5 Colo. Code Regs. § 1001-4, pt. C
Background
This Statement of Basis, Specific Statutory Authority, and Purpose complies with the requirements of the Colorado Administrative Procedures Act, Section 24-4-103(4), C.R.S. and the Colorado Air Pollution Prevention and Control Act, Sections 25-7-110 and 25-7-110.5, C.R.S.
Basis
The purpose of this rule revision is to implement Section 25-7-138, C.R.S., which was approved by the electorate on November 3, 1998 and requires the Air Quality Control Commission to promulgate regulations concerning odorous gases and odor emissions from housed commercial swine feeding operations. The rule revisions affect new and existing housed commercial swine feeding operations, including anaerobic process wastewater vessels and impoundments, aerobic impoundments, land waste application sites, and waste impoundments, and require these sources to use technologies to minimize off-site odor emissions from all aspects of housed commercial swine feeding operations, and enforcement provisions.
Authority
The authority for this regulation is contained in the Colorado Air Pollution Prevention and Control Act ("Colorado Act"), Section 25-7-138, C.R.S. Additional authority to promulgate emission control regulations for housed commercial swine feeding operations is set out in Section 25-7-109(8), C.R.S.
The specific authority to require a construction permit, or "permit to operate", for housed commercial swine feeding operations is set out at Section 25-7-114.2, C.R.S. Such operations are no longer exempt from regulation pursuant to Section 25-7-109(8), C.R.S. The authority to charge a permit processing fee of fifty dollars ($50.00) per hour is set out at Section 25-7-114.7(2)(a)(III), C.R.S.
The specific authority to promulgate regulations concerning permit applications and procedures to terminate, modify, or revoke or reissue permits is set out at Section 25-7-114.4, C.R.S.
The specific authority to designate which permit applications warrant public comment, and which do not, and the procedures applicable to such public comment, are set out at Section 25-7-114.5, C.R.S.
The statutory authority to provide for public comment on applications for new operations is set out at Section 25-7-106(2), C.R.S. But the process for public comment on the application and on the Division's preliminary analysis set out in Section 25-7-114.5(5), C.R.S., cannot reasonably be applied to existing operations because there is insufficient time to allow for such comments prior to the issuance of permits on July 1, 1999, as contemplated in statute. For existing operations the process of public comment allows for comment on the permit applications and not the draft permits. Such procedure is promulgated under the Commission's general authority to receive comments before taking agency action, and on its authority under Section 25-7-106(2), C.R.S.
Purpose
The citizens of Colorado have approved an amendment to the Colorado Act requiring the Commission to develop regulations to minimize odor emissions from housed commercial swine feeding operations. The purpose of the regulations is to minimize odor emissions from affected sources to the greatest extent practicable. The Commission finds that the regulatory revisions contained in Regulation Number 2, Part B are necessary to minimize odor emissions from housed commercial swine feeding operations in the State of Colorado.
The regulation requires housed commercial swine feeding operations to employ technology to minimize to the greatest extent practicable off-site odor emissions from all aspects of their operations.
The Commission concludes that the adoption of these regulatory revisions is an appropriate step to minimize odor emissions from housed commercial swine feeding operations.
Applicability
A party has stated that the Commission should consider a de minimis exemption for sources with no odor impact on receptors due to distance of operations from permanent receptor (3,000 feet away). The Commission disagrees that the text of Amendment 14 allows de minimis exemptions to the cover requirement for anaerobic impoundments. Amendment 14 requires that anaerobic process wastewater vessels and impoundments be covered so as to minimize the emission of odorous gases to the "greatest extent practicable;" it does not tie this requirement to "off-site" emissions and does not provide for exceptions if neighbors do not live within a specified distance of the operation.
To the extent that parties assert that distance from receptors should exclude or excuse them from having to comply with technology or odor standards, the Commission has determined that Amendment 14 establishes a requirement to minimize odorous gases to the atmosphere from anaerobic process wastewater vessels and impoundments and aerobic impoundments and a technology standard at the property line for all aspects of the operations.
Definitions
The Commission did not define any terms that are otherwise defined in the Common Provisions. The Commission has attempted to ensure that definitions common to the Water Quality Control Commission's regulation (site regulation) and the Commission's regulation concerning housed commercial swine feeding operations are consistent.
The regulation includes definitions for several terms also defined in the statute. The statutory definitions of "aerobic", "anaerobic", "housed commercial swine feeding operation", and "housed swine feeding operation" appear verbatim in the regulation. The Commission clarified certain statutory definitions by defining terms used within the statutory definitions of "aerobic" and "housed commercial swine feeding operation."
The phrase "capable of housing" is defined and clarified to refer to the combined maximum capacities of individual housing units. The Commission intends this capacity to be based on the sum of the weights of swine anticipated to be present in all housing units at any one time, e.g., based on the business plan for the operation. That is, the capacity determination is based on full use of existing physical facilities,
consistent with standard industry practices aimed at providing a continuous supply of marketable hogs. If the owner demonstrates that standard practice results in swine at a variety of weights being present at any one time, the combined total of those various weights at the time of maximum utilization is to be used. The Commission does not believe that the proposal to allow a determination that an operation may be excluded from the definition, based on a commitment not to house more than a specified weight, is consistent with the statutory language, which is based on what an operation is "capable of housing", not on actual operations that may be at a lower level.
The definition includes default values to correlate the statutory 800,000 pounds threshold with different size categories of swine. However, the definition also allows the owner of an operation to provide specific information that demonstrates the appropriateness of an alternative capacity calculation for a particular facility. The Commission intends these elements of the definition to provide predictability and ease of application in most circumstances, while also providing flexibility to address any unique circumstances.
The regulation defines the phrase "under common or affiliated ownership or management" which is used in the definition of "housed commercial swine feeding operation" , by focusing on majority ownership or actual or effective control of the management of those aspects of an operation related to swine production or swine waste management. The Commission does not intend that mere similarity of practices, such as utilizing the same university feeding recommendations or local veterinarian or the same feed manufacturer alone evidence "effective control of the management" of operations. Moreover, limited cooperative efforts, such as the participation in a common marketing organization or a commitment by multiple producers to meet common product standards (e.g., for organic pork) alone, without more extensive control of other aspects of swine production or waste management, would not constitute "effective control of the management" of an operation, so long as no entity has the ability to require such participation. The Commission anticipates that application of this definition will require the Division to exercise its judgment on a case-by-case basis to determine what circumstances do or do not evidence "effective control" , e.g., based on actual decision-making authority or dominant market position. All possible circumstances and arrangements cannot be anticipated in this regulation.
