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Dairy Industry CAFO Ad Hoc Workgroup Response
Draft Implementation Guidance 390-2100-001

GENERAL COMMENTS:

The expressed purposes of the draft guidance document are to “clarify the intent of the October 2005 changes to Chapter 91 and 92 of DEP’s regulations” and to “improve the completeness of applications and consistency among permit reviewers in different regions of the Commonwealth” with respect to CAFO and Water Quality Management permits, numerous terms and provisions in the draft are vague and do not give clear and practical guidance on the standards that permit applicants must meet and reviewers will apply. This guidance document needs to give clearer direction on what is and what is not required of farming operations to obtain CAFO and WQM permits. It should more clearly identify how DEP officials will measure and apply standards in making determinations on CAFO and WQM permit applications. And should identify the limitations of discretion that reviewing officials may apply in imposing additional conditions and requirements for approval of CAFO and WQM permits.

Several provisions of the draft attempt to make references to “home farms” and “satellite farms” in attempting to describe the requirements that apply and do not apply to portions of CAFO operations. Use of these terms is confusing, especially when considered in the meaning that is normally associated with “home farm” (the property where the farmer resides). We recommend that terms be used that better reflect the type of farming operation that is will be carried out under the farm’s nutrient management plan.

We would also recommend that after a revised version of the guidance document is produced in response to comments received, the version be offered to DEP’s Agricultural Advisory Board for further review and comment. Any comments that are offered by the Agricultural Advisory Board should be seriously considered before a final version of the guidance document is issued.

COMMENTS TO SPECIFIC PROVISIONS:

Page 1 Introduction:

The Introduction (and the draft guidance document generally) fails to specifically recognize the Pennsylvania Technical Guide and other applicable NRCS standards for design, construction and operation of manure storage facilities including, the instructions for Module 18 and the NRCS practice standards, as the governing standards for permit issuance. These have been historically identified as meeting the minimum standards for issuance of a Water Quality Management Permit for Waste Storage Facilities. We would recommend that language be added to the introduction which will specifically recognize these standards as meeting the requirements for CAFOs and CAFO manure storage facilities.

Page 2 - Paragraph 3 of Provision I. A.:

Paragraph 3 includes provisions that state: “The DEP regional office should suggest any appropriate additional Best Management Practices (BMPs) to the district for consideration. In the event that these additional BMPs are not incorporated into the approved NMP, special conditions covering these BMPs will typically be included in the DEP permit/approval.”

We are significantly concerned with the failure of this paragraph to specify any clear guidance, conditions or standards under which the Department is compelled or justified in requiring “special conditions” for permit approval. BMPs for non-manure pollutants have already been identified by the farm operation, and have been reviewed and approved by the County Conservation District as adequately managing the potential risks of pollution that could occur. In the absence of identified standards that demonstrate a compelling need for imposition of “special condition” BMPs in the management of non-manure pollutants, we would recommend that the last sentence of this paragraph be deleted.

Page 3 - Paragraph 1 of Provision I. B .2.:

This paragraph directs that a Water Quality Management (WQM) permit must be obtained for construction of a manure storage structure if the “nearest downgradient stream is impaired due to nutrients from agricultural activities”, as referenced in “Appendix B.”

The regulated agricultural community has had considerable difficulty gaining a reasonably accessible source of updated information on waterways and waterway segments that are determined and listed as “impaired” waters. This information needs to be accessible on the DEP website and updated in a timely fashion to ensure the ability of farmers to understand when permitting requirements apply and comply with those requirements.

We also believe this paragraph needs to identify the basis for which the downgradient stream is considered to be “impaired due to agricultural activities” for purposes of imposing requirements for WQM permit. We believe the paragraph’s intented scope of streams considered to “impaired” from agricultural activities streams are those streams that have been formally listed by the Department in carrying out its requirements for impaired streams listing pursuant to Section 303(d) of the Federal Clean Water Act. We would recommend this intended scope be clearly stated.

Page 3 - Paragraph 4 of Provision I. B. 2.:

Paragraph 4 includes a statement that, “There are many other possible scenarios regarding storage that cannot be fully accounted for in this guidance. It is best to request a permit determination from DEP prior to beginning work.”

