February 18, 1999
The comments described below are from written comments and oral testimony received during the public comment period and during four public hearings. In some cases the comment is a direct quote of the commentators and in some cases the comments are paraphrased. Commentators with similar comments on the same topic were included under that comment. In other cases, the comments of a number of persons were grouped together because they were related. Only those comments related to the draft strategy and related permit documents were answered in detail. Where possible DEP directed the commentator to the proper agency or entity with authority to address issues for which DEP has no authority.
GENERAL COMMENTS ON THE STRATEGY
Comment: As members of the Pennsylvania General Assembly, we have followed with great interest the development of the above referenced strategy. We appreciate the efforts of the department to keep us informed on this matter as it has progressed, and to allow us to participate in work group meetings and numerous other discussions on this complex and very important issue. The open dialogue and willingness of the department personnel to enter into serious discussions of the agricultural and legislative concerns has been very beneficial in bringing us to the point where we have a printed draft strategy on which to now offer formal comment.
At the outset let us state that we readily acknowledge the responsibility that farmers in Pennsylvania have to properly manage nutrients produced on all livestock operations in the Commonwealth and, in the case of this proposed strategy, on operations which fall into the federal definition of a Concentrated Animal Feeding Operation (CAFO). This is precisely why the legislature, in 1993, passed Act 6 and was active in the promulgation of the regulations. effective for a year, to implement this progressive statute.
With this in mind, we believe that any non-statutory proposal such as this, which adds additional regulatory control over certain of the state's livestock operations, based solely on their size and not on their potential negative environmental impact, raises serious concern in our minds. Such a proposal needs to be initially critically evaluated on the basis of certain general criteria:
1. All regulations must have a solid and unequivocal statutory base.
The proposed strategy relies on the federal Clean Water Act as its statutory authority and certainly the U.S. Environmental Protection Agency has taken the position that this act gives them the authority to require NPDES permits on CAFOs by simply declaring them to be "point sources". We question, however, the validity of this interpretation of the Clean Water Act and request that the department provide us with their own legal counsel's interpretation and justification of the federal position.
This overall consideration notwithstanding, we have broader concerns that attempts will be made to expand the strategy even further beyond the bounds of existing federal law and regulation. We recommend that the department keep this concern clearly in mind as it responds to all comments received on this proposal from all sources, but most especially in terms of comments which have been received, or will be forthcoming, from officials at the EPA.
2. All regulations impacting agriculture must allow Pennsylvania producers to compete on an equal basis with agricultural producers in other states.
When the proposed Pennsylvania strategy is reviewed in the context of the
recently released Draft USDA-EPA Unified National Strategy for Animal Feeding Operations, it is clear to us that it goes well beyond the proposed federal strategy with the immediate imposition of a complex and potentially very costly permitting program. In addition, the unified strategy appears to focus only on the existence of an NPDES-CAFO permit. It is proposed that Pennsylvania producers will, in addition, be required to obtain an overlapping PA Water Quality Part II Permit.
We request that the department thoroughly review the proposed Pennsylvania Strategy and justify it in terms of both its consistency with the proposed unified federal strategy and as it aligns itself with Governor Ridge's Executive Order 1996-I, Item l{e). which states that "where federal regulations exist, Pennsylvania's regulations shall not exceed federal standards..." and Item 1(i), which states that "regulations shall not hamper Pennsylvania's ability to compete effectively with other states."
3. All regulations impacting agriculture must be structured in such a manner to
encourage voluntary compliance, allow for flexibility and innovation and reward
those who employ practices or procedures which go beyond minimum requirements.
A review of this proposal indicates that, for the most part, it establishes rigid but attainable standards for compliance. It is our assumption that, as knowledge and technology progress, the department will be willing to work with the agricultural industry in making necessary adjustments to permit conditions or best management practices mandated by the permit requirements.
We recommend, however, that from the outset of this new program, the department institute a mechanism to reward permittees who voluntarily implement practices and procedures which go beyond minimum regulatory requirements.
4. All regulations imposed on agricultural operations should be carefully evaluated in terms of costs and benefits.
It is obvious that the cost of compliance with these proposed regulations is significant to the operator. At least one informed estimate is that they will add an additional $50-80,000 to the start- up cost of a facility requiring the permits. In addition, there will inevitably be additional expense to the general public as these Costs are passed along. Has there been any evaluation made of the potential financial benefits to the operator or to the public? Is there a verifiable environmental risk, not currently addressed by statute or regulation, that justifies this additional burden?
In addition to these general observations, there are numerous outstanding issues with the proposal and its supporting documents which merit specific comment. Many of these items have been addressed in comments we are aware of that you have received from others such as your own Agricultural Advisory Board, the Pennsylvania Farm Bureau, PennAg Industries Association, and Brubaker Agronomic Consultant Service. We concur on the points raised in the written comments from these groups and will not be redundant by repeating them here. We do, however by this reference, incorporate them into our comments and ask that you give each serious consideration.
Nonetheless, there are several key points embodied in the proposal, or questions raised by what is proposed, which we believe merit specific comment, even at the risk of repetition:
a. We commend the department for building upon the basic Act 6 Nutrient Management Plan requirements as the first step in this proposed strategy. The legislature labored over several sessions on this law and an equal effort went into the regulations. It is sound, based on fact and good science and defensible from both the environmental protection and practical application standpoints.
We recommend that, as this process continues into a final strategy, you remain steadfast in using Pennsylvania's Act 6 Animal Equivalent Unit (AEU) measure of determining the size of an operation as opposed to the less precise EPA Animal Unit (AU) methodology. Pennsylvania farmers understand the AEU concept, it makes sense to them, and it accurately reflects the actual weight of animals present on an operation.
To deviate from it simply confuses the real issue for the sake of simply matching numbers in a federal regulation.
Likewise, we wholeheartedly concur with your proposal to use the Act 6 standards for land application of manure based upon nitrogen-limiting nutrient management plans. To use any other nutrient, such as phosphorous, as the limiting factor would be without scientific basis and be nothing more than the creation of an expedient, politically popular, yet short-sighted regulation.
b. It would be useful for the department to provide definitions to be used consistently throughout all documents comprising the proposal for terms such as "owner," "operator," "responsible party," and other similar terms, and to clarify in each usage whether it means, for instance, the owner of the animals or of the facility. This. along with a flow chart of necessary steps or a timeline, as has been suggested, would add greatly to the ease of understanding the materials.
c. Related to No.2, the autonomy of each individual facility from a permitting standpoint, irrespective of ownership of the facility or the animals, must be maintained in the strategy. The strategy presently implies, and it must be maintained, that individual permit applications are considered solely on the basis of that facility meeting the established criteria. We request that the department verify that this is the case, and that approval of permits is not contingent in any way on the presence of multiple operations, regardless of ownership, in a given locale, stream designation or watershed.
d. It would be useful if the department would succinctly state, perhaps in the overview of the strategy, what specifically is permitted by the proposed NPDES-CAFO Permit and by the PA Water Quality Part TI Permit. In many ways they appear to be redundant, especially when the components of each permit application are considered.
The terms of the NPDES Permit also raise some related questions. Is it simply for the manure storage facility? Or is it for the entire manure management operation? Does it include the land application process? If, as has been stated, it is for manure management at the facility, at what point does the manure physically become no longer subject to the permit conditions if it is being land applied on the same farm? Or, what if it is hauled to an adjoining farm?
e. Care must be taken to maintain this as a strategy to address solely water quality issues. By and large the department, both in the written proposed strategy and in public discussion, has been consistent on this position. There are, however, several references in the proposal which go beyond legitimate water quality concerns and need to be corrected:
The document Application For Water Quality Part II Permit, on page 1 under the heading "What Documents Are Needed To Obtain The Part II Permit?" states at one point: "Additional setbacks and siting determinations may be required for some locations." It should be clarified that this applies only to water quality considerations and does not imply nuisance, aesthetic, odor or other such inappropriate concerns. Any similar references elsewhere in the documents comprising the complete package need to be clarified or deleted.
The same document, and same page and heading, as part of 3(d), contains the phrase, and proof of the availability of funds to adequately construct, operate and maintain the facilities." This is clearly not a valid water quality concern and should be deleted.
Both the NPDFS and Water Quality Part II Permit applications reference and require a Preparedness, Prevention and Contingency (PPC) Plan "in addition to the Contingency Plan for emergency planning and response to manure spills and related discharges." Since such a plan specifies planning for the accidental release of all chemicals, including pesticides, fertilizers or petroleum products, none of which are unique to CAFOs, and the Contingency plan required by the Nutrient Management Act covers manure, which is the focus of this overall strategy, we must ask the department to explain and justify the PPC requirement.
f. What assurances does an applicant have that a permit application can move forward in a timely manner, both from the standpoint of action by the department and in light of the extensive requirements for public notice and public comment? Is there a risk that the public meetings and comment periods could be used to unnecessarily delay the process? Has the department considered any alternatives which would both accommodate the public concern and "need to know" and an applicant's need for timely action?
Finally, we have two on-going general concerns involving the role of EPA in this proposed strategy:
First, since it is apparent to us that EPA is forcing this issue at this point, and that we are being asked to enforce a federal regulation, we assume that the federal government is, or will be, providing appropriate funding. Is this the case, and has there been any estimate made regarding the amount of money necessary to actually implement this strategy, both short- and long-term? In the event there is no federal funding available, should Pennsylvania respectfully decline to implement this federal program? What are the potential consequences, fiscal or otherwise, of such an action?
And second, how will this regulatory process proceed from this point? It has been our impression that the EPA must, in some way, "sign-off" on this Pennsylvania strategy. What happens if the department, in cooperation with the legislature and all stakeholders, reaches a final version that EPA either rejects or refuses to act upon? Can the department proceed without EPA
approval? Does it intend to? Is there a formal process in this regard? What, if any, are the consequences of any such action or inaction?
Answers to these questions are crucial so that all parties may move forward and the department may take appropriate action on pending permits in a timely manner in order that the affected segment of our agricultural industry remain competitive and viable. (102)
g. We are hesitant to support another layer of state regulation which is not necessary to solve the problem and which is not required by federal law. More specifically, The Pennsylvania Poultry and Pork Coalition believes that the Proposed Strategy goes well beyond the boundaries of the federal Clean Water Act, well beyond the federal CAFO regulation and well beyond the recent USDA/'USEPA Draft Unified National Strategy for Animal Feeding Operations. To be sure, USEPA and PADEP have regulated and continue to regulate CAFOs in Pennsylvania under the federal CAFO regulation. In addition, Pennsylvania has a progressive state law with a whole new set of regulations that apply to CAFOs and other animal operations - the Nutrient Management Act. We simply do not understand why PADEP is moving beyond these two existing layers of regulation in an attempt to add a third layer which is not required by federal law. As but one example, the proposed strategy seeks to swiftly impose upon Pennsylvania farmers a complicated and costly permitting program similar to the one in place for industrial and municipal wastewater dischargers, irrespective of whether the animal operation is actually a "point source" and irrespective of whether the operation actually has a "discharge" to surface water. This approach is not authorized by the federal Clean Water Act, is not required by EPA's CAFO regulation, and is not consistent with the USDA/USEPA Unified National Strategy. (94)
Response: The Department was concerned about many of the same issues raised in these comments. In order to obtain input on these issues, as well as others, the Department created a CAFO workgroup to assist in formulating a workable strategy that is both protective of the environment and equitable to the agricultural community. The workgroup was made up of representatives of the Farm Bureau, State Conservation Commission, County Conservation District, Chesapeake Bay Foundation, Department of Agriculture, Citizens Advisory Committee, feedmill industry, CAFO owner/operator, agricultural consuting firm, resident of area where a CAFO is being proposed, Natural Resouirce Conservation Service and House and Senate Agricultural Affairs committee staff. Numerous meetings were held over the last year to resolve issues and develop concensus. This workgroup has done an excellent job of assisting the Department in the development of the final CAFO documents. The following responses to the above comments use the numbering in the comment:
1. The Department believes the strategy is supported by federal and state law. CAFOs are specifically identified as point sources under Section 502(14) of the federal Clean Water Act. That section defines a "point source" as "any discernible, confined and discrete conveyance, including but not limited to any . . . concentrated animal feeding operation . . . ." (33 U.S.C.A. §1362(a)(14). The federal regulations (40 CFR 122.23) and the EPA "Guide Manual on NPDES Regulations for Concentrated Animal Feeding Operations" outline requirements applicable to CAFOs. The threshold for determining whether an animal feeding operation is a CAFO for NPDES purposes is whether the operation has a potential to discharge, not whether there is an actual discharge. Although the USDA/EPA Unified National Strategy is a proposal which is undergoing public review and comment and is not expected to be finalized until early 1999, the Department’s Strategy is consistent with the USDA/EPA proposal because it is designed to focus compliance and enforcement efforts on large CAFO operations within the Commonwealth. In developing the CAFO strategy and related documents, the Department is meeting the requirements of the federal Clean Water Act and regulations. The Department is regulating large (>1000 AEU) operations that may not require an NPDES permit under the federal Clean Water Act. However, during the stakeholder process, representatives for these sources agreed to bring these large operations under the strategy. In addition, DEP has constructed its permitting process to incorporate the provisions of the Nutrient Management Act and regulations so that consistency is maintained and unnecessary burdens are not placed on the agricultural community.
2. Many of the comments received by DEP when the draft CAFO strategy was being developed indicated a general public concern about the integrity of manure storage facilities at CAFOs. The breach of such a facility in North Carolina brought national attention to this concern. The use of a Water Quality Management Part II permit for manure storage facilities creates a vehicle for DEP oversight of these critical parts of CAFO facilities. Authorization to require a Water Quality Management Part II permit for all wastewater facilities in Pennsylvania is contained in the Pennsylvania Clean Streams Law. DEP determined that the permitting of manure storage facilities at CAFOs was necessary to protect the waters of the Commonwealth. In making this decision, DEP evaluated the additional burden that may be placed on the agricultural community and how best to require a permit without hampering Pennsylvania’s ability to compete effectively with other states. Given the fact that the Pennsylvania Technical Guide already contains standards for the construction of manure storage facilities and DEP has established this guide as the basis for compliance with the Water Quality Management Part II CAFO permit, DEP feels the requirement that this permit be obtained for new facilities exceeding 1000 animal equivalent units will not be unduly burdensome on the agricultural community. DEP has been working with the federal Environmental Protection Agency to assure that our program is consistent with the current and projected thinking of EPA.
3. DEP will work with the agricultural community on any initiatives to implement new or innovative approaches to manure management. DEP has also committed to the consideration of incentives where such use will improve environmental protection.
4. A cost benefit analysis has not been completed regarding the CAFO Strategy or the permit documents. DEP is unaware of any cost figures calculated regarding the cost of compliance with the strategy or permitting process but the estimate given in the comments seems high given that the strategy uses many existing state requirements to meet the Clean Water Act NPDES permit requirements. DEP must implement an NPDES permitting process to comply with the federal Clean Water Act. Compliance with the Water Quality Management Part II permit requirements, for the most part, are already being met by those CAFOs who comply with the Pennsylvania Technical Guide and Act 6 regulations. Smaller CAFOs will be permitted under a General NPDES permit by complying with the Nutrient Management Act and existing DEP regulations. In the CAFO strategy as well as the permitting documents, DEP attempted to reduce additional financial burdens on CAFO permittees to the maximum extent possible while still protecting the environment.
(a) DEP will continue to use the term "Animal Equivalent Unit (AEU)" in the strategy and permit documents by translating the federal "Animal Unit" term into the state definition of AEU.
DEP will continue to support the use of Nitrogen in accordance with the Nutrient Management Act. There is currently a national debate on the use of phosphorous as a limiting factor in nutrient management. The product of this debate will be closely evaluated by DEP in coordination with the Agricultural Advisory Committee and Nutrient Management Subcommittee before any change is proposed in the future.
(b) Initially, the Department will issue a permit to only one entity. That entity is the operator of the facility. The Department will continue to evaluate whether it is necessary to have both owners and operators as co-permittees. Whoever is the permittee will be responsible for compliance with the permit and any related regulations or laws. The language in the documents has been edited to refer to the permittee, applicant, owner or operator consistently throughout the document.
(c) DEP will consider each application for a CAFO independent of other CAFO permits in the watershed or geographical area. However, the Department is required to make sure that the permittee is complying with all environmental laws.
(d) A more detailed explanation of the purpose of the two different permits is provided in the strategy. In addition, DEP has identified redundant requirements in the permit documents and eliminated such requirements. The Water Quality Management Part II Permit is solely for the siting, design and construction of manure storage facilities. The NPDES permit is associated with the management of manure at the CAFO. The permit requirements are based on compliance with a Nutrient Management Plan developed in accordance with the Nutrient Management Act for all land owned or leased by the CAFO permittee for application of manure.
Manure transported from the CAFO to land owned by others is managed under the NPDES permitting process through the use of agreements between the CAFO permittee and importers. Application of manure on the receiving farm must be according to that farmer’s Nutrient Management Plan or a Nutrient Balance Sheet. Responsibility for exported manure is with the importer and, once exported, is not the responsibility of the NPDES permittee.
(e) The minimum setbacks for manure storage facilities specified in 25 Pa. Code
§ 83.351(a)(1)(iv) for CAFOs that were producing livestock on or before October 1, 1997 and in Section 83.351(a)(1)(v) for CAFOs that come into existence after October 1, 1997. The only additional setbacks included in the permits are that a manure storage facility must not be placed in a wetland or within the 100-year floodplain. These additional setbacks are water quality based.
The requirement for proof of availability of funds has been deleted from the document.
The Department’s authority for requiring Preparedness, Prevention and Contingency Plans (PPC) is in Section 402 of the Pennsylvania Clean Streams Law (35 P.S. §691.402). This section authorizes the Department to take action to prevent potential pollution. The PPC Plan is the mechanism used to establish measures that will be used to properly manage polluting substances used at a permitted facility. In the case of CAFOs with more than 1000 AEUs, the potential for manure spills is addressed in the Nutrient Management Plan. Other polluting substances such as pesticides, manure additives for odor control/emulsification, emergency generator fuels and other materials which, because of their use in and around the manure storage facility or collection pit under the animal units must be included in the PPC plan. The use of other chemicals, such as fertilizers, herbicides and chemicals generally used around the farm and in the fields are managed under other laws and regulations and do not have to be included in the PPC plan. Only the pertinent parts of DEP’s PPC guidance document should be used to create the CAFO PPC plan.
(f) DEP will include the processing of CAFO individual permits (for farming operations with 1000 AEUs) into its "money-back guarantee’ program with a maximum review period of 90 days of the receipt of a complete application. The notification of receipt of a permit application will initiate the public comment period and opportunity for requests for a public hearing. Where appropriate, hearings are held during the public comment period or shortly thereafter. Only comments and testimony pertinent to the permit requirements will be considered by DEP during the review of the permit. DEP does not anticipate extensive delays in making a permit decision because of the public participation provisions of the individual permits for those farming operations with greater than 1000 AEUs .
DEP has accepted delegation of the NPDES program from EPA. Administration of all aspects of the NPDES program is a part of this delegation agreement. The requirement for CAFOs to be permitted under an NPDES permit is a statutory requirement of the NPDES program. DEP is, therefore, obligated to comply with this statute by developing and implementing an effective CAFO NPDES permitting program. Declining to administer a part of the NPDES responsibilities would place DEP in non-compliance with the delegation agreement and would potentially result in the loss of federal funding for and delegation of the rest of our NPDES permitting program. This would result in EPA becoming the NPDES permitting agency in Pennsylvania.
DEP has been working with EPA on each draft of the CAFO strategy and permit documents. The major issues have all been resolved. DEP is confident that the proposed approach will be accepted by EPA.
g. The Department does not agree with the commentator’s assessment of the strategy as outlined above. Rather than creating a third layer of regulations, the strategy is an attempt to consolidate regulatory requirements applicable to concentrated animal operations into one comprehensive document. The Department believes the strategy is consistent with federal and state law. With respect to the comments regarding classification of CAFOs as point sources, CAFOs are specifically identified as point sources under Section 502(14) of the federal Clean Water Act. That section defines a "point source" as "any discernible, confined and discrete conveyance, including but not limited to any . . . concentrated animal feeding operation . . . " (33 U.S.C.A. §1362(a)(14). The federal regulations (40 CFR 122.23) and the EPA "Guide Manual on NPDES Regulations for Concentrated Animal Feeding Operations" outline requirements applicable to CAFOs. The threshold for determining whether an animal feeding operation is a CAFO for NPDES purposes is whether the operation has a potential to discharge, not whether there is an actual discharge. Although the USDA/EPA Unified National Strategy is a proposal which is undergoing public review and comment and is not expected to be finalized until early 1999, the Department’s Strategy is consistent with the USDA/EPA proposal because it is designed to focus compliance and enforcement efforts on large CAFO operations within the Commonwealth. In addition, the Department’s strategy, as rewritten, is consistent with the Pennsylvania Nutrient Management Act and is based on that act’s determination that potential environmental problems may occur at specific animal densities. DEP has used this same threshold for the determination of potential to discharge.
Comment: Why have DEP and EPA waited 20 years to enact the 1972 federal Clean Water Act regulations on CAFOs since the federal and state political climate has been to reduce the number of regulations? We are continuing to increase the number of regulations. DEP says the regulations do not include anything new, but the strategy says "In addition, some elements of the proposal will require new regulations to create a Water Quality Management Part II permit and individual NPDES permit requirements specifically applicable to CAFOs." If there is nothing new in the proposed strategy, why the need for regulations? There currently is no general permit for CAFOs between 301 to 1000 AEUs. Therefore, how do operations of this size begin to comply with these regulations? How long before they are completed? If the proposed regulations are initiated for 301-1,000 AEUs they would only be more regulations and expense imposed on farm families and not really result in an improved level of water quality. The current procedures are more than adequate to protect water quality and eliminate any potential spills. Every attempt should be made to make the proposed strategy consistent with the Nutrient Management Act. (9, 10, 68, 95)
To the contrary, other commentators pointed out that other states and countries have had problems with CAFOs (outbreaks of Pfysteria, dead zone in the Gulf of Mexico, manure spills in North Carolina, Iowa, Minnesota and Missouri, doubling of microbe problems in coastal and estuarian waters from 1972 figures). They question why Pennsylvania chose to ignore the problems that occurred elsewhere, citing environmental and health impacts and moratoriums in other areas. (18, 19, 66)
Response: When the Clean Water Act was enacted in 1972, the primary focus of attention in Pennsylvania was on the numerous sewage and industrial point sources that were not achieving the treatment levels necessary to protect water quality and public health. While concentrated argicultural activity was of relatively significant concern in some mid-western states, its relative impact in Pennsylvania was small compared to other point source problems. Subsequently, DEP, along with the Pennsylvania Department of Agriculture, established several manuals of practice for agriculture and promulgated regulations in Title 25, Chapter 101 that regulated agricultural activities including the storage and land application of manure. While these were not NPDES regulations, EPA was satisfied that these regulations adequately addressed concentrated agricultural operations of the moderate size existing in the state at that time. DEP no longer has the discretion to oversee these operations solely through the state based permitting regulations. This issue has taken on a national profile and it is important that DEP fulfill its obligations under its NPDES delegation agreement with EPA to carry out an NPDES permitting process which complies with the federal regulations.
DEP has proposed amendments to Chapters 92 and 101 to make these regulations consistent with the Nutrient Management Regulations and the federal CAFO regulations and provide requirements for Water Quality Management Part II permits. The proposed rulemaking will be published as an advanced notice of final rulemaking to provide the public with an opportunity to comment on the portions of the regulations applicable to CAFOs. DEP plans to begin implementation of the Water Quality Management Part II and NPDES permit components using the existing regulations. The final strategy requires a General NPDES for all CAFOs 301-1000 AEUs except those in Special Protection watersheds where an individual NPDES permit is required. General permits involve only current requirements and are designed to not impose additional expense on farmers. In the spirit of this goal, the normal $500 permit fee is being waived for these smaller operations and a simplified application for an individual NPDES permit has been developed for existing CAFOs of less than 1001 AEUs. These permits will be phased in over a three-year period. Permits for large operations (>1000 AEUs) will be required prior to beginning operation for new CAFOs and within 1 year for existing CAFOs.
DEP has acted in good faith to regulate CAFOs fairly and to provide a reasonable transition period for compliance. DEP has involved all concerned parties with a voice in the development of this program.
Comment: Numerous commentators stated that a moratorium should be placed on any new CAFO Facility proposals until all the research and testing of the best environmental protection methods related to CAFOs are reviewed and substantiated; until the strategy and permit documents are finalized; or until the results of Senate Resolution 91 regarding standards for water quality, siting, odor, and effect on water table are known. One commentator asserted that a DEP official stated that DEP will be learning how to deal with CAFOs as it goes along. Commentators suggested that DEP should not issue permits for new facilities until existing facilities are permitted, should use experience and research available from other states and foreign countries and that ignoring this experience is wasteful of DEP resources. Another questioned why DEP has addressed only some categories of CAFOs in its strategy and suggested that was done because of staff or funding availability. (1, 12, 13, 20, 21, 22,24, 33, 36, 37, 38, 39, 44, 45, 46, 48, 65, 67, 83, 85, 88, 93, 96)
To the contrary, other commentators opposed the provisions in the strategy that indicated that no permits would be issued under the interim policy adopted by DEP on January 16, 1998 until all comments on the long-term strategy and on the permit applications are considered. They consider this a de facto moratorium and asked several questions. Does this comment period include comments by the EPA? Under what authority does DEP implement this moratorium and how long will this be in place? The interim strategy should be used until the new strategy is finalized. How long before the appropriate permits are available for operations to begin to apply for these permits? Has DEP considered that a moratorium on expansion and construction does not allow the industry to compete? (3, 9, 10, 95)
Response: While a moratorium was not placed on new CAFO proposals, DEP has withheld the issuance on any new CAFO permits for construction of manure storage facilities or operation of the new facility until such time that all public comments are received and considered as part of the final permit document development process. This decision has done several things. First, it has allowed DEP time to evaluate other states’ programs, evaluate the PA Technical Guide, obtain input from the industry, other state agencies and the environmental community, and clarify and refine the permit documents. At the same time, DEP has been continuing the review of active permit applications which has helped to further identify and resolve issues while not causing extensive delays in permit application reviews. This has provided the industry with a fair process while providing an opportunity for those concerned with CAFO proposals the opportunity to have their concerns aired and considered. This was done without the need for a moratorium.
Comment: In Bedford we have a CAFO that was allowed to expand despite the fact that there was no permit issued. It has a stream running through it so it has a potential to discharge. The Bedford County Conservation District approved the Nutrient Management Plan including an expansion to CAFO size. Didn't this farm expand illegally without the NPDES and WQM Part II permit? Should the state have approved the Nutrient Management Plan allowing this expansion? (89)
Response: The comment did not describe the size of the CAFO, the modifications to the manure storage facility, whether there was an actual discharge or the date that this expansion occurred. All of these factors determine if a permit is required and what type of permit will be required. Neither the NPDES permit nor the Water Quality Management Part II permit was available to be issued until the strategy was completed. This particular facility will now have to be permitted under the appropriate permits. The County Conservation District may approve the Nutrient Management Plan before these permits are issued. If the commentator provides the Department with the name and location of this facility, the Department can determine if permits are required.
Comment: Have the appropriate federal agencies commented on the proposed strategy? (48)
Response: DEP has received comments from the U.S. Environmental Protection Agency and the U.S. D. A., Natural Resources Conservation Service on the draft strategy. Comments from these agencies are included in this document.
Comment: Some commentators requested that DEP totally outlaw CAFOs and the storage of hundreds of thousands of gallons of liquid untreated wastewater from CAFOs anywhere in the state. Concern was expressed that a breach of an open lagoon caused by a natural disaster or neglect would have disastrous results on the surrounding ecosystem and populace, as well as, coastal areas. One commentator suggested that the acceptance or rejection of CAFOs by those at the highest levels of state government is determined by whether the state has an open or closed primary, siting several examples of open primary states banning CAFOs. (1, 19, 22, 29, 50, 56, 61, 71)
Response: DEP does not believe it is appropriate to ban an activity that can be carried out in an environmentally sound manner in accordance with the laws and regulations of the Commonwealth. DEP is establishing sufficient environmental protection requirements so that the construction and operation of CAFO manure storage facilities are done in an environmentally sound manner and to prevent harm to the public. While protective, no regulation can be written for any wastewater facility to prevent the impacts of a catastrophic natural disaster that stresses the facility beyond its design limits. The statistics regarding open or closed primary elections have no bearing on the development of the permit documents or strategy and are well beyond any control by DEP.
Comment: DEP must ensure that cross media issues are coordinated across relevant deputates and bureaus. The draft strategy deals only with water quality when CAFOs clearly pose a threat to both land and air quality as well as the quality of life for those around them. The Bureau of Land Recycling and the Bureau of Air Quality should review the CAFO issue for potential waste and air concerns as well as activities in other states in regard to these concerns (information on other states cross media activities was attached) (60)
Response: These and other Bureaus of the Department were consulted during the development of the strategy and permit documents. Cross media issues were addressed within the authority of the acts that govern air and waste programs.
Comment: Under Act 97, if a coproduct is not utilized within one year, then it ceases to be a coproduct and reverts back to being considered a waste and must be handled as such. Are there similar provisions for manure? If not, why not? (60)
Response: The management, collection, storage, transportation, use or collection of manure resulting from normal farming operations is not subject to the permitting requirements of Act 97 (35 P.S. §6018.501).
Comment: The strategy says that "Implementation of this strategy will require additional educational and technical assistance efforts and exploring new techniques and technologies for safely managing manure." This is "Guinea Pigism". Please do not experiment on animals, do not experiment on our water and do not experiment on our air, do not experiment on our soil, and do not experiment on us. (50)
Response: DEP does intend to initiate additional educational and technical assistance efforts aimed at CAFO operators. The second part of the sentence was misinterpreted as it seems to indicate to the commentator that manure cannot be safely managed under existing techniques and technologies. The intent of this section was to inform the public that DEP will provide information to CAFO operators regarding techniques and technologies that may become available in the future. Because of the confusion caused, this sentence has been deleted.
