5 Colo. Code Regs. § 1002-61.54
The provisions of 25-8-202(1)(d) and (2), 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 24-4-103(4) C.R.S., the following statement of basis and purpose.
BASIS AND PURPOSE
Revisions to the concentrated animal feeding operation (CAFO) Federal regulations under the National Pollutant Discharge Elimination System (NPDES) became effective on April 14, 2003. Revisions were made to the permitting requirements (40 CFR 122) and to the effluent limitation guidelines (40 CFR 412). The revised regulation requires, among other provisions, a mandatory duty for CAFOs to apply for an NPDES permit and to develop and implement a nutrient management plan. 40 CFR 412.4(c)(3) of the revised Federal regulations requires state NPDES permitting programs to be revised to reflect the regulatory changes within one year of the effective date of the new regulations, where no amended or enacted statute is necessary. Part 25-8-504(2) of the Colorado Water Quality Control Act prohibits the Division from issuing permits for animal or agricultural waste on farms and ranches except as may be required by the Federal act or regulations. Therefore, Colorado does not need to amend or enact a statute for the purpose of revising its CAFO permitting program and has until April 14, 2004 to revise its CAFO permitting program to reflect the new Federal regulations.
As a result of the revised Federal regulations, all but a very few CAFOs will be required to be covered under a permit. The existing Regulation #61 does not contain specific provisions for concentrated animal feeding operation permits other than the language in subsection 61.13 stating that, "the provisions of any permit that is required for animal or agricultural waste on farms and ranches that are not housed commercial swine feeding operations shall not be any more stringent than, and shall not contain any condition for monitoring or reporting in excess of, the minimum required by the Federal Act or regulations." As a result, the Commission has taken final action on revising this Regulation #61 to add provisions for CAFOs.
In general, the Commission adopted regulatory provisions that closely track the language of the revised Federal regulations. Additional detail and clarifications have been added where appropriate to allow for effective implementation of the new requirements. The revised Federal regulations focus on protection of the nation's surface waters from pollutants in manure or process wastewater and, pursuant to page 7219 of the preamble of the revised regulations, do not include provisions for ground water controls and monitoring (even where there may be discharges to surface waters via ground waters that have a direct hydrologic connection to surface waters). Since, as discussed above, permits for animal or agricultural waste cannot include conditions in excess of those required by the Federal regulations, the Commission adopted provisions for the protection of surface waters by CAFOs. In order to provide protection of ground water from CAFO activities, the Commission also adopted in this rulemaking hearing revisions to the Confined Animal Feeding Operations Control Regulation [Regulation #81 (5 CCR 1002-81)].
Definitions (61.2): Since the existing Regulation #61 does not contain specific provisions for CAFO permits, the Commission adopted several new definitions that pertain to such operations, including housed commercial swine feeding operations ("HCSFOs"). Definitions for the following terms were added from the revised Federal regulations, with changes made to refer to surface waters instead of waters of the United States, as appropriate: animal feeding operation, concentrated animal feeding operation, dry lot for ducks, fecal coliform, large concentrated animal feeding operation, medium concentrated animal feeding operation, multi-year phosphorus application, process wastewater, production area, setback, small concentrated animal feeding operation, total coliform, vegetated buffer, and wet lot for ducks. In addition, revised definitions for the Federal terms of manure, 100-year, 24-hour storm, and 25-year, 24hour storm were added.
Definitions for the following non-Federal terms also were adopted to section 61.2 since they are applicable to CAFO and HCSFO regulations: freeboard, ground water, ground water recharge, public drinking water system, and surface water. The definition of ground water was taken from Colorado's Basic Standards for Ground Water regulation [Regulation No. 41 (5 CCR 1002-41)]. The definition of ground water recharge was taken from page 211 of "Groundwater" by R. Allan Freeze and John A. Cherry, Prentice-Hall, Inc. 1979.
The Commission added a definition of "surface water" since it is this specific subset of waters of the state that must be protected under the Federal CAFO regulations. Wording also was included in the definition that stipulates that this definition is applicable only to sections 61.13 and 61.17 . Surface waters are also the waters of concern in the process that the Division must use to designate an AFO as a CAFO. Surface water is defined as "waters of the state that are also waters of the U.S." In keeping with the Federal interpretation of waters of the U.S., surface water includes subsurface water that may be hydrologically connected to surface water. The Commission intends that the hydrological connection aspect is pertinent only where it results in a contribution of pollutants being conveyed from ground water to surface water.
The Commission finds it appropriate to clarify the existing definition for "new source" in subsection 61.2 by adding the following new source criteria language from 40 CFR 122.29(b)(1) and (2): "Except as otherwise provided in an applicable new source performance standard, a source is a "new source" if it meets [this] definition of "new source" , and:
For the purpose of having the HCSFO regulations (section 61.13) be at least as stringent as the Federal regulations, the existing definition of swine feeding process wastewater was revised to include the process wastewater terms that are currently absent from the definition. The existing definition of residual solids was revised to include tanks (in addition to impoundments) and manure not separated from swine feeding process wastewater.
Clarification of AFO definition: Regarding the definition of an animal feeding operation (AFO), the Commission clarifies that wildlife and other non-traditional livestock animals, such as elk and llamas, are considered "animals" within the definition. The Commission also finds it appropriate to provide clarification of confined animal feeding operations that meet the criteria for an AFO, versus those that do not meet the criteria. To be an AFO, a facility must have animals stabled or confined for at least 45 days out of any 12 month period where crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility. Using these criteria, it is not the intent of this regulation to include true pasture and rangeland operations as AFOs. Nor is it the intent of this regulation to include winter feeding sites on pastures or rangeland, or properly grazed crop residues, as AFOs. A winter feeding site is not an AFO where it shows no vegetation during the winter but shows regrowth of desirable forage in the spring. However, pasture and grazing operations may also have confinement areas (e.g., feedyards, barns, pens) that may meet the definition of an AFO.