We believe that this statement does nothing to carry out the expressed purposes of this Guidance Document to enhance completeness of CAFO or WQM permit applications or enhance consistency of reviews of permit applications. This statement does not provide definitive guidance to the regulated agricultural community to help them identify the potential requirements that may be imposed. We believe the regulations are very clear on applicable standards for manure storage. Nowhere in the regulations is any requirement for a farmer to “request a permit determination from DEP prior to beginning work. The Guidance Document should as specifically as reasonably possible identify those “scenarios” for which additional requirements and standards may be imposed and the additional requirements and standards that will apply to each scenario. In the absence of such effort to do so, we would recommend the language quoted above be deleted.

Page 3 - Paragraph 5 of Provision I. B. 2.:

Although the paragraph attempts to provide guidance for determining how to calculate storage capacity for regulation purposes we believe the paragraph, as drafted, is confusing. The paragraph may only be interpreted as requiring the omission of freeboard area in determining the storage capacity necessary for approval of CAFO permit. We believe the provision should also specifically recognize that the freeboard area should also be excluded in the calculation of a manure storage facility’s storage capacity for purposes of determining whether or not a CAFO operation must obtain a Water Quality Management permit. This is consistent with the calculation method that has historically been accepted in determining whether or not a WQM permit is required.

Paragraph 5 also states that the basis for determining whether a farming operation is required to obtain a WQM permit is the aggregate storage capacity of all on-site storage facilities (existing and proposed). We believe the application of an “aggregate storage capacity” standard is both impractical in the Department’s overall function to regulate and enforce WQM permits and unreasonably burdensome for those farming operations with existing storage facilities. The basis for determining whether a WQM permit is required should be the storage capacity of each individual manure storage facility that is constructed or to be constructed. We would recommend amendments to this paragraph to recognize this basis as the basis for determining whether a farming operation is required to obtain a WQM permit.

Page 3 - Paragraph 6 of Provision I. B. 2.:

This paragraph attempts to describe the considerations and processes that CAFO operators should pursue in determining whether a proposed manure storage facility of between 1.0 and 2.5 million gallons will be constructed in a “special protection watershed” or “agriculturally impaired watershed” and therefore be subject to Water Quality Management permitting requirements. Essentially the guidance provided in this paragraph is for CAFO operators to request and receive from the Department an “official interpretation” of whether the manure storage facility will be located in special protection watershed or agriculturally impaired watershed.

We cannot understand why there needs to be a process for requesting and “official interpretation” of whether a manure storage facility will be located within a special protection or agriculturally impaired watershed, given the fact that designations of streams and stream segments as special protection or agriculturally impaired have been substantially completed.

With proper access to information and databases relative to stream designations, CAFO operators and their consultants should be able to determine whether or not a proposed manure storage facility will be located within a designated watershed that would require a WQM permit.

It has been the experience of farm consultants that information on steam designations, particularly agriculturally impaired streams, is not readily available. It is our understanding that conservation districts do not have information of stream designations on-hand. We believe the guidance document should identify “user friendly” sources and measures for ready access of stream designations.

If the Department still believes the process for request and official interpretation is necessary, we would recommend that the process specify the time period in which the Department must issue an official interpretation in response to requests.

Page 4 - Paragraph 3 of Provision I. B. 4.:

The last sentence of this paragraph states, “Where appropriate, DEP may include limits on the maximum level of manure in the manure storage facility going into the winter as a special condition in the permit/approval of coverage.”

Regulation 91.36(a)(6) establishes clear and specific standards of freeboard levels for manure storage facilities. Furthermore, Regulation 83.294(g) authorizes winter application of stored manure by a farm operation regulated as a “concentrated animal operation” under the Nutrient Management Act when performed in accordance with the farm operation’s nutrient management plan and with the standards prescribed in that regulation. We believe the standards and allowances prescribed in these regulations should be equally apply to CAFO operations. CAFO operations that are able to meet these standards should not be subject to any additional requirements with respect to freeboard capacity or other aspect of manure storage during winter periods or with respect to the winter handling and application manure through a vague and arbitrary standard of “appropriateness.”

We recommend the last sentence of this paragraph be deleted.

Page 5 – Paragraph 1 of Provision I. C. 3.:

This paragraph uses the term “home farm” in attempting to identify areas within CAFO operations that are subject and not subject to the setback/buffer requirements. As stated above in our general comments, use of the term “home farm” will likely lead to confusion among farmers operating CAFOs, since the meaning that farmers normally associate with “home farm” is the farm in which the farmer and his/her family resides. Application of this meaning will not provide farmers with sufficient or accurate understanding of where setback/buffer requirements apply and where they do not.

