February 20, 2018

Patrick McDonnell, Secretary
Pennsylvania Department of Environmental Protection
Rachel Carson State Office Building
400 Market Street
Harrisburg, PA 17105

Dear Secretary McDonnell:

Pennsylvania Farm Bureau (PFB) is pleased to offer its comments on the Department’s proposed revisions to its NPDES General Permit (PAG-12) for Operation of Concentrated Animal Feeding Operations (CAFOs). PFB is a general farm organization, made up of more than 62,000 members. Since 1950, PFB has provided support, advocacy and informational and professional services for Pennsylvania agriculture and farm families, including those who are subject to CAFO permitting requirements. The comments included here address three general themes that we have identified as issues with specific facets of the Department’s proposal.

1.    Some provisions of the draft package suggest the Department’s possession of discretionary authority that either is not clearly identified in or conflicts with existing law or regulation.

PFB questions the Department’s underlying authority that is implied in several of the provisions contained in draft PAG-12 package. For instance, a note in the section (Document 3800-PM-BCW0032a, page 4) detailing the requirements for the Notice of Intent (NOI) states that “If the value of AEUs (Animal Equivalent Units) will increase by more than 10%, but the value of AEUs/acre will not, DEP will determine whether an amendment to the NMP (Nutrient Management Plan) is required.” Section 504(1)(vi) of the Nutrient Management Act (NMAct) expressly places upon the State Conservation Commission the discretionary authority to “[establish] conditions under which amendments to nutrient management plans are required to be made after initial development or filing.” In that regard, the Commission has developed extensive criteria in determination of whether amendments to NMPs originally approved are must be made and approved. At its May 9, 2017 meeting, the Commission approved an extensive updating of standard animal weights presumed to exist on animal operations in determination of whether the level of increase in animal equivalent units per acre on an animal farming operation requires that operation to develop and implement an approved NMP or plan amendment under the NMAct (See, Pennsylvania Bulletin, 47 Pa. B. 3765, June 3, 2017). The Commission’s update had the essential effect of increasing significantly the presumed weight of animals to be applied in assessment of whether an individual animal operation has met thresholds for required submission of nutrient management plan or submission of plan revisions due to increased animal concentrations.

At the very least, we see the unconditional discretion prescribed for the Department in the draft as conflicting with the criteria that the Commission has already developed and prescribed in assessment of whether an NMP amendment is required. More to the point, we believe the Department does not have the legal authority to exercise the powers suggested in the draft. PFB recommends the aforementioned draft provision be revised to be more consistent with the Department’s actual level of discretionary authority and existing criteria for required development and approval of NMP amendments.
In the same vein, the document referenced in the preceding paragraph (3800-PM-BCW0032a, page 8), which addresses criteria for minimum freeboard level, refers to planned applications of manure for the period between December 1 and February 28. This is inconsistent with criteria established under the NMAct, which refers to the dates December 15 to February 28 (See, definition of “winter” under 25 Pa. Code § 83.201). The use of two different starting dates for this period is needlessly confusing for permittees, and we would request that the Department use dates in this area that mirror the language of the NMAct regulations.

Page 8 of 3800-PM-BCW0032a would also unequivocally require that an applicant “(i)ndicate whether an Operation and Maintenance (O&M) plan has been developed…” for each manure storage facility listed, and would assert that an O&M plan for each facility is a requirement for PAG-12 coverage, without attempt to identify the legal basis for the Department’s assertion of authority or the criteria to be applied in determining the extent or limitation of planning legally required. We would request that the Department delete this provision or more clearly identify the legal basis for its authority. Assuming the Department will still claim it may impose this requirement, we would recommend the Department more clearly state and specify the criteria to be applied in evaluation of whether the draft’s requirement has been met.

2.    Several portions of the Department’s proposal are unclear, confusing or incomplete as to their purpose and/or may introduce unintended uncertainty into the permitting process.
Many of the draft provisions in documents that the Department has offered for comment contain language that raise significant questions of interpretation for animal farm operators who potentially qualify for the PAG-12 permit.

We first note the language contained in Paragraph 1 of the Instructions Document (3800-PM-BCW0032a) that appears under the heading. “Operations Not Authorized by the PAG-12 General Permit.” The language drafted in Paragraph 1 would essentially exclude from eligibility for a PAG-12 permit an animal operation that “individually or in combination with other similar operations, are or have the potential to be a contributor of pollution, which is more appropriately controlled under an individual permit.”

