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| Montana Administrative Register Notice 17-342 | No. 24 12/20/2012 | |
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BEFORE THE BOARD OF ENVIRONMENTAL REVIEW OF THE STATE OF MONTANA
TO: All Concerned Persons 1. On January 11, 2013, at 1:30 p.m., the Board of Environmental Review will hold a public hearing in Room 35, Metcalf Building, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment and adoption of the above-stated rules. 2. The board will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact Elois Johnson, Paralegal, no later than 5:00 p.m., December 31, 2012, to advise us of the nature of the accommodation that you need. Please contact Elois Johnson at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail ejohnson@mt.gov. 3. The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined: 17.30.1330 CONCENTRATED ANIMAL FEEDING OPERATIONS (1) (2) (3) An application for an individual permit must include the information specified in ARM 17.30.1322(9). A notice of intent to be covered under a general permit must include the information specified in ARM 17.30.1322(9) and 40 CFR 122.28(b). (4) CAFOs that meet the requirements of 40 CFR Part 412 must be authorized by the department under a general permit, unless the department discovers site-specific information that indicates a general permit is not sufficiently protective of water quality during its review under (8). If the department determines that a general permit is not sufficient to protect water quality, the department shall require an individual permit for the CAFO. (3) through (5) remain the same, but are renumbered (5) through (7). (8) The department shall review notices of intent submitted by CAFO owners for coverage under a general permit according to the procedures in 40 CFR 122.23(h)(1). (9) The discharge of manure, litter, or process wastewater from a CAFO's land application area to state surface waters is subject to MPDES requirements, except where the discharge is an agricultural storm water discharge, as defined in 40 CFR 122.23(e). (10) The board adopts and incorporates by reference the following federal regulations, which may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620: (a) 40 CFR 122.23 (except 40 CFR 122.23(d), (f), (g), (i), and (j)) (July 1, 2012), which specifies permit application requirements, definitions, and procedures for issuing individual or general permits to CAFOs. (b) 40 CFR 122.28(b)(2)(vii) (July 1, 2012), which sets forth informational requirements for notices of intent submitted by CAFOs. IMP: 75-5-401, MCA REASON: The board is proposing to amend ARM 17.30.1330 in order to incorporate by reference EPA's revisions to the application and permit requirements for concentrated animal feeding operations (CAFOs) that were promulgated by the agency in 2008. The board is proposing to incorporate the regulations, rather than adopt the entire text of the regulations, in order to be consistent with the requirements of 75-5-802, MCA. That statute instructs the board to adopt by reference the CAFO permitting requirements and definitions contained in 40 CFR 122.23 and 40 CFR Part 412. In accordance with this directive, the board is amending ARM 17.30.1330 to incorporate EPA's most recent revisions to the CAFO application requirements in 40 CFR 122.23 and 40 CFR Part 412. The board's specific reasons for the proposed amendments to various sections of the rule are given below. The board is amending ARM 17.30.1330(1) to eliminate language that may be inconsistent with the requirements in 40 CFR 122.23 and add new language clarifying the scope of the CAFO permitting requirements. The proposed language is taken from the text of 40 CFR 122.23(a) and explains the circumstances under which the application requirements in ARM 17.30.1330 will apply. The board is proposing to revise the text of the federal regulation by replacing the federal definition of CAFO cited in 40 CFR 122.23(a) with a citation to the definition of CAFO contained in state statute. The board is proposing to amend (2) to eliminate language explaining that CAFOs are point sources, since that explanation is included in the proposed amendment to (1). The board is proposing to replace the existing language in (2) with the text of 40 CFR 122.23(d) explaining that a CAFO operator must seek coverage under an MPDES permit if the CAFO discharges pollutants to state surface waters. This amendment is necessary to clarify who must apply for an MPDES permit. The remaining text of 40 CFR 122.23, defining circumstances that would establish when a CAFO proposes to discharge, is not proposed for adoption because that portion has been vacated by the Fifth Circuit. On July 30, 2012, EPA published a final rule revising 40 CFR 122.23(d) and (f) and removing 40 CFR 122.23(g), (i) and (j) in response to National Pork Producers Council v. EPA, 635 F 3d 738, 5th Circuit, 2011. The board is proposing a new (3) to establish CAFO application requirements for coverage under an individual permit or a general permit. The proposed language is based on the requirements of 40 CFR 122.23(d). This amendment is necessary to specify the informational requirements that apply to notices of intent contained