Concentrated Animal Feeding Facility Advisory Committee
September 9, 2004
Ohio Department of Agriculture
ODA's Bromfield Building
In attendance from the Ohio Department of Agriculture were: Deborah Abbott, Jenny Tiell, Kristen Davidson, Mary Beth Ruttan, Kelly Harvey, Michelle McKay, Andy Ety, Gary Zwolinski, Andy Rogowski and Peggy Jackson.
• Cathy Alexander, Ohio EPA
• Carl Ayers, dairy producers
• Dan Binder, Ohio Environmental Council
• Gerald Boynton, public representative
• Kim Coy, drinking water utilities
• Chuck Divelbiss, public representative
• Maurice Eastridge, Ohio State University
• Kevin Elder, ODA
• Dr. Tony Forshey, Ohio Veterinary Medical Association
• Elizabeth Harsh, beef cattle producers
• Terry Haworth, Darke County Commissioners
• Martin Joyce, ODNR
• Matt Kiss, Ohio Water Environment Association
• Carl Link, pork producers
• Tom Price, public representative
• Peter Schade, Ohio Environmental Health Association
• George Slater, public representative
• Tim Weaver, poultry producers
• Tim Barnes, sheep producers
• Don Clark, Ohio Department of Development
• Ben Stinner, Ohio Alliance for the Environment
Vice Chairman Kevin Elder called the meeting to order. Elder welcomed everyone and asked if there were any media present. There were none. Each committee member or their alternate who was seated around the table introduced themselves. Elder introduced two new staff members: Mary Beth Ruttan is an attorney with the State Attorney General's Office. She is providing legal services to ODA, Livestock Environmental Permitting Program, including Environmental Review Appeals Commission cases. Kristen Davidson is our new staff attorney, filling the position that was vacated a year ago. She is assisting Jenny Tiell with legal matters of the program.
Elder announced that former Chairman Doug Alderman's term has expired. Alderman had informed committee members at the last meeting that he would no longer be able to serve on the committee. The first order of business was to elect a new Chair. Elder called for nominations or suggestions.
Martin Joyce offered a motion to nominate Kim Coy to serve as the Chairman of the CAFF Advisory Committee. Chuck Divelbiss seconded. With all members in favor, Coy accepted the position of Committee Chairman.
Coy asked Elder to continue with the housekeeping items of the agenda. Elder reviewed the agenda and asked if there were any items to be added. None were added. Elder turned the meeting over to newly elected Chairman Coy.
No changes to the minutes. A motion was passed to approve the minutes as drafted.
Program Update
ODA staff distributed a list of permitted facilities. There are currently a total of 140 permitted farms. Staff also distributed was a list of final permits that have been issued. Livestock Environmental Permitting Program has issued 25 Permits to Install and 48 Permits to Operate to date. As of September 2, there were seven permit applications in process. A list was distributed reporting the number in the draft permit phase and when they have been out for public comment. If 20 requests for a public meeting were received, one would be held. Also provided was a list of the number of inspections completed and the number of complaints received since Livestock Environmental Permitting Program took over in August 2002. Complaint resolutions have been going pretty well. Elder mentioned that the Dayhuff database was being used to track all information regarding permits, and how it will work once all the information is entered. At this time, the status of all farms that were permitted under Ohio EPA is being reviewed. Notice of deficiency letters to those that have not yet received Review Compliance Certificates have been or will be sent out. A second list of farms waiting to be issued their Review Compliance Certificate because the neighbors' comment period has not yet ended was also distributed. A list of enforcement actions was also distributed. Elder explained the “warning letter” that is sent out to bring farms back into compliance. This is a 3-step process. First, a warning letter is sent from Livestock Environmental Permitting Program; then a notice of deficiency letter is sent from the Director. If a hearing becomes necessary, a notice of hearing will be sent which begins the legal process for enforcement. Tiell reported on the number of cases that have gone to hearing.