Comment: The Pork Producers Counsel pointed out the pork industry’s Environmental Assurance Program certification efforts; "Odor Solutions Initiative" which is demonstrating sustainable systems for both odor control and water quality; their role in the development of Act 6 Nutrient Management Regulations; the development of Best Management Practices for the pork industry; and their participation in the National Dialogue on Pork Production as documentation of the industry’s commitment to the environment. (30)
Response: The Department encourages the Pork Producers Counsel to continue and intensify its efforts in all of the areas identified.
Comment: State conflict of interest and ethics laws should be applied to all commissions, boards, groups, etc. which make recommendations that effect the approval of permits or make
policy. (4)
Response: These laws do apply to many of these commissions, boards, and groups.
Comment: DEP should be aware that there is a proposed CAFO in Tioga County east of Mansfield. (26)
Response: Thank you for this information. The Department is aware of this proposal.
Comment: Why is it easier in some parts of the state to get a permit to construct a facility housing thousands of hogs than it is to obtain a permit to install a septic system or sand mound? In a Township where a septic system permit for a single family dwelling on an18 acre lot was denied because of shale at a shallow depth, a CAFO with 5,000 sows was approved. They dug into the shale to install the manure pit. The manure produced by that CAFO is equal to that generated by 10 to 20 thousand humans. (43, 103)
Response: Septic systems require four feet of suitable soil free from the seasonal water table and open jointed or highly permeable rock. These systems renovate sewage by allowing the sewage effluent to percolate through the suitable soil. If there is insufficient soil, such as is the case in soils with shallow depths to shale, the sewage will reach the water table and cause pollution of groundwater. Manure storage facilities, when properly designed, may be installed on such sites with proper protection of a liner. Since these facilities are designed so as not to allow manure to percolate into the soil, they may be constructed where soils are unsuitable for septic systems.
Comment: I’m told the pork is being produced for foreign markets. What do they care what neighbors to these CAFOs have to endure on a daily basis? According to a Harvard Business School report, 95% of the pork industry’s product is exported outside the United States. The pork industry wants to produce pork as cheaply as possible because they can’t sell pork at the same price in China or India or Russia that they can here. (21, 59)
Response: DEP has no authority to restrict the ultimate destination of pork products. DEP does have the authority to regulate the design, construction and operation of manure storage facilities and the spreading of manure. The strategy describes the Department’s approach for that regulation. Any costs associated with this must be borne by the pork producers.
Comment: The DEP CAFO strategy will use definitions used in Pennsylvania's Nutrient Management Act for manure storage facility and animal equivalent units to ensure consistency between state programs. The CAFO strategy will use Animal Equivalent Units (AEUS) from our Nutrient Management Act in place of the federally defined Animal Units (AUs). This approach should not be changed. In the larger picture the Agriculture Advisory Board would recommend that the proposed strategy be consistent with Pennsylvania's Nutrient Management Act. (95)
Response: DEP has not changed this approach. The term AEUs is used throughout the strategy.
Comment: This proposal will have significant impact on a number of farmers and should be proposed as a regulation instead of a strategy. A program of this magnitude and importance should be more than a policy decision which may be subject to interpretation and bureaucratic changes. (97)
Response: The proposal is based on existing federal regulations at 40 CFR 122.23, the Pennsylvania Clean Streams Law (35 P.S. §§ 691.1-691.1001), the Nutrient Management Act (3 P.S. §§1701-1718) and Title 25, Chapters 83, Nutrient Management Regulations and Chapters 92, 93, 95 and 101.
Comment: The draft is difficult to read grammatically and should be written to be easily readable by farmers and the typical citizen. Include a flowchart of what is required under what circumstances. The flowchart should include the responsibilities of Conservation Districts and DEP. There should be a summary table developed for the actual requirements and visual aids such as charts, tables and graphs should be included to help the reader understand and comprehend information. (example flow charts were attached to the comments of 60) (9, 16, 17, 60, 63, 95, 99, 100)
Response: An additional summary table is included in the final strategy documents. Specific areas identified as vague were rewritten. The permitting categories were simplified.
Comment: Language such as "may", "for some locations", "case-by-case basis" or "warranted by site-specific condition" is too vague. Flexibility for one individual could be uncertainty for another. (9)
Response: These terms have been replaced with more specific descriptions of the requirements where possible. There is always some professional discretion provided to DEP permit reviewers to apply flexibility in circumstances that do not fit the regulatory mold.
Comment: The draft strategy should be scrapped, and Pennsylvania should re-think as well as re-write its "strategy" to halt the demise of agriculture. (19)
Response: The Department does not believe that this strategy will have a major adverse impact on the future of agriculture in Pennsylvania. The strategy is intended only to assure that CAFOs are designed, constructed and operated in a manner that will protect the environment.
Comment: Agribusiness also agrees there is an increasing need to standardize the performance standards for agricultural operations throughout the Commonwealth. We strongly believe that the best way to accomplish our mutual objectives of improved water quality, minimized public health impact and the responsible growth and sustainability of Pennsylvania's number one industry is to partner our efforts in a complementary manner. In this way, we can most efficiently merge the science, economics and social expectations of the population of which we are all a part. We believe that in general there is a basic understanding of the changes that have occurred within production agriculture. However, while Pennsylvania agriculture and environmental interests have been on the leading edge of responsible regulation and application of environmentally friendly technology, it is crucial that these efforts are guided by the following key principles:
Pennsylvania's agricultural industry competes in a global arena. Therefore, our statewide efforts must not require competitive handicaps not imposed at the same time upon those other states with whom we must compete.
Any regulation, and the efforts to meet the objectives of that regulation, must not only be consistently applied nationally but also within our own state borders. Furthermore, these efforts should substantially reflect accompanying benefits that are measurable by the cost expended to achieve those gains.
Wherever possible, industry should be a positive influence in accomplishing these previously stated goals. This can be made most effective by offering incentives to adopt improved environmental science, technology and practices. Rewards should also be extended to those whose records fully reflect environmental stewardship.
State agencies should effectively partner with industry in coordinating the resources within this state that are critical to meeting our responsibilities to the environment and the pressures of the marketplace. This should not only include interagency memorandums of understanding when useful, but also the coordination of research efforts at our universities and veterinary schools.
We must also acknowledge a measurement of progress. The gains must offer additional incentives to improve and not create greater development/operating costs to those whose efforts are furthering the accomplishment of defined goals.
Industry and government need to acknowledge existing problems and apply mutually agreed solutions to their being corrected. On the other hand, it is imperative to the credibility of agricultural industry and the appropriate regulatory agency to act quickly and decisively in instances where violations are brought about by poor management or any clear disrespect for the environmental resources of this state. (94)
Response: The Department is committed to a cooperative effort to help industry achieve these goals where there are clearly defined environmental benefits to be gained in the process.
Comment: Agricultural industries recognize the need to set the bar of compliance at a height that encourages compliance by all participants. There are, however, some very clear and obtainable environmental gains available if incentives are defined that encourage agricultural project developers and operators to go "beyond compliance" requirements. The effort to go "beyond compliance" would also have the accompanying advantage of quantifying assumptions of theory with commercial experience. This would lay the groundwork for the type of databanks and focusing of effort that we envision the partnering concept providing. This also encompasses the spirit of the USDA-EPA proposal that recognizes that the ultimate responsibility for compliance will lie with the owner and operator of the facility.
Specific areas of "beyond compliance" performance could include some combination of such items as follows (since not all forms of animal industry are managed in a manner appropriate for all these considerations).
Animal diets and feed formulation that are modified to reduce the amount of nutrients in manure.
Siting and management practices (coordinated through PSU and/or U of P) that divert clean waste from feed lots, manure storage, and reduce odors and noise concerns.
Incorporating manure-handling systems that reduce the loss of nutrients to the environment during storage, improve the stability of fertilizer when applied and methods that reduce as possible pathogens and odors.
Manure storage that includes leak detection and "monthly" tests that assure minimum risk.
Agreements by operators not to apply nutrients on frozen ground without agreement and oversight by DEP.
On-site verification of performance records and conditions by the appropriate Conservation Districts for a minimum of five (5) years.
Continuous tracking and annual verification of acreage committed to meet manure application requirements as defined under Act 6, "The Nutrient Management Act."
A baseline testing of any stream that regularly flows through the properties where manure is applied.
Annual soil tests used to manage the further application of nutrients.
Agreement that non-compliance would result in re-imposition of fees and inspection resulting in a requirement list needed to retain permitting.
Those who agree to move "beyond compliance" could be encouraged by some of the following considerations:
Waiver, in whole or part, of permit fees.
Fast-track", expeditious facilitating of permits and public hearings.
Eliminating public hearing component by those in the AFO category.
A "gold star" of recommendation by DEP and Conservation Districts alerting those considering the application of intent to move "beyond compliance."
Special recognition by DEP and PDA through media, new releases and associated positive public relations acknowledgement. (94)
Response: The Department is committed to a cooperative effort to help industry achieve these goals where there are clearly defined environmental benefits to be gained in the process.
The Department encourages the agricultural industry to initiate any efforts possible to go
"beyond compliance" since many of these proposals are common sense ones. Many other industries in Pennsylvania have found that the application of pollution prevention techniques not only assure compliance with any environmental permits they have, but also have a positive benefit on their profitability. DEP extends the services of its nationally recognized Pollution Prevention Compliance Assistance program to help you achieve a level of performance beyond compliance. As these goals are achieved, DEP will carefully consider appropriate rewards while maintaining its obligations under existing laws and regulations.
Comment: Due to the timing of these comments, we will not reiterate many of the issues that were very thoughtfully presented by other responders. Rather, what follows are succinct statements of areas where incorporation or preservation of concept will strengthen the CAFO water improvement efforts.
The Pennsylvania definition of AEUs should be retained as the standard for CAFO identification in that this formula concentrates on nutrients, the objective of the regulation. DEP and EPS should jointly monitor water quality, using current watershed values as a baseline, in order to evaluate the effectiveness of Pennsylvania’s approach to meeting water quality goals. Such a proposal is in concert with the USDA/EPA proposed AFO strategy which recognizes established state programs and performance as instituted and documented prior to the implementation of the Federal Phase I program.
Focus research in the area of phosphorus use, mobility and actual environmental effects. Our industry experience in many similar areas has cautioned us to understand the science before applying scarce resources to solutions that may not fit the problem, or in some cases, could make it worse.
Include methods of training DEP personnel to ensure a consistent, professional and effective approach to permit requirements.
The emphasis of compliance beyond "new operations" should clearly be directed toward unacceptable conditions (as defined by USDA/EPA proposal), impaired watersheds, or previous violations.
Include a role, an educational component perhaps, for extension service to play with agriculture, the community and local governments.
There is no phase-in period for these new regulations as there are for the federal proposals. Industry, in many cases, is expected to hit a home run at the first and each succeeding "at bat." Flexibility in adopting these new standards would be very beneficial to compliance. Phase-in could be a useful general approach with the alternative "fast track proposal" covered earlier available for immediate adoption.
The proposed regulations should be written so that we can incorporate flexibility in our goals. Additionally, we should be able to easily and rapidly adopt emerging science and technological breakthroughs as they occur. (94)
Response: The Department is committed to a cooperative effort to help industry achieve these goals where there are clearly defined environmental benefits to be gained in the process. Many of the items listed are also DEP goals. One area of differing opinions is the comment regarding the lack of a phase in period. Most of these requirements are not new to the agricultural community. The Pennsylvania Technical Guide and NRCS standards on which this guide is based have been in place for many years. DEP has also administered a manure management program for many years. The Nutrient Management Act, while relatively new, had the general support of the agricultural community upon passage. In addition, DEP has worked with the agricultural community for over 12 months to come up with a workable permitting program while still moving permit applications toward a final permit action. With this in mind, DEP does not agree that the permitting program is not being phased in appropriately. As described previously, new farming operations with greater than1000 AEUs must meet the requirements when operations begin. Existing operations with greater than 1000 AEUs have a phase in period of one year. All other existing facilities have a three-year phase-in period.
PURPOSE
Comment: Purpose - Who are the "other stakeholders"? Isn’t anyone within close proximity to a proposed CAFO a stakeholder? (15)
Response: DEP agrees that anyone within close proximity to a proposed CAFO is a stakeholder.
Comment: Fifth paragraph - If DEP is expending time, money and energy to establish guidelines solely applicable to CAFOs, why is DEP insisting that these are agricultural operations? They obviously don’t fit the description. (15)
Response: The federal NPDES regulations define CAFOs as point sources. CAFOs with a potential to discharge must obtain an NPDES permit. The federal regulations and the Nutrient Management Act specifically recognize that CAFOs and/or CAOs are agricultural operations. The specific classification of an agricultural operation as needing a permit does not remove that operation from being an agricultural operation.
Comment: Sixth paragraph - Since the state agencies have ignored regulations which have been in place for years, where is the guarantee that "implementation can be accomplished with existing staff resources"? (15, 24)
Response: DEP is required to carry out activities delegated to it by EPA under a binding delegation agreement. Once the NPDES permitting program is established in Pennsylvania, implementation of the CAFO program is a part of the delegation agreement. Sufficient staff resources must be assigned to carry out all delegation agreement activities.
BACKGROUND
Comment: Factory hog farming is not a family farm and should be correctly identified as a commercial business operation or factory. DEP’s classification of CAFOs as agricultural ventures, makes these operations exempt from Pennsylvania requirements and various taxes. A legal distinction must be made between the typical family farm and CAFOs housing thousands of hogs. DEP or other state agencies should take action to promote the "family farm" and discourage (or outright ban) CAFOs (support for this position was provided by referencing a wide variety of sources, studies and experiences including a report from Successful Farming magazine which reported that 6,000 family farms have gone out of business directly because of hog CAFOs ). Chicken growers who thought they were going to get rich became nothing but serfs. CAFOs in no way support sustainable agricultural practices. They should be treated with the same precautions that are associated with industries, landfills, hazardous waste facilities and other potential sources of pollution. (1, 6, 21, 46, 76, 85, 90, 91)
Response: DEP has no authority to either classify or reclassify an agricultural activity for the purpose of establishing an exemption from federal or state taxes. DEP does not believe it is appropriate to ban an activity that can be carried out in an environmentally sound manner in accordance with the laws and regulations of the Commonwealth. DEP also does not believe it is appropriate to encourage one type of agricultural activity over another. DEP has no authority to advise farmers on appropriate business decisions or to influence agricultural trends. DEP has no direct authority to take action to deny a permit based upon the operations support of sustainable agriculture. The standards established for manure storage are consistent with national standards for these facilities.
Comment: Eighth paragraph - The phrase " This trend in livestock and poultry production will continue…" indicates that the general public has absolutely no say in the future of agriculture in Pennsylvania. (15)
Response: This statement has been deleted.
Comment: Ninth paragraph - This section really says: "The rich and politically influential are forcing CAFOs into rural townships." It is misleading in that no effort has been made to maintain and financially support traditional farming practices. Is the DEP truly ready to give corporate profit priority over the health and well being of the citizens of Pennsylvania? (15)
Response: DEP does not believe it is appropriate to ban an activity that can be carried out in an environmentally sound manner in accordance with the laws and regulations of the Commonwealth nor to encourage one type of agricultural activity over another. DEP has established sufficient environmental protection requirements so that the construction and operation of CAFO manure storage facilities is conducted in an environmentally sound manner.
Comment: Twelfth paragraph - The phrase " operations can threaten water quality" should say "will pollute area waters". (15)
Response: While improper design, construction and management of facilities have the potential to threaten water quality, pollution of area waters does not necessarily occur. The original language has been retained.
Comment: Page 2 - Background - The strategy says manure and nutrients applied to fields and pastures shall not exceed what is needed for actual crop production (agronomic intake). It should allow for soil improvement in areas where soils have been depleted of nutrients and organics and could benefit from additional manure application. The state land application of sewage sludge regulations once used an agronomic rate and a land reclamation rate. The land reclamation rate should only be used in limited deserving situations(16, 63, 99, 100) To the contrary, this comment is based on old sewage sludge soil reclamation rules which can no longer be found in the new sludge regulations. It is wrong and embarrassing that we would recommend extra, above the plan application of CAFO manure. It is ridiculous that non-CAFO CAOs are not allowed to do this but CAFOs would be under this proposal. (20)
Response: DEP does not intend to allow excess manure application at mine reclamation sites.
PRESENT REQUIREMENTS
Comment: Paragraph 9 - Change " strongly encourage" to "will require" to assure all livestock and poultry farmers prepare and implement NMPs to prevent farms falling right under the CAFO definition from applying similar amounts of manure to the fields with no liability whatsoever. (15)
Response: The Department has established the necessary and appropriate controls to ensure that manure is applied in an environmentally responsible manner consistent with the Nutrient Management Act and the Clean Streams Law.
Comment: Paragraph 10 - Why are we offering loans for BMPs on farms? We don’t mandate pollution liability, and we don’t offer assistance to citizens whose water supply has depleted or been polluted by improper handling of manure. (15)
Response: The low interest loan program was established pursuant to section 9 of the Nutrient Management Act to encourage the construction of manure storage and handling facilities, especially where improper storage is causing problems. This is not an unusual program. There are state and federal grant and loan programs for individual onlot sewage system repairs, public sewers and new and improved public water supplies.
Comment: Will the CAFO that generates the manure or the local farmer that accepts the manure for land application be considered the operator identified in the NMP? (48)
Response: The CAFO that generates the manure is considered the "operator" in a Nutrient Management Plan. For NPDES purposes, the NPDES permittee is considered the operator.
Comment: Will each farmer that accepts manure from a CAFO need an NMP? (48)
Response: Not unless the farm is regulated under the Nutrient Management Act. If a farm receiving manure from a CAFO does not have a Nutrient Management Plan, the NPDES permit will require the CAFO and importing farmer to sign an agreement. A Nutrient Balance Sheet is also required to assure the volume of manure transferred is not more than the volume needed to apply the manure at an agronomic rate for the crop to be grown.
Comment: Clarify when a CAFO is required and is not required to spread manure in accordance with a nutrient management plan? What is the process for updating Nutrient Management Plans for CAFOs importing waste from other CAFOs or issuing Nutrient Management Plans for non-CAFOs importing waste from CAFOs. Is the "nutrient balance sheet" part of the overall nutrient management plan or may a nutrient balance sheet substitute the need for a Nutrient Management Plan? What type of nutrient management and tracking will be placed on CAFO manure brokers? What type of tracking will be used to ensure animal waste exported from CAFOs is applied at an agronomic rate in accordance with a nutrient management plan? (57)
Response: The strategy and supporting documents clarify the issues raised in this comment. CAFOs must spread manure in accordance with an approved Nutrient Management Plan on all land owned or leased by a CAFO. If a CAFO is importing wastes from another CAFO and applying that manure on land owned or leased by the importing CAFO, the importing CAFO’s Nutrient Management Plan must include the manure from the other CAFO. Manure transferred to a broker will be tracked by the CAFO permittee keeping copies of records provided by the broker. Manure exported from a CAFO with more than 1000 AEUs will be managed to assure it is applied at an agronomic rate. Prior to manure from a CAFO of more than 1000 AEUs being applied to a property that is not owned or leased by the CAFO, either a Nutrient Management Plan must be submitted or an agreement between the CAFO permittee and the importing property owner must be signed and submitted to DEP. This is an agreement to transfer manure to the importer and commits the importer to apply the manure in accordance with a Nutrient Management Plan (if one is otherwise required under the Nutrient Management Act) or Nutrient Balance Sheet. Each agreement must be accompanied by Nutrient Balance Sheets for the importer to assure manure is applied at an agronomic rate. The Nutrient Balance Sheet may substitute for the Nutrient Management plan in such cases. The Nutrient Balance Sheet is a two-part form. The first part is an accounting of all nutrients available to the land (i.e. nutrients presently in the soil from previous applications of manure, chemical fertilizers or legumes and nutrients from animals housed on the farm) and a calculation of nutrient needs based crop demand and already available nutrients. The resulting calculations provide the tons of CAFO manure that can be applied per acre to grow the crop proposed.
The second part of the form provides record keeping for each manure application from the CAFO. These forms are completed and retained by the CAFO and must be made available to DEP inspectors upon request. When an agreement is terminated, DEP must be notified within 30 days and a new agreement with a Nutrient Balance Sheet must be submitted to make up the deficit in available acres created by the terminated agreement. The Nutrient Balance Sheet and records retained by the CAFO will serve to track exported animal waste.
When manure is transferred from a CAFO to a broker, a Manure Transfer Sheet, as required by Title 25, Chapter 83, Section 83.344, must be completed by the CAFO permittee and given to the broker. A copy of this completed form must be retained by the CAFO permittee. In addition, prior to the first use of the broker’s services, the CAFO must provide the broker with a fact sheet allowing for quick estimation of manure application rates, applicable sections of the DEP Manure Management Manual, and a concise educational publication describing the key concepts of nutrient management. All of the above documents are available for use with the final permit documents.
Comment: The regulations must forcefully require that the public be notified a minimum of two weeks in advance that nutrient management plans are available for review at the Conservation District office before the plans are considered for approval. (17, 20)
Response: DEP has no statutory authority to prescribe how the Conservation Commission manages the review of Nutrient Management Plans. Currently, County Conservation Districts approve these plans at a meeting open to the public following a minimum 7- day period when the plan is available for review.
Comment: The strategy should require that all individuals responsible for operating manure storage systems on AFOs attend a comprehensive O&M training course and receive certification at its completion. "Refresher" courses should be required to inform operators of new developments in waste management. This course should include training on proper management of the storage facility as well as proper manure application. The NPDES permit should require compliance with the O&M plan as a condition of the permit. These courses could be administered by Penn State Cooperative Extension, NRCS, engineering firms or a combination thereof. New employees replacing certified operators should receive the same training. CBF also supports NEDPP's recommendation that contractors also be so certified. (101)
Response: The strategy and permit documents relate only to CAFOs which are a subset of AFOs. The response to this question and others which use the term AFO will be limited to CAFOs. The Nutrient Management Act does not require certification of manure storage facility operators. Certification on any specific group of professionals in Pennsylvania requires statutory authority. No statutory authority for such certification exists. DEP has a strong education and outreach approach in all of its environmental programs and intends to initiate such training and outreach in the CAFO program as well. The recommendation to enlist the assistance of others such as the Penn State Cooperative Extension and NRCS will be considered as we develop this education and outreach program.
Comment: A number of commentators related concerns and problems with an approved Nutrient Management Plan developed for a proposed CAFO as well as perceived problems with manure management and alleged general deficiencies in Pennsylvania’s current Nutrient Management regulations. The problems listed included:
a. Inclusion of a manure importing farm which was subsequently removed from availability by the farmer
b. Farmers to receive exported manure not understanding the details of the plan (i.e. spreading requirements, etc.) If importers of manure do not know what they are getting, how can the landowners who are leasing land know? What if they refuse to allow application on their land, where does the manure go? There must be a mechanism to know where manure is going and that it can be safely applied in accordance with agronomic needs.
c. Listing a farm as having 190 acres available for spreading instead of the actual 90 acres which existed.
d. Not considering the existing manure generated on the farm from 80 cows thus limiting the available land to spread 80,000 gallons of manure to 10 acres of land.
e. A list of landowners willing to accept manure did not assure that a problem does not exist.
f. The pollution strength of raw manure is up to 160 times greater than that of raw municipal sewerage that is not considered in Nutrient Management Plans.
g. No scale on the site map and no locations of the house, confinement building or wells on surrounding lots even though a 100 foot isolation distance between the wells and manure spreading is required. Inadequate evaluation of the Alternative Manure Management providers by the County Conservation district (i.e. no site inspection or verification).
h. While the Nutrient Management Plan calls for orchard/timothy grass, soybeans were planted (add nitrogen to soil and provide no fall cover for manure spreading).
i. As CAFOs get larger and move to the less populated central part of the state (with less acres suitable for spreading manure, manure exporting problems will increase). The cost of transporting low density manure more than short distances from the site of production often exceeds its nutrient value.
j. In 1992, a report by Tom Harkin, "Animal Waste Pollution in America" stated that the largest hog operations held more than 27 percent of the nation’s hogs, but owned only three percent of crop land associated with animal operations. Not enough land for nutrient management to work.
k. Commentators questioned the reliance of municipal officials on the County Conservation Districts when Nutrient Management Plans are evaluated.
l. The clay and limestone which comprise Pennsylvania soil and strata levels have been judged by impartial scientists from the Pennsylvania State University, including Dr. Kenneth Kephart as being unfit to support CAFOs.
m. Compliance with the nutrient management plan must be a condition of retaining and/or renewing an NPDES permit, but, how will anyone be able to tell how much manure has been applied to an acre of field?
n. The Nutrient Management Plan and draft strategy is insufficient to deal with very large animal operations (i.e. what if a 25,000 sow operation is proposed).
o. The single most important limiting factor in soil fertility is not nutrients, but acidity—pH. A hog farm in one area sprays manure on soils that test at pH 4.3. Another large hog operation proposal has soils with a pH of 4.3.
p. Budget sheets are inadequate to manage manure transfers.
q. No restrictions on atmospheric losses of nitrogen (volatilization) and deposition.
r. No requirement that importing site have a nutrient management plan.
s. Phosphorous is not included in nutrient management plans. The impact at the minimum is to destroy the crop-growing productive capability of the soil. CAFOs produce animals as a product that leaves excess waste that is generally turned into mulch grass hay.
t. Only requires the name of importing farmers and a general location. No requirement for a written agreement with the operator or even notification to the leased land owner or importer.
u. No restriction on importing manure equivalent to more than 2 AEUs per acre.
v. Soil testing only every six years.
w. No manure testing requirement.
x. Manure spreading allowed during winter months.
y. There are situations where using the book value for manure resulted in a conflict with the actual historical manure testing results. This resulted in the farmer not being able to apply as much of his manure as he should have because the actual tests results were lower than the book value and the book value was required to be used and fertilizer had to be purchased.
Response: Because these specific questions related to Nutrient Management Plan administration, answers were confirmed with staff of the State Conservation Commission. The following responds to each issue raised:
a. For areas not covered by a Nutrient Management Plan, the proposed CAFO program will require an up-to-date record of agreements signed with importers. If a farm is removed from availability, a replacement will have to be found and appropriate agreement signed. For farms covered by a Nutrient Management Plan, the County Conservation District will assure the plan is kept up-to-date through spot checks and examination of required records. In addition, the CAFO NPDES permit requires annual review of the Nutrient Management Plan and update as necessary (Part A conditions).
b. Nutrient Management Plans will be required on all land owned or leased by the CAFO. The CAFO NPDES permittee is responsible for proper implementation of the Nutrient Management Plan on this land. Implementation of the plan is monitored by the County Conservation District. For manure importing sites where Nutrient Management Plans are not required, the NPDES requirement for an agreement and Nutrient Balance Sheet between the CAFO and importers will assure that importers apply manure at an agronomic rate. If manure is refused by an importer, it must be applied at sites where there is an agreement in place and a completed Nutrient Balance Sheet available. A record of manure applications is maintained on the Nutrient Balance Sheets and retained at the CAFO for inspection by DEP.
c. CAFO permittees will be responsible for ensuring there is a sufficient amount of land for proper application of manure. If a Nutrient Management Plan is not being implemented properly or contains inaccurate information which makes it invalid, these deficiencies must be corrected. The County Conservation Districts will monitor compliance with Nutrient Management Plans. Where Nutrient Management Plans are not in place for importing sites, DEP will monitor the accuracy of Nutrient Balance Sheets.
d. The Nutrient Management Plan for owned and leased land or the Nutrient Balance Sheets for importing sites must account for existing manure and other sources of nutrients as part of the calculations necessary to determine the amount of manure which may be applied from the CAFO. Where such deficiencies are noted in permit documents, they must be corrected.
e. The CAFO strategy and permit procedures are intended to identify those responsible for proper storage and management of manure and assure they are in compliance with appropriate regulations and permit documents. The CAFO procedures require not only the name of the importer, but also requires a nutrient balance sheet to assure that the importing site can safely utilize the manure nutrients.
f. Regardless of the pollution strength (i.e. nutrient level) in manure, proper application at an agronomic rate will prevent pollution. The Nutrient Management Plan and the Nutrient Balance Sheets take into account the nutrient strength of the manure. Nutrient Management Plans and Nutrient Balance Sheets assure that nutrients are properly applied to the land so they do not cause pollution.
g. Problems with required components of Nutrient Management Plans would normally be found during the review process. If these problems are discovered after the plans are approved, these deficiencies should be incorporated into plan modifications. As County Conservation Districts gain more experience in reviewing plans, the quality of reviews have improved and will continue to improve.
h. Where the content of the Nutrient Management Plan is not being met and there is a potential for pollution as a result, the County Conservation Districts take action to correct this deficiency. When significant changes to the operation take place, the operation is required to submit an amended plan for review and approval.
i. Manure transport is a cost of doing business for CAFOs. Approved Nutrient Management Plans will assure proper application rates on owned and leased lands. DEP’s CAFO permitting process will assure sufficient land is available through approved Nutrient Balance Sheets and Manure Transfer Sheets to accept the quantity of manure that is generated in excess of the amount that can be safely utilized on the owned and leased lands.
j. CAFO nutrient management is not limited to land owned by the CAFO permittee. The export of manure to leased land and to other agricultural operations requiring nutrients has long been a common activity of the farm community and provides sufficient land for nutrient management to work.
k. County Conservation Districts are the appropriate agency to review Nutrient Management Plans. If municipal officials wish to have additional reviews of Nutrient Management Plans by other entities, they may do so. DEP, however, will depend upon the review of the County Conservation District as the basis for permit actions. County Conservation Districts have the knowledge of the local soil types, crops grown, climate conditions, importing sites, local water quality concerns, as well as a strong understanding of nutrient management concepts.
l. DEP is unaware of any report from Dr. Kephart that states that no soils in Pennsylvania are able to support CAFOs. If this were the case, no agricultural operations would be able to apply manure since the same manure application rates are appropriate for both small and large animal operations to achieve an agronomic rate. These may be individual sites where underlying geology would not support a manure storage facility. DEP’s WQM Part II permitting process and the Nutrient Management Act regulations would identify these areas during the permitting process.
m. The Nutrient Management Plan and Nutrient Balance Sheets require record keeping for the application of manure on fields.
n. Very large-scale operations, such as those described, will be dependent upon the export of manure. The use of Nutrient Management Plans and Nutrient Balance Sheets will assure adequate acreage is provided for manure application at an agronomic rate. If the proposal is too large, the economics of manure transport may impact its feasibility. DEP is confident that the strategy and permit documents are sufficient to protect the environment where very large operations are proposed
o. Nutrient Management Plans require soil testing at 6-year intervals. One of the components of the test is pH. The County Conservation District should be notified of problems associated with improper soil pH. They can determine the impact soil pH will have on crop yield potential and the mobility of soil nutrients.
p. DEP disagrees that Nutrient Balance Sheets used in combination with agreements are inadequate to oversee the environmentally safe transfer of manure. These documents assure the importer understands his responsibilities and has sufficient information to properly apply the transferred manure at an agronomic rate.
q. You are correct that there are no controls on the volatilization of nitrogen to the atmosphere in the Nutrient Management Act. Most agricultural operations are also exempt from state regulations under the provisions of the Department’s Air Pollution Control Act. Many accepted and encouraged farm management practices (such as no-till and grassland management) do not allow for incorporation and therefore may contribute to Nitrogen volatilization. These are important farm management practices with very extensive benefits to the environment and therefore it is understood that manure incorporation would be impractical to require of farm operations.
r. Those importers with no Nutrient Management Plan must enter into an agreement with the CAFO and receive a Nutrient Balance Sheet from the CAFO describing the application rate of CAFO manure to the crop they intend to grow. The agreement includes a commitment by the importer to apply manure at the rate prescribed in the Nutrient Balance Sheet.
s. Phosphorous based nutrient management is an issue that is currently being debated on the national level. Until such time as there is national consensus on using phosphorous as a basis to control the application rate for manure, DEP will use the Nutrient Management Act nitrogen based process. If mulch grass hay is the proposed crop, then an appropriate application rate of manure for that specific crop would be required to be established for use in the Nutrient Management Plan and in the Nutrient Balance Sheets. There is no restriction on the type of crop that may be grown using CAFO manure.
t. The CAFO NPDES permitting process will require written agreements between the CAFO permittee and importers for all properties not covered by a Nutrient Management Plan.
u. The use of animal equivalent units is to establish a threshold above which a Nutrient Management Plan is required. This is not to establish the rate at which manure is to be applied to crop fields.
v. The Nutrient Management Regulations establish a 6 year interval between soils testing. This has been accepted by DEP since these regulations had significant technical and public input.
w. Manure testing is not required, however, there are statistically based values for manure nutrient content which have been successfully used to estimate the nutrient content of the manure for those farmers that do not have a manure test.
x. Manure spreading in winter months may be acceptable in situations where manure runoff is unlikely. There are numerous situations where manure can be safely applied to crop fields. Farmers preparing to apply manure in the winter must describe their winter application locations and procedures in the Nutrient Management Plan for review and approval.
y. These situations, while not common, may occur. Where manure test results come back significantly under expected values and there is no reason given or long-term history of test results verifying the lower results, the test results may not be accepted until further testing can verify the test results.