in federal rules and to further specify the informational requirements that apply to both notices of intent and individual permits set forth in ARM 17.30.1322(9). The board is proposing a new (4) to clarify that, when a CAFO meets the requirements of 40 CFR Part 412, the department must authorize the discharge under a general permit. This amendment is necessary to conform to the legislative directive in 75-5-802, MCA, which requires coverage under a general permit whenever a CAFO meets the requirements of 40 CFR Part 412. The board is proposing new (8) in conformance with the directive in 75-5-802, MCA, requiring the board to adopt by reference the CAFO permitting requirements in 40 CFR 122.23. The proposed amendment explains that the department shall review notices of intent for coverage under a general permit using the procedures in 40 CFR 122.23(h)(1). The board is proposing new (9) to explain that discharges to surface waters from a CAFO's land application site are subject to the MPDES requirements, except where the discharge meets the definition of "agricultural storm water discharge," as defined in 40 CFR 122.23(e). This amendment is necessary to notify CAFO owners that land application areas that discharge to surface waters require a permit and also to incorporate the exception to that requirement. The board is proposing new (10) to specify that a CAFO must apply for a permit whenever the CAFO is required to do so under (2). The proposed amendment is necessary to be consistent with the time frames for submitting an application specified in 40 CFR 122.23(f). The board is proposing to add new (10) in order to incorporate by reference the federal rules proposed for inclusion in ARM 17.30.1330 that are applicable to permit application requirements for CAFOs. The incorporation by reference of these federal rules is necessary to make them enforceable under state law and to comply with the legislative directive in 75-5-802, MCA. 17.30.1341 GENERAL PERMITS (1) through (11) remain the same. (12) (13) The board adopts and incorporates by reference the following federal regulations, which may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620-0901: (a) 40 CFR 122.28 (July 1, 2012), which sets forth criteria for selecting categories of point sources appropriate for general permitting; (b) 40 CFR 124.10(d)(1) (July 1, 2012), which sets forth minimum contents of public notices; and (c) 40 CFR 122.23(h) (July 1, 2012), which sets forth procedures for CAFOs seeking coverage under a general permit. IMP: 75-5-401, MCA REASON: The board is proposing to amend the general permit requirements in ARM 17.30.1341 in order to make them consistent with the equivalent federal requirements set forth in 40 CFR 122.28. 40 CFR 122.23(h) requires that CAFOs seeking coverage under a general permit must submit a notice of intent (NOI) providing the information required in 40 CFR 122.21 (ARM 17.30.1322) and including a nutrient management plan (NMP) that meets the requirements in 40 CFR 122.42(e) and Part 412. 40 CFR 122.23(h) also requires that the department make the NOI and NMP available for public comment in accordance with 40 CFR 124.11 (ARM 17.30.1373) through 124.13 (ARM 17.30.1375), respond to any significant public comments, and, if necessary, require the CAFO to make changes in the NMP. 40 CFR 123.23(h) also requires that, when the department authorizes a CAFO under a general permit, the terms of the NMP shall be incorporated into the general permit and become enforceable under the permit for the CAFO. The board is proposing to delete the current text of (12)(c), which incorporates by reference 40 CFR 122.26(c)(2) (the process for submitting group application requirements for discharges associated with industrial activity). The federal rule was repealed by EPA. The board is also proposing to delete the current text of (12)(d) and (e), which incorporates by reference 16 USC 1132 (wilderness designations) and 16 USC 1274 (wild and scenic river designations). These federal statutes are not implemented by the department under the MPDES program and they are not a required element of a delegated state's permit program. The board is proposing to move the remaining incorporations by reference of federal rules currently in (12) and place them in new (13) and update the reference to the current federal regulation. The amendments are necessary to be consistent with EPA's requirements for delegated state permit programs pursuant to 40 CFR 123.25 and to eliminate incorporations by references that are not necessary. 