SUBCHAPTER
I Authority
These Rules are adopted under the express authority
of 6 V.S.A. chapter 215 subchapter 5 section 4858 and under 6 V.S.A.
subchapter 1(a)(10). The Secretary is authorized to adopt rules under
3 V.S.A. chapter 25, for the implementation of the provisions of 6
V.S.A. chapter 215 subchapter 5.
Related statutes include 6 V.S.A. chapter 215
subchapter 5 sections: 4856 regarding recycling animal waste
nutrients; 4857 regarding definitions; 4858 regarding animal waste
permits; 4859 regarding public notice and hearings; 4860 regarding
revocation and enforcement; and, 4861 regarding appeals.
SUBCHAPTER II
Declaration of Purpose
These Rules establish procedures for administration,
public notice and hearing, comment, enforcement, transition,
revocation and appeals, as well as standards for the issuance of a
Medium Farm Operation (MFO) General Permit, including conditions,
procedures, and standards for the issuance of Individual Permits for
MFOs as may be required under certain circumstances.
The General Permit will be designed to ensure that
medium farms generating animal waste comply with Vermont's water
quality standards. Unless otherwise given notice by the Agency, all
medium farms in Vermont are required to operate under the coverage
and conditions of the General Permit.
The MFO general permitting program is designed to
achieve the purpose of 6 V.S.A. chapter 215 subchapter 5. The Vermont
Agency of Agriculture, Food and Markets intends that these Rules will
establish a process for the issuance of a General Permit that will
cause a Vermont MFO operator to manage a medium farm in a manner
which achieves at least an equivalent technical standard as required
by federal regulations.
SUBCHAPTER III Definitions
25-year 24-hour Rainfall Event: means the maximum
24-hour precipitation event with a probable recurrence interval of
once every 25 years, as defined by the National Weather Service in
Technical Paper Number 40, "Rainfall Frequency Atlas of the United
States", May 1961 and subsequent amendments, or equivalent regional
or state rainfall probability information developed therefrom.
AAPs: means the Vermont Accepted Agricultural
Practice Regulations adopted pursuant to 6 V.S.A. Chapter 215.
AFO: means an animal feeding operation.
Animal Feeding Operation: means a lot or facility
which has animals (other than aquatic animals) that 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 where animals
are confined.
Two or more individual farms qualifying as an AFO
which are under common ownership and which adjoin each other or use a
common area or system for the disposal of animal waste, shall be
considered to be a single AFO if the combined number of livestock or
domestic fowl resulting qualifies as a medium farm as defined
herein.
Agency: means the Vermont Agency of Agriculture, Food
and Markets.
Animal Type: means livestock or domestic fowl
type.
Certified Nutrient Management Planner: means an
individual certified through the completion of the USDA/NRCS nutrient
management certification process who creates, reviews, and modifies
NMPs.
Conservation Practice: means a specific treatment
used to address specific natural resources needs and can be
structural, vegetative, or land management.
Cropland: means land devoted to row crop, perennial
production, or pasture production.
Dirty Water: means precipitation or other water which
has moved in, over or through a barnyard, manure, or other nutrient
or pathogen laden matter, so that they have become co-mingled.
Discharge: means the placing, depositing, or emission
of waste directly into surface water.
Domestic Fowl: means laying-hens, broilers, ducks,
and turkeys.
Existing MFO: means an AFO meeting the definition of
a MFO at the time the General Permit is issued.
Groundwater: means water below the land surface in a
zone of saturation, but does not include surface waters.
Land Application Area: means land under the control
of an AFO owner or operator, whether it is owned, rented, or leased,
to which wastes from the production area is or may be applied.
Livestock: means cattle, swine, sheep, horses, or
other animal types as deemed by the Secretary.
MFO: means a Medium Farm Operation.
Medium Farm Operation: means an AFO which
houses:
(i) 200 to 699
mature dairy cows, whether milked or dry;
(ii) 300 to 999 youngstock or
heifers;
(iii) 300 to 999
veal calves;
(iv) 300 to
999 cattle or cow/calf pairs;
(v) 750 to 2,499 swine weighing
over 55 pounds;
(vi) 3000
to 9,999 swine weighing less than 55 pounds;
(vii) 150 to 499 horses;
(viii) 3,000 to 9,999 sheep or
lambs;
(ix) 16,500 to
54,999 turkeys;
(x) 9,000
to 29,999 laying hens or broilers with a liquid manure
system;
(xi) 25,000 to
81,999 laying hens without a liquid manure handling system;
(xii) 1,500 to 4,999 ducks with a
liquid manure handling system;
(xiii) 10,000 to 29,999 ducks
without a liquid manure handling system; or,
(xiv) any other animal type and
number that the Secretary may deem
New MFO: means an AFO meeting the definition of a MFO
after the General Permit is issued.
NRCS: means United States Department of Agriculture
(USDA) Natural Resources Conservation Service.
Nutrient Management: means managing the amount, form,
placement, and timing of plant nutrient applications to obtain
optimum forage and crop yields, minimize the entry of nutrients into
waters of the state and groundwater, and optimize economic use of
nutrients generated on and off the farm.