There were issues concerning the appropriate application of the housed commercial swine feeding operation definition in one specific type of arrangement: where a contract finisher would not meet the definition of "common or affiliated ownership or management" except that it does not own in total the swine that it finishes; instead, it finishes swine pursuant to a contract with an agricultural cooperative or corporation. The Commission believes that new operations that are involved in this type of arrangement fall under the statutory "common or affiliated ownership or management". The Commission believes that new operations that are involved in this type of arrangement fall under the statutory "common or affiliated ownership or management" language and that, if they also meet one of the tests in the definition relating to water quality or air quality impacts, excluding those operations would be inconsistent with the requirements of the statute. The interdependency among the various phases of swine production --farrowing, finishing and processing -- for these arrangements does not appear to be substantially different from that associated with a single corporate operation.
Many of the existing operations, however, are family farms that have added housed swine facilities within the last several years pursuant to a contract with an agricultural cooperative. The Commission recognizes that these cooperative contract operations face a substantial financial and management challenge to come into compliance with the requirements of Amendment 14, especially considering the cumulative air and water quality requirements. Therefore, the Commission has provided a ten year deferral period for the existing contract producers that meet the definition of a housed commercial swine feeding operation. During this ten year deferral period, the Commission directs the Division to carefully monitor the eight to ten existing operations to determine whether these operations should be regulated under this rule due to their adverse impacts on air quality. The Division shall report back to the Commission at the end of five years to recommend whether the deferral should be made permanent. The deferral does not apply to operations that have been designated under local zoning or land use regulations as commercial operations. The Commission is not providing the ten year deferral to new operations that commenced construction on or after November 3, 1998 and that are contract producers for agricultural cooperatives that meet the definition of housed commercial swine feeding operation. This is done, in part, to avert the potential for large vertically integrated swine producers to reorganize in order to rely upon contract producers to produce large numbers of swine in a relatively small area with the attendant risks to air quality that might flow from such agreements.
The Commission has defined the phrase "integrated in any way" as referring to a potential measurable cumulative impact on state waters or air quality in any one location. The Commission intends that this potential is to be determined based on the location of the facilities, not on operational controls. If this phrase were interpreted to refer solely to integration of business operations, it would be duplicative of the phrase "common or affiliated ownership or management," which would render the other phrases in the second half of the sentence in the statutory definition of "housed commercial swine feeding operations" irrelevant.
The statute defined "process wastewater" and the Water Quality Control Commission revised that definition to be "swine feeding process wastewater", since the water discharge permit regulation as a whole applies to many other types of process wastewater. To be consistent, the Commission has likewise used the term "swine feeding process wastewater." The Water Quality Control Commission modified the definition to clarify the intent that it apply to wastewater resulting from the swine feeding and wastewater management aspects of a housed commercial swine feeding operation.
In addition to the statutorily defined terms and the terms to clarify those terms, the Commission included several additional definitions to provide clarity regarding implementation of this new regulatory program. The Commission added definitions of "new" and "existing" housed commercial swine feeding operations as is consistent with the statute. The definitions hinge on whether the owner or operator "commenced construction" by March 30, 1999, the anticipated effective date of this amendment to Regulation Number 2. Typically, the date selected for existing sources in air quality regulations is either the date of the proposal of the regulation or the effective date of the regulation. The Commission chose the effective date of the regulation. The phrase "commence construction" is defined in the Commission's Common Provisions. New and existing operations are to be distinguished from the definition of "new land application sites" and "new waste impoundments" concerning the statutory setback requirements.
The Commission included a definition of "aquifer", since the term is used in the statute and the regulation. This definition tracks the definition of this term in Colorado statutes for ground water management.
The Commission included a definition of the term "cover" to clarify the statutory requirement that all anaerobic process wastewater vessels and impoundments, including but not limited to treatment and storage lagoons, shall be covered so as to capture, recover, incinerate, or otherwise manage odorous gases to minimize, to the greatest extent practicable, the emission of such gases to the atmosphere (Sections 25-7-138(1) and (2), C.R.S.). The Commission has defined a cover to mean a device, technology, or material that encompasses the entire surface area of the vessels or impoundments. The cover must encompass the entire surface area so as to properly capture, recover, incinerate, or otherwise manage odorous gases. The owner or operator must minimize odorous gases emitted from the vessels or impoundments, in addition to minimizing off-site odor emissions from other operations and activities at the housed commercial swine feeding operation.
The Commission has defined "land application" to clarify that land application includes the applying of waste for purposes of treatment or storage. The definitions generally track the Water Quality Control Commission's existing definition of land application with a few modifications. The Commission defined "manure", "open animal feeding operation", "waste impoundment", and "watershed" to be consistent with the Water Quality Control Commission's definitions of those terms. A party requested that the Commission exclude "evaporation ponds" from the definition of waste impoundment. The Commission determined that since evaporation ponds are either anaerobic or aerobic and can be considered impoundments, the statute intended to include evaporation ponds in the requirements for anaerobic and aerobic impoundments.
The Commission defined "permit to operate" to clarify that it is a construction permit. The phrase "process wastewater vessel" was defined because it is used in the statute and to clarify the difference between such vessels and waste impoundments. The Commission intends the definitions of waste impoundment and process wastewater vessel to encompass all manure and wastewater treatment and storage devices, technologies, or methods used by housed commercial swine feeding operations.
One of the parties to the rulemaking expressed concern that the definitions of "process wastewater vessel" and "waste impoundments" may not capture all waste storage and treatment facilities. The Commission intends the definitions of "process wastewater vessel" and "waste impoundment" to include all types of storage and treatment facilities at such affected operations.
The Commission defined "utilizes air or oxygen" because it is the key component of the statutory definition of "aerobic". There are two parts to the definition:
The determination of an aerobic lagoon includes the factors of lagoon surface area, depth of the lagoon, distribution of influent, loading rate of the influent, and maintenance to maximize the performance of the lagoon. The influent loading rate has to match the lagoon aeration potential (surface area and/or supplemental aeration). In calculating the organic oxygen demand, we will assume a reoxygenation rate of 50 pounds of biological oxygen demand (BOD) per acre per day of surface area as a guide.
Standards
Sections III.A. and III.B. of the regulation establish odor standards that must be met at or beyond the property boundary, and at occupied dwellings, schools, places of business, and municipal boundaries.
The dilution standard of 7:1 established in Section III.A. applies at and beyond the operation boundary, and may be monitored by the owner or operator within the property boundaries of the operation. The dilution standard of 2:1 established in III.B. applies at any receptor. In implementing III.B., the Division should not enter private property for the purpose of applying the dilution standard of 2:1 without permission from someone with actual or apparent control over such property. The Commission has determined that a "place of business" means the fixed location for the business and the immediate area around the fixed location. The Commission understands that odor easements have been and may be obtained by operations. The property boundary of any operation shall include the legal property boundary of the parcels owned by the housed commercial swine feeding operation and any easements on adjacent properties that have been granted to the operation.
