Rock County in his letter dated January 14, 2000, is the suggested
4-inch floor thickness instead of the specified 5‑inch floors. Their concerns revolve around the added
costs associated with the added thickness.
The agency believes that the 5-inch floor is reasonable because of the
decrease in the anticipated number of cracks in the floor and the resulting
decrease in the potential for leakage from the cracks. As described in the SONAR, the 5-inch floor
is the required standard for projects built under the United States Department
of Agriculture, Natural Resources Conservation Service standards. Typically, a 5 inch floor is necessary when
design with reinforcing steel in a floor slab in order to obtain acceptable
clearances between the steel and the concrete surfaces. Experience and theory also suggest that a 5‑inch
floor, without reinforcing steel as discussed above, will have a lower crack
frequency and therefore lower potential for leakage. The agency recognizes the concerns for increased costs on some
projects, although more than one design engineer has been specifying 5-inch
structural slab floors under the existing program for certain projects with
little or no increased cost when compared to a 4-inch floor design. These specific 5-inch floor designs use
reinforcing steel in the footing areas and do not use the typical footing
design needed for a 4-inch floor design.
Specific costs estimates were described by the
Minnesota Pork Producers Association (MPPA) in their letter dated February 10,
2000. These costs were further
clarified during the Little Canada hearing on February 11, 2000 (pages
2172-2173 of that transcript).
Mr. Preisler testified that approximately one-half of the $7,500
estimate in their letter was directly related to the reinforcing steel and the
extra one inch of floor thickness.
Looking at the cost of the additional one inch of fiber-reinforced
concrete and using the example in the MPPA letter of an approximate 1000 head
finish barn, results in an increased cost of about $2,000 per structure, or
approximately 1 percent of the overall project costs (based on 4000 psi
concrete at $70 per yard plus $7 per yard for fiber-reinforcing in a 41’ by
200’ slab with a 5-inch floor thickness compared to a 4-inch floor without
fiber-reinforcing). Again, as discussed
above, this estimated cost can be offset based on the engineer’s particular
design specifications. For these
reasons, the agency is proposing no changes to the floor thickness
provision.
7020.2100 LIQUID MANURE
STORAGE AREAS. Subp. 3. Design standards. Item B, subitem (3).
Add
the underlined language to the end of the existing provision on page 45, line
21.
·
...
inch per day throughout the design life of the manure storage area.
Aboveground manure storage areas located in areas not subject to the site
restrictions under subpart 2, may be designed and constructed according to the
seepage standards under subitems (1) or (2), as applicable.
This
language is intended to clarify the agency’s requirements for aboveground
manure storage areas. Robert Mensch and
Alan Larsen, in their letter dated February 14, 2000, describe a situation
related to a concrete-lined system that could be required to meet the 1/560
inch per day seepage standard instead of the 1/56 inch per day if the structure
was built above ground and located outside the site restriction areas under
subpart 2. The situation is not the
agency’s intent in the design standards provisions for concrete-lined or
glass-lined steel tanks, for example, built above ground and located outside
the site restriction areas. Related to
this issue, the agency believes that the vast majority of glass-lined steel
tanks can be demonstrated to be designed to meet the theoretical seepage rate
of 1/560 inch per day, regardless of where the structure is built or
installed. Nevertheless, these
glass-lined tanks or above ground concrete-lined tanks built outside the site
restriction areas need only comply with the standards in subpart 3, item B,
subitems (1) or (2), as applicable.
7020.2100 LIQUID MANURE
STORAGE AREAS. Subp. 4. Design plans
and specifications.
John
Burgers in his letter dated January 14, 2000, suggests that agency consider
allowing alternative design plans for concrete-lined storage areas instead of
requiring a registered engineer’s signature for all structures greater than
20,000 gallons in capacity. Mr.
Burgers also testified at the Hadley hearing regarding this issue (pages
1106-1108 of the hearing transcript) and provided alternatives to the agency’s
approach. Specifically Mr. Burgers
suggests allowing any concrete project at a feedlot of 1000 animal units or
less to use a shelf plan such as those provided in Midwest Planning Service
(MWPS) publications for construction provided that the project is in a general
soil areas. Mr. Burgers explains that
this would save producers money for engineering if constructed in non-sensitive
areas while requiring full engineering review and plan preparation in sensitive
areas.
Mr.
Burgers suggestion is reasonable and it should be more fully discussed in the
future. However, the agency is concerned that stock facility plans define the
design for non-sensitive areas. They do
not specify how stock plans should be applied to sensitive areas and could be
very complex if meant to focus on these areas.
The agency has had several bad experiences with “stock” plans in the
past, although Mr. Burgers has seen it work well in Rock County. In addition, a professional engineer would
still be needed to certify that stock or shelf plan is appropriate for the
site. These and other questions warrant
further discussion that cannot be fully resolved in the 20-day response period
for this rulemaking. This simply does
not allow adequate time to discuss and develop a system that would account for
an equitable and environmentally protective alternative. To reiterate the agency’s SONAR, the agency
believes that the current proposal for exempting concrete structure under
20,000-gallon capacity is reasonable approach at this time.
7020.2100
LIQUID MANURE STORAGE AREAS. Subp. 4.
Design plans and specifications. Item
A, subitem (4).
At the Little Canada hearing on February 11, 2000,
Dr. Calvin Alexander recommended that the boring depth requirements in part
7020.2100 , subp. 4, item A(4) be clarified so that they are consistent with
the requirements of part 7020.2100, subp. 2, item B. Dr. Alexander indicated that the boring requirements in karst
regions be at least 10 feet below the bottom of the proposed liquid manure
storage area, but that the minimum separation distance between bedrock and
liquid manure ranges from 5 to 40 feet in part 7020.2100, subp. 2, item B. To provide greater clarity of this issue,
the agency proposes to add clarifying language to part 7020.2100, subp. 4, item
A(4).
Additional
language is also added to this provision in response to the comment on page 5
of the Robert Mensch and Alan Larsen letter, dated February 14, 2000. As Mensch and Larsen describe, the improper
sealing of boreholes in sinkhole prone areas can accelerate the formation of
sinkholes due to creation of preferential flow paths in the unsaturated
soil. Sealing of boreholes is also
recommended on page 12 in the agency’s Guidelines for Design of Cohesive Soil
Liners for Manure Storage Areas (SONAR Exhibit M-18). The rule language below provides more specific requirements
because it relates specifically to karst situations. The modified item A(4) reads as follows:
·
(4)
... bottom of the proposed liquid manure storage area, or until bedrock is
encountered. The
information in subitem (5) must also be recorded to a depth which allows
verification of separation to bedrock requirements in accordance with 7020.2100
subpart 2, item B. Each borehole
completed under this item shall be sealed throughout the entire depth by a
method that will ensure that the borehole does not become a preferential flow
path for vertical groundwater transport.
Mensch
and Larsen also suggest language for location of backhoe trenches or soils
investigation pits. The Agency agrees
that these can be a concern in some cases if the trenches or pits are not
properly located or backfilled and compacted.
However, this issue is also addressed in the Agency’s guidelines (SONAR
Exhibit M-18), in which the Agency directs the designer to consider the
location and potential effects to liners.
7020.2100 LIQUID MANURE
STORAGE AREAS. Subp. 4. Design plans
and specifications. Item A, subitem (6).
Robert
Mensch and Alan Larsen in their letter dated February 14, 2000, and Dennis
Johnson in his submittal at the February 2, 2000, hearing in Hadley, suggest
elimination of this provision for new liquid manure storage areas. Mensch and Larsen also suggest retaining the
comparable provision in part 7020.2110, pertaining to evaluations of existing
unpermitted basins. The agency
recognizes the concerns these engineers have with this provision as originally
proposed, that being the one-half inch criterion. As they state in their letters, this implies that a much more
costly sampling method (split spoon versus rotary auger, for example) must be
used. The agency proposes to modify
this provision so that the design engineer and soils professionals conducting
the investigation are responsible for determining the appropriate method for
obtaining the sample. This provision is
maintained as originally proposed in part 7020.2110 for unpermitted basins
including the one half inch criteria.
·
(6)
The soil profile information must be obtained by a method that can identify
abrupt changes in soil texture and sand lenses of one-half inch or greater
throughout the soil profile.
The
agency expects that the engineers and soils professional conducting these
investigations will take into account site specific soil and water table
features and the type of liner to be used when determining the appropriate
sampling method. For example, if the
structure to be built is a concrete-lined structure in an area of the state
where heavy clay soils are abundant with little chance of sand lenses that
would effect the concrete liner, there may be little benefit in obtaining
samples to identify sand lenses of one-half inch. Conversely, in areas where sand and gravel deposits are likely
and the structure proposed is earthen lined, it would be prudent for the
investigators to sample by a method that can identify sand lenses or pockets
that may impact the integrity of the liner.
The agency’s experience with a small percentage of soils investigations
in the past has been to require additional information because the boring
record did not adequately identify sand lenses that were anticipated at the
site. Often in these cases, subsequent
soil borings identified sand lenses and required modifications to the original
design. In one case, the proposer
elected to begin construction with out additional investigation or modifying
the design as supported by the MPCA to address a constructability concern for
ground water presence. This resulted in
very costly construction delays of roughly two months and design modifications
because water-bearing sand lenses were present that yielded enough groundwater
to fill the excavation several feet with water. These issues must also be addressed by the design engineer under
subitem 8, and are described in more detail in the SONAR. That said, the agency believes this is a
reasonable approach to allow the engineer or soils professional to determine
the appropriate sampling method.
7020.2100 LIQUID MANURE
STORAGE AREAS. Subp. 4. Design plans
and specifications. Item A, subitem (9), unit (b).
Ralph
Bartz in his letter dated February 8, 2000, suggests changing the two foot
locational criterion to one foot so that the excavation for a concrete-lined
manure storage area need not be larger than necessary. The agency believes the one-foot criterion
is reasonable and accomplishes the same environmental goal as two feet, having
some level of soil separation between the pit wall and drain tile described in
the SONAR for this requirement. As Mr.
Bartz describes the primary long-term structural reason for locating the tile
close to the wall is to eliminate saturated soil conditions along the
sidewalls. The
agency
also believes that having a one-foot distance between the pit and the tile is
reasonable because of the added protection that the soil provides as a buffer
or filter for any seepage that may occur form the joints and cracks in the
concrete liner.
·
(b)
locate the drainage tile a horizontal distance of at least one foot two
feet outside the footing of a concrete-lined manure storage area.
7020.2100 LIQUID MANURE
STORAGE AREAS. Subp. 4. Design plans
and specifications. Item L, subitem (4).
The
Agency proposes to add this language due to an oversight in the original
provision. Several of the Agency’s
SONAR exhibits discuss both hot and cold weather construction and operational
issues related to cohesive-soil, concrete and geosynthetic lined manure storage
areas (SONAR Exhibits M-18, M-11 and M-14).
Under the current program the Agency requires the spiral construction
technique be followed in times of cold weather. This provision is consistent with current practices.
·
(4)
hot and cold weather construction;
7020.2100 LIQUID MANURE
STORAGE AREAS. Subp. 4. Design plans
and specifications. Item N.
The
Minnesota Department of Health (MDH) suggests in Item 8 of their letter dated
February 8, 2000, that the Agency incorporate three specific operation and
maintenance provisions into this item.
The three provisions would apply solely to areas having karst features
of fractured bedrock. The Agency agrees
that more specificity is needed in this provision, but also believes that the
suggested requirements should apply statewide and not only to karst areas. The four subitems that the Agency has
included are similar to those suggested by the MDH and are consistent with the
types of factors identified in the agency’s recommended operation and
maintenance plan components listed in SONAR Exhibits including M‑18, M‑11
and M-14. The MDH’s suggests daily
inspections of liquid levels for structures in karst areas. Daily inspection may be warranted in some
cases. However, the agency believes
inspection frequency, and the maintenance requirements, should be evaluated on
a case-by-case basis by the design engineer depending on such factors as the
liner type, size of the storage area and specific location. The MDH also suggests inspection of the
liner after each pump-out event and recording of any repairs needed. The Agency agrees that these are important
considerations and again believes they can be evaluated by the engineer on a
case-by-case basis. As the MDH
describes in their rational for these provisions, specific requirements for
operation
and
maintenance can also be incorporated into NPDES or SDS operational permits,
which are required of all facilities having 1000 animal units or more.
·
N.
A plan for operation, periodic inspection, and maintenance of the manure
storage area including schedules and descriptions of:
(1) routine inspections and maintenance and
recordkeeping to be completed to identify and document damage to the liner from
factors listed in item L;
(2) methods to be used to repair areas of damaged
liner;
(3) methods used to monitor the liquid level in the
basin to evaluate proper operation and adequate available storage capacity; and
(4) routine inspections of perimeter tile line
outlets and inspection manholes to ensure proper operation of the system.
7020.2100 LIQUID MANURE
STORAGE AREAS. Subp. 6. Inspections of
liquid manure storage areas. Item A,
subitem (1).
Arlo
Habben testified at the Lewiston hearing and also commented in his letter dated
February 6, 2000, about the availability of inspectors meeting one of the three
qualification alternatives for liquid storage area inspections. Mr. Habben also raised concerns for the time
needed to get persons trained to meet the concrete inspector certification
requirements under subitem (3). The
agency proposes to address these concerns by adding language that clearly
allows the registered engineer to appoint a qualified inspector and subsequently
certify the inspection work of that person working under the professional
engineer’s direct supervision. The
agency believes this is a reasonable modification because it is the registered
professional engineer’s responsibility to assure that the inspector is trained
and qualified to conduct engineering inspections.
·
(1)
a professional engineer licensed in the state of Minnesota or a person
working under the professional engineer’s direct supervision.
7020.2100 LIQUID MANURE
STORAGE AREAS. Subp. 6. Inspections of
liquid manure storage areas. Item B,
subitem (3), unit (b).
Design engineers Ralph Bartz, Dennis Johnson, Robert
Mensch and Alan Larsen, describe in their letters the difficulty in conducting
a water/cement ratio test on-site, and all recommend deletion of the
water/cement ratio from this provision.
The agency did not intend that all projects conduct a water/cement ratio
test on each batch of concrete. The agency
did intend, however, that the inspector evaluate the concrete strength and quality. As with other clarifications provided in
previous sections, the agency believes
that the design engineer should be responsible for
specifying the evaluation and tests methods needed to verify conformance to the
design plans and specifications.
·
(b)
concrete quality including air entrainment, temperature, strength and air
entrainment water-cement ratio;
Mr. Bartz also stated concerns for the cost of
purchasing equipment to conduct air entrainment tests. Again, the agency does not intend that each
batch of concrete be tested, but verification that the concrete is air
entrained, if specified in the plans, must be completed. This could be accomplished by an air test,
but it could also be completed by review of the batch tickets, for
example. The Agency believes the
modification is reasonable and addresses the concern raised by a number of
design engineers.
7020.2110 UNPERMITTED OR
NONCERTIFIED LIQUID MANURE STORAGE
AREAS.
The changes shown below in subparts 1 and 2 related
to the language “capable of holding” and “capacity” were discussed previously
in Section II of this memo. The second
change in subpart 1 is needed to clarify that there are two separate criteria
that can trigger these requirements. A
more detailed discussion is provided in the agency’s SONAR (pages 171-172),
however, the agency believes it is important to clarify language in the rule.
The agency proposes several changes to this section
to address comments received primarily at the Crookston hearing on January 26,
2000, related to options available to demonstrate compliance of a liquid manure
storage area. Commenters suggested that
the options for unpermitted or uncertified liquid manure storage area were too
limited and did not take into account the destruction of many older plans and
specifications by the Natural Resources Conservation Service (NRCS, formerly
the Soil Conservation Service [SCS]).
One commenter at the Crookston hearing suggested that the agency allow
some method for owners who had basins designed and installed with NRCS/SCS
assistance to demonstrate compliance if the plans were destroyed by the
NRCS/SCS office. The Agency agrees that
liquid manure storage areas that were designed and constructed in accordance
with NRCS or SCS requirements of the time should be considered as complying
with the requirements of the time. The
agency proposes to add this provision in subpart 1, item E as shown below.
A second additional option has also been proposed by
the agency. While not specifically
suggested in the hearing comments, this water balance method is one method the
agency has required of some liquid manure storage areas in the past to
demonstrate compliance with the 500 gallons/acre/day seepage rate
standard. This option is added in
response to the commenters. The
criteria for one such water balance test method are contained in the MPCA
publication “Prefill and Water Balance
Criteria,” Minnesota Pollution
Control Agency (MPCA), July 1989,” which is included as Att. 8. Further
explanation of this test method is contained in “Report on Evaluation of
Minnesota Water Balance Test, Consulting Engineers Council of Minnesota and
MPCA, April 1989.” See Att. 18. Thus, the Agency believes the proposed
modifications are reasonable and consistent with intent and current practices.
·
Subpart 1. Schedule for facilities with capable of holding
1,000 animal
units or more or construction after June 3, 1991. An owner that has a
facility capable of holding 1,000 or more animal units and an
unpermitted or uncertified liquid manure storage area, or that uses an
unpermitted or noncertified liquid manure storage area for which construction
commenced after June 3, 1991, shall, by October 1, 2001:
B. … (4) the dates when closure will take place; or
C. except as provided in item D, submit a copy of the original
design plans and specifications for the manure storage area that were prepared
by a design engineer prior to the actual time of construction and a
construction certification report signed by a design engineer that certifies
that the liquid manure storage area was designed and constructed according to
applicable rules and regulations and standard engineering principles and
practices at the time of construction.
D. if the original plans and specifications for a
NRCS/SCS designed liquid manure storage area are no longer available, the owner
must submit a certification by the manager of the NRCS office which was
responsible for design and oversight of the project, that the project was
constructed according to NRCS/SCS design plans and specifications and
construction oversight; or
E. conduct and submit the results of a water
balance test that demonstrate the manure storage area is properly sealed to
achieve a seepage rate of 1/56 inch per day or less.
The agency also
proposes to change the compliance dates under subparts 2 and 3 to coincide with
the compliance date changes under part 7020.2003. Changing these dates to October 1, 2005, in subpart 2, and
October 1, 2010, in subpart 3, is reasonable because it reduces confusion of
the many dates throughout this rule.
The date in subpart 3 was also originally intended to coincide with the
final compliance date in part 7020.2003 for discharging open lot feedlots. The SONAR discussed the original intent of
these dates on pages 173-174.
·
Subp. 2.
Schedule for facilities with the
capacity to hold fewer than 1,000 animal
units. Except as required in
subpart 1 or as provided in subpart 3, an owner that uses an unpermitted or
noncertified liquid manure storage area and has the capacity to hold
fewer than 1,000 animal units shall, by October 1, 20053:
A. complete one of the
provisions under subpart 1, items A to C E; or
·
Subp. 3. Schedule
for open lot feedlots with fewer than 300 animal units.
A. By October 1, 20053,
the owner shall notify the commissioner or county feedlot pollution control
officer that the manure storage area will be closed or reconstructed by October
1, 20109. Notification
must be completed by letter, telephone or facsimile and also include:
B. By October 1, 20109, the owner shall
complete closure or reconstruction.
7020.2125 MANURE STOCKPILING
SITES. Subp. 2. Additional requirements
for short-term stockpiling.
Many
people commented that the proposed limitation of 180 days for short-term
stockpiles in Minn. R. 7020.2125, subp. 2 is to short to allow owners to land
apply manure that has been stockpiled.
Application of manure from a stockpile initiated in the fall may
conflict with planting season and could result in compaction of the soil, which
is undesirable for newly planted crops.
Mr. Robert Mensch and Mr. Alan Larsen suggested that the time should be
extended to one year. Several poultry
producers suggested that the proposed rules should allow for very short term
stockpiling outside of the barn during the period when the flock is turned over
and the barns are cleaned. Both of
these suggested changes have been incorporated.
Based
on the number of comments received at the thirteen public hearings and in
letter form, the MPCA reviewed this 180-day limit for short-term
stockpiling. The MPCA considered the
number of individuals self-hauling that may not be able to complete the removal
and land application steps before spring planting; the various types of operations
that require barn cleanout in mid-summer or mid-winter, and the fact that
manure cannot be applied when crops are in the field. In considering these factors, the MPCA concluded that more often
than not a producer would need an extension to the 180-day limit. The MPCA believed the need for an extension
to the 180-day limit would be the exception and not the norm. However, based on the testimony provided,
the MPCA is convinced otherwise. Thus,
the MPCA followed the preferred alternative of one year and no extension. The MPCA finds this alternative to be
reasonable.