17.30.1343 ADDITIONAL CONDITIONS APPLICABLE TO SPECIFIC CATEGORIES OF MPDES PERMITS (1) The following conditions, in addition to those set forth in ARM 17.30.1342, apply to all MPDES permits within the categories specified below: (a) through (b)(iii)(B) remain the same. (c) (i) a requirement to implement a nutrient management plan that contains best management practices necessary to meet the requirements of 40 CFR 122.42(e)(1) and any applicable effluent limitations in 40 CFR Part 412; (ii) recordkeeping and reporting requirements; (iii) requirements relating to the transfer of manure or process wastewater to other persons; (iv) a requirement to include specific terms in the nutrient management plan and a duty to comply with those terms; and (v) requirements relating to changes in a nutrient management plan. (a) 40 CFR 122.44(f) (July 1, 2012), which (b) 40 CFR Part 412 (July 1, 2012), which establishes the effluent limitation guidelines and best management practices for CAFOs; and (c) IMP: 75-5-401, MCA REASON: The board is proposing to amend (1)(c) of ARM 17.30.1343 by eliminating references to rules that generally apply to all MPDES permits. Since the purpose of (1)(c) is to establish additional permit conditions that apply only to CAFOs, the inclusion of references to generally applicable MPDES requirements is not necessary. The board is proposing to replace the existing language in (1)(c) with a requirement that all CAFO permits include the additional permit requirements specified in 40 CFR 122.42(e). Rather than adopt the text of the federal regulation, the board is proposing to incorporate by reference the requirements of 40 CFR 122.42(e) to be consistent with the legislative directive in 75-5-802, MCA. That statute directs the board to incorporate by reference the federal regulations for permitting CAFOs. In general, the additional permit conditions that are proposed for adoption by reference include the following: (1) a requirement to implement a nutrient management plan (NMP) that contains best management practices necessary to meet the requirements of 40 CFR 122.43(e)(1) and any applicable effluent limitations in 40 CFR Part 412; (2) a requirement to create, maintain, and make available to the department certain records; (3) a requirement to maintain a copy of the NMP on-site; (4) a requirement to provide an analysis of manure, litter, or process wastewater prior to transfer to other persons; (5) a requirement to comply with the terms of the NMP; and (6) requirements relating to changes in the NMP. The board is also proposing to eliminate language requiring CAFOs to comply with department Circular DEQ-9 due to EPA's revisions to the CAFO regulations in 2008, specifically 40 CFR 123.36. This federal rule requires each delegated state to establish technical standards for nutrient management that is consistent with 40 CFR 412.4(c)(2). This technical standard is an effluent limitation which specifies the application rate for manure, litter, and other process wastewater applied to land under the ownership or operational control of the CAFO. The technical standards adopted by the state must include: (1) the requirement to develop a nutrient management plan that is based on a field-specific assessment of the potential for nitrogen and phosphorus transport from the field to surface water, and that addresses the form, source, amount, timing, and method of application of nutrients on each field to achieve realistic production goals; and (2) appropriate flexibilities for any CAFO to implement nutrient management practices to comply with the technical standards, including consideration of multiyear phosphorus application, phased implementation of phosphorus-based nutrient management, and other components as determined appropriate by the state. The proposed technical standards are in New Rule I. The board is also proposing to replace the requirement to comply with Circular DEQ-9 with a requirement to comply with the technical standards given in New Rule I. New Rule I fulfills the requirements of 40 CFR 123.36. Department Circular DEQ-9 was adopted by the board in 2006 prior to promulgation of the 2008 federal CAFO rule, which placed into regulation, in 40 CFR 122.23, 122.42(e), and Part 412, the requirements for nutrient management, best management practices, record keeping, and annual reporting for CAFOs. These provisions of DEQ-9 are no longer necessary. Other requirements of Circular DEQ-9 are neither consistent with, nor required by, 40 CFR 123.36 or 40 CFR 122.42(e). 17.30.1361 MODIFICATION OR REVOCATION AND REISSUANCE OF PERMITS (1) remains the same. (2) The following are causes for modification but not revocation and reissuance of permits except when the permittee requests or agrees: (a) when (b) when (c) when (i) (A) through (C) remain the same. (ii) (d) when (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) (i) and (ii) remain the same. (o) (p) (q) To incorporate the terms of a concentrated animal feeding operation's (CAFO) nutrient management plan into the terms and conditions of a general permit, when a CAFO obtains coverage under a general permit in accordance with 40 CFR 122.23(h) and 122.28, is not a cause for modification pursuant to the requirements of this rule. (3) The following are causes to modify or, alternatively, revoke and reissue a permit: (a) cause exists for termination under ARM 17.30.1363, and the department determines that modification or revocation and reissuance is appropriate; and (b) the department has received notification (as required in the permit, see ARM 17.30.1362(12)(c)) of a proposed transfer of the permit. A permit also may be modified to reflect a transfer after the effective date of an automatic transfer (ARM 17.30.1360(2)) but will not be revoked and reissued after the effective date of the transfer except upon the request of the new permittee. (4) The board (a) 40 CFR Part 133 (July 1, 2012), which (b) sections 301(c), (g), (i), and (k) of the federal Clean Water Act, codified at 33 USC section 1311(c), (g), (i), and (k), which (c) section 316(a) of the federal Clean Water Act, codified at 33 USC section 1326, which (d) section 402(b)(3) of the federal Clean Water Act, codified at 33 USC section 1342(b)(3), which (e) 40 CFR 125.3(c) (July 1, 2012), (f) 40 CFR 122.23(h) (July 1, 2012), which sets forth procedures for CAFOs seeking coverage under a general permit; and (g) 40 CFR 122.28 (July 1, 2012), which sets forth conditions applicable to the issuance of general permits. IMP: 75-5-401, MCA REASON: The board is proposing to amend the conditions for modification of a general permit issued to a CAFO in ARM 17.30.1361 in order to make them consistent with the federal regulation at 40 CFR 122.62 and update the date for other incorporations by reference in this rule. 40 CFR 122.62 states that modifications to a CAFO's nutrient management plan (NMP) are not a basis for modification of the general permit if those modifications are made in accordance with 40 CFR 122.23(h) and 122.28. 40 CFR 122.23(h), incorporated by reference at ARM 17.30.1330, establishes procedures for authorizing a CAFO seeking coverage under a general permit. 40 CFR 122.28, incorporated by reference at ARM 17.30.1341, establishes procedures and conditions for all categories of general permits. In general, these federal regulations specify that, if the changes in a CAFO's NMP are made in accordance with 40 CFR 122.42(e)(6), including public notification, the incorporation of these changes into the CAFO's permit are not a basis for public notice of the general permit. These amendments are necessary to be consistent with EPA's requirements for delegated state permit programs pursuant to 40 CFR 123.25. The incorporation by reference of these federal rules is necessary to make them enforceable under state law and to comply with the legislative directive in 75-5-802, MCA. 17.30.1362 MINOR MODIFICATIONS OF PERMITS (1) Upon the consent of the permittee, the department may modify a permit to make the corrections or allowances for changes in the permitted activity listed in this rule, without following the procedures of ARM 17.30.1364, 17.30.1365, 17.30.1370 through 17.30.1379, 17.30.1383, and 17.30.1384. Any permit modification not processed as a minor modification under this rule must be made for cause and with a draft permit (ARM 17.30.1370) and public notice as required in ARM 17.30.1364, 17.30.1365, 17.30.1370 through 17.30.1379, 17.30.1383, and 17.30.1384. Minor modifications may only: (a) through (d) remain the same. (e) (ii) remains the same, but is renumbered (f). (f) remains the same, but is renumbered (g). (i) incorporate changes to the terms of a CAFO's nutrient management plan that have been reviewed and approved in accordance with the requirements of 40 CFR 122.42(e)(6). IMP: 75-5-401, MCA REASON: The board is proposing to amend the conditions for minor amendments of MPDES permits in ARM 17.30.1362 to make them consistent with 40 CFR 122.63. This new condition states that the terms of a CAFO's NMP may be incorporated into the permit as a minor amendment if the plan has been revised in accordance with the requirements of 40 CFR 122.42(e)(6). This federal rule requires that a CAFO must provide the department with the most current version of the NMP and identify any changes in the NMP. The department must determine if any changes in the terms of the NMP are substantial according to the criteria of 40 CFR 122.42(e)(6)(iii). If the changes are not substantial, they must be incorporated into the permit and the department must notify the owner or operator of the CAFO to implement the changes and make the changes available to the public. If the changes are substantial according to the criteria of 40 CFR 122.42(e)(6)(iii), the department must notify the public and make the NMP available for public comment in accordance with 40 CFR 124.11 (ARM 17.30.1373) through 124.13 (ARM 17.30.1375), respond to any significant public comments, and require the CAFO to implement the changes. For large CAFOs, changes in the annual calculations of manure, litter, and process wastewater that are made in accordance with 40 CFR 122.42(e)(5)(i)(B) and (5)(ii)(D) are not subject to this process. These amendments are necessary to be consistent with EPA's requirements for delegated state permit programs pursuant to 40 CFR 123.25. The incorporation by reference of these federal rules is necessary to make them enforceable under state law and to comply with the legislative directive in 75-5-802, MCA. 4. The proposed new rule provides as follows: NEW RULE I TECHNCIAL STANDARDS FOR CONCENTRATED ANIMAL FEEDING OPERATION (1) The owner or operator of a CAFO as defined in ARM 17.30.1330 that is subject to the requirements of 40 CFR 412 Subparts C or D shall develop and implement a nutrient management plan (NMP) in accordance with the requirements of this rule and 40 CFR 122.42(e). The NMP must address the form, source and amount of nutrients, and the timing and method of application for all manure, litter, and other process wastewater that is applied to land under the ownership or operational control of the CAFO. (2) For purposes of this rule, the