The Commission has required the dilution standard of 7:1 at the property boundary based on the experience of the Division's inspectors as well as testimony of some of the affected operations that this standard is reasonably attainable. The Commission believes that a property boundary standard of 2:1 is probably not a practicable standard for minimizing odors at the property boundary. But, that standard should apply to the nearest receptor because of the statutory requirement of minimizing off-site odor emissions to the greatest extent practicable. Some parties expressed concern that these standards are inappropriate because the standards are more stringent than the standard for urban areas (residential and industrial). In general, such operations are located in rural areas. The Commission interprets Amendment 14 to require a rigorous regulatory scheme for the control of odors from housed commercial swine feeding operations and to substantially eliminate the nuisance nature of these odors (see Section 1. Amendment 14). Thus, a protective receptor standard is deemed appropriate.
The Commission determined that the standards of 15:1 and 127:1 at the property boundary are not sufficient to meet the statutory standard. Amendment 14 specifically states that housed commercial swine feeding operations must minimize odor emissions to the greatest extent practicable which the
Commission interprets as a more stringent requirement than the existing statutory authority for Regulation Number 2's odor standards for other sources. Amendment 14 does not provide the Commission with the authority to impose comparable odor standards for any other agricultural sources in Colorado other than housed commercial swine feeding operations.
The standards must be applied in conjunction with the requirement to employ technology to minimize to the greatest extent practicable off-site odor emissions from all aspects of the operations of a housed commercial swine feeding operation. The Division may determine that an operation is not employing the appropriate technology even if the operation can demonstrate compliance with the odor concentration standards and will then incorporate such technology in the permit or odor management plan.
The Commission understands that measuring odor concentration is only one of the various aspects of detecting odor. But the Commission selected odor concentration standards because the Division has experience with implementing and enforcing this standard and this form of odor measurement is generally accepted in the field of odor measurement.
The Commission elected not to rely upon a complaint-based program, because the statute does not appear to so limit the Commission or the Division in implementing and enforcing the statute. In addition, each individual is entitled to the protection of the standards and enforcement should not depend on the number or verification of complaints. The Commission determined that the statute requires, at a minimum, the property boundary as the appropriate place to apply the standard.
Several parties argued for a safe harbor provision in the regulation, which would preclude an enforcement action for operating in excess of the odor concentration standards in the event that an operation successfully asserted that it was employing all technologies to minimize to the greatest extent practicable odor emissions. The Commission has determined that this is not a likely scenario. Like all other sources subject to air quality regulation, standards independent of technology requirements are established and sources must determine for themselves how to comply. This is the reason that the Commission has chosen to adopt a flexible approach to the specific odor control requirements. At time such compliance may require modification of the operations. In the unlikely event that the suggested scenario occurs in the future, the Commission can entertain an appropriate revision to the regulation.
C.A.R.E., a party to the hearing, refers the Commission to a process established in Northeast Metro Denver for the voluntary control of odors; indeed, in Northeast Metro Denver the Division and several industries have entered into a memorandum of understanding that allows the Division to forego its enforcement authority if, upon receiving one or more odor complaints, the offending industry agrees to and does implement a prompt odor abatement project that must include, among other things, a citizen input component. The Division has stated that it is a process that has worked well and could be considered in the future for housed commercial swine feeding operations outside of the regulatory scheme and in the Division's enforcement discretion.
Process Wastewater Vessels and Impoundments
The statute requires affected operations to cover existing, new, and expanded anaerobic process wastewater vessels and impoundments so as to capture, recover, incinerate, or otherwise manage odorous gases to minimize, to the greatest extent practicable, the emission of such gases to the atmosphere. The cover must encompass the entire surface area of the vessel or impoundment and there must be no uncontrolled vents.
The Commission has included several approved covers that operations may employ. Covers were deemed approved if the technology was generally accepted by other states and in university studies to effectively minimize the emission of odorous gases. Alternative covers may be employed if the owner or operator can demonstrate that the alternative is of comparable effectiveness to the approved covers. Such a demonstration can include studies or research from universities or other states concerning the effectiveness of the device or technology. Alternative covers can include synthetic covers of variable densities and thicknesses and aerobic covers less than three feet in depth if the owner or operator can make the necessary demonstrations.
Experimental covers may be employed by operations and the operation must demonstrate that the experimental cover is as effective in minimizing the emission of odorous gases as approved covers within one hundred and eighty (180) days of the issuance of the permit to operate. This provides operations a period of time to install experimental covers and test the covers for effectiveness. Certain parties requested that the Commission consider defining an aerobic cover such that it meets the off-site odor emission standard. Again, the requirement to cover anaerobic process wastewater vessels and impoundments is not linked to off-site odor emissions, but to minimizing the emission of odorous gases to the atmosphere. The Commission believes that biocovers are of limited effectiveness and has required that biocovers must cover the entire surface area of the vessel or impoundment.
Several parties have stated that the cover requirement should be applicable only if there are odors from the process in violation of the odor concentration standards, because the covers are expensive and unnecessary if the process generates no odors. Parties believe that the Commission should allow technologies or systems that effectively manage odor to be used if they already meet odor concentration standard. The Commission interprets the statute to require a cover if an anaerobic process wastewater vessel or impoundment is utilized and the requirement does not appear to be connected to any particular standard, other than the requirement to minimize to the greatest extent practicable the emission of odorous gases. Anaerobic treatment systems are commonly used today and the Division believes that the statute specifically covers both storage and treatment impoundments in the plain language of the cover requirement. In addition, the requirement to cover anaerobic process wastewater vessels and impoundments is not tied to the requirement to minimize off-site odor emissions. Instead, operators are required to minimize to the greatest extent practicable the emission of odorous gases to the atmosphere.
Other parties requested that the Commission not prescribe technologies to meet the cover requirement, but be as flexible as possible in allowing alternative technologies to minimize odor emissions and meet the odor standards. The Commission believes that in allowing for alternative and experimental covers it is providing the necessary flexibility for odor control in a manner that is consistent with the statute.
Aerobic impoundments must be operated to ensure maintenance of aerobic conditions or to otherwise minimize the emission of odorous gases to the atmosphere. The Commission has defined "aerobic" to be consistent with the statutory definition and defined "utilizes air or oxygen" as maintaining 1 ppm of dissolved oxygen throughout the column (an accepted standard for municipal wastewater impoundments) or a waste treatment method that is designed to meet the oxygen demand of the waste loading (as recommended by the Water Quality Control Division).