·
Subp. 2. Additional requirements
for short‑term stockpiling. By October 1, 2001, all short‑term
stockpile sites must:
A. have the manure removed from the site within 180 calendar
days of the date from when the stockpile is initially established and
land applied in accordance with part 7020.2225, unless weather and soil conditions prohibit land application
of the manure and the owner complies with
the following:
(1) the
owner shall land apply the manure in accordance with part 7020.2225 within
one year of the date when the stockpile was initially established.; and
(2)
prior to the end of the 180‑day period identified in this item,
the owner shall submit to the commissioner or county feedlot pollution control
officer, on a form provided by the commissioner, a short‑term
stockpile extension notification which identifies:
(a)
the weather and soil conditions that prevented the removal and land
application of the manure within the 180‑day period; and
(b)
the location of each short‑term stockpile that will remain after
the 180‑day period;
B. except as provided in subitems (1) and (2), for a site located
within the confines of an animal feedlot
containing less than 100 animal units of hooved animals, not be used
during the calendar year preceding or following the calendar year in
which the site is used. A a vegetative cover must be established on the site for
at least one full growing season prior to reuse
as a short-term stockpile site;
(1) sites located
within the confines of a hoofed-animal open lot at a facility having a capacity
less than 100 animal units are exempt from item B;
(2) sites where
manure is stockpiled for less than ten days no more than six times per year are
exempt from item B if they are located not more than 150 feet from the animal
holding area from which the manure was removed.
The
change in item B, subitem (2), intended to allow owners to stockpile outside
the barn during cleaning is intended to only exempt the owner from the
requirement to revegetate the area prior to reuse as a short-term stockpile
site. The owner is still subject to all
of the other short-term stockpiling requirements including the runoff control
and collection, if needed, and location requirements. The language used in subitem (2) closely follows that suggested
by Golden Plump, Inc. dated February 9, 2000.
The MPCA found the new language to be reasonable in that it retains the
purpose of the short-term stockpile in guarding against uncontrolled run off
that may have environmental impacts, yet permits the normal operations of
poultry facilities to continue with minimal disruption. The Agency included a provision that
requires these cleanout piles to be located within 150 feet of the barn. This is intended to clarify that the
provision only applies to the barn “push-out areas.”
As
explained on pages 8 and 9 of the Golden Plump submittal, current industry
practice involves the clean out of barns using a front-end loader to push the
manure out. The pile of manure is then
hauled out for storage or land application.
Typically, the manure is hauled out the same day but weather may disrupt
this practice. The MPCA agrees that the
risk for significant environmental impact is low and the proposed rules were
never intended to disrupt this practice.
Therefore, the MPCA believes the change is reasonable.
The Minnesota Department of
Health commented in their letter of February 2, 2000 that the term “abandoned”
has not been consistently interpreted.
Minnesota Department of Health suggested the term “unused-unsealed”
since this is the term used by the MDH and in more clear. The MPCA believes this request is a
reasonable clarification and proposes the following changes.
·
Subp. 2. Additional requirements
for short‑term stockpiling.
C. not be located within:
(3) 100 feet of any private water supply or abandoned unused-unsealed well and 200
feet from any private well with less than 50 feet of watertight casing and that
is not cased through a confining layer at least ten feet thick; and
7020.2150 MANURE
COMPOST SITES.
Issues were raised in addition to those issues the Agency has responded to by proposing rule changes. These issues are addressed below.
Robert
Mensch and Alan Larsen in a letter dated February 14, 2000, argued that owners
who compost manure that is applied on crop land or used as bedding for the
owner's livestock should be exempt from part 7020.2150 . MPCA has reviewed their request and has decided
not to modify part 7020.2150. It would
be an environmentally unsound policy to require or exempt analysis of a
recycled material only on who owned the material or the land on which it would
be applied. Additionally, compost is a
disposable product to be used for bedding and likely would be a source-bedding
product since it will look and act like soil.
Further,
as discussed in the SONAR , pages 194-195, the process to further reduce
pathogens (PFRP) methods and parameters to be tested are identical to the
compost requirement for solid waste and food waste in Minn. R. chapter
7035. The testing parameters for
feedlots only apply to large facilities as these are most likely to sell the
final product for use else where.
MPCA’s environmental concerns regarding and the potential introduction
of bacteria, pathogens, and nutrients into ground water or surface waters
remain even if the owner is the only end- user of the compost.
Again
the proposed rule only requires persons obtaining NPDES or SDS permits under
part 7020.0405 subp.1, items A or B to analyze and report to the MPCA. The required information is important for managing the potential
phytotoxicity and proper land application of the compost. As the land application requirements in
7020.2225 do not apply to compost , the only analysis of nitrogen, phosphorus,
and potassium (NPK) and the product quality is found in the compost regulations
under 7020.2150.
Several persons have suggested that compost be regulated by the number of days of turning rather than temperature. This proposal is not supported by actual compost methods of operation. First, the windrow method of achieving PFRP is the only one method that requires turning of the pile. Proper operation of a windrow compost facility requires, in addition to monitoring temperature, turning the windrow once every three to five days for three weeks. It is not sufficient to only require that the windrow be turned without quantifying whether or not sufficiently high temperatures (55 degrees Celsius) for the purpose of killing pathogens have been reached. A windrow that is too dry, too small, too wet, or with an carbon to nitrogen ratio too large will generate insufficient heat, regardless of the number of turns, to reduce the pathogens. In fact, turning will serve to cool the pile further.
Secondly,
temperature is the main monitoring measure of the composting process. The amount of heat produced during
composting is directly related to microbial activity. Abnormally low temperatures signal that aerobic microbial
activity has declined. Part 7020.2150
subp. 2(c) (1) requires that aerobic
conditions must be maintained during the compost process. As the SONAR states
on page 195, “ The temperature standard ensures not only that pathogens are
killed, but that proper aerobic conditions are occurring in the pile and with
those, the proper operation of the composting process.” Pathogens present a serious potential public
threat and manure must be properly composted to achieve a mature product.
In
a memorandum from Zenas Baer dated February 13, 2000, entitled, “Memorandum of
Outline of Presentation for Administrative Law Judge, Mr. Baer asks if he must follow the compost regulations for solid
wastes in Minn. R. 7035.2836 subp. 4-7 if bulking agents such as sunflower
hulls, paper, straw, cornstalks or other solids are added to the composting
manure. Solid waste is defined in
Minn. R. 7035.0300 subp. 100 as
“garbage, refuse, sludge from a water supply treatment plant or air
contaminant treatment facility and other discarded waste materials and sludges,
in solid, semisolid, liquid or contained gaseous form, resulting from
industrial, commercial, mining and agricultural operations and from community
activities, but does not include hazardous waste, animal waste used as
fertilizer, earthen fill etc.”
The intent of the rule requirement that solid waste compost rules be followed if solid waste were composted with manure, was not to include source separated bulking agents that are necessary to the proper aerobic composting process to be included in the category that would trigger the solid waste rules. Arguably, wood chips, sawdust, paper and other carbonaceous solids could be classified as solid waste. However, these materials mixed with manure and composted do not warrant the additional analysis for heavy metals as required in the Minn. R. 7035.2836 subp. 4-6. The MPCA has not required that the solid waste compost rules be followed when cardboard, newspaper, and other source separated materials were composted with manure. The concern and need to direct the feedlot operator to the solid waste rules for composting solid waste and manure is reserved for garbage and solid waste from residential sources. This requirement is consistent for materials composted at solid waste compost facilities throughout Minnesota and may use manure as a nitrogen source in their facilities. Further, the intent was not to include farm residuals such as sunflower hulls, straw, cornstalks in the category of solid waste to be regulated under Minn. R. 7035.2836. These farm residuals are not solid wastes as defined in Minn. R. 7035.0300, subp. 100.
In
the same memorandum, Mr. Baer suggested the MPCA add rule language to the
Animal Manure definition in Minn. R. 7020.0300 subp. 4 to state, “ Animal manure or manure does not
include finished compost.” The MPCA
agrees that finished compost is not animal manure but has included a similar
statement in the compost definition in 7020.0300, subp. 7c. where it states,
“Only manure that has completed the
composting processes described in part 7020.2150, subp. 2 is compost.” This language ensures that finished compost
can be distinguished from manure but is in agreement that after being
processed, finished compost is no longer manure.
7020.2225 LAND APPLICATION
OF MANURE.
The agency proposes to add process wastewater after the
term manure throughout part 7020.2225.
This follows from the agency's original intent to include manure and
process wastewaters (which also includes process generated wastewaters) as
potential pollutants that must be stored, handled, land applied or otherwise
managed in accordance with this rule.
In a draft version of the rule that was discussed the Feedlot and Manure
Management Advisory Committee (FMMAC), the agency included the definitions of
process wastewater and process generated wastewater in the definition of animal
manure. This was intended to clarify
that not only manure was regulated under this rule related to animal feedlots
and manure storage areas. FMMAC members
suggested separating the definitions to minimize the confusion that
wastewaters, which did not contact manure, were not actually manure by
definition. FMMAC did not comment on
the inclusion of the wastewater terms into the rule. The agency subsequently established the two definitions under
Minn. R. 7020.0300, subp. 19b and 19c, and added references to the applicable
parts of the rule. However, the
reference to these definitions was inadvertently omitted from the land
application parts of the rule. The time
constraints in preparing this document do not permit the agency to provide all
the citations and show the changes in this document. They will be part of the March 13 response document.
Several commenters at the hearings implied that the
manure management planning and record keeping requirements were neither needed
nor reasonable. The MPCA is aware of
several recent studies showing that farmers are poorly accounting for manure in
their nutrient budgeting. Lack of
proper manure crediting can lead to water quality pollution and is generally
not in the best economic interest of the producer.
In
a Report On Noncommercial Manure Applicator Training and Certification to the
1999 Minnesota Legislature in January, 1999 [Attachment 14] the Minnesota
Department of Agriculture (MDA) relates the results from studies using its
diagnostic tool which has been referred to as the “Farm Nutrient Management
Assessment Program (FANMAP). Attachment
14. FANMAP provides a method to
quantify existing management strategies of agricultural inputs such as
nitrogen, phosphorus and pesticides.
Results from all FANMAP studies, based upon the
analysis of nutrient budgets of over 64,000 corn acres in the studies, have
consistently shown that livestock producers do not take full manure nitrogen
(N) credits. Factoring in all N inputs
(fertilizer, legume credits and manure applications) livestock producers
frequently over-apply by 40 to 70 lb/N/acre.
Although only 25-30 percent of the corn acres in the study receive
manure each cropping season, those manured acres frequently account for
approximately half of the entire amount of excess N used on the farm. The study concluded that the
over-application of manure alone is not the principle cause for these discrepancies
between N applied and UMES recommendations.
In fact, based on extensive FANMAP experience, the heart of the problem
is the lack of taking the full N credit for manure and subsequently not
reducing the commercial N fertilizer application rates.
Inaccurate
crediting of manure nitrogen is not unique to Minnesota. In a recently published study, Shepard
(2000) analyzed survey data from 1928 farms in Wisconsin to determine the
overall nutrient application rates and use of best management practices.
Attachment 15. The overall finding of this
behavioral analysis indicates that:
¨
Few
farmers are using best management practices for nutrient crediting, and among
those who do, inaccuracy is the norm rather than the exception.
¨
In
comparing recommended levels to actual rates applied, Shepard showed that
farmers over-apply commercial nitrogen and phosphorus. On average, farmers used an excess of 38
pounds per acre of nitrogen. This
includes nitrogen from all sources (starter, 28 percent N solution, urea,
anhydrous ammonia, other commercial fertilizers, legumes and manure).
¨
Shepard’s
study indicated that the majority of the excesses come from inaccurate
crediting of manure nutrients.
¨
Similar
results were found for phosphorus application rates. On average farmers applied an excess of 74 pounds per acre beyond
the University of Wisconsin recommendations for growing corn.
¨
Two
out of three farmers in this study apply excess nitrogen, while four out of
five apply excess phosphorus to their corn acres.
In related studies from Wisconsin, Nowak, Shepard,
and Madison (cited in the Wisconsin
Agriculturist September 1997 (Attachment
16) found that:
¨Seven out of ten livestock
producers made no effort to credit nitrogen or other nutrients from animal
manure spread on cornfields. And those
who attempted to credit manure were usually inaccurate – fewer than 2percent of
all farmers were within 10percent of the University of Wisconsin guidelines.
¨ It was also widely believed
by producers that it was uneconomical to credit the nutrients in manure. Nowak, Shepard and Madison found
otherwise. The average value of on-farm
nutrients (manure and legumes) was almost $16 per acre, not including the
long-term benefits such as improvements to soil tilth.
Clear economic benefits
usually exist when careful consideration of manure nutrient addition is
completed. For example, the MPCA
analyzed 1998 data from the University of Minnesota On-Farm Manure Management
project. The objective was to determine
the costs and expected financial savings resulting from utilizing manure
instead of commercial fertilizer. These
data represent 34,768 animal units on 101 livestock enterprises in nine
west-central Minnesota counties (See Attachment 17).
The agency categorized the 101 manure management
plans into four feedlot size categories: small (under 100 animal units), medium
(100 to 299 animal units), large (300 to 999 animal units) and very large (over
1000 animal units). The On-Farm Manure
Management project calculated the costs to fertilize cropland by manure
applications and by commercial fertilizer using software developed by the
University of Minnesota. The
differences between these two costs were determined to be the economic
advantage of using manure instead of commercial fertilizer. None of these 101 livestock farms would know
of the degree of these economic advantages or disadvantages without manure
application plans and manure test results.
Results of the analysis indicated:
¨
Seventy
percent of the livestock farms derived a positive economic advantage by using
manure instead of commercial fertilizer.
On 50 percent of the farms, the economic advantage amounted to as much
as $10 per acre.
¨
The
cost savings of using manure to fertilize crops increased as the size of the
livestock farms increased.
¨
For the 25 livestock farms under 100 animal
units there appears to be small disadvantage to using manure instead of
commercial fertilizer.
¨
Medium
size livestock farms realized a $4.67 per acre savings by using manure instead
of commercial fertilizer. The advantage
increased to $8.33 per acre for large size livestock farms. Although there were only two very large
livestock farms evaluated, their cost savings amounted to $17.00 per acre.
In
summary, the existing information shows in general that 1) the lack of
sufficient crediting of manure nutrients is common in Minnesota and Wisconsin;
2) poor manure nutrient crediting is leading to excessive fertilizer
application; and 3) it is in the best economic interest for farmers with more
than 100 animal units to conduct manure planning activities so that manure can
be more accurately accounted for in nutrient budgets.
Response to
concerns that manure application is regulated and commercial fertilizer
application is not.
The
question was raised several times during the hearings “Why have different laws
for manure and
commercial fertilizer?” Numerous differences exist between manure and
commercial fertilizer that warrant varying levels of regulatory
requirements. These differences are
highlighted below.
Manure
has bacteria, viruses, and other human and animal disease-causing organisms
(pathogens) which are not present in commercial fertilizer. While verifiable human-disease outbreaks
from manure pathogens are uncommon in the United States, there are more than 40
diseases that can be transferred from animal manure to humans, and still others
that can be transferred to other livestock.
In addition, manure contains high levels of organic materials that, if
transported to receiving waters, can result in decreasing water oxygen
levels.
Phosphorus
is found in both commercial fertilizers and manure, and phosphorus runoff from
both sources can cause surface-water problems.
However, in manure, phosphorus and nitrogen are inseparable -- whereas
the amount of these nutrients can be ordered individually for commercial
fertilizer.
Over-application
of phosphorus can and does occur with both manure and commercial fertilizer
sources. A heightened concern with
manure-application is that rates based on nitrogen needs often result in
phosphorus-application amounts that are commonly two to six times the crop’s
phosphorus needs. Continuous manure
application at these rates can result in phosphorus accumulation in the soil,
leading to greater transport of phosphorus to surface waters. One pound of phosphorus added to a lake can
grow roughly 500 pounds of weeds and algae.
Manure
is frequently applied during winter months, while commercial fertilizer is
rarely applied during this time. Winter
application poses greater potential water-quality risks since: 1) injection or
incorporation is usually not possible; 2) runoff potential increases due to
restricted soil infiltration; and 3) buffer vegetation is dormant and is less
effective in reducing pollutants in runoff.
Manure
is increasingly being sold to non-livestock producers as a valuable soil
amendment. However, a majority of
manure generated in Minnesota is not sold, but is applied onto land that is
owned or rented by the livestock producer.
Manure is usually not purchased and it often costs more to spread it at
a lower rate. Therefore, there can be
less incentive for judicious manure application compared to inorganic
commercial fertilizer, which is purchased.
In addition, the cost of applying manure properly is greater than the
cost of applying commercial fertilizer.
There
are several additional complexities related to applying manure at proper rates
compared to commercial fertilizer.
While these complexities can be reasonably managed, they can create more
obstacles or resistance for applying manure at proper rates. These complexities include: 1) highly
variable manure-nutrient content needs to be tested; 2) the equipment for
manure application makes uniform spreading and knowledge of spreading rates
difficult when compared to commercial fertilizer; 3) field calibration of
manure application equipment is very important; 4) plant-available nitrogen
from manure is released over a two-year period, requiring careful recordkeeping
for proper nitrogen crediting from previous years, and 5) application methods
and weather have greater effect on the availability of nitrogen from manure
compared to commercial fertilizer.
These challenges often create greater farmer uncertainty that nitrogen
from manure will be available for the crop, and consequently often lead to
over-application of nitrogen.
Studies
completed in 1993 and 1994 by the Minnesota Department of Agriculture and
University of Minnesota examined nitrogen rates applied to crops in four
different areas of Minnesota, including west central, south central, southeast
and central parts of the state. Results
showed that nitrogen rates exceeded University recommended rates by an average
of 44 lbs/acre/year. In all four
regions, producers applied nitrogen at rates close to University
recommendations when commercial fertilizer was the sole added source of
nitrogen. When legumes and/or manure
were added as nitrogen sources, average total nitrogen available for the crops
greatly exceeded University recommendations for crop uptake.
7020.2225 Subpart 1, item D
Robert
Mensch and Alan Larsen, in their dated February 14, 2000, suggested on page 5
that when manure is sold, the threshold for requiring a manure management plan
of the buyer should be determined by the amount of manure not the number of
animal units at the farm where the manure was generated. Mensch and Larsen also suggested that the
person buying the manure should be responsible for manure testing because
nitrogen levels may change during storage and transport.
As
is described in the SONAR on page 201, an animal unit threshold was chosen so
that manure is managed in a consistent manner when originating from the same
size feedlot operation, independent of whether or not the manure is sold, given
away or applied to land owned or rented by the livestock producer. To maintain consistency in thresholds
triggering the need for manure management plans, the proposed threshold in
subpart 1, item D is based on animal units rather than amount of manure.
The
MPCA is continuing to review whether the 100 animal unit threshold proposed in
part 7020.2225, subp. 1, item D, should be increased to be consistent to other
proposed changes to animal unit threshold for writing manure management
plans. The MPCA may propose a rule
change in its March 13 final response document.
The
manure may need to be retested by the buyer or receiver of the manure to
determine whether nitrogen has been lost if the manure has been stored for a
long period of time. If it is likely
that nitrogen is lost during storage, it is in the best interest of the
purchaser of the manure to retest the manure so that the producer knows whether
or not a higher rate of application is needed.
This is an agronomic and economic decision, since application at the
lower rate (assuming little nitrogen loss and no retesting) would not have
negative environmental consequences. It
is reasonable to require the livestock farmer who generated the manure to test
the manure, since nitrogen content will only change significantly if the manure
is stored for a long period of time.
Subpart 2. Manure testing requirements.
At the public hearings Messrs. Langehaug, Aufforth, Vander-Ceil, Busman, Frazeur, Mard, Marti and Ulstad expressed concerns about the manure testing requirements in the proposed rules. Their concerns fall into three categories: the manure samples are highly variable within the manure storage area; the nutrients from manure are accounted for by soil tests; and the costs of testing.
The
MPCA's SONAR Exhibit L-8 deals with two of these concerns. Schmitt (1999) states that “the most
reliable and economic way to accurately determine the nutrient content of a
particular farm’s manure is to have it analyzed by a laboratory". The testing eliminates the numerous
approximations made by using tables.
Most soil testing laboratories do manure testing for a nominal
charge. SONAR states that the charge
averages about $25 per sample.
The
issue of variability of nutrients is addressed in the SONAR Exhibit L-6. Extreme variability in manure nutrient
content exists between farms with similar types of livestock. The differences can result from differences
in feed types, water volumes used in the barn, length of storage, feed and
water management, precipitation or open lot runoff additions, and other
factors. Without testing the manure for
nutrient content at each storage area, it is very possible to over-estimate or
underestimate nutrient content by over 100 percent.
The rules reference the procedures by the University
of Minnesota for taking a representative sample (See SONAR Exhibit L-6). The recommended practice is to take a number
of samples from each manure storage or handling system. Samples should be taken
over time and close to the time of use.