Nutrient Management Plan: means the system by which
animal waste generation, storage, and use is handled for the purpose
of obtaining optimum forage and crop yields including the relating
management aspects of fertilizer nutrients, conservation practices,
animal mortalities, clean water, chemical handling, waste and soil
testing, and record keeping.
NMP: means nutrient management plan.
Pasture: means a confined area of perennial
vegetation used for the grazing and confinement of animals.
Permit Decision: means a decision by the Secretary to
issue a General Permit or permits, to issue a subsequent General
Permit or permits, or to require a small farm to obtain an Individual
Animal Waste Permit in order to continue in operation.
Permittee: means a person or business that has
received a MFO General or Individual Permit.
Person: means:
(a) an individual, partnership,
corporation, association, unincorporated organization, trust or other
legal or commercial entity, including a joint venture or affiliated
ownership; or
(b) a
municipality or state agency; or
(c) individuals and entities
affiliated with each other for profit, consideration or any other
beneficial interest derived from agricultural land management.
Person Aggrieved: means a person who alleges an
injury to a particularized interest where the injury is attributable
to an act or decision by the Secretary under subchapter 5 of chapter
215 of title 6 and the injury can be redressed by the environmental
court or the Supreme Court.
Production Area: means those parts of a MFO that
includes the animal confinement area, the manure storage area, the
raw materials storage area, and the waste containment areas. Also
included in the definition of production area is any egg washing or
egg processing facility, and any area used in the storage, handling,
treatment, or disposal of mortalities.
Ruling: means a determination by the Secretary, after
notice and an opportunity to be heard by a medium farm, that a medium
farm is required to apply for and to obtain an Individual Animal
Waste Permit in order to continue in operation, or a determination by
the Secretary to deny an application by a medium farm for coverage
under an Individual Animal Waste Permit.
Secretary: means the Secretary of the Agency of
Agriculture, Food & Markets.
Small Farm Operation: means an AFO which houses no
more than 199 mature dairy animals, 299 youngstock or heifers, 299
cattle or cow/calf pairs, 749 swine weighing over 55 pounds, 2,999
swine weighing less than 55 pounds, 149 horses, 2,999 sheep or lambs,
16,499 turkeys, 8,999 laying hens or broilers with a liquid manure
handling system, 24,999 laying hens without a liquid manure handling
system, 37,499 chickens other than laying hens without a liquid
manure handling system, or 9,999 ducks without a liquid manure
handling system.
Vermont Water Quality Standards: means the standards
and criteria adopted by the Vermont Water Resources Board, pursuant
to 10 V.S.A. Chapter 47 section 1252(e).
Waste: means, for the purposes of these Rules,
spoiled feed, manure, milkhouse waste, washwater, leachate, used
bedding, carcasses, barnyard runoff, or other dirty water.
Waste Management System: means an on-farm waste
management program and conservation practices which include, but are
not limited to, a combination of:
1. an adequately sized waste
storage facility, field stacking, composting, leachate control
system, and milkhouse waste system;
2. contracts which transfer the
ownership of wastes generated at a production area to another party
for management in a manner determined by the Secretary;
and/or,
3. a nutrient
management plan (NMP) for all wastes to be applied in compliance with
these Rules.
Waste Storage Facility: means an impoundment made for
the purpose of storing agricultural waste by constructing an
embankment, excavating a pit or dugout, fabricating an in-ground or
above-ground structure, or any combination thereof.
Waters of the State: means, for the purpose of these
Rules, all rivers, streams, creeks, brooks, reservoirs, ponds, lakes,
springs, and all bodies of surface waters, artificial or natural,
which are contained within, flow through or border the State or any
portion of it.
SUBCHAPTER IV Coverage Under the
MFO General Animal Waste Permit
A.
After the conclusion of the MFO General Permit adoption process and
final issuance of the MFO General Permit, no person shall operate a
medium farm without authorization from the Secretary pursuant to 6
V.S.A. chapter 215 subchapter 5.
B. The following animal feeding
operations shall seek coverage under the Medium Farm General Permit:
1. An existing animal feeding
operation (AFO) meeting the definition of a Medium Farm Operation
(MFO); or,
2. A new
animal feeding operation (AFO) meeting the definition of a Medium
Farm Operation (MFO).
C. A Medium Farm Operation seeking
coverage under this General Permit is required to submit a Notice of
Intent to Comply (NOIC) with the conditions as set forth within the
General Permit. The NOIC must be received by the Agency no later than
180 days from issuance of the General Permit.
D. Prior to increasing the animal
numbers to more than those defined by the MFO definition, a farm
operation shall submit a NOIC in compliance with the conditions of
the MFO General Permit.
E. The owner or operator of a small
farm may seek coverage under the Medium Farm General Permit adopted
pursuant to this section by certifying to the Secretary, in a manner
specified by the Secretary, that the small farm compiles with the
requirements and conditions of the Medium Farm General
Permit.