Comment: Other commentators stated that, to prevent nutrient pollution from CAFOs, DEP must take the critical step of filling the gaps in the state’s nutrient management requirements upon which much of the operational requirements of the NPDES permits depend. These commentators made a number of recommendations to improve nutrient management requirements including:
a. All sites importing manure should be required to have a nutrient management plan that incorporates all nutrients that are presently available in the ground and that are applicable for growing the specific crops in each field. The CAFO permittee providing the manure should pay for developing the nutrient management plan for the receiving farm.
b. DEP must clarify to CAFOs when they may spread animal wastes from their operation and when they may not to prevent ground and surface water contamination with nutrients. Those who enter an agreement with a CAFO for the importation of manure should be required to have a full nutrient management plan.
c. For CAFOs over 1000 AEUs, a written agreement should be required from the landowners including some specificity as to field locations (address/tax reference), sub-field/strip, crops, application rates, 2-5 year duration. A copy of the proposed agreement should be available for review.
d. Importing farms must be required to provide in writing the available nutrients needed by crops, and nutrient application rates and procedures and document actual crop yields or supporting evidence of potential crop yield to assure the nutrient application rate is appropriate.
e. New animal operations should be required to prove that the additional nutrient loading will not be at the expense of existing operations receiving manure from a source other than the CAFO.
f. The Nutrient Management Plan is a manure storage facility management tool under the NPDES permit system. Provision must be made to ensure that DEP which is charged with the protection of water, will have oversight and authority to act in unforeseen circumstances. Oversight authority of the NMP in relation to CAFOs belongs with DEP.
g. Other commentators supported holding the permittee responsible for manure from generation to application. They suggested further restraints including: holding all individuals involved in the production, movement, application, and ownership, lease of land be required to sign up for the nutrient management plan. Unknown haulers or contractors who may become involved in manure handling later should also have to be included in that plan.
h. Any farm receiving over one million gallons of manure should be required to have its own NMP.
i. Any names of farmers who have signed up to accept manure should be checked to be sure they understand they can be held liable for water pollution problems. They should be given a time frame to withdraw from the list. The permittee should be required to report to DEP any farmer withdrawing from a list. Contracts should be required between the permittee and farmers agreeing to accept manure for a specific time span.
j. Additional book values should be established to cover more of a variety of field situations.
k. Maryland, Ohio and Florida are developing strategies to reduce phosphorous in lakes and streams. Animal wastes, especially hog manure sludge from the bottom of manure pits, is high in phosphorous compared to nitrogen when plant needs are considered. Phosphorous in agricultural runoff can accelerate eutrophication identified as the critical problem in 50 to 60 percent of the U.S. streams and rivers classified as impaired. In areas of high phosphorous loading, DEP and the conservation districts must comply with the provisions of the US Department of Agriculture, Natural Resources Conservation Service Nutrient Management Policy once it is made final or an appropriate State-level equivalent policy. A discussion about phosphorous-based management should be included in the CAFO strategy.
l. DEP should establish special conditions applying to CAFOs that go beyond the existing nutrient management program and which apply to all manure generated by CAFOs that is applied to farmland regardless of who owns that land.
m. In the absence of scientific "certainty", the burden of proof that a practice poses no harm should be placed on the applicant before permits to operate are granted. We do not know for sure if feed additives pose an accumulation concern over the long-term, but we do know that pathogens and excess nutrients do pose such a problem (e.g. phosphorous) and should be monitored..
n. The number of animals allowed to be housed at a CAFO should be limited to the acreage available for proper manure disposal.
o. New large AFOs should be required to construct manure systems with at least nine months manure storage capacity. Moreover, all new large AFOs should be prohibited from spreading manure outside of the growing season.
p. Nutrient budgets are a new tool used to document nutrient flows to and from agricultural operations that can help Pennsylvania producers and agencies evaluate the impact of new and existing AFOs on nutrient loads in watersheds. Producers keep records of all nutrient inputs to their facilities (feed, fertilizer, purchased livestock, etc.) and all nutrient outputs from their operations (sold agricultural products, exported manure, etc.). The "balance" between inputs and outputs is the degree to which an operation is conserving nutrients (i.e. preventing nutrient enrichment in a particular watershed) or "losing" nutrients to the surrounding environment. Nutrient budgets are a central feature in the Netherlands' program regulating manure production and distribution. In contrast, nutrient management plans focus primarily on the manure management and crop production. Nutrient budgets also help producers identify sources of nutrient loss from their operations, the first step toward improving environmental performance. Given that such a program is largely outside the scope of a permitting program, the strategy should identify other cooperating entities. DEP's Chesapeake Bay Program may be an appropriate lead agency for this effort. We have enclosed information on nutrient budgets developed by the Institute for Agriculture and Trade Policy (Muller, "IATP's Nutrient Management Yardstick").
Another commentator recommended that DEP establish the following special conditions for nutrient management plans for AFOs over 1,000 Animal Units. Recommendations followed by "(NEDPP)" are consistent with the "Comprehensive Environmental Framework for Pork Production Operations," developed in 1997 by the National Environmental Dialogue on Pork Production (1997 -Attachment 3). The Dialogue was comprised of federal officials, regulatory agencies from six states and five pork producers:
q. Prevent phosphorous saturation in soil: considerable losses of dissolved phosphorus can occur from soils saturated with phosphorus, regardless of soil conservation measures. This form of phosphorus is readily available to algae in receiving waters and can fuel excessive algae growth.
r. DEP should establish a reasonable set of conditions governing phosphorus use in nutrient management plans for new AFOs. Nutrient management plans for existing AFOs should also address phosphorus but allow for greater flexibility. Attachment 5 (Lemunyon, "The Concept and Need for a Phosphorus Assessment Tool 1993") describes the concept of a phosphorus index. An index considers a range of conditions affecting phosphorus losses from fields and provides a broader decision-making mechanism than simply a soil test.
s. Test soil regularly: AFOs should be required to test soils for nutrient levels at least every two years instead of six years as required in Act 6 plans. (NEDPP)
t. AFOs should be required to test manure for nutrient levels. Act 6 plans allow operators to estimate the nutrient content of manure based on average values despite the fact that actual manure content can vary as much as 100% from book values. According to Penn State's Agronomy Guide, "Analyzing a sample of well-mixed manure is essential for good manure nutrient management." DEP, in cooperation with other agencies, should develop approved manure sampling procedures and sampling schedules. At a minimum, samples should be taken from the manure storage system during agitation. Sampling frequency can be decreased after baseline average values have been established over the course of several years. Citizens around the country are also justifiably concerned about metal concentrations in manure and their effect on soil quality. DEP should establish standards for metals of concern, such as copper and arsenic, similar to those established for Exceptional Quality sludge (Stehouwer, "Land Application of Sewage Sludge in Pennsylvania" - Attachment 6). Alternatively, DEP could initiate a study to evaluate metals concentrations in manure from typical livestock and poultry AFOs before establishing standards.
u. Spread liquid manure during the growing season only: Operators of new AFOs should be prohibited from spreading liquid manure during late fall and winter months. During these months, much of the nitrogen from applied manure will be lost through volatilization, runoff and leaching. Crops' uptake of nitrogen from manure applied during these months is minimal; with regard to nitrogen, winter manure spreading amounts to little more than manure disposal and does not fulfill the no discharge requirement. DEP could consider providing limited waivers allowing AFOs to apply manure in the fall if they can demonstrate that the manure nitrogen will be utilized by a growing cover crop, such as rye grass. If this cover crop is incorporated into the soil in the spring, the sequestered nutrients contained in the crop must be included in the nutrient management plan.
v. Proposed new AFOs should be prohibited from applying manure at rates that exceed phosphorus needs of the crops on soils already high in phosphorus. This restriction should be phased in for existing AFOs over a longer time period. CBF recognizes the challenge phosphorus management poses to many Pennsylvania farmers, and solutions must be fair and feasible. But the federal government and other states, such as Maryland, are now moving forward in developing standards to address excess soil phosphorus on existing farms. These efforts recognize that the problem of excess soil phosphorus will only worsen with time and solutions will become more difficult for producers. Thus, it is necessary and reasonable for new large AFOs to prevent excess nitrogen and phosphorus applications from the outset.
Response: The strategy and permit documents resolved the concern items c, e, i. and l.. Some of the comments are addressed in part by the Nutrient Balance Sheets required for importing farms. While there were numerous concerns expressed regarding the existing Nutrient Management plans, DEP believes this new program will address critical water quality concerns related to these large operations, It should be noted that the practices being implemented under the Nutrient Management Act are the same as those implemented under the Pennsylvania Chesapeake Bay cleanup program and have been proven to have a positive effect on water quality. It is DEP’s position that the CAFO permitting program and Nutrient Management program must work in coordination to allow the permitting program to be effective. Those concerns will be passed on to the State Conservation Commission that is charged with the responsibility of implementing the Nutrient Management Act. As new information becomes available through national nutrient management criteria and as modifications to the Nutrient Management program evolve, the DEP permitting program will be changed to react to this new information and program evolution. For the immediate future of the CAFO permitting program, DEP intends to proceed in close coordination with the Nutrient Management program. This coordination will assure that these two regulatory programs with very similar goals and definitions will result in similar requirements for farmers to comply thus minimizing their confusion and increasing the level of success of the programs.
Comment: Other commentators had specific questions regarding manure application including:
How often will amended soils be analyzed and for what compounds?
Several commentators asked how calibrations are made of nutrient applications and is manure is analyzed before application.
Will there be any analysis of the manure or will nitrogen always be considered the limiting factor in the development of an NMP?
Will there be an analysis of the manure for metals, organic compounds, antibiotics, hormones or other compounds routinely added to CAFO feeds?
What does a "Budget Sheet" comprise of, since no draft was included in the draft of the policy?
Would spreading within one mile of the effluent generating facility (using a budget sheet) be effective in protecting sites such as a B2 stream?
Response: Where a Nutrient Management Plan is in place, soils are required to be evaluated every 6 years. Calibrations are made to manure spreading equipment in accordance with established procedures developed for the agricultural community by various educational institutions. Written material and videos are available on the subject. Nitrogen will be considered the limiting factor for developing application rates until such time as a different approach is established nationally and accepted by Pennsylvania as a standard. There will be no required analysis of manure for metals, organic compounds, antibiotics, hormones or other compounds in feeds. The Nutrient Balance Sheet has been developed and is available. It is very similar to the Agronomy Fact Sheet number 55 developed by Penn State in 1997. The document accounts for past and proposed manure applications as well as the anticipated crop to be grown The Balance sheet assists the farmer in calculating the amount of manure which can be applied to meet the agronomic rate. If application of manure within one mile of the manure storage facility can be accomplished at an agronomic rate the manure may be applied. We don’t know what a B2 stream classification is. This is not a term used in Pennsylvania to classify streams.
The following commentators provided the above three sets of comments related to the Nutrient Management regulations: (1, 2, 4, 5, 7, 8, 14, 16, 17, 20, 22, 25, 27, 31, 33, 36, 37, 39, 40, 42, 47, 48, 50, 51,52, 53, 54, 56, 57, 59, 60, 61, 62, 65, 70, 71, 73, 75, 80, 81, 82, 88, 89, 91, 93, 99, 100, 101)
Comment: Is DEP aware of the recent NRCS Draft Nutrient Management Policy requirements as they pertain to phosphorous and address any conflict they may cause with Pennsylvania’s Act 6 Nutrient Management Act? ( 104)
Response: DEP is aware of this document. This NRCS document is now undergoing extensive revision. When it is final, it will be evaluated relative to Pennsylvania’s CAFO strategy.
Comment: The Department is commended for including a requirement to have an agreement between the landowner and the permittee on lands leased for manure application. The lack of this requirement in Act 6 has been a weakness. It has also been demonstrated to us during plan reviews and conversations with conservation districts that by not requiring written agreements with persons who agree to accept exported manure some people who are writing NMPs are able to take advantage of this grey area and use people’s names who are not aware of amounts of manure they are agreeing to accept, or worse yet, don’t even know their name is being used in the plan. (41)
Response: The Nutrient Management Act requires Nutrient Management Plans for all owned and leased land. DEP is not requiring agreements for manure application from CAFOs on this land since the Nutrient Management Plan is sufficient to assure proper manure management on this land. For large CAFOs, theNPPDES permit application will require submittal of agreements for exported manure to lands not owned or leased by the CAFO permittee prior to permit issuance. DEP believes that this provision will help importers understand their responsibilities more clearly.
Comment: Pig effluent should be composted or injected into the soil (sheet composting) to reduce odor and prevent improper spreading, run-off and damage to streams. This would benefit soil quality and minimize possible ecological problems. (54)
Response: DEP agrees that this method of manure application may help reduce odors and runoff. This is an option, but not a requirement of DEP’s strategy or permit documents because this practice is not appropriate for some uses of manure.
Comment: Numerous comments were received regarding additional nutrient loads from proposed CAFOs potentially eclipsing much of the progress made toward reducing nutrient loads from existing farms from implementation of Nutrient Management Plans. These comments included:
CAFOs depend upon large quantities of feed imported from other farms or even other states. These nutrient-rich feeds create a local surplus of nutrients in the manure, the effect of which can only partially be mitigated by the export of manure to surrounding farms. The nutrient management requirements proposed for these facilities are insufficient to prevent increased nutrient loads.
While the design, construction and operation of manure storage facilities is critical, DEP's permitting program needs to also insure that CAFO wastes are not creating pollution problems once emptied from storage facilities.
There seem to be no provisions for preventing the siting of CAFOs in regard to the protection of important ecological sites, especially those designated B1, B2, etc. and G1, G2, etc.. How will this strategy fit with DEP’s proposal to adopt the watershed approach including cross-media concerns?
The import of feeds to CAFOs and support operations and follow-up operations (breeders), from outside and disposal of CAFO manure inside the watershed will shift nutrients from one watershed to another possibly causing a deficit in one and an excess in another.
Because any watershed has limited capacity to absorb nutrients, permits for CAFOs need to be allotted by the condition of the watershed and the amount of waste that can be utilized without impact. Permitting additional CAFOs based on the premise that they will find somewhere else to dispose of the manure is short–sighted and unrealistic. Allowing an increase in numbers of livestock in watersheds that are already saturated with nutrients will degrade the environment and will also bring hardship to already established farmers.
The Department should embrace a watershed protection approach that representatives of the pork industry itself have endorsed as it reviews individual applications to construct CAFOs to help reduce the risk of nutrient pollution in small watersheds, especially High Quality watersheds.
DEP should address and prevent environmental problems arising from multiple AFOs developing in a limited geographic area. This is not a concern voiced by environmentalists alone. Again our concerns are reflected in the recommendations of (Attachment 3, Page 7). Moreover, the Draft Unified National Strategy for Animal Feeding Operations (USDA-EPA, 1998) encourages states to develop watershed general permits to address cumulative water quality impacts of multiple AFOs in specific watersheds. We urge the Department to embrace this watershed protection approach that representatives of the pork industry itself have endorsed as you review individual applications to construct AFOs. One tool available for this purpose is the Cumulative Risk Index Analysis developed by EPA Region 6. This tool evaluates a wide range of conditions and estimates environmental risk posed by an individual AFO in a given watershed.
In High Quality watersheds, a double liner and two leak detection systems should be required. CAFOs should not be permitted to operate at all within Exceptional Value watersheds. (2, 5, 16, 18, 25, 27, 32, 36, 54, 61, 89, 91, 93, 99, 100, 101)
Response: The issue of controlling the number of CAFOs in a given watershed must be based on sound science. Where these operations are planned and operated with Nutrient Management Plans for owned and leased lands and manure transfer agreements for exported manure, there will be no excessive nutrients applied in a watershed. The amount of manure used on a farm will offset the normal application of commercial fertilizer used to produce a specific crop. DEP does not intend to limit the number of CAFOs in a specific watershed, but instead will follow the Nutrient Management Act and Nutrient Balance Sheets to determine if additional CAFOs can manage their manure without environmental harm.
Comment: The requirement that an erosion and sedimentation control plan be approved for the acreage on which manure will be applied is a duplication of several other requirements. A Nutrient Management Plan, which will be required for these operations already addresses the type of earth disturbance expected where manure will be applied. In addition, Chapter 102 already requires an Erosion and Sediment Control Plan for plowing and tilling activity or any other earth disturbance practice. The strategy should merely reference the Nutrient Management Act and Chapter 102. The specific circumstances under which a permittee will be required to obtain a permit should be specified. ( i.e. will fertilizer dealers, manure brokers, importing farmers). The strategy appears to be switching the responsibility from the importing farmer, as required in Chapter 102, to the manure generator which is new regulations. Many farmers who do not have a formal plan have implemented best management practices. (3, 10)
To the contrary, other commentators stated that they support the permit requirement that an erosion and sediment control plan is required for all acreage where manure is applied, not just those involving earth disturbance. They question why stringent runoff provisions are required for new housing construction, but not for pig manure being spread on fields from cesspools. Further, a commentator also said that the permit applicant should have the responsibility to verify and document that all lands to be used for the application of manure from a CAFO are in compliance with Chapter 102. Another commentator felt storm runoff control should become a mandatory part of the strategy because of the lack of proper implementation of Nutrient Management Plans and farmers not adhering to the recommended crop, but instead, planting a crop with insufficient fall cover to prevent erosion and runoff. This commentator believes that the crop in the nutrient management plan should be mandatory for both CAFOs and exported manure farms. Additionally, it was stated that the Water Quality Management Part II permit was vague in assigning the state or DEP responsibility for proper erosion and sedimentation plans. (4, 5, 7, 12, 20, 25, 31, 33, 45, 51, 52 53, 61)
Response: Chapter 102 is specific regarding when an erosion and sediment control plan is required. The language in the CAFO Strategy and permit documents may have confused these requirements. To resolve this, the documents have been revised to reference the regulations where appropriate. This does not change the fact that erosion and sediment control plans have been and will continue to be required for all farming activities where earth disturbance occurs.
Comment: It is my understanding that NPDES permits for stormwater discharges associated with construction are not required in municipalities with less than 40,000 people. Most CAFOs would be in less populated areas and, therefore, not need permits. (50)
Response: There is no such exemption under the federal NPDES regulations outlined in 40 CFR §122.26.
Comment: A Farm Conservation Plan for plowing, tilling and pasture management should be required for CAFOs. (53)
Response: While a Farm Conservation Plan is not required for all CAFOs, all plowing and tilling operations are required to have a plan under Title 25, Chapter 102.
FEDERAL REQUIREMENTS
Comment: Testimony stated that EPA requires in its "Guidance Manual on NPDES Regulations for Concentrated Animal Feeding Operations" that all CAO or CAFO operations with less than 300 animal units to be permitted when "determined to be actual or potential significant contributors of pollutants to waters of the United States", DEP’s strategy makes no mention of this group of animal operations. (1)
Response: EPA does not use the acronym CAO. This term is in the Nutrient Management Act. If there is an actual contribution of a pollutant to surface waters, this case was covered under the draft DEP strategy. The final document has been clarified to state that regardless of size, any animal operations with a direct discharge, to surface waters are required to obtain an individual NPDES.
Comment: How will an "operation" be defined for the purposes of identifying CAFOs. There are many instances where a farmer or farm family jointly or separately own different farms that might share facilities, equipment and crop fields. They might cooperate in housing livestock or poultry at different growth or production stages as part of a total enterprise even though they are owned separately and may be on separate and non-contiguous tracts of land. An example might be a dairy farmer maintains only lactating cows. His daughter raises the calves and heifers on a nearby farm and his brother houses only dry and infirm cows that are temporarily not producing milk. They may share field equipment, and may spread manure on each other’s land. Is each a separate "operation" for the purposes of counting animal units? Another example is the dairy farmer whose son puts up a poultry house on a separate farm. To get proper distribution of the nutrient-rich chicken manure, some of it is spread on the parent’s crop fields. Are the two farms to be considered one "operation"? Finally, a hog farmer owns several farrowing facilities in locations that are several counties apart. Are the two farms to be considered one "operation"? This is a difficult issue and has come up in the Nutrient Management Act program. (55)
Response: The federal regulations, at 40 CFR 122.23 (b), describe the circumstances under which an "animal feeding operation" would be considered to be under common ownership for the purposes of determining if that "operation" is large enough to constitute a CAFO. It states " Two or more animal feeding operations under common ownership are considered for the purposes of these regulations, to be a single animal feeding operation if they adjoin each other or if they use a common area or system for the disposal of wastes."
CAFOs WITH 301 TO 1000 AEUs
Comment: If more than one NPDES permit category is to be used to issue CAFO permits, we 53suggest a clarification between them be incorporated into the long-term strategy. (57)
Response: The strategy has been modified to include clarification of the categories of NPDES permits available for use.
Comment: Part 1, #1 - This should be reworded to require that all NMPs shall be reviewed by and voted on by the County Conservation District. It should also be made clear who is responsible if an appeal is filed. The absence of mention of an appeal process indicates DEP’s reluctance to allow citizens a voice in the economic development of their community. (15)
Response: The County Conservation Districts are responsible if an appeal is filed regarding the approval of a Nutrient Management Plan. Actions of the County Conservation Districts and the Conservation Commission are appealable to the Environmental Hearing Board under section 15 of the Nutrient Management Act. Since this is a matter of law, it is not necessary to include it in the strategy.
Comment: The federal Clean Water Act and the federal NPDES program require states to develop water quality permitting requirements to cover CAFOs. A CAFO of 301-1000 AEUs and a potential to discharge are a part of this permitting system. DEP considers these operations to have a potential to discharge, So, in order to meet federal requirements, why aren’t these operations required to have a Water Quality Management Part II Permit? (89)
Response: The Department has discretion in the state Water Quality Management permitting program regarding which facilities must receive a permit. Since these facilities will receive an NPDES general permit and must be sited, designed and constructed based on the Pennsylvania Technical Guide, DEP has determined that a separate Water Quality Management Part II permit is not necessary.
Comment: In an attempt to track federal guidance for identifying CAFOs with 301-1000 AUs, the strategy considers "any operation within this size category that must comply with the requirements of the state Nutrient Management Act as having a potential to discharge to surface water." Under the strategy, only operations meeting these criteria must comply with the permit-by-rule provisions of the strategy. CBF believes, based on the nature of the industry, state topography and other conditions in Pennsylvania, that all operations with 301-1000 AUs should obtain coverage under a general permit at the very least. High animal density, the factor used to identify operations subject to the Nutrient Management Act, may be one good indicator of potential nutrient-related pollution problems, but it is not a sufficient indicator of "potential to discharge" on its own. For example, animal density does not account for other relevant factors such as the adequacy of the animal facility and manure handling systems or site specific factors such as topography, water tables and precipitation.
If DEP does not require all AFOs with 301-1000 AUs to obtain coverage under a general permit, DEP should proactively determine which facilities with 301-1,000 animal units have potential to discharge or are actually discharging pollutants to waterways. The strategy should identify specific site conditions and management practices that could be evaluated by staff conducting inspections of these facilities. Although needing refinement, examples of such conditions appeared in the February 1998 draft of DEP's strategy (Instructions for Completing NPDES Permit Application for Operating New Concentrated Animal Feeding Operations Over 1,000 AEUS). (101)
Response: The revised strategy requires all CAOs with 301-1000 AEUs to obtain coverage under a General NPDES permit. All animal feeding operations , regardless of size, that discharge to surface waters are required to obtain an individual NPDES permit. This approach is consistent with the Nutrient Management Act that established animal density as the critical factor in protecting the environment and the Clean Water Act.
Comment: The Clean Streams Law prohibits the Department from permitting AFOs under a permit by rule. Section 609 of the CSL, 35 P.S. § 691.609, prohibits the Department from issuing a NPDES permit, a Part II permit, or any other permit under the CSL without first completing an "investigation" into the discharger's compliance history, including whether the discharger or any related party (partner, associate, officer, parent corporation, subsidiary, contractor or subcontractor) has engaged in "unlawful conduct" under Section 611 of the CSL. Under Section 611, 35 P.S. § 691.611, such unlawful conduct includes the violation of any rule or regulation administered by the Department, or any order, permit or license issued by the Department in any regulatory program. The strategy proposes that certain AFOs be covered by an NPDES "permit by rule." Under this proposal, however, the Department would be entirely unable to perform the compliance history investigation required by CSL Section 609 because it will not even know who is operating under such a permit by rule authorization. The Department's inability to perform the required compliance review prior to permit coverage makes the proposed permit by rule unlawful under Section 609 of the CSL. The Environmental Hearing Board recently confirmed the importance and breadth of the CSL's compliance history investigation requirement in Belitskus V DEP, EHB Docket No. 96-196-MR (Adjudication issued August 20,1998). Relying on the plain language of the CSL, the Board stated that Section 609 requires DEP to "consider the applicant's history for any and all permits issued by the Department for any site in the state" including permits issued under other regulatory programs. (101)
Response: This response covers only CAFOs, which is a subset of AFOs. The revised strategy requires coverage under a General NPES permit for CAFOs from 301-1000 AEUs. Compliance history is required as part of the Notice of Intent.
Comment: Pennsylvania has a large and widely dispersed rural population and there are comparatively few areas where AFOs can locate without affecting nearby residents. Thus, we believe DEP would be justified in establishing more protective requirements for AFOs, including lower thresholds for permits, more protective calculations of animal units, and more rigorous nutrient management requirements. (101)
Response: This response covers only the CAFO subset of AFOs. The Department does not agree that the approach proposed in the CAFO strategy and permit documents needs to be modified to provide lower thresholds for permits. The thresholds established are consistent with Federal NPDES regulations. DEP has an existing program under the state Clean Streams Law to assure environmental protection for farming operations under 301animal units or farms not covered under the Nutrient Management Act and regulations. It is DEP’s position that the Nutrient Management Act and DEP’s regulations are sufficient.
Comment: The strategy indicates that CAFOs are to have a Nutrient Management Plan to include a Contingency Plan for emergency planning and response to manure spills and "related discharges." How is the term "related discharges" to be defined? Are we going beyond the scope Act 6 which calls for a plan relating to only manure spills? (95)
Response: The phrase "related discharges" has been removed to avoid confusion. Nutrient Management Plans address contingencies for manure spills. The Preparedness, Prevention and Contingency plan that is part of the NPDES permit requirements for CAFOs greater than 1,000 AEUs covers all other pollutants stored or used at the CAFO (i.e. animal pesticides such as lice spray, emergency generator fuel, disinfectants, cleaning agents, etc.).