Having a history of nutrient content will provide a basis for putting
any individual sample in context. By
following the University recommendations, manure sampling and testing will
result in much greater accuracy of manure nutrient crediting than relying
completely on book values.
Taking
a manure sample is not difficult. Solid
or dry manure (less than 50 percent moisture) samples can usually be collected
and handled in the containers provided by the laboratories that analyze samples
or in small plastic “twist –tie” or “ziplock “ freezer bags. Liquid manure samples are equally easy to
obtain. A representative sample can be
taken when the liquid spreader is loaded and ready for applying.
A
few commenters assert that manure testing is redundant because soil tests
include the nutrients supplied by manure.
Soil testing is not and never should be considered a substitute for
manure testing. Instead soil testing
and manure testing are complements for a complete manure management plan. Soil testing provides information about
accumulation of nutrients from historical application practices. Manure nutrient testing provides information
about the nutrient additions to be applied on top of historical nutrient
accumulations.
Farm
advisors and extension personnel now recommend that the phosphorus (P) content
of both manure and soil be determined by soil testing laboratories before land
application of manure. This is
important because there is a tendency among farmers to underestimate the
nutritive value of manure. Thus manure
analyses are a constructive educational tool showing farmers that manure
represents a valuable source of P.
Manure analyses, in combination with soil testing, can also demonstrate
the positive and negative long-term effects of manure use and the time required
to build-up or deplete soil nutrients.
For instance, soil analyses can help a farmer identify the soils in need
of P fertilization, those containing excess P that should not receive manure,
and those where moderate manure applications may be of some value (SONAR
Exhibit L-5). The SONAR Exhibit L-12
reinforces the need for soil tests and manure tests as they apply to nitrogen.
Schmitt
et. al. (Attachment 19) conducted a
study that found only 20 percent of the respondents test manure for its
nutrient content in the past five years.
Schmitt et. al. (1996)
acknowledged that “while average analysis values from tables are often used in
calculating the rate of manure to be applied, these values often varied several
fold from actual nutrient analysis."
Manure sampling and analysis is the recommended method of obtaining the
nutrient data to use in rate applications.
The
Schmitt study also showed that there was a significant interaction between farm
size and whether a manure analysis was performed. Only eight percent of small farms (averaging 99 animal units), 15
percent of medium size farms (averaging 209 animal units) and 41 percent of
large farms (averaging 647 animal units) had a manure analysis conducted. Not only were more of the large farm owners
testing their manure, but also the testing was more than a one-time event. Those testing their manure more than once in
the past five years increased from 4 percent to 5 percent to 19 percent for the
small, medium and large farms, respectively.
7020.2225 Subpart 3, item A,
subitems (1) and (2)
Commenters
at the public hearings, including Steve Commerford and Dan Schmitz in New Ulm
and Wayne Erickson and Phil Bergstrom in Willlmar, expressed concern about
requiring the use of the most recent University of Minnesota recommendations as
a basis for determining maximum manure-nitrogen application rates. The two general concerns which were
highlighted include: 1) University recommendations are not and can not be set
for all site and soil conditions in the state and farmers may suffer yield
losses by having to follow University of Minnesota recommendations, and 2)
University of Minnesota recommendations differ from those in other states.
The
SONAR addresses Subpart 3 A (1) on page 206.
The University of Minnesota recommendations are included as exhibits to
the SONAR Exhibits L-7 and L-8.
University
of Minnesota crop nutrient recommendations are based on several hundred
site-years of data researched for more than 30 years throughout the state at
both experiment stations and farmer fields. Much of this research has been
conducted in the 1990s. After reviewing
all of the research for these soils, the University of Minnesota uses a
statistical approach to define nitrogen additions needed to meet the specific
crop yield goal set by the producer.
The University of Minnesota recommendations are set to maximize economic
gain to the farmer and provide enough nitrogen to avoid limiting crop growth
under most environmental conditions.
The nitrogen fertilization recommendations from the University of
Minnesota will result in very similar recommendations as from neighboring Land
Grant Universities (less than 20 percent differences between states).
The
University of Minnesota has conducted research to determine how much nitrogen
from manure will become available for crops when manure is applied under
various soil, tillage and manure spreading conditions. While this research is continuing, results
in recent years have confirmed the validity of recommendations established in
University of Minnesota Extension Guidelines for Manure Management in Minnesota
(SONAR Exhibit L-8).
The
MPCA has confidence in the economic and agronomic integrity of University of
Minnesota recommendations. However, the
MPCA recognizes that there are some limited types of situations where producers
may need to deviate from University of Minnesota recommendations in order to
achieve the desired yield and maximize economic gain. The proposed rules allow for producer flexibility to achieve
their economically beneficial yield in three important ways: 1) allowing
producers freedom to select their own yield goal; 2) allowing producers the
freedom to deviate from University of Minnesota recommendations by 20 percent
as warranted by site-specific conditions; and 3) allowing producers to exceed
the 20 percent deviation if nitrogen deficiencies are evident.
Since
the University of Minnesota recommendations for nutrient rates vary greatly
with the desired yield goal, and since producers choose their own yield goal,
producers Therefore, the producer maintains a tremendous degree of flexibility
in determining their fertilization rates.
Also, in accordance with Minn. R. 7020.2225, subp. 3, item A, subitem
(3), nitrogen fertilization can exceed University of Minnesota rates by up to
20 percent when warranted by site nutrient management history, soil conditions,
or cool weather. In accordance with
part 7020.2225, subp. 3, item A, subitem (3), nitrogen applications can be
increased even beyond the 20 percent exceedance when crop nitrogen deficiencies
are visible or measured.
Reference
to University of Minnesota recommendations is important to provide a standard
basis for evaluating needed nutrient additions and to maintain a greater degree
of clarity, credibility and enforceability.
Also, in the event that future refinements to University of Minnesota
guideline result in lower fertilizer recommendations, the flexibility exists in
the rule will allow producers to continue application at the higher rate, if
needed, while remaining in compliance with the rule. This can be accomplished through decisions about yield goals and
by demonstrating need for the higher rate through records of site nutrient
management history.
7020.2225, Subpart 3, item
A, subitem (3)
A commenter during the Lewiston hearing questioned
whether the rules would require people to take third year nitrogen credits for
manure application. The intent of the
rules was to only require second year nitrogen credits for manure. Line 13 on page 65 will therefore be changed
to read “current year and the preceding year” instead of “current year and the
previous years.”
In a March 1, 2000, phone conversation with Steve
Jann of the U.S. Environmental Protection Agency, Mr. Jann recommended that
biosolids be added as a potential source of nitrogen to be considered in the
nitrogen budget in Minn. R. 7020.2225, subp. 3, item A, subitem (3). The agency believes that it is needed and
reasonable to consider all major sources of nitrogen in this subitem. Since biosolids can be a significant source
of nitrogen on some fields, the agency proposes to add the word biosolids to
the list of nitrogen sources in Minn. R. 7020.2225, subp. 3, item A, subitem (3).
7020.2225,
Subparts 4 and 5
Several commenters suggested that the animal unit
threshold for requiring manure management plans and recordkeeping be increased
to a number such as 300 animal units.
The agency recognizes that there are several reasons
for not requiring manure management plans for smaller operations. These reasons are based both on
environmental need and on practicality.
Based on information from MPCA permitting databases and Minnesota
Agricultural Statistics, it has been estimated that over 60 percent of all
manure being spread onto cropland is from operations with over 300 animal
units. Therefore, while farms with
fewer than 300 animal units represent a large fraction of feedlots, more than
half of total manure generation and application in this state is from feedlots
with more than 300 animal units.
It is also recognized that there is limited
technical assistance in the state to help write comprehensive manure management
plans. If the fewer than 100 animal
unit category were included in these provisions of the rule, the technical
assistance and laboratories would likely be overwhelmed due to the large number
of feedlots of this size.
The Land Application of Manure Task Force discussed
what a reasonable animal unit threshold would be for requiring manure
management plans (as described in the SONAR pages 211 to 212). Originally the task force chose 50 animal
units as a reasonable threshold. This
number was later increased to 100 animal units.
The amount of land needed to
apply manure from 100 animal units at nitrogen based rates is typically in the
range of 40 to 100 acres. The amount of
land needed to apply manure from 300 animal units at nitrogen based rates is
typically in the range of 120 to 300 acres.
Ground water and surface water impacts can be significant from
misapplication of manure onto these large tracts of land.
The required plans, records
and testing at operations over 100 animal units can be completed at relatively
little cost to the producer. The only
necessary costs are related to soil and manure nutrient testing. These costs should average less than $150
per year for a 100 animal unit operation if the soil and manure samples are taken
by the producer. Manure testing is
required at a minimum of once every four years after the initial three years of
testing, and soil phosphorus sampling needs are at a minimum of once every four
years. Improved yields or lower
commercial fertilizer costs resulting may offset this cost. The manure management plans and
recordkeeping systems will be much simpler for smaller operations and can be
developed by the producer. Costs will
increase to $2 to $6 per acre if producers decide to hire an independent crop
consultant to complete the plans, records and testing requirements.
Because the costs to follow these rules are
relatively low, and the information is important to make decisions leading to
safe manure application, it is reasonable to set a 100 animal unit threshold
for some degree of manure management planning and record keeping. However, based on the following
considerations, the agency proposes to reduce the level of required planning
and recordkeeping for feedlot operations with between 100 and 299 animal units:
1.
Reducing
the level of planning and record keeping for this size category will result in
a greater percentage of producers who will develop their own plans and record
keeping without the need for off-farm assistance. This will decrease the economic impacts on farmers with less than
300 animal units, and provide greater assurance that the needed technical
assistance will be available for the
larger feedlots;
2.
Manure
applied from operations with between 100 and 299 animal units represents less
than approximately 30 percent of manure applied in the state. In addition, manure applied from individual
feedlots with less than 300 animal units represents less potential
environmental threat than feedlots with more than 299 animal units, all other
things being equal. This is due to the
lesser amount of manure spread on the farms with less livestock.
The agency proposes to
require the following five elements in a manure management plan when the
feedlot has between 100 and 299 animal units and the operation is not
applying manure in a drinking water supply management area where the aquifer is
vulnerable in accordance with Minn. R. chapter 4720. These five elements would replace the 14 elements required under
Minn. R. 7020.2225, subp. 4, item D.
Due to time constraints, the agency does not have the final language
worked out in detail, but will submit the actual new language for the following
provisions in its March 13 final response document.
1)
Expected
amount of manure and manure nitrogen and phosphorus to be land applied;
2)
Manure
handling and application techniques;
3)
Acreage
available for manure application, including maps or aerial photos showing field
locations used for manure application and areas within these fields which can
not be used for manure application;
4)
Identification
of manure application sites where water quality protection measures are
required in accordance with Minn. R. 7020.2225 subp. 6, subp. 7 and subp. 8;
5)
Intended
manure application rates that meet the requirements in Minn. R. 7020.2225,
subp. 1, subp. 3 and subp. 6.
Operations
applying manure in drinking water supply management areas where the aquifer is
vulnerable to contamination must maintain the level of planning as is proposed
in the 14 subitems under Minn. R. 7020.2225, subp. 4, item D.
The agency also proposes to
reduce the record keeping requirements in Minn. R.7020.2225, subp. 5, item B
for operations with between 100 and 299 animal units that are not
applying manure in a drinking water supply management area where the aquifer is
vulnerable in accordance with Minn. R. chapter 4720. The recordkeeping requirement would replace the eight elements in
Minn. R. 7020.2225, subp. 5, item B, and the language will be included in the March
13 final response document.
Subpart
4 and Subpart 5 requirements for feedlots with 300 AU or more would remain the
same. Best management practices for all
feedlot operations would continue to be promoted.
7020.2225,
Subpart 4, item A
The deadlines for meeting subpart 4, item A were
questioned, especially since the draft Environmental Protection Agency
guidelines has a longer timeframe for completion of Comprehensive Nutrient
Management Plans at “Confined Animal Feeding Operations.”
The SONAR (pages 212 and 213) describes the reasons
for the various deadlines originally proposed for completion of manure
management plans. These timeframes were
established by the 25 member Land Application of Manure Task Force and later
approved by FMMAC as being a reasonable timeframe for completion of the
plans.
Education and training to producers, consultants and
agencies about available tools, techniques and information useful to develop
manure management plans will be important to complete the plans.
The agency proposes to extend the deadlines for
completion of the manure management plans in subpart 4, item A, subitem (2) to
"2005" and the language will be shown in the March 13 final response
document. This change will bring
greater simplicity to the various timelines in the rules, and will allow for a
greater period of time to develop and instruct people on the tools and
resources for development of manure management plans.
The issue of differences between Federal and State
requirements is addressed in reference to the following concern in Minn. R.
7020.2225, subp. 4, item D.
The agency proposes to add “interim permits” to the
list of permit types in subpart 4, item A, subitem (1), which triggers the need
for development of a manure management plan. Again, the final citation and
language will be shown in the agency's March 13 final response document. This is needed so that all permit types for
feedlots with over 299 animal units consistently require manure management
plans. In addition, in many occasions,
the manure management plan is needed as an integral part of implementing the
corrective and protective measures to prevent or eliminate the pollution
hazard.
7020.2225,
Subpart 4, item D
The U.S. Environmental Protection Agency (EPA) has
drafted a “Guidance Manual and Example NPDES Permit for Concentrated Animal
Feeding Operations.” Based on draft
recommendations, it appears that EPA will require all feedlots determined to be
Concentrated Animal Feeding Operations (CAFOs) to develop and implement a Comprehensive
Nutrient Management Plan (CNMP) as a permit requirement. The requirements of the manure application
components of a CNMP in the draft guidance are very similar to requirements in
a manure management plan in subpart 4, item D.
The primary differences between the proposed
requirements in subpart 4, item D. and subpart 5 and Federal requirements in a
CNMP include:
1.
The
CNMP more comprehensively describes all aspects of potential pollution from the
farm; whereas the manure management plan in subpart 4, item D. primarily deals
with issues pertaining to manure application.
For example, a CNMP considers dead animal disposal, disposal of animal
medical wastes, silage leachates, spills and catastrophic events.
2.
Recordkeeping
in a CNMP is slightly more comprehensive than records required in subpart
5. For example, records must be kept
for a CNMP of weather conditions during nutrient application and crop harvest
dates.
3.
Feed
management activities are considered in a CNMP but they are not required under
Minn. R. 7020.2225, subp. 4.
4.
Only
individuals who have been certified by a USDA-approved certifying organization
can develop CNMPs. The proposed rules
,Chapter 7020, do not specify who is qualified to develop a manure management
plan.
The manure management plan as required in Minn. R.
7020.2225, subp. 4 will be a major component of a CNMP, but will only represent
a part of the CNMP. The elements
required (in NPDES permits) for a CNMP which are not required as part of a
manure management plan in the proposed revisions to Chapter 7020, can be added as
permit conditions in NPDES permits.
Please see the proposed change to Minn. R. 7020.0505, subp. 4, item B(2)
expanding the coverage of the pollution prevention plan to cover other
applicable BMPs to address CNMP components.
In the February 2, 2000 letter from Patricia
Bloomgren, the Minnesota Department of Health recommended that the rules
include a provision requiring that manure management plans be made available
upon request to water suppliers in a wellhead protection area (page 7-8).
The proposed rules part 7020.2225, subp. 4, item B,
subitem (4) require a manure management plan to be submitted when requested by
the MPCA or county feedlot officer. If
a public water supplier wishes to review the manure management plan, they can
contact the MPCA or delegated county authority to request submittal of the
plan. Therefore, an additional
provision to have direct submittal of plans to public water suppliers is not
needed. By working through the MPCA or
county feedlot officer, the state or county feedlot regulatory organization can
maintain knowledge of the concern and be more directly involved to assist the
water supplier in reviewing the manure management plan.
In the February 2, 2000 letter from Patricia
Bloomgren, the Minnesota Department of Health recommended on page 8 that the
manure management plans require the timing of manure application in a drinking
water supply management area is based on the most recent Minnesota Extension
Service Publications.
Current University of Minnesota recommendations,
concerning the timing of manure application, are described in the SONAR Exhibit
L-8. These guidelines point out some of
the concerns about mandating specific timing of manure application. The guidelines state “Many times the
logistics of the livestock operations, with their unique handling systems,
etc., determine when the manure must be applied to the soil.” The guidelines conclude that “Time of manure
application has a large bearing on the nitrogen transformations that occur in
soil. However, these transformations
generally have offsetting effects.” The only clear timing recommendation
regarding protection of ground water is a statement which reads “Fall
applications of manure should be avoided on coarser-textured soils where
leaching can be a threat to the environmental quality of the region.”
To address the issue of manure application timing in
wellhead protection areas, the agency proposes to add a provision into
part7020.2225, subp. 4, item D(9) to require that the manure management plan
describe protective measures to minimize risk of ground water contamination
when manure is to be applied to land within a drinking water supply management
area and the aquifer is vulnerable to contamination as defined under Minn. R.
chapter 4720. The timing of application
is already proposed as one type of measure to minimize risk in part 7020.2225,
subp. 4, item D(9). The actual rule
language will be submitted in the agency's March 13 final response document.
In the February 2, 2000 letter from Patricia
Bloomgren, the Minnesota Department of Health recommended that a provision be
added to subpart 4 stating that the public water supplier be notified at least
30 days prior to manure application when the land is a) within a drinking water
supply management area where the aquifer is vulnerable, and b) the land has not
been specified in an approved feedlot permit.
The provisions in part 7020.2225 and the proposed
revisions within part 7020.2225 have been established to protect water
quality. The agency does not believe
that the 30-day advance notice of public water suppliers is needed to protect
ground water resources.
In the February 2, 2000 letter from Patricia
Bloomgren, the Minesota Department of Health recommended that a provision be
added to subpart 4 requiring quarterly monitoring of surface waters be
conducted in areas where nitrate and pathogens from surface waters could
migrate to public water supply wells.
The agency has several concerns about requiring
producers to conduct regular monitoring of surface waters or tile line
discharges. Some surface water
monitoring results can be misleading if not done in the proper context or using
the proper protocols. Nitrate and
bacteria can originate from multiple sources and multiple fields. In order to confirm that surface water
impacts are resulting from specific land practices, a very intensive monitoring
effort may be needed. This effort
should include analysis of multiple chemical parameters, high frequency sampling
and storm event sampling, and sampling at a large number of sites. Even with such intensive and costly
monitoring, showing cause and effect may be inconclusive.
The agency retains authority through broader
statutes and rules to require monitoring on a case by case basis when considered
necessary to ensure that water quality is being protected. The proposed revision is not needed in areas
where nitrate and bacteria levels are not elevated. The proposed revision is not needed in order for the MPCA to
require monitoring at problematic sites.
And the proposed revision is not reasonable due to the high costs to
obtain meaningful results.
7020.2225,
Subpart 4 item D, subitem (9)
Duane Bakke and Arlo Habben commented at the
Lewiston hearing on February 7, 2000, that it is unreasonable to expect farmers
to avoid application of manure to areas with less than 3 feet of soil above
limestone bedrock.
The agency believes that consideration of shallow
soils above bedrock is both needed and reasonable as part of a comprehensive
manure management plan. Manure, which
is applied to shallow soils above fractured limestone bedrock, can potentially
result in pathogen transport to ground water, especially when manure is
injected into the soil. The proposed
rules do not prohibit application onto soils with less than 3 feet above
fractured bedrock. Instead, the rules
require producers to identify these geologically sensitive lands and describe
protective measures to minimize the risk of contaminating water supplies when
applying manure in these areas. County
soil surveys indicate the depth to bedrock for each soil type and can be used
as a tool to identify lands with less than 3 feet above shallow bedrock. Where such soils are known, producers may
choose to avoid manure application onto these soils. An alternative practice would be to surface apply manure in these
zones and allow for solar radiation and heat to kill pathogens before they are
transported to ground water. Other
manure handling measures may also provide equal protection to ground water.
With the agency proposed changes noted earlier, this
requirement would only apply to operations with 300 or more animal units except
that facilities between 100 and 299 animal units in drinking water supply
management areas where the aquifer is vulnerable would still need to address
this issue in the plan.
7020.2225,
Subpart 4, item D, subitem (12) and Subpart 4, item B, (2) and (3)
Dan Schmitz (New Ulm hearing) and Dale Glanzer
(Alexandria hearing) questioned the intent of the agency to regulate soils that
have soil phosphorus levels exceeding thresholds referred to in Minn. R.
7020.2225, subp. 4, item B, subitems (2) and (3), and item D, subitem
(12).