Air Quality Setback Measurements and Waivers
The Commission included the statutory requirements concerning one mile air quality setbacks for new land waste application sites and new waste impoundments. The statute defines "new" for this section to mean in use as of June 1, 1998. The statute contemplates allowance for waivers of these setback requirements and the Commission has included procedures and requirements for obtaining waivers in the regulation. Waivers must be recorded with the county clerk of the county where the affected property is located.
Parties have argued that the Commission should consider any new land application sites that are acquired as a means to comply with this regulation as existing land application sites. Whether a land application site or waste impoundment is considered "new" is driven by statutory dates. Consequently,
whether a housed commercial swine feeding operation is new or existing under this regulation is irrelevant to consideration of the air quality setback requirement for land application sites and waste impoundments.
Permit to Operate
The Commission has determined that to effectively enforce the provisions of Section 25-7-138, C.R.S. and Part B of Regulation Number 2, a permit to operate is required. A permit to operate is a construction permit. The Commission has statutory authority to require construction permits for such sources pursuant to Section 25-7-114.2, C.R.S.
The statute requires existing sources to be in compliance with the Commission's regulation and with the statutory technology requirements by July 1, 1999. In order to comply with this ambitious deadline, the Commission established a permitting structure that requires submission of initial permit applications by existing facilities by April 15, 1999, and contemplates issuance of the permits for existing sources by July 1, 1999. Although the April 15, 1999 deadline is a little more than two weeks after the legal effective date of these new regulatory provisions, the Commission understands that the application forms for existing facilities will be available shortly after the Commission takes final action in this rulemaking.
Affected operations must submit an odor management plan along with the permit application on April 15, 1999 pursuant to the Commission's authority in Section 25-7-138(3), C.R.S. The odor management plan is an enforceable part of the permit to operate and shall include technologies and work practices not required as conditions in the permit.
The Commission has included in the regulation an opportunity for public review and comment for the permit applications and odor management plans. For existing operations, the public review and comment period occurs from April 15, 1999 to May 15, 1999. Existing operations are required to submit a copy of the application and odor management plan to the Division, the county clerk's office and local or regional health department for the county(ies) in which the operation is located in by April 15, 1999. Parties to the hearing have requested that the Commission allow for public hearings. Given the tight time frame to consider and issue these permits and given the significant resource demands of preparing for and conducting such hearings, the Commission has determined that a public hearing opportunity on each permit cannot be accommodated.
The Commission has determined that the annual fee of $0.20 per swine to offset the costs of administering the housed commercial swine feeding operation program for the Water Quality Control Division included in the amendment to Section 25-8-501.1, C.R.S. was not intended to offset the costs of the Division's costs of administering the program. Operations are required to pay a permit processing fee of $50.00 per hour of a permit engineer's time to process the permit and a $100.00 application fee. The additional costs of administering the program must be funded separately.
The regulation also includes requirements concerning modification of permits to operate if the operation is modified pursuant to the Commission's authority in Section 25-7-114.2, C.R.S., including increasing the number of animals at the operation. An operation shall be permitted to operate with a maximum number of animals. If the operation wishes to increase the maximum number of animals, it must request a permit modification. The sources of odor at a housed commercial swine feeding operation are directly linked to the number of animals at the operation. As the number of animals increase, the amount of animal waste increases inside the confinement structure, being loaded into storage and treatment vessels and impoundments, and being disposed of through land application, composting, etc. Therefore, the permit conditions and odor management plan may need to be revised if the number of animals at an operation increases. In addition, if the type of feed for the animals changes then a permit modification is necessary. Experts in the industry agree that the type of feed provided the animals can increase or decrease the amount of waste generated at an operation and, therefore, modify the waste management needs of an affected operation.
An operation that operates an incinerator or combustor must obtain a separate construction permit for those sources and is subject to any other applicable Commission regulations.
Several parties to the hearing recommended that the Commission require that affected operations submit Air Pollutant Emission Notices and pay the necessary air pollutant emission fees. The Commission considered requiring APENs for odor emissions from these operations. The only reportable emission related to odor is hydrogen sulfide, which is a criteria pollutant. Hydrogen sulfide is emitted primarily from the anaerobic processes. In order to determine the amount of hydrogen sulfide being emitted, the operation would have to use a Jerome meter, which is very costly. According to other states, the typical hydrogen sulfide emissions from these sources amount to about 2 to 8 tons per year. The Commission has elected not to require APENs or the related fees at this time, but may consider this issue if this regulation is revised in the future.
Specific Odor Control Requirements
There are several primary sources of odor at a housed commercial swine feeding operation: confinement structures, manure storage and treatment, waste disposal including land application, and carcass disposal. The Commission intends the specific odor control requirements in Section IX., Part B, of Regulation Number 2 to be included in the odor management plan.
The Commission has divided the specific odor control requirements into mandatory and recommended requirements. The mandatory requirements are limited to those work practices and technologies that appear to be effective and commonly utilized to minimize odor emissions throughout the industry. Rather than requiring numerous prescriptive technologies and potentially limit the use of new and innovative technologies, the Commission has allowed flexibility for sources. If an operation cannot demonstrate or maintain compliance with the mandatory and source-selected work practices and technologies or the Division believes that an operation will require additional work practices or technologies during the permit processing period, then the operation may be required to employ additional work practices and technologies including those in the recommended technologies.
Odor management plans must include the applicable mandatory requirements as well as any additional work practices or technologies necessary so that the operation employs technology to minimize to the greatest extent practicable off-site odor emissions from all aspects of its operations, including but not limited to odor from the operation's swine confinement structures, manure and composting storage sites, animal carcass disposal, and odor and aerosol drift from land application equipment and sites.
Parties to the hearing raised several issues concerning mandatory land application requirements, including issues concerning restrictions on when and how the waste is land applied. Land application of process wastewater raises a substantial possibility of significant odor emissions when the application is to frozen, saturated or snow-covered ground or the waste is allowed to pond on the surface. Increased volatilization and evaporation cause greater emissions under these conditions. In addition, untreated process wastewater often results in increased odors compared to pretreated process wastewater. Accordingly, the regulation prohibits land application when the ground is saturated or snow covered or ponding has occurred and requires pretreatment of process wastewater unless the land application is accomplished through injection of the wastewater. Land application of solids and sludges requires the material be pretreated and injected or incorporated into the soil within six hours of application.
The National Pork Producers Council recommends that land application not occur on weekends or holidays to minimize the nuisance impact of odors to neighbors when they are most likely to be home and/or in and around their home. The Commission adopted this practice as a mandatory requirement. Also, land application of process wastewater should only occur when wind conditions are such that off-site transport of the odorous wastewater is minimized. Low pressure sprays are required, unless a waiver is granted, to minimize the off-site transfer of fine mist spray. A waiver for land application on holidays or weekends is allowed if an emergency occurs (i.e., overflow of impoundments).