We believe the phrase “lands included in the CAFO’s approved nutrient management plan” would more accurately describe the geographic areas which would be subject to setback/buffer requirements if there is an existing waterway within the areas. We recommend appropriate changes to this paragraph to replace “home farm” with language offered in the previous sentence in describing areas where setback/buffer requirements may and may not apply.

Page 6 - Paragraph 1 of Provision II. B.:.

This paragraph attempts to give some description of the types of “conduits” from which a CAFO may be required to comply with setback/buffer requirements. Although the description lists several examples of the types of “conduits” for which setback/buffer requirements will be imposed, the paragraph makes it clear that requirements for setbacks/buffers are not limited to these examples.

In order to ensure completeness of CAFO applications and consistent determinations with respect to setback/buffer requirements, we believe the paragraph must more clearly identify what is and is not a “conduit.” We strongly believe that the use of this term provides no meaningful guidance on which regulators or the regulated can meaningfully determine the extent and boundaries of areas to be subject to setback. Determinations of what are and are not considered to be “conduits” can be critical to the ability of farmers to viably operate their farms and feasibly manage manure.

The federal Clean Water Act provides significant guidance on the types of water bodies that are and are not regulated waters for purposes of the Act. We believe this paragraph should specifically the conduits for which setback/buffer requirements apply to those that are considered to be federally regulated waterways. We would also recommend that the guidance document more specifically list what would and would not be considered a “conduit” for purposes of imposition of setback requirements.

Page 8 - Paragraph 3 of Provision II. E.:

This paragraph states that when the expiration date for a CAFO permit or permit coverage is reached, the Act 38 plan comes up for 3-year review, or there is a change to the operation that requires an amendment to the nutrient management plan, “a new Notice of Intent for coverage or Application for an Individual Permit must be submitted to DEP.”

The paragraph implies that a CAFO will essentially need to apply for a new CAFO permit whenever any change occurs that necessitates an amendment to the CAFO’s nutrient management plan. Such a requirement for submission of new CAFO permit applications would be unreasonably burdensome for operators of CAFO farms in figuring out the applicable deadlines for submission of “new” permit applications, and making the necessary revisions for meeting “new” permit requirements. Historically, CAFOs were only required to submit the amendments to the nutrient management plan without the requirement for submission of a new application. A new CAFO permit should not be required every time the CAFO’s nutrient management plan is updated or revised.

Although not specifically stated in this paragraph, we believe the intent of this paragraph is to require a “notice of intent” to be filed only with respect to the first time that a CAFO experiences one of the three events described above. Once one of the three events occurs, the CAFO will not be required to submit a Notice of Intent for any subsequent amendment to the nutrient management plan that is made during period specified on the existing CAFO permit. We would recommend changes to more clearly state this intent.

Page 8 - Paragraph 5 of Provision II. E.:

This paragraph attempts to state the expectations of DEP (and expected requirements for permitted CAFOs) with respect to the submission of erosion and sedimentation (E&S)/conservation plans for lands that will receive manure from CAFOs. The paragraph would essentially require E&S/conservation plans to be filed for all importing farms within exceptional value, high quality and impaired streams.

We believe that the requirement for actual filing of E&S/conservation plans of all importing farms is impractical, especially when these plans should already have been filed with appropriate conservation districts. The Department should appreciate the new standards and requirements that apply to the exportation of manure. These standards already impose more rigid requirements with respect to the exportation of manure and the receipt of exported manure on importing farms. We believe a written verification by the district acknowledging that a plan been developed and is being implemented on the importing farm should be sufficient to ensure environmental protection without imposing impractical filing burdens.

We would recommend that the paragraph be amended to only require the submission of written verification by the appropriate conservation district of existence and implementation of an E&S/conservation on the importing farm. We would also note that the requirements expected to be imposed through this paragraph are not relevant with respect to the exportation of manure through a broker.

Page 8 - Paragraph 6 of Provision II. E.:

This paragraph prescribes a new set of evaluations that engineers will be required to make with respect to existing leachate pump systems to handle peak leachate flows. Not only does the paragraph fail to clearly identify the standards of evaluation that are to be applied, efforts of engineers to professionally perform and complete this evaluation will be costly for CAFO operators with questionable environmental benefits relative to the costs that will be borne by farmers. We would recommend these evaluations be eliminated or be replaced with simpler and more cost effective measures to address environmental concerns. We also believe that minimum standards for design of systems only require protection from a 25-year storm event, not a 100-year storm as prescribed in this paragraph. We would recommend that requirements for protection in design from a 100-year storm event be deleted.

