STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY BACKGROUND INFORMATION

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3 STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY Adoption of Amendments to Rules Governing Animal Feedlots, Permits and Certifications, and Permit Fees: Minnesota Rules Chapter 7020, 7001 and 7002 PROPOSED ORDER ADOPTING RULES Office of Administrative Hearings No Governor s Office Tracking No. AR1057 Revisor s No BACKGROUND INFORMATION 1. The Administrative Law Judge (ALJ) issued her Report on December 2, The ALJ found that the Minnesota Pollution Control Agency (MPCA) complied with all notice and procedural requirements in Minnesota Statutes Chapter 14, Minnesota Rules Chapter 1400, and other applicable laws. 3. In response to comments received during the public comment period and the public hearing, MPCA staff made two modifications to the rule amendments proposed in the July 22, 2013, State Register (38 SR 79). These changes are discussed in the MPCA Staff Post-Hearing Response to Public Comments (dated September 30, 2013) and the MPCA Final Post-Hearing Response to Public Comments (Rebuttal) (dated October 7, 2013). Comments received that did not result in the MPCA making additional modifications to the proposed amendments are also discussed in these documents. 4. As detailed in the Report, the ALJ found that most of the proposed rule amendments, including the two modifications made in response to comments received, are necessary and reasonable, and recommended their adoption. However, the ALJ also disapproved some of the proposed amendments and, in doing so, provided recommendations for changing the relevant provisions so they would no longer be defective and could be approved. 1 This is the date of the ALJ s Amended Report. The ALJ s initial report, dated November 18, 2013, was required to be amended as detailed in the Chief ALJ s Report, dated December 2,

4 Adoption of Amendments to Rules Governing PROPOSED ORDER ADOPTING RULES Animal Feedlots, Permits and Certifications, and Permit DRAFT: February 13, 2014 Fees 5. The MPCA adopts the Report of the ALJ, dated December 2, 2013, and incorporates the Report into this Order with the following changes: Page 48, Finding 178: First Sentence: Change Rule to Rule Page 49, Finding 180: Change both occurrences of Rule to Rule Page 49, Finding 181: Change Rule , subp. 3 to Rule , subp. 3. Page 55, Finding 209: Change Proposed Rule , subp. 17 to Proposed Rule , subp The MPCA makes the following changes to the proposed rule amendments as required to remedy defects identified in the ALJ Report. 6a. ALJ Report, Findings 156 and 157 (page 44). Joinder of NPDES and SDS Permits The ALJ concluded that the proposed reference to the joint National Pollution Discharge Elimination System (NPDES) and State Disposal System (SDS) Permit was ambiguous because the NPDES Permit and SDS Permit have different, separate requirements under this rule. Consequently, the ALJ disapproved eight occurrences of the term NPDES/SDS Permit in the proposed amendments: Minn. R , subp 1A; Minn. R , subp. 5; Minn. R , subp. 2A; Minn. R , subp. 5; and Minn. R , subp. 2. The ALJ stated that the MPCA could correct this defect by changing the term to reference only NPDES Permit. The ALJ noted that making this change would not be considered substantially different from the proposed rules as public noticed 2, and as such, would subsequently be approved. The recommended remedy is accepted by the MPCA, and all occurrences of the term NPDES/SDS Permit are changed to read NPDES Permit at the following locations: Minn. R , subp 1A; Minn. R , subp. 5; Minn. R , subp. 2A; Minn. R , subp. 5; and Minn. R , subp. 2. The MPCA notes that, pursuant to Minn. R , subp. 5 (as amended), NPDES permits are required to include, in addition to all federal requirements, all requirements necessary to comply with state law. To the extent that Minn. Stat requires a state permit (i.e., SDS permit) for a discharge, the MPCA will indicate in the permit that the NPDES permit covers this requirement (as provided in Minn. R ) instead of naming the permit an NPDES/SDS permit, as has been done in the past. 6b. ALJ Report, Findings , pages Definition of Modification In Finding 185, the ALJ concluded that the proposed definition of the term modification at Minn. R , subp. 14a, was ambiguous, and as such, defective. To remedy the problem, the ALJ recommended that, rather than concluding a major modification is one that does not meet the existing standards for a minor modification, as is currently done under Minn. R , subp. 3, the MPCA should: (a) define major modification to specifically address the changes to facility components or operational practices that result in an actual or potential increase in the emission or discharge of a pollutant into the environment; and (b) amend the definition of minor modification to specifically address the changes to facility components or operational practices that do not result in an actual or potential increase in the emission or discharge of a pollutant into the environment. The ALJ noted that making this change would not result in a rule that is considered substantially different from the proposed rules as public noticed. 2 The criteria for determining whether a modification is considered substantially different from the originallyproposed amendments is at Minn. Stat. ch , subd. 2. 2

