March 13, 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 FINAL
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) submitted its
Initial Post-Hearing Responses on March 6, 2000 (hereinafter Post-Hearing
Responses). Enclosed is the MPCA’s
final response to information presented in the 13 public hearings and hundreds
of comment letters submitted since the last hearing on February 14, 2000. The Initial March 6 Post-Hearing Responses
focused on letters submitted before February 25, 2000. This document focuses on comments submitted
after that date, finalizes rule changes discussed in the Initial March 6
Post-Hearing Responses and provides a rule document (Attachment 1) that shows
all of the changes the MPCA proposes in response to the hearing testimony and
comment letters. Attachment 1
(hereinafter Att. 1) is a compilation of changes to the proposed rules as
identified in the MPCA's Initial March 6 Post-Hearing Responses and in this
document, the MPCA's Final Post-Hearing Responses.
This
document follows the same format as the Initial March 6 Post-Hearing
Responses. 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.
Ground
water monitoring.
B.
SONAR
availability.
C.
MPCA's
statutory authority.
III. Specific Rule Part Responses.
IV. Miscellaneous Responses.
A. Memorandum of Understanding with Department of Agriculture.
B. NPDES Permit Program Implementation.
V. Responses to SONAR Economic Analysis Comments.
VI. Program Implementation.
A. Regulation of Pastures.
VII. Closing and Conclusion.
VIII. Attachments.
I. Summary of Focus and Key Elements of Proposed Rule Amendments.
This
is the MPCA’s Final Responses to comments and a description of proposed
amendments that have been made or will be made to the proposed rules. As stated in the Post-Hearing Responses,
this Final Responses contains all amendments that the MPCA staff recommends be
made to the proposed rules including specific changes related to pastures and
land application that were described only generally in the Post-Hearing
Responses. Several additional changes
have been made to the proposed rule and those proposed changes are discussed in
the following pages. The key changes
related to MPCA recommendations in its Initial March 6 Post-Hearing Responses
related to:
II. General Responses.
A. Ground Water Monitoring.
Written comments were made recommending that ground water monitoring be required around all liquid manure storage areas (See for example the March 2, 2000, letter from Suzanne McIntosh of Clean Water Action Alliance (page 16) and February 3, 2000 letter from Ronald Miner from Corvallis, Oregon).
The
issue of ground water monitoring requirements was addressed in the Post-Hearing
Responses pp. 64-65, and in oral testimonies by Dave Wall (MPCA) during the
hearings on February 10 and February 11, 2000, in Little Canada. Summarized below are some of the primary
reasons why adding ground water monitoring requirements to chapter 7020 is not
needed or reasonable.
Through Minn. R. 7060.0600
the MPCA 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.” Minn. R. chapter 7060 is 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 but not limited to:
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 MPCA 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.
Research has 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 may be needed to define background
conditions and increase the probability of detecting seepage problems. As noted previously, the exact nature of the
monitoring network is dependent upon numerous site-specific factors. For these reasons, it is difficult to devise
a detailed rule that would cover all situations. Thus, the MPCA will address monitoring on a case-by-case basis.
B. SONAR Availability.
In
his March 3, 2000 submittals, Zenas Baer asserts that the availability of the
SONAR was “severely limited” and “not timely available” because he did not
receive word that the SONAR was available until sometime in mid-January. Counsel
provides no other facts to support his allegations other than his own apparent
notice issue. Contrary to Mr. Baer’s allegations, the MPCA adhered to the
procedural requirements of the Administrative Procedures Act (APA) and notified
the public, including agricultural industry representatives, that the SONAR was
available as early as the third week in December 1999, approximately 5 weeks
before the beginning of the public hearing process and approximately 8 weeks
before the beginning of the post-hearing initial comment period. The MPCA followed the APA requirements and
there is no reasonable basis to allege the SONAR was not timely available or
that its availability was severely limited.
The
SONAR was finalized and executed by MPCA on December 9, 1999. SONAR, p. 282. The MPCA’s order of notice for hearing was executed on December
10, 1999. 24 S.R. 853 (Monday, December 20, 1999). Notice of the availability
of the SONAR was provided in numerous ways.
For example, notices of hearing were mailed to numerous people,
including industry and FMMAC representatives, during the third week in December
1999. See MPCA Exhibits 4b, 5, 6a and 6b. Those mailings included copies of the notice
of hearing which notice discussed the immediate availability of the SONAR in a
variety of means, methods and forms. See
MPCA Exhibit 4b. On Monday, December
20, 1999, MPCA published its notice of hearing in the State Register and that
notice announced that the SONAR was now available and explained how interested
persons could view available copies at specified locations, obtain their own
copies (either paper copy or electronic copy), or view a copy of the SONAR on
the MPCA web page. 24 S.R. 853 (Monday,
December 20, 1999). Notice of SONAR
availability was given approximately 5 weeks before the beginning of the public
hearing process.
Mr. Baer provides absolutely no facts
supporting his accusation that the availability of the SONAR was severely
limited or not timely available other than his bald assertion that he didn’t “receive
word” until mid-January. Counsel’s
apparent failure to avail himself of the opportunities provided him to obtain
notice or copies of the SONAR are not a basis on which to find that the
industry was deprived of an opportunity to meaningfully participate in this
rulemaking process. This rulemaking
record contains substantial evidence that the public, including the
agricultural industry, was afforded adequate and lawful notice of the SONAR
availability and on that record, MPCA has demonstrated it has complied with all
APA requirements.
C.
MPCA's Statutory Authority.
In
his March 6, 2000 submittals, Zenas Baer asserts that “[a]ll attempts to
regulate non CAFOs are without statutory authority” because, according to his
analysis, “the only substantive authority for regulation of feedlots by the
Minnesota Pollution Control Agency is the [federal] Clean Water Act.” Mr. Baer’s analysis leads him to conclude
that “[t]he only statutory basis for the Agency’s regulation of animal feedlots
comes through the delegated authority of the Environmental Protection
Agency.” Under Mr. Baer’s analysis,
MPCA’s feedlot regulatory program is only authorized to regulate CAFOs that
meet the three CAFO categories under the CAFO definition in 40 C.F.R.
122.23(b)(3). See Z. Baer Doc.
No. 1, pp. 5-6. Under the Baer
analysis, MPCA’s 29 year-old feedlot (the non-CAFO part) regulatory program has
had no legal authority to exist.
Contrary to the Baer analysis, MPCA has clear state-based authority to
regulate more than the three categories of CAFOs and MPCA has had such
authority and feedlot regulations far in advance of any authorizations by U.S.
EPA to administer the federal NPDES permit program.
History
Summary
Baer’s
own analysis acknowledges that MPCA did not obtain the EPA authorization to
administer the NPDES program until June 1974.
See Z. Baer Doc. No. 1, p. 7; See also 52 Fed. Reg. 47635 (December 15, 1987) (EPA notice
summarizing MPCA NPDES authorization and acknowledging June, 1974
authorization). Yet, even before the creation
of the MPCA in 1967, the state’s water pollution control act, chapter 115,
authorized the regulation of animal manure under a state-authorized permit
program. Minn. Stat. §§ 115.01-115.09
(1965). Under that Act, the MPCA’s
predecessor (the water pollution control commission) had the authority to issue
permits for the installation and operation of disposal systems that were used
to dispose of the excrementitious or other discharges from animals and any
other substance which had the potential to or tended to pollute waters of the
state. Minn. Stat. §§ 115.01, subds. 2,
4 and 8; 115.03, subd. 1 (1965). Those
disposal systems included fields, lagoons and other works that were installed
to treat or dispose of discharges and substances. Minn. Stat. § 115.01, subd. 7 (1965). The permitting authority went beyond disposal systems; permits
could be issued for (1) the prevention of pollution and (2) for the discharge
of sewage and other wastes. Minn. Stat.
§ 115.03, subd. 1 (1965). Those same authorities and more exist today
authorizing MPCA to regulate all sorts of feedlots and animal manure, not just
the NPDES-covered three CAFO categories.
After
the creation of the MPCA in 1967 and well before the June 1974 NPDES
authorization, the MPCA promulgated and adopted regulations addressing animal
manure, the utilization of animal manure used as fertilizer and the
implementation of a state permitting program for all new feedlots and animal
lots. MPCA’s Minn. Reg. SW 51-55 (dated March 8, 1971 and filed with the
Secretary of State and Commissioner of Administration, April, 1971). The regulations and standards, including
those for the construction and operation of disposal
systems, were adopted in accordance with MPCA’s chapters 115 and 116. Minn.
Reg. SW 51 (Applicability) (March 8, 1971).
The
statutory authority allowing MPCA to adopt these initial feedlot regulations
included authority to regulate not only animal manure that was discarded as
unwanted waste material but also to regulate manure that was used as fertilizer
to ensure such usages did not, in themselves, tend to cause pollution. Under chapter 115, the MPCA had the
authority to regulate and issue permits for disposal
systems that were used to manage the excrementitious and other discharges
from animals and all other substances which had the potential to or tended to
pollute the waters of the state. See
Minn. Stat. §§ 115.01, subds. 2, 3, 4, 8 and 115.03 (1969). The MPCA also had authority to issue permits
for matters other than disposal systems; for example, the MPCA was authorized
to issue permits to (1) prescribe conditions needed to prevent pollution and
(2) to prescribe conditions regarding discharges of sewage and other
wastes. Minn. Stat. § 115.03, subd. 1
(1969). Among other statutory provisions,
the MPCA also had the authority to adopt regulations and standards for the
prevention and control of “any material” that has the potential to cause
pollution:
Pursuant and subject to the provisions of chapter
15, and the provisions hereof, the pollution control agency may adopt, amend,
and rescind regulations and standards having the force of law relating to any purpose within the provisions of
this act for the collection, transportation, and disposal of solid waste and
the prevention, abatement or control
of water, air, and land pollution which may be related thereto, and the deposit in or on land of any other
material that may tend to cause pollution. . . . . Without limitation, regulations or standards may relate to
collection, transportation, disposal, equipment, location, procedures, methods,
systems or techniques or to any other
matter relevant to the prevention,
abatement or control of water, air, and land pollution which may be advised
through the control of collection, transportation, and disposal of solid waste,
and the deposit in or on land of any
other material that may tend to cause pollution.
Minn.
Stat. § 116.07, subd. 4 (1969)(emphasis added). In 1971 and in years preceding MPCA’s undertaking of the
promulgation of regulations for animal feedlots and manure, there was no
statutory language limiting MPCA’s feedlot and manure regulatory programs to
only those delegated from the federal government, including EPA, and
specifically, no statutory prohibition stating that MPCA was not allowed to
adopt regulations for feedlots and manure except under some CAFO permit program
authorized by the federal government.
The
1971 MPCA regulations included
provisions on the storage, transportation and utilization of animal
manure regardless of whether it was being used as fertilizer or being
discarded. Minn. Reg. SW 52 (March 8,
1971). The regulations allowed, at the
MPCA’s discretion, the MPCA to require registration of existing feedlots and
required permits for all new livestock feedlots, poultry lots and other animal
lots. Minn. Reg. SW 53(1) and (2)
(March 8, 1971). If the MPCA determined
a potential pollution hazard existed, the feedlot operator was required to obtain
a permit to install pollution control devices.
Id., 53(3). The
regulations were broad in scope in an effort to ensure preventative actions were taken. For example, “potential pollution
hazard” was defined as “a condition that may in the reasonably foreseeable
future cause pollution of the land, air or waters of the State.” Minn. Reg. SW 51(19) (March 8, 1971). Pollution prevention measures have always
been a big part of the MPCA's efforts, rules and permits.
After
the MPCA had initiated its state-based feedlot and animal manure regulatory
program in 1971 and before the June, 1974 NPDES authorization, the Minnesota
legislature enacted the statutory provision that enabled MPCA to promulgate
rules for the delegated county feedlot program. 1973 Minn. Laws, chapter 573 (May 23, 1973). That legislation allowed MPCA to delegate
permit-issuing authority to the authorized counties. Id. (enacted as Minn. Stat. § 116.07, subd. 7). That 1973 legislation also mandated MPCA to
adopt rules governing the issuance and denial of permits for feedlots by the
counties:
The pollution control agency, by January 1, 1974,
and in the manner provided by chapter 15, shall adopt rules governing the
issuance and denial of permits for livestock feedlots, poultry lots or other
animal lots pursuant to this section.
These rules shall apply both to permits issued by counties and to
permits issued by the pollution control agency directly.
1973
Minn. Laws, ch. 573, sec. 1 (approved May 23, 1973).
Obviously, the legislature was well aware of
the then-existing MPCA feedlot program and there is nothing in the new proposed
legislation limiting MPCA to any federally-delegated CAFO or Clean Water Act
program or indicating that the legislature intended MPCA to delegate any
federally-authorized permit program to the counties. In fact, MPCA staff is not currently aware of any federal
regulation that would have allowed any federal agency, including EPA, to
delegate the primary NPDES permit program to any other state-created local
political subdivision such as counties.
It is MPCA staff’s current understanding that the EPA delegation of that
primary NPDES permitting program has been limited to delegations to authorized
state agencies. See e.g. 40
C.F.R. parts 122.1(c) and 122.2
(definitions of “state” and “state director”).
There is no reasonable legal basis to argue that as of May 1973, MPCA
was only authorized to run a “CAFO-only” feedlot program that was to be
delegated from the federal government and that MPCA was then expected to
delegate that federally-delegated “CAFO-only” feedlot program to authorized
counties.
In
response to the May 1973 legislation and again, prior to the June 1974 NPDES
authorization, the MPCA adopted additional regulations to supplement the
existing Minn. Reg. SW 51-55 and to incorporate the delegated county permit
program. Minn. Reg. SW 56-61 (filed
January 11, 1974). Consequently, MPCA
operated the state-based animal feedlot and manure regulatory program using
Minn. Reg. SW 51-61 prior to any EPA authorization for the NPDES program in
June 1974, and did so based on state statutes
that
clearly authorized the regulation of CAFO and non-CAFO feedlots, animal manure,
associated discharges and disposal, and any other materials that had the
potential to cause pollution.
After
the June 1974 NPDES authorization and in March 1979, the MPCA initiated a
rulemaking to repeal SW 51-61 and to adopt new rules for the control of
pollution from animal feedlots. 3 S.R.
1716 (March 12, 1979). MPCA relied on
its authorities in chapters 115 and 116, including sections 115.03 and 116.07. See
e.g., Minn. R. 7020.0100 (1997). In
June 1979, the state hearing officer issued his report finding, in part, that MPCA had the authority in chapters
115 and 116 to adopt the proposed rules.
Report of Hearing Examiner (State Hearing Officer Howard L. Kaibel,
Jr.), In the Matter of the Proposed Adoption of 6 MCAR Sec. 4.8051 - Sec.
4.8052 Constituting Rules for the Control of Pollution from Animal Feedlots and
the Repeal of Minn. Rules SW 51-61, June 6, 1979, Findings of Fact, para. 9
and Conclusions, para. 3. The rules
were eventually adopted that year and that MCAR citation form was subsequently
modified to the current citation form (Minn. R.) and those are the chapter 7020
rules that MPCA uses today to implement and administer the feedlot program.
