wq-rule4-03n September 30, 2013

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1 wq-rule4-03n September 30, 2013 Administrative Law Judge Ann C. O Reilly Office of Administrative Hearings P.O. Box North Robert Street St. Paul, MN RE: Post-Hearing Response for Proposed Amendments to Minnesota Rules, Chapter 7020, Governing Animal Feedlots, Chapter 7001, Governing Permits and Certifications, and Chapter 7002, Governing Permit Fees (OAH Docket No ; Governor s Office Tracking No. AR 1057) Dear Judge O Reilly: Enclosed please find the Minnesota Pollution Control Agency s (MPCA) Post-Hearing Response (Response) for the proposed rule amendments referenced above. This Response, prepared for the posthearing comment period that ends on September 30, 2013, addresses: (a) the substantive issues that were raised in the comment letters received by the MPCA during the Dual Notice public comment period, which ended August 26, 2013; and (b) the verbal testimony and written comments that were submitted during the September 9, 2013, public hearing on the proposed amendments. The MPCA also plans to prepare a Final Response that will be submitted during the rebuttal comment period, which ends on October 7, If you have questions regarding the enclosed Response or the content of the proposed rule amendments, please contact Kim Brynildson at or kim.brynildson@state.mn.us. If you have questions regarding the rulemaking procedures followed for this rulemaking, please contact Kevin Molloy at or kevin.molloy@state.mn.us. Sincerely, Kevin Molloy Rules Coordinator Resource Management and Assistance Division KM:ld Enclosure

2 State of Minnesota Minnesota Pollution Control Agency In the Matter of Proposed Amendments to Minnesota Rules, Chapter 7020, Governing Animal Feedlots, Chapter 7001, Governing Permits and Certifications, and Chapter 7002, Governing Permit Fees (OAH Docket No ; Governor s Office Tracking No. AR 1057) Post-Hearing Response to Public Comments September 30, 2013 I. Introduction The Minnesota Pollution Control Agency (Agency or MPCA) published its Dual Notice of Intent to Adopt Proposed Amendments to Minn. R. chs. 7001, 7002, and 7020, and hold a Public Hearing, if required, together with the proposed amendments in the Minnesota State Register on July 22, 2013 (38 SR 90). The MPCA presented information to demonstrate that the proposed amendments are necessary and reasonable in the associated Statement of Need and Reasonableness (SONAR) and the supporting exhibits. The MPCA also presented additional information during the public hearing, which was held on September 9, 2013, in St. Paul and simultaneously at six of the MPCA s Regional Offices via interactive videoconferencing. The remainder of this document contains the MPCA s Post Hearing Comment Response. Within it, the Agency first addresses changes to the published rule language that the MPCA proposes to make, based on comments received. Next, the Agency corrects a mistake that was made in the SONAR, and then the Agency provides its responses to the following: Written comments received during the Dual Notice public notice comment period; Oral comments made at the public hearing; and Written comments submitted during the hearing (Public Hearing Exhibits 17 through 22). Following the post-hearing comment period, the MPCA intends to review the comments submitted to the Office of Administrative Hearings (OAH), and then furnish a Final Response to the Administrative Law Judge during the rebuttal period, which ends on October 7, II. Proposed Changes to the Rule Amendments, as published in the State Register on July 22, In response to public comments received, the MPCA is proposing two changes to the rule language that was originally proposed, as published in the July 22, 2013, State Register. The first change is to Minn. R. part , items E and F, and the second is to part , subp. 4. Both changes were suggested by Mr. David Preisler, Executive Director of the Minnesota Pork Producers Association. A. Change to Minn. R. part , items E and F In his comment letter and oral testimony, Mr. Preisler stated that he agrees with the need to change the existing reference to the Minitex interlibrary loan system in this rule provision, and identify an 1

3 appropriate website containing the referenced Code of Federal Regulations (CFR) instead. However, he suggested that the Government Printing Office s (GPO) website should be used rather than the Environmental Protection Agency (EPA) website. The MPCA agrees with this recommendation and proposes the following changes to Minn. R. part , items E and F, as published: E. Code of Federal Regulations, title 40, part 412, Feedlots Point Source Category. This publication is available through the Minitex interlibrary loan system on the Internet at F. Code of Federal Regulations, title 40, section , Concentrated Animal Feeding Operations part 122, EPA Administered Programs: The National Pollutant Discharge Elimination System. This publication is available through the Minitex interlibrary loan system on the Internet at The Agency agrees with this proposed change because the EPA website redirects persons seeking to view the Code of Federal Regulations to the Government Printing Office s website. The MPCA believes that, under those circumstances, it makes sense to reference the GPO website directly. B. Change to Minn. R. part , subp. 4 Mr. Preisler also stated that he does not object to the amendment having to do with name change; however, he suggested it should be clarified that it is the permittee and not the facility that is changing its name. The MPCA agrees and proposes to make a correction to reflect that it is the permittee s name that is changing, not the facility name, as identified below. Subp. 4. New name; change of ownership. Prior to the change in ownership or control of an animal feedlot or manure storage area issued A. Before changing the name of the permittee of a facility operating under a permit issued a permit under this chapter, the new owner shall submit to the permitting authority, either the commissioner or county feedlot pollution control officer the information required in item A or B, as applicable. If the commissioner or county feedlot pollution control officer determines that the new owner meets the requirements for obtaining the permit, then the commissioner or the county feedlot pollution control officer shall issue the permit to the new owner. The new owner shall submit: who issued the permit, documentation of the new name and the permitting authority shall issue a permit modification reflecting the new name. The MPCA agrees that the suggested change clarifies the intent of the rule, which is to make sure that, when a permittee changes names, the permit is changed to reflect the new name. If there is not a new owner, no other change or process should be necessary. 2