F. All farm
operations seeking coverage under the Medium Farm General Permit
shall receive written notification of permit coverage or
denial.
G. The following
situations may be exempt from the MFO General Permit requirements:
1. A farming operation that already
operates under a MFO Individual Permit; or,
2. An operation that already
operates under a LFO permit.
F. The
following activities are prohibited under the coverage of this MFO
General Permit:
1. Operation of a
production area in a manner to cause a discharge to waters of the
state, or to violate state groundwater standards.
SUBCHAPTER V Public Notification
and Hearing Process for the Adoption of a Draft General Animal Waste
Permit
A. Whenever the Secretary
proposes to issue a General Permit for the regulation of animal
wastes for medium or small farms he or she shall first prepare a
draft permit for the purpose of receiving and considering public
comment.
B. The following
elements of the Draft MFO General Permit shall include, but not be
limited to:
1. A Cover
Page;
2. Effluent
Limitations and Standards;
3. Monitoring and Reporting
Requirements;
4. Record
Keeping Requirements;
5.
Special Conditions;
6.
Standard Conditions;
7.
Signatory Requirements;
8. Certification;
9. Availability of Reports;
10. Penalties for
Violations of Permit Conditions; and,
11. Definitions.
C. The Draft General
Permit shall contain at least the following information:
1. Conditions for required
compliance with animal waste management standards and standards for
waste management systems;
2. Standards for nutrient
management planning;
3.
Conditions for required compliance with record keeping;
4. Conditions for required
compliance with inspection and monitoring; and,
5. Conditions for required
compliance with implementation schedules.
D. Notification of the Preparation
of the Draft General Permit
1. The
Agency shall provide public notice of the preparation of a Draft MFO
General Permit allowing at least 30 days for public
comment.
2. The Agency
shall provide notice of the preparation of a Draft MFO General Permit
to the following:
a) State Office
of the U.S. Corps of Engineers;
b) State Office of the U.S. Fish
and Wildlife Service;
c)
State Office of the U.S. Department of Agriculture Natural Resource
Conservation Service;
d)
Vermont Agency of Natural Resources;
e) Vermont Agency of Commerce and
Community Affairs;
f)
Persons on a mailing list developed by the Agency; and,
g) All town clerks in the State of
Vermont.
3.
Notice of the preparation of the Draft MFO General Permit will be
placed in two (2) prominent Vermont newspapers. Included in the text
of the public notice shall be the availability for viewing of the
Draft MFO General Permit on the Agency homepage.
4. Additionally, the Agency may use
any other method reasonably calculated to give actual notice of the
action in question to the persons potentially affected by it,
including press releases or any other forum or medium to elicit
public participation.
5.
Public notice of the preparation of the Draft MFO General Permit may
be combined with public notification of the initial 30 day comment
period and the date and location of a public hearing.
6. A fact sheet for the Draft
General Permit shall be prepared by the Agency and made available to
the public accompanying the draft permit. The fact sheet shall
include:
a) A brief description of
the facilities and activities subject to the Draft General
Permit;
b) A description
of the waste, including manure, milkhouse waste, washwater, leachate,
used bedding, carcasses, barnyard runoff, and dirty water, which is
subject to regulation under these Rules;
c) A list of the significant
conditions of the Draft General Permit;
d) A brief summary of the basis of
the Draft General Permit;
e) A description of the procedures
for reaching a final decision on the Draft General Permit;
f) The beginning and ending dates
of the comment period;
g)
Procedures by which the public may participate; and,
h) The name, address and telephone
number of a person from whom interested persons may obtain further
information, including copies of the Draft General Permit and a fact
sheet.
E. Public Comments and Hearing
Requests
1. During the initial 30
day public comment period, any person may submit written comments on
the Draft MFO General Permit.
2. All persons who believe any
condition of the Draft MFO General Permit is inappropriate must raise
all reasonable ascertainable issues and submit all reasonable
arguments supporting their position by the close of the public
comment period.
3. The
Secretary may extend the public comment period at his or her
discretion whenever, for instance, such comments might clarify one or
more issues involved in the permit discussion or expedite the
issuance process. Notice of an extended comment period shall be
posted on the Agency homepage.
4. At the time of issuance of the
MFO General Permit, the Agency shall issue a response to comments
raised during the comment period, or hearing(s), specifying which
provisions, if any, have been changed and the reasons for the
changes, and a brief description and response to all significant
comments.
F.
Public Hearings
1. The Secretary
shall hold a public hearing for the adoption of the Draft General
Permit.