Another party requested that the Commission require low trajectory systems "utilizing drop nozzles" to prevent evaporation and the low trajectory systems should be two to three feet above ground. On the other side, a party requested that the Commission not specify the pressure if the owner or operator can demonstrate compliance with the standard using a different pressure. The Commission intends "system operating pressure" to include the nozzle discharge and the requirement to reduce the fine spray during land application. The Commission does not want to mandate "drop nozzles" when the technology may change and some other technology may be as or more effective. The Commission did not clarify the height of the trajectory system in the regulation, but it will be discussed in the Division's guidance document and particular height will be included in the permit to operate for affected operations. The Commission allows for a waiver from the requirement for a specific pressure of twenty (20) psi if the operation can demonstrate compliance using a different system pressure.
Housed commercial swine feeding operations often contract with neighboring farmers for land applying the process wastewater and manure for fertilizing crops. The regulation contemplates such an agreement. The owner or operator of the housed commercial swine feeding operation is responsible for assuring that the requirements of this regulation are met on those lands owned by a third party. This includes, but is not limited to, the setback requirements and the land application requirements.
The Division may require specific technologies and work practices in addition to the mandatory technologies and work practices be included in a permit to operate to minimize off-site odor emissions to the greatest extent practicable for both new and existing operations. Such recommended requirements could include, but not be limited to, add-on control equipment for swine confinement structures, composting storage sites, and carcass disposal vessels. These additional recommended requirements may be added as permit conditions if there is evidence of exceedences of the odor standard.
Testing, Recordkeeping, Monitoring, and Reporting Requirements
The regulation includes testing, recordkeeping, monitoring, and reporting requirements to aid in determining whether an operation is in compliance with the odor concentration standards, has employed the necessary technology and work practices, and is properly maintaining the necessary technology. An operation must conduct initial testing and semi-annual testing. An operation must modify its permit to operate and/or odor management plan as necessary if it cannot demonstrate compliance with the odor concentration standards.
Environmental Leadership Program
The regulation includes the first regulatory provisions implementing the Environmental Leadership Program. This program is intended to apply only to housed commercial swine feeding operations and not other third parties associated with such operations, for example, manufacturers, suppliers, and consultants. The Commission intends for the Environmental Leadership Program of the Colorado Department of Public Health and Environment to implement this program with input from the Division. Any operation approved as a leader, must still comply with the substantive requirements of Regulation Number 2, including the cover requirement for anaerobic process wastewater vessels and impoundments if applicable.
Coordination with Water Quality Control Division
Amendment 14 establishes both water quality and air quality protection requirements. In developing the air quality program for housed commercial swine feeding operations, the Commission attempted to coordinate these requirements to the maximum degree possible with the new requirements being developed by the Water Quality Control Commission. Such coordination will best serve the interests of the regulated community, the general public, and the implementing agencies. In particular, the Commission adopted definitions that are also proposed as part of the new water quality regulations for housed commercial swine feeding operations and established application deadlines consistent with those proposed for water quality, to maximize the coordination of permit application review and permit issuance. In addition, the Division and the Water Quality Control Division will be issuing multi-media permits to these sources. The two parts to the permits are issued under separate statutory authority and there is no requirement that the air quality permit be renewed every five years as is required for the water quality permit.
Economic Issues
Concern was expressed by parties to the hearing regarding the costs of complying with the new requirements established for housed commercial swine feeding operations. A wide range of potential cost estimates was provided. The Commission attempted to adopt regulatory requirements that are as economically reasonable as possible, consistent with the specific requirements of Amendment 14. Where the statute provided room for flexibility, the Commission included flexibility with respect to implementation of specific aspects of the program, to the degree that it believes is consistent with meeting the intent expressed in the legislative declaration of Amendment 14, and keeping in mind the need to establish a program that will be feasible for the Division to implement with the available resources. The Commission does not believe that the proposal from some parties to include a general waiver provision that would apply to all aspects of the housed commercial swine feeding operations program is appropriate, in view of the explicit intent and requirements of the statute.
Parties were divided over whether or not costs should be considered in determining what technologies should be required to meet the requirement to minimize to the greatest extent practicable odor emissions. The Commission chose to consider the comparative costs of technologies for the cover requirement and other various odor sources. Each technology meets the standard of minimizing emissions to the greatest extent practicable. Having adopted the technology requirements as meeting the operative standard, it is not the Commission's intent to excuse any operation from the requirement to employ such technology based on the economic burden or cost to the operation.
Enforcement Issues
The Commission has not included a requested "notice of intent to sue" provision in the regulation, with respect to the provision in Amendment 14 allowing civil actions for enforcement to be brought by any person who may be adversely affected by a housed commercial swine feeding operation. This statutory provision is self-implementing. As an administrative agency, the Commission is without authority to impose procedures related to the filing or conduct of district court actions.
The Commission notes that there is an understanding between the Division and local health agencies to coordinate the implementation and enforcement of the housed commercial swine feeding operation program to the greatest extent feasible in view of resources available to both state and local governments. The Commission does not believe it is necessary or appropriate to attempt to specify the details of this relationship in the regulation. But the Commission believes that such a cooperative effort will strengthen the efficiency and effectiveness of this program. In particular, the Commission encourages the Division to seek local health agency assistance in implementation efforts in the field, such as conducting inspections for purposes of compliance assurance or in response to site-specific complaints.
Federal Requirements
The rule revisions required by Section 25-7-138, C.R.S., are state-only regulations, are not required by the provisions of the federal act, and are otherwise more stringent than the requirements of the federal act. Such rule revisions have not been adopted for inclusion in the State Implementation Plan.
Determinations Required by Section 25-7-110.8, C.R.S.
Pursuant to Section 25-7-110.8, C.R.S., the Commission hereby determines that:
The regulations for housed commercial swine feeding operations are based on reasonably available, validated, reviewed, and sound scientific methodologies. all validated, reviewed, and sound scientific methodologies and information made available by interested parties have been considered.
Based on Evidence in the record, the Commission finds that the rule shall result in a demonstrable reduction in odor emissions from housed commercial swine feeding operations.
The Commission chose the regulatory alternative that complied with the requirements of Section 25-7-138, C.R.S., in the most cost-effective manner and in a manner that provides the regulated community flexibility.
The regulatory alternative selected by the Commission will maximize the air quality benefits pursuant to Section 25-7-138 in the most cost-effective manner.