4 III. Correction to SONAR The SONAR contains an incorrect statement in factor (5), item C of the Regulatory Analysis section (see pg. 11), regarding the issuance of a construction permit for large Concentrated Animal Feeding Operations (CAFO) by a delegated County. The incorrect portion is the following: An additional cost that delegated counties will incur is the responsibility for issuing construction permits to those owners with feedlots that have fewer than 1,000 animal units, but still meet the criteria for a large CAFO. It is important to note that this cost to the county is a result of the modification of Minn. Stat , subd. 7c. In the past, if a facility met the qualifications for designation as a CAFO, the MPCA would have issued a NPDES/SDS permit if construction was requested. This is incorrect because delegated counties cannot issue construction permits to feedlots that meet the criteria for a large CAFO. Feedlots with fewer than 1,000 animal units that also meet the large CAFO threshold are no longer required to apply for coverage under an NPDES permit except as required under 40 CFR Part 412. The MPCA is delegated by the EPA to administer the federal requirements; as such, only the MPCA has the authority to administer permitting activities for large CAFOs, which includes making the determination as to whether a feedlot discharges to waters of the United States. Since the MPCA cannot delegate this responsibility to a county, it will remain with the MPCA. This means there will be no additional cost to delegated counties for this category. The MPCA apologizes for any confusion this error may have caused. IV. Response to Comments Received during Public Comment Period on Dual Notice of Intent to Adopt Proposed Rule Amendments and hold a Public Hearing, if required. A. List of Interested Parties The following is a list of interested parties who submitted written comments to the MPCA during the public notice comment period from July 22, 2013 through August 26, Form letters received via and/or U.S. mail within the comment period, within which it is stated, in part, that I hereby object and request a public hearing with respect to the entire proposed rule amendment. 2. Two correspondence from Deja Anton, Douglas County, both of which were received on August 8, 2013; 3. Letter from David Preisler, Executive Director, Minnesota Pork Producers Association, received via on August 22, 2013, and via U.S. mail on August 26, 2013; 4. Identical comment letters from: Steve Olson, Executive Director, Minnesota Turkey Growers Association, received via on August 26, 2013; Steve Olson, Executive Director, Chicken and Egg Association of Minnesota, received via on August 26, 2013; and 3

5 Letter from Kevin Paap, President, Minnesota Farm Bureau Federation, received via on August 26, 2013; 5. Letter from Perry Aasness, Executive Director, Minnesota Agri-Growth Council, received via on August 26, 2013; 6. Letter from Bob Lefebvre, Executive Director, Minnesota Milk Producers Association, hand delivered on August 26, 2013; 7. Letter from Dar Giess, President, Minnesota State Cattlemen s Association, received via U.S. mail on August 26, 2013; 8. Letter from Bobby King, Land Stewardship Project, received via on August 26, 2013; 9. Letter from Denise Luk, Consultant, Socially Responsible Agricultural Project, received via on August 26, 2013 (letter is co-signed by members of the following: Socially Responsible Agricultural Project, the Animal Legal Defense Fund, Minnesota Voters for Animal Protection, Minnesotans Fighting for Minnesota, the Center for Food Safety, Clean Water Action Minnesota, the Osakis Lake Association, and fourteen individuals); 10. Letter from Kris Sigford, Water Quality Director, and Michael Schmidt, Water Quality Associate, Minnesota Center for Environmental Advocacy, received via on August 26, 2013; and 11. Letter from Andrew Mack, American Planning Association Minnesota Chapter, received via both and U.S. mail on August 26, B. Comments and Responses Below is a summary of the comments provided by the interested parties and the Agency s responses. Each comment letter corresponds to the number assigned above; specific comments within each letter are numbered in the order they are presented. 1. Form letters Comment 1-1. The MPCA received 67 form letters, which stated, in part, I hereby object and request a public hearing with respect to the entire proposed rule amendments. Response 1-1. A public hearing was held, via interactive videoconference, on September 9, 2013, in the MPCA offices located in St. Paul, Brainerd, Detroit Lakes, Mankato, Marshall, Rochester and Willmar. 2. Two s from Deja Anton, Douglas County Comment 2-1. The commenter believes that the pasture definition needs to provide more information regarding the amount of area allowed for feedlot-like conditions caused by supplemental feeding. [ , subp. 18] 4