2. Public Hearing
Procedures
a) The purpose of the
hearing shall be to provide an opportunity for the public to learn
about the conditions of the General Permit and provide comments to
the Agency.
b) The Agency
shall find locations for the public hearing and schedule the public
hearing meeting.
c) The
Agency shall provide public notice of the hearing date and location
at least 30 days prior.
d) Notice of the preparation of the
hearing date and location will be placed in two (2) prominent Vermont
newspapers and will indicate the presence of the Draft General Permit
on the Agency homepage. Additionally, the Agency may use any other
method reasonably calculated to give actual notice of the action in
question to the persons potentially affected by it, including press
releases or any other forum or medium to elicit public
participation.
e) The
published advertisement shall be at least two (2) columns wide by
three (3) inches high.
f)
Public notice of the hearing may be combined with public notification
of the prepared Draft MFO General Permit and initial comment
period.
g) Any person may
submit oral or written statements and data concerning the Draft MFO
General Permit.
h)
Reasonable limits may be set upon the time allowed for oral
statements, and the submission of statements in writing may be
required.
i) The
Secretary may designate a Presiding Officer who shall be responsible
for facilitating the hearing to ensure, to the extent possible, full
participation by attendees.
j) The public hearings shall be
recorded and transcripts made available at cost to the public upon
written request to the Secretary.
k) The Agency will receive public
comments for at least 30 days following the hearing.
l) All persons who believe any
condition of the Draft MFO General Permit is inappropriate should
raise all reasonable ascertainable issues and submit all reasonable
arguments supporting their position by the close of the public
comment period.
m)
Following the 30 day comment period, the revised Draft MFO General
Permit will be placed on the Agency's homepage.
n) Public hearings shall be held in
handicapped accessible locations.
SUBCHAPTER VI Issuance
and Duration of the MFO General Animal Waste Permit
A. After the close of the public
comment period, the Secretary shall issue the MFO General Permit. The
MFO General Permit shall be in affect immediately after the
Secretary's signature and dating.
B. The MFO General Permit will
remain in affect for a period of five (5) years from the date of
issuance.
C. Transfer of
an MFO permit
1. A MFO may transfer
General Permit coverage with the sale or lease of a farm. Written
notification shall be made by the original permittee to the Agency
within 10 days of that transaction. Written notification shall
include a statement signed by the new owner or lessee which indicates
that the new owner or lessee understands and agrees to comply with
the conditions of the transferred MFO permit.
2. The new owner or lessee shall
notify the Secretary in writing within 30 days of that transaction,
describing any proposed changes in operation or facilities, or the
lack thereof. No change in animal type is allowed to occur without a
full review of the operation by the Agency.
SUBCHAPTER VII Issuance
of an Individual Animal Waste Permit for Medium Farm Operations
A. Upon determination of any of the
following circumstances, the Secretary may require a Medium Farm
Operation to apply for and obtain an Individual Medium Farm Operation
Permit:
1. A determination by the
Secretary that a MFO is not in compliance with the conditions of the
General Permit;
2. A
determination by the Secretary that a MFO has had a history of
noncompliance and continues not to be in compliance with
AAPs;
3. A determination
by the Secretary that a MFO owner or operator is using unproven
experimental technology;
4. A determination by the Secretary
that a field is no longer acceptable for spreading or spray
irrigation of wastes, thereby requiring site specific
conditions;
5. A
determination by the Secretary that the nutrient application rates
need to be adjusted, thereby requiring site specific conditions;
and,
6. A determination
by the Secretary that implementation of a NMP may result in an
unpermitted discharge to waters of the state.
B. Process for Secretary's
Determination for Issuance of a Ruling Concerning Requirements for an
Individual Permit for a Medium Farm Operation
1. Upon determination by the
Secretary that an Individual Permit for a MFO is warranted, the
Agency will notify the owner or operator in writing by certified
mail, or in person, that an application for an Individual Permit is
required.
2. The letter
from the Agency to the MFO owner or operator requesting submittal of
an Individual Permit application shall state the reasons for the
determination by the Secretary, an outline of proposed conditions, a
proposed schedule of compliance, and the process for requesting a
hearing before the Secretary in the event that the owner or operator
wishes to appeal the determination.
3. The owner or operator of the MFO
may appeal the Secretary's ruling within 30 days of the receipt of
the Secretary's ruling. An appeal is made by submitting a request for
a hearing in writing to the Secretary, which must be received by the
Secretary within 30 days of the receipt of the written ruling and
stating therein the reasons for the appeal.
4. The Secretary shall conduct the
hearing in accordance with
6 V.S.A.
section 11.
C. If an owner or operator fails to
submit an Individual Permit application as required by the Agency and
does not request a hearing in a timely manner, then coverage under
the General Permit is automatically terminated at the end of the day
for specified submittal of the Individual Permit
application.
D. When an
Individual Permit is issued to an owner or operator otherwise subject
to the General Permit, coverage under the General Permit is
automatically terminated on the effective date of the Individual
Permit.
E. Application
Process for an Individual Permit for a Medium Farm Operation
1. An operator of a farm may
petition the Secretary to request issuance of an Individual
Permit.
2. All requests
for issuance or coverage under an Individual Permit shall be in
writing to the Secretary and shall contain any facts or reasons
supporting the request including why coverage under a General Permit
is inadequate to meet the purposes of the MFO Law or Rules.
3. If the Secretary rules the
request is not justified, he or she shall send the petitioner a
written response giving a reason for the ruling.
