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Summary of Response to Comments NYCRR 360 & 750

Adoption of Revised Regulations Pertaining to Concentrated Animal Feeding Operations and Corresponding SPDES Permit Requirements, Land Application and Associated Storage Facilities, and Composting and Other Class A Organic Waste Processing Facilities Assessment of Public Comments - Summary

The New York State Department of Environmental Conservation (Department or DEC) issued a Notice of Proposed Rulemaking on December 5, 2012, to revise 6 NYCRR Subpart 750-1 to eliminate the requirement that non-discharging Animal Feeding Operations (AFOs) with 200-299 mature dairy cows, milked or dry, obtain ECL CAFO SPDES permit coverage. In addition to revisions to 6 NYCRR Subpart 750-1, the Department published notices for proposed revisions to Subpart 360-4 (Land Application and Associated Storage Facilities) and Subpart 360-5 (Composting and Other Class A Organic Waste Processing Facilities). These revisions establish criteria for anaerobic digestion (AD) facilities, provide exemptions from permit and registration requirements for specified activities at farms and CAFOs, and make other changes to these Subparts to promote sound environmental practices and reduce regulatory overlap. In conjunction with this proposed rulemaking, the Department prepared a draft Environmental Impact Statement (dEIS), and publicly noticed its modified ECL CAFO SPDES permit (General Permit No. GP-0-09-001) on December 19, 2012.

The proposed rulemaking and modification to the ECL CAFO SPDES permit is intended to provide regulatory relief to a portion of the dairy community; this action allows them to meet expected demand from the growing yogurt industry, while ensuring that the risks posed to the environment will be manageable. Public comments were accepted from December 5, 2012 until January 22, 2013 for the proposed rulemaking and the dEIS; and from December 19, 2012, until January 21, 2013 for the proposed modification to the ECL CAFO SPDES permit. The Department held four public hearings on January 4, 2013 and heard from 21 speakers at the public hearings, and received approximately 50 additional comments.

Comment: NYSDEC's proposal to revise 6 NYCRR Part 750 and the general permit to relieve Medium CAFOs of permit requirements that ensure compliance with effluent limitations, and to relieve currently permitted Medium CAFOs from existing effluent limitations, violates the Clean Water Act's anti-backsliding provision.

Response: The Clean Water Act's anti-backsliding provision (33 U.S.C. § 1342 [o]) provides that, subject to certain exceptions, a NPDES permit may not be renewed, reissued or modified to contain effluent limitations that are less stringent than the comparable effluent limitations in the previous permit. Under the revised rule making, the Department is not making any change to effluent limitations. Instead, the Department is defining the term "CAFO" for purposes of state law in a manner that remains more stringent than the federal standard. The effect of the rule making is that non-discharging AFOs with 200-299 mature dairy cows are no longer required to maintain ECL CAFO SPDES permit coverage. This group of AFOs already is not required to obtain NPDES CAFO permit coverage under federal law because the Clean Water Act only regulates CAFOs that discharge (Waterkeeper; 33 U.S.C. § 1342 [a] [1]). Thus, the rulemaking merely aligns state law more closely with federal law for this group of non-discharging AFOs. This is accomplished by defining the term "CAFO" in the revised rulemaking (which was previously not defined in Department regulations) to exclude these smaller non-discharging AFOs. Under the ECL, a "concentrated animal feeding operation" is defined to be a "point source" (ECL 17-0105 [16]), but the term "CAFO" is not defined. Therefore, the Department is free to define this term in a manner that is no less stringent than the federal standard. If the Department were to match the federal standard, all non-discharging AFOs, regardless of herd size, would be exempt from permit coverage. Rather than adopt the federal standard, the Department's rulemaking is narrowly tailored to achieve the important economic benefits described in the EIS while maintaining a higher level of oversight with respect to non-discharging CAFOs with 300 or more cows which produce larger quantities of waste.

Comment: NYSDEC lacks the authority to finalize certain modifications to the general permit that are less protective of water quality than are legally required. The proposed definition of discharge is not consistent with federal or state law. The proposed definition of agricultural stormwater is not consistent with federal law.

Response: The Department's definition of "discharge" has been revised in the general permit and is consistent with federal and state law. The definition now states that discharge means "any release of any pollutant, including but not limited to manure, litter, process wastewater, food processing waste, digestate, or releases from feed storage areas to waters of the State."

The Department's definition of "agricultural stormwater" has also been revised and is consistent with federal law. Agricultural stormwater discharge means a precipitation-related discharge of manure, litter or process wastewater where the manure, litter or process wastewater has been applied in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater, with site specific conservation practices to control runoff, appropriate testing of manure, litter, process wastewater and soil, and adequate documentation and recordkeeping.

Comment: NYSDEC lacks the authority to categorically exempt CAFOs from the SPDES program without assessing whether pollution and/or pollutants will discharge or run into waters of the state from an outlet, a point source or any source which impairs water quality. NYSDEC cannot relieve Medium CAFOs of the obligation to prepare and implement a nutrient management plan and at the same time, presume that such CAFOs will not discharge.