6 Response 2-1. The Agency assumes that the commenter is referring to the portion of the proposed definition (taken from the statutory feedlot definitions) that allows for vegetative cover to be lost in the immediate vicinity of temporary supplemental feeding or watering devices. The Agency understands the commenter s concern that, by allowing an exception for loss of vegetative cover near temporary supplemental feeding or watering devices, the rule allows for a loophole that would enable a person to place feeding devices throughout an area, moving them occasionally, with the result that the entire area becomes denuded for an extended period of time. While the Agency agrees with the commenter s concern, the Agency feels that the statutory and rule language is adequate to prevent abuse. The feeders or waterers must be temporary, and they must be supplemental. If the feeders or waterers are supplying close to 100 % of the needs of the animals, or the feeders or waterers are there for close to 100 % of the time the animals are present, the pasture definition would not apply. The Agency is also confident that the agronomic rate limit added to the definition will serve to limit animal concentration to prevent overuse of fields and loss of true vegetated pasture conditions. Comment 2-2. The commenter believes that the requirements pertaining to livestock on pastures having access to surface waters is confusing. [ ] Response 2-2. Part applies to the restriction prohibiting livestock housed on a feedlot from accessing surface waters. The Agency believes that it is not necessary to clarify that feedlot animals are prohibited from access to surface waters, because feedlots animals would be confined within an enclosure without access to surface waters. Feedlots are subject to setbacks from surface waters. However, if the animals leave the feedlot and move to a pasture area, these animals may have access to surface waters. Comment 2-3. A condition should be added to part , subpart 3, stating that no permit is needed for a feedlot proposing to expand to no more than 299 animal units that is not located in Shoreland and does not have a pollution hazard. Response 2-3. The Agency believes that it is inferred by subpart 1 of this part that a permit is not required for this situation, and that the commenter s suggestion to include the additional condition is unnecessary. Comment 2-4. The commenter agrees with the replacement of the word or with the word and in part subpart 1, item B. [ , subp. 1] Response 2-4. Comment noted. Comment 2-5. The commenter believes that the Agency needs to revisit or re-examine part to provide a more common sense approach and timeline for addressing unpermitted or noncertified liquid manure storage areas (LMSA), and that funds need to be made available to assist with the costs of addressing these structures. Response 2-5. The MPCA has made note of the commenter s suggestion for future rule revisions. It should be noted that the MPCA has no authority over the availability of funding for correcting the pollution hazards associated with the structures. 5

7 3. Letter from David Preisler, Executive Director, Minnesota Pork Producers Association Comment 3-1. The commenter agrees with the need to change this rule provision, to delete the reference to the Minitex interlibrary loan system and identify an appropriate website that contains the referenced CFR citation instead; however he suggested that the GPO website should be used rather than the EPA website. [ , items E and F] Response 3-1. The MPCA agrees. The Agency intends to modify this proposed provision accordingly, as identified above (see Section II.A), Comment 3-2. The commenter states that the proposed modification is not clear as to when a person becomes a person proposing to own, etc., a feedlot. The commenter is also concerned that owner could encompass an agricultural lender with a mortgage. [ , subpart 17] Response 3-2. The MPCA believes that the proposed language in the amendment is adequate. The MPCA does not believe that people who are merely interested in purchasing a feedlot in a general sense are proposing to have possession, control or title to a feedlot. When that interested person has identified a particular feedlot that they wish to possess, however, and has taken actions to gain possession, control or title, (such as entering into agreements with the owner) then that person should be an applicant for a permit. The MPCA does not believe that an agricultural lender proposes to have possession, control or title as the result of a secured agricultural loan. While it is theoretically possible that the loan would eventually result in possession of the feedlot, that is not the intent of the security arrangement. The lender would only gain possession as a last resort. The MPCA is aware of cases (mentioned by other commenters) in which persons who applied for feedlot permits did so on behalf of another person and transferred the permit to that person after the permit was issued, which caused public concern. The MPCA prefers to have the actual owners listed on the application, as opposed to a straw man applicant. Comment 3-3. The commenter points out that there is no definition of waters of the United States under the Clean Water Act and argues that there should be no definition in this rule. [ , subpart 27] Response 3-3. The MPCA has not previously needed a separate definition of waters of the United States because state and federal permits were issued together in the past as a National Pollution Discharge Elimination System/State Disposal System (NPDES/SDS) permit. Now, however, a definition is needed because the MPCA cannot authorize a discharge into waters of the United States using a state permit. As noted in the SONAR, waters of the state and waters of the United States would be the same in most cases. It is possible, however, that there would be a water of the state (for example, an isolated wetland) which is not a water of the United States, meaning that no NPDES permit is required for a discharge to that water. The MPCA agrees that there is currently no clear definition of waters of the United States due to various Supreme Court cases that failed to establish a clear test. At this time, jurisdictional determinations are being made on a case by case basis, subject to challenge when enforcement actions are taken, or 6