F. Upon issuance of an Individual
Permit to a medium farm, the permittee shall comply with all the
requirements of these Rules, including but not limited to:
1. Management and design
standards;
2. Nutrient
management plan requirements and components;
3. Plan maintenance and record
keeping;
4. Annual
reporting requirements; and,
5. Other site-specific conditions
required by the Secretary in order to comply with these Rules and
protect water quality.
G. Revisions and Modifications to
MFO Individual Permits
1. Prior to
making a substantial change in the operation that would lead to a
violation of a condition of the Individual Permit, a permittee shall
submit a letter of intent to the Secretary describing the proposed
change or changes. The Secretary will determine whether the change
remains within the conditions of the permit. The Secretary's written
determination will be sent to the Permittee within 30 days of the
receipt of the letter of intent.
2. Where Agency-initiated
modifications to the MFO Individual Permit require actions by the
permittee, such actions shall be completed by the Permittee within
the time frame established by the Agency. Prior to any modifications
to a MFO Individual Permit, the Secretary shall notify the permittee
in writing of the proposed modification. The permittee shall have 30
business days to request to be heard regarding the proposed
modification. This 30-day period may be extended by good cause shown
by the permittee. If no such request is made, the Secretary may
modify the permit accordingly.
3. No public notice is required
when a request for permit modification, revocation and reissuance, or
termination is denied.
H. Transfer of a MFO Individual
Permit
1. A permittee may transfer
ownership of a MFO Individual Permit with the sale or lease of a MFO
if the livestock or fowl types and numbers will not be changed.
Written notification shall be made by the original permittee to the
Agency within 10 days of that transaction. Written notification shall
include a statement signed by the new owner or lessee which indicates
that the new owner or lessee understands and agrees to comply with
the conditions of the transferred MFO Individual Permit.
2. The new owner or lessee shall
notify the Secretary in writing within 30 days of that transaction,
describing any proposed changes in the operation or facilities, or
the lack thereof.
3. The
Secretary may, within 30 days after the receipt of the notification,
determine whether an Individual Permit amendment is
required.
SUBCHAPTER VIII Issuance of an
Individual Animal Waste Permit for Small Farm Operations
A. Upon a determination by the
Secretary that a Small Farm Operation has had a history of
non-compliance with the AAPs and is and will continue to be not in
compliance with the AAPs, the Secretary may require a Small Farm
Operation to apply for and obtain an Individual Small Farm Operation
Permit.
B. Process for
the Secretary's Determination for Issuance of a Ruling Concerning
Requirements for an Individual Permit for a Small Farm Operation
1. Upon determination by the
Secretary that an Individual Permit for a small farm is warranted,
the Agency will notify the farm in writing by certified mail, or in
person, that an application for an Individual Permit is
required.
2. The letter
from the Agency to the small farm requesting submittal of an
Individual Permit application shall state the reasons for the
determination by the Secretary, an outline of proposed conditions, a
proposed schedule of compliance, and the process for requesting a
hearing before the Secretary in the event that the owner or operator
wishes to appeal the determination.
3. The small farm may appeal the
Secretary's ruling within 30 days of the receipt of the Secretary's
ruling. An appeal is made by submitting a request for a hearing in
writing to the Secretary, which must be received by the Secretary
within 30 days of the receipt of the written ruling and stating
therein the reasons for the appeal.
4. The Secretary shall conduct the
hearing in accordance with
6 V.S.A.
section 11.
C. Upon issuance of an Individual
Permit to a small farm, the permittee shall comply with all the
requirements of these Rules applicable to MFOs, including but not
limited to:
1. Management and
design standards;
2.
Nutrient management plan requirements and components;
3. Plan maintenance and record
keeping;
4. Annual
reporting requirements; and,
5. Other site-specific conditions
required by the Secretary in order to comply with these Rules and
protect water quality.
SUBCHAPTER IX Revocation of General
or Individual Permit Coverage
A. The
Secretary may, after due notice and an opportunity for hearing with
the permittee, revoke coverage under the General Permit or an
Individual Permit issued to a medium or small farm, if after
investigation, the Secretary deems the permittee to be in violation
of any of the terms or conditions of the MFO General and Individual
Permit, provisions of the MFO Law, or provisions of these
Rules.
SUBCHAPTER
X Compliance and Enforcement Determinations
A. The Secretary may seek
enforcement remedies, including reduction of herd size and
administrative penalties, under sections
1,
12,
13,
15,
16,
and
17
of 6 V.S.A. with regard to any person who violates the terms or
conditions of the MFO General and Individual Permits, provisions of
the MFO Law, or these MFO Rules.
SUBCHAPTER XI Management and Design
Standards
A. Completion Schedule for
all Technical Standards Applicable to MFOs
1. Existing MFOs shall have a
field-by-field Nutrient Management Plan by March 31, 2008.
2. New MFOs shall have conservation
practices to prohibit discharges from the production area and a
nutrient management plan to manage wastes, prior to commencing
operation.
3. MFOs shall
not have a discharge of waste from the production area to waters of
the state.
B.
General Standards Applicable to all MFOs
1. Conservation practices shall be
in place to assure that there are no discharges of wastes from the
production area to waters of the state.