The intent, need and reasonableness of these
provisions, is described in the SONAR pages 214, 215 and 221. The general need for phosphorus restrictions
in high phosphorus soils is described in the SONAR pages 207 to 210 and in
Exhibits A-1, L-2, L-5, L-9, L-10, L-11, L-17 and L-18. A January-February 2000 article by
Sharpley, Foy and Withers in the Journal
of Evironmental Quality confirms the conclusions in the SONAR by stating
“there is now a significant body of evidence to suggest that: (a) phosphorus
from agricultural sources can represent a significant input to fresh water and
(b) the increase in phosphorus concentrations in agricultural drainage water
over time reflects the accumulation of phosphorus in soils” (see Attachment
20). The accumulation of phosphorus in
soils can result from continued application of manure.
The agency has set soil phosphorus trigger levels
prompting further review of the site-specific situations and the producer’s
plans for protecting water quality when applying manure to soils with extremely
high phosphorus levels. Many variables
affect phosphorus transport and phosphorus transport research is continually
evolving. It is clear that at very high
soil phosphorus levels, phosphorus is more easily desorbed and can enter runoff
waters at relatively high concentrations.
In addition, at extremely high levels, phosphorus can potentially move
vertically in the soil into tile drainage waters and ultimately end up in
streams and reservoirs.
When soil phosphorus reaches the levels stated in
Minn. R. 7020.2225, subp. 4, item B, subitems (2) and (3), experts from the
University of Minnesota agreed (see SONAR, page 210) that it was important to
review site specific variables to make sure that additional manure application
would not cause pollution of waters of the state and consequently violate Minn.
R. 7020.2225, subp. 1, item A, subitem 2.
The U.S. Department of Agriculture has developed a phosphorus index for
evaluating site-specific risks of phosphorus transport (see Phosphorus Index,
draft 12/31/99.) Attachment 13. This index can be used by state or county
officials to evaluate the potential for polluting waters of the state at
individual manure application sites.
Continued manure application on fields with excessively high phosphorus
would be prohibited if it is determined that the site specific practices and
conditions would lead to water pollution.
If the phosphorus index indicates lower risk for continued manure
application at reviewed sites, then manure application would be allowed.
7020.2225,
Subpart 4, Item D, subitem (14)
In his letter dated February 13, 2000, Mr.Zenas Baer
states on page 10 that the cost of preparing a cover crop is $7 to $10 per acre
and he expressed concern about cost of planting and maintaining a cover
crop.
The proposed rules only require a cover crop if
manure is to be applied to fields without actively growing crops in the months
of June, July and August. This is
needed to prevent excessive nitrate leaching to ground water. The proposal is reasonable since the costs
of a cover crop can be avoided by applying to actively growing vegetation or
avoiding application in June, July and August.
An additional consideration in the economics of cover crops is that they
have a secondary benefit of preventing erosion, thereby benefiting the
productivity of the farmer’s soils and offsetting some of the costs to
establish the cover crop. Please note
that in accordance with agency proposed revisions to part 7020.2225, subp. 4,
item D, this provision would only be required for operations with 300 or more
animal units with the exception of small facilities of 100 to 299 animal units
in drinking water supply management areas with vulnerable aquifers.
During
the administrative hearings, many feedlot operators objected to the
recordkeeping requirements. The reasons
for objecting to the record keeping were primarily related to the investment of
time needed to keep the records; the concern about making specific management
decisions on their farm available to the public; and the concern that records
are a form of regulation that could be used for self-incrimination in the
future.
Recordkeeping
is considered a best management practice in many states’ nutrient management
planning. Recordkeeping is an essential
element of nutrient crediting. In order
to realize any potential nutrient credits records are necessary. As the Minnesota FANMAP studies have shown,
the over application of nutrients is primarily due to not taking enough
nutrient credits from manure additions and legume nitrogen. Recordkeeping is
also an integral part of EPA's CNMPs.
The reasons for requiring recordkeeping are stated
in the SONAR on page 223. Please note
the earlier discussion in this report on the animal unit threshold and the
proposed revision to the record keeping requirements for feedlot operations
with 100 to 299 animal units. The
agency also proposes to reduce the recordkeeping requirements in part
7020.2225, subp. 5, item B for operations with between 100 and 299 animal units
that are not applying manure in a drinking water supply management area
where the aquifer is vulnerable in accordance with Minn. R. chapter 4720. The recordkeeping requirement would replace
the eight elements in part 7020.2225, subp. 5, item B for operations with 100
to 299 animal units. The actual rule language
will be incorporated into the agency's March 13 final response document. This revision will address most of the
concerns expressed at the hearings, yet maintain recordkeeping of the most
critical information needed for crediting manure nutrients and subsequently
only applying the needed amount of commercial fertilizer.
To
remain consistent with this change corresponding changes are proposed for
transferred manure, so that the record keeping requirements for receivers of
transferred manure are equal to those of operations where manure is not being
transferred. Therefore, the agency proposes to modify part 7020.2225, subp. 5,
item C, accordingly and will show the new language in the March 13 final
response document.
7020.2225,
Subpart 6 Manure Application Requirements in Special Protection Areas.
At the February 3, 2000, New Ulm hearing, Mr.
Commerford questioned the basis for selecting 300 feet to represent the
distance from waters where special protection measures are required for land
application of manure.
Given the wide range of soil and landscape
variations across the state there is no one number that science points to for
all scenarios. However, to make the
rules easier to understand, communicate and follow, specific numbers were
chosen. The 300-foot distance was
selected to be the distance chosen for special protection areas for reasons of
science, convention and simplicity.
To assist in evaluating the most reasonable distance
to use for special protection areas, the agency reviewed research papers
regarding contaminant removal and treatment as agricultural runoff flows over
land. Much of the literature on
treatment of overland runoff is on the use of grassed vegetated buffers. The agency recognized that grassed buffers
can be an effective treatment system and that additional distance would be
needed when considering treatment of overland flow when there is no permanent
vegetated buffer.
The research on vegetated buffers indicates that
between 10 and 675 feet of vegetation will act to significantly reduce
contaminant concentrations in runoff from fields, depending on numerous
variables (see SONAR Exhibit L-2). Most
studies, however, indicated that vegetated buffers should be a minimum of 50 to
100 feet wide to significantly treat field runoff. Therefore, the proposed rules (subpart 6, item B) are less
restrictive when a 50 to 100 foot wide vegetated buffer is maintained along the
water or waterway.
Because cropland will not usually treat contaminated
runoff as well as vegetated-buffer areas, a 50 to 100-foot wide area is not
reasonable to provide adequate distance as the boundary for a special
protection area. One study concluded
that 118 feet was determined to be adequate to reduce runoff concentrations by
97 percent when solid manure was applied on a 79-foot strip of land with a 4
percent slope (Thompson et al., 1978, referred to in the SONAR Exhibit
L-2). Many fields have slopes, which
exceed those studied by Thompson et al.
Also the strip of land with applied manure was only 79 feet in the
Thompson et al study and a greater treatment area distance will be needed for
most actual field conditions. It is
clear from this work that significant treatment and dilution of contaminants
can occur as manure contaminated runoff moves across cropland. Based on scientific findings described in
the SONAR Exhibit L-2, pages 21 to 22 and 28 to 32, it is reasonable to use
some distance between 200 to 400 feet as the special protection area zone.
Three hundred feet is within the range generally
supported by science, and was selected in the draft rules because it is a
common distance used for environmental purposes in the agricultural
community. Three hundred feet is used
by the MDNR to define shoreland areas around streams. Three hundred feet is a distance, which the Natural Resources
Conservation Service uses in certain erosion control evaluations. Three hundred feet is also used in Minn. R.
7040.1805, subp. 5 surface water for water body setbacks related to sewage
sludge application on to medium and fine-grained soils.
The proposed rules specify
that manure can not be applied in such a manner that will cause pollution of
waters of the state due to manure contaminated runoff. In some cases, added protection measures
will be needed beyond 300 feet or additional BMPs may be needed within the
300-foot area to avoid pollution. In
most areas, 300 feet is considered a needed and reasonable distance for
implementation of the measures in subpart 6.
The Minnesota State Cattlemen's Association and
also its affiliates offered comments expressing concern with the special
protection area defined in part 7020.0300, subp. 23. In particular, the Association argued the 300-foot distance from
the specified waters was too great a distance and that it was an unwarranted
restriction on the use of private property.
The justification for the 300-foot distance is discussed further
above. However, the important issue to
reiterate is that the special protection area itself is not used to restrict
the use of the land within that area; the restrictions imposed within those
areas relate only to the application and disposal of manure as specified in
various subparts of Minn. R. 7020.2225.
The Association argues that MPCA's special
protection area would impose severe restrictions if that MPCA-proposed 300-foot
distance is added on to an MDNR-classified area for MDNR protected waters and
wetlands. The Association's comment did
not give detail on the basis for this concern but it appears the Association's
comment is based on a mistaken belief that the MPCA rule (300-foot distance) is
applied from some other setback allegedly imposed by MDNR. In fact, the proposed 300-foot distance is
based solely on the ordinary high water level (e.g. the boundary) of the
designated protected waters or protected wetland. See part 7020.0300, subp. 23, item A; SONAR, p. 78. The MPCA's 300-foot distance is not
dependent upon or keyed to any MDNR shoreland protection zone that may be
independently created under MDNR shoreland management rules or local
ordinances. Consequently, the MPCA
300-foot distance would not be "additive" to other special protected
areas or setbacks imposed by MDNR or other local governments.
The use of the MPCA special protection area
(SPA) is intended as a basis in part 7020.2225 to require additional management
provisions if manure is land applied within that area. Those management provisions include a
prohibition on the disposal of manure on frozen soils within the SPA to avoid
runoff during spring melt and that manure cannot be applied within 25 feet of
the protected waters or protected wetland.
See part 7020.2225, subp. 6. The
management provisions are reasonable regulations of manure disposal practices
that are designed to protect the environment and public health in areas that
can or may cause water pollution due to the area's proximity to valued
waters. The manure management
provisions do not destroy the producers' ability to use the land for such
things as crop production; thus, the property owner is not denied all
economically beneficial uses of the property within the SPA.
Several commenters at the hearings questioned the
need for regulations to protect contamination from manure in runoff in light of
recent research by Hansen in Morris, Minnesota, showing that manure decreases
risks to surface water quality.
Research outcomes depend very much on site-specific
weather conditions at the time of research.
The outcomes and conclusions also depend on the topography, ground
cover, region of the country, research design, length of study and tillage and
soil management practices. Therefore,
where at all possible it is best to rely on numerous research articles. Yet some research is so well designed and
conducted over a lengthy periods that we can place a lot of weight on that
study. The land application rules were
based on a review of over 100 research papers, most of which were conducted
over a several year period (see SONAR Exhibit L-2).
Following the hearings, MPCA staff contacted Neil C.
Hansen (West Central Experiment Station) to inquire about his research referred
to by commenters. Dr. Hansen sent
unpublished information (Attachment 21) about the results of the first year of
work on a three to five year study. The
results indicate that total phosphorus loading in runoff was the same when
applying 0, 2000 and 4000 gallons of hog manure per acre. Total runoff and
total phosphorus transport was lowest with a rate of 8000 gallons per acre in
this one year of study.
An earlier study in Morris, Minnesota by Ginting et
al (1994) referred to in the SONAR Exhibit L-2 concluded that application of
solid beef manure improved soil properties resulting in less runoff volume,
sediment and total phosphorus losses.
The second author for this study, Dr. John Moncrief (University of
Minnesota) presented an update of this research to the Land Application of
Manure Task Force. Dr. Moncrief
concluded that while manure resulted in less sediment transport and
consequently less total phosphorus transport, the type of phosphorus in runoff
that is available for algae growth, was the same or higher on the plots with
manure.
These studies suggest that manure can reduce runoff,
erosion and sediment adsorbed phosphorus.
However, the results of these studies are not in conflict with the rules
proposed in Minn. R. 7020.2225. The
soil phosphorus testing at the Morris plots showed phosphorus levels of 8 to 12
ppm. The agency is not proposing any
phosphorus restrictions for application of manure to land with less than 16-21
ppm, even in special protection areas.
The agency's proposed rules still allow for manure application in
special protection areas, even when soil phosphorus concentrations exceed 16-21
ppm, recognizing that there can be erosion control benefits of some manure additions
in these areas. The rules are designed
to limit continuous build-up of soil phosphorus in special protection areas
where it is already above 21 ppm. The
goal is to minimize transport of the type of phosphorus that is available to
algae where soil phosphorus is already sufficient for crop growth.
Another requirement in the proposed rules for
special protection areas is to require incorporation of manure around surface
waters. Research described in the SONAR
Exhibit L-2 (pages 20-21) clearly shows that incorporation or injection of
manure results in reduced transport of pathogens, phosphorus and biological
oxygen demand (BOD) in runoff from the fields.
The studies by Ginting et al 1994 and Hansen (underway) in have not
evaluated pathogen and BOD transport.
The provisions in subpart 6, item B are not in conflict with the Morris,
Minnesota research studies.
7020.2225,
Subparts 6 and 7
Commenters recommended that the agency approve
alternative practices around waters and open tile intakes which provide equal
or greater protection than those prescribed in subparts 6 and 7 (see
testimonies by Mark Tollefson and Stuart Frazeur).
Subpart 7 provides an option for alternative
“agency-approved water quality protection practices” to be used within 300 feet
of open tile intakes. The December 1, 1999, proposed rule does not have a
similar provision in subpart 6. It is
likely that alternative practices will be developed in the future which provide
an equal or greater degree of protection than the practices required in subpart
6 item B and subpart 7. The MPCA is
continuing to review this issue and may propose a rule change in its March 13
final response document.
IV. Miscellaneous Comments.
A. County Delegation.
County Programs under the
Current Feedlot Rules:
As
of March 3, 2000, 54 counties have been delegated authority to administer the
feedlot-permitting program by the Minnesota Pollution Control Agency. This authority is delegated pursuant to
Minnesota Statutes chapter 116.07.
Under the current MPCA feedlot rules, these counties may issue interim
permits for construction or to correct potential pollution hazards for
facilities up to 299 animal units, and Certificates of Compliance for
facilities up to 999 animal units.
Their closer location and greater familiarity with local situations
provide the counties more opportunities than the MPCA to provide regular
oversight and guidance to facility owners.
The
issuance of feedlot permits and certificates is generally coordinated with
other permits issued under the county’s zoning authority, such as conditional
use or building permits. The counties’
authorities come from their ordinances.
They use their own authorities to issue permits, conduct inspections and
help facilities with pollution problems come into compliance. The actual facility standards that are used
by the counties come, in most part, from the MPCA feedlot rule and MPCA
engineering technical guidance. State law
allows counties to have ordinance requirements for feedlots that are more stringent
than MPCA rules. Counties also use
their ordinances to establish requirements for areas not addressed in MPCA
rules, such as setbacks.
The
counties may, and some do, refer more complicated or difficult sites to the
MPCA for application review and permitting.
MPCA also works with the counties on compliance and enforcement
activities. MPCA individual staff
persons have been designated clusters of 8-9 counties for which they are
responsible. These staff are available
to assist delegated counties as needed.
They also issue the interim permits for facilities 300 animal units or
more. MPCA issues all permits for all
facilities 1000 animal units or more, interim permits for facilities 300-999
animal units in delegated counties, and all permits and certificates in
non-delegated counties. This
represents a significant paperwork burden on MPCA staff, cutting into our
ability to do inspections and work in the field with county staff and
producers.
Partial
funding for delegated county feedlot programs is provided through the Board of
Water and Soil Resource’s Natural Resource Block Grants. The counties must match all funds, generally
with in-kind services. The amount available
is based on the number of feedlots in the county. The amount per feedlot is higher when the counties have conducted
higher-level inventories to document feedlot conditions within their
jurisdiction.
Effective
county programs have shown that counties can do a good job of administering the
MPCA feedlot program. The keys to effective
administration are sufficient numbers of qualified staff, a regulatory basis
set in effective ordinances, and good communication with the MPCA. However, the Legislative Auditor's Report of January 1999, titled "Animal Feedlot
Regulation: A Program Evaluation Report", pointed out deficiencies in the
MPCA/delegated county relationship and program administration. One was that the counties were not
consistent in the rigor with which they met the MPCA standards. Some counties do an excellent job, others
are less diligent. The Auditor
recommended that additional means be instituted to ensure accountability. In addition, the Auditor recommended that
problems in consistency and understanding of the feedlot rules be addressed
through a strengthened training program to be offered by the MPCA.
MPCA Seeks to Address the
Problems:
MPCA,
in these proposed rules, is reducing the administrative burden on both its
staff and county staff. In the proposed
rules, the MPCA eliminated the issuance of certificates of compliance, which
was a duplicative step (facilities received first an interim permit to cover
them during construction or correction, and then be issued a Certificate of
Compliance when the project was complete); and replaced the vast majority of
permitting at smaller feedlots in exchange for increased inspections of these
feedlots. This shift in focus will
reduce the number of permits issued.
MPCA will offer training to the counties in many areas of the feedlot
program, beginning with training offered in conjunction with the University of
Minnesota Extension Service to develop excellent familiarity with these changes
to Minn. R. ch. 7020.
The
delegation agreement concept will be a cornerstone for the new, more
accountable relationship that will be created between MPCA and the delegated
counties. This agreement, developed
through discussion between the county and MPCA, will document the work to be
done by the county and the role to be played by the MPCA. These agreements will be renewed
annually. Annual reports will also be
required from the counties to the MPCA.
The program will also contain an audit function by the MPCA, which will
include spot inspections and record review.
Additionally, the MPCA will serve, in part, as a technical advisor for
the delegated county to ensure consistency of implementation of MPCA technical
standards.
In
his comment letter dated February 18, 2000, Mr. Ron Harnack, Executive Director
of the Board of Water and Soil Resources (BWSR), suggested that the counties
should be able to have more flexibility in setting compliance dates than the
proposed rules offered.
MPCA
does not agree with this BWSR suggestion.
The delegation agreement is not an appropriate vehicle for establishing
standards less restrictive than the state standard. There is a need for statewide consistency in the baseline
requirements of this program. If
counties were able to set different dates, particularly dates later than the
2010 final compliance dates, this would result in some producers being held to
higher standards than other. MPCA rules
are intended, in part, to ensure all producers are treated on a level playing
field regardless of whether their facilities are located in a delegated or
non-delegated counties. In addition,
not every delegated county will commit the same time, resources and level of
effort to move facilities to complaince.
By having a statewide set of requirements, MPCA can more easily oversee
implementation in its efforts to promote consistent application and
implementation of chapter 7020. This
process will then promote more uniform treatment of all producers regardless of
county location.
B. NPDES Permit Conditions.
At
the Friday, February 11 public hearing, Steve Jann, U.S. EPA Region V NPDES
Watershed Manager, presented oral and written comments regarding part 7020.2003
and EPA’s concern that this particular rule part must not preclude MPCA from
establishing additional or more restrictive terms, conditions and provisions in
NPDES permits if needed to protect water quality standards. EPA’s concern is that the rule should not
expressly state or be interpreted to preclude the MPCA from establishing
conditions in NPDES permits that are more stringent than contemplated in
proposed part 7020.2003, subps. 2-3 and other parts of the rule when necessary
to protect surface water quality and to ensure any discharges do not violate
water quality standards. Steve Jann,
Tr. 2/11 at 2180-81; Steve Jann’s written statement, dated February 11, 2000,
p. 6. Specifically, EPA requires that
whenever the MPCA determines that a discharge will cause, has a reasonable
potential to cause, or contributes to a violation of a water quality standard,
MPCA must have the authority to provide for the establishment of NPDES permit
conditions which ensure that the discharge will not violate water quality
standards and Mr. Jann recommended that proposed part 7020.2003 make provisions
for that requirement. Id., Tr.
2/11 at 2180; Jann statement, p. 6.
EPA’s
NPDES regulations prohibit the issuance of a NPDES permit when the conditions
of the permit do not provide for compliance with all applicable Clean Water Act
(CWA) requirements, including CWA regulations, and when the imposition of
conditions cannot ensure compliance with the applicable state water quality
standards. 40 C.F.R. 122.4(a) and (d)
(made applicable to state NPDES program by part 123.25) (1999). Where promulgated effluent limitation
guidelines do not adequately protect the receiving water from water quality
violations, EPA’s NPDES permit regulations require the state to impose in the
NPDES permit such other requirements (e.g. limitations, prohibited practices,
maintenance procedures, management practices, BMPs, etc.) as are necessary to
achieve compliance with and preserve the water quality standards. See 40 C.F.R. 122.44(d) and (k) (made
applicable to state NPDES program by part 123.25) (1999). EPA’s CAFO permitting guidance documents
have also highlighted that NPDES permits for CAFOs may also include BMPs as
water-quality based effluent limitations or use BMPs that are reasonably
necessary to meet water quality standards.
See EPA 1995 Guide
Manual, SONAR, Exhibit P-1, p. 14; EPA 1999 Guidance Manual, SONAR, Exhibit
P-2, p. 3-8. MPCA believes that part
7020.2003 does not preclude MPCA from imposing additional requirements if
necessary and that MPCA has the needed authority to address EPA’s concerns.
