6 (n) Small CAFO is an AFO that is designated a CAFO by the department under R 323.2196(3) and is not a medium CAFO.

(mo) “Soil erosion and sedimentation control permit” means a permit that is issued pursuant to the provisions of part 91 of the act by a part 91 permitting entity.

(np) “Soil erosion control measures” means the measures or procedures to prevent or reduce the pollution of waters of the state that are required in the soil erosion and sedimentation control permit for the site or the selected control measures from the approved control plan that are applicable to the site.  (oq) “Stabilization of earth change activity” means the proper placement, grading, or covering of soil or rock at a construction activity to ensure subsequent resistance to soil erosion, sliding, or other earth movement.

(pr) “State permit” means a permit or equivalent document or requirements that are issued by the department to a discharger who discharges wastewater on the ground or into groundwaters.

(qs) “Storm water” means storm water runoff, snow melt runoff, and surface runoff and drainage.

(rt) “Storm water discharge associated with industrial activity” means the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing, or raw materials storage areas at an industrial plant. The term does not include discharges from facilities or activities excluded from the national permits program under 40

C.F.R. §122.3 and §122.27 (2000).  For the categories of industries identified in this subdivision, the term includes, but is not limited to, all of the following:

(i)    Storm water discharges from industrial plant yards.

(ii)     Immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility.

(iii)    Material handling sites.

(iv)    Refuse sites.

(v)         Sites     used    for    the    application      or    disposal     of    process    waste     waters,     as    defined     at 40 C.F.R. §401.11 (2000).

 

 

(vi)    Sites used for the storage and maintenance of material handling equipment.

(vii)     Sites used for residual treatment, storage, or disposal.

(viii)     Shipping and receiving areas.

(ix)    Manufacturing buildings.

(x)    Storage areas, including tank farms, for raw materials and intermediate and final products.

(xi)     Areas where industrial activity has taken place in the past and significant materials remain and are exposed to storm water.

For the purposes of this subdivision, material handling activities include storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, final product, by-product, or waste product.

The term excludes areas located on plant lands separate from the plant’s industrial activities, such as office buildings and accompanying parking lots as long as the drainage from the excluded areas is not mixed with storm water drained from the areas described in this paragraph. Industrial facilities include facilities that are federally, state, or municipally owned or operated that meet the description of the facilities listed in the following paragraphs and those facilities designated by the department under the provisions of R 323.2161(1)(f). The following categories of facilities are considered to be engaging in “industrial activity” for purposes of this subdivision:

(i)      Facilities subject  to EPA promulgated storm water effluent limitations guidelines, new source performance standards, or toxic pollutant effluent standards, except facilities that have toxic pollutant effluent standards which are exempted under paragraph (x) of this subdivision.

(ii)     Facilities classified as standard industrial classifications 24, except 2434, 26, except 265 and 267, 28, except 283, 29, 311, 32, except 323, 33, 3441, 373.

(iii)     Facilities classified as standard industrial classifications 10 through 14, mineral industry, including active or inactive  mining operations, except  for areas of non-coal  mining operations which  were released from applicable state or federal reclamation requirements after December 17, 1990, and oil and gas exploration, production, processing, or treatment operations, or transmission facilities that discharge storm water contaminated by contact with or that has come into contact with, any overburden, raw material, intermediate products, finished products, byproducts, or waste products located on the site of operations. Inactive mining operations are mining sites which are not being actively mined, but which have an identifiable owner/operator. Inactive mining sites do not include sites where mining claims are being maintained before disturbances associated with the extraction, beneficiation, or processing of mined materials and do not include sites where minimal activities are undertaken for the sole purpose of maintaining a mining claim.

(iv)     Hazardous waste treatment, storage, or disposal facilities, including those that are operating under interim status or a permit under subtitle c of the federal resource conservation and recovery act.

(v)    Landfills, land application sites, and open dumps that receive or have received any industrial wastes, waste that is received from any of the facilities described under this subdivision, including those that are subject to regulation under subtitle D of the federal resource conservation and recovery act.

(vi)      Facilities involved in the recycling of materials, including metal scrap yards, battery reclaimers, salvage yards, and automobile junkyards, which are classified as standard industrial classification 5015 and 5093.