A question was asked of how a NPDES no potential to discharge application would be handled. Elder stated that we don't anticipate this type of request and approval of such a request would be unlikely. The CAFF committee will be informed if an application is received. Livestock Environmental Permitting Program is currently working with both Ohio EPA and USEPA on NPDES inspections.
Certified Livestock Manager Update
Staff distributed a Certified Livestock Manager information sheet listing the approximate 80 attendees of the two Certified Livestock Manager training sessions. These sessions were conducted last winter and again in July. The sessions were conducted by a team effort of Ohio State University, Natural Resources Conservation Service, Soil and Water Conservation Districts, and Livestock Environmental Permitting Program. An applicator workshop was held in June in Lima. Train-the-trainer sessions for winter application and tile flow discharge prevention are being planned for SWCD staff and others to attend. Kelly Harvey is coordinating the Certified Livestock Manager sessions.
A question was asked from the audience, Bob Hackett, Madison Co. Commissioner, why didn't Assen Dairy get a letter from ODA when they had a spill? Elder responded that Assen's was not a Livestock Environmental Permitting Program permitted facility at the time of the spill, therefore it was handled by the local SWCD.
USEPA Delegation of NPDES Program to ODA
A discussion on delegation was held prior to rule discussion. Elder reviewed the six components of the delegation package: 1) state statutes/rules and side-by-side program evaluation document, 2) program description (i.e. the database information similar to what was distributed today), 3) all forms, 4) memorandum of agreement with other agencies, 5) Memorandum of Understanding with USEPA, 6) State Attorney General's certification. The side-by-side rules and program evaluation document was sent to USEPA in August 2003. USEPA has not reviewed this document. The rules have recently been sent electronically to USEPA for their review and comment. Conference calls between USEPA and Livestock Environmental Permitting Program staff have resulted in a number rule changes. USEPA has commented on all rules except for Chapter 2. As federal laws require, we will submit the rules to Washington for their review. We plan to do this in November. ODA's request for delegation will cause Ohio EPA to make some changes to their delegation packet. This will be sent along with our delegation packet.
Rule Changes
Since the last CAFF meeting in March, proposed changes were made to some of the rules, which have not been discussed with USEPA yet. A few other rules reflect changes made because of discussions with USEPA. Livestock Environmental Permitting Program staff asked the committee members to send their comments for any changes or typographical errors to Elder or Tiell via e-mail, mail, or hand to them today. It was asked when Livestock Environmental Permitting Program is planning to file the rules? Elder responded the target date is November 1. However, he didn't know USEPA's timeline when they would have all of their comments to ODA. The next conference call with USEPA was scheduled for September 23. ODA is hoping to get all of USEPA's comments on Chapter 2. After the conference call, ODA will have a better idea of when they could actually file and are hoping to file as soon as possible.
It was asked if the CAFF committee would be meeting again before filing the rules. Elder stated that he would prefer not to, with the hope that the changes won't be significant and ODA could proceed on to filing. However, there are some items that USEPA is not in agreement with ODA on.
After each rule is discussed, consensus will be called for by a show of hands. Members who disagree may submit comments in writing to Livestock Environmental Permitting Program.
The siting criteria rule, 901:10-2-02, was not final at the last meeting. This rule has been reorganized from chart form into a readable narrative, which is the reason why the text is underlined, which represents new language in rule filing. However, there are no substantial changes in the language. This rule was open for discussion. It was suggested in sections (B)(1)(b) and (B)(1)(c), the words “designated” and “delineated” be used consistently throughout the rule.
Mike Eggert, Ohio EPA, discussed maps they have for designated and delineated areas. Their goal is to have a draft set of recommendations out for review by December 2004.
Dan Binder asked that under the time of travel and distance guidelines shouldn't utilities be notified to shut down sooner than 15 minutes in the event of a spill affecting surface water intake? Response noted that 1,500 feet is in rules for surface water setback and manure application, which we didn't plan to change. However, if it becomes a serious problem, we will discuss making a change.
Consensus by show of hands was called for of those in agreement to the proposed rule changes of 901:10-2-02. Seventeen members agreed; one member disagreed (Binder).