COLORADO AIR QUALITY CONTROL COMMISSION
ADOPTED: February 19, 1999
Background
This Statement of Basis, Specific Statutory Authority, and Purpose complies with the requirements of the Colorado Administrative Procedures Act, Section 24-4-103(4), C.R.S. and the Colorado Air Pollution Prevention and Control Act, Sections 25-7-110 and 25-7-110.5, C.R.S.
Basis
Regulation Number 2, Part B contains odor standards, technology requirements for process wastewater vessels and impoundments, setback requirements for new land waste application sites or impoundments, and requirements for permitting, odor management plans, testing, recordkeeping, reporting and monitoring for housed commercial swine feeding operations. The purpose of this rule revision is to implement into the existing requirements of Regulation Number 2, Part B statutory revisions to Section 25-7-138, C.R.S., approved by the General Assembly through Senate Bill (SB) 06-114, Concerning the Expansion of Anaerobic Controls to Allow Additional Technologies to be used in the Operation of Housed Commercial Swine Feeding Operations, and Making an Appropriation in Connection Therewith , signed by the Governor on May 25, 2006 and summarized below. SB 06-114:
Cannot be detected at or beyond the property boundary after the odorous air has been diluted with seven volumes of odor-free air; and
Cannot be detected at any off-site receptor (defined as any occupied dwelling used as a primary dwelling or its curtilage, a public or private school, or a place of business) after the odorous air has been diluted with two volumes of odor-free air.
to the Department of Law for the fiscal year July 2006 - June 2007, for the implementation of the act.
Specific Statutory Authority
The authority for this regulation is contained in the Colorado Air Pollution Prevention and Control Act ("Colorado Act"), Section 25-7-138, C.R.S. Additional authority to promulgate emission control regulations for housed commercial swine feeding operations is set out in Section 25-7-109(8), C.R.S.
The above fee does not modify the Division's authority to assess permit processing fees, pursuant to Section 25-7-114.7(2)(a)(III), C.R.S.
Purpose
The General Assembly modified Section 25-7-138, C.R.S., to: allow all existing, new or expanded anaerobic process wastewater vessels and impoundments used in connection with a housed commercial swine feeding operation to be operated with technologies or practices that are as effective as covers at minimizing odor from the operation, to capture, recover, incinerate, or otherwise manage odorous gases to minimize, to the greatest extent practicable, the emission of such gases into the atmosphere; require a housed commercial swine feeding operation to submit to the Division information sufficient to demonstrate that the technologies or practices used are as effective as covers at minimizing odor from the operation; require a housed commercial swine feeding operation to manage odor emissions such that odor emissions from the operation cannot be detected at or beyond the property boundary after the odorous air has been diluted with seven volumes of odor-free air and at any off-site receptor (defined as any occupied dwelling used as a primary dwelling or its curtilage, a public or private school, or a place of business) after the odorous air has been diluted with two volumes of odor-free air; allow the Division to delegate enforcement of the requirements of Regulation Number 2, Part B to any county or regional department of health; allow the Division to assess an annual fee, not to exceed seven cents per animal based on the working capacity of each housed commercial swine feeding operation to offset the costs of enforcement, compliance and regulation of Regulation Number 2, Part B; and, establish a fund for the purposes of enforcement, compliance and regulation, including reimbursement to local and regional health departments for assistance in of enforcement activities.
The Commission finds that the regulatory revisions contained in Regulation Number 2, Part B are necessary to minimize odor emissions from housed commercial swine feeding operations in the State of Colorado. The Commission concludes that the adoption of these regulatory revisions is an appropriate step to minimize odor emissions from housed commercial swine feeding operations.
Summary of Provisions
Applicability
The Commission concludes that applicability of this regulation has not been modified pursuant to SB 06-114.
Definitions
The Commission added three new definitions to Regulation Number 2, Part B., Section II. - Division; receptor and working capacity. The Commission clarified the definition of "Division" to specifically designate the Division as the Division of Administration of the Colorado Department of Public Health and Environment as it pertains to implementation of Regulation Number 2, Part B and not as defined in the Commission's Common Provisions Regulation. The term "receptor" was deleted from Section III.B.1., and added verbatim in the definition section of the regulation because the term was deemed more appropriate in the definition section of the regulation. To help clarify how annual fees are determined by the Division, the Commission incorporated the definition of "working capacity" from SB 06-114(5).
Odor Standards
The Commission has determined that SB 06-114 establishes a requirement to minimize odorous gases to the atmosphere from anaerobic process wastewater vessels and impoundments such that odor emissions from the operation cannot be detected at or beyond the property boundary after the odorous air has been diluted with seven volumes of odor-free air and at any off-site receptor after the odorous air has been diluted with two volumes of odor-free air. The Commission has determined that this requirement is met by the existing regulatory requirement in Sections III.A. and III.B of Regulation Number 2, Part B.
The Commission established the dilution standard of 7:1 at the property boundary based on the experience of the Air Pollution Control Division's inspectors as well as testimony of some of the affected operations that this standard is reasonably attainable during the original rulemaking process held in 1999. At that time, the Commission held that a property boundary standard of 2:1 is not a practicable standard for minimizing odors at the property boundary, but does maintain a higher standard for minimizing off-site odor emissions to the greatest extent practicable and should therefore apply to off-site receptors. SB 06-114 defines a receptor as any occupied dwelling used as a primary dwelling or its curtilage, a public or private school, or a place of business. As originally determined during the 1999 rulemaking, the Commission still contends that a "place of business" means the fixed location for the business and the immediate area around the fixed location.
Process Wastewater Vessels and Impoundments
The Commission incorporated the requirement that all new, expanded, or existing anaerobic process wastewater vessels and impoundments constructed or under construction for use in connection with a housed commercial swine feeding operation shall be covered or operated with technologies or practices that are as effective as covers at minimizing odor from the operation. As required by SB 06-114, housed commercial swine feeding operations must submit to the Division information sufficient to demonstrate that the technologies or practices used are as effective as covers at minimizing the odor from the operation. The Commission determined that this information, at a minimum, should include science-based technical information on how odor will be reduced to the greatest extent practicable using olfactometry, scentometry and/or some other method(s) of verification as approved by the Division.
Permit to Operate & Modification or Reopening of a Permit to Operate
The Commission has determined this section of the regulation was not modified pursuant to SB 06-114. Operations are still required to pay a permit-processing fee pursuant to Section 25-7-114.7, C.R.S.
The Commission did, however, revise Sections VI.A.3.c. and VIII.A.4., by removing the outdated fee of $50.00 per hour for permit processing and odor management plan revisions and referencing the amounts and limitations specified in statute (25-7-114.7, C.R.S.). This revision will keep permit-related fees aligned with statutory changes over time and eliminate the occurrence of these sections becoming outdated and in need of a regulatory revision(s).