5 Adoption of Amendments to Rules Governing PROPOSED ORDER ADOPTING RULES Animal Feedlots, Permits and Certifications, and Permit DRAFT: February 13, 2014 Fees Although Minn. R is an existing applicable provision that the MPCA did not propose to amend, the MPCA accepts the ALJ s recommendation to better define the type of feedlot-related changes that constitute a major modification and minor modification. However, because the existing provisions at Minn. R apply to all the regulatory permitting programs that the MPCA administers and not just to the Feedlot Program, the MPCA will add the clarifying definitions to Minn. R , as shown below. In addition, the originally-proposed definition of modification at Minn. R is revised, and Minn. R , subp. 5, which also addressed minor and major modifications under the rule, is also changed. These revisions clearly identify the more common types of modifications made at feedlot facilities, including those that were of concern to commenters during the public comment and hearing process. They also clarify that certain changes at feedlot facilities do not meet the definition of modification at all. The MPCA retains the reference to Minn. R Because decisions under Minn. R are implemented though permits that involve their own administrative due process, the fact that the rule does not classify every possible change an impossible undertaking is not problematic. See Northshore Min. Co. v. Minnesota Pollution Control Agency, A , 2008 WL (Minn. Ct. App. May 20, 2008) (appeal of MPCA decision to require notice of permit amendment under similar rule as that found ambiguous by the ALJ; MPCA upheld). See also Coal. of Greater Minnesota Cities v. Minnesota Pollution Control Agency, 765 N.W.2d 159, 167 (Minn. Ct. App. 2009) (allowable discretion for rules applied in a permitting process). The MPCA finds that, as noted by the ALJ, the proposed changes to the modification definition are not substantial changes because they reflect comments submitted during the rulemaking and add clarity and detail but do not change the general method of determining when a modification is minor or major as established under existing (un-amended) applicable rule, i.e., Minn. R , and in Minn. R , subp. 5, which was not found to be defective by the ALJ DEFINITIONS. Subp. 13d. Major modification means a modification that allows an expansion of animal unit or manure storage area capacity, changes the method of manure storage, or does not meet the criteria of part , subp. 3. Subp. 14a. Minor modification means a modification that changes land identified in a manure management plan for manure application, nonroutine maintenance such as the replacement of a liquid manure storage area liner, physical changes to structures housing animals or holding manure that do not result in an expansion of animal unit or manure storage area capacity, or a modification that meets the criteria of part , subp. 3. For NPDES permits, classification as a minor modification under this subpart does not release the permittee from federal notice requirements. 3

6 Adoption of Amendments to Rules Governing PROPOSED ORDER ADOPTING RULES Animal Feedlots, Permits and Certifications, and Permit DRAFT: February 13, 2014 Fees Subp. 14a14b. Modification means a change to a facility component or operational practice described, required, or authorized by a permit issued under this chapter, including an expansion. Major and minor modifications are as defined in this part Part , subpart 5 and chapter 7001 govern public notice of changes to permits under this chapter. A change to a facility component or operational practice that is not described, required, or authorized by a permit is not a modification, including changes to: A. the type of crop or manure application rate if consistent with the methodology portion of the manure management plan and reflected in required records; B. routine maintenance; C. feeding or milking schedules; D. animal diets; E. bedding materials so long as consistent with approved design plans and specifications; F. equipment used to clean the facility so long as consistent with approved design plans and specifications; G. lands used as pasture; or H. facility components not involved directly in animal or manure management such as an office or machine shed PERMIT REQUIREMENTS Subpart 5. Modification of Permit A. If an owner of a facility that has coverage under an NPDES/SDSNPDES or SDS permit plans to make a modification, the owner must follow the procedures in chapter Modifications that do not meet the criteria in are considered m Major modifications and must follow the procedures in parts to Minor modifications must follow part c. ALJ Report, Finding 193, page 52. Definition of Owner In Finding 193, the ALJ found that the proposed modification to the definition of owner at Minn. R , subp. 17, which added the phrase, or proposing to have, was too vague, and as such, defective. The ALJ did not, however, recommend an alternative to correct this defect. To address the issue, the phrase or proposing to have at Minn. R , subp 17 is deleted, so the existing definition of owner will remain unchanged. To address the ALJ s concern and commenters concerns that the phrase proposing to have was too vague and could include unknown future owners, heirs, or lenders who might in the future foreclose, Minn. R , subp. 1, is changed to read as follows: PERMIT REQUIREMENTS Subpart 1. Permit required. Four types of permits are issued under this chapter and chapter 7001: interim permits, construction short-form permits, SDS permits, and NPDES permits. The owner Any person who, at the time of the application, intends to be the owner following issuance of the permit shall apply for a permit as follows: This change is not substantially different from the originally-proposed rules because it is consistent with the scope of the proposed rules and public notice, and it is a logical outgrowth of comments received during the public comment and hearing process. It is the MPCA s intent to ensure that persons who are planning to be the owner of the facility following issuance of the permit are listed on the application, to ensure that the public is aware of who actually intends to own and operate 4