2. The production area will be
managed in compliance with all applicable AAPs.
3. All land-applied wastes shall be
applied at rates according to a NMP developed or approved by a
certified nutrient management planner. The NMP shall balance nutrient
loading of soils with crop yield goals for the cropland.
4. All wastes generated are stored
so as not to generate runoff from a 25-year, 24-hour rainfall
event.
C.
Groundwater Protection Criteria
1.
Farm operations shall be conducted so that wastes, as that term is
defined in the AAP Rules, do not reach or exceed the primary or
secondary groundwater standards as established by the Secretary of
the Agency of Natural Resources in the Groundwater Protection Rule
and Strategy. Where monitoring indicates that wastes, as that term is
defined in the AAP Rules, have reached or exceeded an enforcement
standard in groundwater, the Secretary may require corrective
modifications to the NMP, the waste management system, or other
corrective actions as needed.
2. The Secretary may conduct
groundwater quality monitoring to assess the impact of agricultural
practices and farm operations on the quality of drinking water and
groundwater.
3. The
Secretary may conduct groundwater sampling:
a) At sites selected by the
Secretary where well owners have volunteered or agreed to participate
in the sampling program;
b) At sites upon the request of a
well owner;
c) At sites
selected by the Secretary based on the results of other sampling data
or the existence of vulnerable site characteristics;
d) At sites with activities or
operations permitted or regulated by the Secretary; and,
e) At sites where the Secretary has
received a complaint from a well owner in the vicinity of an
agricultural operation that the operation has contaminated the
drinking water or groundwater of the well owner.
4. Groundwater Investigation
a) The Secretary shall conduct a
groundwater investigation where the Secretary has received a
complaint from a well owner in the vicinity of an agricultural
operation that the operation or its agricultural practices has
contaminated the drinking water or groundwater of the well
owner.
b) The Secretary
shall investigate the occurrence of contamination where sampling
indicates that drinking water or groundwater contains detectable
concentrations of agricultural contaminants.
c) The approaches the Secretary may
utilize to identify and remediate sources of drinking water and
groundwater contamination include, but are not limited to:
i) Conduct site visits to interview
property owners and farm operators, gain an understanding of the
physical characteristics of the landscape, and locate additional
sites for water quality sampling;
ii) Communicate with farm operators
and adjacent property owners to identify practices and activities
that are potential sources of contamination;
iii) Conduct additional sampling to
confirm the detection of contaminants and to determine the extent and
scope of contamination at the site;
iv) Make recommendations for
changes in activities, management practices, cropping patters, or
structural revisions designed to reduce the contamination from
current activities and prevent contamination from future activities;
v) Conduct follow up
water quality sampling to determine the effectiveness of changes made
or corrective actions taken;
vi) Seek additional investigative
or consultation resources to evaluate and characterize the site to
determine vulnerability to drinking water and groundwater
contamination; and,
vii)
Review testing results and site evaluations to determine if changes
in water quality data are the result of changes in activities or
natural site conditions.
5. Where monitoring indicates a
farm operation has caused the concentration of wastes in groundwater
to reach or exceed the primary or secondary groundwater quality
standards as defined by the Secretary of Natural Resources in the
Groundwater Protection Rule and Strategy, the farm operation shall be
managed to reduce the contamination from current activities and
prevent contamination from future activities.
a) Changes in activities,
management practices, cropping patterns, or structures to reduce
concentration of wastes in groundwater may be implemented according
to an Assurance of Discontinuance (AOD) and a compliance schedule
issued to the farm operation by the Secretary.
6. The Secretary shall provide
written notification of testing results to each individual well owner
that participates in the sampling program.
a) Property owners in the vicinity
of farm operations and agricultural lands shall receive the test
results for each well owned by them that is sampled by the
Secretary.
b) Farm
operations shall receive the test results for wells owned by the farm
operation and for wells adjacent to or impacted by the crop land or
facilities managed by the farm operation.
7. The Secretary may require the
owner or operator of a waste storage facility to modify the facility
to meet the NRCS or an equivalent standard for the facility or to
implement additional management measures if the facility poses a
threat to human health or the environment as established by a
violation of the Groundwater Quality Standards.
8. For the purpose of making a
determination that a waste storage facility poses a threat to human
health or the environment, the Secretary shall pay for the initial
costs to conduct groundwater monitoring. When the Secretary has made
a determination that a waste storage facility poses a threat to human
health or the environment, the Secretary shall provide notification
to the Department of Health and the Agency of Natural Resources. This
notification shall occur within twenty-one (21) days and include the
location of the facility and the name of the owner or operator. When
the Secretary makes a determination that a waste storage facility no
longer poses a threat to human health or the environment, the
Secretary shall provide notification of the revised determination to
the Department of Health and the Agency of Natural
Resources.
9. When the
Secretary has made a determination that a farm operation poses a
threat to human health or the environment, the Secretary may require
the cost of continued groundwater monitoring be paid for by the farm
operation.