Page 8 - Paragraph Contained in Provision III. A.:

The second sentence states that while the Department will generally accept the approval of nutrient management plans for CAFOs by the State Conservation Commission or local conservation districts as meeting the standards to be met for issuance for CAFO permits, “certain factors should be considered when preparing the NPDES permit application.” This statement strongly suggests that the Department has authority without meaningful limitations to impose requirements for nutrient management activities beyond those that are imposed under approved nutrient management plans.

We are concerned with the failure of this statement to identify or give any meaningful guidance on the types or times in which “other factors” are to be considered. We are also concerned with the implication being made in the statement that the Department still considers the thorough process for review and approval of nutrient management plans for CAFOs to be inadequate.

Such an open-ended guideline seriously impairs the objectives of consistency in understanding and application of regulation and the avoidance of arbitrariness in evaluations and determinations of CAFO permit applications, which this guidance document is trying to achieve. In the absence of provisions that clearly identify the “factors” to be considered and how those “factors” are to be applied and evaluated, we would recommend that sentence be amended to reflect the Department’s acceptance of approved nutrient management plans and standards applied in evaluation of nutrient management plans as meeting the standards for issuance of CAFO permits.

We would also recommend that the terms “home farm” and “satellite farms” be replaced with terms that more clearly reflect the type of CAFO operation prescribed in the operation’s nutrient management plan, for the same reasons as were previously expressed in comments to Paragraph 1 of Provision I. C. 3.

Page 9 - Paragraph 2 of Provision III. F.:

With respect to manure storage structures containing liquid or semi-solid manure that were constructed before January 29, 2000, this paragraph prescribes requirements for certification for structural integrity of the facility. Without further clarification of the degree of certification that must be attained, this paragraph could be interpreted to require the performance of unreasonably extensive and cost prohibitive tests and analyses of portions of the structure that are not readily accessible in order to ensure they are not structurally compromised.

We believe the only certification that should be required is a certification that is based on a visual assessment of the physical characteristics of the manure storage facility existing on the day the assessment is performed. The engineer should not be required to certify that the structure meets all requirements of Chapter 91, but only that the structural integrity of the facility is sufficiently sound based on the engineer’s visual review and assessment of the facility. We would recommend that this paragraph be amended to limit the type of certification that is necessary for manure storage structures constructed before January 29, 2000.

Questions have also been raised with respect to whether the engineer should be specifically required to certify that a manure storage facility meets Regulation 91.36’s requirement for being “water tight” and that no pollutants are escaping or will escape during the effective term of the permit. We believe provisions should be included to specifically recognize that engineers are not required to make these certifications. These certifications go beyond the professional capabilities of the engineer and place engineers and CAFO operators in a serious dilemma in practical evaluation of whether there sufficient features and characteristics to justify a “certification” that the facility is “water tight” and no escape of pollutants will occur.

Page 9 - Paragraph 1 of Provision III. F.:

We have similar concerns with respect to the scope of features and conditions that are required to be certified by professional engineers for manure storage facilities constructed after January 29, 2000. The provisions do not specify the degree of design or constructional integrity that must be certified by engineers. The minimum standards for design and construction that manure storage facilities must meet are those design and construction standards prescribed by the federal Natural Resources and Conservation Service. “Certification” of these manure storage structures by professional engineers should only pertain to the conformity of these structures with NRCS standards. We would recommend that the paragraph be amended to limit the scope of certification required to be provided to affirming that the facility conforms with NRCS standards for design and construction.

For the same reasons as were just previously expressed in comments to Paragraph 2 of Provision III. F., we would recommend that this paragraph specifically recognize that professional engineers are not required to certify that a manure storage facility is “water tight” or that the storage of manure within the facility will not cause pollution to surface or groundwater.

Page 11 - Paragraph 3 of Provision IV. F.:

This provision prescribes that “engineering reviews of existing structures should involve a full inspection of the interior of pits, tanks, and ponds to check for cracks, seeps, tears, etc. to the maximum extent possible.”

While we recognize the provision’s use of the term “should” does not necessarily mean that all of the inspection activities prescribed in this paragraph are required to be performed, we believe the paragraph may be read as mandating the performance of these activities regardless of how impossible or impractical it is for all activities to be performed. Inspections of the interior of structures are extremely difficult and can be dangerous, especially in underhouse manure storage structures. Unless a universally accepted practice or methodology for inspection of manure storage facilities can be specifically prescribed, this paragraph should be deleted.