5 Colo. Code Regs. § 1002-81.25
The provisions of sections 25-8-202, 25-8-205 and 25-8-401, C.R.S., provide the specific statutory authority for adoption of the attached regulatory amendments. The Commission also adopted, in compliance with section 24-4-103(4) C.R.S., the following statement of basis and purpose.
BASIS AND PURPOSE
This hearing was held to consider changes as recommended during the triennial informational hearing for this regulation held on August 13, 2012, and during subsequent discussions with stakeholders and parties to the hearing process.
As a result of this rulemaking proceeding, the Commission adopted the following amendments to this regulation.
Typographical Errors, Corrections, and Updates: The Commission corrected typographical errors and inconsistencies in the use of terms found throughout the regulation. The corrections have no effect on the substantive meaning of the regulation.
Introduction: The language was revised by the Commission to add clarity and consistency with other regulations.
Applicability [81.1]: Reference to Regulation No. 66 was added by the Commission to reflect all permitting requirements for Housed Commercial Swine Feeding Operations.
Definitions [81.3]:
The definition of "25-year, 24-hour" storm was moved to the beginning of the subsection to maintain proper alphabetical order and renumbered accordingly. In addition, corresponding citations were updated to reflect this change.
The definition of "Division" was revised to reflect that under the organic statute and Water Quality Control Act, the Water Quality Control Division is a part of the Division of Administration of the Department of Public Health and Environment in accordance with § § 25-1-109 and 25-8-103(4), C.R.S. In addition, the definition was also amended to reference the Environmental Agriculture Program as the implementing authority of this regulation.
The definitions of "Freeboard" and "Land Application Site" were revised to add clarity and consistency with the corresponding definitions found in Regulation No. 61.
The Commission modified the definition of "Open-lot Wastewater" to include precipitation that comes into contact with feed. Previously all water that came into contact with feed, including precipitation, was considered process-generated wastewater, which requires more stringent management practices. Stakeholders to this rulemaking argued that this was an unnecessary burden on small and medium AFOs that typically do not have the ability to implement the measures required to manage process-generated wastewater. In addition, the Division was unable to find any available documentation that indicates the wastewater resulting from precipitation coming into contact with feed is not any more detrimental to the environment than sources already considered open-lot wastewater. Therefore, the Commission feels it is appropriate to include feed in the definition of open-lot wastewater and require animal feeding operations to manage this source of wastewater accordingly. As a result, this change reduces the regulatory burden on small and medium AFO operations, while maintaining the regulatory requirements for operations defined as large CAFOs.
The definition of "Process-generated Wastewater" was reformatted to provide clarity. In addition, water used for cooling or cleaning feed mills (also known as blow-down water) was removed from the definition. Blow-down water was previously considered a non-intermittent, process-generated wastewater, which required any related conveyance to meet a liner seepage rate standard of 1x10 -6 cm/sec. Stakeholders to the rulemaking argued that feed mill blown-down water is basically clean water that poses little risk to the environment and contended that the conveyance liner standard was therefore onerous and unnecessary. The Division evaluated available information regarding feed mill blow-down water and determined that relative small quantities are produced from normal feed mill operations and the potential risk to groundwater is minimal. Therefore, the Commission finds it appropriate to remove blow-down water from the definition of process-generated wastewater. However, the Commission does consider blow-down water to still be a potential source of pollutants and therefore, should be managed in accordance with the regulatory requirements associated with open-lot wastewater.
The definition of "Tank Overflow" was removed from this subsection and incorporated into the definitions of "Process-generated Wastewater" and "Open-lot Wastewater". Consolidation of this term also eliminates confusion inherent with the definition of "Tank".
Requirements - Non-Permitted Large CAFOs [81.5]:
The Commission moved subsections 81.7 , 81.7 and 81.7 , to subsection 81.5 , 81.5 , and 81.5 (4), respectively, to consolidate the general requirements for non-permitted large CAFOs. The previous contents of subsection 81.5, which addressed the requirement for non-permitted large CAFOs to register with the Division, are now incorporated into the general requirements for large non-permitted CAFOs in subsection 81.5(2).
The Commission revised the language in the new subsection 81.5 , previously 81.7(3), to require CAFO operators to notify the department's 24-hour Colorado Release and Incident Reporting Line in the event of a discharge or reportable incident. Subsequently the language in subsection 81.5 was modified to reflect this change.
Facility Management Plan - Non-Permitted Large CAFOs [81.6]:
The Commission found it appropriate to delete subsection 81.6 , as it contained redundant requirements currently stated in 81.6(1). Subsequent subsections of 81.6(1) were renumbered as a result of this deletion. The compliance date of May 30, 2011 remains in the subsection to document the date in which all applicable facilities were to be in compliance with these regulatory provisions.
Section 81.6 was reformatted by the Commission to add greater clarification.
The term "liquid manure" was replaced with "manure" in subsection 81.6 because the previous term is not defined in this regulation. In addition, the Commission found it appropriate to incorporate language from 61.17(8)(b)(iii)(A), which allows a facility to request an alternative freeboard level for wastewater impoundments. Inclusion of this provision provides consistency across both regulations and increased flexibility for producers.