In
the 29 year history of MPCA’s feedlot regulatory program, the MPCA and its
delegated counties have issued numerous permits to facilities of all sizes,
including many non-CAFO feedlots, based on the state statutory authorities that
existed both pre- and post-NPDES authorization of June 1974. In the approximate 21 year history of MPCA’s
implementation of the current chapter 7020, the legislature has had numerous
opportunities to review MPCA’s comprehensive feedlot program, including times
when it adopted amendments to section 116.07, subd. 7 and related provisions
and at no time did the legislature restrict MPCA’s program to a “CAFO-only”
scope. To the contrary, MPCA’s statutes
provide broad, comprehensive authority to ensure that MPCA can implement the
needed precautions to prevent, abate and control pollution from all types of
feedlots, CAFOs and non-CAFOS, and from the storage, transportation, disposal
and utilization of animal manure, even when the manure is intended to be used
as fertilizer.
Existing
Authorities
The
SONAR provides extensive citations and recitation of the statutory authorities
that allow the MPCA to proceed with this rulemaking. SONAR, pp. 3-7. The
following brief discussion is not intended as an exhaustive review of all of
these statutory provisions but is, instead, a summary review of some key
provisions that demonstrate the MPCA’s broad authority to adopt rules for the
proposed permitting system and to regulate animal feedlots (e.g. CAFO and
non-CAFO) and animal manure, regardless of whether the manure is or is not used
as fertilizer.
As
the history summary demonstrates, the MPCA has state-based statutory authority
for the feedlot regulatory program in general and for what has been termed the
“State Disposal System” or “SDS” permit process. The acronym “SDS” was initially derived from the fact that it is
the State Water Pollution Control
Act, Minn. Stat. §§ 115.01-115.09, that authorizes the MPCA to issue permits
for, among other matters, the construction, installation and operation of disposal systems. Minn. Stat. § 115.09 (1998). The “SDS” tag
was a convenient acronym to use for permits issued under chapter 115 and
related authorities and that tag has stuck over the years, though the
permitting authority extends beyond just disposal systems.
Under
the state water pollution control act, the MPCA has the power and duty to
issue, reissue, modify, deny or revoke permits
in order to prevent, control or abate water pollution and for the “installation
or operation of disposal systems or parts thereof, or for other equipment and
facilities” and to adopt rules to effectuate those powers and duties. Minn. Stat. § 115.03, subd. 1(e)
(1998). The fact that the MPCA can
issue permits for more than just disposal
systems is repeated in other parts of chapter 115. For example, MPCA can issue permits:
Requiring the construction, installation,
maintenance, and operation by any person of any disposal system or any part
thereof, or other equipment and facilities, or the reconstruction,
alteration, or enlargement of its existing disposal system or any part thereof,
or the adoption of other remedial
measures to prevent, control or abate any discharge or deposit of sewage,
industrial waste or other wastes by any person.
Minn.
Stat. § 115.03, subd. 1(e)(4) (1998) (emphasis added). The important aspect of this provision is
the fact that permits can be required for equipment, facilities and remedial
measures, as well as disposal systems.
In addition, the MPCA may issue permits under conditions it prescribes
to prevent, control and abate water pollution. Id., subd. 1(e).
Disposal
system means a system for disposing of sewage, industrial waste and other
wastes and includes treatment works such as fields, lagoons and other works
installed for the purpose of treating, stabilizing or disposing of sewage or
other wastes. Minn. Stat. § 115.01,
subds. 5 and 21 (1998). Animal
feedlots, manure storage areas, their appurtenances and the related methods of
operations constitute a variety of systems, equipment, facilities and remedial
measures that are subject to the permitting authorities under the MPCA’s
statutes.
The
MPCA’s authority to issue permits for the handling and storage of a variety of
liquid and solid substances also covers all aspects of the handling and storage
of manure at feedlots and manure storage areas. This is just another example of
how chapter 115 and related authorities authorize the MPCA to issue permits for
more than just disposal systems. For
example, the MPCA can issue permits or adopt rules:
Prohibiting the storage of any liquid or solid substance or other pollutant in a manner which
does not reasonably assure proper retention against entry into any waters of
the state that would be likely to pollute any waters of the state.
Minn.
Stat. § 115.03, subd. 1(e)(3)(1998) (emphasis added). The term “pollutant” means sewage, industrial waste or other
wastes. Minn. Stat. § 115.01, subd. 12
(1998). The important aspect of
subdivision 1(e)(3) is that rules can be adopted or permits can be issued to
regulate the storage of “any liquid or solid substance” in addition to the
three other terms covered by “pollutant.”
Consequently, even animal manure, intended for any use or discard, can
be subject to regulation by the MPCA rule or permitted to assure it is properly
handled and stored even if one argues that animal manure is not a “pollutant”
(i.e. sewage or other waste). Clearly,
animal manure and related process wastewaters are liquids and solid substances
which would be likely to pollute state waters if entry is not properly
regulated and prohibited to prevent discharge or seepage.
As
this brief summary demonstrates, the MPCA’s permitting and rulemaking
authorities cover a comprehensive area of physical structures (e.g. facilities,
fields, lagoons, systems, etc.) and operations (e.g. storage, remedial
measures, systems, etc.) that are regulated to prevent, abate and control pollution. While the MPCA has adopted, for historical and simplicity
purposes, the acronym “SDS” for those permits issued pursuant to these
authorities (and others identified in the SONAR, pp. 3-7), those SDS permits or
rules are not limited to the regulation of disposal systems alone. Thus, the MPCA’s authorities can cover all
aspects of animal feedlots, manure storage areas and animal manure use
necessary to prevent, abate and control pollution created or potentially
created there from.
While the term “manure” does not expressly appear in the state’s water pollution control act, animal manure is clearly regulated under chapter 115 and other authorities identified in the SONAR, pp. 3-7. For example, in 1998, the legislature adopted provisions addressing “manure storage structures”:
Until new rules are adopted that provide for plans
for manure storage structures, any plans for a liquid manure storage structure
must be prepared or approved by a registered professional engineer or a United
States Department of Agriculture, Natural Resources Conservation Service
employee.
1998
Minn. Laws, ch. 401, sec. 41 (now codified at Minn. Stat. § 116.07 subd.
7(j)). In addition, “manure pits and
appurtenances, which may include slotted floors and pipes, installed or
operated in accordance with the MPCA permit application rules are subject to
certain exempt-property status. Minn.
Stat. § 272.02 (1998). Finally, the
legislature created the Feedlot and Manure Management Advisory Committee
(FMMAC) to identify goals and suggest policies for regulatory activities
regarding feedlot and manure management.
Minn. Stat. § 17.136 (1998).
FMMAC was extensively involved in developing the policy choices made
regarding rule provisions in this proposed amended chapter 7020. So even if the word “manure” is not
extensively used in the MPCA’s
statutes,
the legislature clearly intended that manure should be regulated to prevent
pollution. See Minn. Stat. § 115.01, subd. 17 (1998)
(excrementitious or other discharges from the bodies of animals).
Animal
manure is subject to the pollution control laws, regardless of whether it is
used as fertilizer or discarded, because its handling, storage, utilization and
disposal can have pollution effects.
Animal manures, even if intended to be used as fertilizers, are not
typically handled, stored or used in the same manner that commercially produced
fertilizers are handled, stored or used so there is a need for additional
precautions to ensure proper storage and use.
The MPCA has discussed the potential pollution implications and effects
of manure in detail. See SONAR, pp. 10-19. In addition, the MPCA has addressed public comment on why manure
application is regulated and commercial fertilizer is not. Post-Hearing Responses, pp. 94-95. Manure contains bacteria, viruses, and other
human and animal disease-causing organisms (pathogens) which are not present in
commercial fertilizers. Id., p.
94. Nutrient components in manure
cannot be divided as they can be in commercial fertilizers so manure
applications have a higher risk of overapplying certain unneeded nutrients. Id.
Manure intended to be used as fertilizer is typically land applied
during the winter, when it is convenient or necessary to do so by the producer,
unlike the producers’ typical decisions not
to apply commercial fertilizers in the winter - winter application of manure
can create a greater potential for both ground and surface water
pollution. Id. Manure application has numerous additional
complexities that tend to result in the over-application of manure compared to
commercial fertilizers. Id., pp.
94-95. It is also a fact that the
storage and application of manures have air emission and odor implications that
are not typically associated with the storage, handling and use of commercial
fertilizers. See SONAR, pp.
18-19. And finally, it’s a common fact
that commercial fertilizers are typically stored in totally enclosed
impermeable tanks whereas manures are often stored in earthen pits, lagoons and
basins that are subject to seepage and the risk of overflowing and discharging
due to exposure to weather elements. In
summary, there are substantial reasons that animal manures are subject to more
regulatory scrutiny than commercial fertilizers and that is historically why
the MPCA regulations and rules have addressed animal manures, even when the
manure is intended to be used as fertilizer.
Contrary
to the Baer assertions, the MPCA’s statutes address the potential pollution
issues regarding animal manure in detail.
It goes without saying that animal waste discharges from open lots,
overflowing of manure lagoons, pits and basins, the pumping and piping of manure
all to waters of the state are not
using manure as a fertilizer. These
situations and other similar mishandling and inappropriate storage of animal
manures are in fact the discharge of pollutants to waters of the state creating
the potential for or actual pollution as defined in the MPCA’s statutes. Minn. Stat. § 115.01, subd. 13 (1998). Pollutant can mean sewage and other wastes
when discharged to a disposal system and to waters of the state. Id., subd. 12. Thus, pollutant means the excrementitious
and other discharges from animals. Id.,
subd. 17. Pollutant means “other waste”
and that includes solid waste, biological materials, agricultural waste and all
other substances, which may pollute or tend to pollute the waters of the state. Id., subd. 9. The federal Clean Water Act also treats
animal manures in this same way. See
Concerned Area Residents for the Environment v. Southview Farms, 34 F.3d
114, 117 (2nd. Cir. 1994) (pollutant includes solid waste, sewage, biological
materials and agricultural waste, and thus includes manure); Higbee v. Starr,
598 F. Supp. 323, 330 (E.D. Ark., 1984) (pollutant includes agricultural waste
and hog waste that accumulates in holding basins is agricultural waste). When manure is not being properly handled,
stored and utilized and is then stored improperly so as to potentially seep
into ground water or discharge to surface waters or is inappropriately land
applied (e.g. during a rain storm event or saturated soil conditions giving
rise to runoff discharges to waters), it can hardly be argued that the manure
is used as fertilizer. In these and
similar situations, the manure is clearly a waste in the context of the various
the MPCA statutory definitions or other substance that is subject to the MPCA’s
statutory duty to be addressed so pollution is prevented, abated and
controlled.
Even
if animal manure used as fertilizer was not a part of these various defined
terms, manures in any form or for any intended purpose and the associated
process wastewaters are “liquid or
solid substance[s]” that are subject to the MPCA regulation to assure they are
properly stored and handled to protect against entry to waters of the
state. Minn. Stat. 115.03, subd.
1(e)(3) (1998). In addition, even
animal manure used as fertilizer is “any material” that is subject to the MPCA
rules relating to collection, transportation, disposal, equipment, location,
procedures, methods, systems and techniques and to any other relevant matter
associated with the “deposit in or on land of any other material that may tend
to cause pollution.” Minn. Stat. §
116.07, subd. 4 (1998). These
authorities and other similar authorities have historically formed the basis
for the MPCA’s regulation of manure regardless of whether it was going to be
discarded or used as fertilizer.
Baer
ignores these and other relevant authorities and instead stretches to limit the
MPCA’s pollution prevention laws by referring to other statutes that are not
applicable to this animal feedlot context.
The statute Baer prefers to use, chapter 115A, wasn’t even adopted until
1980 well after the MPCA had established its feedlot regulatory program and
designed and implemented the state-based (and ultimately supplemented with the
NPDES-delegated permit program) permit program. In fact, chapter 115A is not oriented to address manure; it is,
instead, a management program focussed on such topics as hazardous waste and
mixed municipal solid waste issues. See e.g., Minn. Stat. §§
115A.175-.31; 115A.411-.558, 115A.80-.893 (1998). Baer even admits that the definitions he prefers to use are
designated for the purposes of chapter 115A. See Minn. Stat. § 115A.03,
subd. 1 (1998). The MPCA’s
long-established feedlot and manure regulatory programs and its interpretations
of its statutes should be given deference especially in the areas of protecting
the environment and public health.
In
summary, the MPCA has ample and adequate independent state statutory authority
to administer and implement a feedlot regulatory program that covers manure and
all feedlots, even if the MPCA did not have the delegated NPDES program. These
state authorities do not limit the MPCA’s programs to only those CAFO
facilities covered by the federal NPDES program. This state authority also allows the MPCA to issue permits for
more than just disposal systems and the MPCA is not limited in that permitting
program just because it chooses to use a historical and simple acronym (i.e.
SDS) to refer to all permits issued under chapter 115 and similar authorities. Finally, animal manure and associated
process wastewaters in all forms and uses is subject to the MPCA ‘s regulatory
programs. The MPCA has demonstrated the
need and reasonableness of addressing animal manure and related substances in
these proposed rules regardless of how these materials are ultimately addressed
by producers.
III. Specific Rule Part Responses.
7020.0300 DEFINITIONS. Subpart 3. Animal Feedlot.
The
Minnesota Livestock Marketing Association (LMA), in its March 3, 2000, letter
raises the issue of how the proposed rule covers livestock auction markets and
dealer businesses. They state that
uncertainty arises because the rule fails to define the term “feedlot” and the
rule does not address the amount of time animals are present at a
facility. The MPCA intends that the
proposed rule apply to livestock auction markets and dealer businesses in the
same manner as the current chapter 7020 does as described below.
First,
the MPCA does define the term animal feedlot under part 7020.0300, subpart
3. Understandably, the inclusion of
this term may not have been clear because the proposed rule dated December 1,
1999, shows only rule parts that are changing with respect to the existing
rule. The existing rule definition is
not changing and reads as follows:
·
Subp.
3. Animal feedlot. "Animal feedlot" means a lot or
building or combination of lots and buildings intended for the confined
feeding, breeding, raising, or holding of animals and 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. For purposes of these parts,
open lots used for the feeding and rearing of poultry (poultry ranges) shall be
considered to be animal feedlots.
Pastures shall not be considered animal feedlots under these parts.
Under
this definition, a facility where livestock are held in any area such that
manure may accumulate or where a vegetative cover is not maintained during the
growing season, is an animal feedlot.
This definition does not contain a time criterion. The MPCA’s experience has been that the vast
majority of livestock auction markets and dealer barns meet this
definition. The MPCA also considers
livestock barns and animal lots at fairgrounds to be animal feedlots under this
definition. The MPCA has implemented
the existing program based on this definition and has issued permits or
certificates of compliance to auction facilities and fairgrounds in certain
cases to correct pollution hazards or at the request of the owner through a
permit application.
Second,
part 7020.0200, Scope, describes that this chapter governs the storage,
transportation and utilization of animal manure. The SONAR (page 57) describes that this chapter applies broadly
to all manure-related activities. Part
7020.2000 also requires any person storing, transporting, disposing, or
utilizing animal manure or process wastewaters to comply with the technical
standards under parts 7020.2000 to 7020.2225.
Again, the SONAR (page 129) describes that this rule applies broadly to
manure-related operations, and not just feedlots and manure storage areas.
Finally,
while this chapter and the specific parts described above clearly require all
manure-related activities to comply with these parts, this does not mean that
all of these facilities must apply for and obtain a permit. For the majority of livestock auction
markets described by LMA, the MPCA expects that the rules would typically
require only registration of the facility and conformance to the applicable
technical standards for storage, handling, and land application of manure. Some of these facilities may also be
required to apply for and obtain a permit if they meet the permit requirements
under part 7020.0405. In summary, for
the reasons described above, these rules apply to the facilities that LMA
describes in its letter.