8 permits denied. See Hawkes Co., et al. v. United States Army Corps of Engineers (Civil No ADM/TNL, memorandum and order issued August 1, 2013), which discusses current status of judicial decisions and administrative actions relating to Clean Water Act jurisdiction. The MPCA would be willing to amend the rule to reference the definition in 40 CFR However, it is likely that definition will be modified as it is not consistent with any of the Supreme Court tests. Comment 3-4. Commenter argues that the definition of modification (referencing existing rule) should not be included. Of particular concern is whether a permit amendment would be needed for minor changes to a manure management plan. The imposition of a formal permitting process for a mere operational change would result in tremendous increase in compliance costs and investment of time and resources. Also of concern is the idea that a change such as adding additional storage capacity to a manure management structure might trigger the need for a modification, even if animals are not being added to the feedlot. [ , subpart 14a] Response 3-4. The permits that the MPCA has issued to feedlots include procedures for modifications, including changes to operational practices. The proposed amendment clarifies and conforms the rule to Minn. R. parts and , existing applicable rules which require a permit amendment when certain changes are made to a permitted facility. Minn. Stat , subd. 8b, which extended the term of SDS feedlot permits to ten years, provides that [a] facility or operation change may require a permit modification if required under agency rules. Requiring facility modifications that are not expansions to be approved is reasonable to keep the permit consistent with the actual operations at the permitted facility, and to ensure that a modification does not cause noncompliance. Most permit amendments that do not involve an expansion of animal holding capacity or manure storage capacity are handled as minor permit amendments, without the need for public notice and comment. Minn. R affords the permittee the opportunity to make many changes that do not require public notice, so long as those changes will not result in allowing an actual or potential increase in the emission or discharge of a pollutant into the environment, or that will not result in a reduction of the agency s ability to monitor the permittee s compliance with applicable statutes and rules. For NPDES/SDS permits, the MPCA must implement 40 CFR with regard to public notice requirements for substantial changes to manure management plans (MMP), which do include changes to the land used for manure management. However, this is a federal requirement and is not found in state rule or statute, so it will likely not be a requirement of an SDS permit. For SDS permits, the MPCA does not anticipate that year to year adjustments to activities pursuant to a MMP in response to test data would be viewed as modifications to the plan itself, so no amendment would be necessary for these types of changes. However, if a proposer were to change the land used for manure management, or the methods used for managing manure, these changes would qualify as a modification to the plan, although in many cases a minor modification as defined under Minn. R It is important for regulatory purposes for the MMP on file at the MPCA to conform to the MMP in use by the permittee with regard to the acreage under use for manure management, and the management methods. The MPCA believes that changes to a facility that do not affect structures (such as changes to how cattle are managed inside an existing barn) is not something that would require a permit modification at all. However, a new structure (such as a calf barn) should be documented in a permit amendment. Whether the new structure is an expansion of the capacity of the facility would likely govern whether a major modification to the permit is required. If the new structure does not represent an expansion of the 7

9 capacity of the facility, it is arguably a minor permit amendment. As noted above, it is important that the MPCA s records accurately reflect the physical components that are present at the facility. A facility modification such as adding significant additional manure storage capacity should be addressed through a permit amendment. If the additional manure storage capacity is for liquid manure, Minn. R , subp. 4, requires plans and specifications to be submitted to the agency or CFO. A significant increase in storage structure capacity could be viewed as an expansion of the capacity of the facility. This is an issue that would be resolved through the permit amendment review process. For these reasons, the MPCA does not propose to remove the rule clarifications related to modification. Comment 3-5. MPCA fails to provide any evidence as to the anticipated cost or potential benefits of imposing additional permitting requirements for purely operational changes. Response 3-5. The costs associated with the permitting requirements pertaining to the modification of a feedlot were not discussed in the SONAR because this is not a new rule requirement and is therefore not required to be discussed within the SONAR. As discussed in the response to Comment 3-4, above, the rules pertaining to modifications already exist in Minn. R. ch Comment 3-6. The MPCA has failed to establish the statutory authority for requiring modifications. [ , subpart 14a] Response 3-6. As discussed in the response to Comment 3-4, the rules pertaining to modifications already exist in Minn. R. ch. 7001, and are referenced in statute (Minn. Stat , subd. 8b), specifically for feedlot permits. Comment 3-7. The commenter feels that a person who is required to obtain an NPDES permit should not be required to obtain an SDS permit. A person should be required to obtain an NPDES permit or an SDS permit, but not both. [ , subp. 1, items A and B] Response 3-7. In practice, the MPCA has always issued joint state and federal permits, reflecting the fact that the duty to obtain a state permit is independent of the duty to obtain a federal permit. This practice has been applied by the MPCA Feedlot Program for many years. The general NPDES/SDS permit, MNG , which was first issued in 2001 and has been re-issued on a five-year cycle since that time, is a joint NPDES/SDS permit. This has never been controversial. Historically, the MPCA used one application form to cover both permits. Although Minn. R provides that obtaining an NPDES permit satisfies the requirement to obtain an SDS permit, in practice both permits have always been listed. An SDS permit may address issues (for example, pertaining to groundwater) that are not covered by the NPDES permit. As stated in the SONAR, it is reasonable to issue one document containing all conditions. Comment 3-8. Commenter claims MPCA has added a requirement to obtain an SDS permit, which commenter claims is a significant alteration of the permitting scheme. The commenter believes that requiring an SDS permit would be a back-door means of imposing NPDES permit requirements as part 8