Cathy Alexander requested the Livestock Environmental Permitting Program to continue to work with Ohio EPA on designated or delineated areas of source water protection to get their input when making adjustment to the rules.
Rule 901:10-2-04 (F) addresses manure contaminated stormwater. Section (F) defines contaminated versus non-contaminated stormwater. Definition of contaminated was reviewed and what has to be contained. This was one of the weaker sections previously, so we are trying to clarify minimizing the amount of runoff to be treated or land applied. USEPA also had concerns with this rule. In conjunction with this rule, chapter 3, which addresses stormwater for day-to-day operations, is also being changed to follow the changes being made in 901:10-2-04 to meet the federal definition of stormwater. Section (F)(1)(a) needs clarification of grade, a slope, and diversion. This is addressed in (F)(2) which should be merged under (F)(1). Section (F)(3) should refer to constructed coverings over the production area, not just the manure storage and treatment facilities. Coy cautioned not to get too wordy on preamble. A new statute was passed to allow referencing, therefore the date of a particular technical publication must be indicated when a making a reference. Alexander suggested keeping a rule containing updated references and dates. JCARR requires a 5-year rule review. Coy stated that new terms are being used throughout the rules. They either need to be avoided or be included in the definition chapter. Such new terms include: drinking water, precipitation runoff, surface water, land runoff, etc. Joyce requested the definition of agricultural stormwater discharges to be put on the table for later discussion. He commented that this definition is like comparing apples to oranges. Using the word stormwater for both confuses the definition. Elder clarified land application area and terrain area in 901:10-1-01 (C).
Consensus by show of hands was called for of those in agreement to the proposed rule changes of 901:10-2-04 (F). All 18 members agreed.
Rule 901:10-2-08 (A)(3)(l) water sampling. To meet Federal Register requirements, sampling requirements are being clarified and daily inspection of waterlines. More meaningful changes are contained in section (n). A suggestion was made to change the wording in section (n) to specifically address all water-cooling lines above ground. Section (p) identifies alternative measures to submit to the director for approval. ODA doesn't expect a positive reaction from USEPA to these changes, but hopefully USEPA will see ODA's strategy, which is to reward those who are doing things the right way. These changes are being made to meet federal standards. Comment was made that during the inspection, if any problems were identified, the rule does not state any requirements for correction. Tiell explained that this is addressed later in the rule at (q).
Consensus by show of hands was called for of those in agreement to the proposed rule changes of 901:10-2-08 (A)(3)(l). Sixteen members agreed; two disagreed (Carl Ayers and Maurice Eastridge).
Rule 901:10-2-14 (D) & (E) is being changed to be consistent with 2003 NRCS FOTG 633. This rule has been reorganized from chart form into a readable narrative, which is the reason why the text is underlined. USEPA requires other practices for 35-foot buffer or 100-foot surface application. Alexander stated the wording “exceed 500 pound phosphorus” is missing from 901:10-2-14 (D)(3)(c). This wording is included in the appendix however; Tiell will add this wording back in the rule. The wording in 901:10-2-14 (B)(6) allows use of injection and incorporation within 24 hours as an equivalent to 100-foot surface applied setback.
Consensus by show of hands was called for of those in agreement to the proposed rule changes of 901:10-2-14 (D)&(E). All 18 members agreed.
Rule 901:10-3-11 is a long rule that applies to construction, stormwater permitting and development of a stormwater pollution prevention plan. The intent of this rule is to cover both construction and "industrial" stormwater permits in the NPDES. Comment was made by Eastridge in regards to (E)(3) not to make a transfer conditional on submitting within 30 days. Tiell stated that she is more concerned about the timeframe for background check. The 30-day time frame is to give Livestock Environmental Permitting Program the necessary time needed to complete this process, and a couple days turnaround is not expected. This is supposed to be for both general and individual permits. Ohio EPA separates them into two categories: industrial permits and construction permits. Tiell will add “pollution prevention plan” to (E)(1) and delete item (E)(3), which will be covered in other transfers. Phase 2 construction will be included.