following terms have the meaning and interpretations as indicated below and are supplemental to the definitions contained in ARM 17.30.1304: (a) "expected crop yield" means the estimated crop yield, expressed as bushels per acre or tons per acre, in a future year based on one of the following: (i) if historic crop yield data are available, the expected crop yield must be based on the average of at least three years of previous crop yield data (past average yield) using the formula: estimated crop yield = 1.05 X past average yield; or (ii) if historic crop data are unavailable, expected crop yield must be based on realistic yield goals determined from other sources and described in the facility's NMP; (b) "field" means an area of land that is capable of supporting vegetation and is homogeneous with respect to crop or cover type where manure is to be applied and is under the control of a CAFO owner or operator; (c) "manure" means manure, litter, or process wastewater, including bedding, compost, and raw materials or other materials comingled with manure or set aside for disposal; (d) "multiyear phosphorus application" means phosphorus applied to a field in excess of the crop needs for that year; (e) "Olsen soil test" means the concentration of phosphorus in the soil as determined by the Olsen sodium-bicarbonate extraction in accordance with method code 4D5 in United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), Soil Survey Laboratory Methods Manual, Soil Survey Investigations Report No. 42, Version 4.0, November 2004; (f) "process wastewater" means water directly or indirectly used in the operation of a CAFO for any or all of the following: (i) spillage or overflow from animal or poultry watering systems; (ii) washing, cleaning, or flushing pens, barns, manure pits, or other CAFO facilities; (iii) direct contact swimming, washing, or spray cooling of animals; (iv) dust control; or (v) any water that comes into contact with any raw materials, products, or byproducts including manure, litter, feed, milk, eggs, or bedding; (g) "site vulnerability rating" means the narrative description of a field for phosphorus loss as determined by Table 4 (Site/Field Vulnerability to Phosphorus Loss) in United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), No. 80.1 Nutrient Management, Agronomy Technical Note MT-77 (revision 3), January 2006; and (h) "total phosphorus index value" means the sum of the weighted risk factors for a field as determined by Table 3 (Phosphorus Index Assessment) in United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), No. 80.1 Nutrient Management, Agronomy Technical Note MT-77 (revision 3), January 2006. (3) Except as provided in (10), application rates for manure applied to each field must be determined based on the criteria given in (a) through (c). (a) The CAFO shall complete a field-specific assessment to determine the appropriate basis (nitrogen- or phosphorus-based) for application of plant nutrients. The field-specific assessment must be based on the phosphorus index assessment method described in United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), No. 80.1 Nutrient Management, Agronomy Technical Note MT-77 (revision 3), January 2006. The nutrient application basis is determined as follows: (i) nitrogen-based application if the site vulnerability rating is low or medium (total phosphorus index value is less than 22); (ii) phosphorus-based application up to crop removal if the site vulnerability rating is high (total phosphorus index value is between 22 and 43); or (iii) no application of phosphorus if: (A) the site vulnerability rating is rated as very high (total phosphorus index value is greater than 43); or (B) the results of a representative soil phosphorus test for the field results in a value of 150 mg/L phosphorous or more using the Olsen soil test. (b) The CAFO shall complete a nutrient need analysis for each crop to determine the acceptable amounts of nitrogen and phosphorus to be applied to the field based on the appropriate basis (nitrogen- or phosphorus-based application) as determined in (a). The nutrient needs must be determined based on Montana State University Extension Service Publication 161, Fertilizer Guidelines for Montana Crops. For crops not listed in Bulletin 161, the department may approve a fertilizer application rate provided by the local county extension service. (c) The CAFO shall complete a nutrient budget based on the nutrients needs of the crop as determined in (b) that accounts for all sources of nutrients available to the crop. Other sources that must be addressed where applicable include those in (i) through (vi) below. (i) The nitrogen needs determined in (b) must be reduced based on nitrogen fixation credits if a legume crop was grown in the field in the previous year based on the nitrogen fixation rates given in Schedule I. Schedule I. Nitrogen Fixation Estimates for Dryland Conditions Crop Nitrogen Fixation (pounds per acre)
Alfalfa (after harvest) 40-80 Alfalfa (green manure) 80-90 Spring Pea 40-100 Winter Pea 70-100 Lentil 30-100 Chickpea 30-90 Fababean 50-125 Lupin 50-55 Hairy Vetch 90-100 Sweetclover (annual) 15-20 Sweetclover (biennial) 80-150 Red Clover 50-125 Black Medic 15-25