10. The owner
or operator of a farm operation required by the Secretary to design,
construct or modify a waste storage facility may apply for cost share
assistance. If the Secretary lacks adequate cost share assistance
funds, the requirements for the design, construction or modification
of a waste storage facility shall be suspended until adequate funding
is available.
Suspension of the requirements to design, construct
or modify a waste storage facility does not relieve an owner or
operator of a farm subject to the Medium Farm Operations Permitting
Program from the remaining requirements of the MFO Program.
D. Structural
Design Standards
1. Structural
components of the following aspects of a MFO waste management system
shall meet the following conditions:
a) Any agricultural waste storage
facility (except concrete slabs) constructed, upgraded, modified, or
expanded after July 1, 2006 shall meet or exceed the standards of all
applicable NRCS conservation practice standards or equivalent
standards certified by a professional engineer licensed in the State
of Vermont.
b) Any
agricultural waste storage facility or components of a waste
management system including, but not limited to, barnyards, manure
field stacking sites, leachate control systems, or runoff control
systems existing as of July 1, 2006 shall not be required to meet
applicable NRCS conservation practice standards or equivalent
standards certified by a professional engineer licensed in the State
of Vermont provided the facility or system is not causing groundwater
to exceed state groundwater standards or is causing a discharge to
waters of the state.
c)
Medium Farm Operations shall have an agricultural waste storage
facility capable of holding waste for 180 consecutive days. An
alternative to providing 180 consecutive days worth of storage is
developing a manure management program which may involve a
combination of field stacking, composting, or contracts which
transfer the ownership of manure to another party, for management in
a manner to assure compliance with the these Rules.
d) Milkhouse waste systems and
leachate runoff systems shall be accounted for in the design of the
waste management system or in an approved structure. Milkhouse waste
and leachate runoff must be contained in such a way as to prevent a
discharge to waters of the state.
e) All storage of compost and the
resulting leachate shall be conducted to prevent adverse impacts to
waters of the state and groundwater. Compost and compost leachate
shall be collected and spread on land without creating an adverse
impact to waters of the state and groundwater.
E. Performance Standards
and Conditions
1. A waste
management system shall be designed, operated, and maintained to
prevent groundwater to exceed state groundwater standards and
discharges from the production area to waters of the state.
2. If a component of a waste
management system, does not prevent discharges of agricultural wastes
from the production area to waters of the state, or violates state
groundwater standards, or has not been certified by NRCS or by a
Vermont licensed professional engineer to meet or exceed NRCS
conservation practice standards, or was incorrectly certified as an
acceptable structure for the intended use, a MFO may be required to
meet designed performance criteria through a schedule of compliance
and/or apply for an Individual Permit.
3. The burden of proof that all
structures meet design, construction, and operation performance
standards lies with the permittee.
SUBCHAPTER XII Nutrient Management
Plan Requirements
A. Production of a
Nutrient Management Plan
1. All
MFO's shall have a field-by-field NMP developed or approved by a
certified nutrient management planner as defined by these
Rules.
2. The Agency may
periodically inspect NMPs developed or approved by certified persons
and required records for the purpose of review for compliance with
MFO nutrient management requirements. The planner and the farmer
shall keep a copy of the plan and plan records for a period no less
than 5 years.
B. Requirements of the Planning
Process
1. Development and
implementation of a NMP shall meet or exceed the standards of Vermont
AAPs and shall be in compliance with the following additional
criteria to the extent applicable.
a) The nutrient management plan
shall:
i) Ensure adequate storage
of manure, litter, and process wastewater, including procedures to
ensure proper operation and maintenance of the storage facilities;
ii) Ensure proper
management of mortalities (i.e., dead animals) to ensure that they
are not disposed of in a liquid manure, stormwater, or process
wastewater storage or treatment system that is not specifically
designed to treat animal mortalities;
iii) Ensure clean water is
diverted, as appropriate, from the production area;
iv) Prevent direct contact of
confined animals with waters of the state;
v) Ensure chemicals and other
contaminants handled on-site are not disposed of in any manure,
litter, process wastewater, or stormwater storage or treatment system
unless specifically designed to treat such chemicals and other
contaminants;
vi)
Identify appropriate site specific conservation practices to be
implemented, including as appropriate buffers or equivalent
practices, to control runoff of pollutants to waters of the
state;
vii) Identify
protocols for appropriate testing of manure, litter, process
wastewater, and soil;
viii) Establish protocols to land
apply manure, litter or process wastewater in accordance with site
specific nutrient management practices that ensure appropriate
agricultural utilization of the nutrients in the manure, litter or
process wastewater, as appropriate; and,
ix) Identify specific records that
will be maintained to document the implementation of the
NMP.
2. All applicable records
identified pursuant to nutrient management requirements (i-ix) above,
including test results for vii and viii, shall be kept on-farm for a
period of no less than 5 years.
SUBCHAPTER XIII Annual Compliance
Reporting Requirements
A. The
permittee shall submit an annual report to the Agency April 30 of
each year. (see Appendix D -- Annual Compliance Report
Form).