Comment: Commentators expressed numerous opinions as to how CAFOs in the category of a 301-1000 AEUs should be determined or permitted. These included the following:
Operations within the category of 301-1000 animal units should not be regulated using a permit-by-rule (example - 800 animal unit swine farrowing operation generates 4 million gallons of waste/year - 100,000 pounds of nitrogen - adapted from: Pennsylvania State University per State Conservation Commission correspondence dated May 28,1998 - Attachment 1). These operations can generate large quantities of waste and at the very least should be covered by a general permit with ample opportunity for public input.
Those operations with more than 500 animal units should warrant an individual permit.
Any CAFO of more than 300 AEUs in Special Protection Waters should be required to have an individual permit.
For some types of livestock, the federal use of "Animal Unit" is more protective than using DEP’s proposed "Animal Equivalent Unit" definition from the Nutrient Management Act (example: 2500 head of feeder pigs = 1000 AU under the federal definition but 6,900 feeder pigs = 1000 AEU under the Nutrient Management Act).
Several commentators opposed anything but an individual NPDES to permit CAFOs stating that problems with existing CAFOs are largely from those in the 301-1,000 AU category and that the difference between 999 and 1,000 AU is only 2.5 swine over 55 pounds.
The Environmental Protection Agency stated that they understand that AEUs are based on actual animal weights and actual time animals spend on the farm each year, making the AEU a more specific calculation than what is stated in the federal regulations, however, it will continue to be our (DEP and EPA) joint responsibility to use AUs for the purpose of designating CAFOs. (EPA included extensive calculations showing the differences between DEP's calculations of threshold for CAFOs and the federal regulations). (1, 2, 5, 14, 18, 19, 20,25, 31,46, 48, 50, 56,57,58, 61, 70, 89, 92, 101)
To the contrary, other commentators stated that the use of Animal Equivalent Units from the Nutrient Management Act in the strategy should not be changed. Every attempt should be made to make the proposed strategy consistent with the Pennsylvania Nutrient Management Act. Federal animal unit calculations are only loosely related to actual body weights and therefore are not very useful. (9, 49, 87) Another agreed with the concept of issuing a General NPDES permit-by rule for category 1 CAFOs. (55)
Response: The Department has deleted the permit-by-rule proposal and added a requirement to obtain coverage under a CAFO General NPDES Permit for those operations that are Concentrated Animal Operations under the Nutrient Management Act and are classified as a CAFO under the federal NPDES regulations. This change makes DEP’s strategy consistent with federal regulations while maintaining consistency with the Nutrient Management Act. The General NPDES permit is now applicable to operations from 301-1000 AEUs except in Special Protection Waters where an individual NPDES permit is required.
Comment: Category I should include "…those new or expanded operations with 301 to…" (55)
Response: This change has been made to modified text in a new section. .
Comment: Page 5, number1- Sentence number two could be confusing. Instead of referring to the requirements of the Nutrient Management Act the sentence should be followed by the actual requirement from the regulations. (16, 63, 99, 100)
Response: An actual quote from the regulations would make the document too long. The referenced material is available in the regulation with a summary in the strategy.
Comment: Page 5, number 2 under number 1 should be rewritten as follows: " A Chapter 102 Erosion and Sediment Control Plan, for earth disturbances related to the construction of roads, buildings and/or manure storage facilities must be implemented and available on the site at all times during construction. The plan must be approved by the county conservation district, if applicable." (16, 63, 99, 100)
Response: This change has been made.
Comment: Will CAFOs with 301 to 1000 AEUs be required to submit a NMP and an E&S plan for each farm where manure will be applied? (48)
Response: No. The CAFO permittee must complete a Nutrient Management Plan and Erosion and Sediment Control plan only for land owned or leased by the CAFO permittee. Importers are responsible for their own Nutrient Management Plans, if one is required under the Nutrient Management Act and Erosion and Sediment Control plans if required under 25 Pa Code Chapter 102.
Comment: Page 5, item 1., 3) should be rewritten as follows: " A Chapter 102 Erosion and Sediment Control Plan must be available and implemented for acreage, both owned and under contract, where manure will be applied from the CAFO." (16, 63, 99, 100)
Response: Language similar to this has been used.
Comment: Page 6, Number 5 under number 1 - The engineer and construction contractor should not certify to the Conservation District that the manure storage facility was completed according to the design and construction standards in the Pennsylvania Technical Manual because CCDs do not have the engineering expertise available to make the verification. (16, 63, 99, 100)
Response: This section has been modified to require the certification is to be directly to DEP, not the County Conservation District.
Comment: DEP or NRCS engineers must review designs for manure storage facilities to maintain engineering quality of facilities under 1,000 AEUs. A current proposal by a professional engineer is to store 5.6 million gallons of manure on 30 feet of fill. A stamp from an engineer not qualified in manure storage design or construction may be inadequate. (51, 52, 53)
Response: DEP’s engineers will be conducting detailed reviews of plans and specifications for manure storage facilities for CAFOs with greater than 1000 AEUs. DEP will request the technical assistance of engineers from the Natural Resources Conservation Service when needed. In addition, a Pennsylvania Registered Professional Engineer would not seal plans for which he/she is not qualified to prepare.
Comment: The public hearing that is required when a CAFO of 301-1000 AEUs in Special Protection Streams should be able to be waived at the discretion of DEP’s Water Quality Manager if there are no comments received during the review process after publication of the application. Many of the farms which may be CAFOs in Chester County are in Special Protection Watersheds. Having a hearing where there are no expressed concern is an expense for both DEP and the County Conservation District. (53)
Response: Existing regulations at 25 Pa. Code §95.1 require a public hearing in all cases involving discharges to waters having a water use designated as "Exceptional Quality Waters". Public hearings are not required for discharges to Special Protection Streams having a designated water use as "High Quality". The Department has proposed modifications to the existing regulations to make the hearing discretionary.
CAFOs OVER 1000 AEUs
Comment: Page 6, Section 2 states "The required elements are as follows: (1) A Nutrient Management Plan including a Contingency Plan for emergency planning and response to manure spills and related discharges, that has been submitted for approval to the county conservation district." (additional requirements are also listed) This suggests that all permittees must develop a standard Act 6 nutrient management plan for their operations. However, the draft NPDES Permit, Part C - Special Permit Requirements states that "The permittee shall develop, implement and maintain an adequate Nutrient Management Plan for all land to be used for manure spreading that is owned or leased by the permittee and is subject to the Pennsylvania Nutrient Management Act and 25 PA Code Chapter 83, Sections 83.261 to 83.381, of the Department Rules and Regulations [emphasis added]. This suggests that the permittee must develop and implement a nutrient management plan only if the permittee is also a CAO (only lands owned or under the management control of a CAO are "subject" to the Nutrient Management Act). Even more confusing is the strategy's description of nutrient management requirements for leased lands. Section C requires that "leased" lands that are not covered by a nutrient management plan must be covered by a nutrient balance sheet. But this contradicts Act 6 in that if an AFO is required to have a nutrient management plan, all leased lands would be have to be covered by the plan. It is also unclear how certain lease arrangements would be addressed, such as the case of an AFO operator who eases land to another farmer yet spread manure from the AFO on this land. All land that receives manure from an AFO, regardless of who manages, owns or leases that land, should ultimately be covered by a complete nutrient management plan or plans, and these plans should be in the AFO's file. Regulatory efforts that rely upon farm operators to comply with published but poorly enforced standards, such as DEP's Manure Management Manual Program, have been largely a failure in Pennsylvania (Chesapeake Bay Foundation, "Improving Water Quality Through Effective Implementation of Pennsylvania's Manure Management Program" -Attachment 2). Only an implemented, site specific nutrient management plan (containing the additional conditions described below) in combination with an approved erosion and sediment control plan will ensure that manure generated from an AFO will not degrade water quality and will meet the no discharge standard of the effluent guidelines. DEP should revise these sections to more clearly and specifically describe nutrient management requirements to be followed under different land management and manure application arrangements. These arrangements include: lands owned and managed by the AFO; lands leased by the AFO from another landowner; lands leased from the AFO to another individual; lands unrelated to the AFO but receiving manure from the AFO. For the purpose of clarity, we suggest a flow chart or graphic accompany the text. (101)
Response: The language in this section has been rewritten to provide more clarity regarding the manure management duties and liabilities of the CAFO permittee, manure importers and brokers. In addition, a summary of these responsibilities is now part of the strategy documents.
Comment: Page 6, Section 2, number 1 - A Contingency Plan should also be required if there is a significant slope on the property receiving manure, not only on CAFOs exceeding 1000 AUs. (15)
Response: The Nutrient Management Act regulations do not make a distinction regarding the slope of the property in relationship to the requirement for a contingency plan. DEP’s documents are consistent with the Nutrient Management Act regulations regarding this issue.
Comment: Page 6, Section 2 - Category 2 should apply to …" a proposed new or expanded CAFO of more than…"
For category 2,a "…Part II permit would also be required for construction and operation of any new or enlarged manure…" (55)
Response: The first recommended change was not incorporated because this section has been deleted. The second change was made.
Comment: Page 6, Section 2 , number 2 should be rewritten as follows: " A Chapter 102 Erosion and Sediment Control Plan, for earth disturbances related to the construction of roads, buildings and/or manure storage facilities must be implemented and available on the site at all times during construction. The plan must be approved by the county conservation district, if applicable." (16, 63, 99)
Response: This change has been made to a new, consolidated statement regarding these requirements.
Comment: Page 6, Section 2, number 3 should be rewritten as follows: " A Chapter 102 Erosion and Sediment Control Plan must be available and implemented for acreage, both owned and under contract, where manure will be applied from the CAFO." (16, 63, 99, 100)
Response: Language similar to the recommended language has been used.
Comment: Page 6, Section 2, number 4) – The Agricultural Advisory Board recommends that revisions be made to strengthen the HQ-EV designation process so that only truly deserving applicants receive these classifications. The strategy states that for earth disturbances of 5 acres or more, an NPDES Permit for Storm Water Discharges Associated with a Construction Activity would be needed for proposed CAFOs. This requirement could be satisfied either through a General Permit issued by Conservation Districts for waters not designated for special protection or through an Individual Permit issued by DEP in Special Protection Waters. Manure storage facilities to be built in Special Protection Waters are required to have a double liner system as opposed to a single clay or a single HDPE liner in waters not designated for special protection. Public hearings/meetings would be required for proposed CAFOs in Exceptional Value watersheds. In addition, DEP will assess the integrity of existing manure storage facilities in High Quality (HQ) and Exceptional Value (EV) watersheds. This brief summary clearly indicates there can be monetary and paperwork consequences for a CAFO wishing to locate in Special Protection (HQ or EV) Waters. (95)
Response: The Department is currently reviewing the regulations regarding Special Protection waters. This process has been open for public comment.
Comment: Page 7, Section 2, number 4.b. - There should be no permit for allowing any discharge into special protection waters and hog factories must not be permitted at all in a high quality or exceptional value watershed. If headwaters are polluted with manure pit (lagoon) spills and breaks that go undetected, there is no chance for rivers to recover from existing pollution. Are these special protection permits ever rejected? Permit requests to site CAFOs in High Quality, Cold water Watersheds should be subject to especially careful scrutiny before siting is allowed. (15, 17, 22, 25, 34, 89, 91)
Response: The manure storage facilities for CAFOs are designed to ensure there is no discharge. The capacity of the storage facility must be capable of handling the liquid and solid component of the manure for the entire storage period plus have the additional capacity to handle precipitation from a 25 year, 24 hour storm event and still have freeboard. In addition, management practices must be in place to keep the level of liquid in the storage facility at a safe level. All applications for NPDES permits proposed in Special Protection Waters receive public notice and are reviewed carefully by DEP.
Comment: Page 7, Section 2, number 5 - The statement that one of the special conditions of the Part II permit is that the permittee assumes responsibility for the application of all manure generated should be deleted. Are we placing a cradle to grave responsibility on a farmer who may sell or give manure away and it is transported to another county or state? (95)
Response: This section has been amended to clarify the requirements. CAFO permittees are responsible for manure applied to their land as well as land they lease. For CAFOs over 1,000 AEUs, the transfer of manure to a broker or an importer must be conducted through an agreement between the permittee and recipient of the manure. A manure transfer sheet and Nutrient Balance Sheet or Nutrient Management Plan if required by the Nutrient management Act must be part of the agreement. Responsibility for proper application of the manure at an agronomic rate is then placed on the importer or broker.
Comment: Page 7, Section 2, number 5 - A Water Quality Management Part II permit should be required for all facilities that require concentrated manure storage, regardless of the number of animal units present. When and where is the public comment period to be held for these standards? (1, 15, 50)
To the contrary, another commentator stated that it is critical for Pennsylvania Agriculture that, as is presently outlined, we require WQM Part II and CAFO NPDES permits only for CAFOs above 1000 AEUs. (87)
Response: DEP decided to limit the requirement for a Water Quality Management Part II permit to manure storage facilities serving CAFOs of 1000 AEUs and above for several reasons. First, this approach is consistent with the federal permitting requirements. Second, even without the need for a permit, smaller animal feeding operations that install manure storage facilities must comply with either the Pennsylvania Technical Guide or the Department’s "Manure Management for Environmental Protection" manual. DEP anticipates modifying the manual to be more consistent with the Pennsylvania Technical Guide in the near future. Both of these documents provide for a design of manure storage facilities that protects the environment.
Comment: Page 7, Section 2, number 5 - should be rewritten as follows: " A water quality management part II Permit, approved by the DEP, is required for manure storage facilities on CAFOs prior to construction and operation." (16, 63, 99, 100)
Response: This change is not needed since only DEP approved permits are issued.
EXISTING CONCENTRATED ANIMAL FEEDING OPERATIONS OVER 1000 ANIMAL EQUIVALENT UNITS
Comment: If it is determined that the integrity of the manure storage facility is insufficient are fines imposed and the facility shut down until a permit is approved? This section must be clarified. (15)
Response: DEP will take appropriate action to bring a non-complying manure storage facility into compliance. The action taken is dependent upon a number of factors including the extent of the problem and the willingness of the operator to work toward compliance. In severe cases that have resulted in environmental damage or where there is no cooperation to resolve the problem, fines may be imposed and action taken to abate pollution.
Comment: Describe the process and schedule that PADEP, the PA Department of Agriculture and the Conservation Districts will adopt to ensure permits are issued for all CAFOs in Pennsylvania. What is your schedule for annual permit issuance during the next five years? (57, 58, 63)
Response: For new CAFOs with greater than 1000 AEUs, compliance is required prior to beginning operation. For existing CAFOs with greater than 1000 AEUs, compliance is phased in over one year. For all other existing CAFOs, compliance is phased in over 3 years. DEP is currently working on a Compliance Strategy to address the schedule to be used and the roles of various agencies. The Department will have the primary responsibility for this strategy and identifying and permitting existing CAFOs. The Compliance Strategy will describe the approach DEP intends to use to assess existing CAFOs, obtain compliance at these facilities and issue NPDES permits over the next 3 years. This strategy will, in part, be patterned after EPA’s Clean Water Act Compliance Audit Program with the National Pork Producers Counsel. DEP will be working with state agricultural organizations to bring Pennsylvania farms into compliance with federal law.
Comment: Both new and existing farms with 301-1000 AUs will require NPDES permit coverage if pollutants are discharged into navigable waters (through a manmade ditch, flushing system or other similar man-made device), or if pollutants are discharged directly into US waters which originate outside of and pass over, across or through the facility or otherwise come into direct contact with animals confined on the operation. (1, 57)
Response: We agree and have clarified the strategy and permit documents.
Comment: Delete " integrity of existing manure storage facilities of" and insert in lieu thereof
" potential to discharge manure from". Change "replace the manure storage facility" to "replace an existing manure storage or need to construct a manure storage facility to eliminate the potential to discharge." The certification of existing manure storage facilities in the last sentence should be by a PA registered professional engineer. (55)
Response: This first change was made. The second sentence was modified to include construction of a new manure storage facility. Certification will be by a PA registered professional engineer.
ALL ANIMAL OPERATIONS WITH DISCHARGES TO SURFACE WATER
Comment: It should be explained that "normal operating conditions" means all storms less than 25-year, 24-hour rainfall event (55)
Response: This change was made.
COMPLIANCE AND INSPECTION OF CAFOs
Comment: The application of the Clean Streams Law must be pro-active. DEP’s policy of fining violators after the fact does nothing to protect, or even begin to restore our waterways. (56)
Response: Fines are normally not issued until after a violation of a law or regulation has occurred. To assess a fine otherwise would not be appropriate. In addition to fines and penalties, the Department has a very active program of operator training, outreach and assistance which has assisted the Department and permittees in achieving compliance without having to resort to after the fact fines. This training, outreach and assistance effort will be initiated for CAFO operators as well.
Comment: Given that DEP staff would likely focus inspections on existing AFOs with over 1,000 animal units during the first three years of the program, CBF recommends that the Department follow a "two-phase" approach to evaluating AFOs between 301-1,000 animal units. For the first three years, required compliance with the Nutrient Management Act could be used as an initial indicator for "potential to discharge." At the end of three years, DEP would initiate an inspection program of operations in this size category to evaluate potential to discharge based on conditions described in the strategy. These inspections would be used in combination with or instead of the Nutrient Management Act threshold as the other indicator. Once again, the simpler and more protective approach would be to simply require at least general permit coverage for all facilities with 301-1000 Animal Units. (101)
Response: DEP is currently working on a more detailed compliance strategy with EPA and will consider these comments in the development of that strategy. The final strategy includes use of a general permit for facilities within the 301-1000 AEU category. This approach is consistent with the existing focus of EPA with regard to CAFOs and also maintains consistency with the requirements of the Nutrient Management Act. The revised strategy uses a General Permit for this size operation that is a CAO under the Nutrient Management Act.
Comment: The strategy states that DEP will assess the integrity of existing manure storage facilities of existing AFOs over 1,000 animal units. The strategy should clarify how DEP will address AFOs of all sizes that have inadequate or faulty manure storage systems. CBF believes all such operations should be required to take immediate action to abate pollution and improve their manure storage facilities. (101)
Response: When the Department finds a manure storage facility is inadequate or faulty, actions are taken as appropriate to correct the problems.
Comment: New or expanding operations should be required to meet the highest standards before commencing operations and throughout their operational lifespans. Existing operations will be able to meet or implement many of the requirements of the strategy, but others will have to be phased in over a reasonable period of time. The strategy should specifically address the differing time frames for compliance applicable to existing and new or expanding operations. Where appropriate, we have noted such differing compliance capabilities in our discussion below. At the latest, all AFOs subject to requirements described in this strategy should be in full compliance with all standards within 10 years. (101)
Response: These recommendations will be considered as DEP establishes a more detailed compliance strategy. This strategy will be made available for public review and comment prior to implementation.
Comment: Does DEP have a comprehensive list of all existing CAFOs and all CAFOs presently planned? How many are there and how many have submitted nutrient management plans? The list should be used to not overload the watershed with nutrients. Without a list how can DEP possibly know what impact CAFOs have on water quality? How many CAFOs have been visited to check on implementation of the plan? Existing CAFOs should be identified and permitted before new applications for construction are considered. It is reprehensible that the strategy puts priority on permitting new facilities considering DEP’s obligation to protect the waters, culpable resistance in providing the long overdue system to permit CAFOs and the reluctant acquiescence with which DEP finally complied with the law. The strategy should include a detailed plan describing how information about individual CAFOs between 301-1,000 Animal Units is to be obtained and updated. This data gathering plan should include an MOU to be signed by DEP, the State Conservation Commission and the Department of Agriculture describing how each agency will assist in obtaining and sharing information on CAFOs. (17, 21,31, 32, 44, 55, 58, 61, 65, 93, 101)
Response: DEP does not have a comprehensive list of CAFOs in the Commonwealth and intends to work with other state and federal agencies to bring all existing CAFOs into compliance. A Compliance Strategy is being developed to stimulate CAFOs to apply for appropriate permits. This strategy will, in part, be patterned after a proposed USDA/EPA Clean Water Act Compliance Audit Program with the National Pork Producers Counsel. There will be no impact from a CAFO on a watershed because the nutrients from the CAFO will be applied at an agronomic rate and manure storage facilities will be constructed to prevent pollution. DEP does not believe it would be appropriate to stop new CAFO facility construction pending the permitting of all existing CAFOs. The Department is moving as expeditiously as possible to establish an effective CAFO permitting program.
Comment: Why does DEP plan to site new facilities before identifying impaired watersheds and establishing TMDLs in watersheds where CAFOs are currently operating. (93)
Response: A properly designed, constructed and operated CAFO will have not have an impact on the water quality in a watershed area.
Comment: There was concern expressed that owners of leased farms under a contract with CAFO permittees and employees of CAFO operations are afraid to report misconduct. A suggestion was made to initiate a toll free hotline number to be posted at each CAFO. A commentator questioned the process available for a citizen to file a complaint against a CAFO and what steps DEP will take in response. EPA stated that, based on complaints received, there is lack of clear directions to follow in the case of a suspected violation or complaint and that a clear process is needed to direct complainants to the proper agency. (1, 14)
Response: DEP has a toll free hotline for anonymous complaints. DEP sees no need to post this number at CAFOs since it is not required to be posted at any other DEP permitted facility. DEP has a well-established complaint process in use throughout the state. Each regional office has a "complaint coordinator" whose sole duty is to assure complaints are delivered to the appropriate staff within DEP for action and to track actions taken on each complaint. When complaints require referral to another agency, the complaint coordinator completes such a referral. This procedure has worked well in the past and allowed DEP to resolve thousands of complaints. DEP believes this process will be effective for CAFOs.
Comment: Concern was expressed that manure storage facilities in CAFOs receive afterbirth, antibiotics, wash water and even heavy metals and now must be considered a cess pool. The commentator demanded that the exact contents of manure storage facilities must be monitored by a neutral party. If impermissible waste is detected, DEP should assure the CAFO immediately ceases discharge/operation. (14, 93)
Response: The materials that are allowed to be stored in a manure storage facility are listed in the permit. Wash water from cleaning activities at the CAFO and milkhouse wash water are allowed to be stored in the manure storage facility. Allowing milkhouse waste to be stored in a manure storage facility and land applied with manure has been in practice for years with no known adverse environmental impact. The Department believes all washwater that comes in contact with manure should be collected in the manure storage facility. This practice prevents problems associated with manure runoff through storm drains or other conveyances that do not lead to the manure storage facility. Antibiotics that are excreted with manure and urine from the animals are allowed to be stored in the manure storage facility. The Department is not aware of any documentation that this practice is at all harmful to the environment or public health. The inadvertent introduction of pieces of afterbirth to the manure storage facility is allowed. Generally, this material is disposed separately, but, occasionally, small amounts of afterbirth get mixed with manure and ends up in the manure storage facility. Once again, DEP is unaware of any problems associated with this material in manure. While animal foods may be fortified with metals, the industry is working to reduce the amounts of these metals because of the costs associated with these additives. This issue is being evaluated on a national level, but DEP is unaware of any national policies or regulations being developed to regulated these materials in manure more closely.
Comment: Commentators stated that DEP should develop and implement a comprehensive inspection program to guide compliance activities, in contrast to Pennsylvania’s current approach of relying upon complaints and pollution events. Regular inspections of CAFOs , like inspections of other industries, will be more fair to the agricultural community, will enhance community relations and will be consistent with DEP’s emphasis on compliance assistance and pollution prevention. One commentator pointed out a 1991 study by USDA-NRCS which showed that almost one fourth of the operations surveyed overfilled the manure storage facilities. Another disturbing finding was that a majority of the operations did not have nutrient management plans and less than half of those producers who had plans were actually following them. Another commentator reported that manure storage facility spills and breaks go undetected on a fairly regular basis as evidenced by a citizen’s group in Monroe County that discovered leaks during their inspections of a CAFO. Commentators support frequent unscheduled inspections by DEP. A stronger commitment to inspect both new and existing CAFOs should be made by DEP. The strategy should describe the planned inspection program in greater detail and clearly state that both new and existing AFOs will be inspected; that these inspections will address manure storage and application activities; that inspection reports will be readily available to the public, describe what specific features of the storage system and manure application activities will be evaluated by DEP and how. Storage, transportation and manure application sites and activities should be addressed. There should be no self-monitoring allowed at CAFOs because current abuses prove that these individuals misuse the public trust. DEP should conduct unlimited spot checks and surprise inspections to assure compliance. (1, 5, 13, 14, 21, 23, 25, 34, 61, 93, 101)
Response: DEP is developing a Compliance Strategy for CAFOs. This document will include more detail regarding the issues described above. The draft strategy will be available for public review and comment.
Comment: Several commentators asserted that existing operators of animal feeding operations were operating in violation of existing laws and causing manure spills and fear that future operations this winter will result in additional spills at the same facilities. DEP allegedly allowed one operation to pump manure from an overflowing storage facility onto frozen ground with two inches of slush covering it. They question why DEP has not fined these violating operators. In addition, an applicant for a new CAFO has been cited and fined, and was even required to cease operations until corrective measures were taken at another existing facility. DEP should conduct unannounced inspections. Operators who have been cited more than once should be considered violators in the strategy and DEP should institute a "Bad Actors Clause" to track violators and take aggressive enforcement actions to protect the public from repeat violators. A three-year moratorium on new permits should be imposed on a CAFO following a DEP violation. Don’t waste money by babysitting those who continually cause abuse. Shut them down immediately. All existing facilities should be permitted before new facilities are considered for permits to allow DEP to concentrate on existing "bad actors". One commentator questions the Department’s ability to regulate and inspect CAFO when DEP lacks resources and personnel to carry out present responsibilities. The money is there for DEP’s inspection and implementation of the CAFO strategy if DEP just makes the permit fee comparable to the manpower needed to execute them. Fines should not be bargained down to less than ten percent of what was originally levied. Big business needs to be liable. (1, 12, 13, 14, 18, 20, 21, 33, 58, 65, 82, 85, 90, 91, 93, 105)
Response: DEP intends to strengthen its efforts to achieve compliance at existing CAFOs.
The approach to be used will be described in DEP’s "Compliance Strategy" which will be available soon for public comment. DEP has used its enforcement authority to correct pollution from improperly managed manure that impacted water quality.
Comment: The strategy should specifically describe how various kinds of legitimate citizen complaints will be addressed. DEP should take the lead responsibility for responding to all reports of suspected violations at AFOs with over 301 animal units. DEP should maintain records of how all reports of suspected violations are resolved, including those addressed by conservation districts. Finally, CBF believes that it is inappropriate to rely upon Pennsylvania Farm Bureau representatives to investigate pollution-related complaints on AFOs over 301 animal units. (101)
Response: When complaints or problems involve existing or potential water quality pollution, DEP takes the lead role in resolving the problem. DEP and the Pennsylvania Farm Bureau have worked well together in the past to resolve other agricultural complaints.. DEP sees no reason to change this good working relationship. DEP maintains records of cases it investigates. Other agencies will maintain records of cases in which they are involved.
Comment: The observable integrity of many components of an AFO's manure handling system is most evident during or immediately following periods of rainfall. Thus, we recommend that DEP commit to conducting a substantial fraction of their inspections of AFOs during or immediately following periods of rainfall. This "wet weather" inspection program will better enable DEP staff and the AFO operator to identify and address potential sources of runoff. Moreover, the readiness of DEP to conduct field visits during these periods will improve the department's ability to respond to citizen complaints that often coincide with major storm event. (101)
Response: DEP will incorporate periodic "wet weather" inspections into its compliance strategy at those manure storage facilities that have a demonstrated improper operation practices in the past or where there are legitimate citizen complaints filed.
Comment: A commentator took offense at the Department calling CAFO permittees its "Clients" since this infers payment for services rendered. DEP is paid by all the taxpayers. Profit maximization is not the responsibility of DEP, the protection of the environment is the responsibility of DEP. (1, 21)
Response: This word was deleted.
Comment: When DEP has determined that non-compliance has occurred, DEP should identify the extent of the non-compliant occurrence and anticipated remedial action to the municipality and/or County so local resources or personnel could be deployed. (70)
Response: If an emergency or extreme situation occurs, DEP routinely notifies local agencies.
Local agencies may access DEP records for more routine cases of non-compliance.
Comment: All parties involved in the ownership, management or in contractual agreements with the CAFO facility should be made available and all previously issued permits to any of these parties should be listed in the permit applications. Principals , as part of a CAFO application, should be required to reveal any present or past violations of environmental law anywhere in the State by any jurisdiction against any CAFO in which they have a financial interest. This will make it easier to determine a compliance history. (1, 4)
Response: A compliance history will be required as part of the permit review process. The compliance history will be consistent with existing regulatory requirements.
Comment: PADEP should provide local citizens with the resources to obtain independent inspections of manure storage facilities, transportation arrangements and application site. (25)
Response: DEP and the County Conservation Districts are directly responsible for the activities listed.
Comment: Who will foot the bill for the expense for the requirement that a Pennsylvania Registered Professional Engineer certify the structural integrity of the manure storage facility? (49)
Response: The CAFO NPDES permit holder or applicant will be responsible for the expense associated with this existing requirement of the Nutrient Management Act.
Comment: If a manure storage facility spills into a stream, who would pay for the clean-up costs should a farm go bankrupt? Adequate bonding should be required of CAFOs to correct any environmental damage done by these operations and to ensure effective remediation of the site if the operator goes out of business. What is the Department’s "appropriate action" to abate pollution? Will tax dollars be used for cleanup? The language is too vague. (15, 25, 36, 38, 92)
Response: There is no bond required. DEP will take immediate action to abate pollution. DEP would take action to recover any costs it incurs through existing law.