10 of an ordinary SDS permit. This action is thought to contravene the Minnesota Legislature s clear policy determination that NPDES permits should only be required to the extent that they are required under federal law. Response 3-8. The MPCA has not changed the requirement to hold a state SDS permit that was in current rule. The MPCA has discussed this issue extensively in the SONAR at pp When the legislation was proposed, the MPCA was clear with legislators that separating the NPDES permit from the SDS permit would not result in meaningful change for permitted facilities with regard to the level of regulation and the standards that would be applied. Comment 3-9. Commenter is also concerned about an ambiguity in the existing rules that MPCA has failed to address, which is that the MPCA rules do not provide a method for determining the capacity of a feedlot, which is what the SDS permit is based on. Response 3-9. The MPCA agrees that it has not amended this rule to resolve the question of how capacity is calculated, and believes that such a rulemaking would be beyond the scope of this rulemaking, which is intended only to address obsolete rules and other changes that are clarifications or housekeeping. The concept of permitting according to capacity exists in the rule and is not being amended. The term capacity is also used in statute. See Minn. Stat. 116D.04, subd. 2a(d). In practice, the MPCA has not found this concept to be problematic. The MPCA is aware that industry practices shift and takes this into account in looking at facility size. The MPCA encourages producers to provide the best environment possible for their animals, and to ensure that manure can be safely stored and managed consistent with manure management requirements. In practice, the MPCA provides a great deal of leeway in how a facility is sized. However, the MPCA must have the ability to determine when the capacity of a facility has passed applicable thresholds for permitting or environmental review. This ensures that a facility capable of holding a certain number of animals is reviewed or permitted at the most opportune time i.e., before construction begins. When the MPCA identifies a permit application where the number of animals is significantly less than what the barn is capable of holding, a staff member contacts the owner to discuss the reason for this discrepancy. To do otherwise would encourage some producers to oversize a facility to avoid environmental review, adding animals in small increments only after the facility is constructed. Environmental review thresholds are established in statute and in the rules of the Environmental Quality Board and the MPCA does not have the authority to change them. See Minn. Stat. 116D.04, subd. 2a(d) and Minn. R. ch The MPCA notes that by using capacity, and not actual planned animal units, the permittee retains some flexibility in how it operates the feedlot following the issuance of the permit. If the producer wants to place fewer animals at the feedlot, that is not a problem. If the producer decides to add animals, the producer can do it so long as the capacity used for permitting is not exceeded. For this reason, the MPCA believes that capacity is a reasonable way to permit feedlots. 9

11 Comment The commenter does not object to the amendment having to do with name change but wants it clarified that it is the permittee, not the facility, which is changing name. [ , subp. 4] Response The MPCA agrees. The MPCA will change the amendment to reflect that it is the permittee s name that is changing, not the facility name. See part II.B. Comment The permit deadline should be 150 days before the planned date of commencement of construction, etc., to reflect Minn. Stat , subd. 2b. [ , subp. 2] Response The submittal deadline of 180 days for an NPDES/SDS permit application is an existing requirement of Minn. R , subp. 2 and Minn. R , and no change to this submittal deadline is proposed in the amended rules. As the commenter points out, Minn. Stat , subd. 2b, sets a goal for the MPCA to process permit applications within 150 days of the receipt of a complete application form. In addition to this statutory requirement, the MPCA is also required under Minn. Stat , subd. 7(b) to meet the requirements outlined in Minn. Stat The Feedlot Program consistently processes permit applications and issues permits in significantly fewer than 150 days. Recent reporting on applications received between March 1, 2011, and January 1, 2013, indicate the average number of days, including a 30-day public comment period, for NPDES/SDS permit issuance was 67.5 days. In the Feedlot Program, the MPCA uses a general permit where possible to eliminate long timelines. However, for a facility that requires an individual operating permit, the MPCA believes that the timelines are reasonable and are consistent with other permitting programs. For a facility that requires a permit, there is much planning and design required, and it is common for plans to be exchanged between the MPCA and the applicant s engineer as design questions arise. In addition, the MPCA s rules (and federal rules) require a period for the public to submit comments. Reviewing and responding to these comments takes time. Comment The regulation of emergency carcass disposal should be left to the Board of Animal Health. [ , subpart 4] Response As discussed in the presentation given by MPCA staff during the September 9, 2013, hearing on the proposed rule amendments, the MPCA agrees that a carcass disposal plan should reflect Board of Animal Health requirements for carcass disposal. However, due to the potential for environmental impacts (including groundwater pollution and nuisance conditions as a result of odor) from mismanagement of carcasses generated in a catastrophic situation, it is within the MPCA s authority to require that an emergency response plan address carcass management as well as the actions to be taken in response to a release of manure. The MPCA expects that the producer will work with the Board of Animal Health in developing a plan. However, it is the producer who best knows the local conditions where land is suitable for composting and burial, and which local rendering plants are available and their capacity. Thus, regardless of who holds the regulatory authority, the producer needs to develop the plan to protect the environment from impacts from large numbers of animal carcasses. It is reasonable for the permitting authority to require the permittee to plan for environmental emergencies. The Board of Animal Health is not a permitting agency. 10