7020.0300 DEFINITIONS. Subpart 5. Animal Units.
Zenas
Baer, in his letter dated March 3, 2000, raises the issue of animal unit
values, focusing specifically on values for poultry operations. The MPCA is not proposing any additional
changes to animal unit values from those described in the MPCA’s Post-Hearing
Responses. However, clarification of
the MPCA’s determination of animal unit values for chickens is warranted. Mr. Baer seems to believe that MPCA does not
recognize the differences in the broiler and laying industries. In fact, the MPCA has again reviewed data
from the American Society of Agricultural Engineers for manure production rates
and characteristics. These data suggest
that a comparable weight layer chicken produces about twice the five-day
biochemical oxygen demand or BOD5 than a broiler chicken
produces. Given these data and the
MPCA’s existing value for all chickens of 0.01, the MPCA proposed to drop the
broiler value to half of the layer value or 0.005, as described in the
Post-Hearing Responses.
Mr.
Baer also suggests that the changes in other animal types be based solely on
animal weights. In fact, the MPCA primarily
used the BOD5 production rate when reviewing and modifying animal
unit values. The establishment of a
value for dairy cows under 1000 pounds is one example of how the MPCA used the
BOD5 value in these evaluations.
Compared to values based only on the weight of the animal, the MPCA
believes these values more accurately reflect the relative pollution potential
based on BOD5 for these animal types.
7020.0300 DEFINITIONS. Subp. 5a. Concentrated
Animal Feeding Operation or CAFO.
In response to the comments of the Minnesota Pork
Producers Association, the proposed definition of CAFO is changed to delete the
term “manure storage areas.” The issue
is what type of permit should be issued to larger manure storage areas and
whether these facilities meet the definition of CAFO if animals are not present
at the facility and that the manure storage area is not associated with an
animal feedlot. The Agency agrees that,
without the presence of animals, manure storage areas that are not associated
with a feedlot may not meet the definition of CAFO based on current federal
regulations. Thus, it is reasonable to
delete this term from the definition of CAFO.
For this same reason, “or manure storage area” is deleted from proposed
part 7020.0405, subp. 1, item A, relating to NPDES permit requirements for
CAFOs. However, manure storage areas
associated with CAFOs and non-CAFO feedlots will then likely be addressed by
that facility’s respective permit.
These changes are shown below.
As discussed in the SONAR, p. 47, manure storage areas
have the same potential for pollution as a comparable-sized animal feedlot and
therefore should be regulated as animal feedlots are regulated. For most larger manure storage areas, those
capable of holding manure produced by 1,000 or more animal units, the
applicable permit will then be the SDS permit.
This is the same permit that is required for a non-CAFO animal feedlot
capable of holding 1,000 or more animal units.
The proposed requirements regulating manure storage areas capable of
holding manure from fewer than 1,000 animal units remain unchanged with regard
to permit applicability. While larger
manure storage areas may not currently meet the federal definition of CAFO, a
manure storage area could under certain conditions (e.g. discharges from pipes,
ditches, etc.) meet the definition of “point source” and under this definition
the owner may be required to apply for a NPDES permit.
·
Subp. 5a.
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.
·
7020.0405 PERMIT REQUIREMENTS. Subpart 1. Permit required. Four types
of permits are issued under this chapter and chapter 7001: interim permits, construction short‑form
permits, SDS permits, and NPDES permits.
The owner shall apply for a permit as follows:
A. an NPDES permit for
the construction and operation of an animal feedlot or manure storage area
that meets the criteria for CAFO;
7020.0300 DEFINITIONS. Subpart 11a. Expansion or
expanded.
The
proposed definition of "expansion" or "expanded" is changed
to delete the clause "that is not located at an animal feedlot". The intent of this change is to clearly
state that the terms "expansion" or "expanded" apply to all
manure storage areas, whether or not they are located at an animal
feedlot. The MPCA was concerned that
the deleted clause could leave some to believe that increasing the storage
capacity of a manure storage area that is located at an animal feedlot that is
not increasing the number of animal units that the animal feedlot is capable of
holding could be interpreted as not meeting the definition of
"expansion" or "expanded".
It is reasonable to delete this clause to avoid that confusion.
·
Supb. 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.
7020.0300 DEFINITIONS. Subp. 17. Owner.
In
its March 6, 2000 letter, the Minnesota Pork Producers Association (MPPA)
expresses concern that the existing definition of “owner” in Minn. R.
7020.0300, subp. 17 causes confusion, and it argued that one who “controls” an
operation is not necessarily an “owner” in the typical layperson’s
understanding of what ownership might entail.
In responding to this MPPA comment, MPCA first notes that the definition
of “owner” has been in Minn. R. ch. 7020 in its current form since
approximately 1979 and that MPCA is not proposing to amend, modify or change
that definition in this rulemaking procedure.
The MPCA understands the MPPA’s expressed concerns and will, except to
add "manure storage area", respond with an explanation on the reasons
the current definition is effective and needed.
The
MPCA’s feedlot and manure regulatory program goes back at least as far as April
1971 when the MPCA filed with the Secretary of State’s office and the
Commissioner of Administration its regulations for the control of animal manure
from feedlots. MPCA Regulations for the
Control of Wastes from Livestock Feedlots, Poultry Lots and Other Animal Lots
(dated March 8, 1971 and filed April, 1971), Minn. Reg. SW 51-55. Those regulations required a permit for all
new livestock feedlots, poultry lots and other animal lots after the effective
date of the regulations, required a permit application if potential pollution
hazards existed and authorized the MPCA to require registration of existing
feedlots. Minn. Reg. SW 53(1)-(3) (March 8, 1971). At that time, the MPCA adopted the following definition of
“feedlot operator” that was then used for permitting application requirements:
·
“Feedlot
Operator” shall mean an individual, a corporation, a group of individuals, a
partnership, joint venture, owner or any other business entity having
charge or control of one or more livestock feedlots, poultry lots or other
animal lots.
Minn.
Reg. SW 51(4) (March 8, 1971) (emphasis added).
Using
this definition of operator, the MPCA a few years later adopted rules regarding
the delegated county feedlot program and those rules required the feedlot
operator to submit a permit application if a determination of a potential
pollution hazard was made. Minn. Reg.
SW 58(3) (filed January 11, 1974). In
late 1978/early 1979, the MPCA embarked on a rulemaking proceeding to replace
Minn. Reg. SW 51-61. In that
rulemaking, the MPCA decided to take a different regulatory approach because
the “operator” definition was creating administrative difficulties in the
issuance of permits to individuals who were only temporarily in charge of the
facility operation. Under the proposed
definition of “owner,” both the operator and the actual title holder, if
different, would receive a permit with both names appearing on it and the MPCA
would look to both for compliance with the new rules. Thus, all owners and operators are included in this current
definition. At that time, the MPCA argued this new definition of owner and its
implementation was reasonable to insure the rules were not avoided in cases
where there was a difference between the operator and the owner. That new definition of “owner” was adopted
and it has been the definition used in Minn. R. chapter 7020 since the late
1970’s. As the reader will note, the
current definition includes the same “control” element that was used in the
original Minn. Reg. SW 51(4) that was adopted in March, 1971.
The
MPCA’s use of the “control” element has been a part of the MPCA feedlot rules
for approximately 29 years and in its use and implementation, the MPCA is not
aware of the alleged confusion that the MPPA asserts. In fact, the MPPA proposal to delete the “control” element is not
only contrary to 29 years of its use, but it would significantly impair the
MPCA’s ability to ensure those persons making operational facility decisions
are under the legal duties and obligations to ensure rule and permit
compliance. In addition, the suggested
deletion would also be contrary to the NPDES permitting program where the EPA
has indicated that non-possession entities exercising substantial “operational
control” over the CAFO facility should be a co-permittee on the NPDES
permit. SONAR, Exhibit P-2, pp.
2-10. The EPA’s position is consistent
with the MPCA’s current owner definition.
In
the MPCA’s previous responses, the MPCA discussed in generalities the variety
of ownership and operational structures that exist today in the livestock
industry when it comes to livestock facilities. Post-Hearing Responses, pp. 59-60. It may be that the one person (e.g. the farmer) being both the
owner and day-to-day operator of a facility is still the predominant ownership
situation today, but the MPCA and certainly the MPPA is aware of the growing
number of situations where owners of facilities are entering into a variety of
legal relationships, some contractual, where those owners don’t always own the
animals at the site and in cases where the on-site owner doesn’t have complete
day-to-day management and control of the facility and aspects of the facility
that affect all aspects of the operation including those aspects dealing with
manure. In some of those situations,
some other person or entity is controlling the operations and directly
affecting the facility’s ability to comply with applicable laws. As indicated
in the MPCA’s prior responses, it is not currently possible to draft rules
addressing every alternative arrangement to take into account the various
permutations of control, possession and interest that may exist and need to be
addressed in order to ensure timely and effective compliance with the rules and
applicable permits. The EPA recognizes
that these “control” relationships are complex and that the determinations have
to, in some cases, be made on a case-by-case basis taking into consideration a
variety of factors that may show substantial operational control and thus the
co-permittee requirement. EPA’s
Guidance Manual, SONAR, Exhibit P-2, pp. 2-10.
While these EPA factors may be appropriate for the narrow example in the
guidance, these factors alone still do not address all the elements of the
various arrangements that exist and that may result in control being
established.
The
current definition has worked and the MPCA is not aware of the alleged
confusion that the MPPA asserts it is causing.
The MPPA’s proposal would impair the MPCA’s ability to ensure all
responsible persons are covered by the necessary permits and are covered by the
rules, and may impair the MPCA’s ability to ensure those entities or persons
creating violations and liabilities are properly notified of their legal
obligations, and their responsibilities for complying with Minn. R. ch. 7020
and the permits issued under that chapter.
The MPPA’s proposal has extremely important legal and policy ramifications
and potentially broad implications for the entire feedlot program. Based on the MPCA's 29-year history using
that control element and for reasons discussed above, it is not necessary or
reasonable for the MPCA to alter this definition without further evaluation
of potential effects. With the rapidly
changing face of the livestock industry, the MPCA would need substantially more
information and experience to understand the various ownership and operational
arrangements before a rule amendment would be considered. The definition of owner was thoroughly
discussed by the Feedlot and Manure Management Advisory (FMMAC) and no consensus could be reached. The MPCA understood from the discussion that
the definition should remain as currently written in chapter 7020.
The
MPPA and others commented on the permit application requirements, and the
particular issue regarding proposed part 7020.0505, subp. 4, item A.(1) that
includes the names of all owners. This
same requirement already exists in the current feedlot rule, Minn. R.
7020.0500, subps. 2.A. and 3 (1997).
The existing rule requires the permit application to list all owners and
the amended rule merely includes that requirement in a different location in
the rule. SONAR, p. 102. The MPPA argues that all owners should not
be listed but on the other hand, Clean Water Action Alliance (CWAA), in its
March 2 letter, argues that the application form should be made more explicit
with additional information on owners.
The MPPA and CWAA arguments represent the various views held by FMMAC
members and no agreement could be reached.
Thus, the MPCA does not propose to modify this existing rule in response
to these comments.
As
noted above, this current permit application requirement has been in existence
at least since the chapter 7020 version of the rules was adopted in 1979. The MPCA needs to know who the owners
(recognizing that the feedlot rule definition covers others such as operators)
of the facility are so that the MPCA can communicate with them regarding permit
or rule compliance issues. Identity of
owners and operators is important in making permitting decisions such as the
identification of co-permittees. For
example, the Minnesota legislature recently adopted explicit statutory language
regarding background investigations of feedlot permit applicants when the MPCA
is making permitting decisions. Minn. Stat. § 115.076 (1998). Other MPCA regulatory programs require the
identification of other responsible persons other than just the owner that holds
title to the facility. For example, the
MPCA’s generic permit application provision, Minn. R. 7001.0050, items A. and
B. require the identification and addresses of owners and operators. The MPCA solid waste permitting rules
require that the permit application identify all owners and operators and the
owners, operators and landowners are all co-permittees. Minn. R. 7001.3060, 7001.3175, item A
(1997). The MPCA air quality permitting
rules require that the permit application identify all owners and
operators. Minn. R. 7007.0500, subp. 2.A.
(1997). If the MPPA’s proposal was
adopted, the MPCA would not be able to carry out that statutory mandate under
section 115.076 because, for example, under the MPPA proposal, the MPPA would
likely require only the name of the partnership and not its owners. This would impair the implementation of section
115.076 because the MPCA needs to be able to check the backgrounds of the
partnership and its owners. Minn. Stat.
§ 115.076, subd. 2 (1998). It is not
reasonable to adopt this MPPA proposal that could significantly impair the
MPCA’s ability to implement and administer an effective feedlot program. Besides, requiring full disclosure of all
owners is consistent with the MPCA’s generic permit application rule and other
MPCA program permit application requirements.
The feedlot sector is not being treated differently in this regard.
The
MPPA’s proposal has not received the scrutiny of the public. The MPPA and MPCA are well aware of the
public’s concerns regarding larger operations and who owns and controls
them. By accepting the MPPA’s proposal
without further MPCA study of its implications, the MPCA would be significantly
impairing its ability to administer an effective feedlot program without
understanding completely the program and legal implications of accepting that
proposal. In addition, accepting the
MPPA’s proposal without public review is contrary to good public policy. By adopting these amended rules, the MPCA is
attempting to ensure reasonable measures are in place to protect human health
and the environment while at the same time, allowing the fostering of the
long-term sustainability of the livestock sector and the overall agricultural
sector in Minnesota. As part of that
long-term sustainability, the MPCA and the industry need to foster public
confidence that the appropriate measures are being implemented. The fostering of that necessary public
confidence is not advanced if the MPCA, at this late date, eliminates a
provision that is essential to its feedlot program and that has been in existence
for at least 29 years, especially in light of the significant public interest
that would likely be generated if the public understood the MPCA was adopting a
provision that would be weakening the MPCA’s ability to administer and
implement an effective feedlot program and that would deprive the public of
information that has historically been requested and made available. For these reasons, the MPCA will not propose
to modify the application to eliminate the identification of all owners of the
applicable facilities.
7020.0300 DEFINITIONS. Subpart 19. Permit.
The
MPCA proposed to add clarifying text to this definition to better reflect the
MPCA's original intent as described in the SONAR, pp. 73-74. The definition as modified reads:
·
Subp. 19.
Permit. "Permit" means a
document issued by the agency or county animal feedlot pollution control
officer which may contain requirements, condition, or schedules for achieving
compliance with the discharge standard, and requirements for
management of animal manure, construction, or operation of animal holding areas,
or manure storage areas, and pastures. Permits issued under this chapter are NPDES,
state disposal system, interim, and construction short-form permits.
7020.0300 DEFINITIONS. Subpart 24.
State disposal system permit or SDS permit.
The
MPCA staff believe the term "disposal system" is sufficiently broad
in scope and coverage that it would include all matters covered under chapters
115 and 116 for which a state permit could be issued. For example, disposal system could include mechanisms (e.g.
basins, pits, etc.) used to store and handle any liquid or solid substance,
even manures and process wastewaters intended to be used as fertilizer. However, based on review of public comments,
the MPCA staff now propose to strike the phrase "for a disposal
system" from subpart 24 to avoid confusion that the state permit
authorized under the MPCA statutes is limited to only the permitting of
disposal systems.