Chapter
7020 is not a stand-alone set of rules; that is, it does not operate in
isolation from other applicable the MPCA rules and federal regulations. Chapter 7020 is merely one part of a
comprehensive MPCA program to protect surface water quality under the CWA and
other media (e.g. groundwater, air, land, etc.) under other state and federal
laws, rules and regulations. As part of
that comprehensive program, chapter 7020 is not implemented in isolation from
or to the preclusion of other applicable requirements and its provisions cannot
be interpreted to preclude the application and implementation of these other
applicable rules or regulations. For
example, feedlots, including CAFOs, are still subject to other regulatory
procedures and substantive requirements such as the MPCA’s permit procedures in
chapter 7001 and any applicable substantive requirements needed to protect
surface waters, ground water and air quality under various chapters including
chapters 7009, 7050 and 7060.
In regard to Mr. Jann’s comments and the EPA regulations discussed above, the MPCA believes that part 7020.2003 cannot and will not be interpreted to exclude or limit the applicability of other requirements such as the permitting requirements in chapter 7001 and the water quality standard requirements in chapter 7050. That clearly is not the MPCA’s intention in drafting part 7020.2003. This part was intended to accomplish several goals. First, in subpart 1, it expressly identifies prohibited discharges. These were the types of discharges that theMPCA had prohibited on a case-by-case basis using the current chapter 7020 in conjunction with the applicable requirements of other MPCA programs such as the water quality standards in chapter 7050 and the groundwater protection provisions of chapter 7060. Second, subparts 4-6 were needed to lay out the requirements, procedures and schedules for the MPCA's major rule effort to address open lot runoff problems from feedlots with fewer than 300 animal units. Third, subparts 2 and 3 were included in this part as a means to reiterate and highlight key effluent limitations that already existed in chapter 7050. For example, Minn. R. 7050.0212, subp. 1 already imposes on CAFOs the EPA technology-based effluent limitations (no discharge) found in EPA’s CAFO effluent limitation guideline regulations. 40 C.F.R. part 412.13(a) (1999). In addition, subpart 3 merely highlights the existing effluent limits found in Minn. R. 7050.0215 for non-CAFO facilities. By highlighting these existing requirements in part 7020.2003, the MPCA was making chapter 7020 more user friendly so that the owners and others subject to chapter 7020 did not have to search chapter 7050 for those specific key effluent limitations that are applicable. It is not the MPCA’s intention to suggest that all of the other rule requirements (e.g. chapters 7001, 7050, 7060, etc.) are not now applicable just because this part was included to highlight some of the more significant, key requirements.
In
direct response to Mr. Jann’s comments, the MPCA does have the requisite
authority to impose more stringent requirements (e.g. more stringent than just
technology-based effluent limitations) in the NPDES permits if needed to ensure
protection of the surface waters and to prevent violations of water quality
standards. NPDES permits are issued
using the criteria and procedures in chapter 7001. Minn. R. 7001.0020 (1997).
Those NPDES permits cannot be issued unless they contain terms and
conditions that achieve compliance with all applicable state and federal
requirements. See Minn. R.
7001.0140, subp. 1 and 7001.0150, subp. 2 (1997). In addition to technology-based effluent limitations established
in such provisions as Minn. R. 7050.0211-.0212, the MPCA can require
water-quality based effluent limitations if needed to maintain the water
quality of the receiving water at the standards of quality and purity
established in chapter 7050. Minn. R.
7050.0210, subp. 9 (1997). In fact, the
MPCA is required to consider the chapter 7050 water quality standards in
establishing the effluent limitations, standards and prohibitions to be placed
in the NPDES permit. Minn. R.
7001.1080, subp. 2.B. (1997). The MPCA
can also impose best management practices (BMPs) in the permit where it is not
feasible to establish effluent limitations with numerical values. Minn. R. 7001. Minn. R. 7001.1080, subp. 3 (1997). As this discussion demonstrates, chapter 7020 is an integral part
of a broader, comprehensive regulatory program that uses various parts of other
rules to meet the regulatory requirements imposed on the MPCA by the EPA NPDES
program and by other MPCA rule requirements.
While
part 7020.2003 does not state it expressly, the MPCA has the authority to
address the issues raised in Mr. Jann’s comments. As noted from the discussion above, the MPCA has historically relied on a variety of chapters in
issuing permits with the necessary terms and conditions to meet state and
federal requirements. It would not be
appropriate or prudent to expand chapter 7020 to incorporate every conceivable
provision in such chapters as 7001, 7009, 7050 or 7060 that is or may be
applicable to CAFOs, non-CAFOs and other facilities regulated under chapter
7020. That type of duplication is not
necessary in light of MPCA’s historical practice discussed above. MPCA appreciates EPA’s concern; however,
when considering the totality of the MPCA comprehensive regulatory program in
all applicable chapters, sufficient authority exists to address EPA’s comments
and the application of that authority is not precluded, exempted or impaired by
part 7020.2003.
C. Financial Assurance.
Many commenters suggested
that the proposed rule should contain financial assurance requirements for
large animal feedlots to cover the cost of closure and/or remediation in the
event of an accidental release of manure.
The need for financial assurance requirements were studied at length and
is presented in Att. 2, Feedlot Issues:
Animal Waste Liability Account, Incident Reporting and Contingency Action
Plan. As set forth in this
document, the Agency will not pursue financial assurance requirements at this
time.
V. Responses to SONAR Economic Analysis Comments.
A. General Responses
Prof.
Morse concludes that one finding – that the proposed rules will not likely have
a significant impact on Minnesota’s general economy – is not supported by the
analyses presented in the part of the SONAR that evaluates economic impacts. Note that he does not dispute the other
findings of the economic analysis section.
Those other findings are:
·
there
may be slight declines (in the 0.1 per cent to 0.2 per cent range) in output
and employment in the agricultural sectors that are directly affected by the
proposed rules
·
in
economic sectors that are not directly affected by the proposed rules it is
likely that there will be no noticeable impact
·
directly
affected sectors - dairy, cattle, hog and poultry production - will likely
incur nearly all of the economic burden imposed by the proposed rules
(SONAR, p. 245-246)
Note
also that, in response to a direct question, Prof. Morse did not say that the
proposed rules would likely have a significant effect on the state’s economy. (Tr., February 14, p. 2405) Rather, he said that he would need to
conduct or review more background research before he could evaluate general
economic effects.
Prof.
Morse maintains that more research must be done before using an input/output model
to analyze the economic impacts of the proposed rules. He recommends a list of ten studies needed
to get “reasonable accuracy” in input/output analysis. The list is comprehensive, wide-ranging and
its results would probably be very interesting. The research agenda is also well beyond the practical means of a
state agency. A research agenda of the
sort recommended by Prof. Morse probably fits well within the long-range plans
of a research-oriented university. The
approach Prof. Morse recommends would take months, if not years, and it would
cost a great deal. Research of the sort
that Prof. Morse recommends is now, and probably always will be, beyond the
resources of the MPCA.
Instead
of conducting extensive background research, the MPCA estimated specific
regulatory compliance costs and compared them with output for the affected
economic sectors. There was no case in
which estimated direct costs exceeded 0.2 per cent of economic output in an
affected sector. Total annual costs,
estimated at their greatest extent, were slightly over $4.2 million. Total economic output (1996) in the affected
sectors was almost $4 billion. It is
not reasonable to expect that such a slight cost increase will have a
significant effect on economic output.
Given the relative difference between estimated cost and reported
economic output, it is impractical and unreasonable to spend a lot of time and
resources on refinements in economic impact analysis.
MPCA
analysts made a simplifying assumption – that all estimated costs lead directly
to decreases in economic output – to test the proposition that economic impacts
would not be significant. This
simplifying assumption took the place of the research studies that Prof. Morse
recommends. In order to show that his
research recommendations are reasonable, Prof. Morse should offer some evidence
that cost increases of 0.2 per cent or less can reduce agricultural output so
much that it leads to significant general economic impacts. In other words, he asserts that increased regulatory
costs cause output reductions significantly greater than total estimated
costs. Prof. Morse offered no evidence
to support his assertion. Before the
state acts on the extensive research agenda Prof. Morse recommends, there
should be some sign that it will produce useful results.
The MPCA maintains that its analytical approach is reasonable. Based on the professional judgment of appropriate MPCA staff members, it appears that further background study would only confirm the initial findings of the SONAR.
After
Prof. Morse asserts that it is unreasonable to assume cost increases reduce
output as described in the SONAR, he makes a series of his own assumptions to
support a contrasting view:
a. regulated farms must make all needed financial adjustments
in the short run (i.e., one year)
b. cost
increases are large enough to affect agricultural prices
c. cost
increases are large enough to reduce agricultural land values
d. total
livestock output reductions are large enough to affect meat processors
In order to accept Prof. Morse’s criticism, these
assumptions – which are broader and less well supported than the assumptions
that accompany the SONAR’s analysis – must be accepted. Prof. Morse offers no data to support his
assertions. Instead, his criticism
rests
on
assumptions about markets that are somehow more sensitive to regulations than
they are to broader market forces.
Prof. Morse’s assumptions are addressed in the specific responses that
follow:
a. section 1. suggests some longer-term financing options,
b. section 2. addresses issues related to agricultural supplies
and prices,
c. section 4. addresses the land values issue, and
d. section 2 discusses agricultural supplies and their likely
effect on processing capacity.
B. Specific Responses
The
MPCA’s estimate of changes in livestock sales (or economic output ) was made by
assumption. Farm operators have a
number of alternatives and considerable time, until 2009 in some cases, to
figure out how they will comply with the proposed rules. MPCA’s impact analysis assumes that, given
time, farm managers constantly look for ways to cut costs and that they will
use some portion of cost savings to pay for compliance with the proposed
rules. Some cost-saving options that
may be used include:
a)
finding
lower cost sources for input supplies such as feed and pharmaceuticals
b)
deferring
some capital expenses
c)
re-scheduling
some portion of long-term debt
d)
waiting
to pay for capital improvements until economic conditions improve
This list
probably does not exhaust the possibilities.
It describes alternatives that the impact analysis assumes reasonably
can be used to pay for compliance-related costs. Not all changes are likely to be of the productivity-increasing
sort that yields the same output for less cost. Some changes may lead to reduced output. MPCA’s impact analysis made the simplifying
assumption that reduced output resulted from all changes made to meet
compliance costs. As noted in the
SONAR, this is perhaps an unlikely assumption, but not an unreasonable one if
you want to make conservative cost estimates.
Prof.
Morse says that: “The assumption that
farm operators will be able to cut other expenses on a per unit basis is unrealistic.” (Prof. George W. Morse,
2-14-00, letter, p. 2) He does not
explain why this is an unrealistic assumption.
He follows his assertion with a list of the limiting assumptions of the
IMPLAN model. Describing the limits of
the analytical model does not explain why it is unrealistic to assume that
farmers can cut expenses on a per unit
basis.
Moreover,
the SONAR does not assume that expenses per unit will be cut.
Instead, the SONAR assumes that total costs, across the entire
affected sector, will be cut. The SONAR describes clearly the assumption
that cutting expenses
will lead to decreased output in all affected sectors. (SONAR, p. 253) The MPCA expects that farm operators will comply with the
proposed rules by choosing the mix of financial options – including financial
plans to cover costs later rather than sooner - that best suits their financial
conditions. However, available
information does not support even qualified guesses about the specific choices that
farm operators will make.
Contrary
to Prof. Morse’s assertion that it is unrealistic to assume that expenses can
be cut, it seems less realistic to assume that farmers will not take advantage
of every opportunity they have to minimize cost. It would be unrealistic to assume that cost saving measures will
improve productivity for all farmers (although we expect that this will happen
in some cases), so we assumed instead that costs will reduce output on a
dollar-for-dollar basis. If anything,
this assumption will lead to an over-estimate of economic impacts.
The
MPCA chose the simplifying assumption (cost increases = output losses) because
the alternative, as described by Prof. Morse, is expensive and
time-consuming. Here are the subjects
that Prof. Morse says require study for “reasonable accuracy” in input/output
analysis:
- changes in per unit costs for
different types of farms
- how costs of production per unit are
changed for farms with different types of production costs
- how many farms are in each of those
categories
- how much farms in different
categories are producing
- what happens to land that goes out of
livestock production
- what types of crops are grown on land
that is taken out of livestock production
- what is the economic contribution of output from lands
once used for livestock production
- expected changes in livestock prices
- production cost increases for
processing plants
- the price sensitivity of demand for
processed food
Prof.
Morse does not recommend making assumptions about these values. He calls for empirical study to support
estimates. For example, consider what
is needed to estimate the “changes in per unit costs for different types of farms.”
First,
analysts need to find appropriate classifications for the farms being
studied. Prof. Morse uses a Low
Cost-Mid Cost-High Cost classification system, which might serve for some
purposes. However, this system does not
take size into consideration. Since a
considerable amount of attention has been devoted in the rule hearings to the
impact of proposed rules on small farms, it seems reasonable to also consider
classifications of small-medium-large farms.
USDA has developed a farm size classification system that groups farms
into categories that are more homogeneous (i.e., farms within a given category
are more alike than they would be if they were placed in broader
categories). The USDA system has five
separate categories of Small Farms, which are farms that have annual sales less
than $250,000. The USDA system has eight
categories altogether. Given four types
of farms – dairy, poultry, hogs and cattle – and using one or the other size
class system, analysts would need to study between 12 and 32 types of farms. Although using 32 categories would be more
accurate, a quality Prof. Morse says is required for impact analysis, it would
also require much more analytical work.
Next,
representative statistics are needed for each of the 12 or 32 farm types. In order to estimate “changes in per unit
costs” we would need production and financial data that show how farm operators
in each class adapt when outside forces affect their management decisions. Since we want to estimate the effect of
regulatory compliance costs, we would need to isolate compliance costs from
other cost types (e.g., market price changes, input price changes,
weather-related effects, etc.) because farm operators could use different
strategies to address different kinds of cost increases. Likewise, the time period covered by
statistical analysis
must be chosen so that results are useful for present and future
decisions. Analysis of this sort would
require either:
a)
collection,
for all farm types, of historical data that allow analysts to study relevant
differences from one time period to another, or
b)
original
and statistically valid surveys of farms in all type classes over a period of
time that would allow study of responses to regulatory impacts.
Finally,
a study of changes in per unit costs would need somehow to take into account
the influence of technological change.
Some analysts regard technological change as the most influential factor
in the structural changes that are now occurring in agriculture in Minnesota,
in the United States and around the world.
Profs. Morse and Lazarus acknowledged that there is no foreseeable end
to the progress of technological change that, for decades, has been increasing
agricultural productivity and lowering agricultural production costs. (Tr., 2-14-00, p. 2407) The MPCA has not found analyses that predict
the effects of specific technological changes for specific types of costs on
different types of farms. Agricultural
sector analysts generally expect that technological change will continue to
favor larger-scale producers and “put pressure” on smaller producers. Although specific estimates appear
unavailable, an analysis of costs per unit would have to at least discuss the
most likely near-term possibilities for technological change.
Results
from a study of this sort could be used to estimate farm operators’ responses
to new regulations, which could then be used to set up input values for
input/output analysis. Such a study
would be very interesting. It would
also be very time-consuming and costly.
And the study just described is only one in the series of studies that
Prof. Morse asserts is needed for a reasonable estimate of economic
impacts. The MPCA considers it more
reasonable to make conservative estimates of economic impacts and forego
detailed preliminary studies about affected operators’ specific responses to
regulatory change. The MPCA has found
that questions about specific operators’ responses are best left to cases that
involve individual permits.
2. “The SONAR ignores the impact of food processing plants.”
Prof.
Morse notes, correctly, that the IMPLAN model does not trace “forward
linkages.” This term refers to market
relationships that occur between a producing firm and those firms or final
consumers that buy the producing firm’s goods or services. For example, mining firms sell their raw or
processed ores to manufacturers who further process ores into intermediate
inputs for other firms. The forward
linkages that concern Prof. Morse are those between farm producers and food
processing plants. He asserts that,
since the SONAR does not account for the impact the proposed rules will have on
food processors, it “understates the total impact in a major way.” (Prof.
George W. Morse, 2-14-00, letter, p. 3) Prof. Morse indicated in oral
presentation that this assertion is based on an assumption that some livestock
producers would go out of business and processors then would have fewer
supplies available to run their plants at economic rates. (Tr., 2-14-00, p. 2401-2402) Processors’ plant capacities would be
under-utilized if they could not get enough livestock to run their plants at
efficient production rates.
Prof. Morse’s assumption that fewer farms mean lower
output does not stand up to historical examination. In fact, long historical experience shows that our agricultural
economy has developed in exactly the opposite pattern. Farm numbers in Minnesota have declined
steadily since the 1940s. As the number
of farms has declined, output per farm has increased steadily. Productivity increases (technological
change) throughout the agricultural economy have made it possible for fewer and
fewer farmers to produce more and more food and fiber. This is a long-term
trend that began decades ago. (See Attachment 22, Ahearn, Mary, et. al.,
“Agricultural Productivity in the United States,” U.S. Department of
Agriculture, Economic Research Service, Agriculture Information Bulletin No.
740, January 1998.) Prof. Morse
acknowledged in his oral testimony that there is no end in sight to the trend
of technological change and structural adaptation in agriculture. (Tr., 2-14-00, p. 2407)
Food
producers and processors have found ways to adapt to market changes that have
left them with fairly stable input supplies.
In hog and poultry production, contracts between producers and
processors have become common, and somewhat controversial. Contracts generally have features that
assure processors of specified qualities and quantities of input supplies. Contracts tend to give producers some
protection from price variability and processors get some reliability in the
quantity and quality of input supplies.
Contract
issues aside, all agricultural sectors have maintained or increased production
despite the steady decline in the number of producers. As smaller producers leave the market, those
that remain tend to take over the resources that are left behind (e.g., land,
equipment) and keep them productive.
Among meat food processors, lost production has not occurred because
supplies are low. Instead, processors
have steadily increased their capacities by building larger plants. Smaller processing plants have trouble
competing with larger plants because scale economies make the larger plants
more efficient. Smaller plants lose out
because they cannot compete, not because they have run out of input
supplies. (See Wirtz (January 2000)
Attachment 23, Drabenstott (Third Quarter 1999) Attachment 24, and USDA (May
1999) among the listed references. Attachment 25)
Statistics taken from the national Census of
Agriculture (1992 and 1997) show how productivity changes have made it possible
for remaining farms to offset the effects of those that stop production. (Copies of the relevant Census of
Agriculture tables are attached for reference.) See Attachment 9.
|
|
1959 |
1997 |
|
Number of all farms |
145,662** |
73,367 |
|
Value of agricultural products sold |
$1.2 billion |
$ 8.3 billion |
|
Value of agricultural products sold per farm |
$8,319 |
$ 112,997 |
|
Value of livestock, poultry and their products |
$0.8 billion |
$ 4.1 billion |
|
|
|
|
|
Cattle and calves sold: |
|
|
|
Farms |
106,836 |
30,320 |
|
Number of sales |
1.8 million |
1.3 million |
|
Average sales per farm |
17 |
43 |
|
|
|
|
|
Hogs and pigs sold: |
|
|
|
Farms |
75,920 |
7,717 |
|
Number of sales |
6.0 million |
12.9 million |
|
Average sales per farm |
79 |
1,612 |
|
|
|
|
|
Poultry: inventory of layers and pullets*** |
|
|
|
Farms |
86,067 |
1,964 |
|
Number in inventory |
22.2 million |
13.0 million |
|
Average inventory per farm |
26 |
6,500 |
|
|
|
|
|
Dairy: milk cows |
|
|
|
Farms |
90,518 |
9,603 |
|
Number in inventory |
1.2 million |
0.5 million |
|
Average inventory per farm |
15 |
55 |
* Census of Agriculture, 1992 and 1997, U.S. Department of Agriculture, National
Agricultural Statistics Service.
** Note: the number of farms reported at the turn of the century was 155,000 (Minneapolis
Star Tribune, “Agricultural Statistics,” September 26, 1999)
*** in 1997 ≡ “13 weeks and older”
in 1959 ≡ “3 months or older”
Given
historical trends in supply, Prof. Morse’s claim that the proposed rules could
impact livestock supplies and food processing plants “in a major way” seems
unlikely. He should at least explain
why he thinks that livestock supplies will drop so much that the change will
put some food processors out of business.
Recent experience, both regional and national, has been that meat
processors are over-supplied, rather than under-supplied. Moreover, economists have long been concerned
that meat processors are not sensitive enough to local supply changes. Analysts have studied for well over a
century the question of whether meat processors control markets to the extent
that they dictate prices to livestock producers. A recent literature review (cited in the GEIS’s literature
review) found that the statistical evidence is not conclusive, but it does not
rule out the possibility that the industry is not competitive.[1]
3.