(ii) The nitrogen needs determined in (b) must be reduced based on nitrogen residuals from past manure applications based on nitrogen mineralization rates given in Schedule II. Schedule II. Nitrogen Mineralization Rates Type of Wastes First Year(1) Second Year Fresh poultry manure 0.90 0.02 Fresh swine manure 0.75 0.04 Fresh cattle manure 0.70 0.04 Fresh sheep and horse manure 0.60 0.06 Liquid manure, covered tank 0.65 0.05 Liquid manure, storage pond 0.65 0.05 Solid manure, stack 0.60 0.06 Solid manure, open pit 0.55 0.05 Manure pack, roofed 0.50 0.05 Manure pack, open feedlot 0.45 0.05 Storage pond effluent 0.40 0.06 Oxidation ditch effluent 0.40 0.06 Aerobic lagoon effluent 0.40 0.06 Anaerobic lagoon effluent 0.30 0.06 (1) If irrigated, reduce first year mineralization by 0.05. (iii) The nitrogen needs determined in (b) must be reduced based on any nutrients provided by commercial fertilizer, irrigation water, or other sources. The CAFO shall provide the basis for the nutrients adjustments on the NMP. (iv) Nitrogen availability may be adjusted to reflect the method of application given in Schedule III. For phosphorus-based application, the nitrogen availability is 1.0. Schedule III. Nitrogen Availability and Loss by Method of Application Application Method Loss Factor Injection (sweep) 0.90 Injection (knife) 0.95 Broadcast (incorporated within 12 hours) 0.7 Broadcast (incorporated after 12 hours but before four days) 0.6 Broadcast (incorporated after four days) 0.5 Sprinkling 0.75
(v) The nutrient budget must be completed on forms provided by the department. (vi) If after the first three years of implementing the NMP the yield does not average at least 80% of the planned expected crop yield, the NMP must be amended to be consistent with the documented yield levels unless sufficient justification for the use of the higher yield is approved by the department. The amendment must be submitted as an amendment in accordance with ARM 17.30.1365. (4) Manure that is land applied must be sampled at least once per year and analyzed for total nitrogen (as N), ammonium nitrogen (as NH4-N), total phosphorus (as P2O5), total potassium (as K20), and percent dry matter (solids). Except for percent dry matter, the results of this analysis must be expressed as pounds per 1,000 gal for liquid wastes and pounds per ton for solid manure. The sample must be representative of the manure that is to be applied to a field and must be collected and analyzed in accordance with (a) and (b). (a) Solid manure must be sampled from at least ten different locations (subsamples) within the material to be applied from a depth of at least 18 inches below the surface. Subsamples must be thoroughly mixed in a clean receptacle and a sample of the mixed material must be collected and placed in a sealable plastic bag or other sample container approved by the analytical laboratory. The sample must be identified with the name, source, and date. The sample must be cooled to four degrees centigrade and analyzed within seven days or frozen at minus 18 degrees centigrade for up to six months or as directed by the analytical laboratory specified in (6). (b) Liquid manure must be agitated for a minimum of four hours prior to sample collection or until thoroughly mixed. A minimum of five one-quart subsamples must be collected from different locations in the storage facility. The subsamples must be collected from the liquid manure at a depth of least 12 inches below the surface. The subsamples must be combined into a single container and thoroughly mixed. A sample for laboratory analysis must be collected from the composited subsamples and placed into a clean one-quart plastic bottle or other sample container approved by the analytical laboratory. The sample must be identified with the name, source, and date. The sample container must not be completely filled. The sample must be cooled to four degrees centigrade and analyzed within seven days, or frozen at minus 18 degrees centigrade for up to six months or as directed by the analytical laboratory specified in (6). (5) Each field where manure is to be land applied must be sampled at least once every five years in accordance with the procedure given in (a) through (d). (a) A minimum of ten individual core samples must be composited to formulate a composite sample for the field. Core sampling in fields with significant landscape variation, including soil type, slope, degree of erosion, drainage, historic usage, or other factors, must be collected from each unit in proportion to the relative abundance in terms of total area. Uniform fields may be sampled in a simple random, stratified random, or systematic pattern following the guidance sources listed below. Individual core samples must be composited and thoroughly mixed in a clean plastic container except that core samples collected at different depths must be kept separate. Alternative soil sampling procedures are given in the following: (i) United States Department of Agriculture (USDA), Natural Resource Conservation Service (NRCS), Sampling Soils for Nutrient Management – Manure Resource Series, MT, April 2007; and (ii) Montana State University Extension, MontGuide, Interpretation of Soil Test Reports for Agriculture, MT200702AG, July 