5 Colo. Code Regs. § 1002-61.13

Current through Register Vol. 47, No. 20, October 25, 2024

Section 5 CCR 1002-61.13 - HOUSED COMMERCIAL SWINE FEEDING OPERATIONS

61.13(1)SCOPE AND PURPOSE

(a) The provisions in this section 61.13 implement the provisions of section 25-8-501.1, C.R.S. This section also includes permit regulations required by the federal concentrated animal feeding operation (CAFO) regulations as revised effective July 24, 2007 and December 22, 2008.

(b) The purpose of these regulatory provisions is to ensure that the storage and land application of waste from housed commercial swine feeding operations is done in a responsible manner so as not to adversely impact Colorado's valuable water resources.

61.13(2)SPECIFIC APPLICABILITY

(a) Housed commercial swine feeding operations have a duty to seek coverage under an individual discharge permit. No person shall operate, construct, or expand a housed commercial swine feeding operation without first having obtained an individual discharge permit from the Division.

(b) Housed commercial swine feeding operations shall comply with the relevant sections of Regulation #61, not superseded by this section 61.13, which shall be incorporated in the permit.

(c) Land Application Discharges from a housed commercial swine feeding operation - The discharge of residual solids or swine feeding process wastewater to surface water from a housed commercial swine feeding operation (HCSFO) as a result of the application of that residual solids or swine feeding process wastewater by the HCSFO to land areas under its control is a discharge from that HCSFO subject to permit requirements, except where it is an agricultural storm water discharge. For purposes of this section 61.13, where the residual solids or swine feeding process wastewater has been applied in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the residual solids or swine feeding process wastewater, as specified in those parts of the swine waste management plan that address subsections 61.13 (viii), (ix), (x) and (xvi), a precipitation-related discharge of residual solids or swine feeding process wastewater from land areas under the control of a HCSFO is an agricultural stormwater discharge.

61.13(3)APPLICATIONS AND REQUIRED PLANS

(a) All new housed commercial swine feeding operations shall submit to the Division, at least one hundred eighty (180) days prior to beginning construction of facilities for such operations, a completed permit application on a form obtained from the Division. Provided, that the permit application may be submitted at a later date, that is not less than 180 days prior to swine being placed on the operation, with the approval of the Division following a pre-application meeting.

(b) Application requirements for New Operations - New housed commercial swine feeding operations shall provide the following information to the Division as set forth in the permit application;

(i) Relevant information pursuant to provisions of subsections 61.4(1), (2), and (7);

(ii) Calculations which identify the maximum proposed animal capacity in accordance with the definition of a housed commercial swine feeding operation;

(iii) A construction plan, as described in subsection 61.13 ;

(iv) An operations plan as described in subsection 61.13(3)(e);

(v) A swine waste management plan as described in subsection 61.13(3)(f);

(vi) A monitoring plan as described in subsection 61.13(3)(g); and

(vii) A financial assurance plan, consistent with the requirements of subsection 61.13(3)(h); and

(viii) For non-land-application facilities, documentation that the operations will meet the definition of "non-land-application facility" for the term of the requested permit.

(ix) The following information:

(A) The name of the owner or operator;

(B) The facility location and mailing addresses;

(C) Latitude and longitude of the production area (entrance to production area);

(D) A topographic map of the geographic area in which the housed commercial swine feeding operation is located showing the specific location of the production area;

(E) Specific information about the number and type of housed swine (for example, boars, sows, feeders, nursery pigs);

(F) The type of containment and storage for residual solids and swine feeding process wastewater (for example, anaerobic lagoon, roofed storage shed, storage ponds, underfloor pits, above ground storage tanks, below ground storage tanks, concrete pad, impervious soil pad, stockpiles, composting), and total capacities for residual solids and swine feeding process wastewater (tons/gallons);

(G) The total number of acres under the control of the applicant available for land application of residual solids or swine feeding process wastewater;

(H) Estimated amounts of residual solids and swine feeding process wastewater generated per year (tons/gallons); and

(I) Estimated amounts of residual solids and swine feeding process wastewater transferred to other persons per year.

(c) Application Requirements for Existing Operations - Existing housed commercial swine feeding operations shall provide the following information to the Division as set forth in the permit application:

(i) Relevant information pursuant to provisions of subsection 61.4(1), (2), and (7);

(ii) Calculations which identify the maximum proposed animal capacity in accordance with the definition of a housed commercial swine feeding operation;

(iii) A construction plan, as described in subsection 61.13(3)(d). If the construction plan indicates that any provision of subsection 61.13 , or of the water quality setbacks established in subsection 61.13 , is not currently being met, then the application shall include a plan for making necessary modifications to the facilities by July 1, 2000 such that the applicable requirement(s) will be met;

(iv) Readily available information regarding the existing swine waste management practices of the operation, including any information related to the swine waste management plan elements identified in subsection 61.13(3)(f); and

(v) For non-land-application facilities, documentation that the operations will meet the definition of "non-land-application facility" for the term of the requested permit.

(vi) A swine waste management plan as described in subsection 61.13(3)(f);

(vii) The following information:

(A) The name of the owner or operator;

(B) The facility location and mailing addresses;

(C) Latitude and longitude of the production area (entrance to production area);

(D) A topographic map of the geographic area in which the housed commercial swine feeding operation is located showing the specific location of the production area;

(E) Specific information about the number and type of housed swine (for example, boars, sows, feeders, nursery pigs);

(G) The total number of acres under the control of the applicant available for land application of residual solids or swine feeding process wastewater;

(H) Estimated amounts of residual solids and swine feeding process wastewater generated per year (tons/gallons); and

(I) Estimated amounts of residual solids and swine feeding process wastewater transferred to other persons per year.

(d) Construction Plan Requirements - The construction plan shall contain documentation which demonstrates that each applicable provision of subsection 61.13 has been or will be met and which also demonstrates compliance with the water quality setbacks established in subsection 61.13 . In addition to such documentation, the plan shall include the following information:

(i) A description of the confined swine feeding operation site(s) and vicinity including a site plan(s) prepared on one or more 7.5' USGS topographic quadrangle maps or a high quality reproduction(s). The site plan(s) shall show:

(A) All swine feeding process wastewater collection systems in housed units and any swine feeding process wastewater conveyance, treatment, storage, and land application facilities and contiguous property for each site presently owned or utilized by the housed commercial swine feeding operation;

(B) The 100-year floodplain in the vicinity of the swine waste management aspects of the operation, which may be based on designations by the Colorado Water Conservation Board, where available; and

(C) The location of occupied dwellings, public or private schools, incorporated municipalities, private and community domestic water wells, wetlands, streams, and reservoirs which are within 200% of the setback distances specified in subsection 61.13(4)(f) of these regulations.

(ii) Design calculations, which document that applicable provisions of subsection 61.13 have been met, for all swine feeding process wastewater collection systems in housed units and any swine feeding process wastewater conveyance, treatment, storage, and land application facilities.

(iii) For new facilities, construction plans and specifications for the waste collection systems in the housed units and the waste conveyance, storage, treatment, and land application systems consistent with the design calculations described in (ii), above. These shall also include the method that will be used to convey or transport the swine waste to the land application sites. The plans and specifications submitted with the application shall include sufficient detail to demonstrate compliance with the requirements of subsection 61.13 . If not included in the information submitted with the application, the following information shall be submitted prior to permit issuance or in accordance with a compliance schedule included in the permit:

(A) Construction and installation procedures;

(B) Assurances that testing will be conducted to assure that materials used in impoundments for the treatment, storage, or evaporation of swine feeding process wastewater meet the requirements of subsection 61.13(4)(c)(iii) of this regulation;

(C) Operating and performance characteristics of mechanical equipment and materials associated with the swine feeding process wastewater and residual solids collection/conveyance, storage, treatment, and land application systems.

(iv) For existing facilities, as-built construction plans and specifications, or other documentation as approved by the Division, for swine feeding process wastewater and residual solids collection systems in housed units and the waste conveyance, storage, treatment, and land application systems. These documents shall, to the degree practicable, be modified or supplemented such that the information in subsection (iii), above, is provided.

(v) For operations located on state trust lands, information sufficient to demonstrate that the provisions of subsection 61.13(4)(g)(ii)(C) are met.

(e) Operations Plan - The operations plan shall provide for compliance with the provisions of subsection 61.13 . The plan shall also include a description of necessary operation and maintenance procedures, including, but not limited to, the following:

(i) Procedures for the operation and maintenance of swine feeding process wastewater collection systems in housed units and swine feeding process wastewater and residual solids conveyance, treatment, storage, and land application systems to ensure their continued functionality, including periodic inspection procedures to ensure their physical and mechanical integrity;

(ii) Procedures to address spills and prevention of contamination due to equipment or structural failure and power outages. Such procedures shall not apply to spills that qualify as "de minimis" relative to the site-specific conditions, in accordance with a site-specific interpretation of "de minimis" proposed by the permittee, approved by the Division and included in the permit;

(iii) Procedures to ensure that surface and ground water quality is not impacted as a result of storage or disposal of dead animals.