“SONAR analysis ignores differential impacts by region.”
Prof.
Morse argues that local economic impacts could be greater than statewide
economic impacts. This is
possible. But the time and place to
consider local effects is when a local case is at issue, such as when individual
permits are reviewed for environmental assessment worksheets and environmental
impact statements. The number of
potential local impacts related to this or any general rule makes it
impracticable to evaluate every case.
No one has the resources to complete this sort of case-by-case analysis.
Prof.
Morse suggested in his oral testimony that a regional analysis might begin with
consideration of the part of the state that is not included in the seven-county
region that defines the Metropolitan Council’s jurisdiction. (Tr., 2-14-00, p. 2405-2406) The MPCA has some statistics available,
through the IMPLAN system, that indicate what impacts might be like in the
state’s non-metropolitan region. One
IMPLAN model is configured to cover the entire state. Another model is configured to cover the Metropolitan Council’s
territory. Differences between these
two regions show economic output and employment in the region Prof. Morse
recommended for analysis.
|
IMPLAN – 1996
statistics |
Output ($ millions) |
Employment (1,000s) |
|
|
|
|
|
Totals: |
|
|
|
Minnesota |
$ 263,003 |
3,066 |
|
7-county Metro region |
172,048 |
1,868 |
|
non-Metro region |
90,955 |
1,198 |
|
|
|
|
|
Affected livestock sectors |
3,834 |
25 |
|
|
|
|
Estimated impacts = $4.2 million loss in output from livestock sectors |
||
|
Share of $4.2 million of output in: |
|
|
|
Minnesota |
0.002% |
|
|
non-Metro region |
0.005% |
|
|
Affected livestock sectors |
0.1% |
|
|
|
|
|
Economic output for all affected sectors is a bit short of $4 billion. The estimated direct impact of $4.2 million comprises a bit more than 0.1 per cent of output for the affected sectors. When the region considered is the non-Metro part of the state, the proportion of direct costs to total output 0.005 per cent. This is, as Prof. Morse pointed out, a larger share than the 0.002 per cent proportion that results when you compare direct effects with the statewide economy. However, the relative size of direct effects is still pretty small, whether you consider the whole state or just its non-metropolitan counties. The relative size of estimated direct effects are also relatively small, though noticeable, compared to the total economic output of affected sectors.
4.
“IMPLAN is an inappropriate model for this type of economic shock.”
Prof.
Morse maintains that the IMPLAN model should not be used to evaluate economic
impacts for this rule because it assumes conditions that do not apply in this
case. (Prof. George W. Morse, 2-14-00, letter, p. 4) IMPLAN assumes: a) no
change in technology, b) no change in input prices and c) no change in output
prices.
Given
the MPCA’s available resources and its objectives in this case (i.e.,
addressing the issues described in Minn. Stat. sec. 116.07, subd. g),
evaluations based on IMPLAN allow the MPCA to make reasonable statements about
economic impact. Evaluations based on
models of any sort must recognize the limits that go along with using
models. (SONAR, p. 248) However, Prof. Morse provides no support for
his assertions that the limits of the IMPLAN make it inappropriate for use in
the current case:
a)
no
change in technology – Prof. Morse maintains that: “New technology and methods
of production clearly will be required.”
This assertion is made without further reference or support. The proposed rules will require some farm
operators to make changes such as, putting gutters on farm buildings,
constructing manure storage pits, testing soil quality, and spreading manure
according to established practices.
There is nothing new here. It is
not a high technology rule. Some
individuals’ practices will have to change, but the proposed rules will not
lead to the sort of technological change addressed in IMPLAN’s assumptions. Those assumptions refer to practices that
alter production functions for entire sectors of a regional economy. When the value of expected changes is one
tenth of one percent of output (see the table above), it does not indicate that
a significant change in technology can be expected.
b)
no
change in input prices – “If the returns to land decline, the price of land
will decline and incomes to farm families will decline.” Prof. Morse offers no explanation to support
the suggestion that the proposed rules will cause some decline in the value of
farm land. This could happen, we
suppose, if the rules caused a general decline in the national agricultural
economy. However, the estimated change
in production costs seems too small to cause a general agricultural recession.
c)
no
change in output prices - “If the increases in per unit costs are sufficient,
there might be an increase in local livestock output prices.” Generally, economists assume that farm
operators have to accept whatever price they can get. They cannot raise their own prices because they do not have
enough market power to make price increases stick. Various farm operators have
testified in this proceeding that they cannot simply raise their prices to get
the money they need to comply with new rules.
Prices in agricultural commodity markets are
influenced by larger factors (e.g., domestic and international demand, trade
policy, government subsidy programs, etc.) over which local firms have no
control. It seems very unlikely that the proposed rules can somehow cause an
increase in the price of milk or livestock.
Prof.
Morse said in his oral testimony that it would be better to use a “computable
general equilibrium” model to estimate the economic impacts of the proposed
rules. (Tr., 2-14-00, p. 2411) The MPCA
used to have a computable general equilibrium model. The MPCA stopped using the model when the costs of updates and
maintenance became too expensive. That
model was referred to as the REMI (for Regional Economic Models, Inc.)
model. Although the REMI model can
estimate the price effects of simulated changes, the version that the MPCA had
would not have yielded price effects for agricultural sectors. Agriculture is generally excluded from
consideration in the REMI system, except for a set of “translator policy
variables” that can be manipulated but that yield results for agricultural
sectors only defined in terms of output.
In other words, REMI results would be no more detailed, accurate or
comprehensive than IMPLAN results when the sectors of most concern produce livestock. It may be possible to build a computable
general equilibrium model that covers the agricultural sector with acceptable
accuracy. However, the MPCA does not
have the resources to build such a model.
Although Prof. Morse’s suggestion is correct, it is impractical and goes
beyond the scope of “due consideration.”
We
can use some results from IMPLAN to get an idea of whether price changes are
likely. The analysis does not give any
indication of the extent of price increases, just of their likelihood. IMPLAN has five food processing sectors that
get significant amounts of their input supplies directly from producers. Combined output from these sectors in 1996
was about $ 4.7 billion:
Sector |
1996 output ($millions) |
|
Meat packing plants |
$ 1,250 |
|
Poultry processing |
858 |
|
Cheese, natural and processed |
1,498 |
|
Condensed and evaporated milk |
749 |
|
Fluid milk |
390 |
|
|
|
|
Total |
$4,745 |
IMPLAN
also provides estimates of the relative importance of input supplies from the
livestock-producing sectors that sell their output to food processing
plants. The numbers under “input
proportions” show the proportion of total cost that is associated with
purchases from input suppliers. So,
meat packing plants get 18 per cent, by value, of their input supplies from the
“ranch fed cattle” sector.
Response To Comments Regarding Cost Estimates In Sonar
Professor Lazarus commented on the cost estimates
that were used as input values for the SONAR’s evaluation of economic
impacts. Specifically, Professor
Lazarus noted that a group of estimated costs associated with getting existing
open-lot facilities with runoff problems that are under 300 animal units into
compliance was not included in the modeling of economic impacts because these
costs exist regardless if the proposed rules are adopted or not.
He recognizes that this is true, however, he notes that the MPCA has
discussed in the SONAR that the proposed rules will result in an increased
field presence. He argues an increased
field presence will logically result in a faster rate of compliance being
achieved than is being achieved under the current program. He argues that if the rate of compliance
does increase, then the rate at which producers incur costs is increased and
this should be included in the model.
"If you expect that producers are going to incur certain costs,
then they should be included in the analysis.”
(Prof. Bill Lazarus, 2-14-00, letter, p. 2)
In
response to Prof. Lazarus’ comments, MPCA analysts reviewed economic
impacts. The presentation that follows
describes:
·
a
forecast of the schedule of future costs associated with bringing facilities
with existing open lot runoff problems into compliance at a faster rate will be
referred to as “costs due to an increased rate of compliance,”
·
an
estimate of the economic impacts associated with an increased rate of
compliance, and
·
a
composite economic impact analysis that takes into account both an increased
rate of compliance and the costs of compliance with the proposed rules.
MPCA's
review of cost schedules indicated that the $4.2 million annual cost estimate
for 2001 to 2003 should be increased by $600,000. This cost is inserted to address
concerns over our proposed standards for concrete floors in liquid manure
storage areas. Whether or not MPCA's
proposed rule results in a cost that is greater than the cost of current
practices is debatable. For instance,
while the proposed rule requires a thicker floor, the existing practice
requires footings, which are not required in the proposed language. This is discussed in more detail in our
response to the MN Pork Producers, Allan Larsen, Robert Mensch and others. The MPCA believes that by assigning an
increase in cost for the proposed requirements, the MPCA will be erring on the
conservative side and ensuring the concerns raised in the comments were addressed. This change is unlikely to change the basic findings in the SONAR.
Therefore, the MCPA is not redoing the analysis that already exists in the
SONAR. The MPCA is instead going to
include this additional cost in our composite analysis which takes into account
both the projected costs due to an increased rate of compliance and the costs
of compliance with the proposed rules already included in the SONAR.
Procedures
used to go from estimated cost increases to an economic impact evaluation are
the same as the methods used in the SONAR.
The baseline does not change and neither do the assumptions that support
the analysis. Prof. Lazarus’ colleague,
Prof. George Morse, objects to these procedures. The MPCA’s response to Prof. Morse is handled as a separate
presentation.
The
costs associated with the increased rate of compliance are difficult to
ascertain. The program plan discusses a
shift in resources allowing for an increased field presence which should result
in a faster rate of compliance. In addition,
part 7020.2003 will result in a lower cost to achieve compliance with MPCA
rules during the years 2001-2005. This
lower cost should allow cost share dollars to be spread out to more livestock
owners/operators, further increasing the rate at which compliance is
achieved. An increased rate of
compliance may result in costs being incurred by farmers sooner than they would
have been incurred under the existing feedlot program. The modeling of economic impacts in the
SONAR did not include costs associated with the MPCA's goal of achieving an
increased rate of compliance. Due to
the concern raised during the comment period surrounding these potential costs,
the MPCA has developed a forecast of what the costs of an increased rate of
compliance could be. These forecast
costs are included in attachment 12. It
should be noted these forecasts are based on a compliance schedule that has
been extended from the year 2003 (date in rules prior to the rule hearings) to
the year 2005 which was changed by MPCA after the rule hearings.
The
assumptions used to generate the forecast result in "worst-case" cost estimates for the following reasons:
·
The
MPCA has assumed that cost sharing is not increasing over the duration of the
forecast, however, cost share has increased substantially in the recent
past. With the attention that the
environmental impacts resulting from animal agriculture are getting in the
state of Minnesota as well as on the federal level, it seems likely that the
more funds may be appropriated to assist livestock owners and operators with
the costs of installing corrective measures.
·
The
MPCA has projected that an estimated 5000 facilities with open lot runoff
problems will take advantage of the extended compliance schedule allowed for in
the proposed rule 7020.2003. This is
approximately 60% of the open lot facilities with run off problems that the
MPCA is estimating exist in the year 2000.
Factoring in the on-going loss of small-scale farms that will occur
between the years 2000 - 2005 means that even a larger percentage of the
remaining facilities will be in compliance.
To be able to achieve that high of a rate of compliance in the feedlot
program is unprecedented and may be overly optimistic. However, the MPCA has
chosen to forecast a very high rate of success because this is what the MPCA
intends on striving for.
·
The
MPCA hasn't taken into consideration the mechanisms it has available to address
problems at facilities that are in financial distress. The primary mechanisms include the variance
procedure and the 5-year permit. These
mechanisms allow the MPCA flexibility when dealing with facilities in financial
distress and often result in allowing these operators to take a longer time to
bring their facilities into compliance.
Inevitably there will be some financially distressed facilities and
these facilities will take longer to comply.
This results in a slow-down of the rate of compliance, which will lower
the forecast costs.
·
The
forecast costs for the beef sector are overstated. The MPCA used an average cost for installing corrective measures
of $30,000.00. This average $30,000.00
cost estimate was calculated by using data (exhibit E-1) on past NRCS projects
where corrective measures were installed at farms less than 300 animal units with
open lot runoff problems. These
projects were predominately implemented at dairy facilities with a
significantly lessor number of swine operations and beef operations. Dairy
farms generate more liquid waste than a beef operation does. Therefore, dairy facilities need to install
a manure storage/collection basin in order to correct the runoff problem more
often than Beef facilities. Beef facilities under 300
animal units will be able to comply with runoff requirements through the
installation of less costly solutions than at dairy facilities. These less costly solutions may include
gutters and berms coupled with more frequent cleaning of the open lot. Another solution may be to reduce the number
of animals in a feedlot by placing more animals into a rotational grazing
system or by moving supplemental feeders around the farmstead and not allowing
significant quantities of manure to accumulate in one place. The NRCS does install runoff basins at some
beef operations, but the percentage of dairy facilities which have basins
installed for correcting existing runoff problems is much greater than at beef
facilities. Therefore, the $30,000
estimate overstates the impact to the beef sector.
In
Addition, the costs in the composite analysis are overstated because:
·
Additional
changes to the rules that have occurred since the rule hearings ended have not
been accounted for in the cost estimates.
In
order to develop a forecast, the MPCA assessed why livestock owners/operators
install corrective measures to achieve compliance with the existing rules. The MPCA found that a combination of state feedlot inspections, county feedlot inspections, and the availability
of cost sharing were the primary drivers for achieving compliance. The MPCA estimates that on average 200
facilities with open lot run off problems install corrective measures to
achieve compliance. Of these 200
facilities nearly all of them are cost shared at levels that average
approximately 50 percent of total costs.
A
description of the dollar figures in the forecast cost spreadsheet are
explained as follows:
Line 1 – The dollar amounts in
this line represents the cost share available for installing corrective
measures. Under the current feedlot
program this money is being used to bring an estimated 200 with open lot runoff
problems into compliance with the current rules. The average cost for bringing
these facilities into compliance is estimated at $30,000.00 per facility as
explained in the SONAR. The MPCA is estimating that on average 50% of the
average $30,000 cost is covered by cost sharing. This amount equals the estimated 3 million dollars of cost share
available for the 200 sites annually (200 sites x .5 x $30,000.00 = 3 Million
dollars).
The
calculations that lead to no increase during years 2001-2005 are as follows:
The
MPCA is assuming that the cost-share will be distributed differently between
the years 2001-2005 after implementation of the proposed rules. The extended compliance schedule will allow
the cost-share dollars to be spread out to a larger number of facilities. The net result of our increased field
presence and 7020.2050 rule language is roughly estimated to result in a total
of 1100 open lot facilities complying annually between the years
2001-2005. The MPCA is roughly estimating
that 100 of these 1100 will correct their facilities in a manner that would
meet the current requirements at an average estimated cost of $30,000.00 per
facility. Half of this amount will be
funded by cost share (100 x (.5x $30,000.00) = 1.5 Million). The remaining 1000 facilities will comply
with 7020.2003 at an average estimated cost of $3,000 per facility. Half of this amount will be funded by cost
share (1000 x (.5 x $1500.00) = 1.5 Million)
In
the years 2006 and beyond, Line 2 continues to display the 6 million dollar
figure which represents the cost of achieving full compliance at 200 facilities
(200 x $30,000 = 6 million). The MPCA has kept this cost on a separate line
because it represents the ongoing 6 million dollars that would be spent on
corrective measures annually regardless if the proposed rules are adopted. Line 3 shows the increased cost due to the
increased rate of compliance.
Line 3: This cost of 2.7 Million
represents the cost that will result from the agency’s increased field presence
as described in the program plan. The
MPCA’s state (excluding county feedlot officers) field presence is estimated to
account for 60 of the 200 facilities that annually install open lot corrective
measures under the current program. The
other 140 facilities are driven to compliance primarily because of county level
efforts. The agency is expecting to
increase state level field presence by approximately two and a half time the
current levels. In the years 2001-2005
this increased field presence will contribute to the 1100 facilities annually
that comply as described above. In the
year 2006, the facilities encountered by the MPCA and delegated counties will
no longer be eligible for the part 7020.2003 extended compliance schedule.
Therefore, these facilities will have to install the full corrective measures
which are estimated to cost on average $30,000 per facility. The 2.5 times increase in field presence
will result in a total of 150 facilities coming into compliance (2.5 x 60 =
150). That is an extra 90 facilities
per year over what current state level field presence was generating. This results in an extra 2.7 million in
costs for producers annually from the year 2006 and beyond (90 x $30,000 = 2.7
Million).
Line 4: Line 4 represents the cost
of getting the facilities that complied with the October, 2005 deadline into
compliance with the more costly October 2009 deadline in part 7020.2003. As discussed in the explanation of Line 2
above, the total number of facilities that is speculated to comply with the
2005 extension of compliance schedule.
Of these 5000 facilities, the MPCA is assuming that 200 annually will be
corrected with the assistance of cost sharing dollars between the years
2006-2009 for a total of 800. These
costs are shown in line 2 as discussed above.
That will leave 4200 of the 5000 facilities. The MPCA is assuming that
200 of these facilities will no longer continue to operate after 2009 due to
attrition (we are using an approximate 1% annual attrition rate, actual
attrition rates may be greater). The
cost for correcting these remaining 4000 facilities is estimated to be 10.8
Million annually between the years 2009 and 2019 (4000 x $27,000). This cost is spread covers 10 years because
the MPCA expects that many livestock operators will be able to finance some of
these costs. Some will be eligible for
low interest loans such as the Best Management Practices loans distributed by
the Minnesota Department of Agriculture.
Line 5: This line shows the total
increases that the MPCA is forecasting will be incurred by all of the livestock
sectors as a result of our increased field presence and the extended compliance
schedule allowed by 7020.2003.
Lines 6,7,8,9 show the total cost
forecast for the increased rate of compliance broken down by sector. These cost increased have been modeled using
IMPLAN. The results are discussed in the body of this response.
Line 10: This is the total cost
increase forecast for the increased rate of compliance (same as line 5)
Line 11: This is the costs that
were previously included in the SONAR associated with the tightening of
requirement in the proposed rules
Line 12: This is the sum of the
costs associated with increased field presence and with the current costs in
the SONAR included the ($600,000 increase associated with concrete liquid
storage pits discussed above).
Lines 13-21: This is the summated costs
in line 12 broken down by livestock sectors.
These costs have been modeled using IMPLAN. The results are discussed in the body of this response
Our
estimated cost schedules show two points at which costs increase significantly
– 2006 and 2009. There is another
change scheduled to occur in 2019, when cost estimates drop because the MPCA
assumes the feedlot operators who have come into compliance with the 2009
deadline have now finished paying for this cost and the costs after this point
will be generated only by increased field presence. A separate analysis is not made for the
2019 change because it is likely to be positive, but it is scheduled for a time
period so far away that its economic effects are not likely to be significant.
Annual
cost estimates for current program compliance, from 2006 to 2008, add up to
$2.7 million. Estimated total costs
increase to $13.5 million from 2009 until 2019, when they drop back again to
$2.7 million.
Table
1. Estimated Annual Costs Due to an
Increased Rate of Compliance
EconomicSector |
Annual Costs, 2006 to 2008 |
Annual Costs, 2009 to 2019 |
|
Dairy |
$ 1,188,000 |
$ 5,940,000 |
|
Beef |
972,000 |
4,860,000 |
|
Swine |
540,000 |
2,700,000 |
|
Poultry |
insignificant |
insignificant |
|
|
|
|
|
Total |
$ 2,700,000 |
$ 13,500,000 |
Total
estimated costs increase when costs of compliance with the proposed rules are
added to the costs of an increased rate of compliance. Estimated costs from 2006 to 2008 increase
to $ 4.6 million. Estimated costs from
2009 to 2019 increase to $15.4 million.
Table
2. Estimated Annual Costs Due to an
Increased Rate of Compliance and Proposed Rules
EconomicSector |
Annual Costs, 2006 to 2008 |
Annual Costs, 2009 to 2019 |
|
Dairy |
$ 1,528,000 |
$ 6,280,000 |
|
Beef |
1,102,000 |
4,990,000 |
|
Swine |
1,920,000 |
4,080,000 |
|
Poultry |
20,000 |
20,000 |
|
|
|
|
|
Total |
$ 4,570,000 |
$ 15,370.000 |
Tables
3 through 6 show the results of different simulations that vary with respect to
time period and assumed costs. As you would
expect, different cost estimates yield different estimates of economic
impact. Likewise, higher estimated
costs lead to greater estimated impacts.