12 Comment The phrase other direct conduits to groundwater is vague and overbroad. The agency should identify the specific items that are prohibited because a farmer cannot reasonably determine the meaning in order to comply with this regulation. [ , subp. 1] Response MPCA believes that the addition of the non-limiting phrase is reasonable and that it can easily be applied. Where there are numerous examples of the prohibited discharge point, it is better to establish a performance standard rather than attempt to list all the various conduits to groundwater by name. 4. Letters from Steve Olson, Executive Director, Minnesota Turkey Growers Association and Chicken and Egg Association of Minnesota, and Kevin Paap, President, Minnesota Farm Bureau Federation Comment 4-1. The agency has not concerned itself with costs. Response 4-1. The MPCA is concerned about the cost to producers to achieve compliance; however, the MPCA does not believe that the proposed amendments will change the current costs that permittees experience. See the response to Comment 3-5. Comment 4-2. The commenter objects to the proposed SDS permit. [ , subp. 4] Response 4-2. See the response to Comments 3-8 and 3-9, above. The MPCA believes that the current developments in federal law are not consistent with how Minnesota has historically regulated facilities. The MPCA believes that after the fact permits as a result of enforcement actions are an inefficient and ineffective regulatory tool. The MPCA believes that it is more efficient to define categories of facilities that should obtain permits due to the type of activities that will be conducted, rather than trying to mitigate a polluting facility after the fact. See the discussion at pp of the Statement of Need and Reasonableness (SONAR) for additional rationale for maintaining a categorical permit for facilities of a certain size. The MPCA has experience with facilities that are constructed without a permit. Based on the MPCA s experience, it is much more difficult to retrofit a facility to comply with permit conditions after it has been built and is discharging to waters of the state. It should also be noted that the current rule requires the issuance of an SDS permit to any feedlot with 1000 animal units, or more, but since feedlots of this size exceed the large CAFO threshold the owner was required to apply for an NPDES/SDS permit. As result, the MPCA has issued very few SDS permits to feedlots since the adoption of the current rule. Now that Minnesota Statutes, section , subdivision 7c, has been modified, the owners of feedlots that are not covered under an NPDES/SDS permit and have 1,000 animal units or more will be required to apply for an SDS permit. Comment 4-3. The commenter objects to the language included in the exemptions from permitting that clarifies that the exemption from federal permitting does not change the duty to obtain a state permit. [ , subp. 2] Response 4-3. The MPCA feels that the language is helpful. All other water quality programs managed by the MPCA involve both NPDES and SDS permits issued together. Because the feedlot program is now exceptional insofar as the requirement to obtain an NPDES permit solely reflects federal law, the MPCA believes it is helpful to include the additional language in the exception. 11

13 Comment 4-4: The commenter feels that the MPCA is making a great leap by assuming that any modification that is not specifically defined in Minn. R as minor is major. The commenter feels that the only modification that should trigger re-permitting is an expansion. [ , subp. 14a] Response 4-4. The MPCA has experience with the application of this provision and is confident that it can distinguish minor amendments from major amendments. The existing rule defines what changes qualify as minor amendments. It is not a leap to assume that other changes should be managed as major amendments. The MPCA disagrees with the commenter regarding limiting permit amendments to expansions for the reasons given in Comment 3-4, above. Comment 4-5. The commenter feels that the MPCA should conform the date by which a renewal application is due to the statutory goal of 150 days. [ , subpart 2, item B] Response 4-5. See the response to Comment 3-12, above. Comment 4-6. The commenter objects to the definition change for owner because it focuses on an unidentifiable pool of possible owners. A better definition would focus on the proposed feedlot rather than the proposed owner. [ , subp. 17] Response 4-6. The MPCA believes that the focus is appropriately on the owner of the facility, not on the facility. It is a particular permittee that is permitted to operate a facility. The facility is not a permittee. See also the response to Comment 3-2. Comment 4-7. The commenter believes that the two definitions of pasture are different. The commenter cites the language regarding the time period as a distinction in the definitions. [ , subp. 18] Response 4-7. The MPCA does not interpret the time period language as affecting the definition of pasture. The language cited by commenter states that (a) Notwithstanding subdivision 7 or Minnesota Rules, chapter 7020, to the contrary, and notwithstanding the proximity to public or private waters, an owner or resident of agricultural land on which livestock have been allowed to pasture at any time during the ten-year period beginning January 1, 2010, is permanently exempt from requirements related to feedlot or manure management on that land for so long as the property remains in pasture. The MPCA finds that this phrase still requires an operative definition of the term pasture for purposes of exemption from requirements of feedlot management found in the rule. Comment 4-8. The commenter notes that there is no clear definition of waters of the United States and wonders why the MPCA needs to create one now. [ , subp. 27] Response 4-8. See the response to Comment 3-3. Comment 4-9. The commenter objects to the phrase... or will be capable of holding with regard to the SDS permit. [ , subp. 1, item B] Response 4-9. The language that commenter objects to is not changed from the existing rule. In practice, it has not been difficult to manage. The MPCA prefers to permit facilities that are capable of holding a certain number of animal units to ensure that a later owner who seeks to expand can meet permitting criteria without redesign. See the response to comment