7 Adoption of Amendments to Rules Governing PROPOSED ORDER ADOPTING RULES Animal Feedlots, Permits and Certifications, and Permit DRAFT: February 13, 2014 Fees the feedlot after permit issuance. This change clarifies that persons who might come to own the facility at some time in the future, such as agricultural lenders who may obtain title to, or control over, the facility in the future as the result of legal processes, heirs, or persons who may choose to buy the facility in the future, are not required to be applicants. Such persons do not, at the time of the application, intend to be the owner following the issuance of the permit. 6d. ALJ Report, Finding 208, page 55. Definition of Pasture Although the ALJ found that the MPCA had made a valid point that the proposed additional language in the pasture definition would allow the concentration of animals element of the definition to be applied more consistently, the ALJ nevertheless concluded that the proposed modification to the term pasture at Minn. R , subp. 18B, was defective, in view of existing statutory definitions for this term. The ALJ recommended that the defect could be corrected by removing the additional language and conforming the definition to the language set forth in Minn. Stat , subd. 7(d)(b). The MPCA accepts the ALJ s recommendation for the purpose of this rulemaking, and will rely on case-by-case adjudication to determine when the elements of the definition have not been met, although the MPCA notes that it is within the MPCA s rulemaking authority to adopt an interpretive rule. The MPCA believes that courts applying this language will agree with the MPCA s interpretation of the legislature s intent in adopting the concentration language, which was to keep a cropland pasture consistent with a grassland pasture in terms of animal numbers such that vegetative cover is maintained during the growing season. The MPCA respectfully rejects the finding that the MPCA s proposed definition was in conflict with a policy determination of the legislature (Finding 208); the MPCA believes this finding cannot be made while the legislative intent is still under litigation. To return the definition to consistency with the legislative definition, the language is changed as follows: DEFINITIONS Subp. 18. Pastures. Pastures means: B. agricultural land: (1) where livestock are allowed to forage during the winter; (2) that is used for cropping purposes in the growing season; and (3) where the concentration of animals is such that a vegetative cover of, whether of grass, growing plants, or crops, is maintained during the growing season without the need for manure removal to avoid exceeding nutrient application rate standards as provided in part , except in the immediate vicinity of temporary supplemental feeding or watering devices. 6e. ALJ Report, Finding 217, page 57. Definition of Waters of the United States The ALJ found that the proposed definition for the term Waters of the United States at Minn. R , subp. 27, was defective and recommended an alternative definition that would resolve this problem. The MPCA accepts the alternative recommended by the ALJ as shown below. The MPCA notes that, as incorporated by reference, the definition will include any future changes to the Code of Federal Regulations that are adopted by the U.S. Environmental Protection Agency when the jurisdictional issues created by past U.S. Supreme Court decisions affecting this definition are settled. In the interim, the MPCA and the regulated community are both aware that application of 5

8 Adoption of Amendments to Rules Governing PROPOSED ORDER ADOPTING RULES Animal Feedlots, Permits and Certifications, and Permit DRAFT: February 13, 2014 Fees the definition recommended by the ALJ and adopted here by the MPCA may be limited by judicial determinations concerning the scope of federal jurisdiction under the Clean Water Act DEFINITIONS Subp. 27. Waters of the United States. "Waters of the United States" has the meaning given under the federal Clean Water Act Code of Federal Regulations, title 40, section f. ALJ Report, Finding 228, page 59. SDS Permit Based on Capacity The ALJ found that the proposed change to Minn. R , subp. 1B, Item (1), was defective, due to the ambiguity of the phrase will be capable of holding. To remove this ambiguity in a manner that would not render the provision substantially different than the originally-proposed rules, the ALJ recommended adding the phrase after construction, expansion, or modification, to the sentence, as identified below. The ALJ s recommendation is accepted, and this item is changed as follows: Permit Requirements Subpart 1. Permit Required. Four types of permits are issued under this chapter and chapter 7001: interim permits, construction short-form permits, SDS permits, and NPDES permits. The owner Any person who, at the time of the application, intends to be the owner following issuance of the permit shall apply for a permit as follows: B. an SDS permit for the construction, expansion, modification, or operation of an animal feedlot or manure storage area: (1) that is capable of holding, or will be capable of holding after construction, expansion, or modification, 1,000 or more animal units or the manure produced by 1,000 or more animal units; 6g. ALJ Report, Finding 268, page 67. Prohibited Discharges; Finding 272, page 68. Conduits to Groundwater The ALJ found, in Finding 268, that the proposed amendments to Minn. R created ambiguity when Subpart 1 (which prohibits discharging manure directly to groundwater) and Subpart 2 (which require permits for discharging manure to the surface water) are read together. As such, these proposed changes were found defective. No recommendation was provided for resolving this defect. To remove the ambiguity, the MPCA has modified the heading of Subpart 2 to clarify that it applies to surface water discharges as opposed to subsurface discharges that are addressed in Subpart 1, and added introductory language to Subpart 2 that parallels the prohibition in Subpart 1. These changes clarify that Subpart 1 prohibits discharges to groundwater, and that Subpart 2 prohibits discharges to surface waters except in compliance with a permit. Because waters of the United States do not include subsurface waters (groundwater), it is not necessary to clarify that Subpart 2 is addressing surface waters where it refers to waters of the United States. However, because waters of the state includes both surface and groundwater, the revised language distinguishes that Subpart 2 applies to discharges to waters of the state that are surface waters. In addition, at Finding 272, the ALJ found that the proposed phrase or other direct conduits to groundwater in Minn. R , subp. 1, was defective because there are two common 6