Results
shown in Table 5 (2006 to 2008, Costs Due to an Increased Rate of Compliance
& Proposed Rules) are closest to the SONAR’s estimate of impacts in the
2000 to 2002 time period. In both
cases, there are noticeable, but not significant, effects in some sectors. Simulations that show the greatest effects,
Tables 4 and 6, correspond to the later time period when estimated costs are
higher. In both of these simulations,
impacts fall within the “noticeable” range for the dairy and hog-producing
sectors. Impacts reported in Tables 4
and 6 also edge into the “significant” range for the cattle-producing
sector. None of the simulations show
noticeable impacts for the state’s general economy. (Recall the discussion in the SONAR in which impacts were labeled
as “noticeable” if they exceed 0.1 per cent and “significant” if they exceed
1.0 per cent.) Comparing Tables 3 and 4
with Tables 5 and 6 shows that the largest portion of estimated impacts is
associated with the costs of complying with current regulations. The expected economic impacts of the
proposed rules are relatively small.
When
an economic impact estimate reaches significant levels, it calls for further
consideration. Recall the SONAR’s
description of cost estimates and assumptions. (SONAR, page 253)
Conservative assumptions were used to develop the schedule of estimated
costs and to configure the IMPLAN analysis.
MPCA staff analysts believe actual costs will fall below the estimated
values.
Extended compliance schedules are included in the proposed rules because the MPCA wants to give farm operators a reasonable time to plan and make needed changes. The extended compliance schedules are longer than the price cycles that hog and cattle producers normally experience. Dairy and poultry producers generally do not experience the regular, long-term price movements that are found in the cattle- and hog-producing sectors. Extended compliance schedules should allow most farm operators to plan new expenses for periods when prices are on the upswing.
Government
programs are likely to provide some economic buffers for livestock
producers. Over the past few years,
federal and state subsidies have combined to maintain farm income at or near
recent historical averages. Technical
assistance programs tend to go hand in hand with subsidies. Current federal budget plans call for both
types of programs to be included in the next federal budget cycle.[2] Financial subsidies and technical assistance
are expected to ease the burden of compliance with environmental regulations.
Finally, the MPCA has variance procedures that are designed to be used in cases of financial hardship. Financial incapacity is a specific criterion the MPCA must use in deciding whether or not a variance should be allowed in individual cases.
Estimated
economic impacts increase when cost estimates increase. Bringing into consideration the costs due to
an increased rate of compliance with current regulations changes our estimate
of economic impacts. Taking these new
factors into consideration, there is a greater possibility that there will be a
more significant level of economic impact.
The cattle-producing sector appears to be incurring the most significant
economic impact in the years 2009-2019.
However, as discussed above, the assumptions under which the costs
associated with an increased rate of compliance were forecast have resulted in
the costs for the cattle-producing sector being over-stated. This subsequently results in the IMPLAN
model over stating the economic impacts to the beef sector. In addition, there are other factors that
will likely offset the estimated economic effects. Offsetting factors include extended compliance schedules,
government assistance programs and MPCA variance procedures.
Table
3. Simulated impacts, 2006 to 2008,
Costs Due to an Increased Rate of Compliance
|
|
State total |
Dairy |
Hogs |
Poultry |
Cattle |
|
|
Decreased economic output ($ thousands) |
||||||
|
Direct effects |
$ 2,700,000 |
$ 1,188,000 |
540,000 |
insignificant |
972,000 |
|
|
Indirect effects |
$2,506 |
$7 |
$141 |
0 |
$145 |
|
|
Induced effects |
$1,365 |
$2 |
$2 |
0 |
$2 |
|
|
Total effects |
$6,571 |
$1,197 |
$683 |
0 |
$1,120 |
|
|
Per cent of total output |
0.00% |
0.09% |
0.06% |
0 |
0.22% |
|
|
Decreased employment |
||||||
|
Direct effects |
15.0 |
5.0 |
6.0 |
0 |
4.0 |
|
|
Indirect effects |
13.0 |
0.0 |
1.0 |
0 |
0.0 |
|
|
Induced effects |
12.0 |
0.0 |
0.0 |
0 |
0.0 |
|
|
Total effects |
40.0 |
5.0 |
7.0 |
0 |
4.0 |
|
|
Per cent of total employment |
0.00% |
0.08% |
0.05% |
|
0.18% |
|
Table
4. Simulated impacts, 2009 to 2019,
Costs Due to an Increased Rate of Compliance
|
|
State total |
Dairy |
Hogs |
Poultry |
Cattle |
|
|
Decreased economic output ($ thousands) |
||||||
|
Direct effects |
$ 13,500,000 |
$ 5,940,000 |
2,700,000 |
0 |
4,860,000 |
|
|
Indirect effects |
$824 |
$33 |
$704 |
0 |
$731 |
|
|
Induced effects |
$377 |
$12 |
$9 |
0 |
$10 |
|
|
Total effects |
$14,701 |
$5,985 |
$3,413 |
0 |
$5,601 |
|
|
Per cent of total output |
0.01% |
0.43% |
0.29% |
|
1.11% |
|
|
Decreased employment |
||||||
|
Direct effects |
73.0 |
25.0 |
29.0 |
0 |
19.0 |
|
|
Indirect effects |
67.0 |
0.0 |
7.0 |
0 |
3.0 |
|
|
Induced effects |
58.0 |
0.0 |
0.0 |
0 |
0.0 |
|
|
Total effects |
198.0 |
25.0 |
36.0 |
0 |
22.0 |
|
|
Per cent of total employment |
0.01% |
0.39% |
0.26% |
|
1.01% |
|
Table
5. Simulated impacts, 2006 to 2008,
Costs Due to an Increased Rate of Compliance & Proposed Rules
|
|
State total |
Dairy |
Hogs |
Poultry |
Cattle |
|
|
Decreased economic output ($ thousands) |
||||||
|
Direct effects |
$ 4,570,000 |
$ 1,528,000 |
1,920,000 |
20,000 |
1,102,000 |
|
|
Indirect effects |
$2,507 |
$13 |
$496 |
$2 |
$166 |
|
|
Induced effects |
$1,366 |
$3 |
$3 |
$6 |
$3 |
|
|
Total effects |
$8,442 |
$1,545 |
$2,419 |
$28 |
$1,272 |
|
|
Per cent of total output |
0.00% |
0.11% |
0.21% |
0.00% |
0.25% |
|
|
Decreased employment |
||||||
|
Direct effects |
28.0 |
8.0 |
17.0 |
0.0 |
3.0 |
|
|
Indirect effects |
23.0 |
0.0 |
4.0 |
0.0 |
1.0 |
|
|
Induced effects |
18.0 |
0.0 |
0.0 |
0.0 |
0.0 |
|
|
Total effects |
69.0 |
8.0 |
21.0 |
0.0 |
4.0 |
|
|
Per cent of total employment |
0.00% |
0.12% |
0.15% |
|
0.18% |
|
Table
6. Simulated impacts, 2009 to 2019,
Costs Due to an Increased Rate of Compliance & Proposed Rules
|
|
State total |
Dairy |
Hogs |
Poultry |
Cattle |
|
|
Decreased economic output ($ thousands) |
||||||
|
Direct effects |
$ 15,370.000 |
$ 6,280,000 |
4,080,000 |
20,000 |
4,990,000 |
|
|
Indirect effects |
$824 |
$40 |
$1,059 |
$9 |
$752 |
|
|
Induced effects |
$377 |
$13 |
$11 |
$18 |
$11 |
|
|
Total effects |
$16,571 |
$6,333 |
$5,150 |
$47 |
$5,753 |
|
|
Per cent of total output |
0.01% |
0.46% |
0.44% |
0.01% |
1.14% |
|
|
Decreased employment |
||||||
|
Direct effects |
90.0 |
26.0 |
44.0 |
0.0 |
20.0 |
|
|
Indirect effects |
79.0 |
0.0 |
11.0 |
0.0 |
3.0 |
|
|
Induced effects |
65.0 |
0.0 |
0.0 |
0.0 |
0.0 |
|
|
Total effects |
234.0 |
26.0 |
55.0 |
0.0 |
23.0 |
|
|
Per cent of total employment |
0.01% |
0.41% |
0.40% |
|
1.06% |
|
Discussion of other Comments Regarding Cost Estimates.
Mr.
Lazarus also raised concern that not only should the cost for preparing an air
emissions plan in accordance with the 7020.0505 plan be included in the analysis
but any costs associated with a change in the farm operation as a result of the
plan. This rule part will not require
operators to change their operations.
The only time that the operators would be required to change their
operations would be if they were found to be out of compliance with 7009.0080
or any other applicable air emissions regulations. The costs for implementing these changes would be driven by those
specific air emission regulations and not by the proposed rule part
7020.0505. This rule part simply
requires operators to consider methods for reducing air emissions and to have a
plan ready to address any non-compliance with air emission regulations.
Mr. Lazurus also raises concern that the hourly wage rate that the MPCA used as estimate of the farm worker wage rate was to low. The MPCA used an hourly wage rate of 8$ an hour. The hourly wage rate he suggests is $10-$11.00 per hour which includes fringe benefits. The increase of 2$-3$ an hour will result in an insignificant difference in our overall cost estimates.
Permit
Fees was an issue raised in Mr. Allan Larsen's letter dated February 14, 2000
as well as an issue raised during testimony and in various other letters. One of the concerns is that the cost for
fees associated with NPDES/SDS permits has not been considered in the economic
impact analysis included in the SONAR.
The state's issuance of NPDES permits is a requirement of the delegation
agreement between the MPCA and the EPA.
The MPCA has issued relatively few NPDES permits for facilities up
through 1999. However, the MPCA has
begun to issue more NPDES permits in the recent past and plans to issue a
general permit in the year 2000. These
progressions in the states implementation of the NPDES program are happening
and are going to continue to happen regardless if the proposed rule is adopted
or not. Therefore costs associated with
the NPDES permit will be incurred even if the proposed rule is not adopted. The costs associated with a SDS permit are
anticipated to be negligible. The SDS
permit would only be issued to facilities that can demonstrate adequately that
they do not discharge and do not have the potential to discharge. As stated in EPA's guidance, EPA believes
that virtually all facilities over 1000 animal units have discharged or have
the potential to discharge and therefore are required to apply for an NPDES
permit. Therefore, based on the EPA assumption, the number of SDS permits that
the MPCA anticipates issuing is very small and the costs associated with the
SDS permit are negligible. Even if the costs of the NPDES/SDS permit were
included in the economic impact analysis, the annual cost would be
$272,000.00. This is calculated
assuming 90% of these facilities would be eligible for a general permit (see discussions regarding general permit in
SONAR). The fee for a general permit is currently $240.00 annually. This results in a total annual cost of $172,800.00 (800 x .9 x $240.00 = $172,800.00). The fee for an individual permit is currently $1,240.00
annually. This results in a total
annual cost of $99,200.00 (800 x .1 x $1,240.00 = $99,200. An additional $272,000.00 annually will not
significantly impact the results of the economic analysis in the SONAR.
VI. Program Implementation.
A.
Permit Process and
Accountability.
During
the public comment period, the MPCA heard information not only on the proposed
rules and their content but also on related administrative functions. Participants were in agreement with the need
for improved response times regarding permit applications. The participants sought some method to
ensure the MPCA would be held accountable for permit delays or other problems
caused by its administration of the program.
Many of the commenters at the public hearings discussed frustrations
they experienced in either obtaining a feedlot permit or certificate of
compliance or participating in the public process related to permits. The MPCA believes, in light of the number of
comments received that is appropriate to comment on how the MPCA intends to
reduce the frustrations associated with the permit process.
In
the SONAR, pages 39 - 45, the MPCA explained that the proposed rule framework
was designed to minimize paperwork for the regulated parties and the regulatory
authorities. The proposed rules contain
within them provisions to streamline the permit process and at the same time
establish standard performance expectations that all owners are responsible for
complying with and still allow for public notification and participation in the
process where appropriate. These
provisions are listed below.
1.
Established
facility categories to reduce the number of facilities actually required to
obtain permits. Registration is
required of all facility owners but the vast majority will not require a permit
to operate.
2.
Based
on facility size and site-specific operational factors, the type of permit
required will vary. Only facility
owners with sites capable of holding more than 1000 animal units will
automatically be required to submit an application for an operating
permit. For facilities, between 300 and
1000 animal units, the need for an operational permit will be based on
case-by-case evaluation.
3.
Developed
a construction short-form permit to reduce the administrative steps in getting
a construction permit if no operating permit is required. Facility owners will be required to notify
local regulatory authorities to ensure compliance with all local rules.
4.
Reduced
the need for permits for facilities capable of holding less than 300 animal
units.
5.
Expanded
the role of delegated counties to address the vast majority of facilities with
less than 1000 animal units.
6.
Provided
technical and performance standards to inform the facility owner of obligations
prior to permit application and thus, reduce unnecessary delays in discussing
technical issues and permit provisions.
The
concerns of the commenters are best captured in the specific comments entered
into the public hearing record by the Minnesota Center for Environmental
Advocacy (MCEA) (letter dated January 19, 2000). On page 2 of this letter, the MPCA is asked to change the
proposed rule and establish a provision by which the MPCA must prepare an
annual workplan and report similar to those documents required by delegated
counties. The MCEA indicates on page 2
that "..specified performance measures for the Minnesota Pollution Control
Agency and its delegated counties must be built into the rule itself, instead
of implied through good intentions".
While the MPCA agrees that good intentions are not a strict
accountability for performance, it does allow some review by interested
parties. The MPCA believes that FMMAC
is and should be an interested party to receive the annual update. However, the inclusion of a workplan
development in the rule does not guarantee acceptable turnaround factors. The MPCA must obtain new resources (people
and $) from the legislature. It is not
possible to add additional staff or contract services without these
resources. Again, what would be the
process that MPCA would enter to be relieved of some duties in order to
maintain a constant level of effort and reduce backlogs to minimums? The delegated county agreement is a
negotiated document with target goals, not strict performance standards. The delegated county bases its goals on
staffing and facility information (e.g. size, type, number) and the MPCA
reviews the agreement for reasonableness.
The compliance goals then vary for each county depending upon resources
and local issues. Thus, the MPCA does
not agree that the rules should be changed.
The MPCA further believes that it will be held accountable by FMMAC as
to why targeted goals of the program plan were not met.
In
addition to the development of a workplan, the MPCA heard from a number of
individuals and producer groups that the rules should contain a set number of
days by which the MPCA must issue a permit or deny the permit. The commenters varied on what the
appropriate timeframe should be. Mr.
Phil Bergstrom recommended at the Willmar public hearing that the period for
review and approval should be 90 days, while Mr. Doug Morris in his comments at
the Nisswa hearing thought 120 days was appropriate. The commenters discussed the importance of timely permits in
terms of getting loans and avoiding cold weather construction.
The
MPCA agrees that the permitting process should be efficient with minimal
delays. However, the MPCA cannot
account for incomplete applications, environmental review needs, public comment
periods mandated by law, or the time needed to properly respond to public
hearing requests. The MPCA recognizes
that permit applicants should know quickly any problems with the application
and if the MPCA intends to issue the permit.
Again, the MPCA has no formal process to ensure sufficient resources are
available to properly respond to all facilities. If a
rule provision existed, to whom would the MPCA seek relief in meeting the dates
due to resource hardships, as is afforded the livestock producers.
Therefore,
the MPCA in addition to elements of the proposed rules for permit streamlining
has begun to re-look at its efforts in this area. The following administrative steps are being considered for
inclusion in the program plan.
1.
Incomplete
applications will be returned to the facility owner except for minor
omissions. The MPCA receives many
applications missing key components and spends a significant amount of time
tracking down the items.
2.
Response
times for reviews will be established.
Such times under consideration are as follows:
- Acknowledgements sent within two weeks of
receiving the application;
- Completeness checks completed within 30-days of
receiving the application;
- Permit issuance for
interim permits and construction short form permits within 90 days of obtaining
a complete application.
3. Standard forms and permit language will be used to reduce
existing backlogs and avoid future backlogs;
4. Use of subdistrict staff in conducting inspections, permit
review, permit drafting and other activities to reduce internal roadblocks and
increase the number of permits reviewed and processed;
5. Utilize producer groups and individuals in developing usable
application forms, review checklists, and other items that will help all
parties understand the application needs; and
6. Increase the number of delegated counties to further increase
the efforts of counties and the state in processing permit applications.
The
MPCA is firmly committed to improving the efficiency of the permitting process,
but cannot control all the factors involved, particularly those requiring
mandatory public comment periods. The
MPCA expects to establish firm program goals and implement new processes after
this rulemaking effort is complete. The
efficiency for processing permit applications should be improved as it has with
the increased subdistrict staff.
B.
NPDES permit program
implementation.
In
June, 1974, the state of Minnesota, through the Minnesota Pollution Control
Agency, was authorized by U.S. EPA to administer the federal NPDES
program. 52 Fed. Reg. 47635 (December
15, 1987). NPDES permitting
requirements for CAFOs have been a part of the MPCA’s feedlot permitting
program since chapter 7020 was last revised in the late 1970s. Minn. R. 7020.0500, subp. 1 (1997). However, in its January, 1999 MPCA feedlot
program evaluation report, the state Legislative Auditor found that MPCA was
not currently in compliance with the federal regulations that require all
feedlots with 1000 or more animal units to obtain a NPDES permit. SONAR, Exhibit G-1, pp. 32. Shortly after the release of the Auditor’s
report and on March 9, 1999, the U.S. Department of Agriculture (USDA) and U.S.
EPA issued their joint Unified National Strategy for Animal Feeding Operations
which includes strategies and priority schedules to improve implementation of
the existing NPDES CAFO permitting program.
SONAR, Exhibit G-2 (Section 5, Strategic Issue #3). In response to these events and legislation
in Minn. Stat. § 116.07, subd. 7a setting forth NPDES permitting deadlines, the
MPCA proposed these rule changes as part of a program re-design effort. 24 S.R. 849 (December 20, 1999).
Under
the EPA NPDES permit regulations, any person who discharges or proposes to
discharge pollutants must apply to EPA or the delegated state for a NPDES
permit. 40 C.F.R. 122.21(a) (1999).
CAFOs are point sources subject to the NPDES permitting requirements and
as a result, MPCA has incorporated a rule part that requires the CAFO owner to
apply for a NPDES permit. 40 C.F.R.
122.23(a) (1999); Part 7020.0405, subp. 1, item A. In the absence of a NPDES permit, no discharges of pollutants to
surface waters from any point source may occur. 33 U.S.C. 1311; Minn. R. 7001.1030, subp. 1 (1997). As with all effluent limitations, the
discharge of pollutants, including animal manure and wastes, from a CAFO is
permissible only in accordance with a properly issued NPDES permit. As discussed during the hearing process,
MPCA intends to issue general and, as necessary, individual NPDES permits to address
these NPDES CAFO permitting requirements.
During
this rulemaking process, Zenas Baer submitted comments expressing concern with
the implementation of the NPDES permitting program for the large,
industrial-sized CAFOs (1000 animal units or more). In particular, Mr. Baer’s comments focussed on the federal NPDES
permit regulation [40 C.F.R. part 122, Appendix B] that contains a limited
exemption for any animal feeding operation from being defined as a CAFO if it discharges only in the event of a 25 year, 24-hour, or larger, storm
event. However, Mr. Baer’s concerns do
not go to the MPCA feedlot rules themselves; instead, Mr. Baer’s arguments and
concerns go to EPA’s interpretations and EPA’s implementation of the CAFO
definition and the limited exemption.
Consequently, Mr. Baer’s arguments are with the U.S. EPA regarding the
manner in which it is implementing those permitting regulations, and the
guidance it is giving state-delegated NPDES programs in implementing the EPA
CAFO permitting regulations. A brief summary of EPA’s implementation of the
limited exemption of concern to Mr. Baer is included below.
According
to EPA, an actual or ongoing discharge is not required for a facility to be
covered by the NPDES regulations.
SONAR, Exhibit P-1 (EPA Guide Manual on NPDES Regulations for Concentrated
Animal Feeding Operations, December, 1995), p.3. The definition of point source includes a CAFO from which
pollutants are or may be discharged. Id.,
pp. 3, 11. EPA interprets the
requirement to apply for a NPDES CAFO permit to include CAFOs that pose a potential to discharge. Id., Exhibits 1, 1-A, 1-B, 1-C, and 2
(providing that operators of large feedlots that pose a potential for
discharging must apply for an NPDES permit).
EPA has also concluded that CAFOs with a history of discharges must also
apply for a NPDES permit. Id.,
p. 11.
The
EPA has consistently maintained that the regulation that requires any person
who discharges or proposes to discharge pollutants to surface waters from a
point source (e.g. CAFO) to apply for a NPDES permit also requires a NPDES
permit unless the owner demonstrates the facility does not have a potential for
a discharge. SONAR, Exhibit G-2
(USDA/EPA Unified National CAFO Strategy, March 9, 1999, Section 4.2). EPA believes that virtually all CAFOs with
over 1000 animal units are covered by the NPDES permit program and EPA has
targeted those facilities as a priority for permit issuance. Id., (Section 4.5, Priorities for
Regulatory Program). According to EPA,
experience has shown that the 25 year, 24-hour exclusion from being defined as a CAFO has little practical
effect. 63 Fed. Reg. 34876 (June 26,
1998, U.S. EPA Region 6 notice of proposed reissuance of the General NPDES CAFO
Permit).