Portions of the language in subsection 81.6 , were removed to provide clarity and better understanding of the regulatory requirement for CAFOs implementing filter strips. The Commission determined that the deleted language only restated the surface water protection elements presented in subsections 81.6 , and 81.6(1)(a)(ii). The section was also reformatted to provide greater clarification. The ability for the Division to approve alternative wastewater management methods was moved from 81.6(1)(a)(iii), to 81.6(1)(a)(v), as a result of the reformatting.
The Commission revised the stormwater diversion sizing requirement in subsection 81.6 , to be consistent with the same requirement found in Regulation No. 61, and to not be more stringent than federal requirements.
The Commission found it appropriate to delete subsection 81.6 , as it contained redundant requirements currently stated in 81.6(2). Subsequent subsections of 81.6(2), were renumbered as a result of this deletion. The compliance date of February 27, 2009 remains in the subsection to document the date in which all applicable facilities were to be in compliance with these regulatory provisions.
Subsection 81.6 was added by the Commission to the manure, wastewater, and soil sampling and analysis requirements in subsection 81.6 . A requirement to annually test land application sites for soil nitrate-nitrogen was added to be consistent with similar requirements found in Regulation No. 61 and to correspond with Colorado State University Extension and USDA, NRCS guidelines. Annual soil testing will also provide greater protection of groundwater. The remainder of the subsection was renumbered accordingly.
The Commission found it appropriate to change Cooperative Extension in Colorado to Colorado State University Extension in subsection 81.6 to accurately represent the referenced agency.
Language in subsection 81.6 , was revised by the Commission to be consistent with similar requirements of Regulation No. 61. In addition, reference to the Comprehensive Nutrient Management Plan was removed as it is redundant with the nutrient management planning guidelines already referred to in the subsection.
Subsection 81.6 was revised by the Commission to clarify that scoring off-site phosphorus transport risk as 'low', 'medium', 'high' or 'very high' is not a function of the screening tool but is a function of the Colorado Phosphorus Index Risk Assessment or other Division-approved method.
The Commission revised subsection 81.6 to be consistent with the most current USDA, NRCS Colorado Phosphorus Index Risk Assessment regarding the application of nutrients to land application sites that are assessed a off-site phosphorus transport risk factor of 'high'.
The Commission revised subsection 81.6 to be consistent with the most current USDA, NRCS Colorado Phosphorus Risk Assessment regarding the application of nutrients to land application sites that are assessed a off-site phosphorus transport risk factor of 'very high'.
The Commission found it appropriate to move the language in subsection 81.6 , to the new subsection 81.6 , in order to consolidate the CAFO recording keeping requirements.
The Commission revised subsection 81.6 , to be consistent with the mortality management requirements of Regulation No. 61.
The compliance date of February 27, 2009 was retained in subsection 81.6 by the Commission to document the date in which all applicable facilities were to be in compliance with these regulatory provisions.
Language in subsection 81.6 , was revised by the Commission to include all impoundment related groundwater protection records. Applicable citations were updated accordingly.
Language in subsection 81.6 , was revised by the Commission to include all Standard Operating Procedure (SOP) records. Applicable citations were updated accordingly.
The Commission felt it appropriate to combine subsections 81.6 , and 81.7(2), into a new subsection 81.6 , in order to consolidate the records non-permitted large CAFOs are required to maintain in their Facility Management Plan.
Additional Requirements - Non-Permitted CAFOs [81.7]: The Commission moved section 81.7 to section 81.5 to consolidate the general requirements for non-permitted large CAFOs.
Ground Water Protection Requirements - Concentrated Animal Feeding Operations (Permitted and Non-Permitted [81.7] (previously section 81.8):
The Commission revised the language in subsection 81.7 , to clearly indicate that the liner seepage rate standard of 7.35 x 10 -6 cm/sec is appropriate only for earthen lined impoundments that collect open-lot wastewater.
Previous subsection 81.8 , required that a liner certification for an impoundment built prior to June 30, 2004, be available by no later than April 13, 2006. The Commission felt it appropriate to delete this subsection since the compliance date has passed. Evidence of an impoundment liner certification must be made available upon request, as required by 81.7(2)(b)(i).
Previous subsection 81.8 , required that the liner certification for an impoundment built after June 30, 2004, and before February 7, 2009, be available prior to wastewater entering the impoundment. The Commission felt it appropriate to delete this subsection since the compliance dates have passed. Evidence of an impoundment liner certification must be made available upon request, as required by 81.7(2)(b)(i).
Language previously found in subsection 81.8 , that addressed the liner requirements for impoundments constructed after February 27, 2009, was revised by the Commission and incorporated into subsection 81.7(2)(b).
The Commission deleted the past compliance date of December 31, 2004 from subsections 81.8 , and 81.8(3)(c)(i). The remaining language of 81.8(3)(c)(i), which requires an SOP to be submitted to the Division within 120 days of animals being placed on the production area, was revised and renumbered as subsection 81.7(3)(c).