9 Adoption of Amendments to Rules Governing PROPOSED ORDER ADOPTING RULES Animal Feedlots, Permits and Certifications, and Permit DRAFT: February 13, 2014 Fees definitions of conduit, and thus the MPCA would be left with unfettered discretion in applying and enforcing the rule. To correct this, the ALJ recommended that the term conduit should be defined, or, alternatively, the entire phrase should be deleted. The MPCA has removed the problematic term conduit from the rule and added language from the definition of conduit that was intended to be applied in the rule to clarify what is prohibited, as shown below. The changes to Part are reasonable and the amended rule is not substantially different than the originally-proposed rules insofar as the changes clarify the provisions and remove discretion. The revisions remove the ambiguities identified in the ALJ s report, and are a logical outcome of comments received in response to the public notice, including those submitted during the public hearing process. As noted in the MPCA s Post-Hearing Comment Letter, dated September 30, 2013, discharges to surface waters are allowed if permitted and in compliance with effluent limitations that already exist in rule. The changes made to Minn. R are as follows: WATER QUALITY DISCHARGE STANDARDS. Subpart 1. Subsurface discharges from animal feedlots and manure storage areas. No person shall discharge animal manure, manure-contaminated runoff, or process wastewater from any animal feedlot, including a CAFO, or manure storage area into a sinkhole, fractured bedrock, well, surface tile intake, mine, quarry, or other direct conduits natural or constructed channels that convey fluids to groundwater. Subp. 2. Surface water discharges from CAFOs and animal feedlots with 1,000 animal units or more. No person shall discharge animal manure, manure-contaminated runoff, or process wastewater from a CAFO or an animal feedlot with 1,000 animal units or more to waters of the United States or to surface waters of the state except as provided in this part. A. An owner of an animal feedlot that is a CAFO or is capable of holding 1,000 animal units or more, or a manure storage area capable of holding the manure produced by 1,000 animal units or more, shall comply with the effluent limitation requirements of Code of Federal Regulations, title 40, part 412, and discharge only as authorized by an NPDES/SDS NPDES, SDS, or other applicable permit. B. No discharge, as defined by Code of Federal Regulations, title 40, section 122.2, shall be allowed from a CAFO into waters of the United States, unless the animal feedlot or manure storage area has an NPDES/SDS NPDES permit authorizing such discharge. C. No discharge shall be allowed from a CAFO or an animal feedlot capable of holding 1,000 animal units or more or a manure storage area capable of holding the manure produced by 1,000 animal units or more into waters of the state unless the animal feedlot or manure storage area has an SDS permit authorizing the discharge. 6h. ALJ Report, Finding 295, page 73. Liquid Manure Storage Areas (LMSA) Exemptions The ALJ found that the proposed exemption for limited risk LMSAs in , subp. 1, item D, was defective because it was unreasonably vague and would have granted the MPCA unfettered discretion to determine what LMSAs meet this exemption. The ALJ recommended correcting this defect by providing minimum design and operational standards necessary to ensure that these facilities do not pose a threat to water quality. While the MPCA does not agree that the proposed 7

10 Adoption of Amendments to Rules Governing PROPOSED ORDER ADOPTING RULES Animal Feedlots, Permits and Certifications, and Permit DRAFT: February 13, 2014 Fees exemptions were defective in the context of the permitting program where they would be applied (see Coal. of Greater Minnesota Cities v. Minnesota Pollution Control Agency, 765 N.W.2d 159, 167 (Minn. Ct. App. 2009)), the MPCA accepts the ALJ s recommendation. The changes to this item are detailed below, including a new incorporation by reference at Minn. R These changes are reasonable because they establish specific standards for the LMSAs that are subject to the exception, as recommended by the ALJ. It is reasonable for the MPCA to exempt the first two LMSAs in Item D because they are built of concrete and are very small in size compared to typical liquid manure storage areas, which hold millions of gallons, and instead are of sizes comparable to large septic tanks, which typically hold no more than 5,000 gallons in a single tank. The smallest exempt concrete LMSA (under 5,000 gallons) can be used anywhere. The larger exempt concrete LMSA (less than 20,000 gallons) is limited to areas where the geological conditions do not increase risk (e.g., not allowed in karst topography without adequate separation distance to bedrock). These exemptions are reasonable because they are consistent with existing rule which exempts a concrete-lined LMSA having a capacity of 20,000 gallons or less from the requirement to have a design engineer prepare the plans. Because of the small size of these LMSAs, it is not necessary to define temporary with regard to the duration that the manure will be stored. Even a very small facility less than 300 animal units will be required to empty LMSAs of this size on a frequent basis to avoid discharges. Most typically, these small LMSAs will consist of a pre-cast concrete tank and are part of a larger system of manure management or processing, and are not designed or operated for long-term storage. The revisions also clarify that the small concrete LMSAs are subject to the design standards for concrete liners, that design plans must be submitted and approved by the MPCA or County, and that an operations and maintenance plan, which ensures liquid levels in the basin are monitored, must be prepared and complied with as part of the LMSA plan review or permitting process. Finally, the proposed language clarifies that being exempt from the rule does not prevent the MPCA from imposing reasonable permit conditions. The second type of exempted LMSA, described in Item E, is actually part of a contaminated runoff treatment system rather than a stand-alone LSMA. To qualify for this exemption, the LMSA portion of the treatment system must be designed to be purged of manure within 24 hours, and the treatment system itself must meet a Natural Resources Conservation Service (NRCS) design standard, which is incorporated for reference. The NRCS design will govern the sizing and construction of this type of basin. The MPCA has also established minimum requirements for the floor of the storage area. As in the case of the small concrete LMSAs, this exempted LMSA must submit an operations and maintenance plan for approval and is subject to permit conditions established by the MPCA. These changes are not substantially different than the originally-proposed rules. The MPCA identified its intent to amend this portion of the rules, to clarify the requirements for the design, construction and operation of LMSAs to provide regulatory flexibility for certain LMSAs that pose a reduced risk. The LMSAs shown are consistent with information presented at the hearing. Further, these revisions are a logical outcome of comments received in response to the public notice, including those submitted during the public hearing process. 8