14 Comment The commenter objects to the change to part , subpart 4 because the commenter believes that the change will require a permit solely because of a change in the ownership of the feedlot, which is prohibited by Minn. Stat (g). Response The MPCA does not require permits solely because of a change in ownership. The provisions at issue apply to previously permitted facilities only. Comment The commenter objects to the pollution hazard category with regard to permitting. [ , subp. 2] Response Pollution hazard is defined by Minn. R , subp. 19A. The MPCA is not proposing to amend this aspect of the rule. Comment The commenter objects to having an emergency plan address carcass removal, and accuses the MPCA of circumventing the statutory designation of the Board of Animal Health as the agency charged with dealing with disposal of animal carcasses. [ , subp. 4] Response See the response to Comment Comment The commenter is concerned with the phrase other direct conduits to groundwater because it is vague. [ , subp. 1] Response See the response to Comment 3-13, above. Comment The commenter is concerned with the amendment to the stockpiling requirements. [ , subp. 1, item B] Response As discussed in the presentation given by MPCA staff during the September 9, 2013, hearing on the proposed rule amendments, the MPCA has observed a change in the type of bedding material used by some dairy operations. When the existing rule was adopted in 2000, the bedding sources in use consisted of organic materials such as wood shavings or straw. These materials readily absorb liquids excreted by animals, which prevents these liquids from seeping away from the stockpile area and also provides structure to provide an increased angle of repose for the stockpile. Manure with organic bedding can also be easily stacked in such a way that the stockpile covers a small amount of surface area. Since 2000, many dairy owners have begun using inorganic materials, such as sand, to bed their cows. The inorganic bedding does not absorb the liquids excreted from the cows and, even when combined with manure and urine, the manure and inorganic bedding mixture cannot be stacked. The existing SONAR gives an example that illustrates sand s inability to establish a good angle of repose when stockpiling is attempted. When manure with inorganic bedding is attempted to be stockpiled, the manure-contaminated liquids flow away to surface waters or to groundwater. Because manure with inorganic bedding does not form a true stockpile, it is reasonable to amend the rule to clarify the stockpiling requirements. The existing rule allows manure to be stockpiled if the material can be stockpiled at the 3-1 slope or if the material has at least 15 percent solids content. The solids content can be met by the addition of inorganic bedding to the manure. For this reason, the MPCA is proposing to modify the rule to require 13

15 that manure can only be stockpiled if the material to be stockpiled has at least 15% solids content and can be stockpiled at a 3-1 horizontal-to-vertical ratio. This amendment will allow manure with organic bedding material to continue to be stockpiled in accordance with the location restrictions contained in the rule, but would prohibit the stockpiling of manure with inorganic bedding that cannot maintain a stockpile. Additionally, the proposed definition of liquid manure storage area makes reference to this part of the rule in order to define what type of manure is considered liquid, i.e. non-solid. It is logical to assume that manure that is not solid would be liquid manure. Without changing this portion of the rule language to account for the issue illustrated above (manure with inorganic bedding) additional language would be necessary in the proposed definition of liquid manure storage area. The proposed additional language would be consistent with what is currently proposed in this section of the rule, that is, manure that can be stockpiled at a 3:1 slope and has at least 15% solids is considered solid manure. This would then create a conflict as some manure would be considered liquid manure by the definition for liquid manure storage area but would also be able to be stockpiled or be considered solid under the existing rule language. This change is necessary to avoid confusion and conflicting definitions due to the addition of a definition of liquid manure storage area. 5. Letter from Perry Aasness, Executive Director, Minnesota Agri-Growth Council Comment 5-1. The commenter believes that the amendment to the definition of owner is vague. [ , subp. 17] Response 5-1. See the response to Comment 3-2, above. Comment 5-2. The commenter argues that the amendment to the pasture definition is adding an additional requirement not present in the statutory definitions requiring that the concentration of animals be such that manure removal is unnecessary to avoid exceeding applicable nutrient application standards. Adding this requirement would restrict grazing cattle on crop residues. [ , subp. 18] Response 5-2. The MPCA disagrees. The statutory language limiting numbers to those consistent with the maintenance of a vegetative cover is reasonably interpreted in the proposed definition to mean numbers that do not result in the deposition of excess nutrients. As explained in the SONAR at P. 25, a traditional pasture practice on cropland would not result in the exceedance of agronomic rates, with the need to scrape and haul, destroying vegetative cover that would normally be present in the growing season. It is reasonable to include this limit in the definition of pasture to conform the definition to legislative intent, which was to avoid the creation of feedlots on harvested fields. Comment 5-3. Commenter is concerned about the fact that there is no clear definition of waters of the United States. [ , subp. 27] Response 5-3. See the response to Comment 3-3. Comment 5-4. The new definition of modification is overly broad, in particular because it would include amendments to a manure management plan. Only expansions should require modification of the permit. [ , subp. 14a] Response 5-4. See the response to Comment