Specific Odor Control Requirements
The Commission has determined this section of the regulation was not modified pursuant to SB 06-114, except as described above regarding technologies or practices that must be included in any odor management plan.
Testing, Recordkeeping, Monitoring, and Reporting Requirements
The Commission has determined this section of the regulation was not modified pursuant to SB 06-114.
Enforcement
The Commission added a new section on enforcement to the regulation pursuant to SB 06-114. The Commission notes that there is an understanding between the Division and local health agencies to coordinate the enforcement of the housed commercial swine feeding operation program to the greatest extent feasible in view of resources available to both state and local governments. The Commission does not believe it is necessary or appropriate to attempt to specify the details of this relationship in the regulation. But the Commission believes that such a cooperative effort will strengthen the efficiency and effectiveness of this program. In particular, the Commission encourages the Division to seek local health agency assistance in implementation efforts in the field, such as conducting inspections for purposes of compliance assurance or in response to site-specific complaints.
Annual Fee
The Commission added this as a new section to the regulation. In accordance with SB 06-114, the Division has the authority to assess and collect an annual fee not to exceed seven cents per animal based on the working capacity of the operation as set forth in Section 25-7-138(5), C.R.S. The Commission included this authority in the regulation by establishing an annual fee based on the working capacity of each housed commercial swine feeding operation covered by a separate permit. The Commission defined working capacity to mean the number of weaned swine that the housed commercial swine feeding operation is capable of housing at one time. The fee will be used to offset the costs of administering Regulation Number 2, Part B, including activities related to enforcement, inspections and complaint response. The Commission believes that imposing the fee based on weaned swine is consistent with the intent of the Colorado General Assembly during consideration and passage of SB 06-114, and comports with the standard agricultural industry practice of accounting for swine for regulatory purposes.
In addition, a fee based on weaned swine allows the Division to be consistent with the way fees are collected for water quality protection under the Water Quality Control Commission's Regulation Number 61, Discharge Permit System Regulations (i.e., sow and unweaned piglets are counted as one animal).
The Commission recognizes in Section XII.C. of Regulation Number 2, Part B., that inspections and complaint response to operations subject to the regulatory requirements of Part B of this regulation must be developed in coordination with the Division and applicable local health departments or other agents of the state as appropriate. Such cooperative agreements will ensure that proper resources and staffing will be available to enforce the requirements of Regulation Number 2, Part B.
Environmental Leadership Program
This section was renumbered from Section XI. to Section XIII. due to the addition of the enforcement and annual fee sections to the regulation.
Economic Issues
The Commission attempted to adopt regulatory requirements that are as economically reasonable as possible, consistent with the specific requirements of SB 06-114.
Federal Requirements
The rule revisions required by Section 25-7-138, C.R.S., are state-only regulations and are not required by the provisions of a federal act, and are, therefore, more stringent than federal requirements. Such rule revisions have not been adopted for inclusion in the Colorado State Implementation Plan.
Determinations Required by Section 25-7-110.8, C.R.S.
Pursuant to Section 25-7-110.8, C.R.S., the Commission hereby determines that the regulations for housed commercial swine feeding operations are based on reasonably available, validated, reviewed, and sound scientific methodologies. Based on evidence in the record, the Commission finds that the rule shall result in a demonstrable reduction in odor emissions from housed commercial swine feeding operations.
Further, these revisions will include any typographical and grammatical errors throughout the regulation.
COLORADO AIR QUALITY CONTROL COMMISSION
ADOPTED: December 14, 2006
Adoption of changes that address the Commission's 2006 orders associated with the adjudicatory hearing on Kasel Associates Industries, Inc. and that further clarify and revise Regulation Number 2, Part A.
Background
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Administrative Procedures Act, Section 24-4-103, C.R.S. and the Colorado Air Pollution Prevention and Control Act, Section 25-7-110.5, C.R.S.
Basis
On April 6, 2006, and later revised on and April 20, 2006, the Hearing Officer associated with the 2006 Kasel Associates' adjudicatory hearing, issued an order interpreting Regulation Number 2 to provide that the Division has the burden of proof in determining whether a source used "best practical treatment, maintenance, and control currently available... to maintain the lowest possible emission of odorous gases..." . The Commission herein intended to clarify and revise Regulation Number 2, Part A to address this and other issues.
Authority
Sections 25-7-105(1)(b) and 25-7-109, C.R.S. authorize the Commission to adopt emission control regulations, including emission control regulations relating to new stationary sources.
Purpose
The Metro Wastewater Reclamation District requested confirmation that domestic wastewater treatment facilities are subject to the provisions of Regulation Number 2, Part A. The term "manufacturing process" is used but not defined in Regulation Number 2, Part A. The term is, however, defined in Section I.G. of the Commission's Common Provisions. The Commission expressly confirms that wastewater treatment plants are subject to the terms, conditions and defenses of Regulation Number 2, Part A. The Commission finds that such facilities are, among things, an "operation or treatment involving chemical, industrial, or manufacturing factors," and a "method or form of manufacturing or processing that emits, or affects the emission of air pollutants," as contemplated by the Common Provisions and this Regulation Number 2, Part A.
The Commission approved updates, revisions and clarifications to Regulation Number 2, Part A, intending to amend Paragraph 1.C.1 to make clear that the emission source has the burden of demonstrating that it is utilizing the best practicable control method. Many different agricultural, commercial and industrial sources operate throughout Colorado. These sources generate a wide variety site-specific types of odors. A source of odorous emissions is in the best position to ascertain and demonstrate what it believes is the best practicable control method for that source. A source can meet this burden by conducting an inquiry into applicable odor control options and documenting their basis for selecting and utilizing what the source has determined to be the best practicable treatment, maintenance and control currently available for its particular needs, taking into account both economic and non-economic factors. The Division may seek to rebut any such demonstration.
The Commission intends to clarify odor regulation exemptions to address pre-existing exemptions (see Sections 25-7-109(2)(d) and (8)(a) C.R.S.) and co-locate them for clarification.
The Commission intends to make specific technical corrections to update the rule language, including 1) removing the reference to an outdated and unnecessary document entitled "Colorado /Department of Health Pasteurized Fluid Milk and Milk Products Regulation" adopted April 18, 1967, 2) replacing the term "intensity" with "detectability," to align language with current odor vocabulary, and 3) removing specific names of Division-approved odor measurement devices and instead defaulting to currently Division-approved devices as allowed for in Regulation Number 2, Part A, Section IV.
Finally, the Commission intends to make General corrections - revisions to correct typographical, grammatical and/or formatting errors.