The
acronym "SDS" was a historical derivation to provide a simple means
to refer to permits issued under the state water pollution control act, chapter
115. As discussed in other parts of
this Final Response, that act authorizes the MPCA to issue permits for matters
other than just disposal systems. These
matters include but are not limited to other equipment and facilities and
remedial measures to prevent, control and abate pollution. While the MPCA staff believe that disposal
systems could cover these matters also, it is prudent to avoid this confusion
by deleting the phrase that some would try to argue limits the MPCA's ability to issue permits to other situations
or matters, other than disposal systems, that are covered by chapter 115 and
other applicable provisions. The
proposal to delete the phrase is needed and reasonable to ensure no confusion
exists that this permit can be issued for matters including but not limited to
disposal systems under MPCA's statutes.
·
Subp. 24.
State disposal system permit or SDS permit. "State disposal system permit" or "SDS
permit" means a state permit for a disposal system that may be
processed in accordance with part 7001.0040; 7001.0050; 7001.0100, subparts 4
and 5; and 7001.0110.
Part 7020.0350 REGISTRATION REQUIREMENTS FOR ANIMAL FEEDLOTS AND MANURE STORAGE AREAS. Subpart 1. Registration data. Item K.
Permit Application Contents.
Part
7020.0350, item K contains the provision allowing the MPCA to modify the
registration form in order to gather information on high priority environmental
issues. In their letter, dated March 6,
2000, the Minnesota Pork Producers Association (MPPA) states that this item is
highly subjective, particularly the phrase, "high priority". The MPPA further indicates that the need for
the MPCA or delegated county to request information about "high
priority" environmental issues is not justified.
While
the term, high priority, is not defined in the definitions portion of Minn. R.
chapter 7020, it is not without some common understanding and limitation. As discussed in the SONAR on page 85, the
MPCA believes the limitation comes from the nature of the provision. The provision is forward-looking, or a
prospective data collection tool.
Modifying the registration form permits the MPCA an efficient means to
gather data on a specific issue. The
data would then be used to assess the need for rulemaking, legislation, or
other the use of another appropriate tool to properly address the issue. The MPPA implies that the MPCA would
continually modify the registration form only to be more intrusive on the
feedlot operations and thus, would be arbitrary in nature. Rather, the MPCA on page 85 of the SONAR
clearly states that modification would be on environmental outcomes to
determine if an environmental problem exists and warrants further evaluation. The SONAR text goes on to explain that the
MPCA would work closely with the Board of Water and Soil Resources to maintain
consistency between the registration form and the feedlot inventory guide. Consistency between these documents is
critical as the MPCA has provided in the proposed rule that the Level II
inventory may be used by counties to replace the registration form and
process. Thus, the modification of the
registration form cannot be done frequently and must have a defined purpose.
The
MPCA believes that providing flexibility in modifying the form is appropriate
and reasonable for the following reasons.
1.
The
modifications must be limited to environmental issues related to feedlots and
manure storage areas.
2.
The
modified portion of the registration form must collect data in a manner that
allows for the MPCA to analyze the need for action to prevent or reduce impacts
on the environment.
3.
The
Feedlot Manure Management Advisory Committee (FMMAC), which includes
representatives of the livestock producers, advises the MPCA relative to these
types of issues and will likely provide advisory comments in identifying
reasons for modifying the registration form.
The
MPCA is currently working with FMMAC on the design of the registration
form. The MPCA intends to continue
using FMMAC in advising future directions.
The MPCA believes the use of FMMAC and indicating that the form is to be
modified only for high priority environmental issue evaluations will minimize
the concern of the MPCA arbitrarily modifying the registration form.
As
indicated on pages 79 and 80 of the SONAR, the registration form is a tool to
gather data and aid the MPCA and delegated counties in gathering
information. The MPCA believes the
flexibility to modify the registration form is needed as a tool to gather
sufficient data to properly analyze an issue and is reasonable in terms of what
to ask the producer.
Part 7020.0505. PERMIT APPLICATIONS AND PROCESSING PROCEEDURES. Subpart 2. Permit application submittal schedule. Items B to E.
The
Turkey Store in its letter, dated March 6, 2000, discusses the proposed rules
as it relates to the MPCA's ability to review and issue permits in a timely
fashion. The Turkey Store asserts that
language should be added to subp. 2, items B to E requiring the MPCA to
establish deadlines by which it must make a decision on the permittability of
facility or the permit is deemed to be issued.
The
Turkey Store indicates that permit applications are increasing in complexity
and the information is needed from many sources. The Turkey Store argues that the need for the deadlines is based
on delays some feedlot facility owners have experienced in obtaining a
permit. However, the Turkey Store fails
to indicate that the delays are caused by a variety of factors and are not
solely due to the MPCA's permitting process.
While the MPCA does agree that the limited resources available for the
feedlot program have caused delays, many additional reasons exist with regard
to why a permit may have been delayed.
The additional reasons include the need for environmental review, the
number of incomplete applications, the unresponsiveness of permit applicants,
the complexity of individual sites, and the public comment and information
requests. Post-Hearing Responses, p.
138.
The
MPCA has recognized the need for a change in the feedlot program and additional
resources to address the timeliness of permit review and issuance. This recognition became a key factor in the
rule development process. The proposed
rules contain considerable detail on technical and performance standards to
assist the producer in permitting application development and operations. With the proposed rules, the MPCA will be
able to institute a number of administrative changes that are intended to streamline
the permit process. Post-Hearing
Responses, pp. 138 - 139.
The
MPCA has an obligation to the producer in providing timely reviews, but also
need to address the concerns of the general public by providing sufficient
detailed review to indicate compliance with applicable standards will be
achieved by the proposed design. The
45-day review time suggested by the Turkey Store does not permit adequate
review and inspection of the existing feedlot facility or proposed
location. Moreover, the term, completed
application, is very subjective. Who
determines? Is it complete if every
part is submitted regardless of quality?
Is it complete if the environmental review is not yet done, as it may
indicate a need to alter the facility design to mitigate potential
impacts? The MPCA believes that a
permit applicant could easily believe that the application submitted is
complete, not reply to requests from the MPCA for information, and then wait
for the 45-day period to pass. The
opposite view is also not difficult to anticipate. The MPCA believes that many producers will assume that the MPCA
will never call the application complete in order to extend the review
time. Neither scenario is preferred by
either group, but is likely to be heard often should the MPCA accept the
suggestions offered by the Turkey Store.
The MPCA does not believe it reasonable to establish timeframes in a
rule that cannot be met and that no recourse exists to extend the timeframe. Post-Hearing Responses, p. 138. Therefore, no rule changes are proposed.
Part 7020.0505. PERMIT APPLICATIONS AND PROCESSING
PROCEEDURES. Subpart 4. Content of permit application. Item B(1).
Air Emissions Plan.
The following discussion summarizes the overall need
and goal of part 7020.0505, subp. 4, item B(1), which requires producers of the
largest facilities to submit air emission plans (AEP) for their livestock
production facilities. The Turkey Store
asserts in its March 6, 2000, comment letter that “There is no scientific or
legal basis to require an Air Emission Plan across-the-board for all feedlots
over 1,000 animal units in Minnesota.”
The first portion of this discussion will address the basis for
requiring an AEP for all facilities capable of holding 1000 animal units or
more. The second portion will address
the legal concern raised by Turkey Store.
I. Basis for an Air Emissions Plan
In support of the argument that no scientific basis
exists for requiring an AEP, the Turkey Store claims that the highest hydrogen
sulfide concentration recorded from a Turkey Store facility in Minnesota was
10.8 parts per billion. In light of the
hydrogen sulfide readings at its facility, the Turkey Store claims that an
“extensive air emission plan is extremely burdensome and, indeed,
pointless.” As an alternative, the
Turkey Store suggests that the proposed rule should require an AEP only for
facilities that have been known to exceed the state ambient air quality
standards.
The MPCA believes that the requirement of an AEP is
based upon sound science and a need to protect human health and the environment
from the adverse effects of air emissions from livestock production
facilities. Based on increasing public
concerns and complaints associated with odor and air emissions to the MPCA
recently, the minimal AEP requirements will help prevent problem episodes and,
hopefully, assure nearby residents that appropriate precautions are being
taken. In developing an AEP, the livestock producer establishes a procedure
that provides a timely and satisfactory response to odor events and various
federal and state ambient air rules and standards in the event of an exceedance
or violation.
Air emissions from feedlots are a diverse group of
gases and particles. The gaseous
emissions from the animal waste storage systems are a result of the natural
biological and bacterial activities that occur within the animal waste. Often times, these air emissions are
referred to as “odor”. However, the air
emissions contain many specific constituents such as hydrogen sulfide, ammonia,
and methane. These air emissions have
social and environmental adverse effects locally, regionally and globally.
The relationship between
odor from livestock production facilities and human health has been studied by
a number of researchers (Schiffman et al., 1995; Thu
et al., 1997). See SONAR
Exhibit A-12. Preliminary reports
suggest that odor from livestock production units can negatively influence
human health (Schiffman et al., 1995; Thu et al.,
1997). See SONAR Exhibit
A-12.
The gaseous emission of
particular concern from livestock production facilities is hydrogen
sulfide. The MPCA regulates hydrogen
sulfide emissions through the state ambient hydrogen sulfide standard (Minn. R.
7009.0080). Low concentrations of
hydrogen sulfide cause irritation of the eyes and upper respiratory tract,
which if prolonged can result in acute pulmonary edema. With higher concentrations, the central
nervous system effects predominate producing headache, dizziness, excitement
and staggering gait leading to convulsions, respiratory failure and coma
(Glass, 1990).
Post-Hearing Responses, Att. 7. After resuscitation, victims can
suffer from coordination and psychiatric disturbances including hallucinations
and amnesia (Tvedt et al, 1991). Post-Hearing
Responses, Att. 7. With repeated exposures to low concentrations, conjunctivitis,
photophobia, corneal bullae, increased lacrimation, and blurred vision are
common findings. Repeated exposure to
higher concentrations causes rhinitis, bronchitis and episodes of pulmonary
edema. Chronic poisoning results in
headache, inflammation of the conjunctive and eyelids, gastrointestinal
problems, weight loss and generalized debility (Parra
et al, 1991). Post-Hearing
Responses, Att. 7.
Dust particles generated
from livestock production facilities is an emerging public health and
environmental issue. The MPCA regulates
dust particulates in ambient air through the state ambient air quality
standards of Minn. R. 7009.0080 for particulate matter and particulate matter
with a median aerodynamic particle size of less than 10 microns (PM10). The federal ambient air quality rules for
particulate matter differs from the state rule structure. In July 1987, the United States
Environmental Protection Agency (EPA) changed the basis for the ambient air
quality standards for particulate emissions from total suspended particulates
(similar to the existing Minnesota rule) to the existing PM10 standard. In livestock production, dust comes from the
animals themselves, feed storage and processing sites, floors, manure storage
and handling equipment, open lots, compost sites, and other elements of animal
agriculture systems. Dusts in and
around animal facilities include bits of feed, dried skin, hair or feathers,
dried feces, bacteria, fungi, and endotoxins (cell wall of gram-negative
bacteria) (Koon et al., 1963; Anderson et al., 1966; Curtis et al., 1975; Heber
et al., 1988). SONAR, Exhibit A-12
. Feed was found to be the primary
component of the dust (Curtis et al., 1975; Heber et al., 1988). See SONAR, Exhibit A-12. Dust from livestock facilities contributes
to nutrient deposition. Dust particles
also absorb odorous gases, which can assist odor transport and dispersion (Day
et al., 1965; Hammond et al., 1979). See
SONAR, Exhibit A-12 . There is also a
concern that indoor dust increases equipment deterioration (Gupta et al.,
1988). See SONAR, Exhibit A-12.
Based on the available scientific literature related
to the air emissions from livestock production, the MPCA believes that human health
and the environment may suffer adverse effects if air emissions exceed these
standards and are not controlled.
Again, through the development and use of an AEP, the livestock producer
can identify potential problem sources and implement preventative measures and
can provide a timely and satisfactory response to control livestock production
air emissions in the event of a regulatory concern.
The following discussion relates to the three issues
raised by the Turkey Store.
Specifically, the presence of hydrogen sulfide at turkey production
facilities, the cost and burden of an AEP, and the Turkey Store’s alternative
language for the proposed rule.
The Turkey Store states that the highest reading
ever recorded by MPCA staff at Turkey Store facilities was 10.8 parts per
billion, which is under the state ambient hydrogen sulfide air quality standard
of 30 parts per billion. Typically,
hydrogen sulfide emission strength is greatest around livestock production
facilities using liquid storage (primarily dairy and swine operations). See SONAR, Exhibit A-12. However, most of the ambient hydrogen
sulfide air data collected by the MPCA is based on complaint response. Therefore, the existing universe of data is
pre-screened through the complaint process.
The majority of feedlot odor complaints originate from people either
living or working around swine and dairy facilities using liquid manure storage. See SONAR, Exhibit A-12. The hydrogen sulfide emission data set from
poultry and beef facilities is minimal in comparison to beef and swine. The MPCA agrees that it may be difficult to
determine the potential for every turkey production facility to comply
with any state or federal ambient air quality standard or rule without a far
larger ambient air monitoring set from numerous turkey facilities. However, the MPCA is aware that poultry
manure can produce hydrogen sulfide emissions with enough strength to exceed
the state ambient hydrogen sulfide air quality standard. See SONAR,
Exhibit A-12. That existing database
and other relevant information gathered and reviewed by the MPCA is sufficient
to determine that the minimal AEP provisions are needed to prevent problem
events.
The Turkey Store argues that requiring turkey
facilities in Minnesota to complete an extensive AEP is extremely burdensome
and pointless, but provided no facts to support its assertions. The MPCA believes that the development of an
AEP for a turkey facility is a valid and useful tool based on the data and
scientific literature on the subject.
Additionally, the MPCA does not believe that the AEP is overly extensive
or complicated and, thus, a burden for some producers. To that end, the MPCA has specifically
designed the AEP to be inexpensive and simple to compile and implement.
Table 1.
I. Air Emission/Odor Source |
Description |
Contingency Plan |
|
e.g. Manure storage basin |
200
ft. by 300 ft. dairy manure storage system, earthen lined. |
A) Maintain natural crust B) Add straw cover C) Notify neighbors during agitation and pumping |
|
e.g. Free stall barns |
60
ft. by 170 ft. with gutter and scrape.
Naturally ventilated. |
A) Remove manure daily |
|
e.g. Six hen barns. |
Each barn will house 135,000 egg-laying hens and will be 592-ft long, 55-ft wide, and 28-ft high with dry storage beneath the barn. The buildings are mechanically ventilated. |
A) Place cowling on ventilation fans B) Plant tall grasses and hedges around vents to collect dust. C) Notify neighbors during barn clean out. |
Table
1 is a sample Response Protocol (partial) for inclusion in the AEP. The AEP does not necessarily require the
assistance of a professional and can be compiled with by readily available
information. The need for a
professional may depend upon the complexity of the facility including numbers
of odor and air emission sources and preferred control and prevention
techniques and methods. Furthermore,
many of the air control strategies are low cost and require little
management. The various air
control/mitigation techniques described in Table 1 are some examples that may
control MPCA-regulated gaseous and particulate air emissions from livestock
production facilities based on reports in the scientific literature and
practical experience. See SONAR,
Exhibit A-12. The MPCA believes the AEP
is inexpensive and low cost, even when some of the mitigation options may have
some cost associated with them.
When
the elements of the AEP are reviewed in the rule, the key focus is on source
identification, planning, and prevention.
The facility owner has the discretion under the AEP to decide what
systems, operations, methods, etc. will be implemented initially to avoid
problem events subject to the public and the MPCA review during the permit
application process. It is in the
facility owner's interest to do an adequate job of source identification and of
preventative measure consideration so that the public has confidence that the
operations are being followed and the appropriate level of oversight is
provided.