Comment: Will hog factories be included in the DEP’s computerized reporting system which provides public access to industry compliance (EPICS system)? If so when will they be included and what infractions will be listed along with subsequent actions to be taken by DEP? (17)
Response: CAFOs will be included in the EPICS reporting system. The system tracks permitted facilities so they will be included as permits are issued. The EPICS system lists all infractions noted during DEP inspections in several categories of significance.
Comment: How often will CAFOs in the category of 301-1000AEUs be inspected? (53)
Response: Smaller facilities are normally inspected on a demand basis. The frequency of inspection would be based upon the compliance history of the facility, record of complaints and discretion of the inspector. No minimum frequency of inspection has been established.
Comment: All animal operations in the state will have some discharge to surface waters during a storm event. The strategy needs to be rethought. (53)
Response: CAFOs are not permitted to have a discharge to surface waters up to a storm event of 25 year / 24 hour storm event. The manure storage facility must be designed to withstand this storm event with freeboard.
Comment: Page 8 under compliance strategy - Before the CCDs can "cooperatively address complaints concerning CAFOs" with DEP and the Pennsylvania Farm Bureau, they may need to amend some of the delegation agreements to accommodate any additional responsibilities. DEP is clearly trying to shuffle more of the responsibilities for their CAFO policy implementation onto conservation districts. A great deal of county and local contributions go to support both the Chapter 102 and Act 6 positions and additional cost shearing will be needed if more effort is required. (16, 63, 99, 100)
Parts of the draft strategy assume the conservation district staff are superhuman. For example, the districts will have no way of tracking all of the applications of nutrients from various sources since reporting of such applications is not required. It is possible for a farm to import manure from several producers without knowledge of the district. Other soil supplements may also be in use. It was also noted that no additional funding for districts was mentioned in the strategy. Other commentators assert that a county official who will be charged with protecting the environment said "We are more than willing to do our delegated responsibilities, but we don’t want DEP assigning us things to do". Its clear this official sees himself as little more than a bystander in a protection effort in which he is the principal party. County conservation staff reportedly stated that they are extremely frustrated with the expectation that they will now monitor CAFOs. They have established personal relationships with the farmer and are reluctant to report them to DEP. Other commentators stated that having local representatives of the Farm Bureau monitor CAFOs is like having the fox guarding the hen house. The Pennsylvania Farm Bureau is very pro agribusiness and at a state level tends to be very supportive of CAFO development, to the detriment of the family farm. DEP relies heavily on conservation districts to investigate complaints and yet many districts are uncomfortable with this role given their more traditional role of providing service to the agricultural community. (19, 33, 60, 101)
Conservation districts will be conducting Chapter 102 and Act 6 inspections. Are the districts going to be asked to conduct inspections above and beyond what is expected of us in the Act 6 Administrative Manual? A Level III enforcement program should be made available to conservation districts for Act 6. Individuals making complaints should be held accountable for the validity of their complaint. District staff is not trained to handle emergencies and the appropriate agency should be identified so the public knows who to call. (16, 99,100)
Response: DEP is anticipating asking County Conservation Districts to assist DEP in handing a Notice of Intent information package to farmers when their Nutrient Management Plan is submitted for review if they are CAFOs. DEP is not trying to transfer responsibility for this program to County Conservation Districts. There will be no additional work required of Districts regarding CAFOs beyond giving farmers the information package. The strategy has been revised to eliminate any language that indicates otherwise. DEP intends to continue to work with the Pennsylvania Farm Bureau to investigate agricultural complaints and DEP will investigate complaints related to water quality protection. This working relationship has been effective in the past and we believe it will continue to be effective in the future.
Comment: Strategy -section on compliance on page 8 - states " Where DEP determines non-compliance has occurred, appropriate action will be initiated to abate pollution." Several commentators said the document should be more specific, if possible, about what the appropriate action might be. (3, 95) Other commentators suggested that stiff penalties including shutting down the CAFO should be established for violations. No negotiation of fines should be allowed once they are set. There should be 30 days to pay or the fine should be increased by 10% per day until paid. Penalties should be applied fairly but timely. Heavy penalties must be exacted to ensure CAFOs are liable for any environmental damages caused by their existence. (4, 14)
Response: DEP’s Compliance Strategy, currently under development will address issues related to penalties, penalty negotiations and time limits for payment. These issues will be managed in a manner similar to the way they are managed for other DEP permittees.
LAND USE ISSUES
Comment: Local municipalities and/or County land use controls may be of importance regarding the requirement that copies of other permits (encroachment and wetland) be submitted. Does the review process for Part II –permits require local approvals and or sign-off prior to the Department’s issuance of the permit? We suggest the process may benefit from local zoning reviews which may take into consideration location and other siting considerations such as odor or pest control land use review is strengthened. Concurrent local and DEP reviews would identify situations where local zoning prohibits intensive agricultural use in a given zone. (70)
Response: The review process for WQM Part II permits does not require local approvals and sign-off by local government prior to the issuance of a permit. There is no statutory authority to require these approvals. Municipalities may, however, conditionally approve a land development plan contingent upon the applicant's receipt of any required state or local permits. If local zoning prohibits intensive agriculture in a given zone and a Water Quality Management Part II permit is issued for a CAFO in that zone, this has no legal impact on the local land use decision.
Comment: Politicians, DEP personnel and Department of Agriculture personnel (off the record) all admit they would be opposed to a CAFO operation within a few hundred feet of their home, child’s elementary school or favorite restaurant. The hypocrisy that they would approve permits for a CAFO in someone else’s neighborhood is unacceptable. (18)
Response: The siting of CAFOs is a local municipal function that is based on local land use planning and zoning ordinances. DEP reviews CAFO proposals based on water quality issues. As long as the manure storage facility meets the requirements of the permit documents and Department regulations, DEP will issue the permits. Personal biases of Department staff either in favor of or opposed to specific activities are not allowed to be considered.
Comment: Where a local ordinance applies and should an operation be notified by municipal and/or County officials of the need for remediation, does the Part II Permit or the NPDES permit become of issue? We suggest that compliance with local ordinances become a condition for these permits. Does the Part II or the NPDES permit necessitate a Department response when a municipal and/or County action must be taken? Local and state actions should be coordinated. (70)
Response: DEP’s permit action is taken independent of any local land use or zoning action. Local approvals are sometimes conditioned on the receipt of necessary state or federal permits. It is suggested contact be made with a municipal solicitor for details on the provisions of applicable municipal codes.
Comment: Commentators stated that increases in truck traffic to serve the needs of a proposed CAFO (hauling hogs, grain, feed and manure) should be calculated accurately and impacts on rural state roads which are only 20 feet wide, curvy and near two organized summer camps and 67 private camps should be assessed. One commentator estimated that sixteen trailer loads of 3,000 gallons of manure would be transported from a CAFO each day. Another commented on the excessive distances to transport manure (12 miles one way) with a tractor and 4,000 gallon tank trailer through the main highway in Annville 120 times per year (transporters should also be regulated). Another commented on the impact on municipal road infrastructure and liquid fuels budgets. A commentator is concerned about increased emissions produced by increased truck traffic to serve CAFOs (4, 6, 8, 29, 56, 70, 74, 75, 77, 78, 79, 80, 96, 105)
Response: Issues related to local or Commonwealth roads and traffic concerns should be directed to the local municipality or Pennsylvania Department of Transportation. DEP has no direct statutory or regulatory authority to regulate trucks hauling manure.
Comment: Section 17 of the Nutrient Management Act (Act) allows municipalities to adopt and enforce ordinances or regulations which are consistent with, but no more stringent than the Act. Since the Act neither provides for nor prohibits isolation distances, can municipalities adopt and enforce setback ordinances ? (60)
Response: DEP suggests an attorney familiar with local land use planning and zoning be contacted for advice on this issue.
Comment: Commentators stated that the siting of a CAFO near their property would rob them of the present value of their property and force them to sell at greatly devalued prices. (21, 29, 75, 96)
Response: The location of CAFOs is a local issue governed by land use planning and zoning regulations under municipal codes and the Pennsylvania Municipalities Planning Code. DEP Is not authorized to regulate local land use and planning concerns.
Comment: If DEP is not responsible for determining if a CAFO is an appropriate land development for a local community, then planning and permitting of CAFOs should be handled locally where the best interests of the community are maintained. (15) To the contrary, to insure proper location of these facilities, the ultimate site approval should be under the jurisdiction of DEP and an intrinsic part of the permitting process. State-wide minimum siting requirements for CAFOs would prevent a patchwork of local laws, countless local legal battles and protect the environment statewide. (69)
Response: There is no statutory or regulatory basis for either of the above recommendations. .
Comment: Numerous commentators were concerned with the general issue of the location (siting) of CAFOs and related operations in relationship to other things. The isolation distance recommendations included the following:
Mandatory setbacks and riparian buffer requirements consistent with best management practices that consider slope of the land, soil type, sensitivity of the watershed to nutrient pollution and goals of nutrient reduction to the Chesapeake Bay.
No manure spreading or containment within 1000 feet of an exceptional value stream, wetland or stream classified as suitable for trout stocking or propagation.
CAFO facilities setbacks from Quality Streams and Tributaries and wetlands should be 500 feet or more, not located in wetlands and not in or near a 25 year/ 24 hour storm event flood plain or in a 100 year flood plain. DEP must reevaluate its definition of wetland. A wetland delineation should be required.
Setbacks from property lines and well heads should be increased to 500 feet to prevent problems from runoff threatening drinking supplies.
Setbacks of 1 mile should be established to protect citizens from airborne viruses and bacteria.
No CAFO should be constructed within one mile of a school, public building, medical facility, business that serves the public (i.e. restaurant or campground) or recreation area to protect children from viruses and bacteria.
No spreading of manure should be allowed near any well. No well should be located downhill of a manure storage facility or within 100 yards level or uphill and all wells should be cased to full depth.
The CAFO strategy should establish criteria to determine appropriate site specific (rather than generalized) setbacks for CAFO facilities from environmentally sensitive areas such as streams, wetlands, wells, sinkholes, etc..
No CAFO, manure storage facility or manure from a CAFO should exist or be distributed within five miles of any public water company well head or river.
CAFOs should be located in open spaces far away from residential homes, small farms, and where no odors can make people sick and where there is an adequate water supply.
CAFOs should not be located near health care facilities, recreation areas, playing fields, areas where food is grown, human gathering places, factories that make things humans use, drinking water source watersheds, state parks, homes, elementary schools, churches, businesses; in hollows, on hills or on barren landscapes.
The permit documents are too vague and must require strict and specific standards for the siting of CAFOs.
There are no minimal acreage requirements for the site itself. A facility with 5 acres under roof may be sited on a 6 or 10 acre site.
DEP should establish criteria to determine appropriate setbacks for animal facilities and manure storages from environmentally sensitive areas including streams, wetlands, wells, sinkholes and tile drainage lines. These criteria must address site specific differences of each AFO proposal while meeting minimum setbacks applying to all such facilities.
The setbacks contained in the nutrient management regulations will be grossly inadequate for AFOs over 1,000 Animal Units. For example, the nutrient management regulations only require setback distances between manure storage facilities and surface waters of 100 or 200 feet depending on slope. The regulations only require a setback distance of 100 feet between manure storage facilities and public drinking water wells. In fact, the setbacks contained in these regulations are substantially less protective than even those recommended by the National Environmental Dialogue on Pork Production (NEDPP). The Dialogue's report states that "Any new manure and wastewater facility at a new or expanded pork production operation should be located no less than 500 feet from the facility to any surface water...and no less than 1000 feet from the facility to any publicly-owned drinking water well..." (Attachment 3 page 16). CBF believes that in many circumstances even the NEDPP's recommendations for setbacks will be inadequate.
It was suggested DEP consider isolation distance used by other states (information on other states was attached).
Why is lagoon siting for CAFOs not subject to siting restrictions used for landfills and other waste management activities?
Land use issues which must be addressed on a state-wide basis to guide local municipalities in making informed land-use decisions include: impacts on the aquifer from withdrawal of groundwater and surface water; the setback of manure storage facilities from streams and other waterways should be increased; ordinances to insure adequate stormwater management; adequate setbacks to minimize health impacts from vented air; adequate road construction and bridge weight capacity to handle increased truck traffic; and total watershed animal density related to land available for manure application. DEP may permit new facilities only to later find out that new air quality standards make those facilities poorly located. The Nutrient Management Act has a procedure for the State Conservation Commission or delegated Districts to modify setback requirements for manure storage facilities when the siting restrictions would make the placement economically unreasonable or physically impractical, as long as water quality is protected. Why not establish more protective standards and rely on this mechanism to provide some flexibility for particular site circumstances? (1, 4, 5, 6, 12, 14, 17, 18, 25, 28, 38, 39, 42, 47, 50, 51, 53, 57, 58, 60, 61, 62, 69, 74, 80, 82, 83, 85, 86, 88, 91, 92, 101, 105)
Response: DEP will adhere to the isolation distances established for manure storage facilities in Title 25, Chapter 83, Nutrient Management regulations. In addition, DEP has established a requirement that manure storage facilities may not be sited in a delineated wetland or 100 year floodplain. DEP has no statutory or regulatory authority to establish any of the other isolation distances listed above.
Comment: Any references to "siting" in any of the documents should be reviewed to insure that they refer only to geologic and environmental considerations. (3)
Response: The documents have been reviewed to assure any references are to those siting conditions directly related to the protection of surface and groundwater and other environmental amenities for which DEP has statutory and regulatory authority to regulate.
RELATED DOCUMENTS
Comment: The last sentence should read " In addition, the applicable standards and specifications from the Pennsylvania Technical Guide and the Manure Management for Environmental Protection Manual and its supplements are available upon request from DEP at…" (55)
Response: This change has been made.
PUBLIC PARTICIPATION
Comment: While we welcome constructive input from those knowledgeable in agricultural practices and the various state and federal agencies that govern our industry, we are concerned about the public input sections in the strategy. Emotionalism and sensationalism should not become a valid part of the process when NPDES and Part II permits are issued. Requiring a farmer to make four separate weekly public notices with a possibility for a public hearing could have a negative impact on the farmer while serving no purpose since notice must be given whether or not an application is approved. (97)
Response: This provision was included in the strategy to assure the public has an opportunity to express its concerns regarding a proposed CAFO. Comments outside the authority of the Department’s regulations will not be considered as part of the NPDES or WQM Part II permitting process. The Department has established public notice and comment procedures consistent with the Clean Water Act and the Pennsylvania Clean Streams Law.
Comment: The proposed strategy document indicates that all public comments received regarding the individual NPDES and Part II permits would be considered and responded to before DEP could take action on the permit applications. The Agricultural Advisory Board strongly suggests that a time be created for this review. Noncompliance with the time frame would deem the permits approved. As presently written residents and groups hostile to agriculture could flood DEP with "comments" and place an applicant in a holding pattern for months or longer. (95)
Response: Publication of the receipt of a complete application for Water Quality Management Part II and NPDES permits is published in the Pennsylvania Bulletin. Following the public comment period, DEP will have a specific time period in which to act on a complete application for a permit depending on the type of permit being reviewed. This time period will be under the Department’s Money Back Guarantee program.
Comment: The proposed strategy indicates that all public comments received regarding the individual NPDES and Part II permits would be considered and responded to before DEP could take action on a permit application. The permit process includes a Nutrient Management plan approved by conservation districts. Seeing that the conservation district is to take action on a nutrient management plan, are these comments to be used by the district? The time frames in Act 6 may not allow for this. (95)
Response: The development and approval of the Nutrient Management Plan by the Conservation Districts and any opportunities for public comment provided under that program are a distinct and separate activity from the public comment period provided under DEP’s permit review process. Comments regarding the Nutrient Management Plan should be addressed to the County Conservation District during its review of the plan. Any subsequent comments on the adequacy of the Nutrient Management Plan or complaints regarding implementation of the plan received during DEP’s permitting process will be refered to the County Conservation District.
Comment: The Document entitled "Instructions for Completing and Submitting' an NPDES Application for New CAFOs" states that based upon comments received the Department may hold one or more public meetings/hearings on the application before taking final action. It is the Agricultural Advisory Board's understanding that the Department believes that 'one" comment could justify public meetings/hearings. The Board has several concerns relating to this philosophy. Any call for a hearing should be based on scientific or technical concerns and not emotionalism. Another scenario would be the request for a hearing from an individual from another state. (95)
Response: DEP will evaluate the reason for the request for a public hearing before requiring one. Hearings will not be held unless the concerns raised are directly related to specific technical issues in the pending permits.
Comment: The requirements for CAFOs that exceed 1000 AEUs indicate that both the department and the applicant must provide public notice on permit applications. The Agricultural Advisory Board questions the need for duplication of this public notice. (95)
Response: DEP’s notice will be placed in the Pennsylvania Bulletin The notice by the applicant will be in a newspaper of general circulation in the area of the proposal. DEP believes these two notices are distinctly different in the audience they reach and that both are necessary.
Comment: This document also indicates that proposed CAFOs in Exceptional Value watersheds will require public hearings and meetings. The document goes on to state that public hearings and meetings may be required for other CAFO proposals in the 301 and 1000 AEU category if there is "significant interest." What do we mean by this? Are we talking one request in non-exceptional value watersheds. What are the criteria for holding this hearing? A limit should be placed on the number of required meetings. (95)
Response: The Departments regulations require a public hearing for all permits proposed for Exceptional Value waters. The decision to hold public meetings or hearings in other watersheds is made by DEP based on the relevance and amount of public comment/interest. While this is at the Department’s discretion, a request from one citizen with relevant comments may be sufficient to hold a meeting or hearing
Comment: It is impossible to build public participation into the process for an NPDES General Permit for stormwater discharges associated with construction activities. Emotionalism which often exists around CAFO proposals behooves the Department to look into the overall matter of public participation more thoroughly and build adequate public participation into this process. If districts get criticized for following existing procedures, the DEP is ultimately responsible. (16, 99, 100)
Response: DEP is currently evaluating all of its general permits to clarify procedures relating to public participation in the general permit process.
Comment: Commentators suggested that plans associated with the construction, operation and maintenance of CAFOs should be available to the citizens to review before any permits are issued or construction begins. Animals received, animals shipped, dates, spreading dates, gallons spread, location of spreading, feed records, water usage, and actual manure generated should also be available as a public record. The Nutrient Management Plan is a critical component of a CAFO’s permit application and should be available to the public for review for a reasonable time prior to its approval. DEP should provide conservation districts clear guidance regarding public review of nutrient management plans. (1, 4, 5, 20, 25, 33, 92)
Response: The public will have an opportunity to review Department documents related to CAFOs prior to permitting. The information available for review will be the information required in the permit application documents. Much of the information requested to be provided for public review listed above will not be included in these documents. DEP does not supervise the activities of the County Conservation Districts regarding their administration of Nutrient Management Plan approvals. DEP, however, does provide for the opportunity for public review when CAFOs are proposed.
Comment: DEP should provide local citizens with resources to engage independent professional review of permit applications. (25)
Response: DEP provides independent professional review of permit applications. The Department is not planning to provide resources to engage independent professional review to third parties.
Comment: DEP must allow for additional public testimony on any new drafts, changes to existing drafts or final drafts of the strategy and supporting documents and provide reasonable notice of public hearings. The Joint public meeting/hearing does not meet federal requirements and should be banned. How can a person have this explained to them at a meeting and then turn around and give meaningful testimony? This is an indication that DEP does not have an interest in public participation. These comments on CAFOs are due at the same time as comments on three other major waste regulations in the height of summer, indicating DEP’s attitude toward taxpayers. The Pennsylvania Pork Producers Council requested an additional 90 day extension of the public comment period to allow time to analyze the impact of the strategy and permit requirements to the livestock industry of Pennsylvania (14, 15, 17, 30, 35, 50)
Response: The Department has provided extensive opportunities for the public and industry to provide input on the development of the CAFO strategy and permit documents. The joint public hearings/meetings were held throughout the state to provide an opportunity for public interaction and testimony. Following the third meeting/hearing, the comment period was extended 60 days to allow an extended period of time for comment. Numerous workgroup meetings were held with attendance by the public, environmental interests, state agencies and commissions and the CAFO industry to work on the strategy and documents. There is no federal requirement for these state hearings. The fact that this strategy was put out for public comment at the same time as several other Department regulations was purely coincidental. DEP believes there has been sufficient public input as evidenced by the volume of comments made on the documents.
Comment: A public hearing , instead of a meeting, should be held for every CAFO proposal whether or not there is significant public interest in the project. There was no public hearing for a proposed CAFO in Clearfield, so the language about public hearings is a big lie. Any and all permitting procedures must all provide for adequate public comment. The individual NPDES permit should be used for all CAFOs because it allows the highest level of public input and oversight by DEP. CAFOs over 1000 AUs should be subject to a public hearing in both High Quality and Exceptional Value watersheds. Permit-by rule provides no opportunity for public participation. (14, 19, 25, 50, 58, 70, 89, 93)
Response: DEP will determine on a case-by-case basis if a public hearing should be held. It is certainly inappropriate to hold a public hearing for a proposal that has raised no comment unless a hearing is required by law or regulation. The proposed CAFO in Clearfield has not yet applied for a CAFO Part II permit or CAFO NPDES permit. The permit obtained in the Clearfield CAFO was a general NPDES permit for stormwater which does not require a public hearing. While DEP disagrees that an individual permit should be required for small CAFOs, the Department is evaluating its General permitting process to assure adequate public notice is provided in all program areas. The result of this evaluation will be reflected in the General Permit now required for some CAFOs under the revised strategy.
Comment: How will DEP, the State Conservation Commission and the Pennsylvania Department of Agriculture work together? The strategy is too vague in this area. How will the public get a chance to get involved? A stronger role for the Department of Agriculture should be defined to draw them into the CAFO permitting process, perhaps in the are of compliance support and enforcement. The CAFO strategy should describe how you plan to integrate resources from the State, EPA and USDA which can be used to expedite permit issuance and compliance with the CAFO strategy? (50, 57)
Response: The strategy has been expanded to explain in more detail the proposed roles of each of these agencies in implementing the CAFO strategy. The actual interactions between agencies will be dependent upon agreements and procedures established as a result of the strategy.
Comment: The public participation policy for DEP permits provides adequate notice for public input, but there are apparently no public notice requirements for local CCDs. (48)
Response: Nutrient Management Plans are available from the County Conservation District at least 7 days prior to the meeting at which they are to be acted upon.
Comment: DEP should take the additional step of requiring that a nutrient management plan submitted as part of an AFO permit application must meet certain standards for public participation. Each proposed nutrient management plan for AFOS must be approved by the board of directors of a conservation district. Citizens should be able to review a proposed nutrient management plan at least 10 days prior to the district board meeting. Approved nutrient management plans must be available to the public as part of the NPDES permitting process. (101)
Response: We are assuming you are refering to Mnaure Management Plans required for Concentrated Animal Feeding Operations (CAOs) since the term AFO is not used in the Nutrient Management Act and regulations. DEP does not administer the Nutrient Management Act. This comment is being referred to the State Conservation Commission for its consideration.
GENERAL COMMENTS ON THE PERMITS
Comment: Since DEP intends to update its manure management manual in light of the Nutrient Management Act and the new NRCS design standards and EPA and NRCS are finalizing their AFO strategy and nutrient management plan requirements, issuing any permits seems premature and unfair to operators and the public. (58)
Response: Issuance of CAFO permits will be based on the existing standards. If state standards or regulations are revised to incorporate new federal design standards or nutrient management plan requirements, new projects will be reviewed under these new requirements.
Comment: Projects such as CAFOs are costly. When all of the laws are being met by a conscientious industry, the regulatory and permitting process should proceed smoothly and expeditiously. "Money back guarantees" with a reasonable time limit, utilized by DEP for other permitting programs should be applied to CAFOs. This would provide assurance to a sometimes beleaguered industry that government will help, not hinder, their progress. (3)
Response: The processing of CAFO permit applications by DEP will be part of DEP’s money-back guarantee program with a 90 day review period following receipt of a complete submittal.
Comment: Falsifying any one of these applications should result in denial of the permits. (8)
Response: Falsifying information on a permit application subjects the applicant or his consultant to significant penalties including the possibility of a fine or imprisonment.
Such an action may also jeopardize the status of the permit application. Existing statutes provide appropriate remedies for falsifying permit documents, such as Section 611 of the Clean Streams Law.
Comment: DEP should require co-permittees on NPDES permits where multiple animal facility ownership and operation responsibilities exist in livestock contract operations. The farmer is only one of the principles in the operation. If he operates the facility at the direction of others, why should they not be held in part accountable for any environmental concerns? (51, 52, 53)
Response: The NPDES CAFO permit is issued to the owner of the CAFO. A workgroup has been formed and is exploring the best means to identify other principles in a CAFO operation. The result of their effort will be incorporated into the CAFO strategy at a later date.
Comment: There were numerous comments regarding potential health and environmental problems related to air quality impacts from CAFOs. These included the following:
Air deposition accounts for significant amounts of the nutrient load in water bodies (nitrogen deposition from NOX accounts for approximately 30% of the nitrogen load in the Chesapeake Bay). A significant portion of this comes from manure and other agricultural activities (two reports were attached as proof of the validity of these statements).
While agricultural operations conducting normal operations are exempt from the Air Pollution Control Act, the unrelenting odors generated by pig factories are anything but normal farming operations
DEP should require new AFOs over 1,000 Animal Units to use available technologies to minimize air emissions from storage systems from the very beginning. Two such technologies are temporary covers for manure storages and systems to burn off gases produced by manure storages. Where technically and economically feasible, existing AFOs over 1,000 Animal Units should be required to retrofit manure storage systems to reduce emissions over a reasonable period of time, perhaps five to ten years depending on the magnitude of costs involved.
DEP should consider air quality, nitrogen deposition, potential heath effects on surrounding community, transmission of new strains of drug resistant viruses, and establish air quality standards that measure toxicity, hormonal drug and odor controls, treated feed and manure control, viral/bacterial counts.
Volatilization of nutrients from manure storage facilities (ammonia) causes pollution, odor and potential health impacts and suggested DEP, along with the industry, investigate new storage measures with less adverse environmental impact. The strategy should address odor concerns by incorporating appropriate and meaningful research to reduce and/or eliminate odors from CAFOs.
Citizen’s testing in Minnesota found that one quarter of 32 tests taken near several manure lagoons exceeded that state’s standards for hydrogen sulfide which can cause nausea, headaches, blackout periods and vomiting. Hydrogen sulfide, emitted by CAFOs, is a hazardous air pollutant regulated by an EPA-approved state implementation plan (SIP) under the Federal Clean Air Act making alleged violations federally enforceable. Missouri has included hydrogen sulfide under its SIP and is expected to promulgate a new air regulation to eliminate the exemption from odor emission regulations for CAFOs. Volatized sulfides, VOCs and other gasses recognized as odors are compounds that have been documented as ozone precursors. CAFOs should be subject to industrial air quality measurements for hydrogen sulfide.
A commentator reported that in a mid-west hog farm, failure of the ventilation system caused the suffocation of several thousand hogs from noxious and poisonous gas.
While small lagoons may continue to be a viable option for smaller family farmers, liquid manure systems for CAFOs should not be permitted. North Carolina has asked its legislature to underwrite the cost of having producers switch to an alternate method of handling their manure. The twenty-five million dollars in low interest loans that is being requested to assist farmers implement best management practices should be made available only to farmers exploring technology other than lagoon systems.
Odors and dangerous gasses, like hydrogen sulfide, could impact adjoining properties especially in valley areas with air stagnation. It was stated that CAFOs over 1,000 AEUs should be subject to industrial air quality standards and regulations with monthly measurements by the operator at two downwind property lines.
As the Commonwealth enthusiastically promotes its "Memories to Last a Lifetime" tourism campaign one can only wonder what the visitors to Lewisburg must think as the winds push the stinking cloud originating from a large swine operation eastward through the Buffalo Valley only to stall over a populated area frequented by tourists.
The manure could dry up and get into the air and thus into the lungs of living things.
Pennsylvania Law Section 123.31, subsection (c) should be strengthened immediately to preempt these environmental and public health problems. Malodors can significantly affect the value and use of surrounding properties and in the interest of sound public policy and also protecting property rights of neighbors, consideration should be given to requiring measures to reduce/mitigate malodors.
A commentator reports that a Lancaster farmer who owns cropland adjacent to a swine CAFO asserts that the exhaust fans from the CAFO interfere with crop production.
Neutralization of odors can be accomplished by repetitive oxidation or molecule modification by means of chemical or digestion of the odor molecules by naturally occurring bacteria using misting equipment neutralizing chemicals into the ventilation system or biofilters using formulated compost. Odor control should be a cooperative effort between DEP, the Department of Agriculture, the agricultural industry and private business. We also urge DEP to outline a strategy in which the Department and other agencies work with the livestock and poultry industry to develop "new generation" manure storage, handling, treatment and application technologies that eliminate or substantially reduce air pollution. In particular, DEP should establish a timetable for phasing out open-air manure storage systems for large animal confinement facilities within the next decade.
DEP should begin developing the regulatory framework necessary to combine air and water quality protection regulations in to one permitting system.
With regard to air quality, spray irrigation represents the worst option for manure application; large amounts of nitrogen are lost from the manure through volatilization. According to "Atmospheric Disposal of Manure Nitrogen" (Department of Environmental Resources, 1990), "The rate at which ammonia is desorbed will be proportional to the contact surface area between the manure and air. Thus, some of the highest volatilization losses documented have occurred with sprinkler irrigation systems where liquid manures are dispersed as droplets into the air." DEP must embrace the goal of minimizing the impact new animal production has on air and water quality and prohibit spray irrigation for new AFOs.