Regulation Number 2, Part A is a state-only rule and there are no corresponding federal odor requirements. In addition, the direct intent of these amendments is not to reduce air pollution.
Accordingly, the applicability of § § 25-7-110.5(5) and 25-7-110.8, C.R.S. to this rulemaking is not clear. Nonetheless, the Commission provides the following additional statement, consistent with these statutory sections:
COLORADO AIR QUALITY CONTROL COMMISSION
ADOPTED: June 19, 2008
Background
This Statement of Basis, Specific Statutory Authority, and Purpose complies with the requirements of the Colorado Administrative Procedures Act, Section 24-4-103(4), C.R.S. and the Colorado Air Pollution Prevention and Control Act, Sections 25-7-110 and 25-7-110.5, C.R.S.
Basis
Regulation Number 2, Part B contains odor standards, technological requirements for process wastewater impoundments and vessels and other permitting and monitoring requirements for housed commercial swine feeding operations. The purpose of this rule revision is to update and remove portions of the rule that are no longer applicable, are deemed obsolete, and to remove compliance dates that have already past. In addition, grammatical and formatting errors are being corrected, and a reporting burden reduced by revising a reporting requirement from two times per year to one time per year.
Specific Statutory Authority
The authority for this regulation is contained in the Colorado Air Pollution Prevention and Control at ("State Act"), Section 25-7-138. C.R.S. Additional authority to promulgate emission control regulations for housed commercial swine feeding operations is set out in Section 25-7-109(8), C.R.S.
Purpose
Regulation Number 2, Part B was last revised in 2006. Due to the length of time since the rulemaking, the Division of Environmental Health and Sustainability conducted a routine review of Regulation Number 2, Part B and determined it would be appropriate to propose updates to the regulation to remove sections that are no longer applicable, including compliance dates that have already past. In addition, the Division proposes reducing the number of reporting periods from two times per year to one time in order to provide regulatory relief.
The Colorado Air Quality Control Commission (Commission) concludes that the adoption of these regulatory revisions is an appropriate step to remove obsolete provisions, reduce reporting burdens for housed commercial swine feeding operations, and to clean up grammatical and typographical errors in the regulation.
Applicability
The Commission has determined that the applicability of this regulation has not been modified by these changes.
SUMMARY OF CHANGES
Definitions
The definition of "Division" is revised to refer to the Division of Environmental Health and Sustainability, as it pertains to implementation of Regulation Number 2, Part B and not as defined in the Commission's Common Provisions Regulation.
Technology Requirements for Process Wastewater Vessels and Impoundments
The Commission removed references to the "on or before July 1, 1999" date for existing operations in IV.A.2., and IV.A.3., and Section IV.A.3.f., as it referred to experimental covers where comparable effectiveness information was to be submitted to the Division by no later than January 1, 2000. These dates are obsolete. Section IV.A.3.f. was reserved as a placeholder.
In the Section IV.B., Aerobic Impoundments for New Impoundments, the numbering was corrected to read IV.B.1.
Permit to Operate
In Section VI.A.1.a., the Commission removed the deadline to submit a complete and accurate application by April 15, 1999, as this date has already past. The addition of "or modify as per Section VIII.A." was added for existing sources in Section VI.A.1.a., to provide greater clarity to what a permit modification as specified in this section of the regulation. The reference to local or regional health department was revised in this section to read the county or district public health agency to accurately reflect the terminology for these entities. Content of Permit to Operate and Application for a Permit to Operate. Clarifying language was added to the regulation describing that the owner or operator is required to file the "complete" application, which includes the facility's approved Odor Management Plan with the county clerk and with the county or district public health agency for the county(ies) in which the housed commercial swine feeding operation is located. Consistent with the intent to allow the public to have adequate time to review and provide comment, the owner or operator shall file the copy of the approved application for a permit to operate, prior to public notice of the permit by the Division.
The Commission removed the following sections from the regulation:
Section VI.D.2.a., as the deadline of July 1, 1999 identified for existing operations to have covers and related technologies installed or implement compliance schedules is past.
Section VI.D.8., referred to compliance schedules that were put in place when the regulation was first adopted. This section is no longer applicable.
Hearing and Public Comment Requirements
The Commission removed Sections VI.E.1., and VI.E.3., as the language was past and no longer applicable. The language under the new Section VI.E.1., was revised to add that the public notice will be published on the Colorado Department of Public Health and Environment's website in addition to the publishing of the preliminary analysis and application in a newspaper of general distribution in the area in which the proposed operation will be located.
Specific Odor Control Requirements
The Commission added the words, "as applicable" to Section IX.A.1.b.(2), as stakeholders identified that no bedding is used in most housed commercial swine feeding operations in Colorado.
Stakeholders requested that the word "promptly" in Section IX.A.1.b.(4), be replaced with the following specific terminology, "as specified in the Odor Management Plan".
Reporting Requirements
Since the promulgation of this regulation in 1999, regulated entities have been required to submit reports twice per year; the regulated entities have demonstrated high levels of compliance not only with the reporting requirements but also with the monitoring requirements of the regulation, therefore the Program proposed that reducing the reporting requirement to once per year will maintain the same level of environmental protection, while reducing both an undue administrative burden for the Division and provide some regulatory relief to the industry. The Commission has determined that submitting two monitoring reports each year creates an undue regulatory burden on housed commercial swine feeding operations that can be addressed, while providing the same level of environmental protection by the submittal of one report each year. To this end, Section X.D.1.a., of Regulation Number 2, Part B was revised to require the submittal of one annual report of required monitoring versus every six months. Stakeholders requested the specificity of the deadline to submit the annual report "by February 15th of each year" be added to this section.
Enforcement
Two references in Section XI., to county or regional departments of health were revised to reflect the correct reference to these entities as a county or district public health agency.
Annual Fees
The same revision to the references in Section XII., to a county or district public health agency, as described above, was made in the Annual Fees section.
Environmental Leadership Program
The Commission removed the information in Section XIII, the Environmental Leadership Program from the regulation as these provisions have not been used. In addition, the Commission is aware of other stand-alone recognition programs offered by the department that can serve the same purpose for housed commercial swine feeding operations. The Section XIII. was reserved.
Federal Requirements
Regulation Number 2, Part B is a state-only rule.
Findings Pursuant to 25-7-110.8, C.R.S.
This rule revision is intended to reduce the regulatory and financial burden associated with the odor regulations for housed commercial swine feeding operations. It is otherwise administrative in nature, and is not intended to be more stringent than existing rule. Therefore, requirements of 25-7-110.8 do not apply to these revisions because these revisions do not establish new requirements intended to reduce air pollution.
5 CCR 1001-4, pt. C