2007. (b) The composite soil sample for phosphorus analysis must be collected from a depth of zero to six inches below the surface and analyzed for phosphorus using the Olsen soil test method. Results must be reported as mg/kg phosphorus and pounds per acre. (c) Composite soil samples for nitrogen analysis must be collected from a depth of zero to six inches below the surface and analyzed for total nitrogen (as N) and nitrate (as N). A second composite sample must be collected at a depth of six to 24 inches and analyzed for nitrate (as N) only. Samples must be analyzed in accordance with method code 4H2a1-3 in United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), Soil Survey Laboratory Methods Manual, Soil Survey Investigations Report No. 42, Version 4.0, November 2004. Results must be reported as mg/kg total nitrogen and pounds per acre. (6) Analytical laboratories approved for manure and soil testing are given in Montana State University Extension Service Publication 4449-1, Soil Sampling and Laboratory Selection, June 2005. (7) Manure must be applied to fields at times and under conditions that will hold the nutrients in place for crop growth and protect surface and ground water using best management practices described in the nutrient management plan. The intended target spreading dates must be included in the NMP. Manure must not be land applied under the following conditions: (a) on land that is flooded or saturated with water; (b) during or within 36 hours of a rainfall event that exceeds four hours in duration or 0.25 inches or more of precipitation; or (c) to frozen or snow-covered ground. (8) Manure application rates and procedures must be consistent with the capabilities, including capacity and calibration range, of application equipment. (a) For an existing CAFO, the NMP must include a statement indicating that the existing equipment has been calibrated to ensure delivery of the application rates described in the plan and has the capacity to meet those rates. The CAFO shall maintain the supporting documentation on site and shall make this information available to the department upon request. (b) For proposed operations, or when it is not feasible to calibrate the equipment or verify its capacity at planning time, the operator shall perform this application equipment verification prior to the first application of manure. The information required in (a) must be maintained on site and incorporated into any subsequent amendment of the NMP. The CAFO shall maintain the supporting documentation on site and shall make this information available to the department upon request. (c) If a commercial hauler is used, the hauler shall be responsible for ensuring that the equipment is capable of complying with the application rate in the NMP. The CAFO shall maintain the supporting documentation on site and shall make this information available to the department upon request. (9) A multiyear phosphorus application is allowed for fields that require a nitrogen-based application based on a site-specific assessment (site vulnerability rating less than 22) as described in (3). When such application is made, the following conditions apply: (a) the application may not exceed the recommended nitrogen application rate during the years of application which may include a calculation for fertilizer inefficiencies or the estimated nitrogen removal in harvested plant biomass during the year of application when there is no recommended nitrogen application; (b) conservation practices must be included in the NMP and implemented to minimize the risk of phosphorus loss from the field; and (c) no additional manure may be applied to the field until the phosphorus applied in the single application has been removed through plant harvest. (10) As an alternative to the manure application rates based on the criteria given in (3), the CAFO may develop application rates for manure based on United States Department of Agriculture (USDA), Natural Resource Conservation Service (NRCS), Conservation Practice Standard, Code 590 (November 2006), provided that the following conditions are met: (a) a field-specific assessment of the potential for nitrogen and phosphorus transport from the field to surface waters must be conducted; (b) the form, source, amount, timing, and method of application of manure and any other nutrients to each field must be based on realistic production goals, and minimizing nitrogen and phosphorus movement to surface water must be addressed; (c) the appropriate flexibilities for the CAFO must be maintained to implement a multiyear phosphorus application as described in (9); (d) manure must be sampled a minimum of once annually for nitrogen and phosphorus and must be analyzed based on procedures and methods given in (4) and (5); (e) soil must be analyzed a minimum of once every three years for phosphorus content; (f) the results of the manure and soil sampling analysis must be used in determining manure application rates; and (g) the nutrient budget must be completed on forms provided by the department. (11) The board adopts and incorporates by reference the following, which may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena 59620-0901, or on the department's