(f) Swine Waste Management Plan - Any permit issued to a housed commercial swine feeding operation ("HCSFO") must require compliance with the terms of the HCSFO's site-specific swine waste management plan. The terms of the swine waste management plan are the information, protocols, best management practices, and other conditions in the swine waste management plan determined by the Division to be necessary to meet the requirements of subsections 61.13 , 61.13 and 61.13 . A HCSFO shall develop and implement a complete swine waste management plan as of the date of permit coverage. The plan shall be prepared under the supervision of a professional engineer registered in the State of Colorado, by the Natural Resources Conservation Service, by a qualified Cooperative Extension Agent, by a certified crop advisor certified by the American Society of Agronomy or by an independent crop consultant certified by the National Alliance of Independent Crop Consultants. The plan shall include sufficient site-specific hydrologic and agronomic information, supplemented by other scientifically supported information, to document that land application of all residual solids and swine feeding process wastewater will be conducted and sustained at or below the agronomic rate of application for crops or vegetation to be grown on the application site(s). The plan shall quantify the disposition of all residual solids and swine feeding process wastewater produced at the facility whether put to beneficial use through land application on-site or transported off-site. The swine waste management plan must identify and address the following:

(i) Daily, seasonal, and annual quantities and/or flow rates of residual solids and swine feeding process wastewater to be applied to the land area;

(ii) Concentrations of specific constituents including, but not limited to, nitrogen, phosphorus, heavy metals, and salts present in the residual solids or swine feeding process wastewater as a result of the housed commercial swine feeding operation;

(iii) Climatic conditions, including temperature and precipitation regime, as they may seasonally affect the plants' ability to uptake nutrients and other constituents present in the wastewater;

(iv) Soil types in the land application sites;

(v) Documentation which supports any post-treatment reduction in waste concentration(s) prior to land application;

(vi) Identify the crops to be planted in each field, or any other uses such as pasture or fallow fields. Identify alternative crops that are not in the planted crop rotation for each field. Identify the realistic yield goal for each crop and alternative crop for each field.

(vii) The specific land parcels and acreage to receive the residual solids and swine feeding process wastewater and a demonstration that adequate and suitable land is available upon which to land apply the residual solids and swine feeding process wastewater in accordance with the agronomic rate of application;

(viii) Identify the constituents in residual solids, swine feeding process wastewater, and soils that will be analyzed, and the testing protocols that will be used for the analyses, to ensure the provisions of subsection 61.13(4)(e) are met;

(ix) Identification and a description of the methods for determining application rates and setbacks, and the potential for nitrogen and phosphorus transport from land application sites that will ensure the provisions of subsection 61.13(4)(e) and 61.13(4)(f)(iii) are met;

(x) A description of the planned method of residual solids and swine feeding process wastewater land application, disposal, or other usage, land application equipment leak inspection protocols, and surface water runoff controls and setbacks that will be implemented to prevent wastes from being discharged to waters of the state or beyond the property boundary of the land application site;

(xi) A description of how the permittee will ensure adequate storage of residual solids and swine feeding process wastewater, including procedures to ensure proper operation and maintenance of the storage facilities;

(xii) A description of how animal mortalities will be managed to ensure that they are not disposed of in any liquid residual solids or swine feeding process wastewater system that is not specifically designed to treat animal mortalities, and are handled in such a way as to prevent the discharge of pollutants to surface waters;

(xiii) Indicate how the permittee will ensure that clean water is diverted, as appropriate, from the production area;

(xiv) Indicate how swine will be prevented from having direct contact with surface water;

(xv) A description of how chemicals and other contaminants handled on-site are not disposed of in any residual solids or swine feeding process wastewater storage or treatment system unless specifically designed to treat such chemicals and other contaminants;

(xvi) Identify specific records that will be maintained to document the implementation and management of the elements required in subsections 61.13(3)(f)(vi) through (xv), above;

(xvii) Feed management practices employed, if any, to reduce nutrient concentrations in swine feeding process wastewater or residual solids;

(xviii) If swine waste is to be applied on property not owned by the permittee, written agreements with landowners for off-site land application must be included in the plan. Agreements entered into after March 30, 1999, with landowners for land application shall allow the Division or its agent to assume the rights of the permittee under the agreement in the event that a facility must be brought to final closure by the state unless alternative treatment and disposal are provided for under the financial assurance plan, subsection 61.13 . The permittee shall provide notice to each landowner of property on which off-site land application occurs of the Division's authority to enter and inspect premises pursuant to section 25-8-306, C.R.S. The permittee shall provide evidence that any agreement with the landowner entered into after March 30, 1999, provides a right of entry to the Division to monitor for compliance with the permit, either directly in the agreement or by assignment of the permittee's rights under the agreement. The Division may require that the permittee cease land application on any off-site lands to which the Division is denied entry; and

(xix) Changes to Swine Waste Management Plan

(A) Any permit issued to a HCSFO must require the following procedures when a HCSFO owner or operator makes changes to the swine waste management plan previously submitted to the Division:

(I) The HCSFO owner or operator must provide the Division with the most current version of the HCSFO's swine waste management plan and identify changes from the previous version, except that the results of calculations made in accordance with the requirements of paragraph 61.13 are not subject to the requirements of this section.

(II) The Division must review the revised swine waste management plan to ensure that it meets the requirements of this section and applicable effluent limitations and standards, including those specified in 61.13(4) below, and must determine whether the changes to the swine waste management plan necessitate revision to the terms of the swine waste management plan incorporated into the permit issued to the HCSFO.

1. If revision to the terms of the swine waste management plan is not necessary, the Division must notify the HCSFO owner or operator and upon such notification the HCSFO may implement the revised swine waste management plan.

2. If the Division determines that the changes to the terms of the swine waste management plan are necessary, the Division must notify the public and make the proposed changes and the information submitted by the HCSFO owner or operator available for public review and comment. The process for public comments, hearing requests, and the hearing process if a hearing is held must follow the procedures applicable to draft permits set forth in 61.5. Once the Division incorporates the changes to the terms of the swine waste management plan into the permit, the Division must notify the owner or operator and inform the public of the final decision concerning changes to the terms and conditions of the permit.

(III) Changes to any terms of the swine waste management plan are incorporated as terms and conditions of the permit. Such changes include, but are not limited to:

1. Addition of new land application areas not previously included in the HCSFO's swine waste management plan;

2. Any changes to the maximum amounts of nitrogen and phosphorus derived from all sources for each crop, as set forth in paragraph 61.13(4)(e) of this section;

3. Addition of any crop or other uses not included in the terms of the HCSFO's swine waste management plan and corresponding field-specific rates of application expressed in accordance with paragraph 61.13(4)(e) of this section: and

4. Changes to site-specific components of the HCSFO's swine waste management plan, where such changes are likely to increase the risk of nitrogen and phosphorus transport to surface water.

(g) Monitoring Plan

(i) The monitoring plan shall describe monitoring methods which demonstrate compliance with subsections 61.13(4)(e) and 61.13 . Where the plan does not include quarterly sampling of ground water beneath each land application site, soils within the agronomic root zone, or soils within the monitoring zone, the plan shall include documentation that this sampling frequency is not practicable.

(ii) Where residual solids or swine feeding process wastewater are to be stored in lined earthen impoundments or land applied, the plan shall include a geo-hydrologic report for each such site prepared by a qualified professional geologist or ground water hydrologist that includes:

(A) A description of the lithology of the stratigraphic column from the surface down to the uppermost aquifer(s) encountered at the site(s), which may be taken from existing geologic maps for the site, if available;

(B) The depth to ground water and ground water flow direction at the site(s);

(C) The vertical and horizontal conductivity and gradients at the site(s);

(D) The amount of annual ground water recharge from precipitation and irrigation;

(E) Established baseline ground water quality at locations and for parameters to be determined in consultation with the Division;

(F) The locations and uses of all existing wells and springs within a one (1) mile radius of the proposed site(s); and

(G) Information which establishes whether there is a direct hydrologic connection between the ground water under the site(s) and adjacent surface waters.

(H) Map(s) and narrative descriptions of the proposed ground water monitoring wells, including locations, depths, and perforated intervals.

Provided, that the Division may waive the requirements for site-specific information regarding vertical and horizontal conductivity and/or the amount of annual ground water recharge based upon documented site-specific conditions such as great depth to ground water or presence of an impervious layer between the surface and the uppermost aquifer.

(iii) For operations located on state trust lands:

(A) Information which establishes concentrations of nitrogen, phosphorus, heavy metals and salts in the agronomic root zone and monitoring zone of each land application site, and in the ground water;

(I) For existing operations, baseline concentrations shall be established.

(II) For existing operations where the permit has expired, lapsed, or otherwise has not been valid for two years or more, or where housed commercial swine feeding operation activities have not occurred for two years or more, new baseline concentrations shall be established.

(III) For new land application sites at existing operations that have never received swine feeding process wastewater or residual solids, background concentrations shall be established from the immediate vicinity of the housed commercial swine feeding operations on state lands but which have not been impacted by such operations.