As
recent as this past spring, 1999, the U.S. Department of Justice (DOJ) was
making the same argument in the U.S. Court of Appeals (4th Cir.) regarding the
need for a permit application submittal when an activity poses a reasonable
potential to cause a discharge. In American
Canoe Association and United States v. Murphy Farms, Inc., No. 99-1115 (4th
Cir.), the federal government intervened to argue that, under the EPA
regulations, Murphy Farms ( a CAFO owner and operator) must apply for a permit
under the NPDES regulations. Brief for
United States at 2 (certif. of service dated May 10, 1999). Referring to the phrase “proposes to
discharge pollutants” in 40 C.F.R. 122.21(a), DOJ argued the regulation
requires persons to apply for a NPDES permit “whenever they plan to engage in
an activity that bears a reasonable potential to discharge pollutants.” Id.,
pp. 30, 33. In regard to the Murphy
Farms situation, EPA interprets part 122.21(a)(duty to apply for permit) to
encompass persons who have discharged in the past and continue to engage in activities that pose a reasonable
potential to discharge. Id., p.
14. Finally, DOJ argued that where
activities create a reasonable potential for future discharges, the NPDES
permitting authorities must determine whether a NPDES permit is required and
that the courts have recognized that the NPDES program ensures that dischargers
are subjected to the scrutiny of the application process. Id., p. 2 (citing Menzel v. County
Utilities Corp., 712 F.2d 91, 95 (4th Cir. 1983).
EPA
has reiterated this position regarding the “potential to discharge” issue in
its most recent draft NPDES CAFO Guidance Manual. SONAR, Exhibit P-2 (Guidance Manual and Example NPDES Permit for
Concentrated Animal Feeding Operations, August 6, 1999). This Guidance Manual is intended to provide
clear and concise guidance to EPA and state NPDES permit writers on permitting
CAFOs. Id., p.1-3; 64 Fed. Reg.
61109 (November 9, 1999). Regarding the
question of who needs to be covered by a NPDES permit, EPA reiterates that a
permit is required for any CAFO that discharges or has the potential to
discharge. SONAR, Exh. P-2, pp. F-1,
F-3, G-3. EPA also discusses the 25
year, 24-hour storm event exemption for feedlots from being defined as a CAFO and notes as follows:
However, to be eligible for the exemption, the
facility must demonstrate to the permitting authority that is has not had a
discharge. It must also demonstrate
that the entire facility is designed, constructed, and operated to contain a
storm event of this magnitude in addition to process wastewater. Facilities that believe that they do not
discharge should apply for an NPDES permit and provide technical documentation
of no discharge with the permit application.
Id., pp. 2-9, G-5. Steve Jann, EPA Region V Watershed NPDES
Manager, also testified that MPCA would have to determine that a CAFO permit
applicant did not discharge and did not have the potential to discharge before
deciding that an NPDES permit was not needed.
See Steve Jann, Tr. 2/11 at 2177. When questioned by Mr. Baer about factors to be considered in making
this “potential” determination, Mr. Jann indicated that a wide variety of
factors would be taken into account in determining the potential for a
discharge including the design of the facility and the management of the
facility. Id., at 2197.
Finally,
EPA has provided further clarification regarding discharges from a CAFO’s land
application areas and the need to apply for a NPDES permit. EPA Memorandum, dated September 27, 1999,
from J.Charles Fox, Assistant Administrator, Office of Water, to John H.
Hankinson, Jr., Regional Administrator, U.S. EPA Region 4, Att. 10 to this MPCA
memo.
This
EPA memo was submitted into the record by Steve Jann at the February 11
hearing. In that memo, EPA states that
all facilities that have a reasonable likelihood to discharge in the future
must apply for a permit but those facilities “have the opportunity to
demonstrate through the permit application process that they do not in fact
discharge or have a potential for future discharges.” Id., pp. 1-2. EPA noted that the obligation to apply for a
permit is based on not just discharges from the feedlot area but also
discharges from the land application areas under the control of the CAFO. Id., p. 2. In discussing the application of the agricultural storm water
exemption, EPA noted as follows:
If a CAFO with over 1,000 animal units has had a
discharge from land application areas under the control of the CAFO operator,
as noted above, it is required to apply for an NPDES permit if it does not
already have one, even if it believes that its past discharge was exempt
because of the agricultural storm water exemption. The NPDES authority can then determine whether the past discharge
was exempt and whether there is a reasonable potential for a future non-exempt
discharge.
Id., p. 4. EPA also stated that, in determining whether
the agricultural storm water exemption applies, the permitting authority should
consider whether the facility has a Comprehensive Nutrient Management Plan
(CNMP) and is implementing the CNMP. Id. To the extent a facility does not have a CNMP or is not
implementing its CNMP, discharges from land application areas should not
qualify for the agricultural storm water exemption. Id.
As
the delegated NPDES entity, MPCA is obligated to operate the NPDES program in
accordance with the EPA regulations and as discussed in EPA’s September 27,
1999 memo and in the SONAR, MPCA intends to provide CAFO permit applicants the
opportunities in the permit application process to demonstrate they do not in
fact discharge or have the potential for future non-exempt discharges. See SONAR, pp. 30-31.
MPCA
implements and administers the NPDES program in Minnesota, and as a result of
this delegation, MPCA is required at all times to implement the program in
accordance with EPA’s NPDES regulations.
40 C.F.R. 123.1 (1999). States,
like Minnesota, which administer the NPDES program must control CAFOs “with the
same stringency and in a manner consistent with the federal regulations.” 58 Fed. Reg. 7612 (February 8, 1993, U.S.
EPA Region 6 public notice on the final permitting decision on the general
NPDES permit for CAFOs). One purpose of
the USDA/EPA Unified CAFO Strategy is to promote consistency in the application
of the NPDES CAFO program in EPA regions and state-delegated NPDES
programs. To implement this purpose,
EPA provides training, technical permit writer assistance, guidance manuals and
memos articulating the manner in which the regulations are to be administered
and implemented. MPCA intends to
implement the NPDES CAFO program in accordance with those EPA regulations and
in doing so, MPCA has indicated it intends to implement the NPDES permit
application process accordingly and give CAFOs the opportunity to demonstrate
facts regarding the application of the exemption in 40 C.F.R. part 122.23,
Appendix B. SONAR, pp. 30-31. If the large, industrial-sized facilities
demonstrate they are not defined as a CAFO, MPCA will issue them the appropriate
SDS permit. SONAR, pp. 30-31, 93-95.
Mr.
Baer’s arguments are not with the MPCA feedlot rule, but are directed at the
EPA’s interpretation and implementation of the NPDES CAFO regulations. MPCA suspects that Mr. Baer’s issues are not
new to EPA, as reflected in EPA’s decision to issue additional clarifications
(EPA Memo, dated September 27, 1999) regarding the interpretations and
implementation of the various CAFO-related exemptions. MPCA anticipates that there will be further
discussion on these topics as USDA and EPA move forward with the implementation
of the Unified CAFO Strategy, and with the final edition of EPA’s Guidance
Manual which is expected in early-mid March, 2000.
C. Registration Receipt
and Renewal Notices.
During
the public hearing process, much of the oral testimony and written submittals
addressed the issue of registration.
The concerns sometimes addressed why registration was needed, but more
often the commenters were concerned with how the administrative process will
work. Particularly, the commenters
indicated that three areas of the registration process needed addressing by the
MPCA. These areas included:
1.
A
note that the completed registration form was received by the MPCA or the
delegated county including what information, if any, was needed to clarify the
registration contents;
2.
A
certification after the inspection indicating the compliance status of the
facility with the applicable MPCA standards; and
3.
A
re-registration notice to ensure facility owners met their obligation once
every four years.
The
MPCA is not making rule changes in response to these comments. The MPCA does not dispute that the three
issues raised are reasonable implementation questions. In fact, the MPCA staff has discussed with
some producer groups and individual livestock producers how to best accomplish
the details of registration. The
concerns are based on two significant areas.
The most important concern grows from the need of financial institutions
to know that facility owners are operating in compliance with state rules
before securing loans. Second, the
MPCA's historical difficulties in responding timely with regard to permit
applications has created some concern with the livestock producers. The need to know that the form was received
and reviewed by the MPCA is very important to the regulated parties.
The
MPCA does not propose a rule change in response to the comments. The MPCA believes rules changes are not
appropriate. Additionally, the redesign
of a form or the improvement in processes learned through experience should not
require a rule change before implementation.
The MPCA seeks to retain flexibility in the administrative process for
producers and itself. However, the MPCA
does intend to meet the spirit of the comments through its implementation
program plan. See SONAR Exhibit I-4.
The
MPCA has begun to prepare for implementation even as the rulemaking process
proceeds. The MPCA intends to improve
its responsiveness and permitting process regardless of the rule outcome. Key implementation steps include:
1.
Shifting
of feedlot staff to subdistrict offices to remove distance barriers;
2.
Drafting
of improved inspection forms for staff use that can be completed on-site and
compliance determinations made;
3.
Processing
of the inspection forms with minimal technical staff time used; This is a support activity and thus, it is
intended that the forms be simple yet complete;
4.
Designing
registration forms and notification forms; and
5.
Refining
the program plan to include performance measures such as acknowledgement of
registration form reciept.
The
MPCA intends to have its certification or inspection report form reviewed by a
sample number of financial institutions to ensure that it is adequate to meet
their needs for compliance verification.
The MPCA moved to the registration process to minimize administrative burdens and wants to
make sure that it does not impede a producer's ability to secure loans for
operating. The increased number of
delegated counties will also help in that the producer will have a center to
check the status of a particular registration.
Finally, the inspection form will be key to reduced time drafting
letters that can be completed using a consistent form.
The
MPCA's program plan cannot be finalized until the rulemaking process is
complete. However, the MPCA has begun
to revise the program plan based on suggestions received during the public
comment period. The program plan will
guide implementation and will be shared with FMMAC, delegated counties, and
other interested parties.
The
MPCA expects to meet the needs of the livestock producers by increasing the
number of delegated counties, improving administrative processes, and
developing the forms that can be used by all inspectors for gains in review
efforts and developing a consistent approach throughout the state.
D.
General permit criteria.
In its
February 10, 2000 letter, MPPA expressed concern that part 7020.0405 did not
clearly spell out the difference between an individual and a general NPDES
permit. MPPA is concerned with the
level of annual permit fees for the individual NPDES permit (approx. $1240/yr.)
compared with the annual permit fee for a general NPDES permit (approx.
$260/yr.). MPPA argued that all NPDES
permits should be general permits except for those facilities with a history of
noncompliance; those sites would then get an individual permit.
This
rule amendment did not need to expressly address the differences between the
two permits because another applicable MPCA permit rule explicitly addresses
criteria that can be used to decide when each of the permits may be used. In addition, MPCA is still in the process of
developing criteria, in consultation with FMMAC, for determining when to issue
various individual or general NPDES permits in response to recent legislative
requirements that MPCA develop such criteria.
Finally, EPA has also proposed some draft criteria for public comment on
factors to consider in deciding which permits to issue. In light of these situations, MPCA is not in
a position to alter the existing applicable general permit rule with more
specific feedlot criteria in chapter 7020.
MPCA
already has an applicable permit rule for the issuance of general permits; this
rule is directly applicable to feedlot permits issued under chapter 7020. Minn. R. 7001.0210 applies to permits listed
in part 7001.0020 and feedlot permits, including the NPDES and SDS permits, are
covered by Minn. R. 7001.0020, item F.
Minn. R. 7001.0020 and 7001.0210, subp. 1 (1997). Minn. R. 7001.0210, subp. 3 identifies the
types of findings that MPCA must make before MPCA can issue a general permit
and those findings include:
A. there are several permit applicants or potential permit
applicants who have the same or substantially the similar operations,
emissions, activities, discharges or facilities;
B. the permit applicants or potential permit applicants discharge,
emit, process, handle or dispose of the same types of waste;
C. the operations, emissions, activities, discharges or facilities
are subject to the same or substantially similar standards, limitations and
operating requirements; and
D. the operations, emissions, activities, discharges or facilities
are subject to the same or substantially similar monitoring requirements.
Minn.
R. 7001.0210, subp. 6 also identifies some factors that MPCA must consider in
deciding whether an individual permit is appropriate and those factors include:
A. whether the operations, emissions, activities, discharges or
facilities of the permit applicant or permittee have characteristics creating
the potential for significant environmental effects;
B. whether the permittee, if applicable, has been in compliance
with the terms of the general permit and applicable rules and statutes; and
C. whether the operations, emissions, activities, discharges or
facilities have been altered such that they not longer fit within the category
covered by the general permit.
This
existing general permit rule adequately identifies the various factors used to determine the differences between
general and individual permits and by itself, the rule provides sufficient
basis to not adopt duplicate factors in chapter 7020. However, there are additional reasons that prevent MPCA from
currently articulating all the factors that may be used to decide when a
general permit is appropriate. In
recent legislation, MPCA was directed to
develop criteria, in consultation with FMMAC, for determining whether
individual or general NPDES permits were required in specific situations. Minn. Stat. § 116.07, subd. 7c(e)-(f)
(1998). Depending upon the particular
situation, the criteria must be based on proximity to waters of the state,
facility design, violations and compliance problems at the facility and other
site-specific environmental factors. Id. MPCA initiated this development process in
the fall, 1998 and met with a FMMAC subcommittee on the criteria but that
process and the criteria have not been finalized so it would not be appropriate
or prudent to attempt to adopt rule criteria, if needed, without completing
that process.
Finally,
EPA is recommending consideration of a variety of factors when deciding if a
general permit is appropriate. SONAR,
Exhibit P-2, pp. 4-1, 4-2. The EPA 1999
Guidance Manual recommends the use of an individual NPDES permit if any of the
following criteria are met: the CAFO is
new, the CAFO is undergoing a significant expansion, the CAFO is exceptionally
large, the CAFO has significant environmental concerns or the CAFO has
historical compliance problems. Id.,
p. F-4. MPCA will likely take these
EPA recommendations into consideration as it moves forward to complete its
criteria development process. In any
case, there is already an existing rule and sufficient other guidance
addressing the types of information that shows the differences between general
and individual NPDES permits. During
the hearing process, MPCA explained its intent on getting some general NPDES
permits developed and issued to address owners’ concerns about annual permit
fee costs. The public notice and the
general permits will again likely identify the types of facilities covered and this
will be another way to inform owners on how to distinguish between the types of
permits. Based on this information and
reasons, MPCA does not propose to revise this rule to add text addressing the
differences between general and individual permits. During the transition, MPCA will work with owners to educate them
on the applicability of their situation to the general permit so that costs can
be reduced where appropriate.
VII. Closing and Conclusion.
The MPCA submits its initial post-hearing responses on the proposed feedlot rules, Minn. R. Chapter 7020 with this memorandum. The MPCA has received and reviewed comemnts, oral and written on the need and reasonableness of the proposed feedlot rules and related program activities. The preceding text represents the MPCA's initial proposed rule changes and responses on issues raised at the 13 public hearings and the hundreds of letters received during the public comment period.
The MPCA has heard the concerns and reviewed the factual data submitted into the record. In reviewing the record the MPCA found four main areas of concern including the regulations of pastures, definition animal units, land application and manure management plans and water quality discharge standards. The MPCA staff carefully reviewed and considered the alternatives suggested by the commenters in making a determination as to the need for minor refinements in the proposed rules as described in this memorandum.
The MPCA is not prepared to present final responses and rule changes to every provision of the rule that was comment on. The MPCA has made every effort to include changes to rule language or at least indicate the direction the MPCA is moving with regard to the particular provision.
The MPCA believes that the rules as proposed are needed and reasonable. The public comment process resulted in new information or language suggestions to clarify provision contained in the rules. Where the suggestions and information supported a reasonable alternative or additional approach, the MPCA has attempted to incorporate those suggestion.
VIII. ATTACHMENTS.
1.
Fact
Sheet “The Generic Environmental Impact Statement on Animal Agriculture,”
Minnesota Environmental Quality Board, February, 1999
2.
Report
to Minnesota Legislature, “Feedlot Issues: Animal Waste Liability Account,
Incident Reporting and Contingency Action Plan.” Minnesota Pollution Control Agency, February 1999.
3.
Unused
4.
Unused
5.
Daily
Parameter Report – Auxiliary Averages, Continuous Air Monitoring Data, Hancock
Pro Pork, Stevens County, Minnesota, 11/12/99 – 11/13/99 & 11/15/99.
6.
Ambient
Air Concentration of Hydrogen Sulfide During Agitation and Pump Out, Liquid Manure Storage System, Swine Nursery
Facility, University of Minnesota and National Pork Producers Council, Fall,
1999.
7.
The
Origin of the State Ambient Air Quality Standards for Hydrogen Sulfide, James
E. Sullivan, Minnesota Pollution Control Agency, March 2, 2000.
8.
“Prefill and Water Balance Criteria,” Minnesota
Pollution Control Agency, July 1989
9.
Historical
Highlights: 1997 and Earlier Census Years, Historical Highlights: 1997 and
Earlier Census Years, United States Department of Agriculture, National
Agricultural Statistics Services, 1992 and 1997.
10.
EPA
Memorandum from J.Charles Fox, Assistant Administrator, Office of Water, to
John H. Hankinson, Jr., Regional Administrator, U.S. EPA Region 4, September
27, 1999.
11.
Unused
12.
Unused
13.
Phosphorus
Index, matrix Structure, Numerical Processing Technique, & BMP Index
Proposed for NRCS Automation of Phosphorus Index, United States Department of
Agriculture, 12/13/99.
14.
Report
On Noncommercial Manure Applicator Training and Certification to the 1999
Minnesota Legislature, Minnesota Department of Agriculture, January, 1999.
15.
Nitrogen
and phosphorus management on Wisconsin Farms: Lessons learned for agricultural
water quality programs, R Shepard, Journal of Soil and Water Conservation,
First Quarter, 2000.
16.
Examining
manure myths and misconceptions, Kurt Gutknecht, Wisconsin Agriculturist,
September 1997.
17.
Results
of University of Minnesota On-Farm Manure Management Project, Jeffrey Lopez,
1999.
18.
Report on Evaluation of Minnesota Water
Balance Test, Consulting Engineers Council of Minnesota and MPCA, April 1989
19.
A
Manure Management Survey of Minnesota Swine Producers: Effect of Farm Size on
Manure Application, Schmitt, M.A.; Schmidt, D.A.; Jacobson, L.D.; Applied
Engineering in Agriculture, Vol. 12(5):
595-599
20.
Practical
and Innovative Measures for the Control of Agricultural Phosphorus Losses to
Water: An Overview, Andrew Sharpley, Bob Foy and Paul Withers, Journal of
Environmental Quality, 29:1-9(2000).
21.
Manure
Application and Water Quality, Slides Prepared and Presented by Dr. Neil C.
Hanson, West Central Experiment Station.
22.
Agricultural
Productivity in the United States, Ahearn et.al., United States Department of Agriculture, Economic Research
Service, Agriculture Information Bulletin No. 740, 1/98.
23.
A
Borderless Perspective, Wirtz, Ronald A.
Federal Reserve bank of Minnesota, January, 2000.
24.
Where
have all the Packing Plants Gone? The
New Meat Geography in Rural America, Drabenstott et.al., Economic Review, Third
Quarter, 1999.
25.
Concentration
& Competition In the U.S. Food & Agricultural Industries, United States
Department of Agriculture, Economic Research Service, Agricultural Outlook, May
1999.
Dated: March ______, 2000. _____________________________
Gordon E. Wegwart, P.E.
Assistant Commissioner
Commissioner's Office
[1] Azzam, Asseddine M., “Assessing Competition in Meatpacking: Economic History, Theory and Evidence,” USDA, Packers and Stockyards Programs, GIPS-RR 96-6, May 1996.
[2] “The Clinton Administration’s Proposal for Improving the Farm Safety Net,” USDA Fact Sheet, http://www.usda.gov/news/releaes/5001htm.
Becker, Geoffrey S. and Jasper Womach, “IB10043: Farm Economic Relief: Issues and Options for Congress,” Congressional Research Service Issue Brief for Congress, distributed by the National Institute for the Environment (http://cnie.org), October 18, 1999.
Becker, Geoffrey S, “IB10021: Animal Agriculture: Issues for the 106th Congress,” Congressional Research Service Issue Brief for Congress, distributed by the National Institute for the Environment (http://cnie.org), September 22, 1999.
Yavis Jones, Jean, “RS20020: The Agricultural Economy: Recent Action and Early Issues for the 106th Congress,” Congressional Research Service Issue Brief for Congress, distributed by the National Institute for the Environment (http://cnie.org), July 1, 1999