B. The annual
compliance report must include, but is not limited to, the following
information:
1. The number and type
of animals, whether in open confinement or housed under
roof;
2. An estimated
amount of total manure, litter, and process wastewater generated by
the MFO in the previous 12 months (tons/gallons);
3. An estimated amount of total
manure, litter, and process wastewater transferred to other persons
by the MFO in the previous 12 months (tons/gallons);
4. Number of acres for land
application covered by the NMP;
5. Total number of acres under
control of the MFO that were used for land application of manure,
litter, and process wastewater in the previous 12 months;
6. Summary of all manure, litter,
and process wastewater discharges from the production area that have
occurred in the previous 12 months including the date, time, and
approximate volume; and,
7. A statement indicating whether
the current version of the MFO's nutrient management plan was
developed or approved by a certified nutrient management
planner.
C.
The permittee shall submit a nutrient management report to the Agency
April 30 of each year. (see Appendix F -- Nutrient Management Report
Form).
D. The nutrient
management report must include, but is not limited to, the following
information:
1. Tract number, field
number, acreage, previous year's crop, and previous year's crop yield
for each field;
2. HEL
determination, planned soil loss (as determined using RUSLE2), and
previous soil loss (as determined using RULSLE2) for each
field;
3. Animal waste
application rates by source per field;
4. Fertilizer application rates by
formulation per field;
5.
A copy of all animal waste test results; and,
6. A copy of all soil test results.
SUBCHAPTER
XIV Appeals
A. Permit
Decisions to Issue and Re-Issue General Animal Waste Permits
1. The decision to issue and
re-issue General Permits is subject to the preparation of draft
permits, public notice, public hearing, and public comments prior to
the permit decision being made. Persons aggrieved, as defined in
6 VSA Section
4861, by the permit decision to
issue or re-issue a General Permit may appeal the permit decision to
the environmental court within 30 days of the date of the effective
date of the General Permit.
2. Appeals to the environmental
court under this subsection are governed by Environmental Court
Rules.
3. Notices of
appeal received by the Secretary shall have noted thereon by the
Secretary the date on which it was received, and the Secretary shall
transmit the notice of appeal to the clerk of the environmental
court.
B.
Permit Decisions that a Small Farm Operation is Required to Apply for
and Obtain an Individual Animal Waste Permit
1. When the Secretary determines,
after notice and opportunity by the farm operator to be heard, that a
Small Farm Operation is required to obtain an Individual Animal Waste
Permit, the operator shall be sent a written decision which shall
include, among other things, a statement of the right of the operator
to appeal the Secretary's decision to the environmental
court.
2. Appeals to the
environmental court under this subsection are governed by
Environmental Court Rules.
3. Notices of appeal received by
the Secretary shall have noted thereon by the Secretary the date on
which it was received, and the Secretary shall transmit the notice of
appeal to the clerk of the environmental court.
C. Rulings that a Medium Farm
Operation is Required to Apply for and Obtain an Individual Animal
Waste Permit
1. When the Secretary
determines, after notice and opportunity by the farm operator to be
heard, that a Medium Farm Operation is required to obtain an
Individual Animal Waste Permit, the operator shall be sent a written
decision which shall include, among other things, a statement of the
right of the operator to appeal the Secretary's decision to the
environmental court.
2.
Appeals to the environmental court under this subsection are governed
by Environmental Court Rules.
3. Notices of appeal received by
the Secretary shall have noted thereon by the Secretary the date on
which it was received, and the Secretary shall transmit the notice of
appeal to the clerk of the environmental court.
D. Rulings Denying an Application
by a MFO to Obtain an Individual Animal Waste Permit
1. When the Secretary determines
after hearing, that coverage of a MFO under a General Permit is
adequate to meet the purposes of subchapter 5 of chapter 215 of 6
V.S.A., and that coverage of a MFO under an Individual Permit is
inadequate to meet the purposes of subchapter 5 of chapter 215 of 6
V.S.A., the Secretary may deny the application of the MFO to be
covered under an Individual Animal Waste Permit. The Secretary's
decision shall be in writing and contain the reasons for the
decision. The decision shall also contain, among other things, a
statement of the right of the operator to appeal the Secretary's
ruling to the environmental court.
2. Appeals to the environmental
court under this subsection are governed by Environmental Court
Rules.
3. Notices of
appeal received by the Secretary shall have noted thereon by the
Secretary the date on which it was received, and the Secretary shall
transmit the notice of appeal to the clerk of the environmental
court.
E. A
person aggrieved by a final ruling of the Secretary on an application
for coverage under a General Permit adopted pursuant to this section
may appeal to the environmental court; provided, however, that the
appeal shall be limited in scope to whether the medium farm complies
with the terms and conditions of the General Permit.
APPENDICES:
Appendix A: Notice of Intent to Comply
Appendix B: Notice of Termination
Appendix C: Incident Report
Appendix D: Annual Compliance Report
Appendix E: Notice of Transfer of
Operation/Ownership
Appendix F: Nutrient Management Report Form6 V.S.A.
Chapter 215, Subchapter 5, Section 4858(b) and
6
V.S.A. Subchapter 1(a) (10)