11 Adoption of Amendments to Rules Governing PROPOSED ORDER ADOPTING RULES Animal Feedlots, Permits and Certifications, and Permit DRAFT: February 13, 2014 Fees The changes are as follows: LIQUID MANURE STORAGE AREAS. Subpart 1. General requirements; exemption. D. A liquid manure storage area that provides temporary storage or temporary processing of manure, manure-contaminated runoff, or process wastewater is not subject to this part if the commissioner determines that the liquid manure storage area is a limited risk liquid manure storage area. In making this determination, the commissioner shall consider the: (1) location of the proposed liquid manure storage area in relation to waters of the state; (2) geologic sensitivity of the proposed location; (3) length of time the manure, manure-contaminated runoff, or process wastewater is stored or processed in the liquid manure storage area; (4) likelihood of a discharge to waters of the state given the design standards that are proposed, including the volume that will be stored; and (5) type of material proposed to be stored and the material's expected pollutant concentration. An exemption granted under this item does not prevent the agency from imposing permit conditions, if appropriate to protect human health and the environment, to govern construction and operation of the limited risk liquid manure storage area. D. Liquid manure storage areas described in subitems (1) and (2), which provide temporary storage or processing, are exempt from this part, except for subparts 3,items C and D; 5, item A; and 7. The owner must submit design plans and specifications for review and approval prior to construction of a liquid manure storage area described in subitem (1) or (2) that include the information listed in subpart 4, items F, I, J, and N: (1) a liquid manure storage area constructed of concrete with a maximum volume of 5,000 gallons; and (2) a liquid manure storage area constructed of concrete with a maximum volume of 20,000 gallons, if it: (a) is located in an area that would not be subject to the site restrictions in subpart 2; or (b) has a minimum separation distance to bedrock of five feet. An exemption granted under this item does not prevent the agency from imposing permit conditions, if appropriate to protect human health and the environment, or governing construction and operation of the exempt liquid manure storage area. E. A liquid manure storage area described in this item is exempt from this part, except for subparts 5, item A; and 7. The owner must submit design plans and specifications that include the information listed in subpart 4, item N. The exemption under this item applies to a liquid manure storage area designed, operated, and maintained as a solids settling area included as part of a vegetative treatment area 9

12 Adoption of Amendments to Rules Governing PROPOSED ORDER ADOPTING RULES Animal Feedlots, Permits and Certifications, and Permit DRAFT: February 13, 2014 Fees designed according to level 4 or 5 of Vegetated Treatment Area, Conservation Practice Standard Code 635, incorporated by reference under part , provided: (1) manure-contaminated runoff is purged from the liquid manure storage area within 24 hours; and (2) the floor is constructed of: (a) concrete; or (b) one foot of cohesive soils and separated from bedrock by at least two feet of soils that are not coarser than a sandy loam. An exemption granted under this item does not prevent the agency from imposing permit conditions, if appropriate to protect human health and the environment, or governing construction and operation of the exempt liquid manure storage area INCORPORATION BY REFERENCE. L. Vegetated Treatment Area, Conservation Practice Standard Code 635, United States Department of Agriculture, Natural Resources Conservation Service, June 2009, and as subsequently amended. This publication is available on the Internet at 7. An additional change to the rule amendments has also been made to Minn. R , subp. 2, Item B(3)(c)ii, as shown below, to make this provision consistent with Minn. R , subp. 2, Item B(2)(c)ii. In the proposed rule amendment, the MPCA proposed to amend Minn. R , subp. 2, Item B(2)(c)ii to require two feet or greater cohesive soil liner for LMSAs serving animal feedlots capable of holding 300 or more but fewer than 1,000 animal units as being consistent with NRCS practice and MPCA practice. It would make no sense (and was an oversight) for the rule that applies to larger facilities, Item 3, to require only one foot or greater of cohesive soil liner, which is not consistent with the NRCS. As a result, the MPCA proposes to amend the rule to make the change consistent for both medium and large LMSAs, as it is in the current rule. This change is not substantially different from the originally proposed rules. The MPCA identified its intent to amend this portion of the rules to be consistent with the NRCS, and this change is consistent with the NRCS. The change is as follows: LIQUID MANURE STORAGE AREAS Subp. 2. Site restrictions. Except as provided in item C, the construction or expansion of a liquid manure storage area is prohibited in the areas identified under part and items A and B. B. In areas which are susceptible to soil collapse or sinkhole formation, the minimum separation distance to bedrock and the manure storage area liner design standards under subpart 3, item B, and prohibitions must be in accordance with subitems (1) to (3). [For text of subitem (1), see M.R.] (2) Animal feedlots capable of holding 300 or more and fewer than 1,000 animal units and manure storage areas capable of holding the manure produced by 300 or 10

