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Summary of Regulatory Impact Statement for 6 NYCRR 360 &750

Revised Regulatory Impact Statement Summary

The proposed rulemaking modifies the Department of Environmental Conservation's (Department) existing 6 NYCRR Part 750 regulations to address the regulatory definition of Concentrated Animal Feeding Operations (CAFOs) and State Pollutant Discharge Elimination System (SPDES) permitting requirements for CAFOs. The proposed rulemaking also modifies 6 NYCRR Part 360 to address new solid waste management technologies, such as setting criteria for anaerobic digesters, while eliminating obsolete and duplicative requirements.

Statutory Authority and Legislative Objectives: The Department's statutory authority to undertake amendments to Part 750 is found in Environmental Conservation Law (ECL) Article 3, Title 3; Article 17, Titles 3, 5, 7, 8; Article 70, Title 1; and the Federal Water Pollution Control Act, 33 USC 1251, et seq. Animal Feeding Operations (AFOs) are lots or facilities where animals have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period, and crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility [40 CFR § 122.23 (b)]. CAFOs are primarily defined based upon their animal threshold numbers, and are categorized as either large, medium or small. Under federal law, to meet the definition of a Medium CAFO there must also be a discharge of pollutants into the waters of the United States. Furthermore, based on recent case law and a federal rule change, CAFOs can only be required to obtain SPDES permit coverage under the Clean Water Act (CWA) if there is a discharge into the waters of the United States.

Conversely, the ECL provides the Department with authority to regulate the creation of a point source even if there is no discharge. ECL § 17-0701 (1) (a) states that, "it shall be unlawful for any person, until a written SPDES permit therefore has been granted ... to: (a) make or cause to make or use any outlet or point source for the discharge of sewage, industrial waste, or other wastes or the effluent there from, into the waters of this state..." (emphasis added). ECL § 17-0105 (16) defines a CAFO as a point source. Currently, unlike federal law, the Department classifies Medium CAFOs - by permit -based solely upon the animal thresholds set forth in the federal regulations, irrespective of whether there is a discharge. Accordingly, under its authority to regulate the creation of a point source, the Department issues an ECL CAFO SPDES general permit for CAFOs that do not discharge.

The ECL CAFO General Permit requires the development and implementation of a site specific Comprehensive Nutrient Management Plan (CNMP). CNMPs are developed in accordance with conservation practice standards established by the Natural Resources Conservation Service (NRCS) to identify pollutant sources on the farm and recommend BMPs to prevent or minimize water pollution. The CNMP prescribes cyclical manure management techniques through recycling of manure and other organic wastes into soil.

ECL § 1-0101 (3) broadly sets forth the legislative objectives to achieve "social, economic and technological progress for present and future generations" while guaranteeing beneficial use of the environment without risk to health and safety when undertaking regulatory action. This proposed rulemaking clarifies the scope of the Department's regulatory authority regarding Medium CAFOs by including a definition for Medium CAFOs consistent with federal requirements, while explicitly exempting those AFOs (200-299 mature dairy cows) that do not discharge from needing SPDES general permit coverage. Furthermore, the proposed rules provide flexibility by allowing non-discharging AFOs with 200-299 mature dairy cows to voluntarily seek CAFO SPDES permit coverage and by enabling the Department to designate AFOs as Small CAFOs.

The proposed rulemaking to amend Subparts 360-4 and 360-5 is also consistent with the public policy objectives that the Legislature sought to advance. ECL § 3-0301 (1) (f) provides the Department with the power to "[f]oster and promote sound practices for the use of agricultural land, river valleys, open land, and other areas of unique value." ECL § 27-0101 also sets forth the intent "to encourage the development of economical projects for the present and future collection, treatment and management of solid and hazardous waste in such a manner as will assure full consideration of all aspects of planning for proper and effective solid and hazardous waste disposal." Moreover, the State Administrative Procedure Act §202-a (3) (f) encourages agencies to "minimize the impact" of duplication or overlap between regulatory rules. The Department's statutory authority to promulgate amendments to Part 360 is found in ECL § 1-0101; Article 3, title 3; Article 27, titles 1, 3, 5, 7, 9, and 13; Article 70, title 1; and Sections 8-0113, 11-0325, 19-0301, 19-0303, 19-0304 and 19-0306.

Part 360 provides regulatory oversight for solid waste management facilities in the State. Under existing regulations, if the waste management on a farm is confined to the farm and involves only waste (manure, crop residues) produced on such farm, the activities are exempt from Part 360. Conversely, if a farm accepts nutrient-based wastes from off-site, such as food processing wastes from yogurt producers, Part 360 criteria apply. Food processing waste may be land applied, placed in a manure lagoon, or added to a farm anaerobic digester to boost gas production.

Under the existing Part 360 regulations, there is overlap between the solid waste requirements and requirements for CAFOs permitted under Part 750. For example, land application of whey obtained from an outside source requires both registration under Part 360 and compliance with the requirements set forth in a SPDES permit. This duplication is unnecessary and burdensome on the affected farms, and provides no additional environmental protection. The primary changes to Part 360 eliminate this overlap by exempting these activities from Part 360. Part 360 is also being revised to add specific criteria for anaerobic digestion ("AD") facilities. The lack of criteria and applicable standards in the current Part 360 regulations has led to confusion -- primarily in the farming community.