Regarding the "no vegetation" cover aspect of the criteria, page 7189 of the preamble of the revised Federal regulations states that incidental vegetation existing in a part, or parts, of a confined area, does not exclude the feeding operation from meeting the definition of an AFO. The Commission encourages the Division to use common sense and sound judgment in evaluating whether confined areas with incidental vegetation meet the definition of an AFO.
Part of the AFO definition refers to no vegetative cover being present during the normal growing season. However, Page 7189 of the preamble of the revised Federal regulations states that the "no vegetation" criteria in the definition is meant to be evaluated during the winter, if animals are confined during that time. The Commission is aware that backgrounding operations are common in the State, where cattle weaned in the fall are fed in pens through the winter until they are turned out to pasture or rangeland in the spring. In keeping with the Federal preamble language, the Commission finds that backgrounding feedlots are AFOs where no vegetation is present (whether during the winter or normal growing season), and animals are confined for 45 days or more out of any 12-month period. The Commission encourages the Division to use common sense and sound judgment in determining whether backgrounding feedlots meet the definition of an AFO.
Application for a Permit (61.4): Subsection 61.4 was revised to include a new subsection 61.4 that requires CAFOs to meet permit application requirements in the added subsection 61.17.
Housed Commercial Swine Feeding Operation Regulations (section 61.13): A housed commercial swine feeding operation (HCSFO) is also defined as a Large CAFO under the revised Federal regulations. As a Large CAFO, a HCSFO is subject to any requirements of the revised Federal regulations that are not already required under section 25-8-501.1 of the Colorado Water Quality Control Act and its implementing regulations in subsection 61.13 . For the purpose of having the HCSFO regulations (section 61.13) be at least as stringent as the Federal regulations, several additions and amendments were made to the regulations.
Subsection 61.13 was revised to add the requirement that HCSFOs have a duty to seek permit coverage. A new subsection 61.13 was added to reflect the Federal language regarding agricultural stormwater discharges from land application sites. Such discharges are not subject to stormwater permit requirements. Subsection 61.13 was revised to add language that clarifies that a permit application must be submitted to the Division not less than 180 days prior to swine being placed on an operation. Subsection 61.13 were revised to include additional permit application elements required by the Federal CAFO regulations, and to indicate that a swine waste management plan must be submitted by all operations. The existing regulations exempted non-land application HCSFOs from submitting a swine waste management plan. These facilities now must submit such a plan because it now must address residual solids and swine feeding process wastewater management on the production area, in addition to land application activities.
The Commission is aware that the Federal language requires that a complete permit application be submitted at least 180 days prior to animals being placed on some operations (such as a new or new source operation), and is aware that the Division could issue a permit to the operation prior to the end of the 180 day period. Therefore, the Commission clarifies that once a permit is issued, an operator is authorized to commence operation, even if the 180-day period has not ended.
40 CFR 122.42 requires as a permit condition that a nutrient management plan (NMP) be developed and implemented. For Large CAFOs, additional NMP elements are required under 40 CFR 412.4(c). The swine waste management plan required under subsection 61.13 currently includes some of the required elements of the NMP and was revised as follows to include the additional elements. Language was added to the introductory paragraph to state that HCSFOs must develop and implement a swine waste management plan. Language also was added to indicate that the plan must also provide for compliance with subsection 61.13 , which addresses setback provisions specified in the Federal CAFO regulation. Subsection 61.13 was revised to require specification of analytical protocols. In addition, the existing "interpretive analytical procedures to determine application rates" language was removed in order to simplify and provide focus to the subsection. A new subsection 61.13 was adopted that requires a description of the methods for determining application rates and the potential for nitrogen and phosphorus transport from land application sites (a Federal requirement). New subsections 61.13 , and (xv) were added to include remaining elements required in the revised Federal regulations for an NMP.
Subsection 61.13 was revised to require that a swine waste management plan be developed and implemented and that existing permitted operations (and that currently have approved swine waste management plans) must submit to the Division for approval a revised swine waste management plan that meets the requirements of subsection 61.13 , as revised effective June 30, 2004.
The impoundment storage criteria in subsection 61.13 was revised to require that storage capacity also be provided to hold runoff from a 25-year, 24-hour storm or 100-year, 24-hour storm for existing source and new source facilities, respectively. The criteria does not specify that storage designs include the capacity to retain direct precipitation from the applicable storm event, since impoundments are required to maintain at least two feet of freeboard. This freeboard is sufficient to contain the three to four inches of direct rainfall that is typically received with a 25-year, 24-hour storm or 100-year, 24-hour storm.
The Federal language pertaining to assessments of land application sites for the potential of nitrogen transport from land application sites to surface waters, and pertaining to the Federal requirement that land application rates be based, in part, on such assessments, were added to subsection 61.13 . The swine waste management plan (subsection 61.13) requires that the permittee indicate how this subsection will be complied with.
The Commission notes that the existing regulation specifies, as a surface water protection measure, that no application of additional phosphorus be made to application sites where the top one foot of soil exceeds 80 mg/kg of sodium bicarbonate extractable phosphorus, unless an off-site phosphorus transport risk score is high or less. Therefore, the adopted regulation includes language that requires that a nitrogen transport risk assessment of application sites now must be made, in keeping with the Federal CAFO regulations. The Commission is aware that a published tool suitable for assessing nitrogen transport risk does not currently exist. Therefore, it finds that use by operators of the land application provisions of the swine waste management plan, which requires the use of setbacks and runoff controls, for example, and adherence by operators to the "no phosphorus application" standard discussed above, will result in nitrogen and phosphorus transport to surface waters being minimized, and is equivalent to the Federal requirement that application sites be evaluated for nitrogen transport to surface waters. The effectiveness of these practices in adequately controlling phosphorus and other pollutants from reaching surface waters is affirmed by language on Page 7210 of the preamble of the revised Federal regulations.
40 CFR 412.4 requires that manure and soil be sampled and that land application equipment be inspected for leaks. These requirements were added as new subsections 61.13(4)(e)(ii)(C) and 61.13(4)(d)(xiii), respectively.
40 CFR 412.37 requires implementation of four best management practices (BMPs) for the production area of a Large CAFO. The fourth BMP requires animal mortalities to not be disposed in any liquid residual solids or swine feeding process wastewater system and in a way that protects surface waters. This BMP was added as a new subsection 61.13(4)(d)(xiv).
The other three BMPs required under 40 CFR 412.37 for the production area (visual inspections, depth markers, and corrective actions) were inserted as additions to subsections 61.13 [as a new part (vi)], and as new subsections 61.13 , and (xii). Federal language regarding depth markers was revised to specify that the markers must be marked in maximum depth increments of one foot, since HCSFOs commonly use a water balance method for monitoring seepage from impoundments to satisfy the requirements of the existing subsection 61.13 . The language also was revised to require that each marker show the required two-foot freeboard elevation.
Regarding the BMP requiring visual inspections of impoundments, the Commission finds it appropriate to clarify the scope of such inspections by including the following language from page 7216 of the preamble of the revised Federal regulations. "Impoundments must be inspected weekly to ensure structural integrity. For surface and liquid impoundments, the berms must be inspected for leaking, seepage, wind or water erosion, excessive vegetation, unusually low or high liquid levels, reduced freeboard, depth of the manure and process wastewater in the impoundment as indicated by the depth marker, and other signs of structural weakness."
The visual inspections BMP also requires inspections of water lines. The Commission would expect that such inspections be primarily of water lines that have potential to add process wastewater to any impoundment or that, if leaking, would result in a discharge to surface water. The Commission also would expect that the Division use common sense and sound judgment in determining what is or what is not a leak.
One of the BMPs requires that deficiencies found as the result of visual inspections be corrected as soon as possible. 40 CFR 412.37(b)(3) specifies that records must be kept documenting that, where deficiencies were not corrected within 30 days, an explanation must be provided of the factors that prevented immediate action. Therefore, the Commission finds it appropriate to amend the Federal language by stating that corrective action shall be taken by no later than 30 days of a deficiency having been identified.
feet, which is more stringent than the Federal requirement. Since a HCSFO permit can have provisions that are more restrictive than Federal requirements, subsection 61.13 was not revised to specify the Federal 100-foot setback standard, and the two compliance alternatives to this standard allowed for in the Federal regulation.
The Federal CAFO regulatory language pertaining to general pretreatment standards, effluent limitations, and voluntary alternative performance standards was added as new subsections 61.13 , and (xvii), with some minor revisions to address existing HCSFO requirements and language.
40 CFR 412.37(b) and (c) require certain records be kept by Large CAFOs for production areas and land application sites, and that such records be maintained on-site for a period of five years from the date they are created. Since the existing HCSFO regulations do not specify recordkeeping requirements, the existing subsection 61.13 was revised to become subsection 61.13 , with the new subsection 61.13 now including language of required recordkeeping. Regarding weather conditions, the Commission believes that it is potential runoff as the result of precipitation before and after land application that is a concern relative to water quality. Therefore, recording of precipitation (whether it be no precipitation or some measurable amount) is appropriate for indicating weather conditions.
40 CFR 122.42(e)(4) specifies annual reporting requirements for CAFOs. The existing HCSFO regulations require quarterly reporting of agronomic rate, seepage monitoring, and intervention protocol activities. The revised Federal regulation requires reporting of several additional categories of information. As a result, the existing subsection 61.13 was revised to become 61.13(4)(k)(v) and to include the additional reporting requirements required in the revised Federal regulations, and to specify that the additional information be provided in one of the quarterly monitoring reports. The Commission encourages the Division to work with permittees to identify which quarterly report is appropriate for inclusion of the additional information. Regarding the reporting of swine numbers, it is not the intent of the Commission to prescribe the frequency that accurate counts are taken at sites, but expects that the permittee would conduct counts frequently enough to produce an accurate maximum number for the annual report.
Since specific CAFO permitting regulations do not exist in the current Regulation #61, the Commission found it necessary to add a new section, 61.17, for inclusion of the requirements of the revised Federal regulations, and for the purpose of implementing the revised Federal regulations. The Commission clarified in subsection 61.17 that the section 61.17 applies to all CAFOs that are not defined as housed commercial swine feeding operations.
Scope and Purpose: In addition to the language provided for this section 61.17 , the Commission clarifies that while a purpose of these regulations is to implement the revised Federal concentrated animal feeding operation (CAFO) regulations in 40 CFR Parts 9, 122, 123, and 412, the Federal regulations are neither incorporated by reference nor adopted verbatim in all cases.
Applicability: The Commission adopted "specific applicability" language that indicates that the section 61.17 regulations do not apply to housed commercial swine feeding operations ("HCSFOs"), but clarifies here that HCSFOs are also defined as Large CAFOs and are subject to the Federal requirements for CAFOs. However, as a result of the requirements of section 25-8-501.1 of the Colorado Water Quality Control Act, HCSFOs must comply with section 61.13.
Language was added to the "specific applicability" section to reflect the Federal language regarding agricultural stormwater discharges from land application sites. Such discharges are not subject to stormwater permit requirements.
Definitions: Subsection 61.17 includes definitions for sixteen terms: chronic storm, closed facility, freeboard, land application site, man-made drainage system, manure, multi-year phosphorus application, "100-year, 24-hour Storm", operator, overflow, process wastewater, production area, setback, tank overflow, "25-Year, 24-Hour Storm", and vegetated buffer. While some of these definitions also were added to section 61.2 ("Definitions"), the definitions were included in 61.17 (3) because some are applicable just to CAFOs and provide for ease of reference and interpretation; for example, a person could acquire 61.17 and have most of what is needed to understand the CAFO permit regulations.
The definition of "land application site" makes reference to land under the control of an AFO or CAFO. The Commission finds it appropriate to clarify that a land application site is under the control of a CAFO where it is owned or leased by the CAFO, where cropping and/or nutrient budget decisions for the site are made by the CAFO, or where the CAFO land applies process wastewater or manure to such land. Such land is not under the control of a CAFO where the CAFO simply agrees to release process wastewater or manure to the owner/operator of land that does not otherwise meet the criteria of being under the control of the CAFO.
The definition of chronic storm is the same as that used in the existing CAFO general permit that was issued by the Division in 2001.
Definitions of the following terms are the same as those in the revised Regulation #81, as adopted in today's rulemaking hearing: operator and tank overflow.
A definition of "operator" does not currently exist in the regulation, but the Commission finds that such a definition is necessary in the regulations currently being adopted to provide meaning to the term "operator" as used in subsection 61.17, and to provide a necessary connection to the term "person", which is defined at 61.2(61).
Definitions of the following terms were taken from the revised Federal regulations and were amended where appropriate based on stakeholders input to provide clarification: land application site, manure, man-made drainage system, overflow, production area, setback, "100-year, 24-hour storm", "25-year, 24hour storm", and vegetated buffer. The definitions of land application site, manure, man-made drainage system, and production area are the same as those in the revised Regulation #81, as adopted in today's rulemaking hearing.
Regarding "manure", the revised Federal regulation has separate terms for litter from poultry operations and for manure. In an effort to minimize the use of different terms, the Commission adopted a definition of manure that includes litter from poultry operations.
Regarding the "25-year, 24-hour storm" and "100-year, 24-hour storm" definitions, the Commission understands that the authoritative document that the Division intends to preferentially accept for use in determining the magnitude of a such storms is the "Precipitation-frequency atlas of the Western United States, volume 3 (Colorado), 1973" as published by the National Oceanic and Atmospheric Administration, National Weather Service, Office of Hydrology, and that an alternative to this document must be approved by the Division as providing regional or State rainfall probability information that is equivalent to that defined by the National Weather Service in Technical Paper No. 40, "Rainfall Frequency Atlas of the United States," May, 1961.
The production area, as defined, includes the raw materials storage area, which includes but is not limited to feed silos, silage bunkers, and bedding materials. The Commission finds it appropriate to clarify that the raw materials storage area does not include locations where harvested dry forage (such as hay bale stacks) is stored outside of the production area or in hay fields.
Designation of an AFO as a CAFO: The Federal regulatory language for the process of determining if an AFO will be designated a CAFO was separated from the CAFO definition and placed as Section 61.17 for the purpose of more readily finding and identifying the process.
The Commission understands that as part of the process of determining whether an AFO should be designated as a CAFO, the Division will consider the five criteria listed in the regulation in order to conclude whether an AFO could cause significant degradation of surface water bodies subject to antidegradation review or could cause an exceedance of any adopted surface water quality standard. The latter standards are specified in Regulation No. 31, "The Basic Standards and Methodologies for Surface Water."
Since the preamble of the Federal regulation (page 7199) allows States to provide an opportunity for an AFO that may be designated as a CAFO to take actions that eliminate conditions that pose a risk to surface water quality, the Commission included provisions in the regulations that provides for such an opportunity in the form of a work plan. The Commission is aware that some AFOs may have no easy solutions for eliminating or significantly abating risks to surface waters. Such AFOs may indicate to the Division that it intends to remain in its location and operate as a CAFO and apply for a permit. Where an AFO does not complete and implement a work plan as required, the Commission added language that the Division may designate the AFO as a CAFO and be required to submit a complete CAFO discharge permit application.
AFOs can be designated as CAFOs where they directly discharge process wastewater or manure into surface water through man-made drainage systems. The Commission clarifies that an overflow from an AFO impoundment or conveyance structure into surface water, or sheet flow runoff from and AFO into surface waters, are not direct discharges through man-made drainage systems.
Permit Application:40 CFR 122.21 specifies information that is required in an application to be covered under a CAFO permit. It also specifies that all CAFOs have the duty to seek coverage under a discharge permit, and to maintain permit coverage. The Commission included these requirements in subsection 61.17 and found it appropriate to include additional requirements for a permit application to provide the Division with adequate information to determine whether an applicant meets permit requirements.
The Commission is aware that the majority of CAFOs in the state do not hold coverage under a permit. As a result, permit application deadlines specified in 40 CFR 122.23(g) are included in subsection 61.17 . The Commission amended some the Federal deadlines, such as for new sources, to account for the state regulations not being promulgated until a year after the effective date of the revised Federal regulations.
Page 7201 of the preamble of the revised Federal regulations states that there is a sound basis in the administrative record for the presumption that all CAFOs have a potential to discharge to waters of the United States such that they should be required to apply for a permit. Pursuant to 40 CFR 122.21(c) of the Federal regulations, such CAFOs must submit a permit application at least 180 days before the date on which a discharge is to commence. The Commission realizes that CAFOs cannot predict when a discharge may occur outside of receiving in excess of a 25-year, 24-hour storm and that, for all intents and purposes, such CAFOs must apply for a permit immediately. Therefore, and pursuant to page 7205 of the preamble of the revised Federal regulations, the regulation presently being adopted does not change the existing requirement that operations that were defined as CAFOs under the prior Federal regulations should immediately apply for a permit.
Where a CAFO must submit a permit application immediately, the Commission understands that the Division released on June 17, 2003 a Notice of Intent form that provides time to such a CAFO for meeting permit requirements and submitting a complete permit application. The form states that during this period of time, the Division will use its enforcement discretion where such a CAFO has a discharge outside of a 25-year, 24-hour storm. The Commission encourages the Division to work with such CAFOs to allow them to meet permit requirements and to use its enforcement discretion, while ensuring that surface waters are protected.
The Commission adopted permit application deadlines specific to an AFO that makes a change that causes it to be defined as a CAFO after the effective date of the regulation currently being adopted. An example of such a scenario is where an AFO increases its beef cattle numbers (e.g., in response to market prices) to 1,000 or more, for 45 days or more. Such an operation must apply for a permit within 90 days after becoming defined as a CAFO. The revised Federal regulation provides an exception to this 90-day deadline for an AFO that makes a change and where such a change would not have caused the operation to be defined as a CAFO if the change had occurred prior to the effective date of the regulation currently being adopted. For example, dry poultry operations were not defined as CAFOs in previous regulations. Where a dry poultry operation, sometime after the effective date of today's revised Regulation #61, adds animals and exceeds the threshold for becoming defined as a CAFO, it must apply for a permit by April 14, 2006. This is the same deadline for dry poultry operations that, on the effective date of the regulation currently being adopted, already exceeded the threshold number of poultry to be defined as a CAFO (i.e., they did not become a CAFO by adding poultry numbers after the effective date of the regulation currently being adopted).
The Commission is aware that the Federal language requires that a complete permit application be submitted at least 180 days prior to animals being placed on some operations (such as a new or new source operation), and is aware that the Division could issue a permit to the operation prior to the end of the 180 day period. Therefore, the Commission clarifies that once a permit is issued, an operator is authorized to commence operation, even if the 180-day period has not ended.
Duty to Maintain Permit Coverage. The adopted regulation includes as section 61.17 "duty to maintain permit coverage" language from 40 CFR 122.23(h) of the Federal regulations. To these provisions was added language that provides for a designated or defined Small or Medium CAFO to not need to continue to seek permit coverage where the conditions that caused the facility to be a CAFO have been corrected. Page 7232 of the preamble of the Federal regulations provides states the flexibility to provide this opportunity.
Effluent Limitations. The Commission included as section 61.17 effluent limitation requirements from the revised Federal regulations for both existing and new sources of Large CAFOs and duck CAFOs with 5,000 or more ducks. The requirements also indicate that effluent limitations for Small and Medium CAFOs will be determined by the Division using Best Professional Judgment.
No Potential to Discharge Determination: The Commission is aware that the Federal regulations [40 CFR 122.23(f)] allow for the State to make a case-specific determination that a Large CAFO has "no potential to discharge" , in response to a request of the Division for such a determination. The Commission finds that some CAFOs in the State may be able to meet "no determination to discharge" standards and not be required to hold a permit and, therefore, finds it appropriate to include in today's adopted regulation language pertaining to "no potential to discharge" criteria and the request and determination processes. Examples of "no discharge" facilities are operations that:
The Commission also finds it appropriate to clarify the criteria and standards by which "no potential to discharge" determinations should be made by including the following selected language from pages 7202 and 7203 of the preamble of the revised Federal regulations. "EPA's intention is that the term "no potential to discharge" is to be narrowly interpreted and applied by permitting authorities. This provision is intended to be a high bar that excludes those Large CAFOs from having a permit only where the CAFO can demonstrate to a degree of certainty that they have, without qualification, no potential to discharge to surface waters. The no potential to discharge status is intended to provide relief where there truly is not potential for a CAFO's manure or process wastewater to reach surface waters under any circumstances or conditions. Such circumstances would include, for example, CAFOs that are located in arid areas and far from any water body or those that have completely closed cycle systems for managing their manure and process wastewater, and that do not land apply their manure and process wastewater. It is the CAFO's responsibility to provide appropriate supporting information that the permitting authority can use when reviewing the demonstration. The supporting information should include, for example, a detailed description of the types of containment used for manure and process wastewater, focusing on the attributes of the containment that ensure no discharges will occur. In addition, there may be instances where after preliminary review of the demonstration, the permitting authority may require the submission of supplemental information to assist in making a determination."
40 CFR 122.23(f)(1) of the Federal rule states that "in no case may the CAFO be determined to have "not potential to discharge" if it has had a discharge within the 5 years prior to the date of the request submitted. Hence, any history of discharges within this period of time shall assist in guiding the Division's decision upon such "no potential to discharge" requests.
Process wastewater Storage Capacity Standards: The adopted regulations include the Federal baseline storage requirements for Large CAFOs. The adopted regulations also include the Federal storage requirements for new source CAFOs, including the requirement that new source swine, poultry, and veal calf operations have storage for a 100-year, 24-hour storm. In addition, the Commission also included language that allows for Large CAFOs and duck CAFOs with 5,000 or more ducks to have evaporation impoundments. The design of such impoundments was taken from the existing Regulation #81 and was amended to require that such impoundments be designed to be capable of storing runoff from a 25-year, 24-hour storm or 100-year, 24-hour storm, depending on the point source category of the operation. This amendment was made in order to ensure that the design standard is at least as stringent as that required in the Federal regulation.
The adopted baseline storage standard refers to CAFOs storing the volume of process wastewater and manure loading. The Commission clarifies that this language means a CAFO must store the total volume of process wastewater produced (e.g., from milking parlors) during the months in which no land application can or will occur, plus the process wastewater, manure loading, and direct rainfall resulting from the applicable storm event.
The baseline standard does not specify that storage designs include the capacity to retain direct precipitation from the applicable storm event, since impoundments are required to maintain at least two feet of freeboard. This freeboard is sufficient to contain the three to four inches of direct rainfall that is typically received with a 25-year, 24-hour storm or 100-year, 24-hour storm. Where an operator requests that an alternative freeboard level be approved, such a request shall include evidence that direct precipitation from the applicable storm event will be contained.
Stakeholders expressed a desire that tank overflow water not be defined as process wastewater since it is drinking water that is minimally contaminated by cattle drinking the water and is captured separately from process wastewater and reused. The Commission recognizes that recycling of water is a desirable tool for conserving a valuable resource. Therefore, tank overflow is defined in the regulation as "livestock drinking water in constant-flow cattle watering troughs that overflows into in-trough drain pipes and is retained separately from process wastewater storage." As such tank overflow does not need to be accounted for as process wastewater in sizing impoundments and tanks. Structures that store only tank overflow do not need to have depth markers and be inspected as part of the requirements of section 61.17 , but such structures are not exempt from the requirement of daily inspections of water lines, pursuant to section 61.17 . In addition, tank overflow cannot be discharged from the production area to surface water outside of effluent limitation standards that are applicable to the operation.
The Commission is aware that calculations of water quality-based effluent limitations may not be feasible for discharges from CAFOs, which are typically uncontrolled and unpredictable (i.e., discharges occur as the result of storm events at CAFOs that properly operate under permit conditions). 40 CFR 122.44(k)(3) allows the State permitting authority to substitute best management practices requirements for protecting surface water quality when numeric effluent limitations are infeasible. Therefore, the Commission finds it appropriate to include language in today's adopted regulation that provides the Division discretion and authority to require storage capacities that may be in excess of the Federal baseline standards (e.g., a chronic storm instead of a 25-year, 24-hour storm), as a best management practice for where water quality-based effluent standards are not appropriate for a permit. While the Commission adopted a definition of chronic storm, it finds it appropriate to give the Division flexibility to require storage of runoff from other types of storms for use as a best management practice, based on the frequency of expected discharges and the associated need to protect quality of surface water.
Stakeholders expressed concern that use by the Division of its flexibility in defining storm events that must be used as a best management practice can result in a moving target for CAFOs and significant expense where a newly defined storm event results in the need for CAFOs to increase storage capacity. The Commission is aware that the existing CAFO general permit requires storage for runoff from a 25-year, 24-hour storm or chronic storm, whichever is greater. Therefore, the Commission believes it is appropriate to have this existing storage standard continue to be used, unless the Division has significant reason that would warrant a change in the standard.
Voluntary Alternative Performance Standards: The revised Federal regulations (40 CFR 412.31 and 40 CFR 412.46) allow for certain Large CAFOs to meet voluntary discharge performance standards relative to the baseline storage and discharge standards. Large Dairy Cow, Cattle, and Existing Source Swine, Poultry, and Veal Calf CAFOs must achieve a quantity of pollutants discharged from the production area equal to or less than the quantity of pollutants that would be discharged as the result of the area receiving in excess of a 25-year, 24-hour storm. In contrast, new source Large Swine, Poultry, and Veal Calf CAFOs must achieve superior environmental performance standards that take into account discharges from all environmental media, including to air.
The Commission finds it appropriate to include in today's adopted regulations language that provides the opportunity for a CAFO to voluntarily develop and install new technologies and management practices that result in the pollutant quality of discharges being equal to or better than those resulting from baseline requirements. The adopted regulation reflects the revised Federal regulatory and preamble language, some requirements desired by the Division, and a requirement that a CAFO submit to the Division additional information that will allow the Division to determine if a permit should be issued to include voluntary permit effluent limitations, and what those limitations should be (pursuant to 40 CFR 412.31(a)(2)(ii)). Such additional information may be in the form of a site inspection of the CAFO applicant. Because new technologies are in infancy development stages, the Commission is aware that alternative effluent limitation permits issued by the Division will likely have to be individual permits. The Commission encourages use of this option in order to foster development of improved technologies that will reduce the impact of discharges from CAFOs on surface waters.
40 CFR 412.31(a)(2)(i)(D) of the revised Federal regulations states that supporting documentation for site specific pollutant data for voluntary alternative performance standards shall include N, P, BOD5, and TSS. The Commission is aware that numeric standards for TDS exist for discharges to the Colorado River System. In addition, subsection 61.4 requires every outfall for manufacturing, commercial, mining, and silviculture discharges to be sampled for Chemical Oxygen Demand (COD), Total Organic Carbon (TOC), ammonia (as N), temperature, and pH. Finally, the Commission is aware that water quality standards exist for fecal coliform and Escherichia coli. Therefore, the Commission adopted requirements in the regulation adopted today, that fecal coliform, Escherichia coli, ammonia (as N), COD, TOC, temperature, pH, and TDS (for discharges to the Colorado River System only) be provided as supporting documentation.
For the purpose of a new source Large Dairy Cow and Cattle (other than veal calves) CAFO determining site-specific pollutant data where process wastewater does not yet exist, the Commission is aware that process wastewater storage systems vary in terms of number of impoundments (e.g., one-cell versus two-cell) and function (e.g., some CAFOs have manure settling basins that are upgradient to impoundments). In a two-cell system, higher concentration process wastewater is treated in the first cell before lower concentration process wastewater is transferred to the second cell. Therefore, the Commission finds it appropriate to specify baseline impoundment systems, and the impoundment from which baseline pollutant data must be calculated for discharges from such new sources. For dairy cow operations, the Commission adopted a two-cell layout as the baseline impoundment system, with the second-cell (i.e., the downgradient cell) being the discharging impoundment. For beef cattle, and dairy cow operations, the Commission adopted a one-cell layout as the baseline impoundment system.
Where an alternative performance standard results in discharges that are outside of a CAFO receiving a 25-year, 24-hour or 100-year, 24-hour storm, as applicable, the Commission finds it appropriate to require in the adopted regulations that water quality standards-based effluent limits be identified for the discharges, and that the monitoring, recording, and reporting requirements of subsection 61.8 be met, in order for such discharges to be treated consistently with other permitted waste discharges.
Spillways. The Commission is aware that the integrity of impoundments may be significantly disturbed by overflowing process wastewater such that the required storage capacity no longer exists after a storm event. Therefore, the Commission finds it appropriate to require that a spillway be placed in each impoundment that discharges to surface waters. The Commission finds it appropriate to have the operator determine the most suitable elevation of a spillway and that would protect the impoundment during an overflow. For example, some operators value the significant capability of the area above the two-foot freeboard level for retaining process wastewater in quantities above baseline storage requirements. Retaining this extra volume could reduce the frequency of discharges, thereby providing additional protection of water quality.
The Commission understands that a spillway is not necessary for some discharging impoundments for the purpose of preventing erosion of its structural integrity, such as where the top of the structure is flush with the ground surface. Therefore, the adopted regulation provides an operator the opportunity to request approval from the Division that not spillway be required for an impoundment.
Nutrient management plan. The Commission included language in subsection 61.17 regarding nutrient management plans, which are required in the revised Federal regulations. The Commission recognizes that the Federal regulations do not provide that NMPs be approved. Pursuant to 40 CFR 122.42(e)(2)(ii) of the revised Federal regulations, the regulation requires that a copy of a CAFO's nutrient management plan ("NMP") be maintained on-site and be made available to the Division upon request. Since the Federal regulation does not require that NMPs be approved, section 61.17 specifies that NMPs be submitted to the Division only upon request. As a result, the Commission emphasizes that it is incumbent upon the operator to ensure that its NMP complies with regulatory requirements.
The regulation includes a requirement that an impoundment be operated to maintain a minimum of two (2) feet of freeboard for the purposes of protecting structural integrity of an impoundment and minimizing the risk of overflows to surface water caused by factors such as wind. The Commission is aware that some impoundments may be constructed and operated to not have two feet of freeboard while satisfying the stated purposes of the freeboard. Therefore, language was included in the regulation that allows for an operator to justify to the Division that an alternative freeboard level is appropriate. The Commission intends that alternative freeboard levels be granted for only the unusual situations that warrant such an alternative.
Page 7209 and 7210 of the preamble of the revised Federal regulations allows the State to establish technical standards for nutrient management that minimize phosphorus and nitrogen transport to surface water. As a result, the Commission established best management practices, language regarding assessment of phosphorus and nitrogen transport risk to surface water, and methods for determining agronomic rate of application.
The Commission added six best management practices as technical standards:
The Commission added language that requires that phosphorus transport risk assessments be made using a screening tool approved by the Division and that is current, readily available, peer-reviewed, and appropriate for use in Colorado. The Commission is aware that one evaluation tool, the Colorado Phosphorus Index Risk Assessment published by the United States Department of Agriculture - Natural Resources Conservation Service ("P Index"), exists for phosphorus transport risk assessments and that this tool is useful and applicable to Colorado agronomic conditions. This tool rates transport risks as low, medium, high, or very high. Therefore, the Commission added language to section 61.17 that specifies that assessments of phosphorus transport risk be made using a screening tool that results in a risk score of low, medium, high, or very high. The Commission intends that the most current P Index be the preferred assessment tool, unless the Division has approved an equivalent or better tool.
The Commission is aware that a published tool suitable for assessing nitrogen transport risk does not currently exist. Therefore, it finds that use by operators of the six BMPs stated above, in conjunction with the requirements that process wastewater and manure be applied at agronomic rates for nitrogen or phosphorus, and that application sites be evaluated for phosphorus runoff risk, will result in nitrogen and phosphorus transport to surface waters being minimized, and is equivalent to the Federal requirement that application sites be evaluated for nitrogen transport to surface waters. The effectiveness of these practices in adequately controlling phosphorus and other pollutants from reaching surface waters is affirmed by language on Page 7210 of the preamble of the revised Federal regulations.
The Commission is aware that an evaluation of the risk of phosphorus and nitrogen runoff from application sites has not heretofore been a requirement when land applying process wastewater and manure, and that some application sites may have a very high risk of such runoff. Under today's adopted regulations, such sites cannot receive manure or process wastewater even though these materials are continually produced. Therefore, pursuant to page 7210 of the preamble of the revised Federal regulations, the Commission adopted language that provides for a 3 year phased implementation of phosphorus-based nutrient management
Regarding soil sampling protocols, the Commission clarifies that the appropriate soil sampling depth be governed by commonly accepted nutrient budget methodologies, such as Colorado State University Cooperative Extension fertilizer recommendations or a nutrient management plan that meets United States Department of Agriculture - Natural Resources Conservation Service standards. Where a methodology indicates that a certain sampling depth is necessary and a deeper depth is preferred, sampling to the former depth meets the intent of these regulations.
Page 7209 of the revised Federal regulations specifies that phosphorus content in soils be analyzed at least once every five (5) years by Large Dairy, Beef Cattle, Swine, Poultry, and Veal Calf CAFOs. In keeping with this language, the Commission approved language in the currently adopted regulation that requires soil phosphorus analysis every five years. Since soil phosphorus analysis is a required component of phosphorus transport risk assessments, the Commission also approved language requiring phosphorus transport risk assessments being made every five years. The Commission does not believe it is reasonable to require annually an assessment of nitrogen transport risk since soil and agronomic practices do not typically change annually. Therefore, the Commission adopted language that requires transport risk assessments be made every five years, but that assessments be made more frequently where an agronomic management change is made that could reasonably result in an increase in a transport risk assessment score, or where a risk assessment results in a high score.
Regarding nutrient requirements for crops, the regulation presently being adopted provides that application rates must be calculated using a method approved by the Division that is appropriate and that protects surface water quality. The Commission recognizes that fertilizer suggestions published by Cooperative Extension are commonly accepted and are based on extensive research. The Commission also is aware that the joint USDA-EPA Animal Feeding Operation Strategy finalized in 1999 expresses a goal that all animal feeding operations hold a Comprehensive Nutrient Management Plan that meets United States Department of Agriculture - Natural Resources Conservation Service (USDA-NRCS) standards. As a result, the Commission adopted provisions for Large Dairy, Beef Cattle, Swine, Poultry, and Veal Calf CAFOs that nutrient needs for crops can be calculated using the most current published fertilizer suggestions of Cooperative Extension in Colorado or adjacent states, the method provided in a current and completed Comprehensive Nutrient Management Plan, or the most current nutrient management planning guidelines for Colorado as published by the USDA-NRCS. The Commission finds that use of fertilizer suggestions from adjacent states is appropriate since it is aware that Cooperative Extension in Colorado does not have such suggestions for all crops that are grown, or can be grown, in the State. The Commission also recognizes that a situation may exist where calculating nutrient requirements using the above methods may not be possible or appropriate and, therefore, included a provision that provides a CAFO the opportunity to submit to the Division for approval an alternative calculation method.
For Large Dairy, Beef Cattle, Swine, Poultry, and Veal Calf CAFOs, the revised Federal regulation specifies that land application equipment be inspected for leaks. The Commission finds it appropriate for the purpose of ensuring protection of surface waters to add language that specifies that such inspections be made within the six-month period prior to the first application of manure or process wastewater in any given year. In addition, such equipment shall be inspected at least once daily when applying process wastewater.
Recordkeeping: The regulation presently being adopted includes language for recordkeeping that is from the revised Federal regulations [40 CFR 122.42(e)(2) and 40 CFR 412.37]. Regarding weather conditions, the Commission believes that it is potential runoff as the result of precipitation before and after land application that is a concern relative to water quality. Therefore, recording of precipitation (whether it be no precipitation or some measurable amount) is appropriate for indicating weather conditions.
Transfer of manure to third parties: The regulation presently being adopted includes language for where manure or process wastewater is transferred to third parties that is verbatim from the revised Federal regulations [40 CFR 122.42(e)(3)].
Annual reporting: The regulation presently being adopted includes language for annual reporting that is from the revised Federal regulations [40 CFR 122.42(e)(4)].
Operation and maintenance requirements: The Commission found it appropriate to specify certain operation and maintenance requirements that CAFOs are subject to, and that emphasize the requirement for protecting surface waters.
Production area best management practices: The regulation presently being adopted includes best management practices (BMPs) for production areas that must be established and maintained by Large Dairy, Beef Cattle, Swine, Poultry, and Veal Calf CAFOs. The language is equivalent to the revised Federal regulations [40 CFR 412.37], except for addition of language requiring depth markers to also indicate the two-foot freeboard elevation, or other approved freeboard elevation.
One of the BMPs requires that deficiencies found as the result of visual inspections be corrected as soon as possible. 40 CFR 412.37(b)(3) specifies that records must be kept documenting that, where deficiencies were not corrected within 30 days, an explanation must be provided of the factors that prevented immediate action. Therefore, the Commission finds it appropriate to amend the Federal language by stating that corrective action shall be taken by no later than 30 days of a deficiency having been identified, unless factors preventing correction within 30 days have been documented.
One of the BMPs requires visual inspections of water lines. The Commission would expect that such inspections be primarily of water lines that have potential to add process wastewater to any impoundment or that, if leaking, would result in a discharge to surface water. The Commission also would expect that the Division use common sense and sound judgment in determining what is or is not a leak.
One of the BMPs requires visual inspections of impoundments. The Commission finds it appropriate to clarify the scope of such inspections by including the following language from page 7216 of the preamble of the revised Federal regulations. Impoundments must be inspected weekly to ensure structural integrity. For surface and liquid impoundments, the berms must be inspected for leaking, seepage, wind or water erosion, excessive vegetation, unusually low or high liquid levels, reduced freeboard, depth of the manure and process wastewater in the impoundment as indicated by the depth marker, and other signs of structural weakness.
Federal language regarding depth markers was revised to specify that such markers are required only in open surface impoundments, and to specify that the markers must be marked in maximum depth increments of one foot, and that each marker must show the required two-foot freeboard elevation, or other approved freeboard elevation. The Commission is aware that process wastewater is captured, diverted, and retained through the use of a series of impoundments (e.g., a cascading series). Where such a system exists, the Commission finds it reasonable to require depth markers only for those impoundments in the series that are necessary to hold process wastewater resulting from the required storm event.
Closure requirements: The revised Federal regulation specifies in 40 CFR 122.23(h) that a permitted CAFO need not continue to seek permit coverage if the permittee has demonstrated to the satisfaction of the permitting authority that there is no remaining potential for a discharge of manure or process wastewater that was generated while the operation was a CAFO. The regulation presently being adopted includes this language. The Commission is aware that this closure standard can be met in various ways. For example, closure standards for animal feeding operations have been published by the United States Department of Agriculture - Natural Resources Conservation Service. In addition, livestock pens should be cleaned and scraped of manure, where applicable. As a result, the Commission adopted the Federal language and encourages the Division to use common sense in determining whether no remaining potential exists for a discharge of pollutants.
The Commission clarifies that a CAFO is closed where it has ceased operation and for which a permit is not in effect. It also clarifies that is not the intent of this regulation to define a CAFO as closed where it has ceased operation but intends to sell the facility within a reasonable amount of time, or where the facility will restock animals within two years, or within some other reasonable period of time.
PARTIES TO THE RULEMAKING HEARING
5 CCR 1002-61.54