The
Turkey Store offers alternative rule language, which would require an AEP only
for facilities that have demonstrated an exceedance of the state ambient
hydrogen sulfide standard. The MPCA
does not agree with this proposal. If a
facility is found to be in violation of a state standard or rule, they are
required to return to compliance regardless of the existence of a permit or
certificate of compliance. Therefore,
the Turkey Store language proposal provides little direction to the livestock
producer as to when an AEP will be required to meet existing MPCA air quality
standards. In fact, the proposed rule
language indicates when the plan is required and to be used. The MPCA has designed the proposed AEP as
tool to proactively protect human health and the environment by recognizing the
role of the producer in designing an animal feedlot to prevent problem air
events and to implement reasonable and acceptable air emission mitigation
strategies.
The
Turkey Store proposal also ignores the important goal of pollution
prevention. The MPCA and CFOs from
delegated counties spend countless hours and tremendous amounts of resources
responding to air pollution and odor complaints. Many of these complaints could have been prevented by the feedlot
owner's implementation of common sense, low-cost facility design or operational
changes. The MPCA's proposed rule for
the AEP is focussed on the largest facilities - these owners have the knowledge
and sophistication to implement common sense, low-cost options in the facility
design and operations. The MPCA and the
delegated counties do not have the staff or resources to implement the type of
air monitoring required for actual compliance purposes as the Turkey Store's
proposal would require. Besides, under
the Turkey Store proposal, owners with problems may not take corrective actions
in an attempt to force the MPCA to do monitoring that further undermines the MPCA's
attempts to foster cooperative relationships with problem facilities. The key is to prevent the problems from
occurring in the first place, and the AEP accomplishes this goal.
Turkey Store Permit Issue.
The Turkey Store also raises a concern about the
authority to impose "air emission standards" in a NPDES permit but
that concern is based on a misreading or misinterpretation of the rule. First, MPCA has adequate authority to adopt
rules designed to prevent, abate or control air pollution. Minn. Stat. section 116.07, subd. 4. The air emission plan requirements in part
7050.0505, subp. 4, item B are a combination of preventative air emission and
odor measures, and remedial and abatement measures for violations of the
numeric hydrogen sulfide standard in Minn. R. 7009.0080 (1997). The Turkey Store is not correct in asserting
that these plan measures are equivalent to the numeric ambient air emission
standards found in the MPCA's ambient air quality standards, Minn. R. ch.
7009. Not only does the MPCA have
adequate authority to adopt
rules preventing air emissions and odor generation, but
the MPCA has also on a case-by-case basis imposed such pollution prevention
terms and conditions (e.g. incorporation of manure) into the MPCA feedlot
permits.
Second, the inclusion of air emission plan-like
components similar to those proposed in this rule in MPCA feedlot permits for
larger feedlots is not unprecedented by the MPCA. In the recent past and since hydrogen sulfide and odor complaints
have been on the increase, the MPCA has proposed for inclusion and imposed
hydrogen sulfide event response requirements, air emission and odor
preventative measures, and complaint response protocols in MPCA-issued feedlot
permits. In this rule, the MPCA is
proposing that the air emission plans only be required for the largest
facilities, which are those having the capacity for 1000 animal units or more
or the manure produced by 1000 animal units or more. The size of these operations with the large numbers of animals
and the need for handling, storing, transporting and disposing of large
quantities of manure and process wastewater raises the potential risk for
localized episodes of odor or problem air emissions if the appropriate
practices are not in place to prevent the problems from occurring in the first
place. The air emission plans will also
ensure timely abatement and control by the livestock producer if hydrogen
sulfide standard violations are detected.
Finally, the Turkey Store's concern ignores the fact that
the MPCA is not relying solely on the NPDES permitting authority for imposing
these preventative and remedial measures.
The Turkey Store's legal counsel has extensive experience regarding the
citizen suit provisions of the federal Clean Water Act and as a result of that
experience, counsel knows full well that the MPCA's historical, standard
operating procedure and practice is to issue a combination SDS and NPDES permit
for all point sources, whether those point sources are industrial facilities,
CAFOs or municipal wastewater treatment plants. Consistent with those procedures, the MPCA has historically been
issuing combination NPDES/SDS permits for CAFOs under the existing Minn. R.
chapters 7001 and 7020. The MPCA has
also indicated that it will continue the practice of issuing those combined
NPDES/SDS permits under these amended rules for point sources such as the
CAFOs. See SONAR, pp. 50, 74,
78, 94. The MPCA need not rely on the
federal program alone to address other issues such as groundwater protection
and air issues when it also uses the SDS permitting authorities under the state
environmental laws.
As counsel also noted, the MPCA and other federal
permitting authorities are using "multi-media" permits to avoid
duplicative permitting procedures and in recognition that some media have
cross-over effects that can be more effectively addressed by the same measures
in one permit. It is for this reason
that the MPCA has include these types of provisions in some of the past
MPCA-issued feedlot permits including NPDES/SDS permits for CAFOs and that is
somewhat the case here in proposing to include the air emission plan in the
permits for the largest facilities. For
example, incorporation or injection of manure not only helps prevent water
pollution if erosion were to occur from that land application site, but
incorporation and injection of manure and process wastewaters is also
considered a good management practice to reduce odors and air emissions (that
is compared to spray irrigation or surface application only). By including an AEP in these permits, the
MPCA is not issuing any permit for the air emissions or odor. Facilities needing to get permitted air
emissions must do so under the MPCA air quality rules. Here, the MPCA is including the AEP as a preventative
measure, and as a potential quick remedial measure if violations are
determined.
By using its state authorities under chapters 115 and
116, the MPCA need not rely solely on any federal permitting authority to
require these preventative and remedial measures. Besides, the Turkey Store has not made a case that the NPDES
permit alone would prevent the imposition of the air emission plan. Nothing in EPA's NPDES regulations precludes
more stringent state regulation of any activity covered by the federal
regulations whether or not it is under an approved state program. 40 C.F.R. 122.21(f). In any case, the air emission plan will be
required for all those facilities (e.g. capacity of 1000 AU or more) that need
to obtain either the combination NPDES/SDS permit or the sole SDS permit. See parts 7050.0505, subp.4 and
7050.0405, subp. 1., item B.(1). The
MPCA has ample authority to adopt these rules preventing and abating air
pollution, including air emissions related to hydrogen sulfide and odor and can
use the proposed permits to ensure these rules are complied with. See
Minn. R. 7001.0140, subp. 1 (1997) (which requires the MPCA to determine that
the permittee will comply with all applicable state and federal pollution
control laws administered by the MPCA before issuing the permit).
Part 7020.0505 PERMIT
APPLICATIONS AND PROCESSING PROCEDURES.
Subp. 4. Content of permit application.
Item B(2) and (3).
Pollution
Prevention Plan and Emergency Response Plan.
In the Turkey Store's letter, dated March 6, 2000, the
assertion is made that the MPCA will, in the proposed feedlot rules, add
unnecessary paperwork burden on owners of feedlots with greater than 1000
animal units. The Turkey Store notes
that two additional plans are required by the proposed rules: a pollution
prevention plan (PPP), subp. 4, item B(2), and an emergency response plan
(ERP), subp. 4, item B(3). The Turkey
Store further asserts that the facility owner would not be able to complete the
PPP and the ERP, but would be forced to use a professional to prepare and
review the documents.
The MPCA disagrees with the Turkey Store's assessment
(i.e. unnecessary) of the PPP and ERP and that professionals are needed to
complete these documents. If the
thresholds are reached per the Turkey Store's letter for the Federal Emergency
Response and Community Right-to-Know Act and the Pollution Prevention Act, the
plans required by the proposed rules would be done and the submittal to the
MPCA would for all purposes be the only change. However, for those facilities not triggering the federal
thresholds for the referenced Acts, the proposed rules require the facility
owner to evaluate existing chemical use in and near the feedlot and explain how
they can be eliminated, reduced or prevented from impacting the feedlot
operations in the PPP. The ERP would
address local responders to emergencies including unplanned discharges. The ERP is needed as operational information
on a general day-to-day basis and the facility owner does not need a professional
to complete these plans. The MPCA expects that the facility owner will utilize
existing programs to meet the proper management of chemicals at the
facility. The PPP would only reference
these resources and indicate how they would be used. See SONAR, pp
104-105.
Other than by implication, the Turkey Store did not in
fact claim that the Emergency Planning and Community Right to Know Act and the
Pollution Prevention Act actually require any actual emergency response plan
from the feedlots that are proposed to be covered by the ERPs and PPPs in part
7050.0505, subp. 4. The MPCA staff is
not currently aware of any Minnesota CAFO or other non-CAFO feedlot in excess
of capacity of 1000 animal units or more that has been required to file such
federally-mandated plans and the MPCA cannot currently recall any express EPA
discussion on this issue indicating that there was any possible duplication of
effort. As indicated above, if a facility owner is required to file such plans,
then it is likely those federal plans could, at least in part, fulfill the
requirements of the proposed rule without imposing any inconvenience on the
owner. However, in light of EPA's
recommendations for inclusion of ERPs and PPPs in its own EPA example general
CAFO permits, the MPCA suspects that the application of the Emergency Planning
and Community Right to Know Act and the Pollution Prevention Act to CAFOs is
limited in scope. Thus, the number of
plans required under those federal acts would not provide the coverage provided
either by the EPA-issued CAFO NPDES permits or the state-proposed rule
requiring ERPs and PPPs for all of the larger feedlots and manure storage
areas.
In fact, the MPCA's
inclusion of the ERPs and PPPs is consistent with EPA's recommendations on the
inclusion of BMPs into the CAFO permits and consistent with EPA's issuance of
general CAFO NPDES permits. For
example, the August 6, 1999 EPA CAFO-permitting Guidance Manual recommends the
inclusion of BMPs that are determined to be needed to protect water quality and
to ensure compliance with the federal Clean Water Act. See SONAR,
Exhibit P-2, pp. 3-12. Those BMPs may
address chemical handling and spill prevention and response. Id. EPA's example NPDES CAFO general permit
includes BMPs that address chemical handling and employee training regarding
good housekeeping and material management practices. Id., pp. F-11,12.
The BMPs also include measures necessary to prevent spills and materials
handling and storage procedures, and procedures for cleaning up spills and
doing appropriate notification to authorities.
Id., p. F-11. In MPCA's
initial responses, the MPCA cited and discussed the various EPA-issued general
NPDES CAFO permits that had been proposed and issued by U.S. EPA Regions 6 and
10. Post-Hearing Responses, p. 71.
The MPCA-proposed ERP and PPP are not "unnecessary
paperwork" as Turkey Store asserts.
These large facilities contain numerous pollutants and chemicals that if
not properly stored, handled and disposed of create a high potential for
discharge. These chemicals include
herbicides, fertilizers, insecticides, oils, greases and veterinarian medical
containers. See SONAR, pp.
104-105. The MPCA's proposal to require
ERPs and PPPs for these largest facilities is consistent with EPA's
recommendations and its own example CAFO general permit and with the
requirements that these facilities are under to report, clean up and prevent
spills and discharges under the state's water pollution control act. Minn. Stat. § 115.061 (1998). These plans will ensure the MPCA and the
public that the owners are taking measures to prevent these spills and
discharges and that they are properly prepared and equipped to respond
immediately if any spills or discharges occur creating emergency conditions. For these reasons, the ERPs and PPPs are
needed and reasonable measures and BMPs to protect water quality and public
health and safety.
7020.2000 OVERVIEW.
Subpart 1. In General.
The MPCA is modifying this provision to clarify the
intent as described in the SONAR, pp. 128-129, by changing the "and"
to "or" as shown in the modified definition below. This change is necessary because the MPCA
does not intend that an owner have both an animal feedlot and a manure storage
area in order to be required to comply with these parts. Instead, the MPCA intends that any owner of
either a feedlot or a manure storage area must comply with these parts.
·
Subp.
1. In
general. An owner of pastures,
an animal feedlot, and or a manure storage areas, and anya
person storing, transporting, disposing, or utilizing animal manure, process
wastewaters, or process-generated wastewaters, shall comply with parts
7020.2000 to 7020.2225.
7020.2000 OVERVIEW.
Subpart 2. Animal manure and wastewaters not used as domestic
fertilizer.
Ursula
Dimler, Chair, Carver County Board of Commissioners, suggests in her letter
dated February 29, 2000, that the MPCA consider alternative schedules for
fixing process wastewater problems at smaller feedlots. Specifically, Ms. Dimler suggests allowing
the feedlots under 300 animal units the same extended compliance schedule as
allowed for open lot discharge problems.
Ms. Dimler asserts that process wastewaters such as milkhouse wastes
should be treated or properly used as fertilizer, but is concerned that not
enough options are available to correct these problems and most owners have not
considered these problems, even under the current rules.
The
MPCA understands these concerns and discussed them throughout development of
the open lot compliance schedules available to feedlots under 300 animal units
(7020.2003, subps. 4 to 6). However,
there are several reasons why the MPCA is not proposing to modify the rule as
suggested by Ms. Dimler. First, using
the example Ms. Dimler raises in her letter of the milkhouse waste discharge,
there are many pollutants associated with this process wastewater. Unlike manure runoff from an open lot,
milkhouse discharges can, in addition to manure, also contain various other
pollutants including cleaning chemicals, antibiotics, waste milk, bacteria,
viruses and parasites. See SONAR Exhibit M-33, page 5. In addition, the effects on water quality
from these pollutants has been demonstrated to be very damaging to aquatic
environments. See SONAR
Exhibit M-33, Table 5 and page 5.
Second,
discharges from a milk house that pose water quality concerns are typically
from a pipe into a ditch or waterway, and these discharges occur on a regular
frequency throughout the year. These
are different conditions than discharges from an open lot which would more
often occur during certain rainfall events or spring snowmelt and runoff
conditions.
Third,
there are many alternatives for owners to easily address their milkhouse waste
discharges. Several technical options
are described in SONAR Exhibit M-33, Pollution Control Guide for Milking Center
Wastewater Management, and additional information on alternatives is available
through the MPCA.
Finally,
if an owner is not able to correct process wastewater problems in a 24 month
maximum time period through an interim permit, the owner may apply for a longer
schedule through an SDS permit. If an
owner has financial limitations that create undue hardship, the owner may also
apply to the MPCA commissioner for a variance under part 7020.0505, subp. 6. For these reasons, the MPCA is not proposing
to modify the rule to allow process wastewater discharges to be eligible for
the extended compliance schedules under part 7020.2003, subps. 4 to 6.
7020.2003 WATER QUALITY
DISCHARGE STANDARDS. Subpart 5. Interim
corrective measures for eligible open lots.
Item B.
Darrin
Thompson, Wabasha County Feedlot Officer, provides several comments in his
letter (no date provided) related to the open lot discharge standards under
this part.
First,
Mr. Thompson suggests allowing ten years instead of the 2003 date for the time
schedule for open lot facilities under 300 animal units to comply with the
interim corrective measures. The MPCA
already proposed to change this compliance date to the year 2005 as discussed
in the Post-Hearing Responses dated March 6, 2000. As discussed in the SONAR (pages 138-140) and again in the
Post-Hearing Response (page 67), the MPCA does not intend or believe that
technical design assistance is needed in most cases for owners to comply with
the interim corrective measures under subpart 5. The MPCA recognizes that some technical assistance to model the
affect of interim measures would be needed, in some cases, to demonstrate
compliance with the 50-percent reduction option. However, most, if not all of the work or management changes,
could be completed by the owner.
Second,
Mr. Thompson suggests that some credit be given for channelized flow through a
good cover located an acceptable distance from surface waters, provided the
owner implements certain practices such as regular scraping of the lot or
installing a picket fence. Mr. Thompson
also raises concerns for the 100-foot distance specified in the rule for
filter-strips or buffer areas and suggests a length based on economic reasons. The MPCA understands these concerns for the
100-foot distance, but Mr. Thompson provides no alternative language for MPCA
to evalute or that would be acceptable to implement within this rule. In fact, the proposed rule already allows an
owner, under subitem (2), to install a filter strip or buffer area with a
shorter length than 100 feet and also allows the owner to get credit for such
practices as picket dams and regular scraping of open lots by demonstrating
their effectiveness in reducing discharges from the open lots using “An
Evaluation System to Rate Feedlot Pollution Potential” (Feedlot Model, See SONAR Exhibit M-34).
Mr.
Thompson’s third concern under part 7020.2003 is related directly to use of the
Feedlot Model in demonstrating compliance with the 50 percent reduction
requirement under subitem (2). Mr.
Thompson also suggests that subitem (2) penalizes owners who have already
installed improvements at their facilities prior to the effective date of this
part, but that are not yet in full compliance with part 7050.0215. The MPCA believes it is reasonable to
require owners who have not reached full compliance with the effluent
limitations under part 7050.0215, to make additional interim improvements at
their facilities. Again, and as discussed
in the SONAR, the MPCA is extending the final compliance schedule for these
owners to the year 2010, compared to the existing program requirements of 10 to
20 months under an interim permit. For
these reasons, the MPCA believes the rule as written is flexible enough to
address Mr. Thompson’s concerns and does not believe that a rule change is
needed in this part.
Finally,
regarding the use of the Feedlot Model, the MPCA agrees that use of the Feedlot
Model can vary depending on the user and discusses these concerns in the
SONAR. The MPCA disagrees that the
management practices described by Mr. Thompson cannot be factored into the
model. Mr. Thompson explains, and the MPCA
agrees, that additional training is needed to provide more consistency in the
use of the model. Even with training,
there will be variations in results.
However, as the MPCA describes in the SONAR, the 50-percent reduction
measures are intended to achieve improved environmental performance at open lot
feedlots. The MPCA recognizes that some
feedlots may install improvements that are closer to 80 percent while others
may only obtain the 50 percent reduction.
This approach is very similar to the results expected from installing
the measures described in subitem (1).
Some owners will see much greater reductions in the discharges from
their lots than others, simply due to the site-specific features present. Again, as MPCA asserts in the SONAR, these
50-percent improvements at a large number of feedlots will likely result in
much greater statewide water quality improvement than 100 percent improvement
at only a relatively small number of feedlots each year.
7020.2003 WATER QUALITY
DISCHARGE STANDARDS. Subpart 6. Final
corrective measures for eligible open lots.
Darrin
Thompson, in addition to his comments discusses above in subpart 5, states that
“these proposed rules will eliminate animal agriculture in southern Minnesota
and possibly throughout the entire state.”
Mr. Thompson also states that “The vast majority of our (Wabasha
County’s) 600 plus feedlots are under 300 animal units and the majority of
these currently do not meet the existing state rules.” This is a critically important point because
without the MPCA’s proposed extended compliance schedule, all of these out-of-compliance
owners are currently required to apply for an interim permit and fully comply
with 7050.0215 within a 10-20 month time period instead of by 2010. For this reason alone, the MPCA stands by
it’s original statements made in the SONAR that this provision is reasonable.
In
his statements, Mr. Thompson is referring specifically to the final compliance
requirements under subpart 6, and further opines that it will be impossible to
provide the needed technical assistance for both the interim and final compliance
dates. While his assumptions are based,
in part, on the 2003 and 2009 dates originally proposed, the MPCA assumes that
Mr. Thompson’s opinion would not change based on the MPCA’s March 6, 2000,
modification of these dates to 2005 and 2010, respectively. Mr. Thompson further states that Wabasha
County currently can cost-share and design about four manure storage structures
per year. The MPCA recognizes that
annual cost-share dollars currently available would not be enough to install
total containment systems at all eligible feedlots by the year 2010. However, as discussed above and in the
SONAR, the MPCA also does not believe that total containment systems would be
needed at all facilities to comply with the final compliance standards of
7050.0215. This has been a significant
misunderstanding of what this standard requires of these smaller feedlots and
how the MPCA actually implements the program and allows owners to design and
install alternatives to total containment systems to comply with the
standard. These alternatives have been
approved on a case-by-case basis have included a combination of measures
including filter strips, picket dams, buffer areas and other management
practices that the MPCA has already discussed in the SONAR and in the March 6,
2000, Post-Hearing Responses. The main
concern from owners and technical assistance staff has been to understand what
is acceptable to comply. Ultimately, it
is the feedlot owners’ responsibility to implement compliant measures. This is one area that the MPCA agrees better
coordination is needed with technical assistance providers to clarify what is
acceptable in these case-by-case determinations. In order to address this and other similar issues, the MPCA has
also coordinated an annual meeting (scheduled for March 15, 2000) to discuss a
wide range of program and technical issues with partnering agencies including
the Board of Water and Soil Resources, Department of Agriculture, Natural
Resources Conservation Service, Soil and Water Conservation Districts and
County Feedlot Officers.
The
MPCA also expects that local design engineers, public and private, can design
many more than four partial systems each for the year 2005 compliance
requirements, and for the final compliance measures needed for the 2010
date. This assumption is based on
experience with several private design engineers who currently complete up to
20 design and construction projects in a given year. The MPCA does not believe that technical and financial assistance
are limiting factors for the vast majority of owners to comply with the interim
measures by 2005. For the final
measures needed by 2010, the MPCA does not
believe
technical assistance will be a limiting factor. However, the availability of cost-share dollars to correct
problems may or may not be limited by the year 2010. For these reasons, the MPCA proposes no additional modifications
to this part.
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 under “Item 5” that the 1,000
foot setback from a community water
supply well or other well serving a school or child care center in geologically
sensitive areas be applied only to those wells where a wellhead protection area
has not been delineated. In cases
where the MDH has approved a wellhead protection area, MDH asked that the
required setback be changed to a one-year horizontal time of travel in ground
water.
The
MPCA accepts the MDH reasoning that the 1000-foot setback will be shown through
delineation of wellhead protection areas to be greater than needed in many
cases. But, the MPCA believes a
different change is warranted, and instead proposes to change proposed part
7020.2005, subpart 1 as follows:
·
Subpart 1. Location restrictions. Except as provided in items A and B through
C, a new animal feedlot or a manure storage area must not be
constructed within shoreland, a floodplain, 300 feet of a sinkhole, 100 feet of
a private well, or 1,000 feet of a community water supply well or other wells
serving a school or child care center that are in a geologic setting
where the well is vulnerable according to part 4720.5550, subpart 2,
item D, subitem (2).
A. A new
animal feedlot or a manure storage area may be constructed in the Red
River of the North floodplain if it is a minimum of 1,000 feet from the
ordinary high water mark.
B. An animal feedlot or a manure storage area located in
shoreland meeting part 7020.0300, subpart 15, item B:
(1) that has been unused for less than ten years is a pollution
hazard and may resume operation after applying for and obtaining an interim
permit under part 7020.0405, subpart 1, item C; or
(2) that has been unused for ten years or more must not resume
operation.
C. A new animal feedlot or manure storage area can be constructed
within 1,000 feet of a community water supply well or other well serving a
school or child care center if the following three conditions are met:
(1) The Minnesota Department of Health has approved a drinking
water supply management area for the well under Minn. R. part 4720.5360;
(2) The animal feedlot or
manure storage area is not within the drinking water supply management area;
and
(3) The animal feedlot or manure storage area is not within 200
feet of the well.
Regarding
the addition of item C, the MPCA believes the actual approved drinking water
supply management area within 1,000 feet of the well is a more appropriate
safeguard than a one-year time of travel. The drinking water supply management
area, which represents at least a 10-year time of travel, must be established
for all wells of these types, under Minn. R. parts 4720.5100 through 4720.5590. The location of the boundary of the drinking
water supply management area is more readily available to the producer and the
MPCA or county than the one-year time of travel, which at present is not
routinely determined under MDH requirements.
The drinking water supply management area boundary is also readily
determined by measurements from property lines, fence lines and other
landmarks, whereas a wellhead protection area boundary is a curved line that
may be impractical to locate precisely in the field. Finally, use of the drinking water supply management area allows
more time for intervention if any ground water contamination is detected at the
offset distance or closer to the well, than would the one-year time of
travel.
The
MPCA believes that it is reasonable to preserve the 1000-foot setback even if a
drinking water supply management area extends beyond that distance. For higher capacity wells, it is common for
the drinking water supply management area to extend farther than 1,000 feet,
often many times farther, especially in the direction of ground water flow
upgradient from the well. In these
cases, very large tracts of land could be ruled out for construction of
feedlots and manure storage areas, if the full drinking water supply management
area were included. Beyond 1,000 feet,
other requirements still pertain, including any permit conditions, MDH
requirements for the wellhead protection management plan, and local zoning
requirements. In most cases, retaining
the 1000-foot setback will still provide for several years of ground water time
of travel and greater opportunity for intervention if required safeguards fail
to keep the ground water free of contamination.
The
200-foot minimum setback is proposed for the following reasons. Because some of these wells may serve a
limited population, their low pumpage rates may result in the boundary of the
drinking water supply management area being quite close to the well in the
downgradient direction of ground water flow.
The irregular, curving boundary of the 10-year time of travel itself is
a modeled approximation that is inexact due to many sources of uncertainty:
limited data; unknowable variations in permeability and other geologic
conditions; imperfect knowledge of critical hydrogeologic variables such as the
slope of the water table; and continual changes in ground water flow rates and
directions due to wet and dry weather periods, future changes in the rate of
pumping from the well, and other causes.
Because of these uncertainties, the MPCA believes it is prudent to place
a minimum fixed-distance setback requirement, 200 feet. The 200-foot setback is the MDH’s inner
wellhead management zone under Minn. R. part 4720.5110, within which isolation
distances from new contaminant sources must be maintained, monitoring may be
required, and potential contaminant sources must be managed. Within the inner wellhead management zone,
several different isolation distances are required under Minn. R. part 4725.4450,
including those for manure storage areas under item C and for various other
animal feeding facilities under item E.
These various isolation distances are required of the owners of the
well, for construction of a new well.
However, in the MPCA’s proposed rules, the situation is reversed: the
well is the existing structure and the feedlot or manure storage area is
proposed. In this case, the MPCA
believes that once a public water supply well is in place and that investment
has been made, it is reasonable to keep new feedlots or manure storage areas
entirely outside of the inner wellhead management zone. Thus, The MPCA proposes to maintain a single
minimum offset distance of 200 feet between the well and new feedlots or manure
storage facilities, corresponding to the required inner wellhead management
zone.
Several
commenters, including the Minnesota Pork Producers Association and Robert
Mensch/Alan Larsen, suggested that the MPCA add the word "licensed"
to the child care center provisions in subpart 1. The MPCA believes that these child care centers are important to
include here, especially when considering that this provision is already
limited to focus only on wells meeting the vulnerable well criteria under Minn.
R. part 4720.5550, subpart 2. In addition,
the MPCA understands that not all child care centers must be licensed in order
to provide care. The MPCA does not
intend to limit this protective provision to only those that must obtain a
license to operate. The MPCA's concern
is for the users of the vulnerable well and not on whether the center is
licensed. For these reasons, the MPCA
is not proposing to change this provision to include the word licensed.
7020.2110 UNPERMITTED OR NONCERTIFIED MANURE STORAGE
AREAS.
Phil
Nesse, in his February 25, 2000, letter, suggests that the MPCA allow a
Minnesota licensed professional soil scientist to complete the unpermitted
manure storage area soils investigation and report under part 7020.2110, subp.
2, item B. Mr. Nesse suggests that this
addition will provide greater availability of individuals to conduct this
work. Clearly, these professional soil
scientists are qualified to conduct the soils investigations. The MPCA also believes that these
individuals are qualified to evaluate conformance of the site and manure
storage area to the Natural Resources Conservation Service practice standards
listed in subitem (1) of this item. For
these reasons, the MPCA proposes to modify the provision as shown below.
·
Subp. 2. B. the owner shall have a design engineer, or
professional soil scientist licensed in the state of Minnesota, conduct a
soils investigation and submit a soils investigation report to the commissioner
or county feedlot pollution control officer that complies with the following:
Ursula
Dimler, Chair, Carver County Board of Commissioners, suggests in her letter
dated February 29, 2000, that the MPCA consider allowing owners that
constructed a liquid manure storage area after June 3, 1991, to demonstrate
compliance by the soils investigation option.
The MPCA does not propose to allow the soils investigation option to
these owners for the reasons described in the SONAR on pages 171-172. The MPCA has also added two additional
alternatives for this group under subpart 1.
These options are described in the MPCA’s Post-Hearing Responses, dated
March 6, 2000 (pgs. 85-86).
In
the MPCA’s March 6, 2000, Post-Hearing Responses (pages 95 to 111), the MPCA
described the reasons for several proposed changes and issues under continued
review in part 7020.2225. The MPCA
reported in the March 6 Post-Hearing Responses that proposed changes to part
7020.2225 would be specifically defined in the March 13 Final Responses.
The
proposed changes to part 7020.2225 are identified in Attachment. 1. These proposed changes fall into four main
categories: 1) changes in organization
and wording for the purposes of bringing greater clarity and consistency; 2)
changes made to reduce the testing, planning and record keeping requirements
for most feedlot owners with less than 300 animal units; 3) timeline changes to
make the rules simpler to understand and follow; and 4) changes made to address
comments on specific items.
Several
commenters at the hearings recommended that the proposed rules be revised and
made easier to follow and understand.
The following changes were made to organization and wording to make this
part clear and consistent with other parts of the proposed chapter 7020;
·
“Process
wastewater” was added to be considered along with manure in the provisions in
subp. 1, item A, item B; subp. 3, item A; subp. 6, item A, item B, item C;
subp. 7, item A.
These
provisions were added to clarify that process wastewater must not be
directly discharged into waters; runoff of the land and cause pollution of
waters; be applied in road ditches; or be applied at such a rate so as to
exceed the nitrogen application rate standards.
Addition
of the words “process wastewater” in subp. 6 and subp. 7 is also needed to
clarify that process wastewaters need to be managed using the same measures as
manure when applying in special protection areas or within 300 feet of open
tile intakes. Further description of
reasons for adding the term “process wastewater” to these subparts is in
Post-Hearing Responses, p. 91, and the SONAR pages 128-129. The term “process wastewaters” does not need
to be included next to the word “manure” throughout the other items in part
7020.2225. Process wastewaters are
usually lower in nutrient content compared to manure, and therefore, the
careful nutrient planning and record keeping in subp. 4 and subp. 5 established
for high nutrient content materials and liquids are generally not needed for
all types of process wastewaters.
Conditions can be added to permits to cover any high nutrient content
process wastewaters generated at facilities on a case-by-case basis.
·
Introductory
descriptions were added at the beginning of subp. 3, subp. 4, and subp. 5 to
make the rules easier to understand.
·
The
words “feedlot with XXX animal units” were replaced with the words “feedlot or
manure storage area with a capacity of XXX animal units” throughout 7020.2225.
These changes were made to be consistent with the other parts of the proposed rules and as described in the Post-Hearing Responses, pp. 13 - 19.
·
The
soil phosphorus testing requirements and specific soil phosphorus thresholds
that trigger the need for manure management plan review were moved from subp.
4, item B and subp. 4, item D, subitem 11, into the subpart for nutrient
application rate standards (subp. 3, item C).