According to "Ammonia and the Chesapeake Bay Airshed" (Chesapeake Bay Program-Scientific and Technical Advisory Committee, 1997 - Attachment 7), air deposition of nitrogen oxides and ammonia accounts for approximately 27% of the nitrogen load reaching the Chesapeake Bay. The same report estimates that over 90% of the ammonia in the Chesapeake Bay watershed originates from agriculture, including sources in Pennsylvania. The USGS conducted a study of atmospheric deposition of ammonia from a manure storage facility in Adams County, Pennsylvania. Not surprisingly, the study found that "In all the wetfall samplings, the greatest of concentrations of ammonia were in samples collected near the lagoon, whereas lesser concentrations of ammonia were collected at the most distant points from the lagoon." In this way the lagoon serves as a "point source for ammonia" Moreover, the study indicates that nitrogen concentrations in the stream increased due to ammonia deposited atmospherically from the lagoon (Langland, "Atmospheric Deposition of Ammonia from Open Air Manure Storage Lagoons in South-Central Pennsylvania," 1992 - Attachment 9). Clearly, atmospheric deposition of ammonia is a water quality concern for Pennsylvania. DEP’s strategy must minimize the contribution of ammonia from AFOs. To do so the strategy must go beyond the nutrient management regulations, which contain no restrictions on ammonia losses. For example, the nutrient regulations contain no requirement for manure incorporation and set no upper limit for nitrogen lost through volatilization. Surface application of manure without incorporation results in enormous losses of nitrogen. For example, if 100 lb. of nitrogen contained in poultry manure is applied in the spring but not incorporated into the soil, only 15 pounds of nitrogen remains for uptake by the crop - an 85% loss of nitrogen. AFOs should be prevented from "using" volatilization as a means of maximizing manure application on cropland. Injection or immediate incorporation of manure will limit nutrient losses as well as odor-related nuisances.
An October 1998 Center for Disease Control and Nebraska Center for Rural Affairs participated study found that there were health effects from air quality to those close to or associated with CAFOs. (1, 5, 6, 7, 16, 19, 25, 29, 33, 38, 39, 40, 42, 46, 47, 48, 50, 54, 57, 59, 60, 63, 64, 69, 70, 77, 78, 79, 80, 83, 84, 91, 92, 93, 96, 99, 100, 101, 105)
Response: The Department will continue to encourage CAFO permittees to take measures to control odor and will cooperate with the industry on new odor control technologies. Air emissions resulting from agricultural activities are, however, exempt from state regulations under the Pennsylvania Air Pollution Control Act (35 P.S. §4004.1).
GENERAL INFORMATION FORM (GIF) PERMIT APPLICATION
Comment: Section D.5.1 of the GIF form asks for all air emissions to be listed, but the commentator suspects that agricultural operations are exempt and suggests DEP require all operations over 1000 AEUs list these. (7)
Response: The General Information Form is used for all permit applications submitted to the Department. The reference to air emissions applies to those emissions requiring permits from DEP. Air emissions from animal feeding operations are exempt from air quality regulations of DEP and need not be listed.
Comment: Section d.6 – Only people are addressed. Nowhere does it ask for water requirements for anything else, like cattle, swine, chickens, turkeys, etc. This paragraph should be modified to include new wells for animals and the number of gallons per day. (18)
Response: This information would serve no purpose in the Department’s review of the permit documents since there are currently no DEP regulated limitations on water consumption for agricultural uses.
WATER QUALITY MANAGEMENT PART II PERMIT APPLICATION FOR CAFOS – 3620-PM-WQOO22 6/98
GENERAL COMMENTS
Comment: Will there be a concurrent submittal of the Nutrient Management Plan and the Part II Permit Application to help coordinate the review of these documents? (70)
Response: While DEP suggests such concurrent submittal, there is no requirement that these documents be submitted concurrently. If an applicant wants to cut down on delays related to sequential review of required documents needed to operate a CAFO, the applicant will take
advantage of all opportunities for concurrent submittal and review. There is also an opportunity for concurrent submittal of the WQM Part II and NPDES permit applications.
Comment: Must a preliminary plan have been approved by the township before a Water Quality Management Part II permit can be issued? (15)
Response: No.
Comment: When an existing CAFO is assessed and found to require extensive upgrade or improvement, would it be required to obtain a Part II Permit in addition to an NPDES Permit? (example: six million gallon lined manure storage facility adjacent to a stream feeding a lake) (48)
Response: Whether or not a permit is required, the design and construction of the upgrade or improvement must be environmentally sound and in compliance with the Pennsylvania Technical Guide. This requirement is independent of the location of the facility.
Comment: Just as it is illegal for human beings to store municipal wastes in open-air earthen lagoons, so it should be illegal for CAFOs and the laws of the Commonwealth should specifically state as much. ( 59)
Response: It is not illegal to store human municipal sewage in open-air earthen lagoons. There are open wastewater treatment lagoons with earthen liners designed in a manner similar to manure storage facilities in numerous parts of the Commonwealth which are operating without impact on the environment or public health.
Comment: Under the federal Clean Water Act, "concentrated animal feeding operations" ("CAFOs") are point sources subject to permit requirements of the NPDES program and land application of manure from CAFOs is within the regulatory authority of the NPDES program. For example, while in some ways novel, the case of Concerned Area Residents for the Environment V. Southview Farms, 34 F.3d 114 (2d Cir. 1994) cert. denied 115 S.Ct. 1973 (1995), was on solid ground in finding that excessive land application of manure from a CAFO in circumstances leading to pollution of surface waters was a violation of the Clean Water Act. Implicit in that holding is the recognition that land application of manure from a CAFO can be regulated under Clean Water Act authority wherever and however that manure is applied.
Under Pennsylvania law the Department is also empowered to implement a program to protect the waters of the commonwealth from the danger of pollution from large AFOs and associated land application of manure.
Section 691.402 of the Clean Streams Law states that
[w]henever the department finds that any activity, not otherwise requiring a permit under this act, including but not limited to the impounding, handling, storage, transportation, processing or disposing of materials or substances, creates a danger of pollution of waters of the Commonwealth or that regulation of the activity is necessary to avoid such pollution, the department may, by rule or regulation, require that such activity be conducted only pursuant to a permit issued by the department or may otherwise establish the conditions under which such activity shall be conducted . . .
In addition, the Clean Streams Law regulates the management, treatment and disposal of sewage, which is defined as including any substance that contains any of the waste products or excrementitious or other discharge from the bodies of human beings or animals. Therefore, animal manure is considered sewage under the Act and must be handled and treated as required thereunder. Article II of the Act applies to sewage pollution. Section 691.207 of that article states that
[a]ll plans, designs, and relevant data . . . for the erection, construction, and location of any treatment works . . . shall be submitted to the department for its approval before the same are constructed or erected or acquired.
That section further states that
[a]ny such construction or erection which has not been approved by the department by written permit. . . is hereby also declared to be a nuisance and abatable as herein provided.
The clear intent here is to give the Department the opportunity to ensure that the proposed facilities will adequately handle and treat the waste and prevent pollution of waters of the Commonwealth (consistent with the applicant's discharge permit). Clearly, the Department has no authority to exempt treatment for the treatment and disposal of animal waste from the Part II permitting requirements of the CSL. And, in assessing the ability of an AFO to handle its waste in a manner that will protect the waters of the Commonwealth, it is equally obvious that the time, place and manner of the land application of manure is an essential element of the AFO's "treatment works." If done properly, land application can remove nutrients and other contaminants from wastewater. On the other hand, the misapplication of manure can result in the pollution of surface and ground waters of the Commonwealth.
It makes no difference whether the land application at issue is on land under the ownership or control of the AFO or not. Either way it is an essential element of the treatment and disposal of sewage under the CSL, and the Department must review locations and designs.
There is ample precedent for DEP to address details of land application of liquid sewage wastes in the context of a Part II permit. Small municipal and private sewage treatment plants sometimes land apply treated sewage to complete secondary treatment of wastewater during appropriate times of year when the plants may be unable to treat discharges to a level that adequately protects water quality in the usual receiving stream. Such facilities must obtain a Part II permit authorizing the construction and operation of a spray irrigation system. Terms of such permits may typically address groundwater monitoring requirements, discharge monitoring and reporting requirements, hydraulic loading limitations as well as effluent quality limitations, and restrictions on application on frozen soil or during or after heavy precipitation. See e.g., Water Quality Management Permit No.4356, Amendment 1, Delaware County Prison, Thornbury Twp., Delaware Co., (WWTP with Spray Irrigation - Interim Spray System).
In short, Part II permits must address land application practices. (101)
Response: The strategy requires Water Quality Management Part II permits for the construction or expansion of manure storage facilities for operations with greater than 1000 AEUs. In addition, a professional engineer certification is required for all manure storage facilities at farming operations regulated under the Nutrient Management Act. The Department plans to seek additional comment on its Water Quality Management Part II permit regulations related to CAFOs.
Comment: DEP should require a Part II permit for AFOs over 1,000 animal units that expand animal feeding operations, even if they do not expand storage facilities. The Part II permit will help to ensure that the storage is adequate for the increased manure production and in fact meets standards required of new AFOs. (101)
Response: The strategy provides that existing animal feeding operations which propose to expand their operations to over 1,000 AEUs must obtain a CAFO NPDES permit and a Water Quality Management Part II permit. The NPDES permit requires a certification by a registered professional engineer that the manure storage facilities meet the design and construction standards contained in the Pennsylvania Technical Guide. These standards include calculations for the proper sizing of the manure storage facilities. Where an increase in the size of the manure storage facility is required because the engineer determines it is undersized according to the PA Technical Guide, a Water Quality Management Part II permit would be required. There may, however be cases where no increase in storage capacity is required, so no Water Quality Part II permit is required for the manure storage facilities. For this reason, no change has been made to require a permit where no change to the storage facilities is proposed.
Comment: Permit applicants must be given exact permit requirements. The document entitled "Application for Water Quality Part II Permit for Concentrated Animal Feeding Operations (CAFOs) Manure Storage Facilities" contains language and requirements that are extremely vague. Subsection two of the document indicates that Part II Permit conditions "may" require additional BMPs on a case-by-case basis. (95)
Response: Best Management Practices (BMPs) by their very nature are case specific and must be considered separately during the review of each application. DEP’s staff are accustomed to evaluating proposals to determine if BMPs should be applied. The Department is working with the Department of Agriculture to develop a comprehensive listing of BMPs as one of three work products resulting from Senate Resolution 91. The language referencing BMPs in the permit documents has been eliminated because it was vague.
Comment: We have learned that as part of the process the proposed hog factory owner needs only to place on paper what he intends to do and that there is no follow-up to see that this is done. (96)
Response: The Water Quality Management Part II and NPDES permitting process require onsite construction inspections by a Pennsylvania Registered Professional Engineer and certification that the facilities installed meet the applicable standards of the Pennsylvania Technical Guide. In addition, DEP staff will inspect the facility at least annually. Prior to expiration of the NPDES permit, a Pennsylvania Registered Professional Engineer will recertify the structural integrity of the manure storage facility.
Comment: DEP must not grant CAFOs Water Quality Management Part II permits if their Nutrient Management Plans are currently under appeal. (14, 15)
Response: The Department does not plan to deny an application for a WQM Part II permit or NPDES permit based solely on an appeal filed regarding the approval of a Nutrient Management Plan by the County Conservation District.
Comment: Retention pits (under the animal housing units) are consistently excluded from all setbacks and leak detection requirements as are some lagoons even though these are point sources. If these pits are to be closer than 300 feet to a property line they should be required to have a liner. The National Pork Producer’s web site says there are only two kinds of concrete that which is cracked and that which is going to crack. (89, 93)
Response: If the manure storage facility under the animal housing unit is used for the long-term storage of manure, it must include leak detection and meet the isolation distances in Chapter 83 relating to manure storage facilities. If the structure under the animal housing unit is for temporary storage and flushing to a remote manure storage facility, leak detection is not required and isolation distance exemptions in Chapter 83 apply. The design plans and specifications for these facilities must be submitted to DEP with the WQM Part II permit application. DEP will review the plans and specifications for compliance with the Pennsylvania Technical Guide. Concrete structures have been used at DEP permitted facilities including major municipal and industrial waste treatment facilities without leakage problems.
Comment: Will CAFOs take manure to coal mining areas for mine land reclamation, mix it into a witches brew with dredge spoils from out of state, incinerator ash, paper sludges, sewage sludge and whatever else can be found? (50)
Response: Manure from CAFOs could be used to help reclaim coal mining areas in environmentally responsible ways.
INSTRUCTIONS FOR COMPLETING AN APPLICATION FOR A WATER QUALITY MANAGEMENT PART II PERMIT APPLICATION FOR CAFO MANURE STORAGE FACILITIES
GENERAL INFORMATION
Comment: Section 2, Paragraph 3 - Insert "or enlarged" after "new", "new" in lieu of "proposed" in 1), delete "CAFO" under 2), and insert "for existing CAFOs over 1000 AEUs proposing to expand or install a manure storage facility" in 3), and add "the" between "by and Department" in 4) in the 3rd paragraph of item 2 page 1. Paragraph 5 should require a "permit prior to beginning or expanding the animal…" (55)
Response: We added the phrase "expanded or extensively upgraded" in paragraph 3. The other changes have been made.
Comment: Section 3, Paragraph 3 - The phrase " Additional setbacks and siting determinations may be required for some locations" should be as specific as the previous sentence in this paragraph. (69). All setback requirements should be consistent with Pennsylvania's Nutrient Management Act. (9, 95) On page 1 in Application for Water Quality Management Part II Permit for Concentrated Animal Feeding Operations, Manure Storage Facilities, DEP should revise the sentence in question to read "Manure storage facilities may not be located within a 100-year floodplain nor in any wetland." This change would delete "...without an encroachment permit."(101)
Response: The minimum setbacks for manure storage facilities specified in 25 Pa. Code
§ 83.351(a)(1)(iv) for CAFOs that were producing livestock on or before October 1, 1997 and in Section 83.351(a)(1)(v) for CAFOs that come into existence after October 1, 1997. The only additional setbacks included in the permits are that a manure storage facility must not be placed in a wetland or within the 100-year floodway.
Comment: Section 3, Item 3 - The sentence, "The engineer’s report must include key design features such as (but not limited to)" should be modified by eliminating "(but not limited to)". (87)
Response: This phrase has been deleted.
Comment: Section 3, Item 3, third paragraph – The reference should be to the 100 year floodway rather than "floodplain". (55)
Response: The Department does not believe the change is appropriate.
Comment: Section 3, Item 3. - Several commentators expressed concerns regarding manure storage facilities:
What preventions have been made to stop manure from getting into water bodies down stream.
Concrete containment systems, being made of a water-permeable substance should also be lined with a polypropylene liner.
Manure storage facilities are nothing more than dirt pits with garbage bag liners.
Multiple redundant safety features should be incorporated in the construction of the lagoon walls to help offset shoddy construction practices or the likelihood of Murphy’s Law impacting a "fail-safe system".
NRCS standards only require that a new manure storage facility be sized so as to be consistent with the nutrient management plan developed for that operation. For a variety of reasons (especially cost), many operations choose to construct manure storage systems that provide for only 3 to 6 month storage. Thus, these operations then must spread some manure in late fall or winter, a practice allowed for in the nutrient management regulations. Consistent with our recommendation to require AFOs over 1,000 Animal Units to spread manure only during the growing season, all new manure storage systems should be sized to allow for at least nine months storage or greater. As an added measure of protection, DEP should strongly encourage yearlong storage where feasible for new AFOs during the permitting process. Existing AFOs would not be required to expand manure storage capacity immediately unless an operation significantly expands production. (1, 19, 47, 50, 71, 101)
Response: The Natural Resources Conservation Service Standards for manure storage facilities have been used successfully in Pennsylvania to protect water quality. DEP intends to continue to use these standards as the basis for the design and construction of manure storage facilities serving CAFOs. The inclusion of leak detection and ground water monitoring where necessary will increase the level of protection. DEP has evaluated the concrete specifications to assure it is appropriate for Pennsylvania conditions. Where the NRCS specifications are met, as described in the Water Quality Management Part II permit application for CAFOs, no separate leak detection system will be required. Monitoring for leakage will be accomplished by periodic sampling of the curtain drainage system. While DEP may encourage the construction of large manure storage facilities to allow capacity to limit winter application of manure, the key to adequate storage is proper manure management.
Comment: Section 3, Item 3. b. rephrase to clarify that it is not the structure of the barn "manure collection" that is needed for permitting. (87)
Response: Plans and specifications will be required as part of the WQM Part II permit application submittal. The Pennsylvania Technical Guide (PA313-1) includes design and construction standards for this part of the facility. DEP will review the plans and specifications for compliance with this standard. In addition, the standards for collector piping, contained in Standard PA 634 of the Pennsylvania Technical Guide must also be met.
Comment: Section 3, Item 3.c - Delete "of liquid manure" and insert after "generated" the phrase "and stored, including manure, animal bedding, waste feed, barnyard runoff, milking center wash water, flush water, silage leachate, the net precipitation over the longest planned storage period," and insert "the" between "of" and "calculated" (55)
Response: The changes have been made.
Comment: Section 3, Item 3.d. - The requirement to " provide proof of the availability of funds to adequately construct, operate and maintain the facilities" is an invasion into a farmer’s private financial matters and should be deleted. (3, 9, 55, 95) To the contrary, this information should be required but should be submitted separately and marked "proprietary, not releasable outside DEP" (18)
Response: This item has been deleted from this section.
Comment: Section 3, Item .3.f.1 – insert "designed and" between "be" and "constructed"; insert "specific" between "overall" and "discharge"; delete "rate" following "discharge"; delete "permeability" and insert in lieu thereof "specific discharge"; delete "clay" and "other" following "bentonite"; delete "this" and insert in lieu thereof "the designed specific" before "discharge"; delete "rate, the" and insert in lieu thereof "field"; insert after "1x10" the term "cm/sec." (55)
Response: The changes have been made.
Comment: Section 3, Item 3.f.3 – This goes beyond the Appendix 10 D design procedure in requiring liners in some situations. A single liner can provide adequate groundwater protection if the site is selected properly. The exceptions are solutionized bedrock as described on page 5 of Appendix 10D. These locations should be avoided in siting a manure storage facility. Our recommendation is that double liners should not be required, unless storage facilities cannot be kept away from highly permeable bedrock foundations with open joints or solution channels. These conditions should be used to define the "special [soil or] geologic conditions" for which the Department might want to " require double liners on a case by case basis". Proper site selection should avoid these conditions, but if that doesn’t happen, extra foundation treatment and leak prevention would be the right course of action. Since single liners are adequate in all but extreme geologic conditions, it is not reasonable to require double liners in a Special Protection watershed. We need to keep liner criteria in perspective. We are dealing with temporary storage of material that will be land applied. A subsurface leak from a storage facility would do little to impair surface water quality, compared to the potential effects of a surface discharge. There are extensive livestock operations in Special Protection watersheds (especially High Quality) which would be placed under unnecessary burden if required to use double liners. While we do not agree that the double liner is necessary, a compromise might be to require double liners in Exceptional Value watersheds. . It appears that you are holding livestock producers to the same standard as that of companies handling industrial and hazardous waste instead of a soil enhancer. (49, 55, 95)
Response: Manure when properly stored and applied to the land enhances soil. When leakage occurs at the manure storage facility manure becomes a potential pollutant. Special Protection waters are given such a designation because of the existing quality of the waters being at either a high or exceptional quality. The Department has a responsibility to assure that all wastewater generated in Special Protection Waters are managed to prevent pollution.
Comment: Section 3, Item 3.f.3. - Over 99% of hog manure storage tanks, both open and underground, have experienced leakage. Extended periods of rain catch the rain thus creating excessive pressure against the containment walls, causing soil in the containment walls to liquefy and give way. (56, 59)
Response: DEP is not aware of any evaluation of existing manure storage facilities that documents a 99% failure rate. These facilities are to be designed and constructed to accommodate a 25 year/ 24 hour rain event in addition to manure and still maintain a freeboard.
Comment: Section 3, Item 3.f.3. – This section states that the Department may require a specific leak detection design where warranted by "site-specific conditions." The subsection goes on to read that leak detection "may" also be required for concrete structures. These vague conditions can translate into money, time delays, potential inconsistencies in DEP actions and constant revision to the facility’s design. (95)
Response: This vague language has been replaced with language that clearly identifies when leak detection is required. An option has been provided to meet specific construction standards for concrete manure storage facilities. Where these standards have been met, no leak detection is required. If a proposal is made to construct a concrete manure storage facility which is different than the standard, a more detailed review of the plans and specifications will be conducted by the Department and leak detection will be required.
Comment: Section 3, Item 3 .f.3. - The use of double clay liners should be allowed. This would amount to the doubling of the liner thickness needed to meet the 1x10 -5 cm/sec specific discharge requirement. (55)
Response: Double clay liners are a technically valid alternative and have been included as an option to the use of other double liner combinations.
Comment: Section 3, Item3.f.and g. – More clarification needs to be given indicating that with a synthetic HDP liner utilizing a leak detection system, ground water monitoring is not needed. (87)
Response: This section has been revised to identify the minimum monitoring requirements for installation each type of liner.
Comment: Section 3.g. – These units should be protected by a three-foot separation between the base of the containment unit and existing/normal water table on the site. Ground water monitoring wells should be required. Why were so many items deleted in regards to the quarterly sampling analysis from the 4/98 draft? If anything, the sampling should be more comprehensive to form a complete picture of potential contamination. Phosphorous and elements in feed residues (like cooper, and zinc) would be more accurate indicator of the amount of waste deposited since some of the nitrogen is lost to the atmosphere. (1)
Response: The Pennsylvania Technical Guide include vertical isolation distances between the bottom of the manure storage facility and seasonal or regional groundwater tables. The standards also include curtain drains to protect the integrity of the liner from hydraulic pressures. The quarterly sampling requirements are included in the Water Quality Management Part II permit application requirements under item 3.g. The requirements are sufficient to determine if leakage has occurred. While some nitrogen may be volatilized, most will be retained in the manure. Nitrogen loss to the atmosphere from the sampling point is not a factor when sampling liquid exiting the under side of a lined manure storage facility or in-ground monitoring well. Fecal coliform, turbidity and total dissolved solids will also be used to support the nitrogen sampling.
Comment: Section 3.h – Test wells monitored by DEP should be used rather than leak detection (French drains) to prevent neglect and oversight. If these leak detectors reek with odor, will the owner/operator completely shut down that unit and repair it immediately? (1)
Response: Leak detection systems detect problems before pollution reaches groundwater. If a leak is detected, action must be taken immediately to repair the leak. The options available to the operator will include the removal of manure and shut down of the manure storage facility until the leak is located and repaired.
Comment: Section 3, Item 3.h. – This section should be rewritten to clarify that water samples should be taken from the opening of the underdrain from the leak detection system. (87)
Response: This change has been made.
Comment: Section 3.i – To allow a period of only 7 days to submit a final inspection report prior to commencement of operation, seems to be rushing an entirely too important part of the process. This should be extended to 15 days. (1)
Response: This deadline has been increased to 15 days to allow scheduling time for these inspections.
Comment: Section 3, Item 3 - Numerous commentators were concerned about the potential impacts of CAFO on ground water quality and quantity and described problems with CAFO proposals related to groundwater issues. These concerns and problems included:
a. When manure storage facilities are placed on all sinkhole activity should be reported immediately on the site of the manure storage facility and surrounding acreage. If a problem is found DEP should implement a "state controlled" geological survey.
b. Residents expended a considerable amount of money to document that a proposed CAFO was not appropriate for a limestone area where it was proposed and that the geologic information submitted to support the proposal was not adequate. The "County Soil Conservation Service" had no idea what water problems would be created by the proposal nor that the hydrogeologic report submitted by the applicant was inaccurate. The commentator suggests that DEP must conduct an independent investigation of the proposed site to protect drinking water supplies.
c. Minnesota reportedly requires setbacks from Karst geology.
d. The wells in the area of a proposed CAFO were drilled deeper in the past because of insufficient yield. There is concern regarding the impact of the water withdrawal to serve the CAFO on the yield of existing wells. A hydrologic impact study of water withdrawals from local aquifers should be required because of the large volume of water required for CAFOS (25,000 - 35,000 gpd). An ecological damage statement should be prepared so future problems can be prevented or minimized.
e. Nitrates released by CAFOs can reach levels that can cause spontaneous abortion, miscarriage, and infant death in humans, livestock, wild and domestic animals.
f. Monitoring should be conducted to detect leaks from lagoons and stormwater runoff flowing in the direction of a drinking water well or intake.
g. Section 71.62 of Title 25 of DEP’s regulations apply in that "sewage" is defined to include "animal waste" and a hydrogeologic study should be conducted for CAFOs under those regulations to protect groundwater.
h. The state should consider the need for Pennsylvania to enact comprehensive water management legislation using CAFOs potential impact on quality and quality of water as an example of this need.
i. The groundwater monitoring requirements should be applicable to all storage facilities (at a minimum those over 1.5 million gallons), even those with leak detection systems. Unless the leak detection system is in itself a complete double walled container, whatever leaks into that system can also migrate around the secondary liner or even through if it’s a thin polyethylene. What happens if there is a major leak that swamps the leak detection system capacity?
j. Copies of monitoring reports should be sent to the local municipality.
k. Monitoring should be conducted upgradient and downgradient of the facility to detect leaks from lagoons and stormwater runoff flowing in the direction of a drinking water well or intake.
l. The monitoring program should be most intensive in the first two years of operation after which time the operator and DEP can initially assess the performance of the manure storage facility.
m. Unfortunately, problems can occur throughout the service life of these systems. The two year limit on quarterly sampling is inadequate to determine the real water quality impact of a CAFO and should be required throughout the life of the permit. Thus, all AFOs with over 1,000 animal units should be required to implement a less intensive monitoring program during the entire period the storage is to be used, perhaps semi-annually or annually.
n. Old farming practices have created conditions conducive to sinkhole formation. Over application of manure to these area endangers an ever-decreasing fresh water supply.
o. A percolation test (similar to the test conducted for onlot systems) should be required for the site of the manure storage facility as well as the field used for manure application to determine the current/normal water table. No manure storage facility should be constructed within 3 feet of an existing water table. (1, 6, 7, 12, 14, 18, 19, 20, 27, 29, 33, 36, 38, 39, 40, 51,52, 53, 54, 56, 60, 71,75, 77,80, 90, 92, 101)
Response:
a. DEP’s inspection of manure storage facilities on Karst geologies will include looking for sinkhole or solution cannel activity near the manure storage facility.
b. Where Karst or other hazardous geologies are present at the proposed site of a manure storage facility, the review of the WQM Part II permit will assure these conditions are evaluated and potential problems eliminated. DEP’s hydrogelogists will review proposed manure storage facility construction on Karst or other hazardous geologies.
c. The Nutrient Management regulations (Title 25, Chapter 83) establish a 100 foot isolation distance between a sinkhole and an area of manure application but there are no established setbacks from Karst Geology.
d. Groundwater withdrawal over certain established thresholds are regulated.
e. The Nutrient Management regulations prevents the over application of manure by establishing appropriate levels of manure application to support the growth of a crop.
f. Manure storage facilities will be monitored by both the permittee and DEP staff.
g. The provisions of Chapter 71.62 are specific to the use of individual and community onlot systems and are not applicable to manure storage facilities.
h. If the legislature proposes comprehensive water management legislation, the Department will consider the impacts of CAFOs in drafting comments on the legislation.
i. Leak detection allows for much earlier detection of a problem than does a monitoring well. Leak detection systems are placed over very slowly permeable material to create a barrier and allow any leakage from the HDPE liner to be collected. If there is a major leak, it will be detected quickly and actions taken to contain the leak and empty the manure storage facility to allow for repairs.
j. DEP reports are available to municipalities upon request. Sending the reports to all municipalities would not be productive since many may not want them.
k. Where a clay lined earthen manure storage facility is permitted, upgradient and down- gradient groundwater monitoring will be required. This is unnecessary where HDPE liners are used since leak detection will be required for these units.
l. The suggested approach is what DEP intends to require as described in Section 3. G. of the application for a Water Quality Management Part II permit.
m. DEP will determine the frequency of monitoring based on the results of the first two years of monitoring data. At a minimum, it is anticipated that monitoring will occur when DEP inspects the facility and when the NPDES permit is renewed.
n. CAFOs must comply with Nutrient Management plans for owned or leased land and must enter into agreements with manure importers to assure manure is applied at an agronomic rate. Given these requirements, over application of manure will not occur.
o. Percolation tests are used to determine the permeability of soils for onlot system use. This is not a useful tool to determine the depth of water table. Where the depth to water table is an issue, soils probes and test wells may be required to determine the depth of water table. The Pennsylvania Technical Guide contains standards that determine the placement of manure storage facilities over water tables.
Comment: Section 3, Item 3.g. - The Ground Water Monitoring Requirements should be modified to include underground storage tanks over one million-gallon capacity. The commentator further believes that for the first two years of operation, the CAFO operator should be required to conduct the tests listed plus heavy metals monthly and should send these test results to the municipality. (7)
Response: Groundwater monitoring has been limited to all clay lined earthen manure storage facilities. Additional specifications for underground storage tanks made of concrete or steel for manure storage facilities have been included to assure the potential for leakage is minimized. These specifications are based upon the Pennsylvania Technical Guide. Where this specification is not met, leak detection systems will be required. The test results will be maintained on-site and available to DEP upon request. If municipal officials want to review the results of the samples, they may obtain these from DEP. Because of the low levels of metals in manure, DEP is not requiring testing for metals.
Comment: Section 3, Item 3.g. - Several commentators support the use of test wells drilled to measure ground water quality around the manure storage facilities which should be monitored on an annual basis by the state. One commentator asked if bacteria from a leaking manure storage facility is less dangerous than bacteria from a leaking septic system. (1, 46, 82, 93) To the contrary, another commentator questions the need for four monitoring wells for a manure storage that already requires a leak detection system stating that these wells provide a conduit for contamination from the surface to reach the groundwater. The groundwater flow pattern should dictate the placement and number of wells. (98)
Response: Groundwater must be protected from all sources of bacterial pollution. Monitoring wells will be required for clay lined earthen manure storage facilities only. These facilities do not require leak detection systems. Quarterly samples will be required for these facilities. Levels of bacteria above the levels established in the Safe Drinking Water Act, regardless of the source, indicate the potential for public health problems. The requirement for one upgradient and four downgradient monitoring wells is standard practice for determining the integrity of waste storage facilities. The hydrogeology of the area is considered in determining the placement of the wells. Construction standards for the wells, which will include grouting where necessary, prevent the intrusion of surface waters. A requirement for proper sealing of these wells has been included in the provisions of the permit related to closure of a CAFO.