13 Adoption of Amendments to Rules Governing PROPOSED ORDER ADOPTING RULES Animal Feedlots, Permits and Certifications, and Permit DRAFT: February 13, 2014 Fees more and fewer than 1,000 animal units that contribute to liquid manure storage areas at the facility shall comply with the following: [For text of units (a) and (b), see M.R.] (c) where the separation distance to bedrock is five feet or more and less than ten feet, the manure storage area must be: i. an aboveground manure storage area; ii. concrete-lined with a secondary liner consisting of a synthetic liner, HDPE liner, or two foot or greater cohesive soil liner; or iii. composite-lined with at least a three-foot compacted cohesive soil liner under the synthetic liner. (3) Animal feedlots capable of holding 1,000 or more animal units or manure storage areas capable of holding the manure produced by 1,000 or more animal units that contribute to liquid manure storage areas at the facility shall comply with the following: (a) except as provided in unit (c), where the separation distance to bedrock is less than 15 feet, construction of a liquid manure storage area is prohibited; (b) where the separation distance to bedrock is 15 feet or more and less than 40 feet, the manure storage area liner must be concrete-lined, aboveground, or composite-lined according to subpart 3, item B, subitem (2) or (3); and (c) where the separation distance to bedrock is ten feet or more and less than 15 feet, the manure storage area must be: i. an aboveground manure storage area; ii. concrete-lined with a secondary liner consisting of a synthetic liner, HDPE liner, or one two foot or greater cohesive soil liner; or iii. composite-lined with at least a three-foot compacted cohesive soil liner under the synthetic liner. 9. The proposed rule amendments as modified are necessary and reasonable. 10. The rule amendments as modified were adopted by the MPCA Citizens Board at its meeting on March 25, 2014, a quorum was present, and the undersigned is authorized to sign this order. ORDER IT IS ORDERED that the above captioned rules, in the form set out in the State Register on July 22, 2013, with modifications as indicated in the Revisor s draft file number AR4109, dated February 4, 2014, are hereby adopted. Date John Linc Stine Commissioner Minnesota Pollution Control Agency 11

14 02/04/14 REVISOR CKM/PT AR Pollution Control Agency Adopted Permanent Rules Relating to Feedlots GENERAL PERMITS. [For text of subps 1 to 3, see M.R.] Subp. 4. Notice of intent. The applicant and the agency shall follow the same procedures to issue a general permit as are required for the issuance of an individual permit. However, to comply with part , subpart 5, item C, the agency shall publish notice of intent to issue a general permit in the State Register. [For text of subps 5 and 6, see M.R.] PERMIT REQUIREMENT AND EXEMPTIONS. [For text of subp 1, see M.R.] Subp. 2. Exemptions. The following persons are not required to obtain a national pollutant discharge elimination system permit: [For text of items A to G, see M.R.] H. persons injecting water, gas, or other material into a well to facilitate the production of oil or gas; I. persons disposing of water in a well if this water is associated with oil and gas production; and J. persons operating a feedlot who are not required to obtain an NPDES permit under federal law. This item does not release such persons from the requirement to obtain an NPDES permit to discharge a pollutant when required by federal law or from the requirement to obtain a state disposal system permit to discharge a pollutant into the waters of the state Approved by Revisor

15 02/04/14 REVISOR CKM/PT AR CONTENTS OF NPDES PERMIT APPLICATION. [For text of subp 1, see M.R.] Subp. 2. Manufacturing, commercial, mining, and silvicultural discharges. If the applicant is requesting the issuance, modification, revocation and reissuance, or reissuance of a national pollutant discharge elimination system permit for a manufacturing, commercial, mining, or silvicultural discharge, the applicant shall submit the following information to the commissioner: [For text of items A to L, see M.R.] M. If the applicant proposes to construct or operate a new or existing concentrated animal feeding operation or aquatic animal production facility, the information required in Code of Federal Regulations, title 40, section (i). [For text of items N and O, see M.R.] WATER QUALITY PERMIT APPLICATION FEES AND ADDITIONAL FEES. [For text of subp 1, see M.R.] Subp. 2. Additional points. The points assessed for activities designated in this subpart shall be multiplied by the dollar per point value as determined in part to calculate the additional fee. [For text of items A to C, see M.R.] D. If a permit applicant requests a variance under part , the applicant shall pay a fee equivalent to 35 points. [For text of items E and F, see M.R.]