16 Comment 5-5. The commenter feels that a person who is required to obtain an NPDES permit should not be required to obtain an SDS permit. A person should be required to obtain an NPDES permit or an SDS permit, but not both. [ , subp. 1, items A and B] Response 5-5. See the response to Comments 3-7 and 3-8. Comment 5-6. The commenter believes that the deadline to submit the permit application should conform to the statutory goal of 150 days in Minn. Stat [ , subp. 2, items A and B] Response 5-6. See the response to Comment 3-9, above. Comment 5-7. The requirement to address carcass removal resulting from a catastrophic event as part of the emergency plan is not necessary because carcass removal is already regulated by the Board of Animal Health. [ , subp. 4] Response 5-7. See the response to Comment 3-12, above. Comment 5-8. The term direct conduits to groundwater is undefined, overly broad, and vague. [ , subp. 1] Response 5-8. See the response to Comment 3-13, above. 6. Letter from Bob Lefebvre, Executive Director, Minnesota Milk Producers Association Comment 6-1. In his letter, commenter says that the MPCA has more experience with large facilities that are safely operated today, and that the need for a permit should instead be based on external factors of more importance to the environment. Response 6-1. The MPCA agrees that many large facilities are safely operated today, but believes that risk still increases generally with the number of animals (and the volume of manure) that must be managed. The commenter did not identify any of the external factors that commenter believes would provide a better basis for permitting. The MPCA is concerned that any such factors would likely be more subjective, and would bring greater uncertainty into the process. Comment 6-2. The permitting threshold should not be based on capacity, but instead on how many animals are actually going to be present. Some producers want to increase space because it is good for animal health, and supports more flexible manure management. [ , subp. 1] Response 6-2. See the response to Comment 3-9. Comment 6-3. The commenter is concerned about the long timelines that are proposed in the rule. [ , subp. 2, items A and B] Response 6-3. See the response to Comment 3-9. Comment 6-4. The applicant is concerned that new technology is not defined. [ , subp. 1, item B] 15

17 Response 6-4. The proposed revisions to the rules do not include any modification to the current requirement for an owner to apply for an SDS permit when proposing to operate a feedlot using new technology. A definition for new technology is provided in the existing rule at part , subp. 15a. Comment 6-5. The commenter is concerned about having short business opportunity windows in regard to the rent or management of additional fields for land application of manure. The proposed amendments to the rule pertaining to modifications will create a problem in making changes to the MMP, making an area in his barn for special needs, or moving calves from hutches to a hoop barn. The MPCA s definition in offers only the very narrowest of authority for designating a modification as minor. [ , subp. 14a] Response 6-5. The MPCA believes that the standard for minor modifications in Minn. R is quite broad, insofar as it allows a minor modification to change a provision in the permit that will not result in allowing an actual or potential increase in the emission or discharge of a pollutant into the environment, or that will not result in a reduction of the agency s ability to monitor the permittee's compliance with applicable statutes and rules. See the response to Comment 3-4. Comment 6-6. The commenter questions the MPCA s authority to impose requirements of the disposal of carcasses. [ , subp. 4] Response 6-6. See the response to Comment Comment 6-7. The commenter does not believe a state permit should be required when the feedlot is designed not to discharge. [ , subp. 1, item B] Response 6-7. The rule requires a facility to be designed not to discharge for a 25-year, 24-hour or greater storm event. Minn. R , subp. 4, item D. However, the permit allows a discharge of effluent if the design storm event is exceeded. See Minn. R , subp. 2. While this event is infrequent, the event is predictable within the life of the facility. As a result, a state permit is required. The longstanding line demarcating which facilities require operating permits is 1,000 animal units, or more. The MPCA does not propose to change this aspect of the rule. Comment 6-8. The commenter does not like the pollution hazard designation and believes it s undefined. [ , subp. 1] Response 6-8. See the response to Comment Comment 6-9. The commenter is concerned about the language other conduits to groundwater in the part of the rule prohibiting discharge of manure directly to the groundwater. [ , subp. 1] Response 6-9: See the response to Comment Comment The commenter is concerned about the removal of rule language governing small facilities that were allowed to enter Open Lot Agreements (OLA) with the MPCA. He feels that small farms now face uncertainty. [ , subp. 4, 5, and 6] 16