(IV) For new operations, background concentrations shall be established from the immediate vicinity of housed commercial swine feeding operations on state lands.

(B) Background information which describes the existing plant communities (i.e., species composition, relative abundance, cover density) in the immediate vicinity of housed commercial swine feeding operations but which have not been impacted by such operations;

(C) Sampling, analysis and interpretive assessment methods and procedures to allow for a demonstration by the owner/operator of a housed commercial swine feeding operation that soil within the monitoring zone and ground water have not been contaminated above the established baseline or background conditions established pursuant to subsection 61.13(3)(g)(viii)(A), above.

(h) Financial Assurance Plan - The owner or operator of the housed commercial swine feeding operation shall provide a financial assurance plan which addresses the final closure of the housed commercial swine feeding operation and the conduct of any necessary post-closure activities. Post-closure activities would include, but not be limited to, continuing maintenance or monitoring activities. The extent of closure and post closure activities, and hence the cost estimate for such activities, shall take into account site-specific risk factors including, but not limited to, soils composition, hydrology, vegetation, climatic conditions and ambient levels of constituents of concern.

(i) Where required by the Division the permittee shall include in the financial assurance plan the undertaking of any corrective action made necessary by contamination caused by the housed commercial swine feeding operation or clean-up of any spill or breach.

(ii) The financial assurance plan shall provide for compliance with the provisions of subsection 61.13 and shall contain written itemized cost estimates for hiring a third party to close a housed commercial swine feeding operation and to conduct any necessary post-closure activities assuming, at the time of closure, that the operation is operating at the maximum capacity anticipated during the term of the permit as identified in the permit application. The cost estimates shall be prepared under the supervision of a professional engineer registered in the State of Colorado and shall include, but not be limited to: removal and proper disposal of residual solids and swine feeding process wastewater from collection systems in housed units and conveyance, treatment and storage facilities; removal and proper disposal of any stockpiles; revegetation of the site and other actions necessary to assure long-term protection of water quality.

(iii) For operations located on state trust lands, written itemized cost estimates for hiring a third party to perform closure and post-closure activities for the housed commercial swine feeding operation, including revegetation of the site in a manner that prevents erosion.

(iv) The Division may reject the proposed form(s) of financial assurance upon a determination of insufficiency. The Division shall notify the permittee of the decision to accept or reject the proposed forms of financial assurance.

61.13(4)REQUIREMENTS FOR HOUSED COMMERCIAL SWINE FEEDING OPERATIONS

(a) Plan Submission and Compliance Requirements for Existing, New Existing Source, and New Source Facilities - Existing, new existing source, and new source housed commercial swine feeding operations shall submit the following information to the Division, by the dates identified below, for approval:

(i) A complete operations plan, as described in subsection 61.13 , shall be submitted no later than July 1, 1999;

(ii) Except for non-land application facilities, a complete swine waste management plan, as described in subsection 61.13 , shall be submitted no later than September 30, 1999. By December 31, 2006 the owner or operator of an existing source housed commercial swine feeding operation, which includes an operation that existed as of June 30, 2004, shall develop and implement a complete swine waste management plan in accordance with subsection 61.13 , as revised effective June 30, 2004. A new source operation, and an animal feeding operation that becomes a housed commercial swine feeding operation after June 30, 2004, shall develop and implement a complete swine waste management plan as of the date of permit coverage. A housed commercial swine feeding operation that was issued a permit by June 30, 2004, including non-land application operations, shall submit to the Division for approval by May 30, 2006 a swine waste management plan that meets the requirements of subsection 61.13 , including the elements of subsections 61.13 , which were either revised or added effective June 30, 2004. Until such a plan is approved, an operation that was issued a permit by June 30, 2004 shall comply with its currently approved swine waste management plan.

(iii) A complete monitoring plan, as described in subsection 61.13 , shall be submitted no later than December 31, 1999; and

(vi) A complete financial assurance plan, as described in subsection 61.13 , shall be submitted no later than December 31, 1999.

The Division may, with accompanying justification, request additional information from the permittee for any of these plans. Failure to provide such information, or justification acceptable to the Division as to why the plan meets the requirement of the respective section, will be grounds for revocation of the permit.

(b) Review and Approval of Plans for Existing Facilities.

(i) Plans submitted pursuant to subsection 61.13 shall be available for public review. Any person may submit written comments regarding the submitted plans within 30 days following the deadlines set forth in that subsection.

(ii) The permittee shall comply with the provisions of the plans submitted and approved under subsection 61.13 . The Division may amend or reissue the permit to include all or part of any approved plan as a condition of the permit.

(c) Facility Design and Construction Requirements.

(i) Evaporation impoundments shall be of sufficient capacity to retain any planned volume of liquid residual solids and the maximum design volume of swine feeding process wastewater produced during the continuous ten (10) year period of minimum net evaporation based on the entire period of record. Such impoundments shall also be capable of containing any planned volume of liquid residual solids and swine feeding process wastewater, including the runoff resulting from a 25-year, 24-hour storm, or if a new source facility, be capable of meeting the requirements set forth in 61.13(4)(d)(xvi)(B) below. The permittee shall confirm that these conditions have been met by conducting a water budget analysis and submitting that analysis with the design calculations. For purposes of the water budget analysis, pan evaporation rates should be utilized.

(ii) Open surface impoundments and tanks which are used to treat, store, or evaporate swine feeding process wastewater shall have at least two feet of freeboard above the working liquid level.

(iii) Swine feeding process wastewater collection systems in housed units, swine feeding process wastewater conveyance systems, and impoundments and tanks which are used to treat, store, or evaporate swine feeding process wastewater shall be constructed and maintained such that the seepage rate from any such system, tank, or impoundment does not exceed 1 X 10-6 cm/sec.

(iv) Facilities for storage of swine feeding process wastewater and liquid residual solids shall be provided to account for periods during which land application cannot occur in accordance with subsection 61.13 , and to be capable of containing liquid residual solids and swine feeding process wastewater, including the runoff resulting from a 25-year, 24-hour storm or, if a new source facility, be capable of meeting the requirements set forth in 61.13(4)(d)(xvi)(B) below. For existing source facilities, the volume of storage to be provided may be based on a site-specific analysis. This analysis shall account for: the peak volume and concentration of swine feeding process wastewater that will be generated during the identified period; seasonal plant uptake rates; and on-site climatic data or off-site published climatic data. In lieu of such analysis, the permittee shall provide capacity to store the peak volume of swine feeding process wastewater that will be generated during a six-month period.

(v) Facility designs for new housed commercial swine feeding operations shall be prepared under the supervision of a professional engineer registered in the State of Colorado.

(I) Any reduction in swine feeding process wastewater pollutant concentrations as a result of treatment shall be supported by site-specific data or applicable published engineering or agricultural waste management principles and shall include consideration of any applicable odor control requirements.

(vi) Depth markers shall be installed in all open-surface impoundments and tanks to indicate the design volume (pursuant to subsection 61.13 and clearly indicate the two-foot freeboard elevation, and the minimum capacity necessary to contain the runoff and direct precipitation of the 25-year, 24-hour storm event. At a minimum, depth markers should be clearly marked in one (1) foot increments.

(d) Operation and Maintenance Requirements

(i) Accumulations of solids shall be removed from the swine feeding process wastewater treatment, storage, and evaporation impoundments and tanks as necessary to ensure sufficient capacity to retain all swine feeding process wastewater produced during periods when land application or disposal operations cannot be conducted due to conditions which may preclude land application in accordance with subsection 61.13(4)(e).

(ii) Residual solids stockpile areas shall be constructed to ensure that all precipitation which comes in contact with the stockpiles is captured and diverted to appropriate swine feeding process wastewater treatment or evaporation facilities.

(iii) Swine feeding process wastewater collection systems in housed units and swine feeding process wastewater conveyance systems shall be operated and maintained to collect and convey peak flows without overflowing.

(iv) No land application of residual solids or swine feeding process wastewater shall occur on lands which are saturated or on land with a snow depth of greater than one inch.

(v) No land application of residual solids or swine feeding process wastewater shall occur on lands which are frozen unless a site-specific analysis demonstrates that runoff will not occur.

(vi) Land application of residual solids and swine feeding process wastewater shall not occur:

(A) More than 30 days prior to or subsequent to the normal growing season for the crop to which the wastewater is being applied; or

(B) Outside of the period March 1 through October 31; whichever is less restrictive, except pursuant to approved odor management, swine waste management, and monitoring plans.

(vii) Removal of solids or swine feeding process wastewater from an impoundment shall be accomplished in a manner that does not damage the integrity of the liner.

(viii) Operations shall be conducted in a manner that does not result in contamination of ground water or a discharge to surface water not specifically authorized by the permit.

(ix) Non-land-application facilities must identify a method of disposal of residual solids and swine feeding process wastewater other than by on-site or off-site land application. Such facilities shall also demonstrate that no discharge to surface waters shall occur.

(x) Weekly inspections shall be made in the production area of all freshwater run-on diversion devices, devices channeling contaminated stormwater to impoundments or tanks, runoff diversion structures, and impoundments and tanks. Such inspections of impoundments and tanks shall note the level of swine feeding process wastewater as indicated by the depth marker required under subsection 61.13(4)(c)(vi), above.

(xi) Daily inspections shall be made of water lines in the production area, including drinking water or cooling lines.

(xii) Any deficiencies found as a result of the daily and weekly inspections identified in subsections 61.13 , above, shall be corrected as soon as possible, but no later than 30 days of such a deficiency having been identified, unless factors preventing correction within 30 days have been documented.

(xiii) The owner or operator shall periodically inspect equipment used for land application of residual solids or swine feeding process wastewater.

(xiv) Mortality Handling - Mortalities must not be disposed of in any liquid residual solids or swine feeding process wastewater system, and must be handled in such a way as to prevent the discharge of pollutants to surface water, unless an alternative performance standard is approved by the Division that includes a technology designed to handle mortalities.

(xv) General Pretreatment Standards - Operations that introduce swine feeding process wastewater pollutants into publicly owned treatment works (POTW) must comply with 40 CFR 403.

(xvi) Effluent Limitations for housed commercial swine feeding operations (HCSFOs)

(A) Existing source operations

(I) Production areas - Except as provided in subsections 61.13 below, there shall be no discharge of residual solids or swine feeding process wastewater into surface water from the production area. Operations shall attain the limitations and requirements of this subsection 61.13 as of the date of permit coverage.

(1) Whenever precipitation causes an overflow of residual solids or swine feeding process wastewater, pollutants in the overflow may be discharged into surface water provided:

1) the production area is designed, constructed, operated, and maintained to contain all residual solids and swine feeding process wastewater, including the runoff and direct precipitation from a 25-year, 24-hour storm, at minimum;

2) the production area is operated in accordance with the production area best management practices specified in subsections 61.13 and 61.13 , and (xii), and the records specified in subsections 61.13(4)(j)(i), (ii), and (iii); and

3) the production area is operated and maintained in accordance with the provisions of subsection 61.13 not pertaining to land application.

(2) Where an operation has requested and the Division has approved effluent limitation based upon a site-specific alternative technology, pursuant to section 61.13(4)(d)(xvii)(A), below.

(II) Land application areas - Discharges from land application areas are subject to the following requirements.

(1) Develop and implement the swine waste management plan specified in section 61.13 and in accordance with the provisions of subsection 61.13 , and the best management practices specified in subsections 61.13(3)(f), 61.13(4)(e), and 61.13(4)(f).

(2) Maintain a complete copy of the information for the best management practices required at subsections 61.13 (ii)(B), (e)(ii)(C), and (e)(ii)(D), subsections 61.13 and 61.13 , and the records specified at subsections 61.13(4)(j), (j)(i), and (j)(iv).

(3) Comply with the land application provisions of subsection 61.13 . Operations shall attain the limitations and requirements of this subsection 61.13 as of the date of permit coverage.

(B) New source operations

(I) Production areas - Except as provided in subsections 61.13 of this section, there shall be no discharge of residual solids or swine feeding process wastewater into surface water from the production area. Operations shall attain the limitations and requirements of this section 61.13 as of the date of permit coverage.

(1) Best management practice effluent limitations included in the permit must address the HCSFO's entire production area. In the case of any HCSFO using open surface impoundments or tanks that are used to treat, store or evaporate swine feeding process wastewater for which the Division establishes such effluent limitations, "no discharge of manure, litter, or process wastewater pollutants," as used in this section, means that the storage structure is designed, operated, and maintained in accordance with best management practices established by the Division on a site-specific basis after a technical evaluation of the storage structure. The technical evaluation must address the following elements:

a. Information to be used in the design of the open surface impoundments or tanks including, but not limited to, the following: minimum storage periods for rainy seasons, additional minimum capacity for chronic rainfalls, applicable technical standards that prohibit or otherwise limit land application to frozen, saturated, or snow-covered ground, planned emptying and dewatering schedules consistent with the HCSFO's Swine Waste Management Plan, additional storage capacity for swine feeding process wastewater intended to be transferred to another recipient at a later time, and any other factors that would affect the sizing of the open surface impoundments or tanks.

b. Open surface impoundments or tanks must be designed using procedures and/or software approved by the Division.

c. All inputs used in the open surface impoundment or tank design including actual climate data for the previous 30 years consisting of historical average monthly precipitation and evaporation values, the number and types of animals, anticipated animal sizes or weights, any added water and residuals, any other process wastewater, and the size and condition of outside areas exposed to rainfall and contributing runoff to the open surface impoundments or tanks. If actual climate data is not available, the best available data from the most proximate weather station(s), such as those utilized by the Colorado State University Colorado Climate Center or the National Oceanic and Atmospheric Administration should be used.

d. The planned minimum period of storage in months including, but not limited to, the factors for designing an open surface impoundment or tank as listed in paragraph (I)(1)(a) of this section. Alternatively the HCSFO may determine the minimum period of storage by specifying times the storage pond will be emptied consistent with the HCSFO's Swine Waste Management Plan.

e. Site-specific predicted design specifications including dimensions of the storage facility, residual solids and daily swine feeding process wastewater additions, the size and characteristics of the land application areas, and the total calculated storage period in months.

f. Evaluation of the adequacy of the designed open surface impoundments or tanks must use evaluations and simulations approved by the Division. The evaluation must include all simulation inputs including, but not limited to, daily precipitation, temperature, and evaporation data for the previous 100 years, user-specified soil profiles representative of the HCSFO's land application areas, planned crop rotations consistent with the HCSFO's Swine Waste Management Plan, and the final modeled result of no overflows from the designed open surface impoundments or tanks. For those HCSFOs where 100 years of local weather data for the HCSFO's location is not available, HCSFOs may use a simulation with a confidence interval analysis conducted over a period of 100 years. The Division may approve equivalent evaluation and simulation procedures.

g. The Division may waive the requirement of (I)(1)(f) for a site-specific evaluation of the designed open surface impoundments or tanks and instead authorize a HCSFO to use a technical evaluation developed for a class of specific facilities within a specified geographical area.

h. Waste management and storage facilities designed, constructed, operated, and maintained consistent with the analysis conducted in paragraphs (I)(1)(a) through (I)(1)(g) of this section and operated in accordance with the additional measures and records required in section 61.13 and 61.13 , will fulfill the requirements of this section.

i. The Division has the discretion to request additional information to support a request for effluent limitations based on a site-specific open surface impoundment or tank.

(2) The production area must be operated in accordance with the additional measures and recordkeeping required in section 61.13(4)(d) and 61.13(4)(e).

(3) Provisions for upset/bypass, as provided in 61.8(3)(i) & (j), apply to a new source subject to this provision.

(II) Land application areas - Discharges from land application areas are subject to the following requirements.

(1) Develop and implement the swine waste management plan specified in subsection 61.13 and in accordance with the provisions of subsection 61.13 , and the best management practices required in subsections 61.13 , 61.13 , and 61.13(4)(f). Operations shall attain the limitations and requirements of this subsection 61.13 as of the date of permit coverage.

(2) Maintain a complete copy of the information for the best management practices required by subsections 61.13 , and (e)(ii)(B), (e)(ii)(C), and (e)(ii)(D), subsections 61.13 and 61.13 , and the records specified at subsections 61.13 (i), and (j)(iv). Operations shall attain the limitations and requirements of this subsection 61.13 as of the date of permit coverage.

(3) Comply with the land application provisions of subsection 61.13 . Operations shall attain the limitations and requirements of this subsection 61.13 (d)(xvi)(B)(II)(3) as of the date of permit coverage.

(xvii) Voluntary Alternative Performance Standards

The owner or operator of a housed commercial swine feeding operation may voluntarily request the Division to establish alternative Colorado Discharge Permit System effluent limitations based upon the operation's proposed use of site-specific alternative technologies. The request shall include the information specified below. The operator shall attain the limitations and requirements of subsection 61.13 , as of the date of permit coverage.

(A) Existing Source Housed Commercial Swine Feeding Operations - A supporting technical analysis and any other relevant information and data that would support such site-specific effluent limitations within the time frame provided by the Division. The supporting technical analysis and other relevant information and data shall consist of, but not be limited to, the following.

(I) Information about the proposed innovative technology that includes, but is not limited to, the following:

(1) A description of the technology, manufacturer's name and contact information;

(2) How swine feeding process wastewater and residual solids will be treated using the proposed innovative technology;

(3) The reason for and goal of using the technology;

(4) A summary and supporting documents of any research and non-research results that document the performance of the technology;

(5) Information about any deviation from research and non-research conditions, and the anticipated impacts of such deviations on the performance of the proposed innovative technology;

(II) Results from use of an appropriate technical analysis that calculates the following for discharges from the existing facility, unless an alternative evaluation method is approved by the Division. The calculations shall be based on a site-specific analysis of a storage system designed, constructed, operated, and maintained to contain all residual solids and swine feeding process wastewater, including runoff from a 25-year, 24hour storm. The calculations shall also be based on all daily inputs to the storage system, including residual solids, all swine feeding process wastewater, direct precipitation, and runoff, and all daily outputs from the storage system, including losses due to evaporation, sludge removal, and the removal of swine feeding process wastewater for use on cropland at the operation or transported off site.

(1) A calculation determining the predicted median annual overflow volume from the production area based on a 25-year period of actual rainfall data applicable to the site.

(2) Site-specific pollutant data for the housed commercial swine feeding operation, including colonies of fecal coliform and Escherichia coli , and the mass of ammonia, phosphorus, biological oxygen demand (BOD 5), total suspended solids (TSS), chemical oxygen demand (COD), total organic carbon (TOC), temperature, pH, total dissolved solids (for discharges to the Colorado River System only), and other constituents required by the Division, The pollutant data shall be the result of representative sampling and analysis of all sources of input to the storage system, or other appropriate pollutant data.

(3) A predicted annual average discharge of the pollutants identified in subsection 61.13 above, expressed where appropriate as a mass discharge on a daily basis (lbs/day), and calculated considering paragraphs 61.13 and 61.13(4)(d)(xvii)(A)(II) (1) and (2), above.

(III) Results from an appropriate analysis that provides the following for the proposed innovative technology:

(1) A prediction of the median annual discharge volume of swine feeding process wastewater that will occur over the same 25-year period identified in subsection 61.13(4)(d)(xvii)(A)(II), above.

(2) A prediction of the annual average discharge of pollutants identified in subsection 61.13 above that will be associated with the discharges specified in subsection 61.13(4)(d)(xvii)(A)(III)(1), above.

(3) A demonstration that the proposed innovative technology will achieve a quantity of pollutants discharged from the production area equal to or less than the quantity of pollutants calculated pursuant to subsection 61.13(4)(d)(xvii)(A)(II)(3), above.

(IV) Documentation that provides the rationale and justification for the models and analysis that were used to address subsections 61.13 above, and for conclusions made. The Division may, with accompanying justification, request additional information from the operation for the proposed innovative technology, which may include an on-site inspection.

(V) A plan for implementing the innovative technology, including quality assurance practices that the permittee will use to ensure the proper functioning of the innovative technology, and an approach for monitoring performance.

(B) Where the frequency of discharges to surface waters under alternative performance standards is greater than that from a 25-year, 24-hour storm, as applicable, water quality standards-based effluent limits for pollutants in such discharges shall be set pursuant to the requirements of subsection 61.8(2)(b).

(C) Where the frequency of discharges to surface waters under alternative performance standards is greater than that from a 25-year, 24-hour storm, as applicable, discharges shall be monitored, recorded, and reported pursuant to the requirements of subsection 61.8(4).

(e) Swine Waste Management Land Application Requirements

(i) The disposal or land application of all residual solids and swine feeding process wastewater produced at the facility, whether put to beneficial use on-site or transported off-site, must minimize phosphorus and nitrogen transport from the land application sites to surface waters and shall be in accordance with the approved swine waste management plan.

(ii) The owner or operator of a housed commercial swine feeding operation shall ensure that no residual solids or swine feeding process wastewater generated by it shall be applied to land by any person at a rate that exceeds, in amount or duration, the agronomic rate of application. The agronomic rate of application shall be as specified by the most current published fertilizer suggestions of Colorado State University Cooperative Extension for the plants, or most closely related plant type, to which the nutrients are applied and:

(A) No application of residual solids or swine feeding process wastewater shall be made to lands if the soil nitrate level and other appropriate nitrogen credits (as specified by Colorado State University Cooperative Extension) in the agronomic root zone exceed the agronomic rate of nitrogen application for the crop to be grown;

(B) Application rates of residual solids and swine feeding process wastewater shall be based on a field-specific assessment of the potential for nitrogen and phosphorus transport from the field and that addresses the form, source, amount, timing, and method of application of nutrients on each field to achieve realistic yield goals, while minimizing nitrogen and phosphorus movement to surface waters.

(C) Residual solids, swine feeding process wastewater, and soils shall be sampled and analyzed quarterly for nitrogen and phosphorus content, in accordance with the monitoring requirements specified in subsection 61.13 . The results of these analyses are to be used in determining application rates for residual solids and swine feeding process wastewater.

(D) Assessments shall be made for each land application site of the potential for phosphorus and nitrogen transport from the site to surface waters and that address the form, source, amount, timing, and method of application of nitrogen and phosphorus to achieve realistic yield goals, while minimizing nitrogen and phosphorus movement to surface water. Phosphorus transport risk assessments shall be made using a transport risk-screening tool approved by the Division and that is current, readily available, peer-reviewed, and appropriate for use in Colorado. The screening tool shall provide for off-site transport risk scores of either low, medium, high, or very high. An initial assessment of the potential for nitrogen transport to surface water shall be made prior to residual solids or swine feeding process wastewater being applied to an application site after the operator implements the swine waste management plan that meets the requirements of subsection 61.13 , as revised effective June 30, 2004.

(I) After an initial assessment is made of the potential for phosphorus an/or nitrogen transport from a land application site to surface water, additional assessments shall be made at the following frequency, whichever is sooner:

(1) Of both phosphorus and nitrogen transport risk, every five (5) years; or

(2) Where a crop management change has occurred, assess phosphorus transport risk within one (1) year after a crop management change would reasonably result in an increase in the phosphorus transport risk assessment score, and assess nitrogen transport risk within one (1) year after such a change would reasonably result in the nitrogen transport to surface water not being minimized; or

(3) Where the top one foot of soil on an application site exceeds 80 mg/kg of sodium bicarbonate extractable phosphorus and the phosphorus transport risk assessment score was very high, assess phosphorus transport risk within six (6) months of intending to apply residual solids or swine feeding process wastewater.

(4) Where a nitrogen transport risk assessment reveals that nitrogen transport to surface waters is not minimized, assess nitrogen transport risk within six (6) months of intending to apply residual solids or swine feeding process wastewater.

(II) No application of swine feeding process wastewater or residual solids shall be made to a land application site if the sodium bicarbonate extractable phosphorus in the top one-foot of soil exceeds 80 mg/kg, unless the off-site phosphorus transport risk score for the site is high or less.

(III) No application of residual solids or swine feeding process wastewater shall be made to a land application site where the risk of off-site nitrogen transport is high or very high.

(IV) Where a multi-year phosphorus application was made to a land application site, no additional residual solids or swine feeding process wastewater shall be applied to the same site in subsequent years until the applied phosphorus has been removed from the site via harvest and crop removal.

(E) If the soil nitrate-nitrogen level in the four- to six-foot or six- to eight-foot increment within the monitoring zone exceeds the comparative concentration, established in accordance with subsection 61.13 , by greater than ten milligrams per kilogram, the permittee will be presumed to have exceeded the agronomic rate of application and shall notify the Division in writing of this exceedance within 30 days of discovering it.

(I) The permittee shall, in consultation with the Division, develop and submit to the Division within ninety (90) days of discovering the exceedance an approvable intervention protocol, unless an extension of time is granted by the Division. The intervention protocol shall describe adjustments to the swine waste management plan that provide for strict minimization of future nitrogen loading within the monitoring zone. The Division may specify that appropriate measures for the purpose of remediating excessive nitrogen within the monitoring zone be included in the protocol.

(II) The protocol shall be implemented by the permittee within 30 days of it being approved by the Division. If remediation measures in an approved intervention protocol are not being implemented in accordance with the protocol, application of swine feeding process wastewater and/or residual solids to the applicable land application site shall immediately cease.

(III) The agronomic rate of application shall not be presumed to have been exceeded and the intervention protocol shall not be required if the results of confirmation sampling pursuant to a procedure approved by the Division demonstrate that the comparative concentration has not been exceeded by greater than ten milligrams per kilogram, or if the permittee submits to the Division a report that adequately documents that a force majeure was the cause of the nitrate-nitrogen exceedance. This report shall be submitted for approval no later than 30 days after discovering an exceedance caused by a force majeure event.

(IV) Status of intervention protocol activities shall be documented in quarterly monitoring reports.

(iii) All land application activities at housed commercial swine feeding operations shall be conducted in a manner that does not result in impairment of existing beneficial uses of state waters or exceedances of applicable water quality standards for surface water or ground water.

(iv) Where land application sites are not supporting active plant growth:

(A) Applications of swine feeding process wastewater and residual solids shall not at any time cause soil nitrate levels and other appropriate nitrogen credits in the agronomic root zone to exceed the agronomic rate for the upcoming growing season for the crop for which the solids or wastewater is applied.

(B) Swine feeding process wastewater and residual solids shall not be applied to land not supporting active plant growth except as provided under an approved Swine Waste Management Plan that includes appropriate best management practices for such applications. Best management practices shall be specified in a guidance document cooperatively developed by the Division and stakeholders, and presented in a public hearing before the Water Quality Control Commission.

(v) Swine feeding process wastewater and residual solids produced at housed commercial swine feeding operations which are applied to land shall not exceed the cumulative pollutant loading limits for heavy metals as set forth in Table 1, below. Cumulative metal loading limits shall be calculated as the product of the total elemental analysis (concentration) of the residual solids and swine feeding process wastewater and the quantity of residual solids and volume of swine feeding process wastewater applied, respectively. Compliance with cumulative pollutant loading limits shall be documented by the permittee in reports submitted in accordance with subsection 61.13 . Documentation shall consist of data which quantifies cumulative loadings of the heavy metals to each land application site. If the cumulative loading limit specified in Table 1 is reached, no further residual solids or swine feeding process wastewater will be applied to the application site.

TABLE 1. CUMULATIVE POLLUTANT LOADING LIMITS, kg/ha (lbs/ac)

Arsenic	41 (37)
Cadmium	39 (35)
Copper	1500 (1339)
Lead	300 (268)
Mercury	17 (15)
Nickel	420 (375)
Selenium	100 (89)
Zinc	2800 (2499)

(vi) Any reduction in swine feeding process wastewater concentrations as a result of losses subsequent to swine feeding process wastewater treatment and prior to land application shall be supported by site-specific data or applicable published engineering or agricultural waste management principles and shall be in accordance with the approved odor management plan.

(vii) Land application practices shall be managed to ensure that no residual solids or swine feeding process wastewater are discharged to waters of the state or beyond the property boundary of the application site.

(f) Water Quality Setbacks - Water quality setbacks shall be established for housed commercial swine feeding operations such that swine feeding process wastewater collection systems in housed units, swine feeding process wastewater conveyance, treatment, storage, and evaporation structures, land application sites, and residual solids stockpiles and impoundments, shall not be located:

(i) Within ten feet vertically of the seasonally high ground water level as determined in the monitoring plan;

(ii) Up-gradient and within 300 feet of a reservoir classified for Class I Recreational Use by the Water Quality Control Commission;

(iii) For land application systems only, within 200 feet of any body of surface water, including intermittent streambeds when standing or running water is present in the streambed, unless land application is made by either subsurface injection, or by surface application which is followed by incorporation within 48 hours, weather permitting, or the swine waste management plan describes measures which will be implemented to prevent runoff from the application site into the water body;

(iv) Within 50 feet of any body of surface water, including intermittent streambeds when standing or running water is present in the streambed;

(v) Within 150 feet of a private domestic water supply well or within 300 feet of a community domestic water supply well; and

(vi) For treatment, storage, and evaporation impoundments and residual solids stockpiles, only, within a 100-year floodplain as identified in accordance with subsection 61.13 , unless proper flood proofing measures (structures) are designed and constructed.

(vii) An existing housed commercial swine feeding operation may obtain a variance from one or more of these setback requirements for aspects of the operation that were constructed as of March 10, 1999, other than land application sites, if the permittee demonstrates to the satisfaction of the Division that its facilities or structures do not pose a risk to the quality of waters of the state that bears a reasonable relationship to the cost of compliance with the setbacks requirements.

(g) State Trust Lands

(i) In accordance with the mandate in the Colorado Constitution, Article IX, Section 10, that state land board trust lands be held in trust and be protected and enhanced to promote long-term productivity and sound stewardship, the construction, operation and waste management plans approved for housed commercial swine feeding operations on such lands shall not permit the degradation of the physical attributes or value of any state trust lands.

(ii) In order to prevent degradation of the physical attributes or value of any state trust lands relating to water quality:

(A) For new facilities and for new land application sites at existing operations that have never received swine feeding process wastewater or residual solids concentrations of nitrogen, phosphorus, heavy metals and salts in the soil within the agronomic root zone and monitoring zone, and the ground water below state trust lands shall not exceed levels identified as background conditions pursuant to subsection 61.13(3)(g)(iii)(A);

(B) For existing facilities where the permit has expired, lapsed, or otherwise has not been valid for two years or more, or where housed commercial swine feeding operation activities have not occurred for two years or more, concentrations of nitrogen, phosphorus, heavy metals and salts in the soil within the agronomic root zone and monitoring zone, and the ground water beneath state trust lands shall not exceed levels identified as baseline conditions pursuant to subsections 61.13(4)(j)(i) and 61.13(3)(g)(ii)(E), respectively;

(C) Swine feeding process wastewater collection systems in housed units, swine feeding process wastewater conveyance systems, and impoundments which are used to treat, store, or evaporate swine feeding process wastewater shall be constructed and maintained such that the seepage rate from any such system or impoundment does not exceed 1 X 10 -7 cm/sec;

(D) Closure of operations on state trust lands shall include revegetation of the site in a manner that prevents erosion; and

(E) Monitoring conducted shall be sufficient to demonstrate compliance with subparagraphs (A) and (B), above.

(iii) The Division shall provide an adequate opportunity for the State Land Board to review and comment upon all construction, operations, swine waste management, monitoring, and financial assurance plans submitted for housed commercial swine feeding operations on state trust lands.

(iv) The Division shall consider any comments received from the State Land Board in its review and consideration of these plans. The Division shall not approve any plan if the State Land Board determines that the plan would permit the degradation of the physical attributes or value of any state trust lands.

(h) Financial Assurance Requirements - Valid financial assurance shall be a condition of conducting a housed commercial swine feeding operation. However, nothing in these regulations shall relieve the permittee of liability for closure, post-closure, and corrective action costs. Violation of any of the financial assurance requirements of these regulations shall be cause for the denial or revocation of the permit.

(i) The applicant or permittee shall provide financial assurances for the final closure of the housed commercial swine feeding operation and the conduct of any necessary post-closure activities, such that any contamination resulting from actions after the effective date of this regulation is remediated and future contamination is avoided.

(ii) If required by the Division, based on evidence that conditions create a reasonable potential for the housed commercial swine feeding operation to cause contamination, the applicant or permittee shall provide financial assurances for any corrective action made necessary by such contamination.

(iii) The financial assurance instruments shall be in the amounts determined in the approved financial assurance plan, or as otherwise required by the Division in accordance with subsection 61.13(4)(h)(vi)(B-C).

(iv) A financial assurance instrument shall meet the requirements of subsection 61.13 and of Regulation No. 66, as applicable to the instrument.

(v) Financial assurance instruments for new housed commercial swine feeding operations must be approved by the Division before the permit will be issued, and shall meet the requirements of subsections 61.13(4)(h)(iii-iv).

(vi) The permittee of an existing housed commercial swine feeding operation shall provide a financial assurance instrument(s) within 90 days following the Division's approval of a new or revised financial assurance plan as described in subsection 61.13 within 90 days following the Division's approval of a new or revised financial assurance plan as described in subsection 61.13 . Such a financial assurance instrument(s) shall meet the requirements of subsections 61.13(4)(h)(iii-iv).

(A) Failure to provide the approved amount of financial assurance shall be a violation of the permit and may be cause for revocation of the permit.

(B) Where the Division has found a financial assurance plan to be incomplete, and the permittee is either not working in good faith to submit an approvable plan or does not respond to the Division's comments regarding the plan within a reasonable time, the Division may require that interim financial assurance be provided until such time as the financial assurance plan is approved.

(C) Before requiring interim financial assurance, the Division shall provide the permittee written notice of the deficiencies and an opportunity to cure those deficiencies within ninety (90) days of the written notice. If the period to cure expires without the permittee resolving the deficiencies, and an extension of time has not been granted by the Division, the amount of interim financial assurance required shall be established by the Division, based on relevant information related to the permittee.

(vii) The permittee shall review and update its approved financial assurance instruments each year in accordance with a schedule established in the permit. The amount of the financial assurance for closure and post-closure, and for any applicable corrective action, shall be recalculated annually by the permittee, as required in the permit, and shall account for inflation or deflation by using the most recent Implicit Price Deflator for Gross Domestic Product or its successor as published by the U.S. Department of Commerce. The recalculated amount shall also reflect any changes in the operation pertinent to the cost of closure, post-closure or required corrective action to address contamination. Provided, that for any year in which there have been no changes in the operation pertinent to the cost of closure, post-closure, or required corrective action and cumulative inflation as calculated above does not exceed 5% since the last update of the financial assurance instruments, no further update of the financial assurance instruments is required.

(A) In accordance with the schedule established in the permit, the permittee shall submit to the Division a report that, at minimum, documents that the review and update required above was conducted, explains how the review and update was done, informs who conducted the review and update, informs what the calculated cumulative inflation value is, and informs whether calculated cumulative inflation value exceeded 5% since the last update of the financial assurance instruments.

(B) The permittee shall have 90 days to provide a financial assurance instrument(s) for any increased amount of financial assurance, as required, after receipt of notification that the revised cost estimates have been approved by the Division. Such a financial assurance instrument(s) shall meet the requirements of subsections 61.13(4)(h)(iv).

(C) Failure to provide any increased amount of financial assurance, as required, shall be a violation of the permit and may be cause for revocation of the permit.

(viii) If at any time the Division determines that a permittee has insufficient financial assurance it shall notify the permittee.

(A) The permittee shall have 90 days, after receipt of the notification by the Division, to recalculate its financial assurance and provide a financial assurance instrument(s) for any increased amount of financial assurance, as required. Such a financial assurance instrument(s) shall meet the requirements of subsections 61.13(4)(h)(iii-iv).

(B) Failure to provide any increased amount of financial assurance, as required, shall be a violation of the permit and may be cause for revocation of the permit.

(ix) All financial assurance instruments shall be approved by the Division before being accepted.

(x) Subject to approval by the Division, the applicant or permittee shall use one or more of the following financial instruments to satisfy assurance requirements:

(A) One or more of the following instruments that meet the provisions of Regulation No. 66: irrevocable standby letter of credit; trust fund; surety bond; insurance; financial test; and/or written guarantee.

(B) Other instruments approved by the Division that meet the following requirements, except where the Division determines that the requirements of subsections (I) and/or (IV) are not applicable:

(I) An alternative instrument provides for the establishment of a standby trust that meets the requirements of Regulation No. 66.

(II) The issuing institution of an alternative instrument must have the authority to issue that instrument, and its operations shall be regulated and examined by a federal or state agency.

(III) The issuing institution of an alternative instrument must waive all rights and set off or liens against that instrument.

(IV) An alternative financial assurance instrument must contain a term that provides that the instrument cannot be cancelled by the issuer of the instrument, unless 90 days prior written notice is given to the Division and the Division gives written consent.

(V) Uses wording approved by the Division.

(xi) The permittee shall immediately notify the Division of any notice received or action filed alleging the insolvency or bankruptcy of an institution that issued to the permittee a financial assurance instrument, or alleging any violations of regulatory requirements that could result in suspension or revocation of the issuing institution's charter or license to do business.

(A) In the event the permittee becomes aware that an issuing institution is unable to fulfill its obligations under a financial assurance instrument for any reason, notice shall immediately be given to the Division.

(B) The permittee shall have 90 days from the date of providing notice to the Division as required under subsection 61.13 to submit a financial assurance instrument(s) that replaces the required amount of financial assurance.

(C) Failure to provide any substitute or replacement financial assurance, as required, shall be a violation of the permit and may be cause for revocation of the permit.

(xii) Release of an approved financial assurance instrument - The Division will give written consent that a permittee or an institution that issued an instrument may, prior to closure, post-closure, and corrective action activities beginning at a permitted facility(ies), terminate an approved financial assurance instrument(s) when subsections (A) and (B) below have been satisfied, and/or the applicable provisions of Regulation No. 66 for the instrument(s) have been satisfied:

(A) A permittee or institution that issued an instrument gives to the Division 90 days prior written notice of its request that a financial assurance instrument(s) be released.

(B) The permittee has provided a substitute financial assurance instrument(s) for the same amount of financial assurance that was provided by the instrument(s) requested to be released. Such a substitute instrument(s) must meet the requirements of subsections 61.13(4)(h)(iii)-(iv).

(xiii) Release of the Permittee from the Requirements for Financial Assurance - When closure, post-closure, and corrective actions required by a permit are complete or partially complete, financial assurance shall be released by the Division as follows:

(A) When the Division determines that initial closure activities have been completed for an operation, financial assurance, less identified retainages, shall be released.

(B) A sufficient amount of financial assurance shall be retained to pay for estimated costs of post-closure remediation activities. This portion of the financial assurance shall be held for a period of at least three (3) years after initial housed commercial swine feeding operation closure activities are completed, unless the Division determines that a shorter period of time is appropriate.

(C) The Division may release portions of the corrective action financial assurance for remediation of residual soil contamination, remediation of ground water contamination, or clean-up of any spill or breach when it determines that identified phases of required corrective action have been satisfactorily completed, less any retainages for completion of remaining requirements, such as confirmatory monitoring. Any amount remaining following final satisfactory completion of corrective action shall be released to the permittee.

(D) Release of any amounts of financial assurance shall not release the permittee or other responsible person from any responsibility for meeting closure or corrective action requirements.

(E) When the Division determines that the provisions of Regulation No. 66 that address reimbursement of financial assurance have been satisfied, as applicable to the permittee's approved financial assurance instrument(s).

(xiv) Forfeiture of Bond or Other Form of Financial Assurance.

(A) The Division may initiate financial assurance forfeiture after notice to the permittee and any surety that the permit has been violated and that there is a reasonable likelihood that the closure, post-closure, or corrective action obligations of the permittee will not be met.

(B) The Division will direct the expenditure of forfeited funds to remedy and abate the circumstances for which any financial assurance was required.

(C) Use of all financial assurance shall not relieve the permittee or other responsible parties from responsibility and liability for closure, post-closure, and corrective action costs. The Colorado Attorney General may bring suit to recover any costs incurred by the state for closure, post-closure or corrective actions not covered by collected financial assurance monies.

(i) Spills and Contamination

(i) Any spill or contamination by a housed commercial swine feeding operation shall be reported immediately by the permittee to the Division and the county health department for the county in which the housed commercial swine feeding operation is conducted, by telephone, electronic facsimile or other means as specified by the Division in the permit.

(ii) A written report shall be submitted by the permittee so that it is received by the Division and the county health department for the county in which the housed commercial swine feeding operation is conducted within 24 hours after the spill or contamination occurs.

(iii) The permittee shall take immediate action to clean-up all spills so that impacts to soils, surface water or ground water are minimized to the greatest extent practicable. The permittee shall submit a report to the Division which describes the nature of the spill, any initial action taken to clean-up the spill, and any additional action that may be necessary to ensure that the spill does not result in permanent contamination of soils, surface water, or ground water. This report shall be submitted to the Division for approval no later than five working days after the spill occurs.

(iv) If it is determined that remediation of any spill or contamination by a housed commercial swine feeding operation cannot be completed within sixty days, the permittee may be required to undertake corrective action as specified by the Division. In such an instance, the Division may require adjustment of financial assurance as required in subsection 61.13(4)(h)(ii).

(v) The requirements of this subsection 61.13 shall not apply to spills that qualify as "de minimis" relative to the site-specific conditions, in accordance with a site-specific interpretation of "de minimis" proposed by the permittee and approved by the Division.

(j) Recordkeeping

Housed commercial swine feeding operations shall maintain on-site a copy of its most current swine waste management plan and make it available to the Division or its designee, upon request. In addition, the operation shall create, and maintain on-site for five years from the date they are created, and make available to the Division or its designee, upon request, the following complete records:

(i) All applicable records identified in the swine waste management plan, pursuant to subsection 61.13(3)(f)(xvi);

(ii) The completed permit application required pursuant to subsection 61.13(3);

(iii) The following complete records for the production area:

(A) Records documenting the visual inspections required under subsections 61.13(4)(d)(x) and (xi);

(B) Weekly records of the depth of residual solids and swine feeding process wastewater in liquid impoundments and terminal storage tanks as indicated by the depth marker required under subsection 61.13(4)(c)(vi);

(C) Records documenting any actions taken to correct deficiencies required under subsection 61.13 . Deficiencies not corrected within 30 days shall be accompanied by an explanation of the factors preventing immediate correction;

(D) Records of mortalities management and practices used to meet the requirements of subsection 61.13(4)(d)(xiv);

(E) Records documenting the current design of any residual solids or swine feeding process wastewater storage structure, including volume of residual solids accumulation, design treatment volume, total design volume, and approximate number of days of storage capacity; and

(F) Records of date, time, and estimated volume of any overflow.

(iv) The following complete records for land application sites:

(A) Expected crop yields;

(B) The date(s) residual solids or swine feeding process wastewater is applied to each field;

(C) Weather conditions at the time of land application and for 24 hours prior to and following land application;

(D) Test methods used to sample and analyze residual solids, soils, and swine feeding process wastewater;

(E) Results from residual solids, swine feeding process wastewater, and soil sampling and analysis;

(F) Explanation of the basis for determining residual solids and swine feeding process wastewater application rates, as provided in the swine waste management plan required under subsection 61.13(3)(f);

(G) Calculations showing the total nitrogen and phosphorus that will be applied to each land application site, including sources other than residual solids or swine feeding process wastewater;

(H) Total amount of nitrogen and phosphorus actually applied to each field, including documentation of calculations for the total amount applied;

(I) The method used to apply the residual solids or swine feeding process wastewater; and

(J) Date(s) of inspections of residual solids and swine feeding process wastewater land application equipment.

(k) Monitoring and Reporting for Impoundments and Land Application Activities

(i) Housed commercial swine feeding operations shall provide baseline information which establishes concentrations of nitrate-nitrogen and ammonium-nitrogen in the soils within the agronomic root zone and monitoring zone in each land application site identified in the swine waste management plan. Information shall also be provided which establishes the concentrations of phosphorus in the top one-foot increment of soil in each land application area identified in the swine waste management plan. Baseline concentrations shall be reestablished by an existing operation where the permit has expired, lapsed, or otherwise has not been valid for two years or more, or where housed commercial swine feed operation activities have not occurred for two years or more.

(ii) For the purposes of subsection 61.13 , the comparative concentration shall be equal to the lesser nitrate-nitrogen concentration value of the following:

1) the baseline concentration determined pursuant to subsection (i), above; or,

2) the concentration found within the respective four- to six-foot or six- to eight-foot soil increment, as applicable, in the soil sample just prior to the most recent soil sample that was taken from below the land application site. Where the nitrate-nitrogen concentration in the most recent soil sample exceeds the comparative concentration by greater than ten milligrams per kilogram (as provided in subsection 61.13) as the result of the agronomic rate of application having been exceeded, the succeeding comparative concentration for the applicable land application site shall be equal to the most recent comparative concentration plus 10 milligrams per kilogram, or the baseline nitrate-nitrogen concentration, whichever is less.

(iii) Housed commercial swine feeding operations shall provide baseline information representative of normal operating conditions which establishes concentrations of specific constituents including, but not limited to, nitrogen species, phosphorus, heavy metals, and salts present in the residual solids or swine feeding process wastewater as a result of the housed commercial swine feeding operation. Existing operations shall provide this information as a part of their initial swine waste management plan. New operations shall provide this information in accordance with a schedule of compliance established in their permit. The permittee shall provide a new assessment of these constituents whenever changes to the operation occur that could significantly change the concentrations of these constituents in the residual solids or swine feeding process wastewater;

(iv) Housed commercial swine feeding operations are subject to the monitoring, recording, and reporting conditions found at subsections 61.8(4)(a)-(d), (f)-(m) and (p).

(v) Housed commercial swine feeding operations shall submit, to the Division and the county health department, the following reports:

(A) Quarterly comprehensive monitoring reports and agronomic analyses that demonstrate that the operation has land applied residual solids and swine feeding process wastewater at no greater than agronomic rates. The reports shall include, but not limited to, the results and underlying data for all soil, residual solids, swine feeding process wastewater, ground water quality, and vegetative nutrient analyses as required by the permit or Monitoring Plan. The report shall include results and underlying data for impoundment seepage monitoring and soil nitrogen intervention protocol activities as required by the Division. The reports, except for intervention protocol activity information, shall be prepared on the latest version of forms supplied by the Division.

(B) Annually, one of the quarterly reports, as specified by the Division, shall include the following additional information:

(I) The maximum number of swine that have been housed at each site during the previous twelve (12) months;

(II) The estimated amount of total residual solids and swine feeding process wastewater generated in the previous twelve (12) months (tons/gallons);

(III) The estimated amount of total residual solids and swine feeding process wastewater permittee transferred to third parties in the previous twelve (12) months (tons/gallons);

(IV) The total number of acres for land application covered by the current swine waste management plan;

(V) The total number of acres of land application sites that were used for application of residual solids and swine feeding process wastewater in the previous twelve (12) months;

(VI) A summary of all residual solids and swine feeding process wastewater discharges from the production area that have occurred in the previous twelve (12) months, including date, time, and approximate volume;

(VII) A statement indicating whether the current version of the swine waste management plan was developed or approved by a certified nutrient management planner.

(vi) The permittee shall sample and monitor chemical and appropriate biological parameters identified by the Division as necessary to protect the quality and existing and future beneficial uses of ground water including, at a minimum, nitrogen species, phosphorus, heavy metals, and salts. At a minimum, the monitoring program shall include analysis and reporting of parameters in the ground water, soils within the agronomic root zone and monitoring zone within each land application site, swine feeding process wastewater, and residual solids. The nitrogen species monitored in soils shall be nitrate-nitrogen and ammonium-nitrogen within the agronomic root zone and nitrate-nitrogen within the monitoring zone.

(A) Monitoring of soils shall be on a quarterly basis, except when this frequency is not practicable due to:

1) physical conditions (e.g., frozen or saturated ground);

2) the potential for excessive damage to crops; or

3) when applications of swine feeding process wastewater or residual solids to specific land sites will not be made for at least three consecutive quarters. If a quarterly soil sample was not taken of a land application site for any of these three reasons, the permittee shall inform the Division of this fact in their quarterly report, and specify the reason for the sample not having been taken. When application of swine feeding process wastewater or residual solids has not been conducted for three consecutive quarters, soil monitoring shall occur within 90 days after the crop to which applications were made is harvested or goes dormant, and for subsequent quarters as required by the Division, based on the nitrogen values observed in the post-harvest soil tests. The permittee shall timely notify the Division in their quarterly reports of their intention not to apply solids or wastewater to specific land application sites for at least three consecutive quarters.

(B) The Division may waive monitoring requirements for salts and sodium bicarbonate extractable phosphorus below the one foot soil depth and in ground water if it is demonstrated by the permittee, based upon such information as requested by the Division, that there is no reasonable potential of contamination from such constituents at the permitted facility.

(C) The Division may waive monitoring requirements for any of the constituents identified in Table 1 in subsection 61.13 if it is demonstrated by the permittee, based upon such information as requested by the Division, that there is no reasonable potential of contamination from such constituents at the permitted facility.

(D) The program shall also include monitoring to ensure that no seepage occurs from any waste impoundments in excess of those rates established in subsection 61.13(4)(c)(iii) or 61.13(4)(g)(ii)(C), as applicable.

(E) Monitoring of ground water beneath each land application site shall be accomplished by sampling and analyzing on a quarterly basis the ground water in monitoring wells that are in locations identified in the monitoring plan, subsection 61.13 . Such monitoring shall not be required for land application sites for which the permittee submits, and the Division approves:

1) information documenting that ground water does not exist beneath a land application site;

2) information documenting that an impermeable geological layer exists beneath a land application site, and above the shallowest aquifer located beneath the land application site; or

3) a completed analysis of one-dimensional transport of water within the vadose zone of the land application site, using a transport model, mathematical calculation, or other Division-approved methods. The mathematical analysis shall be prepared by, or certified by, a professional engineer registered in the State of Colorado, a qualified professional geologist, or groundwater hydrologist. In addition, the analysis must conclude that water that annually passes below the root zone of the land application site will not reach ground water within one hundred years. Approval of the analysis does not remove the Division's authority to require at any time, as the result of soil monitoring information or for other reasons, the installation of new or additional wells for the purpose of monitoring ground water beneath a land application site. Immediately upon approval of the analysis, the permittee shall proactively protect ground water by implementing the following requirements:

I. Quarterly sample the two one-foot increments of soil below the monitoring zone for each land application site, in addition to other soil sampling requirements indicated in subsection 61.13 , except when this frequency is not practicable due to one of the three scenarios presented in subsection 61.13 . The Division may require quarterly monitoring of soils at depths beneath two feet below the monitoring zone based on a nitrogen loading trend analysis of the monitoring zone or below the monitoring zone.

II. Analyze the two one-foot increments of soil for nitrate-nitrogen.

III. Notify the Division in writing within 30 days of discovering that the cumulative soil nitrate-nitrogen concentration level in any two foot increment within the monitoring zone, or in any one foot increment below the monitoring zone, exceeded the comparative concentration by greater than ten milligrams per kilogram.

IV. In consultation with the Division, develop and submit an approvable intervention protocol within ninety (90) days of the permittee discovering that the cumulative soil nitrate-nitrogen concentration level in any two foot increment within the monitoring zone, or in any one foot increment below the monitoring zone, exceeds the comparative concentration by greater that ten milligrams per kilogram, unless an extension of time is granted by the Division. The intervention protocol shall provide for strict minimization of future nitrate-nitrogen loading within the monitoring zone and below the monitoring zone. The Division may specify that appropriate measures be included in the protocol for the purpose of remediating excessive nitrogen within the monitoring zone and below the monitoring zone.

V. The protocol shall be implemented by the permittee within 30 days of it being approved by the Division. If remediation measures in an approved intervention protocol are not being implemented in accordance with the protocol, application of swine feeding process wastewater and/or residual solids to the applicable land application site shall immediately cease.

VI. The intervention protocol shall not be implemented if the permittee submits to the Division a report that adequately documents that a force majeure was the cause of soil nitrate-nitrogen concentrations exceeding the comparative concentration by greater than ten milligrams per kilogram.

VII. Document the status of intervention protocol activities in applicable quarterly monitoring reports.

(vii) Where the permittee has installed double liners with leak detection mechanisms, ground water monitoring around all such impoundments shall not be required.

(viii) The provisions of subsections 61.13 , and (v), above, shall not apply to non-land-application facilities.

61.13(5)PERMIT FEES

(a) Each housed commercial swine feeding operation covered by a single permit shall pay permit fees in accordance with the schedule set forth in 25-8-502(1)(b)(I), C.R.S., and in accordance with section 61.15 of this regulation.

61.13(6)ENFORCEMENT

(a) The Division shall enforce the provisions of this section 61.13 in accordance with the provisions of Part 6 of the Act.

(b) The Division shall take immediate enforcement action against any housed commercial swine feeding operation that has exceeded the agronomic rate limit of subsection 61.13(4)(e).

5 CCR 1002-61.13

38 CR 01, January 10, 2015, effective 1/30/2015

38 CR 11, June 10, 2015, effective 6/30/2015

39 CR 17, September 10, 2016, effective 12/31/2016

39 CR 21, November 10, 2016, effective 12/31/2016

40 CR 07, April 10, 2017, effective 4/30/2017

41 CR 23, December 10, 2018, effective 12/30/2018

43 CR 10, May 25, 2020, effective 6/14/2020