The changes would clarify that Part 360 exempts farm ADs for agricultural waste and includes a tiered structure based on size for the acceptance of off-site waste. This will help promote the development of ADs on farms which will advance manure management and provide an avenue for whey management. Accordingly, pursuant to this rulemaking, 6 NYCRR §§ 360-4.2 (a) (5) and 360-5.3(a) (4), (5) would be revised, to create an exemption from registration or permitting for a land application facility, manure storage facility or an AD facility associated with a Part 750 permitted CAFO, if the waste handling is addressed in a CNMP. Similarly, Section 360-5.5 (b) would be revised to exempt AD digestate used on farms from pathogen reduction alternatives.

Other changes to Part 360 would exempt land application facilities for undigested food and fecal material emanating from New York State owned or licensed fish hatcheries from the requirements of Subpart 360-4 where the waste is applied at or below agronomic rates; outline the eligibility for registration for organics processing facilities for animal mortalities or parts generated from a farm; establish eligibility for registration for composting facilities for dewatered solids from an AD facility that is subject to registration and AD facilities that accept less than 50 tons of waste per day that does not contain human fecal matter provided that certain operating conditions are met; and make revisions to application requirements, pathogen and vector attraction criteria, pollutant limits and product use for material distributed to the public, and design criteria and operational requirements with respect to source separate organics processing and AD facilities.

Needs and Benefits: By relieving non-discharging AFOs with 200-299 mature dairy cows from the obligation to obtain SPDES general permit coverage, smaller non-discharging dairy farms would be less restricted in deciding whether to expand their herds. Increased milk production associated with expanded dairy farms is expected to create jobs both in the dairy service sector and the agricultural service industries. The establishment of larger farms and increased yogurt production will dictate the need for additional management infrastructure for manure and whey. Anaerobic digesters located on farms provide a superior method to manage both manure and whey, by providing the yogurt manufacturers with a long term, viable method to recycle this material and by providing the farm with income from tipping fees and increased electricity production. The Part 360 revisions would promote the establishment of anaerobic digesters on farms by exempting some AD facilities from permit requirements, establishing registration criteria for those AD facilities that require registration, and providing a clearer regulatory path for those AD facilities that would still need a Part 360 permit.

Costs: There are no significant costs anticipated for the regulated community. The proposed rulemaking is expected to reduce costs for the regulated community by reducing regulatory overlap.

Local Government Mandates: There are no programs, services, duties or responsibilities imposed by the rule upon any county, city, town, village, school district, fire district or other special district. However, there may be some increased costs to local governments associated with water bodies that are subject to Total Maximum Daily Loads (TMDLs), if the proposed change in the Department's CAFO permitting program results in a shift of wasteload allocation from CAFOs in general to other types of facilities, such as wastewater treatment plants.

Paperwork: AFOs that are no longer required to obtain an ECL CAFO SPDES permit and that opt to discontinue permit coverage must file a one page Notice of Termination form with the NYSDEC. There are no other reporting requirements required as a result of this rule.

Duplication: The proposed changes to Subpart 750-1 clarify the different regulatory requirements for CAFOs that meet the federal definition of a Medium CAFO as compared to those CAFOs regulated pursuant to the ECL, thereby avoiding any duplication between the federal standards and the State standards. In addition, the proposed changes to Subparts 360-4 and 360-5 address unnecessary overlap between the regulations governing land application in Part 360 and Part 750 permit requirements for CAFOs.

Alternatives: The Department examined the no regulatory action alternative, but this alternative is not as likely to achieve the economic benefits and regulatory efficiencies associated with the rule making. The Department also considered exempting from permit coverage those AFOs from 200-299 without a discharge, but requiring mandatory enrollment in the Agricultural Environmental Management (AEM) Program. Like the no-action alternative, this alternative may also fall short of meeting the rulemaking goals of expanding milk production to foster the yogurt industry in New York because it would essentially substitute one set of mandatory requirements with another. Similarly, the Department rejected a third alternative that would exempt from permit coverage those AFOs from 200-299 without a discharge but require mandatory enrollment in the Department of Agriculture and Markets' Agricultural Environmental Management (AEM) Program for facilities located in watersheds with an impaired waterbody. This patchwork approach would be difficult to employ. Finally, the Department considered terminating the ECL Permit program and simply administering the CWA permit and its corresponding standards. The Department rejected this alternative because it would not provide the necessary environmental protection, as the potential for a significant environmental impact from a discharge also proportionally grows by the increase in the number of mature dairy cows.

Federal Standards: The proposed rule change is consistent with federal standards because the applicable regulatory provisions and permit program for CAFOs that meet the federal definition and that fall under the CWA remain unchanged by this proposed rulemaking. With respect to the proposed changes to Subparts 360-4 and 360-5, there are no federal regulations for the facilities and activities contained in the proposed rulemaking.

Compliance Schedule: This rule eliminates permitting requirements for current non-discharging Medium CAFOs with 200-299 mature dairy cows, as well as regulatory overlap between Part 750 and Part 360. Therefore, no additional time is needed to achieve compliance with the rule. With respect to the changes to Part 360, the regulated community will be required to comply with these revisions within 60 days from the filing of the rule.

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