web site at http://deq.mt.gov/default.mcpx. (a) United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), No. 80.1 Nutrient Management Agronomy Technical Note MT-77 (revision 3), (January 2006); (b) United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), Method 4D5 (Olsen Sodium-Bicarbonate Extraction), Soil Survey Laboratory Methods Manual, Soil Survey Investigations Report No. 42, Version 4.0, (November 2004); (c) United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), Sampling Soils for Nutrient Management – Manure Resource Series, MT (April 2007); (d) Montana State University Extension, MontGuide, Interpretation of Soil Test Reports for Agriculture, MT200702AG, (July 2007); (e) Montana State University Extension Service Publication 4449-1, Soil Sampling and Laboratory Selection, (June 2005); and (f) United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), Conservation Practice Standard, Nutrient Management, Code 590, (November 2006). REASON: The board is proposing to adopt New Rule I to comply with the requirements of 40 CFR 123.36. This federal rule requires each delegated state to establish technical standards for nutrient management that are consistent with 40 CFR 412.4(c)(2). This technical standard is an effluent limitation that specifies the application rate for manure, litter, and other process wastewater applied to land under the ownership or operational control of the CAFO. The technical standards adopted by the state must include: (1) a field-specific assessment of the potential for nitrogen and phosphorus transport from the field to surface water and a nutrient management plan (NMP) that addresses the form, source, amount, timing, and method of application of nutrients on each field to achieve realistic production goals; and (2) appropriate flexibilities for any CAFO to implement nutrient management practices to comply with the technical standards, including consideration of multiyear phosphorus application, phased implementation of phosphorus-based nutrient management, and other components as determined appropriate by the state. The technical standards in New Rule I are based on and derived from Section 6 of Department Circular DEQ-9 that the board adopted in 2006, which describes procedures for conducting a field-specific assessment and determination of application rates for manure, litter, and process water. New Rule I also contains sampling procedures that are described in Section 5 of Department Circular DEQ-9. In addition to these procedures, New Rule I includes a section of definitions explaining technical terms used in the rule, identifies analytical procedures for analysis of soils and manure and analytical laboratories that may perform these analyses, and sets out conditions under which multiyear phosphorus application rates are acceptable. The board is also proposing to eliminate language in ARM 17.30.1343 requiring CAFOs to comply with Department Circular DEQ-9 due to EPA's revisions to the CAFO regulations in 2008, specifically 40 CFR 123.36. Department Circular DEQ-9 was adopted by the board in 2006 prior to promulgation of the 2008 federal CAFO rule, which placed into regulation, in 40 CFR 122.23, 122.42(e), and Part 412, the requirements for nutrient management, best management practices, record keeping, and annual reporting for CAFOs. These provisions of Department Circular DEQ-9 are no longer necessary. Other requirements of Department Circular DEQ-9 are neither consistent with, nor required by, 40 CFR 123.36 or 40 CFR 122.42(e). These amendments are necessary to be consistent with EPA's requirements for delegated state permit programs pursuant to 40 CFR 123.25 and 40 CFR 123.36. 5. Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing. Written data, views, or arguments may also be submitted to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; or e-mailed to ejohnson@mt.gov, no later than 5:00 p.m., January 17, 2013. To be guaranteed consideration, mailed comments must be postmarked on or before that date. 6. Katherine Orr, attorney for the board, or another attorney for the Agency Legal Services Bureau, has been designated to preside over and conduct the hearing. 7. The board maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding: air quality; hazardous waste/waste oil; asbestos control; water/wastewater treatment plant operator certification; solid waste; junk vehicles; infectious waste; public water supply; public sewage systems regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans; wastewater treatment or safe drinking water revolving grants and loans; water quality; CECRA; underground/above ground storage tanks; MEPA; or general procedural rules other than MEPA. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901, faxed to the office at (406) 444-4386, e-mailed to Elois Johnson at ejohnson@mt.gov, or may be made by completing a request form at any rules hearing held by the board. 8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply. Reviewed by: BOARD OF ENVIRONMENTAL REVIEW /s/ James M. Madden BY: /s/ Joseph W. Russell JAMES M. MADDEN JOSEPH W. RUSSELL, M.P.H., Rule Reviewer Chairman Certified to the Secretary of State, December 10, 2012.
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