We believe that the draft’s language is a misstatement of federal law, as it attempts to impose requirements for animal operations to meet NPDES permitting requirements based solely on the potential for the operation for discharge of a pollutant to a regulated water, rather than actual occurrence of discharge of a pollutant to a regulated water. Federal case law has held that actual occurrence of discharge is the threshold for subjection to requirements to obtain an NPDES permit, not potential for discharge. See, Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2nd Cir. 2005). We also believe the draft’s language is a misstatement of state law, in that it would exclude from PAG-12 eligibility an animal operation that has any potential to contribute to cause pollution, regardless of how minute or indirect the operation’s “contribution” to pollution may be or the degree of imminence or threat of activity to cause pollution to a state regulated water. The draft’s prescribed standard goes well beyond the regulatory authority provided to the Department and the Commonwealth under Pennsylvania’s Clean Streams Law.

Beyond the legal inaccuracies, the draft’s language itself creates huge problems in interpretation and very likely potential for inconsistent and arbitrary application among Department personnel both at the Department’s Central Office and DEP’s regional offices. This language could be problematic for any operation attempting to obtain a general permit, if regional staff are given jurisdiction over which operations qualify or not qualify for PAG-12’s general permit under application of the “potential to be a contributor” basis. What standards will be used to determine this? Will these standards be uniform across the state? How will the Department make the determination that an individual, rather than a general permit will be required, and how can such a decision be challenged? A real possibility exists that excessive regulations and permit requirements could be imposed on an agricultural entity strictly because there are other agricultural entities located within that same geographic area.

We also have serious concerns with the potential for inconsistency and arbitrariness in reasoning and result if the draft language appearing on Page 1 of the Instructions Document (3800-PM-BCW0032a) under Paragraph b of “Who may not use this Notice of Intent form.” As drafted, Paragraph b would essentially preclude any animal farm operation from attaining a general permit under PAG-12 if the “discharger is not, or will not be, in compliance with any one or more of the conditions of the general permit.” Literally every animal operation could be denied a PAG-12 and forced to obtain an individual NPDES permit under a stringent interpretation and application of Paragraph b as a regulatory basis for determining the operation’s eligibility for PAG-12 permitting. We believe and recommend this draft statement should be deleted or substantially modified to more clearly specify the statement’s intended meaning and application. If the statement is intended to establish a regulatory standard, the statement should include language that demonstrates with high degree of certainty how the standard will be applied in a reasonable and consistent fashion and will provide reasonable and consistent results.

The draft’s Checklist document (3800-PM-BCW0032c), in our view, is incomplete due to its failure to provide a check box in the “Not Applicable” column for the fifth item (“Erosion and Sediment Control (E&S) Plan for plowing and tilling and AHUAs”). Not all farms to be permitted under PAG-12 engage in plowing and tilling activities, and the checklist should reflect that.

Several areas of the draft CAFO Annual Report Document (3800-PM-BCW0032f) also raise questions for permittees. As drafted, 3800-PM-BCW0032f would require all annual reports filed after the date revisions to PAG-12 become legally effective to be submitted electronically. However, the Department acknowledges in the draft Fact Sheet Document (3800-PM-BCW0032e) that the system for electronic reporting being developed by Penn State University for CAFOs (after completion of Penn State’s development of an electronic reporting system for municipal MS4s) will not be available before 2020, at the earliest. The statements on form and manner of reporting currently contained in these documents are inconsistent, and need to be reconciled. What will be the accepted manner of filing of annual reports with the Department by current PAG-12 permit holders in the interim? Once the electronic reporting system is functional, what documentation will the PAG-12 permittee receive as proof that the Annual Report was sufficiently complete and was submitted on time? The electronic reporting requirement may be especially burdensome to smaller producers. In fact, given that the CAFO Annual Report simply repeats information that has already been submitted in quarterly reports provided earlier in the year, the Department should eliminate the Annual Report altogether, which would save both the permittee and the Department valuable time and resources by ending this unnecessary duplication.