It is reasonable to include the soil phosphorus testing and potentially problematic soil phosphorus test levels in the nutrient application rate standards (subp. 3), rather than to keep these requirements in items pertaining to two different components of the manure management plan requirements (subp. 4). With this modification, the requirements for both nitrogen and phosphorus are defined in the same subpart. This change was also made to clarify and simplify the reading and understanding of requirements in subp. 4, item B.
·
Several
other minor wording changes or additions are proposed as shown in Att. 1, and
described below:
·
Subp.
1, item A, subitem 1 – Use of the word manure is deleted where it is not needed
to understand the content of the subitem.
·
Subp.
2, The timeline that initial manure nutrient testing must be completed is
clarified to be “prior to development of the manure management plan.” The initial timeframe was not specified in
earlier draft rules and remained vague.
·
Subp.
3, item B – more specificity was added to the rule subpart reference.
·
Subp.
4, item A – interim permits were added for reasons explained in the
Post-Hearing Responses, p. 102.
·
Subp.
4, item A, subitem 3 – Language was added to bring greater clarity and
consistency with subitem 2.
·
Subp.
4, item B – deleted an unneeded reference to manure management plans that is
already covered under item A.
·
Subp.
4, item D, subitem 3 – Changes to this subitem clarify that the maps or aerial
photos showing land available for manure application must clearly identify only
portions of land which can be used for manure application. For example, a field may have many acres of
wetlands, intermittent streams, and other features which would make much of a
given field not suitable for manure application.
·
Subp.
4, item D, subitem 6 – Language was added to more clearly make the distinction
between manure rate requirements in subitem 5 and nutrient rate requirements in
subitem 6.
·
Subp.
5, item A – Unneeded language was deleted that summarized what is needed in the
records. This is not needed since the
content of the records is specifically defined in item B and Item C.
Several
changes are proposed to reduce the testing, planning and recordkeeping
requirements for most feedlots and manure storage areas with fewer than 300
animal units. The reasons for these
changes are generally described in Post-Hearing Responses, pp. 99-101 and 107,
and are specifically shown in Attachment 1.
Some advantages of these changes are that: 1) they will provide greater assurance that technical assistance,
where needed, will be available for the larger producers to complete testing,
planning and record keeping; 2) the economic benefits of the more comprehensive
testing, planning and recordkeeping requirements for the larger operations can
be further evaluated and communicated to producers with less than 300 animal
units; and 3) many more producers with smaller operations will be able to
complete and update their own manure management plan and records.
The
proposed changes include:
·
Subp.
2, item A. Owners of feedlots or manure
storage areas with less than 300 animal units will not be required to test
manure each year for the first three years of testing. However, feedlots and manure storage areas
with less than 300 animal units and more than 100 animal units will still be
responsible for testing manure in accordance with the other manure nutrient
testing items in subp. 2, including manure testing at least once every four
years. See Attachment 1.
It should also be noted that many daily scrape and haul operations for all feedlot sizes will not be required to test their manure under the requirements in subpart 2, since manure that is not stored would not be considered to have a manure storage area in accordance with part 7020.0300, subp. 14. For this reason, no manure nutrient testing will be required at many small dairies and beef cattle operations.
·
Subp.
3, item C. Owners of feedlots or manure
storage areas with a capacity of less than 300 animal units are not subject to
the soil phosphorus testing requirements as defined in subp. 3, item C. See Attachment 1.
·
Subp. 4, item B, subitems (2) and (3). As a result of the proposed shift in
placement of soil phosphorus testing requirements and the associated soil
phosphorus levels triggering the need for manure management plans into the
nutrient application rate standards (subp. 3), subitems (2) and (3) were
simplified and merged into one subitem (2).
Also, to keep requirements simpler and more reasonable for smaller
feedlot operations, the MPCA proposes to use soil phosphorus levels and soil
slopes as triggers for manure management plan submittal only at feedlots and
manure storage areas with a capacity of 300 or more animal units. See Attachment 1. This proposed change is consistent with the
proposed soil phosphorus testing requirements in subp. 3, item C, and with the
proposed manure management plan requirements in Subp. 4, items E and F. Manure management plans for any facility
with a capacity of 100 or more animal units can be requested for any reason by
the MPCA or county feedlot pollution control officer in accordance with subp.
4, item B, subitem 3. See Attachment
1.
·
Subp.
4, items D and F. Owners of feedlots or
manure storage areas with a capacity of less than 300 animal units are not
required to develop a manure management plan in accordance with the
requirements in subp. 4, item D.
Instead, the producers in the 100 to 299 animal unit category will be
required to complete a manure management plan with a reduced list of
requirements as stated in subp. 4, item F. See Attachment 1. Exceptions
are made to the reduced planning requirements when manure from feedlots and
manure storage areas with a capacity of 100 or more animal units and less than
300 animal units is to be applied in a drinking water supply management area
where the aquifer is designated vulnerable under Minn. R. chapter 4720. When manure is to be applied in drinking
water supply management areas with vulnerable aquifers, the manure management
plan requirements are the same as for larger operations and must be in accordance
with subp. 4, item D. The more
comprehensive manure management plan is needed in these areas to provide
greater assurance that public drinking water supplies will be protected from
nitrate contamination.
·
Subp.
5, items B and C. Owners of feedlots or
manure storage areas with a capacity of less than 300 animal units are not
required to keep records in accordance with subp. 5, item B. Instead, the producers in the 100 to 299
animal unit category would maintain records with a reduced set of requirements
as stated in subp. 5, item C in Attachment 1, except when manure is to be
applied in a drinking water supply management area where the aquifer is
designated vulnerable under Minn. R. chapter 4720. When manure is to be applied in drinking water supply management
areas with a vulnerable aquifer, then the recordkeeping requirements are the
same as for larger operations and must be in accordance with subp. 5, item B.
The more comprehensive recordkeeping is needed in these areas to provide
greater assurance that public drinking water supplies will be protected from
nitrate contamination.
·
Requirements
for situations where ownership of manure is transferred for application to
fields not owned or leased by the owner of the animal feedlot which produced
the manure, are proposed to be revised so that the requirements apply only to
those feedlot or manure storage areas with a capacity of 300 or more animal
units.
This change is generally consistent with other proposed revisions to lessen testing, planning and recordkeeping requirements for operations with less than 300 animal units. It should be noted that most of the manure which is sold is from operations with more than 300 animal units. Changes to the animal unit threshold for transferred manure will allow small neighboring farms to exchange manure without being required to have written plans and written records.
The
date by which manure management plans must be completed for all feedlots or
manure storage areas with a capacity of 300 or more animal units is proposed to
be changed to be made consistent with the timeline for operations with 100 to
299 animal units and to be consistent with other October 1, 2005 timelines in
the proposed rules.
·
Subp.
4, items A and D. The deadline for
having required manure management plans is recommended for change to October 1,
2005.
The proposed revisions in subp. 4, item A, (See Attachment 1) are to make one timeline for all required manure management plans and to simplify the rules and provide an additional three years for the larger operations to address the list of issues needed to be considered under subp. 4, item D. The 2005 deadline is reasonable since it allows a greater period of time to test soils and manure for nutrient content prior to completing the manure management plan.
·
Subp.
7, item B. The timeline when solid
manure must be immediately incorporated in accordance with subp. 7, item B (See Attachment 1) is recommended for
change from October 1, 2004, to October 1, 2005.
The
reason for this proposed change is to simplify and provide consistency with the
various timelines in the rules and, therefore, make the rules easier to
understand. The additional year allowed
under this proposal does not significantly affect efforts to control pollution
transport to open tile intakes.
·
Subp.
4. Item D, subitem 12. The last half of
subp. 4, item D, subitem 12, as proposed in the December 1, 1999, Revisor
version is proposed to be deleted, which is discussed in Post-Hearing
Responses, pp. 105-106.
The deleted language states “or which are otherwise more specifically defined by the University of Minnesota Extension Service as levels that will likely lead to surface water or ground water quality degradation for different types of soils, soil management, and locations, and as published by the agency in the State Register.” This change is proposed based, in part, on comments by Dan Schmitz at the New Ulm hearing (Post-Hearing Responses, p. 105-106), and to provide greater clarity and understanding for those using and interpreting the rule. The soil phosphorus test threshold values (in subp. 3, item C of Attachment 1) alone are sufficient for prompting further phosphorus management planning and submittal and review of the manure management plan.
·
Subp.
6, item B, and subp. 7. The MPCA
proposes to add another option in subp. 6, item B, subitem 3, (See Attachment 1) and to provide
further clarification in subp. 7, item C (See Attachment 1), regarding alternative water quality
protection practices which is discussed in Post-Hearing Responses, p. 111.
After
further consideration of comments and discussion described in Post-Hearing
Responses, p. 111, the MPCA proposes to make changes under subp. 6, item B,
subitem 3, and subp. 7. Subpart 6 is
proposed to be changed with regard to times when manure is applied to unfrozen
soils in special protection areas. The
change will create a third option for protection of water resources is
available. It states “Implementation of
other MPCA approved practices that have been demonstrated through research by a
Land Grant College to provide for an equal degree of water quality protection
as the measures in subitems 1 and 2.”
This is needed to encourage innovation and experimentation with other
practices, which may be equally protective, yet that are more reasonable for
producers to implement under certain conditions.
The
proposed revision to subp. 7 uses language generally consistent with that
proposed in subp. 6, item B, subitem 3.
The proposed revision in subp. 7, item C, clarifies the meaning of the
existing language “unless other agency-approved water quality protection
management practices are implemented” by stating that the practices must
provide equal protection as injection or incorporation as determined by
research at a Land Grant College.
Requiring the alternative measures to be researched at a Land Grant College
will ensure a greater degree of credibility when making decisions about
allowable alternative practices.
7020.2225 LAND APPLICATION OF MANURE. Subpart 1. In general.
In
a March 2, 2000, letter from Suzanne McIntosh of Clean Water Action Alliance
(page 16), a concern is expressed that the rules on land application do not
clearly appear to protect subsurface or ground waters.
Subsurface
or ground waters are protected in numerous ways throughout 7020.2225. The general water quality protection
provisions in subp. 1, item A, pertain to all “waters of the state” which by
definition includes aquifers and underground waters. One of the primary purposes of the manure testing, manure
management plan development and record keeping requirements in subp. 2, subp. 4
and subp. 5, respectively, is to minimize nitrate transport to subsurface
waters. In addition the nutrient
application rate standards in subpart 3, item A, is primarily intended to
protect ground water from nitrate contamination. Application of manure near sinkholes, mines, quarries and wells
is restricted in subp. 8 to protect underground waters. In addition, in response to comments at the
October 11, 1999, FMMAC meeting (referred to by McIntosh), ground water was
added to the types of waters being considered in subp. 4, item D, subitem
9. The proposed Minn. R. 7020.2225 is
clearly intended to protect both surface and ground waters.
7020.2225 LAND
APPLICATION OF MANURE. Subpart 6.
Manure and process wastewater application requirements in special protection
areas.
In the February 29, 2000, letter from the Cass County Board of commissioners, and at testimonies during the Nisswa, Minnesota hearings, concerns were expressed about the large amount of land in special protection areas and the corresponding potential ramifications of the rules on pasture, cow/calf operations. To the degree that these concerns relate to manure and process wastewater application, the MPCA wishes to clarify that the uncollected direct deposition of manure by livestock on pastures is not considered land application of manure and is not subject to the land application provisions of part 7020.2225 required for typical application methods.
7020.2225 LAND APPLICATION OF MANURE. Subpart 7. Manure and process wastewater application for land within 300 feet of open tile intakes.
The
agency proposes to further change subpart 7 to clarify that the subpart only
pertains to land where runoff waters can flow into the open tile intake. This proposed addition is in response to
testimony by Bob Pedula who indicated that there are situations where within
300 feet of open tile intakes it is virtually impossible to have movement of
water into the open tile intake, especially where open tile intakes are
constructed on fields with terraces.
III. Miscellaneous Responses.
A.
Memorandum of Understanding with Department of Agriculture.
Clean
Water Action Alliance (CWAA) makes this statement in their comment letter dated
March 2, 2000:
“We were astonished by the public release of the Draft Minnesota Dairy Pollution Prevention Initiative Memorandum of Understanding (MOU) and Conceptual Agreement which is attached to this letter. We believe that the MDA and MPCA’s eleventh hour actions in entering into this agreement approximately two weeks before the end of the public comment period is in bad faith and in direct conflict with the consensus items discussed at FMMAC. Throughout the rule-making process, there was never any discussion or indication that the MDA would be the enforcement authority for a large sector of the livestock industry. The MOU and Conceptual Agreement are a substantial change in the enforcement authority and accountability provisions drafted into the rules. The Conceptual Agreement and MOU materially and substantially alter many of the provisions in the rules and the terms of what we agreed to in the consensus items with the exception of poultry floor requirements. Our organization no longer supports the consensus items. The agencies’ actions at the FMMAC meetings, and subsequent to those discussions, have substantially changed our interpretation of these items presented to us. “
The
commissioners of the MPCA and the Minnesota Department of Agriculture (MDA) did
indeed enter into a conceptual agreement to extend the scope of work for dairy
inspectors to also include environmental compliance. This agreement in concept was reached on January 3, 2000. Staff are still working on details of a MOU
that will flesh out the conceptual agreement.
There has been no public release except of the conceptual
agreement. The version of the draft MOU
that CWAA attached to their comment letter was not used as the template for the
agreement. The document that CWAA
attached has no status and should be disregarded.
CWAA’s
comments raise several issues with the conceptual agreement and the dairy MOU
including:
·
Lack
of notice to FMMAC,
·
The
MOU is in direct conflict with the FMMAC consensus items, and
·
The
MOU constitutes a material and substantial alteration of MPCA authority.
We
will take these issues in order after a general discussion of the MOU purpose
and process. The MPCA has long
recognized that our staff alone are not able to reach all the feedlot
facilities with inspections and compliance activities. We have been seeking partners along the way
to enhance our efforts. At this time,
54 counties have been delegated to administer feedlot programs. They use their own authorities to enforce
MPCA’s requirements for feedlots, including permitting, inspection, compliance
assistance and enforcement. Soil and
Water Conservation Service works directly with feedlot operators to assist them
with technical and financial assistance.
The MDA’s Agricultural Best Management Practices loan program also
provides funding assistance. The
Minnesota Department of Natural Resources (DNR) is also a partner. In 1993, the MPCA developed an MOU with the
DNR that clarifies the work that conservation officers do with regard to
enforcement of feedlot rules.
The
dairy MOU now being developed is another link in this statewide
partnership. It builds on the fact that
dairy inspectors are going to Grade A dairies across the state at least twice a
year and Grade B dairies at least once a year.
Training the dairy inspectors in feedlot rule requirements, compliance
determination and producer options for compliance will give them the tools they
need to be effective partners. The goal
is to take advantage of the presence of the inspectors at the dairies and to
make sure that consistent messages are given to dairy producers on
environmental compliance. The MOU will
not bar MPCA or county inspectors from making dairy inspections, in fact it
will build in an audit function where MPCA will re-inspect up to 2 percent of
the dairy feedlots. The authority of
counties to permit, inspect and enforce is not affected at all by the
agreement.
1.
Clean Water Action
Concern: Lack of notice to FMMAC.
The conceptual agreement was reached on January 6, 2000. Assistant Commissioners Gordon Wegwart and Perry Aasness (MPCA and MDA, respectively) met with FMMAC at their January 20, 2000, meeting. They presented the conceptual agreement to the members and discussed the policy directions that would be followed in development of the more-detailed MOU.