16 02/04/14 REVISOR CKM/PT AR INCORPORATION BY REFERENCE. For the purposes of parts and to , the documents in items A to K L are incorporated by reference. These documents are not subject to frequent change. [For text of items A to D, see M.R.] E. Code of Federal Regulations, title 40, part 412, Feedlots Point Source Category. This publication is available on the Internet at F. Code of Federal Regulations, title 40, part 122, EPA Administered Permit Programs: The National Pollutant Discharge Elimination System. This publication is available on the Internet at [For text of items G and H, see M.R.] I. Waste Storage Facility, Conservation Practice Standard Code 313, United States Department of Agriculture, Natural Resources Conservation Service, October 2003, and as subsequently amended. This publication is available on the Internet at J. Annual Book of American Society for Testing Materials (ASTM), part 4, ASTM D 2922, Test Method for Density of Soil and Soil-Aggregate in Place by Nuclear Methods (Shallow Depth) Edition. This publication is available through the Minitex interlibrary loan system. K. Published Soil Surveys for Minnesota, United States Department of Agriculture, Natural Resources Conservation Service (NRCS). The surveys are available on the Internet at or at the local NRCS office

17 02/04/14 REVISOR CKM/PT AR L. Vegetated Treatment Area, Conservation Practice Standard Code 635, United States Department of Agriculture, Natural Resources Conservation Service, June 2009, and as subsequently amended. This publication is available on the Internet at DEFINITIONS. [For text of subps 1 to 5, see M.R.] Subp. 5a. [See repealer.] Subp. 6. Certificate of compliance. "Certificate of compliance" means a letter sent before October 23, 2000, by the commissioner or the county feedlot pollution control officer to the owner of an animal feedlot or manure storage area stating that the feedlot or manure storage area meets agency requirements. [For text of subps 6a to 7c, see M.R.] Subp. 7d. Concentrated animal feeding operation or CAFO. "Concentrated animal feeding operation" or "CAFO" means an animal feedlot meeting the definition of a large, medium, or small CAFO under Code of Federal Regulations, title 40, section [For text of subps 8 to 11a, see M.R.] Subp. 11b. Facility. "Facility" means an animal feedlot, a manure storage area, or an animal feedlot with a manure storage area. [For text of subps 12 to 13b, see M.R.] Subp. 13c. Liquid manure storage area. "Liquid manure storage area" means an area where liquid animal manure and process wastewaters are stored or processed. For purposes of this subpart, "liquid animal manure" is manure that does not meet the stockpile standard under part , subpart 1, item B

18 02/04/14 REVISOR CKM/PT AR Subp. 13d. Major modification. "Major modification" means a modification that allows an expansion of animal unit or manure storage area capacity, changes the method of manure storage, or does not meet the criteria of part , subpart 3. [For text of subp 14, see M.R.] Subp. 14a. Minor modification. "Minor modification" means a modification that changes land identified in a manure management plan for manure application, nonroutine maintenance such as the replacement of a liquid manure storage area liner, physical changes to structures housing animals or holding manure that do not result in an expansion of animal unit or manure storage area capacity, or a modification that meets the criteria of part , subpart 3. For NPDES permits, classification as a minor modification under this subpart does not release the permittee from federal notice requirements. Subp. 14a 14b. Modification. "Modification" means a change to a facility component or operational practice described, required, or authorized by a permit issued under this chapter, including an expansion. Major and minor modifications are as defined in this part Part , subpart 5, and chapter 7001 govern public notice of changes to permits under this chapter. A change to a facility component or operational practice that is not described, required, or authorized by a permit is not a modification, including changes to: A. the type of crop or manure application rate if consistent with the methodology portion of the manure management plan and reflected in required records; B. routine maintenance; C. feeding or milking schedules; D. animal diets; E. bedding materials so long as consistent with approved design plans and specifications;

19 02/04/14 REVISOR CKM/PT AR F. equipment used to clean the facility so long as consistent with approved design plans and specifications; G. lands used as pasture; or H. facility components not involved directly in animal or manure management such as an office or machine shed. [For text of subps 15 to 16, see M.R.] Subp. 17. Owner. "Owner" means all persons having or proposing to have possession, control, or title to an animal feedlot or manure storage area. Subp. 18. Pastures. "Pastures" means: A. areas, including winter feeding areas as part of a grazing area, where grass or other growing plants are used for grazing and where the concentration of animals allows a vegetative cover to be maintained during the growing season, except that vegetative cover is not required: (1) in the immediate vicinity of supplemental feeding or water devices; (2) in associated corrals and chutes where livestock are gathered for the purpose of sorting, providing veterinary services, loading and unloading trucks and trailers, and other necessary activities related to good animal husbandry practices; or (3) in associated livestock access lanes used to convey livestock to and from areas of the pasture; or B. agricultural land: (1) where livestock are allowed to forage during the winter; (2) that is used for cropping purposes in the growing season; and (3) where the concentration of animals is such that a vegetative cover of, whether of grass, growing plants, or crops, is maintained during the growing season