Response: 6 NYCRR § 750-1.2 (a) (21) has been revised to state, in pertinent part, that a "Medium CAFO" is "an AFO that stables or confines . . . 200 to 699 mature dairy cows, whether milked or dry, except that an AFO that stables or confines 200-299 mature dairy cows, whether milked or dry that does not cause a discharge would not be considered a Medium CAFO." Furthermore, this section provides that AFOs with 200-299 mature dairy cows "may request CAFO SPDES permit coverage and, if permit coverage is granted, the AFO would be considered a Small CAFO throughout permit coverage." Finally, the rulemaking states that the Department may designate an AFO that is not a Medium or Large CAFO to be a Small CAFO. Therefore, state law remains more stringent than federal law. Federal law exempts all non-discharging AFOs, regardless of herd size, from the requirement to maintain Clean Water Act CAFO SPDES permit coverage. State law, on the other hand, provides that a non-discharging AFO with 300 or more mature dairy cows is considered a "CAFO" that is therefore a "point source" under ECL 17-0105 (16) required to obtain ECL CAFO SPDES permit coverage. Under the rule making, state law now aligns more closely with federal law because a non-discharging AFO with 200-299 mature dairy cows would no longer be required to maintain CAFO SPDES permit coverage unless it designated to be a Small CAFO by the Department. Facilities no longer required to maintain CAFO SPDES permit coverage would still required to comply with all applicable environmental laws and regulations. Therefore, it should not be presumed that these facilities will violate the law based solely upon the nature of their business. Importantly, the Department retains authority to require CAFO SPDES permit coverage for these facilities if: 1) an improper discharge occurs that falls outside the agricultural stormwater discharge exemption or 2) designation as a Small CAFO is deemed appropriate, irrespective of discharge. Finally, the Department retains the authority to evaluate the status of unpermitted AFOs where there is evidence that a discharge, other than an agricultural stormwater discharge, may be occurring (see e.g. ECL 3-0301 [2] [g]).

Comment: NYSDEC's proposal to deregulate Medium Dairy CAFOs with 200 to 299 cows violates the Clean Water Act's and New York State's antidegradation policies and the Clean Water Act's anti-backsliding provisions and impaired waterbody requirements. The proposed deregulation of CAFOs violates antidegradation protections. The proposed deregulation of CAFOs violates Tier One Antidegradation Protections. The Proposed Deregulation of CAFOs Violates Tier Two Antidegradation Protections.

Response: The Department's revised rule making does not violate the Clean Water Act's and New York State's antidegradation policies. Under the revised rule making, non-discharging dairy AFOs with 200-299 mature dairy cows are not classified as "CAFOs" and therefore are not a "point sources" required to maintain ECL SPDES permit coverage. Excluding these AFOs from the CAFO definition is no less stringent than federal definition pertaining to CAFOs of this size (see 40 CFR 122.23 [b] [6] [i], [ii]) and is consistent with federal law which generally regulates discharges of pollutants (33 U.S.C. § 1342 [a]; Waterkeeper). Antidegradation prevents the degradation of water quality. The rulemaking does not establish less stringent effluent limits, but rather makes a regulatory change that eliminates the ECL SPDES permit requirement based upon: 1) an animal range 200-299 mature dairy cows and 2) the absence of a discharge. The revised rulemaking does not violate Tier One antidegradation protections since it cannot be assumed that existing stream water uses and the level of water quality necessary to protect these uses will be compromised by removing the permit requirement. Likewise, the revised rules do not violate Tier Two antidegradation protections which are intended to preserve high quality waters because removing a permit requirement does not equate to degradation of water quality. As previously explained, the revised rulemaking also does not violate the Clean Water Act's anti-backsliding provision (33 U.S.C. 1342 [o]).

Comment: NYSDEC's proposal to deregulate Medium Dairy CAFOs constitutes a substantial revision to its SPDES program requiring EPA review and approval following public notice and comment.

Response: EPA review and approval is not required for changes to our state program. The Department's rule making only affects DEC's state permit program and does not affect DEC's administration of the CWA CAFO general permit. The proposed definition of CAFO remains more stringent than the federal standard. The Summary of Express terms indicates that "the proposed rule making revisions to Subpart 750-1 are not intended to make any changes with respect to the federal definition of a Large, Medium or Small CAFO or to limit, in any way, the scope of federal law. Instead, the proposed Subpart 750-1 changes exempt non-discharging AFOs with 200-299 mature dairy cows from the requirement to obtain an ECL CAFO SPDES permit unless designated, while clarifying that although ECL CAFO SPDES permit coverage for these facilities would be discontinued, state law is still more stringent than federal law." To the extent that referencing federal laws and regulations implicates the Department's federal SPDES program, the rulemaking has been revised to remove the revision to 6 NYCRR § 750-1.24 (c).

In Waterkeeper Alliance v. EPA, 2005 U.S. App. LEXIS 6533 (2005), the Second Circuit Court of Appeals held that EPA is only authorized to regulate CAFOs that discharge. In response to this decision, EPA changed its federal rules and no longer requires CAFOs that "propose to discharge" to apply for a NPDES permit. Furthermore, federal rules have removed language allowing CAFOs the option to voluntarily certify that they do not discharge. The Department's rulemaking only impacts AFOs with 200-299 mature dairy cows that do not discharge. Therefore, the proposed rule making does not affect implementation of the federal permit program. Indeed, the Department administers two types of general permits: 1) the Clean Water Act CAFO general permit for CAFOs that discharge and 2) the ECL CAFO permit for CAFOs that do not discharge. Thus, the proposed rule making is not a "program revision" under 40 CFR 123.62 because it only applies to non-discharging facilities that are beyond the scope of the Clean Water Act. Similarly, the Department need not obtain prior EPA approval for modifications to its ECL CAFO SPDES general permit because this permit merely implements ECL requirements. Indeed, the ECL CAFO SPDES general permit specifically relies upon Article 17, Title 7 of the ECL for authority to require coverage. Title 7, unlike Title 8, of Article 17 is based on State authority not Federal.