2.
Clean Water Action
Concern: The MOU is in direct conflict
with the FMMAC consensus items.
The
consensus items are:
a.
Poultry Barn Floors: The recommendations of FMMAC members were to add provisions for
asphalt floors, clarify the requirements for concrete floors, add additional
options for clay or soil-lined floors, and to allow alternative floor types as
they became an acceptable practice in the industry.
b.
Stockpiling of manure: There were five primary issues regarding the stockpiling of manure. The first is that stock piles would be
treated the same as other facilities with respect to the shoreland setback
requirements for new and existing facilities.
The second clarification regarded stock piles sites used for a short
period of time (one to five weeks) at a frequency greater than once per year
would be considered a permanent stock pile site. The sites are permanent sites, because the owner cannot meet the
requirement to re-establish a vegetative cover prior to reuse of the site. The third issue was the request allowing not
only a three-to-one horizontal to vertical stacking ratio as a criteria for
stock-piled manure, but to also include a percent moisture or percent solids
content. The fourth issue under the
stock piling of manure was a combination of the maximum size of a temporary
stockpile (10,000 square feet), and the separation distance required between
stock pile sites. The final issue
regarding the stock piling of manure was the exemption for stockpile sites
located on animal lots containing hoofed animals.
c.
“Manure storage area” and
“total confinement” definitions: There were
two concerns raised by FMMAC members on manure storage areas related to the
question of short-term stock pile permit requirements. The Feedlot Rules Team clarified and revised
rule language to clearly state that a permit is not required for a short-term
stock-pile site if the facility is not otherwise a feedlot. The second issue is the definition of “total
confinement” and “partial confinement.”
d.
Mapped out areas: This issue dealt with the incorporation of USGS quadrangle and
the maps DNR Protected Waters and Wetland maps, which identified grassed water
ways, intermittent streams, drainage ditches and water bodies.
e.
Land application of manure
and manure management plans: There were
three primary issues related to the land application of manure; phosphorus
based application rate requirements; set back requirement for a range of water
bodies, including lakes and perennial streams; and the prohibitions of land application
onto shallow soils over fractured bedrock.
f.
Criteria for delegated
counties: The issues here were the earlier-proposed
expiration of delegation agreements, and workload issues resulting from
re-registration on a 4-year cycle.
There is no direct conflict here.
3.
Clean Water Action
Concern: The MOU constitutes a material
and substantial alteration of MPCA authority.
Minnesota Stat. Sec. 116.05 (1998), gives the commissioner of the MPCA the ability to request that other state agencies assist in the fulfillment of the agency’s responsibilities. The MDA is not being granted new authorities, they are being requested to assist MPCA staff in doing their jobs using MPCA rules and authorities. The agreement does not constitute an alteration in MPCA authorities. It does enhance the state’s ability to fulfill its responsibilities under the law. It is similar to the DNR MOU and the delegation of counties to administer the feedlot program.
In
conclusion, the conceptual agreement does not interfere with the rulemaking in
any substantial way. It is an
administrative act by two administrative agencies outside the rulemaking
process.
B.
NPDES Permit Program Implementation.
In
his March 6, 2000 submittals, Zenas Baer makes several comments regarding the
NPDES program and the MPCA’s intended implementation of that program. These issues have been addressed in some
detail in the SONAR (e.g. pp. 30-31, 93-95), in oral presentations during the
public hearings and in the MPCA’s initial post-hearing memo. See Post-Hearing Responses, pp.
25-26, 139-143. The MPCA will not
repeat those discussions in detail here but merely summarize some issues to
help address some confusing assertions made in public comments.
The
MPCA intends to implement the NPDES CAFO program, including the CAFO-permitting
application process, in accordance with the EPA regulations. In accomplishing this goal and in
administering the NPDES CAFO program, the MPCA ensured that its rules covered
all of the CAFO and potential CAFO facilities covered by the federal
regulations, 40 C.F.R. part 122.23 (1999).
One way the MPCA did this was to use EPA’s definition of “concentrated
animal feeding operation” in part 122.23(b)(3). EPA’s definition covers all three categories of CAFOs; those
CAFOs that meet the criteria in appendix B of that part and the case-by-case
designation process under paragraph (c) of part 122.23. The MPCA incorporated this EPA definition in
part 7020.0300, subp. 5a. The MPCA’s
definition covers the same three CAFO categories included in the federal
definition. See SONAR, p. 27;
Post-Hearing Responses, pp. 25-26. MPCA
has already discussed the implementation of the case-by-case designation
process. See SONAR, Exhibit
P-3. With this incorporated
definition, the MPCA can assure EPA that it is implementing the federal NPDES
CAFO program in a manner as stringent as and consistent with the NPDES
regulations.
In
administering the NPDES CAFO program, the MPCA intends to implement the NPDES
permit application process in accordance with the federal and state rules and
regulations. Under these procedures,
CAFOs have the opportunity to demonstrate facts regarding the application of
the exemption in 40 C.F.R. part 122.23, Appendix B. See SONAR, pp. 30-31.
If these larger facilities demonstrate through this permit application
process that the exemption is applicable in accord with the federal
regulations, the MPCA will issue them the appropriate SDS permit under part
7020.0405, subp. 1, item B. See
SONAR, pp. 30-31, 93-95; Post-Hearing Responses, p. 143.
V. Responses to SONAR Economic Analysis Comments.
In
his letter dated February 25, 2000, Mr. Phil Nesse raises concerns about how
the MPCA used the IMPLAN model to determine economic impacts. Mr. Nesse states:
“The SONAR uses Implan (p. 247), a computer model, to estimate the impact of the feedlot rules on the agricultural economy and also the general state economy. One of the assumptions of the model is that the individual being regulated can pass his/her extra cost to the consumer. Farmers cannot do this. SONAR did not recognize this extremely basic economic fact.”
Mr.
Nesse's suggests that the MPCA incorporated cost increases that the farmer
could pass on to the consumer into the economic analysis. Mr. Nesse's
assumption is incorrect.
The
model, IMPLAN, uses no assumptions about passing extra costs on to consumers
and neither did the MPCA. Instead, the
SONAR analysis assumed that extra costs would be paid for by cutting other farm
operating costs. See SONAR,
p. 253. Increased selling prices or
cutting expenses are two of the five options discussed on pages 246 and 253
available to the operator to adjust to increased costs. On page 253 of the SONAR, the MPCA clearly
states in the last paragraph that farmers cannot influence price and must
utilize managing price risk and other options like reducing costs. Further explanations are described in the
SONAR. The MPCA also addressed this
issue further in its reply to Professor George Morse, University of Minnesota. See Post-Hearing Responses, pp.
117-120.
Mr. Zenas Baer, in his
letter dated March 3, 2000, asserts on page 11 of the SONAR Analysis document
of his letter that: “The economic analysis does not include any loss of
feedlots as a result of the regulations.
There was significant testimony by producer groups that the industry is
fleeing the State of Minnesota because of the onerous regulations. This cost was not considered by the economic
analysis done by the Agency.” Mr. Baer
further states on page 11 under his label of Facts that: “MPCA fails to take into consideration the
loss of commercial feedlots to the State of Minnesota and its multiplier affect
(sic) in the grain market because of flight of commercial feedlot industry from
the State of Minnesota.”
Mr.
Baer's comments are addressed in the MPCA’s reply to Professor George Morse
from the University of Minnesota. The
MPCA does not intend to re-state the issues and support its position in this
document. The particular portions of
the MPCA's March 6 Post-Hearing Responses relevant to this discussion address
Prof. Morse’s comments on food processing plants. Post-Hearing Responses, pp. 121- 122. With respect to Mr. Baer's comments regarding impacts on grain
markets, the largest forecast loss in the “Feed Grains” sector was $163,000
using the IMPLAN model. This amount of loss was about one-one hundredth of one
per cent of that sector’s total $1.6 billion output. The impact was not discussed because it fell below the 0.1 per
cent threshold for noticeable effects.
The MPCA believes the assessment to be reasonable.
Replies to Comments
Regarding Cost Estimates.
In Mr. Phil Nesse's letter,
dated February 25, 2000, commented on page 4, item 11, that the cost estimate
for preparing a manure management plan that was depicted on page 261 in the
SONAR is too low. Mr. Nesse is
referring to the estimate of two hours, which was used in a scenario to help
clarify when regulations cause farmers to incur costs. The two hours refers to the time the MPCA
expects that a person would need in preparing a manure management plan to meet
current requirements at a smaller farm.
The MPCA recognizes that the proposed manure management plan
requirements would require more time to prepare the plan. See SONAR, p. 261. The MPCA further agrees that the larger
facilities will need more time to prepare the plan and likely use consultants;
thus, experiencing a cost, which will range depending on what is requested of
the consultant and the size of facility.
However, the MPCA believes that better manure management planning leads
to better utilization of the manure as a resource resulting in cost savings or
at a minimum, an offset for livestock owners and operators. This is supported by research from the
University of Minnesota and others. See
SONAR Exhibits E-6, E-7, E-8.
In his letter of March 3,
2000, Mr. Zenas Baer comments, on page 10, that the MPCA has not considered the
economic impacts of the annual NPDES permit fee. The MPCA has responded to this issue on page 136 of the MPCA
Staff Post-Hearing Responses. The
annual costs for a NPDES permit are as follows: $1,230.00 for an Individual Permit and $260.00 dollars for a
General Permit. The figures used by the
MPCA in its initial response were $1,240.00 for individual permit and $240 for
a general permit. This change results
in a slight difference in the cost estimate for issuing NPDES permits to the
estimated 800 existing possible CAFO facilities over 1000 animal units.
Mr. Baer further states on
page 10 that the costs of air modeling is not included in cost analysis
completed by the MPCA. Air modeling is
not required by the proposed rule. Air
modeling may be required as part of preparation of an Environmental Assessment
Worksheet or when a facility is found to be out of compliance with air
emissions standards. Therefore, the MPCA does not believe that it is
appropriate for costs related to air modeling should be included in the cost
analysis.
On page 11 of his letter,
Mr. Baer indicates that industry estimates for the proposed rule are greater
than the costs we have stated in the SONAR.
He references the SONAR Exhibit 10, which shows a list of costs for
compliance. Many of the costs listed in
Exhibit 10 are costs that are currently required under the MPCA's feedlot
program. The specific items are listed
below with a brief discussion on how the MPCA handled them in developing the
cost impacts of the proposed rule revisions.
1.
Soil
borings are necessary for construction of liquid manure storage areas under the
current Chapter 7020 regulatory program.
Thus, the MPCA does not consider them to be additional costs to be
experienced by the feedlot owner as a result of the proposed rules. These
requirements are described in SONAR Exhibits M-10, M-11, and M-18.
2.
The
costs for preparing a topographical survey and for site plan preparation with
construction elevations of the construction site are not a new cost as a result
of the proposed rules. This cost is a
necessary cost associated with construction of the feedlot or manure storage
facility, not the rule, and is necessary for the contractor to do
excavating. Again, the MPCA does not
believe it is appropriate to include these costs in the analysis regarding
financial impacts on feedlot owners of the rule.
3.
Plans
for manure storage structures are required under the current Chapter 7020
regulatory program as described in the SONAR Exhibit M- 18. No costs were to be incorporated into the
analysis.
4.
The
MPCA agrees that the construction inspection costs are a result of the proposed
rules. Thus, the MPCA did include a
cost increase of $2,500 for the proposed requirement for construction
inspection. See SONAR, pp.
250-251.
5.
The
MPCA believes that it has properly addressed costs associated with manure
nutrient management plans. The manner
in which the MPCA addressed these costs are addressed in SONAR on pages 243-244
and in SONAR Exhibit E-6.
6.
Permit
applications are required and must be submitted to the MPCA or delegated county
under the current chapter 7020 feedlot program. The permit applications required under the proposed program are
expected to be no more time intensive for the livestock industry as a whole
than the time for preparing applications under the existing feedlot
program. Thus, the MPCA does not
believe that it is appropriate to include costs associated with developing a
permit application be included in the cost analysis for impacts due to the
proposed feedlot rules.
7.
When
needed, the Environmental Assessment Worksheet (EAW) is actually required under
Minnesota’s Environmental Quality Board Rules.
The preparation of an EAW is not required by the proposed feedlot
rules. Therefore, it is inappropriate
that costs associated with the preparation be included in the cost analysis.
Again, the MPCA in the cost
analysis considered costs that are a result of the amended proposed rule. The
MPCA did expand its cost considerations from that discussed in the SONAR in the
March 6 MCPA Post-Hearing Responses. On
pages 126 - 132 of the Post-Hearing Responses, the MPCA included additional
costs associated with the expected increased rate of compliance due to the
proposed feedlot rules. Furthermore,
the MPCA explains the increased impact due to the rate of compliance estimates.
In his letter of March 3,
2000, Mr. Baer comments on page 11 that the MPCA has failed to include the cost
for reporting and recordkeeping requirements in the rules. The MPCA has proposed additional
recordkeeping as part of the manure management plan requirements. However, the MPCA contends that this
recordkeeping is essential for proper manure management to prevent
environmental impacts and to gain the most benefit from the nutrients contained
in the manure. Further, the MPCA
believes that the benefits of proper manure management will outweigh any
additional costs. See SONAR Exhibit
E –6. In addition, the MPCA has
proposed changing the recordkeeping requirements for smaller farms. These proposed changes are discussed in the
March 6, 2000, MPCA Post-Hearing Responses on page 107 as to the direction the
MPCA intends to take in reducing recordkeeping. The actual language for the changes are discussed earlier in this
document.
VI.
Program Implementation.
The MPCA has no responses
regarding program implementation to make in addition to those made in the March
6, 2000, Post-Hearing Responses.
A. Regulation of
Pastures.
In
its initial responses, the MPCA staff indicated that various rule changes would
be made to pasture-related aspects so that the rule focus on pastures would
return to the manner pastures area currently provided for under now existing
chapter 7020. See Post-Hearing
Responses, pp. 11-12. In making these
revisions, it is important to state that by deleting pastures from various rule
provisions, the MPCA is not limiting its ability to address pastures under
current authorities. For example, in part 7020.20250, subp. 2, MPCA was merely
placing into rule the authorities that already exist Minn. Stat.§ 115.04. See SONAR, p. 60. The MPCA staff, consistent with its previous
representations, is proposing to remove the term “pasture” from item B. However, by doing so, MPCA is not intending
to suggest or imply that it has in anyway or manner limited its authority to
pursue access to pasture facilities when the MPCA deems it appropriate under
Minn. Stat. § 115.04. The MPCA staff,
however, wanted to add this clarifying response to ensure that it was clear
that such deletions are not to be interpreted as limitations on already
existing authorities.
VII. Closing and Conclusion.
The MPCA submits its Final Post-Hearing Responses on the proposed feedlot rules, Minn. R. Chapter 7020 with this memorandum. The MPCA has received and reviewed comments, oral and written on the need and reasonableness of the proposed feedlot rules and related program activities. The preceding text represents the MPCA's final 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/manure management plans and water quality discharge standards. The MPCA staff proposed modifications to these rule parts as described in the Post-Hearing Responses dated March 6, 2000, and in this memorandum.
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 provisions contained in the rules. Where the suggestions and information supported a reasonable alternative or additional approach, the MPCA has attempted to incorporate those suggestions.
VIII. Attachments.
Attachment 1. Compilation of changes to rules as identified in Post-Hearing March 6, 2000, Post-Hearing Responses and March 13, 2000, Final Responses.
Dated: March 13, 2000. _____________________________
Gordon E. Wegwart, P.E.
Assistant Commissioner
Commissioner's Office