20 02/04/14 REVISOR CKM/PT AR without the need for manure removal to avoid exceeding nutrient application rate standards as provided in part , except in the immediate vicinity of temporary supplemental feeding or watering devices. [For text of subp 18a, see M.R.] Subp. 19. Permit. "Permit" means a written authorization issued by the agency or county animal feedlot pollution control officer, which may contain requirements, conditions, or schedules for: A. achieving compliance with discharge standards and requirements; B. management of animal manure; or C. construction or operation of animal holding areas or manure storage areas. Permits issued under this chapter are NPDES, state disposal system, interim, and construction short-form permits. [For text of subps 19a to 23, see M.R.] Subp. 24. State disposal system permit or SDS permit. "State disposal system permit" or "SDS permit" means a state permit that is processed in accordance with chapter Subp. 25. Unpermitted or noncertified liquid manure storage area. "Unpermitted or noncertified liquid manure storage area" means a liquid manure storage area that has never been permitted or approved as meeting the standards in part and that did not obtain approval or certification pursuant to the process established in Minnesota Rules 2011, part [For text of subp 26, see M.R.] Subp. 27. Waters of the United States. "Waters of the United States" has the meaning given under the federal Clean Water Act Code of Federal Regulations, title 40, section

21 02/04/14 REVISOR CKM/PT AR REGISTRATION REQUIREMENTS FOR ANIMAL FEEDLOTS AND MANURE STORAGE AREAS. Subpart 1. Registration data. The agency and all delegated counties shall maintain registration data for animal feedlots and manure storage areas. The registration data must include the: A. date the registration form was completed; B. name and address of all owners of the animal feedlot or manure storage area; [For text of items C to J, see M.R.] [For text of subp 2, see M.R.] Subp. 3. [See repealer.] Subp. 4. Registration requirements. Owners of animal feedlots and manure storage areas who are required to register under subpart 2 shall comply with items A and B, as applicable. A. Owners of facilities shall register with the commissioner or delegated county prior to or upon commencement of operation. Owners shall comply with at least one of the following: [For text of subitems (1) and (2), see M.R.] B. Owners shall update their registrations prior to the registration update deadlines, which shall be established by adding four-year increments to the initial registration deadline of January 1, Owners shall register at least once during each of the four-year registration update intervals by meeting the requirements of item A, subitem (1) or (2). [For text of subp 5, see M.R.]

22 02/04/14 REVISOR CKM/PT AR PERMIT REQUIREMENTS. Subpart 1. Permit required. Four types of permits are issued under this chapter and chapter 7001: interim permits, construction short-form permits, SDS permits, and NPDES permits. The owner Any person who, at the time of the application, intends to be the owner following issuance of the permit shall apply for a permit as follows: A. an NPDES/SDS NPDES permit for the construction, expansion, modification, or operation of a CAFO as required by federal law; B. an SDS permit for the construction, expansion, modification, or operation of an animal feedlot or manure storage area: (1) that is capable of holding, or will be capable of holding after construction, expansion, or modification, 1,000 or more animal units or the manure produced by 1,000 or more animal units; (2) that does not comply with all applicable requirements of parts to and for which the pollution hazard cannot be, or has not been, corrected under the conditions in part applicable to interim permits; (3) for which the owner is proposing to construct or operate with a new technology. An SDS permit is required for new technology operational methods while these operational methods are employed; or (4) for which conditions or requirements other than those in parts to were assumed: [For text of units (a) and (b), see M.R.] C. unless required to obtain a permit under item A or B, an interim permit for: (1) a facility identified as a pollution hazard;

23 02/04/14 REVISOR CKM/PT AR (2) a facility where the owner is proposing to expand to a capacity of 300 animal units or more, or the manure produced by 300 animal units or more, and that has been identified as a pollution hazard; or (3) an animal feedlot or a manure storage area with a capacity of 300 or more animal units prior to applying manure or process wastewater: (a) on land where the soil phosphorus test levels exceed the levels in part , subpart 3, item C; percent; or (b) on land in special protection areas with slopes exceeding six (c) in a drinking water supply management area where the aquifer is designated vulnerable under chapter 4720; or D. unless required to obtain a permit under item A, B, or C, a construction short-form permit for an animal feedlot or manure storage area proposing to construct or expand to a capacity of 300 animal units or more, or the manure produced by 300 animal units or more. Subp. 2. Expansion and stocking requirements. A. Prior to expansion or modification, an owner required to apply for a construction or operating permit under subpart 1, item A or B, shall have obtained the permit, or permit modification, as applicable. B. Prior to expansion, an owner required to apply for a construction permit under subpart 1, item C or D, shall have obtained the permit, or permit modification, as applicable. C. An owner issued an interim permit that authorizes construction for an expansion shall not stock the expansion prior to the fulfillment of all permit conditions related to the correction of the pollution hazard for which the interim permit was issued. Subp. 3. No permit required. An owner is not required to apply for a permit for: