5 Colo. Code Regs. § 1002-61.46
The provisions of sections 25-8-202, 25-8-401, 25-8-501.1, and 25-8-504, C.R.S., provide the specific statutory authority for the amendments to this regulation adopted by the Commission. The Commission has also adopted, in compliance with section 24-4-103(4), C.R.S., the following statement of basis and purpose.
BASIS AND PURPOSE:
Amendment 14, approved by Colorado voters on November 3, 1998, adds a new section 25-8-501.1 to the Colorado Water Quality Control Act, and amends section 25-8-504. These provisions establish a new requirement that an individual discharge permit be obtained by any person who operates, constructs, or expands a "housed commercial swine feeding operation." In this rulemaking hearing, the Commission adopted revisions to the Colorado Discharge Permit System Regulations to implement these new requirements.
At this time, the Commission has taken final action on only a subset of the issues raised in the rulemaking hearing, specifically the proposed new definitions in section 61.2 . The Commission has taken this partial final action so that its determinations on these definitions will be known prior to an Air Quality Control Commission rulemaking hearing for the implementation of Amendment 14, which is scheduled for February 18, 1999, to facilitate consistency of the air quality and water quality regulatory programs.
The regulation includes definitions for several terms also defined in the statute. The statutory definitions of "agronomic rate" and "housed swine feeding operation" appear verbatim in the regulation. The Commission expanded on several aspects of the statutory definition of "housed commercial swine feeding operation", to further clarify how this term will be applied in practice.
The phrase "capable of housing" is clarified to refer to the combined maximum capacities of individual housing units. The Commission intends this capacity to be based on the sum of the weights of swine anticipated to be present in all housing units at any one time, e.g. based on the business plan for the operation. That is, the capacity determination is to based on full use of existing physical facilities, consistent with standard industry practices aimed at providing a continuous supply of marketable hogs. If the owner demonstrates that standard practice results in swine at a variety of weights being present at any one time, the combined total of those various weights at the time of maximum utilization is to be used. The Commission does not believe that the proposal to allow a determination that an operation may be excluded from the definition, based on a commitment not to house more than a specified weight, is consistent with the statutory language, which is based on what an operation is "capable of housing", not on actual operations that may be at a lower level.
The definition includes default values to correlate the statutory 800,000 pounds threshold with different size categories of swine. The default number of feeder swine corresponding to 800,000 pounds is based on information that 265 pounds is a common market weight for feeders. However, the definition also allows the owner of an operation to provide specific information that demonstrates the appropriateness of an alternative capacity calculation for a particular facility. The Commission intends these elements of the definition to provide predictability and ease of application in most circumstances, while also providing flexibility to address any unique circumstances.
The regulation clarifies the phrase "under common or affiliated ownership or management" by focusing on majority ownership or actual or effective control of the management of those aspects of an operation related to swine production or swine waste management. The Commission does not intend that mere similarity of practices, such as utilizing the same university feeding recommendations or local veterinarian or the same feed manufacturer alone evidence "effective control of the management" of operations. Moreover, limited cooperative efforts, such as participation in a common marketing organization or a commitment by multiple producers to meet common product standards (e.g. for organic pork) alone, without more extensive control of other aspects of swine production or waste management, would not constitute "effective control of the management" of an operation, so long as no entity has the ability to require such participation. The Commission anticipates that application of this definition will require the Division to exercise its judgment on a case-by-case basis to determine what circumstances evidence "effective control", e.g. based on actual decision-making authority, dominant market position, common control of significant aspects of the operations, or interrelationships that evidence that interactions between the entities are not "arms-length transactions." All possible circumstances and arrangements cannot be anticipated in the regulation.
In the hearing, there was considerable debate regarding the appropriate application of the housed commercial swine feeding operation definition to two specific types of arrangements:
The Commission interprets the statutory phrase "integrated in any way" as referring to a potential measurable negative cumulative impact on state waters at any one location. The Commission intends that this potential is to be determined based on the location of facilities, not on operational controls. If this phrase were interpreted to refer solely to integration of business operations, it would be duplicative of the phrase "common or affiliated ownership or management," which would render the other phrases in the second half of this sentence in the statutory definition irrelevant.
Finally, the Commission's definition of "housed commercial swine feeding operation" clarifies the statutory phrase "discharge within the same watershed or into watersheds that are hydrologically connected." As a matter of policy, the Commission chose to focus on hydrologic units that it believes are of a size such that cumulative impacts on water quality from multiple swine feeding operations could be a concern, since the focus of these new statutory provisions is to assure adequate protection of water quality. The Commission also added language to clarify that these terms will not be deemed to apply if an owner demonstrates that there is no reasonable potential for two operations to result in a measurable negative cumulative impact at any one location. Again, this determination relies on the location of facilities, not on operational controls.
The statutory definition of "process wastewater" has been modified to refer to "swine feeding process wastewater", since the discharge permit regulation as a whole applies to many other types of process wastewater. In addition, this definition has been modified to clarify the intent that it apply to wastewater resulting from the swine feeding and wastewater management aspects of a housed commercial swine feeding operation.
In addition to adding several statutorily-defined terms to the regulation, the Commission included several additional definitions to provide clarity regarding the implementation of this new regulatory program. The Commission added definitions of "new" and "existing" housed commercial swine feeding operations. The definitions hinge on whether physical construction of an operation was commenced by March 30, 1999, the anticipated effective date of these amendments to the discharge permit regulations. This distinction is necessary to accommodate the practical differences as to when permittees must submit a permit application and the "plans" required for housed commercial swine feeding operations. If construction of an operation commenced before the effective date of the regulation, it would not be possible to submit a permit application 180 days prior to the commencement of construction. Therefore, the Commission has decided as a matter of policy that is not practical or appropriate to use the June 1, 1998, date that appears in the air quality portion of Amendment 14 to determine what constitutes a new operation for purposes of the water quality control requirements, as was recommended by some parties.
The Commission included a definition of "aquifer", since this term is used in the statute and the regulation. This definition tracks the definition of this term in Colorado statutes for ground water management.
The term "contamination" is defined because of its use at several points in the statute and the regulation. The Commission defined this term with reference to the protection of adopted water quality classifications and standards. Although this term could be interpreted to refer to any degradation of water quality, the Commission rejected that interpretation, since the statute explicitly uses the term "degradation" when that more restrictive level of control is intended, i.e. for state trust lands.
The term "residual solids" has been defined to refer to manure and other solids separated from or resulting from the storage or treatment of swine feeding process wastewater. This term is included for simplicity and consistency, since several of the requirements of the regulation should logically apply to all of the waste-related solids included within this definition.
Finally, a definition of "non-land-application facility" has been added, since there is no water quality protection reason for operations that meet this definition to be subject to the land application requirements of the regulation. However, note that if any portion of the swine feeding process wastewater or the residual solids from an operation will be land applied, the operation does not meet this definition.
5 CCR 1002-61.46