The Commission found it appropriate to revise the language in subsection 81.7 , to clarify the requirements for cleaning, inspecting, and repairing concrete-lined impoundments. The stakeholder comment record shows that stakeholders were often times confused by the regulation's use of the word "certify" when addressing determinations the operator was expected to make regarding liner integrity. Stakeholders felt the language implied a professional engineer must certify the integrity of the concrete lined structures every five years. By revising the language and removing the term "certify", the Commission feels the regulation now appropriately reflects the original intent of this subsection as discussed in the Statement of Basis and Purpose for amendments to this regulation during the April, 2008 rulemaking.
Stakeholders requested that the wastewater conveyance liner standard, particularly for open-lot and intermittent process-generated wastewater conveyances in subsections 81.8 , and 81.8(5)(b), be reviewed because these regulatory requirements were perceived as onerous, with minimal environmental protection benefit. In discussions with stakeholders, the Division was informed that the compaction of soil required by the standard is often comparable to in-situ soil conditions and adds little in minimizing seepage from conveyances. Furthermore, wastewater is conveyed in these structures for a short period of time, with minimal depth of flow, so little head pressure is present resulting in seepage. During the evaluation, the Commission also determined that the standard, while addressing gravel content, did not address other aspects of soil composition, such as porosity, that can also greatly influence the potential of seepage from a conveyance structure. In addition, the regulations of several surrounding states were reviewed in the course of this evaluation and the Commission found that none contain a similar regulatory requirement.
Based on the information presented above, the Commission found it appropriate to remove the seepage liner standard for minimizing seepage from open-lot and intermittent process-generated wastewater conveyances from subsection 81.7 . In addition, the Commission clarified that a conveyance structure shall be designed and maintained to convey, but not store, any manure or wastewater. Given that non-intermittent, process-generated wastewater conveyances are in a constant wetted condition where seepage can be greater, the requirement for these types of conveyance structures to be constructed and maintained to a minimum seepage rate of 1 x 10 -6 cm/sec was retained in subsection 81.7 . Language in subsection 81.7 , was also revised to replace the term "non-intermittently" with the term "continuously" to better clarify when the liner requirement is applicable.
Subsection 81.7 , required that new or expanded impoundments located where seasonally high ground water level is located within four feet of the bottom of the impoundment liner, be constructed and designed to prevent ground water from contacting the impoundment's liner. Through discussions with stakeholders and review of NRCS impoundment design guidelines, the Division learned that groundwater contacting the impoundment's liner may be acceptable provided that the impoundment was constructed and maintained to account for hydrostatic pressure adversely affecting the integrity of the liner. Therefore, the Commission revised the language of the subsection to reflect this finding.
The Commission deleted the acronyms IP and RP in section 81.7 , previously section 81.8 , and spelled out "investigation plan" and "remediation plan" to provide better clarification of the plans.
Animal Feeding Operations - Best Management Practices [81.8] (previously section 81.9):
Previous language in subsection 81.8 (a and b), was revised by the Commission and combined into subsection 81.8 , to clarify the requirement that all animal feeding operations must manage process-generated wastewater. During discussions with stakeholders, it was conveyed that the previous regulatory language was confusing and it was unclear if all animal feeding operations were subject to the requirement or only those that met the definition of a Medium AFO. Impoundment sizing requirements for Medium AFOs were consolidated in subsections 81.8 (i and ii). The Commission felt it appropriate to reformat section 81.8 , to better organize regulatory requirements and to add clarity to the regulation.
Language was added to subsection 81.8 by the Commission, to clarify the record keeping requirements for Medium AFOs that land apply wastewater.
The Commission revised language in subsection 81.8 to clarify that wastewater retention structures or collection sites be located in areas there is minimal risk of stormwater run-off or seasonally high stream flow carrying waste into waters of the state. The Commission found it appropriate to add a similar requirement in subsection 81.8 , that addresses appropriate locations for manure stockpiles to be protected from stormwater runoff and seasonally high stream flow.
The Commission revised subsection 81.8 , to simplify the use and implementation of structures used to remove settleable solids from wastewater as a management practice to minimize manure transport to surface water. The spelling of "settling" was also corrected.
Language in subsection 81.8 , was revised by the Commission to clarify that the requirement to land apply manure at an agronomic rate applies to all animal feeding operations.
The Commission revised the language in subsection 81.8 to clarify the additional record keeping requirements for Medium AFOs that land apply manure.
Past compliance dates were removed from subsection 81.8 , and the language was revised by the Commission to state that Medium AFOs must have and make available, liner certifications for impoundments prior to wastewater entering the impoundment.
Subsection 81.8 was reformatted by the Commission to add greater clarity. Language previously found in subsection 81.8 was moved to subsection 81.8 and the remainder of the subsection was renumbered accordingly.
PARTIES TO THE RULEMAKING HEARING
5 CCR 1002-81.25