As per discussions with Steve Jann, USEPA, he wants stormwater permits to be one of three distinct permits to be public noticed. Therefore, ODA expects changes by USEPA in both 901:10-2-04 (F) and 901:10-3-11.
Consensus by show of hands was called for of those in agreement to the proposed rule changes of 901:10-3-11. All 18 members agreed.
Rule 901:10-6-02 raised questions with USEPA. Davidson has been working on the requested changes and a 2-page handout was provided to the committee describing the changes. Jann recommended some new wording and changes in section (C) because he was not in agreement that it applied to everything in the old version. All provisions of the rule are applicable to NPDES permits. The federal standards require the consideration of other agency recommendations and Army Corp. of Engineers. Davidson reviewed all the changes and provisions of this rule with the committee.
Consensus by show of hands was called for of those in agreement to the proposed rule changes of 901:10-6-02. All 18 members agreed.
Rule 901:10-1-03 Criteria for Decision Making. Davidson simplified the wording per USEPA's concerns.
Consensus by show of hands was called for of those in agreement to the proposed rule changes of 901:10-1-03. All 18 members agreed.
901:10-4-01 (E)(3) is a new provision. A handout was distributed. Davidson read the rule with the changes that have been made to comply with 40 CFR 122.28 (b)(3).
Consensus by show of hands was called for of those in agreement to the provisions of 901:10-4-01 (E)(3). All 18 members agreed.
All of the rule changes that have been discussed today comply with general NPDES and Ohio EPA NPDES provisions.
901:10-1-01 Clarification of definitions was discussed. A handout was distributed with the proposed definitions of “effluent limitation,” “new discharger,” and “pollutant.” These three definitions are not included in our rules but Jann feels they should be added in order for our rules to follow the federal definitions for stormwater regulation. Best professional judgment limitations apply to medium and small CAFOs and are not as strict as the federal requirements for large CAFOs, but still meet water quality standards. With the committee's acceptance, ODA will add these to the rule. It was clarified that “new discharger” is not a new source. In comparing this definition in 40 CFR and USEPA's definition, there appears to be a discrepancy. The committee requests that Livestock Environmental Permitting Program staff bring this discrepancy to the attention of USEPA.
Another handout was distributed proposing changes to three additional existing definitions in 901:10-1-01: (Q) Buffer Strip, (N) Best management practice, and (UUU) Setback. These changes are also being proposed to comply with 40 CFR. These three definitions were included with our rules, but USEPA questioned our wording. Eastridge commented on “setback to residences.” Elder stated that additional wording needs to be added to clearly define setbacks other than surface waters.
Consensus by show of hands was called for of those in agreement with the proposed changes to 901:10-1-01. All 18 members agreed.
Elder stated that we will have additional discussions with USEPA on September 23. He requested the committee's approval for Livestock Environmental Permitting Program to make necessary small changes required by USEPA to meet the Federal Register, without calling another CAFF meeting. This will allow ODA to file the rules sooner. A committee member asked where does ODA draw the line on what makes a difference in our program if it goes along with CFR. The Livestock Environmental Permitting Program will advise the committee electronically or by regular mail of any changes that would need to be made. ODA does not anticipate many changes in chapters 1, 3, 4, 5, and 6, other than the changes we discussed regarding “stormwater.” ODA is not sure how many changes will need to be made in Chapter 2 until after our discussion with USEPA.
Consensus by show of hands was called for allowing Livestock Environmental Permitting Program staff to go ahead with making small changes as necessary, then informing the committee by regular mail or e-mail, and proceeding on with filing the rules. All 18 members agreed.
Next Meeting
December 16, 2004, is the date of the next CAFF Committee Meeting. Rescheduling is requested from the earlier December 9th date, due to a conflict with the ODA department-wide holiday luncheon, which the Livestock Environmental Permitting Program is responsible for hosting this year. The CAFF meeting will begin at 9:30 a.m. Please provide any agenda items to Deb Abbott or Kevin Elder via e-mail.
Adjournment
With all committee members in favor, the meeting adjourned at 1:00 p.m.