Comment: Section 3, Item 3.g. – Some commentators suggested that there should be a bond issued to protect surrounding water supplies and surface waters from potential pollution from manure storage facilities. An option to bonding would be the mandatory completion of operator training. Another was concerned about the lack of an emergency spill control system to protect surface water. They pointed out that a chemical facility in the same location would be required to install all kinds of groundwater monitoring spill control systems. (1, 46, 82, 90, 93, 105)
Response: While some statutes and regulations provide authority for DEP to impose bonding requirements for specific activities, there is no such direct authority given DEP for CAFOs. Although DEP is planning to provide training to CAFO operators, authority to require mandatory training must be established in statute or regulation before DEP could require attendance. There is no such direct authority under existing statutes or regulations for CAFOs. A contingency plan is required under the Nutrient Management Plan for manure spills at storage facilities; PPC plans are for spills of other materials used at CAFOs.
Comment: Section 3, Item 3.g. - Private well owners should establish background quality and quantity of their home water supply when a CAFO is proposed. (16, 54, 63, 82, 99, 100) To the contrary, the permittee should be required to conduct and pay for water quality analysis of private wells located within a reasonable zone of influence of the facility. (92)
Response: Well test kits are available from the district offices of DEP for a reasonable fee
if property owners wish to monitor their wells. There will be no requirement that the CAFO permittee to monitor wells on neighboring properties since any problems with the manure storage facilities leaking will be detected in the leak detection system or groundwater monitoring wells before any more distant well is impacted.
Comment: Section 6, Item 1 - We hope the Act 14 Notification to municipalities and Counties will afford sufficient duration for a coordinated review by the affected municipality and County. This suggestion is made considering the volume of technical engineering and design that may accompany a proposal and, for any given location, the siting characteristics may be difficult which would obligate time to ascertain the situation. (70)
Response: Act 14 provides that applicants for water quality permits are to give written notice to each municipality in which the activities are located. The municipality must receive this notice at least 30 days before the Department may act on the permit. Act 14 gives municipalities 30 days to provide comments. There will be additional time for comments during the permit review process since both the WQM Part II permit and NPDES permit have public participation requirements.
Comment: Section 6, Item 2 – The four weekly publications leave something to be desired. A sign should be posted at the site and readable from a public road listing intentions, contacts and the date and place of a public meeting hosted by the applicant. (18)
Response: The Department believes that four weekly publications are sufficient notice of a proposed CAFOs greater than 1000 AEUs.
Comment: Section 7, Item 4. - There were numerous comments and questions regarding the requirement for a Preparedness, Prevention and Contingency Plan (PPC Plan). These comments included:
The referenced DEP guidelines indicate that the PPC plan is a condition of an NPDES permit. If that is the case, it should not be required here, unless an NPDES permit is needed for stormwater discharge during construction, as described in item 7.3. (55)
The PPC Plan, for non-CAFO areas such as pesticides, fertilizers and petroleum products, is required in addition to a Contingency Plan for manure spills. This should be eliminated in the paperwork for both permits.
The reference to the December 1997 "Guidelines for the Development and Implementation of Environmental Emergency Response Plans" is written for industrial activities, not agriculture and should be eliminated.
Under what authority is DEP acting in requiring a PPC plan for substances other than manure?
The PPC plan references to pesticides should be consistent with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and the Pesticide Control Act of 1973.
There is no connection between pesticides, chemicals and fertilizers and manure management.
It is unclear what authority DEP has to require this of a facility which is being permitted to handle manure without a discharge. Is this PPC plan intended to cover the NPDES/CAFO permit, or the NPDES stormwater (construction) permit? If the former, this should be made clear. If the latter, an explanation is needed. The 12/97 PPC guidance document does not relate to agricultural operations (3, 9, 49, 55, 95, 98)
To the contrary:
A Preparedness, Prevention and Contingency Plan reviewed and approved by the local government should be a prerequisite to any permit application for an NPDES or Part II permit approval. A copy of the Preparedness, Prevention and Contingency Plan should be sent to PENNDOT, the Local Emergency Management Coordinator and the local municipality. (1, 18)
We can provide specific examples of an inadequate PPC being submitted by one of the largest operators in the state in business over 10 years. The permit requirement needs to include review and approval by local government organizations responsible for emergency management as a condition of permit approval. (1, 58)
The permittee should be required to prepare and file an Emergency Response Plan in the event of a rupture or leak in the manure containment facility to contain the spill and warn the public of potential health and environmental problems. Operators should be trained in emergency response strategies. (92)
It is unclear whether the strategy requires spill contingency planning for nutrients. Do spill plans only apply to chemicals on the farm or all pollutants including nutrients? What type of technical assistance will conservation districts provide farmers to ensure a spill or other accident is not repeated? (57)
Contingency plans for manure discharges and related spills – leaving a valve open which empties a lagoon upon the land for example – should be required. (93)
Response: Prior to approval of the Water Quality Management Part II permit, the portion of the Preparedness, Prevention and Contingency (PPC) plan dealing with construction related activities must be completed and submitted to DEP. The portion of the PPC plan relating to operation of the facility may be deferred and submitted with the NPDES permit application. The Department’s authority for requiring PPC Plans is in Section 402 of the Pennsylvania Clean Streams Law (35 P.S. §691.402). This section authorizes the Department to take action to prevent potential pollution. The PPC Plan is the mechanism used to establish measures that will be used to properly manage polluting substances used at a permitted facility. In the case of CAFOs, the potential for manure spills is addressed in the Nutrient Management Plan. Other polluting substances such as pesticides, manure additives for odor control/emulsification, emergency generator fuels and other materials which, because of their use in and around the manure storage facility or collection pit under the animal units must be included in the PPC plan. Other chemicals, such as fertilizers, herbicides and chemicals generally used around the farm and in the fields are managed under other laws and regulations and do not have to be included in the PPC plan. Only the pertinent parts of DEP’s PPC guidance document should be used to create the CAFO PPC plan. A list of agencies to be notified in case of a spill is required. The PPC plan includes training of staff in how to react to an emergency or spill. DEP will provide technical assistance in cooperation with the County Conservation Districts to assure spills and accidents are not repeated.
Comment: Section C - Why was the requirement to identify "any overflow discharge points" on a topographic map, eliminated? This seems important for inspections and analysis and should be reinserted. (1)
Response: The Preparedness, Prevention and Contingency Plan includes this information.
Comment: Section D – The language regarding permits issued to operators of facilities in both permit applications should be tightened up to say "list all past and present permits issued to the owner, operator and facility" to establish a complete paper trail of the many and varied layers of ownership, partnerships, etc. typical of CAFOs. All parties and "investors" need to be made available on permit applications since investors tell owners/operators what has to be done to gain productivity vs. overhead. What choice will that operator have but to break the rules and hope he gets away with it? (1, 58)
Response: A compliance review section has been added to the permits. This requires information from the permittee regarding the compliance status of all environmental requirements.
Comment: Page 4, Section F, Item 2 – last sentence (and Section 3, Item 3.i.)– delete "construction" and insert in lieu thereof "the preparation of adequate drawings, construction specifications, and operation and maintenance instructions." This will then be consistent with Section 3, Item 3.i. on page 3. The individual or firm that designs the facility may not (and should not be expected to) oversee the construction. It should be required as a permit condition that any design changes during construction be approved by the engineer. (55)
Response: The first change was made. The proposed change regarding limitation on design construction inspection by one firm was not made since this is outside the scope of DEP’s authority to administer. The change regarding design changes was not included because ‘as built" plans must be submitted by the design engineer.
Comment: Page 4, Section F, Item 2 - Engineers should sign off on both the design and the construction of manure storage to make sure the Pennsylvania Conservation Technical Manual standards are met. The contractor should also sign-off that the construction met the Technical Standards Manual. (16, 63, 99, 100)
Response: The language in this section has been revised to make it clear that a Registered Professional Engineer will be required to design the facility and sign-off that construction of the facility meets the Pennsylvania Technical Guide. No requirement was placed on the contractor.
Comment: Page 4, Section F – In addition to the fine/imprisonment, any falsified statement done knowingly, on any part of the applications or submitted information should require DEP to deny the permits and void the permittee from re-applying for this or additional permits. This should also be required on the Nutrient Management Plan. (1, 58)
Response: Section 611of the Clean Streams Law (35 P.S. §691.611) provides appropriate remedies for falsifying information.
Comment: Page 4, Section F – Asking for an engineer to be "competent in the field of design and construction of manure storage facilities" sounds like some kind of training is required to achieve this competency. Also the 4/98 draft said the operation (of the facility) would also have to be part of the engineer’s certification. Why was that deleted in the 6/98 draft? Both training and certification of operation should be inserted in the document to assure competency. (1)
Response: Engineering competency in a specific area is not usually achieved by attending some sort of training course. It is usually achieved by working with other engineers experienced in an area and learning though experience. The language identified as removed has been reinserted. The operation of the CAFO is the responsibility of the permittee. An engineer (perhaps different from the design engineer) provides operation and maintenance guidance to the operator.
Comment: Page 4, Section F.2. - For consistency with 3.3.i, change WQ0022, Section F.2. by inserting "and accountable" after "responsible", delete "construction" and insert in lieu thereof "design, the preparation of adequate drawings, construction specifications, and operation and maintenance instructions." This holds someone responsible for the design. (55)
Response: This change has been made.
WATER QUALITY MANAGEMEMENT PART II PERMIT FOR CAFOS (3620-PM-WQ0510) 6/98
Comment: The Water Quality Management Part II permit should be required to be renewed every five years just like the NPDES must be renewed since to do otherwise would be a contradiction of permit coordination in the strategy. (14)
Response: Water Quality Management Part II Permits are required for construction of the manure storage facilities and are issued only once for the life of the facility, unless subsequent modifications are proposed to the facility. The permit coordination takes place when a newly proposed or expanded facility requires both an NPDES and Water Quality Management Part II permit. There is no need for continuing any permit coordination beyond this construction phase.
Comment: Conditions for CAFO WQM Part II Permits - Why is this written in the masculine"? (15)
Response: Attachment 1, Item 1 has been modified to change "his" to "the permittee’s". Item 10 has been modified to change "patrolman" to "conservation officers" . Attachment 3, first paragraph, has been modified by deleting "his" and inserting in lieu thereof "the permittee".
Comment: Attachment 1, Item 4 should include a requirement for timely completion of the project (one year with a DEP approved extension). (55)
Response: The two-year time frame for initiation of construction described in this section is a standard used for other wastewater facilities. DEP sees no reason to shorten the time frame for CAFOs to require completion within 1 year.
Comment: Attachment 1, Item 5 - The use of the phrase " public nuisance" should be carefully defined to relate to water quality issues and not non-CAFO issues such as noise, dust, and odor. What is an example of an acceptable, remedial measure of the Department? The phrase "potential for causing" should be defined and "manure storage facility" should be defined consistent with Act 6. Will the "manure storage facility" also cover composting facilities? (9, 15, 95, 98)
Response: The text of this section has been modified to more clearly relate the term "public nuisance", as it relates to CAFO, as being limited to water quality related problems for the purposes of Water Quality Management Part II permit issuance. The term "manure storage facility" has been defined to be consistent with the same term in the Nutrient Management Act except that the examples have been deleted since they go beyond the scope of Water Quality management related issues. An acceptable remedial measure has been defined as prompt and immediate action to minimize the environmental impact of and eliminate the cause of a pollution incident. Manure composting facilities are not included in the Water Quality Management Part II permit. The term "potential for causing" has been more clearly described in the document.
Comment: Attachment 1, Item 5 and Attachment 2, Item 2 to require notification to DEP and the local municipality if any such "remedial measures" are taken. (18)
Response: The language in these sections has been modified to more clearly state that DEP must be contacted. The need to notify the municipality is dependent on separate requirements established by local ordinance.
Comment: Attachment 1, Item 9 should allow for routine maintenance and replacement of components without Department approval. (55)
Response: This change has been made.
Comment: Attachment 1, Item 9 - Another public meeting should be required if major changes are proposed in the manure storage facilities, before the existing permit is modified. This item should identify whom in the regional office should be contacted or if the County Conservation District could serve as the primary contact. (15, 98)
Response: Public notice of modifications to permits are published in the Pennsylvania Bulletin. If DEP receives comments pertinent to the permit review and directly related the regulations governing the permit application under review and a request for a public meeting or hearing regarding a permit modification is made, one will be held. This section has been modified to identify the Chief of the Permits Section in the Regional office as the appropriate contact.
Comment: Attachment 1, Item 10 should be revised to indicate that the permit is only required for "in stream" use of explosives. (55)
Response: The Pennsylvania Fish and Boat Commission was contacted and concurred that this change is appropriate. This change has been made.
Comment: Attachment 1, Item 11 - What kind of waste will be approved (pig carcasses, afterbirth, antibiotics, pesticides)? Will these things be specified? Who will check for compliance? How often? (15, 19, 93)
Response: This section has been rewritten to more clearly specify what materials are expected to be introduced into the waste stream of a CAFO. The source of all wastewaters and the anticipated volume of these wastes must be included in the application for a permit. Pig carcasses, antibiotics and pesticides may not be directly dumped into the manure storage facility. Residual antibiotics and pesticides either ingested by the animals in the CAFO or applied to the outer skin of the animals in the CAFO may inadvertently enter the manure storage facility as part of manure, urine or wash water. Compliance will be observed during the Department’s inspection of these facilities. DEP’s inspections will be conducted at least once per year.
Comment: Attachment 1, Item 11 - This document states that "No storm water or other waste other than that specifically approved herein, shall be admitted to the manure storage facilities for which this permit is issued." It is a customary practice for farmers to place milkhouse waste in their manure storage facilities. Some farm management plans can even call for the diversion of storm water into a storage facility. What will be the status of milkhouse waste and storm water diversion under this permit? (95)
To the contrary, CAFOs should provide for stormwater other than running it into the lagoon because keeping the lagoon at a safe level is critical. (93)
Response: The Department has had a long-standing policy of allowing milkhouse wastes to be added to manure storage facilities. DEP encourages the capture and diversion to the manure storage area any stormwater from barnyards and other areas that may come in contact with pollutants. Roof water and other clean stromwater should be diverted away from the manure storage facility. Both of these wasteflows may be diverted to the manure storage facility if such wastes are identified in the application and the storage facility is designed to handle this additional flow.
Comment: Attachment 1, Item 12 – The paragraph states that "periodic" inspections will be conducted. How often is "periodic"? DEP must decide if an operator is has been exercising sufficient management. Wouldn’t good management be done on a daily basis and wouldn’t these inspections have to increase and be of a more intensive nature during times of weather activity? The vague terms such as "facilities shall be frequently inspected" should be clarified.
This language should be detailed and confirmed not to allow for any other interpretation. (1, 12, 15)
Response: DEP agrees that good management must be done on a daily basis. This management, however, may not need to include an inspection of the entire facility daily. DEP also agrees that the frequency and intensity of such inspections may have to increase during severe weather. However, DEP does not agree that detailed language is needed in the permit to describe all the varying circumstances that may impact the timing of periodic inspections. A sentence has been added recommending weekly inspections and inspections following wet weather events. In addition, since each facility is somewhat different, the operation and maintenance manual that must be developed by the design engineer will also cover periodic inspection frequency. When DEP develops training for CAFO operators, such training will include this topic as well.
Comment: Attachment 1, Item 13 - What exactly is "special care". This term is too vague. (15)
Response: This section of the special conditions is related to the Preparedness Prevention and Contingency Plan required of all wastewater facilities. The "special care" referenced in this section is clearly described in the PPC plan. No further definition of the term is required for this section.
Comment: Attachment 2, Item 1 – This paragraph states that " The Commonwealth/DEP assumes no responsibility for the feasibility of the plans/measures/facilities." What’s the point of any of this if DEP, the state or the owners/operators are shielded from responsibility. If any of you can’t be responsible for the future of these units, that means, myself as a taxpayer, will have to be. No sir! Someone will have to be responsibility for the failure and I wholeheartedly agree that responsibility should be that of the shareholders, stakeholders, etc. of these facilities, not anyone else. Has DEP had the wording in these documents through the complete legal review? A manure storage facility designed by an engineer to meet the Pennsylvania Technical Manual at a farm in Wells Township, Bradford County developed a significant side-wall slump in the first year of operation, a groundwater or leachate flow in the witness system and a back up of manure into the sow barns. The commentator questions the wisdom of allowing registered professional engineer certification of manure storage facilities without oversight by a regulatory agency. (1, 48)
Response: The wording in the documents did undergo a complete legal review. Upon reconsideration of the sentence in question, it has been removed. This, however, does not change the fact that the responsibility for the feasibility of proposed facilities lies with the permittee and the design engineer or consultant.
Comment: Attachment 2, Item 5 – Revisions to the plan shall be pre-approved by the conservation district upon public comment and review! This again applies to the Sunshine Law. Attachment 2, Item 6 – How often is "frequently inspected"? Is there a BMP that specifically addresses this? Attachment 2, Item 7 – Who will perform the final inspection of the measures and facilities? Attachment 2, Item 9 – What type of qualifications must a person have to ensure removal and disposal of sediment? Must this person be a licensed excavator? Attachment 2 Item 10 – If it isn’t possible to stabilize the disturbed area after earthmoving, the location should be avoided. Why do we make allowances for these things? It breeds laziness and negligence in a dangerous practice. (15)
Response: Because of the confusion cause by the partial descriptions of the Chapter 102 requirements, these sections of the Standard conditions have been deleted and replaced with a reference to the provisions of Chapter 102 and the guidance documents associated with that program. Clarification of issues related to this program may be obtained from the regulations and associated documents.
Comment: The Professional Engineering and Licensing Board should review the wording in the Part II permit pertaining to engineer certification of structures to be sure their certification applies and that the necessary standards and specifications are clear and acceptable. (104)
Response: This is beyond the scope of the duties of this Board.
Comment: Attachment 3, Page 7 – Add a sentence to Facility Completion and Engineers’ Final Inspection Report, "Any design changes during construction must be approved by the design engineer." (55)
Response: This change has been made.
Comment: Attachment 3 – "Facility Completion and Engineers Inspection Report" - This should be revised to allow for the use of more than one engineer in completing the project since the design engineer might not be the one who oversees construction. A similar change is needed in the second paragraph. (55)
Response: The language in this section is broad enough to allow more than one Pennsylvania Registered Professional Engineer to be involved in the design or construction inspection for a CAFO.
PENNSYLVANIA TECHNICAL GUIDE
Comment: Regarding NRCS PA 313-SP3 -The stone in this area will not produce a 4,000 pound, 28 day mix. Also, slump, temperature and air content are out of specification for 4,000 pound mix. Slump should be 2-4, air 6.5 pounds plus or minus 1 1/2 and a temperature of 95 degrees should result in rejection of concrete. (23)
Response: The Natural Resource Conservation Service has evaluated this comment and determined that their specification for concrete is correct.
WATER QUALITY MANAGEMENT PART II PERMIT FOR CAFOS – APPLICATION CHECKLIST FOR SUBMITTAL – 3620-PM-WQ0022 6/98
Comment: Checklist: The language of the Notice statement should be changed to read "…will delay the processing of the application and will result in the application being placed on hold…" to maintain consistency in the statement. (15)
Response: This change has been made.
SELF-INSPECTION FORM
Comment: This document should be modeled after the NRCS questionnaire. Other options are the Farm-A-Syst worksheets and the National Pork Producers’ Council environmental assessment worksheets. (55)
Response: DEP has reviewed these documents during the preparation of revisions to the draft self-inspection form. Staff of the Natural Resources Conservation Service reviewed this document and recommended changes that have been incorporated.
Comment: The O/M plan for each AFO should include a "facilities monitoring checklist" to be completed by the operator at least bi-weekly and immediately following a major storm event. These checklists should be submitted monthly or annually to DEP. This checklist would assess conditions including freeboard, leak detection, liner condition, etc. The Nutrient Management Act requires records to be kept for all applications of nutrient sources, including manure. These application records should be reported quarterly or annually, include all lands upon which manure from the AFO is applied, and be available to the public. (101)
Response: The operation and maintenance plan to be developed by a Registered Professional Engineer will be tailored to the specific facility. While frequent inspections may be required during or following periods of precipitation, DEP is not establishing a minimum frequency of inspection. The "Self- Inspection Form" developed for CAFOs includes recommended inspection frequencies. The filing requirements for manure application records as described in Section 83.341 - 343 of Title 25, Chapter 83 will be required for CAFOs. These records must be retained by the CAFO for three years and can be reviewed by DEP inspectors upon request. The Department is requiring self-inspection forms to be submitted quarterly for CAFOs with greater than 1000 AEUs.
INSTRUCTIONS FOR COMPLETING AND SUBMITTING AN NPDES APPLICATION FOR NEW CAFOS – 36200-PM-WQ0033 – revised draft 6/98
GENERAL INFORMATION
Comment: Page 1, item 2.3 must accurately describe the CAFO categories that need individual NPDES/CAFO permits. (55)
Response: This language has been clarified.
Comment: Paragraph 2, Item 3 – This should say "any operation specifically required" because DEP should have the discretion of requiring an operation be NPDES permitted regardless of the CAFO size criteria if circumstances warrant. (93)
Response: The language in this section has been revised to be consistent with federal regulations.
Comment: Section 2 – Who needs a permit - Animal units should be calculated with available acreage owned by the facility. When the number exceeds 2 AU per acre, then you should name this facility as a CAFO and require it to be permitted. (1)
Response: This approach goes well beyond the federal definition of CAFO and would require operations as small as two AEUs to obtain an NPDES general permit. DEP intends to require NPDES permit coverage for operations that are CAOs with 301 AEUs or more or those with a direct discharge to surface waters.
Comment: Section 3 – The 90 day minimum for filing an application prior to operation is not sufficient and puts considerable pressure on DEP to grant permits given current state law regarding expediting permits. (1, 58)
Response: The Department has determined that 90 days is sufficient to complete a review of CAFO proposals that are complete. When an incomplete submittal is returned for additional information the review clock stops. In addition, DEP encourages early involvement in projects. Our experience has shown that applicants rarely wait until the 90 day cutoff and usually submit applications well in advance of the anticipated construction date.
Comment: Paragraph 4.a. – The four weekly publications leaves something to be desired. A sign should be posted at the site and readable from a public road listing intentions, contacts and the date and place of a public meeting hosted by the applicant. (18)
Response: DEP believes that four weekly publications for CAFOs with greater than 1000 AEUs is sufficient notice of a proposed CAFO.
Comment: Paragraph 5 - On the NPDES permit application instructions, Item #5 on the first page should be reviewed and clarified to insure that it is consistent with the Nutrient Management Act and Item (b) on page 2 should be revised to insure that the references to Chapter 102 requirements are accurate. (3)
Response: The appropriate changes have been made.
Comment: As a part of the NPDES application section 5.c., the applicant should announce two public meetings at or near the site to explain the proposed operation and answer any and all questions. (7)
Response: There is no requirement placed on the applicant to hold a public meeting. DEP will encourage early interaction with the community. DEP will hold public hearings where appropriate.
Comment: Paragraph 5.e. – This section states that a "Detailed site layout plan including provisions made for any overflows of the manure storage facilities" must be included. CBF supports this requirement but is concerned that there is insufficient guidance available to the applicant to comply fully. For example, neither NRCS specifications nor Act 6 nutrient management plans require secondary containment systems or similar measures as part of an approved agricultural waste management system. We believe the strategy should clearly identify what options are available and are to be used by operators to control manure overflows, such as secondary containment systems, and vegetated filter areas. The strategy should also identify procedures to be used to calculate what percentage of the total volume of the storage system is to be controlled. (101)
Response: Manure storage facilities are not required to have secondary containment. The application has been modified to remove any language that indicates that secondary containment is required.
Comment: Paragraph 5.e. – This paragraph should relate to groundwater as well and include on the layout plan of all permanent residences within one half-mile. Also, the 100-year flood plain and any watercourse should be marked. (18)
Response: The Nutrient Management regulations include minimum isolation distances to residences. These distances are less than one half mile. DEP will assure permits for CAFOs comply with the isolation distances in the Nutrient Management regulations. Water courses and waterways within the project area will be included on the plan. DEP will determine the relationship between the location of the project and the 100 year floodplain as part of its review.
Comment: Paragraph 5.f. – This paragraph requires clarification in regard to responsibility and agreements. The applicant for a CAFO over 1,000 AEUs should be held responsible for all phases of the manure from production to application and any violations therefrom. (18, 90) To the contrary this requirement goes beyond the present scope of the Nutrient Management Act. Under Act 6, only owned and leased lands are to have plans and not all land as 5(f) appears to require and should be rewritten to conform to Act 6. (95)
Response: The document has been modified to more clearly describe the responsibilities of the CAFO permittee regarding manure application. The revised version more closely relates to the Nutrient Management Act requirements while providing for agreements and Nutrient Balance Sheets for exported manure.
Comment: Paragraph 5.f. - Manure storage facilities should be managed to prevent pollution through written agreements between the CAFO permittee and those using the manure to assure the manure is emptied as scheduled, applied at the right time in the right amounts. A sample agreement should be developed by the State Conservation Commission or DEP to guide this process. These agreements need some flexibility and need to be able to accommodate factors such as the farmer’s crop rotation, etc.. (16, 63, 82, 99, 100)
Response: This is the approach proposed in the draft documents. DEP worked with other agencies to develop model agreements and Nutrient Balance Sheets to accommodate such a process.
Comment: Paragraph 5. G. – This only requires a statement from the conservation district that a NMP has been approved. It does not require that the content of the plan be a part of the NPDES application, nor public availability as such. If the content of the plan is not included with the NPDES application, then how is compliance with that content included as a permit condition? The Nutrient Management Plan is a lagoon management tool under the NPDES system. If lagoon management is to be used at all effectively as a tool for protecting water, provision must be made to ensure that a department charged with the protection of water will have oversight and authority to act in unforeseen circumstances. Departments of Agriculture and Soil Conservation could and should be used to support, guide, encourage and coordinate the use of safe practices, but oversight authority of the NMP in relation to CAFO belongs with DEP. The Nutrient Management Plan, not just written approval from the conservation district, should be part of the NPDES application and available to the public. (31, 89, 93)
Response: The County Conservation Districts, not DEP, are responsible for the development and implementation of Nutrient Management Plans under Act 6. A copy of the Nutrient Management Plan along with an approval letter of the plan by the County Conservation District must be submitted prior to approval of the NPDES permit. If the Nutrient Management Plan, as approved by the Conservation District, is not implemented, this condition of the permit has been violated and a compliance action would be initiated. This compliance action would begin by notifying the Conservation District of the problem and allowing the district to work with the Permittee to achieve compliance.
Comment: Paragraph 5.j. – The first sentence is not complete and should be rewritten. (18)
Response: This phrase has been rewritten.
Comment: Paragraph 5.b. - Delete "if the spreading involves any earth disturbance activities" as plowing and tilling are earth disturbances and leaving these words in may result in an attempt to misconstrue it and therefore justify not doing an E&S plan. (55, 93) Section 5 (b) (second listing on page 2) of the NPDES application document states that an Erosion and Sediment Control plan is required for all land used for manure spreading if the spreading involves any "earth disturbance activities." Earth disturbance activities should be defined. Would spreading manure on pasture land require an E&S plan under this section? The section goes on to state that the permittee has the responsibility to assure that the plans are properly prepared, signed and implemented. This requirement raises several concerns. What if the land receiving the manure is in another county; or state? The manure could possibility be spread on 6, 8 or 10 properties each needing an E&S plan. Are we placing a tremendous time and paperwork burden on the farmer? (95)
Response: The phrase "if spreading involves any earth disturbance activities" has been deleted. This section has been rewritten to clarify when Erosion and Sediment Control plans are required and to identify the responsibilities of the CAFO permittee regarding erosion and sediment control plans. The CAFO permittee is responsible for these plans on properties owned or leased by the CAFO. Importers are responsible for compliance with erosion and sediment control plans for earth disturbances on their properties.
Comment: Paragraph 5.i. - The draft states that the permit includes requirements for either a Part II permit or an engineer’s certification. This is inconsistent with Part C, paragraph 7 of the NPDES permit. Without the Part II permit, we will lose all of the requirements for groundwater monitoring and quarterly sampling. If engineers are going to correctly certify an existing facility, they will have to go through all of the analysis in Part II anyway, so there is no reason to allow a certification to substitute for a Part II permit. (1, 58)
Response: It appears you were referring to an inconsistency with the WQM Part II permit. The same note was added to the WQM Part II instructions as suggested. While many new operations will be required to obtain both a WQM Part II permit and an NPDES permit, DEP’s strategy for attaining compliance at existing CAFOs requires only that an NPDES permit be obtained unless an expansion or upgrade of the manure storage facilities is proposed. WQM Part II permits are generally construction permits and are not appropriate for an existing CAFO. DEP believes the certification by a Registered Professional Engineer will be sufficient to assess the integrity of an existing storage facility.
SPECIFIC INSTRUCTIONS FOR COMPLETING THE NPDES APPLICATION FORM
Comment: Section A – The 4/98 draft said "Operator (if different than the owner). This language should be reinserted because CAFOs typically have layers of ownership and management to shield them from liability. DEP must admit and address this problem. (1, 58)
Response: The NPDES application requires the identification of both the owner and operator.
Comment: Section B.1. - The applicant is requested to provide an average number of AEUs which could reflect the possibility for a wide range of animals and types. Does an averaging calculation become the basis for sizing or will the design be drawn upon the largest number of AEUs for all animals? North Carolina uses "steady state live weight" (70)
Response: The calculation of Animal Equivalent Units (AEUs) is based on the definition of AEU in Title 25, Chapter 83. The calculation is on an annualized basis and is, therefore, an annual average number of animal equivalent units. The design will be based on an annualized average.
Comment: Section B. 2. – This paragraph seems to indicate that even for an operation that produces manure which is then exported by a subcontractor to a farmer who leases land from a separate landowner (now a fourth party), that a written agreement is required between the permittee and the final recipient landowner. If this is not the intent, it should be and it also should include all parties in between, such as any hauling subcontractor and a receiving farmer who leases land. (18) The wording is unclear regarding responsibility for application of manure. The 4/98 draft clearly stated in B.2.the permit would not be accepted without written, signed manure agreements. This section does not include all phases of manure disposal and should be modified to include all parties involved in all phases from production to application. This change is truly insulting. What is the reason to change this, since the permit, Part C, Paragraph 1 requires signed agreements? The language in Part C, paragraph 1 needs to be clarified as it relates to signed agreements and acres requiring NMPs. This is a big loophole. (1, 58)
Response: This language has been modified to assure this requirement is clear. All of the provisions relating to the need for agreements has been modified to be more clear. Hauling contractors are not included.
Comment: Section B.3. says to check the box if you have included a topographic map. The general information section requires this. This wording makes it appear optional. The 4/98 draft clearly required a topographic map. (58)
Response: A topographic map is required. The language in this section was modified to make this more clear.
Comment: Section D – Changes made from the 4/98 version are an improvement, but wording still varies from the actual permit which makes a Part II a prerequisite. (58)
Response: This language has been clarified to more clearly describe when a WQM Part II permit must be submitted prior to the issuance of an NPDES permit, since this is not always the case.
Comment: Section D – Why was the "watershed information" deleted? Has it been incorporated elsewhere? (1, 58)
Response: The requirement for this information has been reinserted in Section A.
Comment: Section D – The description of manure storage is inconsistent with the NPDES permit that requires a Part II as a prerequisite. (1, 58)
Response: Existing CAFO operations applying for an NPDES permit do not have to obtain a Water Quality Management Part II permit, so this section is correct as written.
Comment: Section E - What is the purpose of indicating any public support or opposition to this operation as part of the application? What effect will this have on the granting of permits? (15)
Response: This has no impact on whether a permit is issued. This provision has been deleted.
Comment: Section E – In the 4/98 draft an estimate for freeboard was asked for. Why was it deleted in the 6.98 draft? Would this not be a useful indicator in evaluating the unit? This should be re-written back into the draft. (1)
Response: This requirement was not deleted. It is in the Water Quality Management Part II permit requirements since it is a design related issue.
APPLICATION CHECKLIST
Comment: Item 9 – requires certification of the integrity of an existing manure storage facility but paragraph 5.i. in General Information requires certification " on the adequacy and structural stability and integrity of the facilities." Wording on the application checklist form should be changed to the more extensive requirements of the instructions. (58)
Response: This change has been made.
Comment: Item 10 – Why was "Site Plan and Stormwater Runoff" (4/98 draft) deleted in the 6/98 draft? (1, 58)
Response: This information is more appropriately required as part of the WQM Part II permit application review process. This requirement was moved to that document as a requirement for NPDES stormwater permits in the Application Checklist.
Comment: The permit application should address both new and existing CAFOs. (58)
Response: This has been corrected.
NPDES PERMIT FOR CAFOs ( Form 3620-PM-WQ00514-revised Draft 6/98
PART A
Comment: What is adequate freeboard? It is the Agricultural Advisory Board's understanding that the Department and NRCS have resolved the freeboard issue. (95)
Response: DEP and NRCS have resolved the freeboard issue for manure storage facilities. For CAFOS exceeding 1000 AEUs, DEP will require 2 feet of freeboard. All other manure storage facilities will meet the freeboard established in the Pennsylvania Technical Guide. This resolution, however, is related to a regulatory change proposed for Chapter 91 and will be finally resolved when this regulation becomes final.
Comment: The effluent discharge guidelines in the NPDES permit are based on a 25 year, 24 hour rain storm event. Pennsylvania averages two of these events per year and has had 100 - year events as well. The EPA NPDES guide manual in Section 2.8.1 states that CAFOs (>1000 AU) must contain "an equivalent or more stringent effluent limitation." DEP should tailor the permit to our actual conditions. These facilities should be discouraged from locating in a flood plain, but as a minimum, should be protected from a 100-year flood event. (1, 23, 58, 86) To the contrary, historic and present construction of farmsteads and livestock structures in flood plains dominate Pennsylvania agriculture due in part to topographic features and the use of water resources by farmers. To require existing operations to move from these areas and re-establish production would be an economic hardship. In most cases animal production facilities could not be used if manure storages were not immediately adjacent to these facilities. In some cases entire operations exist within a one hundred-year floodplain and would be put out of business. The 25 year / 24 hour storm event should be used instead. (98)
Response: There appears to be some confusion over the applicability of the 100-year flood plain and 25 year 24 hour rain event to the siting and design of CAFOs. While Manure storage facilities are to be designed with sufficient capacity to handle a 25 year/24 hour storm event, the location of new facilities must be out of the 100 year flood plain to protect the structural integrity of the facility. DEP does not intend to require the removal of existing manure storage facilities from the 100-year floodplain.
Comment: As reaffirmed by the draft Unified National Strategy for Animal Feeding Operations (USDA-EPA, 1998) nutrient management plans will be the cornerstone of any effective permitting program for large animal operations. Thus, the strategy should clearly state that a nutrient management plan is a condition of the Water Quality Part II Permit, and compliance with the plan, including all record-keeping and reporting activities, is a condition of the NPDES permit. (101)
Response: A Nutrient Management plan must be approved by the County Conservation District for all land owned or leased by the applicant for a CAFO NPDES permit prior to issuance of the NPDES permit.
Comment: County Conservation Districts should review CAFO Nutrient Management Plans annually because of problems associated with farmers being released from their agreement to receive manure. (58)
Response: There is a requirement in Part A for an annual review of Nutrient Management Plans by the CAFO permittee. DEP may also check the status of these plans during its inspection of the CAFO.
Comment: Item #1 - Why doesn’t the permit require any routine sampling or monitoring or reporting for CAFOs? (15)
Response: The description of monitoring requirements is in the instructions for completing the Water Quality Management Part II permit. Reports and records required of CAFOs are maintained by the CAFO permittee. DEP staff will examine these records during inspections of the CAFO.
Comment: Paragraph 3 - Why the weak language i.e. moving from steps to be taken to steps planned to be taken? If there is a problem, it should be handled immediately. (15)
Response: These actions may be sequential and not yet accomplished. While critical problems may require immediate attention, others may be able to be scheduled for completion at a later date.
Comment: Paragraph 5 - How often must they fill out the self-inspection reports? (15)
Response: The forms must be filled out every time the operator conducts an inspection. The frequency of these inspections is related to the available freeboard in the manure storage facility and precipitation. DEP is recommending a minimum of weekly inspections of the manure storage facility under routine operating conditions and inspections after wet weather events.
Comment: Nutrient management specialists that are also partners in some of the corporations that are building current CAFOs use their certification to meet the paper requirements of the permitting process while doing as they please on a day-to-day basis. Self-monitoring puts citizens of this state at too much risk. (33)
Response: Self-monitoring has been a very effective tool in achieving compliance at other DEP permitted facilities. Linked with periodic inspections conducted by DEP staff, this approach will effectively protect the environment.
Comment: Self-monitoring - Unless the applicant can provide documentation showing previous history of satisfactory, profitable, citation-free operation by himself of the to-be-contracted operator, inspections must be conducted at least quarterly until the inspectors can document a satisfactory operation. Delegate some type of authority to local municipalities so they can provide some of the initial legwork to alert DEP of impending discrepancies to lighten the workload of DEP inspectors. Copies of DEP and self-inspections should be sent to local municipalities for information. Several testifiers stated that the concept of self-inspection is totally absurd. Unannounced inspections should be conducted by DEP staff monthly until the quality of the operation is known followed by quarterly self-inspection and annual DEP inspection. If manpower is needed, these inspections should be delegated to the municipality. There was also an objection to the CAFO operator conducting a follow-up inspection of the facility to assure any problems found during the inspection were corrected. There is concern that DEP staff may not make a compliance inspection in these cases since this inspection is optional in the strategy. (7, 12, 14, 18)
Response: While the Department has established a one-year frequency of inspection, more frequent inspections may be conducted if the regional office staff determines such inspections are necessary. DEP intends to inspect as needed. DEP has sufficient manpower and does not intend to delegate its responsibility to adequately inspect CAFOs to municipalities. Self-inspection forms submitted to DEP become a public record and will be available to municipal officials upon request. This will provide adequate municipal access to these reports..
Comment: The 24-hour reporting section should include examples of non-compliance and the permit should include some discussion of what a CAFO may expect from DEP when violations occur. (58)
Response: Compliance actions are based on case specific factors and therefore can not be generalized in the permit document.
PART B – MANAGEMENT PRACTICES
Comment: Duty to provide information – Developing information on the land to be utilized for a CAFO should be done by consultation with the neighbors since a permitee from out of the area does not know the land they are occupying. Case in point – many nutrient storage systems were improperly designed by soils engineers and government agencies and are built on sinkholes. (23)
Response: While consultation with neighbors is a good idea when the permittee is evaluating a potential site for a manure storage facility, it has not been included in this section as mandatory. The public notice requirements give any interested neighbor an opportunity to raise potential hazards on a particular site to both the Department staff and permit applicant. DEP is interested in the list of sites where manure storage systems were improperly designed by soils engineers and government agencies on sinkholes. DEP will use this list to evaluate the need for modifications to current procedures in the future.
Comment: Falsifying Information - We can give DEP examples from one of the largest pork producers in the state that permits have grossly incorrect information on them. How will DEP determine if information is falsified as opposed to just incorrect? This is important to the permitting process and will lead to fair treatment of compliant operators versus scofflaws. (1, 58)
Response: Please forward this information to DEP. To distinguish between incorrect information that is included in error as opposed to falsified the information, DEP must determine if the permittee knowingly submitted incorrect information. This is often a difficult determination, but DEP has historically prosecuted individuals for such falsification. Proof of falsification is often provided by witnesses or conflicting records.
Comment: Liability – Paragraph one and two are in conflict with the third paragraph. The first two say the permittee is liable and the third says he isn’t. (1, 58)
Response: This language does not conflict. The first two paragraphs relate to violations of the Clean Streams Law, including violations that are not specifically covered by the permit. The third paragraph merely reiterates that full compliance with permit conditions protects the permittee from sanctions under other laws with respect to the permit condition.
Comment: There should be a provision that releases a permittee from liability for nutrients that are sold commercially as garden fertilizer. (23)
Response: This section of the permit covers very broad liability issues. It would be inappropriate to include such a specific release from liability provision in this section. Further, while a permitte’s liability for manure sold as garden fertilizer is reduced because of properly labeled bagging, any exemption of liability in an NPDES permit could be interpreted as conflicting with the Nutrient Management Plan liability provisions.
Comment: Penalties and Liability - Wording should be added regarding inspections due to complaints filed against the facility. DEP should charge an inspection fee for bad actors. (58)
Response: DEP already has authority to inspect any permitted facility in reaction to legitimate complaints. The "Right of Entry" section in Part B of the permit describes this authority. DEP
does not plan to charge a fee to inspect.
Comment: Right of Entry - This paragraph should be revised to include the industry standards for sanitation to prevent the spread of disease and references to not compromising biosecurity at the facilities. In addition, in the event of a contagious disease outbreak, DEP actions must be consistent with Section 83.491 of the State Conservation Commission’s Rules and Regulations adopted under the Nutrient Management Act. (3, 9, 95)
Response: This change has been made.
Comment: Right of entry – This should include County Conservation Districts and the State Conservation Commission since the their participation is the linchpin in the CAFO strategy. If they cannot come onto the facility under the laws referenced, it is a clear indication of the flawed plan to use a non-regulatory body in a role for which it was never intended. (1, 58)
Response: The County Conservation District staff will not be conducting inspections related to NPDES permit compliance. Their activities related to Nutrient Management Plans are covered under the Nutrient Management Act. County Conservation District staff do have the right to enter private property under the Nutrient Management Act.
Comment: Transfer of Permits - There should be no automatic transfer of permits. Requiring new permits will allow DEP to review the compliance background of the new permittee. Pennsylvania should incorporate procedures in the permitting process to contact other states for out-of-state applicants to check their compliance record. DEP should be allowed 90 to 120 days to process a transfer unless there is a regulation requiring 30 days. (1, 58)
Response: A compliance history section has been incorporated in all of the CAFO permits. This section requires the applicant to list all of the permits issued by DEP and the compliance status of the facilities permitted under those permits. Persons to whom a permit is transferred would also be required to complete the compliance history.
PART C – SPECIAL PERMIT REQUIREMENTS
Comment: Section 1 – Nutrient Management Plan – The aspect of owned or leased land and by whom, including the final landowner is not specific enough. Clarify the relations and require the permittee to be responsible for all aspects of the manure from production to application. This section should be rewritten to require a Nutrient Management Plan for all acres owned or leased, especially those acres that will directly be receiving manure. Commentators are concerned that the strategy does not ask for proof of disposal contracts when the manure storage facilities are constructed. The comments included the following: Recipients of manure must know how much manure they are accepting and their rights and responsibilities under the Clean Streams Law. These sites should be fully evaluated, a multiyear contractual arrangement (5 years minimum extended annually) established and a performance bond and insurance to cover cleanup of any spillage while transporting waste required. Responsibility for the manure after it leaves the manure storage facilities must be established and farmers and landowners held responsible for infractions or contamination from over applied waste and run-off problems (nitrates and phosphates). All importing farms should be required provide in writing the available nutrients from all sources to be used on the land, nutrients needed by crops and nutrient application rates and procedures as well as crop yields or supporting evidence of crop yield potential or have a Nutrient Management Plan. All importing farms should have a Nutrient Management Plan whether they are a CAFO, own animals or not to prevent contract growers ending up with all of the responsibility, while the integrators have none. The exact address for all importing farms must be required to avoid confusion among property owners. The plan to transport manure from CAFOs to "less concentrated geographic areas" is a scheme to transfer the liability for CAFO waste from the CAFO owner by moving the wastes to other watersheds. Manure is being moved around to lose their liability. To maintain accountability, liability for all manure must be the exclusive responsibility of the owner of the CAFO and must not be passed on to anyone else including the person leasing or operating the facility. (1, 4, 6, 14, 17, 18, 50, 54, 58)
Response: The language in this section and section 9 has been modified to clarify responsibilities and to cover when agreements are required when manure is exported. Manure applied to land owned or leased by the CAFO permittee is the responsibility of the permitte. Manure transferred to others is the responsibility of that person under the agreeement provisions.
Comment: Section 3 and section 4 – the addition of an operation and maintenance manual is a good additions. (58)
Response: No response needed.
Comment: Section 4. – The addition of non-construction Erosion and Sediment Control plans is a good one (58) To the contrary, this section states: "In addition, an erosion and sedimentation control plan for any non-construction related earth disturbance including plowing and tilling operations on all land to be used for manure spreading must be prepared and implemented in compliance with Title 25, Chapter 102." This sentence suggests that E&S plans are required for all lands on which manure from an AFO is applied. This requirement, however, appears to be contradicted by another document in the strategy. The Instructions for Completing and Submitting an NPDES Application for New CAFOs, page 2 states: " b. An E&S Plan is also required for plowing and tilling operations in compliance with 25 PA Code Chapter 102 requirements for all land (including land under lease or agreement for exclusive use by the permittee) to be used for manure spreading if the spreading involves any earth disturbance activities". [emphasis added] This inconsistency should be resolved and we recommend that the revised language clearly state that compliance with Chapter 102 is required regardless of whether the manure spreading operations themselves involve any earth disturbance. All cropland in Pennsylvania that is plowed or tilled needs to be in compliance with Chapter 102. Proper erosion controls are essential on all cropland on which manure from an AFO is applied, regardless of who owns or leases the land and regardless of who applies the manure. Thus, DEP should require that the permittee submit documentation demonstrating compliance with Chapter 102 for all land that is in the nutrient management plan or under agreement for manure application. (101)
Response: The language in these sections has been revised to more clearly describe the Title 25, Chapter 102 requirements. The CAFO permittee will be held responsible for Erosion and Sediment Control plans for plowing and tilling on land owned by the permittee. Property owners of other properties on which manure from a CAFO is spread will be responsible for Erosion and Sediment Control Plans for plowing and tilling on their land.
Comment: Compliance with a nutrient management plan is the cornerstone of water quality protection for CAFOs. Please confirm that compliance with a nutrient management plan is a condition of the NPDES permit. (57)
Response: Compliance with the Nutrient Management Plan is a condition of the NPDES permit. When non-compliance is determined, DEP will work with the County Conservation District to achieve compliance.
Comment: If a CAFO operator decides to export 100% of the animal waste generated on the farm, will a nutrient management plan be required as part of the NPDES permit? Will monitoring wells still be installed and water quality monitoring still be required as specified in the Part II permit? (57)
Response: Nutrient Management Plans are required for land owned or leased by the CAFO permittee and importing farms that are CAOs. The CAFO permittee of facilities with more than 1000 AEUs must enter into agreements with the importing farms or brokers to assure that the manure received will be applied at an agronomic rate at the remote locations. A Nutrient Balance Sheet will also be required. If the CAFO has manure storage facilities at the CAFO, the construction standards for these facilities will still have to meet the requirements in the Water Quality Management Part II permit documents. Where earthen facilities with clay liners are proposed, groundwater monitoring will be required. Where HDPE liners are used, leak detection systems must be installed.
Comment: A topographic map should be included for all properties importing manure from the operation to avoid localizing millions of gallons of waste to surrounding fields and waterways. (15)
Response: A topographic map is only required for proposed CAFO greater than 1000 AEUs. Application of the manure to meet the needs of the crops eliminates the concern for the impacts of excessive localized applications.
Comment: WQ00514 NPDES Permit – Part A1. Self- Inspection Report – The first paragraph and item 3.f. are inconsistent (24 hour report vs. report kept on site). The 24 hour report when there is a discharge to a water body is preferred; annual self-inspection language should be reinserted at the beginning of the second paragraph; third paragraph - the post discharge reports rather than the annual self-inspection reports should be required to be submitted unless there is a deficiency that needs to be corrected; fifth paragraph – the submittal of self-inspection reports be submitted to DEP with applications for permit renewals is reasonable if it includes only the annual reports (not post discharge reports which should be sent in immediately) and if the suggestion for paragraph 3 is adopted; part C2. PPC plan requirement should be deleted because it goes beyond manure and holds CAFOs to a higher standard that other farming operations. A contingency plan for manure leaks should be a simple, user friendly one-page document and operator training should be given; Part C7 The first sentence, second paragraph – incorrectly states that Part II permits include a groundwater reporting requirement and is inconsistent with 3.3.g of WQ002 item 3.3.g. which requires monitoring results to be made available to DEP whenever requested; second sentence, second paragraph – delete "continue to"; delete "reports" and insert in lieu thereof " records to the". (55)
Response: The language related to the 24 - hour report and annual self-inspection report has been clarified. DEP intends to retain the requirement for the PPC plan. This plan will be limited to chemicals used directly for the CAFO. The inconsistent language has been corrected.
Comment: NPDES Permit Conditions - Part A: Why do we allow any pollutants from CAFOs? Why are we lenient with operations that can afford to take precautions? Is the disaster permissible if the facility is full at the time of the 25 year, 24 hour rain? That seems to allow for negligence. Who pays for the cleanup of such a disaster? (15, 19, 32, 54, 80)
Response: Manure storage facilities must be designed to handle the manure flow as well as withstand a 25 year/24 hour storm event with the minimum allowable freeboard being maintained. It is unlikely that a well maintained manure storage facility will overflow unless there is severe rainfall (100 year flood event). The CAFO permittee is held responsible for any overflow or spill from the CAFO.
Comment: All toxins related to the application of manure including nitrogen, phosphorous, copper and zinc should be tested to establish what potential contamination exists. CAFO hog farms use specially formulated grain that contains everything hogs need including copper, zinc and magnesium. Small amounts of these metals are passed into hog manure and after years the heavy metals in the soil permanently damage the land’s ability to support crops especially for human consumption. No technology can remove the metals and the land becomes useless. (29) (1, 29, 101)
Response: The levels of these metals in feed are small in comparison to the levels able to be safely spread on agricultural land.
Comment: Condition 2 - Who will report pollution activity related to erosion and sedimentation? To whom will it be reported and how swift and severe will the response be? (15)
Response: Cases involving incidents of pollution caused by erosion and sedimentation should be reported by the person observing such problems to the County Conservation District. The response to the problem will be directly related to the severity of the problem and is too case specific to give a more detailed response.
Comment: Part C – Item 6 – "Best Management Practices" states that DEP may require additional BMPs and control to be implemented to protect public health and maintain water quality. What is meant by public health? Are we entering the non-CAFO areas of noise, dust and odor? (95)
Response: Public health as it is used in this context relates to water quality related public health issues, not noise, dust, etc. . This has been clarified in the text of this section.
Comment: The strategy should include some requirements to properly retire the CAFO to prevent pollution or other problems associated with abandonment of manure in storage, deteriorated buildings or dead animals. Are issues related to disposal of dead animals a part of the nutrient management planning process? If not, how will DEP address dead animals? The thought of dead pig carcasses being thrown outside the barn on a compost pile as a means of disposal is utterly mind-boggling. I can’t believe its legal to compost dead animals. Animal mortality numbers should be reported and a dead animal disposal plan prepared.
(16, 57, 59, 63, 78, 79, 80, 92, 96, 99, 100)
Response: There are requirements in the NPDES conditions (Part B) regarding the closing of CAFO manure storage facilities. Dead animals are under the jurisdiction of the Department of Agriculture’s Bureau of Animal Health and Diagnostic Services. The Department of Agriculture has proposed guidance that addresses composting of dead animals.
Comment: Permit, Part C, Item 1 - The descriptive paragraph needs to clarify who the landowner and lessee are referring to. Does this include a landowner and lessee for exported manure? (52)
Response: This paragraph has been rewritten for clarity. This does not include the landowner or lessee for exported manure. A new item 9 was added to describe the agreements required for exported manure from CAFOs over 1000 AEUs.
Comment: Before a CAFO is approved, there should be a guarantee there is a manure hauler available to haul the manure from the CAFO facility. (16, 63, 99, 100)
Response: The strategy and permit documents do not address manure transport. Providing adequate transport arrangements are the responsibility of the CAFO permittee.
Comment: We urge DEP, the Dept of Agriculture and the State Conservation Commission to develop educational programs for Conservation Districts, municipal officials, local farmers intending to receive manure from CAFOs as well as their own staff about CAFOs. There should also be occasional joint information and education sessions. The CCDs may be the most logical entities to provide educational sessions for the CAFO operators, farmers, manure haulers and others. The CCDs may also play a role in informing farmers how both Act 6 regulations and CAFO strategy may affect their operation. (16, 63, 99, 100)
Response: DEP intends to coordinate the development of an education and outreach program designed for CAFO operators as well as other agencies involved with these facilities. DEP will work closely with the Natural Resources Conservation Service and State Conservation Commission as well as the Department of Agriculture in the development of this program.
OTHER GENERAL COMMENTS ABOUT CAFOs
Comment: What state agency is responsible for instituting and enforcing health and safety standards for persons working in hog factories (CAFOs)? Who inspects and how often? What is included in the inspection check-off? If the physical and health hazards to workers have not been addressed yet, when will they be addressed? Will the public be involved? What action is presently being taken to institute precautionary measures in regard to mad cow disease (Crutzfield Jacob disease)? Do we really feel the need to import sewage sludge to mix with food waste to make animal food? What are the state regulations on this subject and what agency enforces these regulations? Does Pennsylvania have on-site inspectors at rendering facilities that export rendered dead animals as a food supplement? Another commentator questioned the quality of the meat produced in these facilities because of the stressed and inhumane conditions under which the animals live and the use of antibiotics in the food they eat. A third suggested Pennsylvania ban inhumane and unsafe pork production practices as is being proposed by the Humane Farming Association. A fourth states that humane treatment must be part of what our state demands from the CAFO industry and challenges DEP’s position of seeking only to "ensure agricultural production which is profitable, economically feasible and based on sound technology and practical production techniques" as disgraceful and crazy. To compartmentalize permitting by way of totally regulating CAFOs is to the advantage of the permittee and is not in the public interest. CAFOs have to do with inhumane animal treatment, food, water, waste and with public health issues. To put all regulating under NPDES is a mistake and should not be allowed to happen. Another reminds us that bubonic plague was spread throughout Europe by flea infested rats during a time when open sewers were as common as they are uncommon today and equates these conditions to the open-air earthen lagoons suggesting they be banned. Mixing fowl and swine in close proximity causes mutation of avian viruses into viruses which will infect both humans and swine (17, 29, 47, 50, 59, 66)
Response: All of the above issues are outside the scope of this strategy and associated permit documents. The following attempts to provide information on the issues raised and, where possible, refers the commentator to the appropriate agency. Health and safety standards for workers are generally under the jurisdiction of the Occupation, Safety and Health Administration (OSHA) of the U.S. Department of Labor. For details regarding OSHA’s jurisdiction and activities, it is suggested the commentator contact that agency. DEP is not knowledgeable regarding measures being taken regarding "mad cow disease". It is suggested that the commentator contact the Center for Disease Control for up-to-date information on this subject. DEP has no information on any proposals to import sewage sludge to mix with food waste to make animal food. Sewage sludge treatment and use is very closely regulated by DEP and the use described is not permitted by the regulations. Rendering plants that produce animal feed additives are regulated by the Pennsylvania Department of Agriculture. DEP does not regulate alleged inhumane conditions at agricultural operations nor does DEP play a role in allegations that meat produced at such facilities is unsafe. The regulation of animal feeding operations is not limited solely to NPDES. The NPDES permit requirements deal only with water quality related issues. There are other agencies that play a significant role in regulating other aspects of animal feeding operations including the Department of Agriculture and the State Conservation Commission as well as the federal agencies listed above. There is absolutely no correlation between the causes of bubonic plague and open-air wastewater storage. Such facilities storing both animal and human wastewater have been in use without rodent problems or disease incident for years. DEP has no authority to regulate the mixing of fowl and swine operations.
Comment: Hatfield, which is a hog processing firm in the eastern part of Pennsylvania, is selling a product called "tankage" to farmers in Tioga County. Tankage is described as being a mix of blood, guts, gore, stomach and intestine contents, manure and urine, a by-product of the butchering process. What volume of tankage is being imported into Pennsylvania? What counties are receiving tankage? Is a permit required? When did this practice begin? When did DEP become aware of this practice? Is Hatfield the only source of tankage being used in Pennsylvania? What are the other sources? Is tankage being fed to animals as a food supplement? What quantity of tankage has been spread on farmland or fed to animals this year? Is there a permitting process for tankage being exported to other states? Is there a requirement for a nutrient management plan for farms receiving tankage? What states are importing tankage from Pennsylvania? Will DEP address this issue as part of the CAFO strategy? If not, how will this practice be regulated? What Pennsylvania government agency is responsible for establishing regulations, permitting, overseeing and managing tankage and evaluating the health risks associated with this method of disposing of antibiotic-laden and potentially diseased animal parts? (17)
Response: Tankage, as you described it, is classified as a food processing sludge or waste under the residual waste provisions of the Solid Waste Management Act. Under the land application of residual waste requirements, this material must be managed in accordance with the "Residuals Manual of Practice". Nuisances or environmental problems associated with this waste should be reported to DEP’s Bureau of Land Recycling and Waste Management.
Comment: Pfiesteria made the newspapers and the nightly TV news. It was an environmentalist’s dream come true. Clearly the "end" was near and we needed more government regulation of agriculture. The Maryland Blue Ribbon Citizens Pfiesteria Action Commission stated that there was "no demonstrable cause and effect linkage" between nonpoint sources, such as agricultural runoff, and toxic outbreaks of pfiesteria. This information never got the attention it deserved. ( 9) To the contrary, another commentator suggested drilling (plowing under) manure rather than spreading it on the surface of the ground to prevent pollution and Pfiesteria outbreaks in the Chesapeake Bay. (71)
Response: There has been no link between the Pfiesteria problems in Maryland and Pennsylvania agriculture. While plowing under manure is accepted as a good technique to apply manure, surface application is also effective under certain circumstances such as top dressing of grass crops.
Comment: Is CAFO waste a Class B sludge? Will there be some linguistic acrobatics and redefining of what can be a biosolid as is being proposed in Colorado? (50)
Response: No, CAFO waste is manure. We are unaware of what is going on in Colorado regarding the definition of biosolids. There are currently no plans to change the definition of biosolids in Subchapter J of PA Code, Title 25, Chapter 271.
Comment: Regarding ancillary operations, that will be there: maybe places to make animal food out of sewage sludge by importing sewage sludge into an area. Maybe places to make antibiotic laden CAFO manure into garden fertilizers, slaughter houses, tanneries, finishing houses, abattoirs, manure storage areas, truck terminals for haulers who take disinfected-metals- fixated-nutrient-immobilized manure to other areas. Will they wash the trucks? That operation should be required to have an individually permitted NPDES. (50)
Response: DEP is not aware of the practice of making sewage sludge into animal food. In Pennsylvania, sewage sludge may be taken to a permitted landfill, incinerated or land applied if the quality meets strict standards. There are no provisions to allow sludge to be fed to animals. Truck washing operations may need a permit from DEP in certain circumstances. If the slaughter houses, tanneries, finishing houses, abattoirs or manure storage areas fall under the definition of CAFO based on the number of animal equivalent units on site or if they propose a discharge to surface waters, an NPDES permit would be required.