Second, 3800-PM-BCW0032f would essentially require a PAG-12 permittee to include in each annual report an evaluation of “Freeboard as of 9/30” and “Freeboard Needed as of 12/1” in completing the report (See, Table entitled “LIQUID AND SEMI-SOLID MANURE STORAGE FACILITIES”). Considering that the reporting period reflected in the filed report runs from October 1 of the prior calendar year to September 30 of the year that the report is filed, it is unclear to us what specifically is being asked to be reported in the freeboard columns, especially with respect “freeboard needed.” It is assumed, but not clearly stated, that with respect to the “Freeboard as of 9/30” column, the PAG-12 permittee is to provide an actual measure of freeboard, as of the first day of the 11th month of the reporting year (i.e. September 1 of the year the report is filed).

Far less clear is what is expected to be provided in the “Freeboard Needed as of 12/1” column. Inclusion of the word “Needed” suggests that the Department wants something other than actual freeboard figures. December 1 itself is the first day of the 3rd month of the reporting period (i.e. December 1 of the calendar year prior to the year that the report is filed). So why would the Department not want actual freeboard figures for that date, if that is the date the Department intends to be reported? If the Department is expecting a PAG-12 permittee to report on something other than actual freeboard for December 1 (through its reference to “needed”), what are the expected bases and methods for accurate evaluation and reporting of “needed” freeboard?

And while we hope it is not the case, we perceive the possibility that the Department in its draft intends a PAG-12 permittee to report on the permittee’s freeboard “need” for December 1 of the year following the reporting year (i.e. December 1 of the same year the report is actually filed). Attempts to project “freeboard need” in the future will just add further confusion of what needs to be reported by a permittee to meet his or her reporting requirements, with questionable value to the “information” provided. We believe and strongly recommend that the Department should revise the table to clearly limit the information reported to that specific to the reporting year (October 1 through September 30), with reporting data that are based on what the permittee can objectively measure.

Finally, if the Annual Report is to be retained, PFB also has concerns about the annual report’s treatment of best management practices (BMPs). It is assumed that the intent of DEP is to have BMPs reported in a manner that makes them easily reportable for purposes of Pennsylvania’s Chesapeake Bay implementation plan. If so, the Department should be mindful that not all CAFO Annual Reports will be coming from agricultural operations within the Chesapeake Bay Watershed. The Department should communicate with permittees in the Bay Watershed as to which BMPs will be accepted by the Bay Model. Furthermore, the Department would be well served to provide a training opportunity to farmers and those completing the Annual Report to ensure the data is submitted in the format most suitable for the relevant Department personnel to provide it for use in the Chesapeake Bay Model, so that CAFO operators receive proper credit for their efforts to maintain and enhance environmental quality.

Regarding the draft Permit Document (3800-PMBCW0032d), PFB offers the following observations:

  • Given that the number of acres available for manure application and AEUs/acre tend to fluctuate, and the permit allows for a 10 percent fluctuation, listing that figure on the cover page of the permit could—and will likely be—misconstrued to be a binding number when it is not. We recommend deletion of the draft’s inclusion of data reported on the cover page of the document, or additional statements be included in the cover page to clearly demonstrate the effectiveness of the permit’s authorized operations continues notwithstanding increases or changes made within the scope of the operation’s zone of authorized fluctuation.
  • Page 6 of the draft Permit Document contains the following statement: “The permittee shall implement BMPs or other control measures to ensure that the water quality standards of the receiving waters are attained, including additional BMPs required in writing by DEP.” We believe that the Department should, at a minimum, clarify this statement to ensure the requirement for attainment is specific to the PAG-12 permittee and is not interpreted to make the permittee legally responsible for the actions of others in overall attainment of water quality standards throughout the watershed of the “receiving waters.”
  • We recommend that January 1 not be used as the starting date for the first CAFO Annual Report submitted to the Department by existing permittees under the new PAG-12. A date such as January 15 would be more appropriate, since crops are still being harvested in December, and manure may be applied to harvested fields if covered by an approved NMP. January 15 is already cited on page 19 of the “Permit” document as the date by which “…each permittee with a manure storage facility shall provide DEP with notification, in writing, of the available manure storage capacity observed on or about December 15th and the volume or amount of manure that is expected to be generated over the winter.” Fee payment and winter freeboard reporting could also be accomplished on this date.
  • Page 11 of the draft “Permit” document deals in part with “planned changes to physical facilities” that “alter” or “add” to a permitted facility. For the sake of clarity, we request that the Department provide specific examples of “alterations” and/or “additions” that would fall and not fall within the scope of this requirement. 
  • Pages 11-12 of the draft Permit Document attempt to impose requirements for reporting any incident of “unanticipated non-compliance” or “any incident causing or threatening pollution in accordance with the requirements of 25 Pa. Code §§ 91.33 and 92a.41(b).” We question the practicality of the requirement for a permittee to “immediately notify downstream users of the waters of the Commonwealth to which the substance was discharged.” While we acknowledge that the Department has prefaced this requirement with the conditional statement “If reasonably possible to do so,” what, in the Department’s view, constitutes “reasonably possible”—and how is the permittee to identify all downstream users of the waters of the Commonwealth that may be affected? While we understand the Department’s motivation for including this provision, we question how it could be feasibly carried out. We would recommend the Department identify those methods that the Department will consider to be acceptable in meeting the requirements for public notification that the permittee can feasibly carry out.
  • Page 15 of the draft “Permit” document references the permittee’s obligation to allow representatives of the Department or the federal Environmental Protection Agency (EPA) to “enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this General Permit, while following reasonable biosecurity measures to protect animal and human health.” We strongly recommend that any such entrance upon the permittee’s premises be preceded by contact from the agency representatives in question to the permittee to ascertain exactly which biosecurity protocols are in place, depending on the activities conducted on the permittee’s premises. For instance, different biosecurity measures may be needed depending on the types of animals at a given location.
  • Page 20 of the draft “Permit” document states that “E&S BMPs shall be implemented and maintained for all earth disturbance activities to minimize accelerated erosion, including those activities that disturb less than 5,000 square feet of land.” Can the Department provide greater clarity as to exactly which types of earth disturbance activities are contemplated here?
  • Page 21 of the “Permit” document refers to permittee responsibilities regarding animal mortality. Given the Commonwealth’s ongoing preparations in case of an outbreak of high-path avian influenza, as well as the possibility of other instances of mass animal mortality, language could be included here to indicate that in such an instance, permittees should follow guidelines established by the Pennsylvania and United States Departments of Agriculture.

3.    The Department’s draft package contains provisions that impose additional costs on permittees without clearly identified, fully offsetting corresponding benefits.

While we are aware of the Department’s position relative to the challenges it faces in administering its programs, as well as its estimates of the cost of the staff time previously devoted to administering the NPDES CAFO program, the fee proposal in this package is a prime example of a requirement that is excessive and burdensome to permittees. These costs cannot be simply passed on to the customer, as they might be in various other industries in which the producer can set prices unilaterally, and thus directly affect the producer’s operating margin. In addition, there is no oversight mechanism in place to prevent future fee hikes.

The Department should also consider that the adoption of new animal weights may convert some farms previously not subject to the PAG-12 requirements into CAOs or CAFOs. This is yet another instance of the creation of an additional burden for smaller producers, as is the requirement to pay new fees electronically. Also, permittees must provide all the information requested to create the permit, which imposes additional costs beyond payment of the fees required at any given point in time. The Department should be moving in the direction of reducing the amount of paperwork faced by permittees, especially those who prepare their own CAFO reports. In sum, the Department has not only not provided assurance to permittees that they will receive increased value commensurate with these new costs, but it in fact imposes new requirements that would largely foreclose any possibility that this could be the case.

Another example of a change proposed by the Department which would result in significant additional cost to the permittee without commensurate corresponding benefit is the “encouragement”—and possible “requirement”—to “install to field markers to delineate setbacks to assure compliance with the General Permit” (Document 3800-PM-BCW0032d, page 19). It is not common practice in agriculture to have field markers, as doing so in all fields serves no practical purpose, and we would suggest that this proposal be stricken from the draft permit.

Finally, the requirement to inspect water lines daily on page 10 of the “Permit” document is also excessive and unnecessary. The frequency with which permittees are checking leak-related conditions for their operations, such as with manure pits and lagoons, will, at the same time, allow timely inspections to address any leak that may occur on the premises and be noted by the permittee. The Department also needs to make clear what constitutes a “leak” for regulatory purposes.

Thank you for the opportunity to submit comments on this important permitting initiative. PFB believes, however, that it would have been a more productive approach for the Department to have engaged stakeholders, either on an individual or organizational basis or through the Department’s Agricultural Advisory Board, to provide input prior to the package’s release. We would welcome the opportunity to discuss our concerns in greater detail with appropriate Department staff as our comments and those of other interested parties are reviewed, as well as to comment on any revisions that the Department may make to the PAG-12 package before it is finalized.

Grant Gulibon
Director, Regulatory Affairs