(vii)     Steam electric power generating facilities, including coal handling sites.

(viii)     Transportation facilities classified as standard industrial classifications 40, 41, 42, except 4221 to 25, 43, 44, 45, and 5171 which have vehicle maintenance shops, equipment cleaning operations, or airport deicing operations. Only those portions of the facility that are either involved in vehicle maintenance, including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication; equipment cleaning operations, airport deicing operations, or which are otherwise identified under paragraphs (i) to (vii), (ix), or (x) of this subdivision are associated with industrial activity.

 

 

(ix)      Treatment works treating domestic sewage or any other sewage sludge or wastewater treatment device or system, used in the storage, treatment, recycling, and reclamation of municipal or domestic sewage, including land dedicated to the disposal of sewage sludge that is located within the confines of the facility, provided the system has a design flow of 1.0 million gallons per day or more, or is required to have an approved federal pretreatment program under 40 C.F.R. part 403 (2000). Not included are farm lands, domestic gardens, or lands used for sludge management where sludge is beneficially reused and which are not physically located in the confines of the facility, or areas that are in compliance with section 405 of the federal act.

(x) Facilities under standard industrial classifications 20, 21, 22, 23, 2434, 25, 265, 267, 27, 283, 285, 30, 31, except 311, 323, 34, except 3441, 35, 36, 37, except 373, 38, 39, and 4221 to 25.

(su) “Total maximum daily load” or “TMDL” means a written, quantitative plan and analysis for attaining and maintaining water quality standards in all seasons for a specific water body and pollutant.

(uw) “Urbanized area” means a place and the adjacent densely populated territory that together have a minimum population of 50,000 people, as defined by the United States bureau of the census and as determined by the latest available decennial census.

(vx) “Urbanizing area” means an area of contiguous census blocks with population densities of 1,000 persons or more per square mile that together have a population of 10,000 people or more, as determined by the latest available decennial census.

(wy) “Vessel” means any contrivance that is used or capable of being used for navigation upon water, whether or not the contrivance is capable of self-propulsion, including any of the following:

(i)    Foreign and domestic vessels that are engaged in commerce upon the waters of the state.

(ii)    Passenger or other cargo-carrying vessels.

(iii)    Privately owned recreational watercraft.

(iv)    Any other floating craft.

(xz) “Waste” means any waste, wastewater, waste effluent, or pollutant that is discharged into water, including any of the following:

(i)    Dredged spoil.

(ii)    Solid waste.

(iii)    Incinerator residue.

(iv)    Sewage.

(v)    Garbage.

(vi)    Sewage sludge.

(vii)     Munitions.

(viii)     Chemical wastes.

(ix)    Biological materials.

(x)    Radioactive materials.

(xi)    Heat.

(xii)     Wrecked or discarded equipment.

(xiii)     Rock.

 

 

(xiv)     Sand.

(xv)     Cellar dirt.

(xvi)     Industrial, municipal, and agricultural waste.

(yaa) “Wastewater” means liquid waste discharges directly or indirectly into the waters of the state that result from industrial and commercial processes and municipal operations, including liquid or water- carried process waste, cooling and condensing waters, and sanitary sewage.

(zbb) “Water quality standards” means the part 4 water quality standards promulgated pursuant to part 31 of 1994 PA 451, as amended, being R 323.1041 to 323.1117 of the Michigan administrative code.

 

R 323.2108 Permits; application and filing procedures.

Rule 2108. (1) An application for a permit shall be completed in accordance with and subject to guidelines in 40 C.F.R. §122.21(20002003).

(2)   A person discharging waste or wastewater from more than 1 location shall file a separate application for each discharge location. A single application may be filed for multiple outfalls discharging from a single location, except that the discharge from each outfall shall be described separately in the application.

 

R 323.2109 Permits; application exemptions.

Rule 2109. A person who discharges or proposes to discharge the following types of waste or wastewater shall not be required to apply for a permit from the department pursuant to part 31 of the act or these rules:

(a)    Human sewage that is discharged from vessels.

(b)    Water, gas, and other materials that are injected into a well to facilitate the production of oil or gas, or water that is derived in association with oil or gas production and disposed of in a well if authorized by the state supervisor of wells.

(c)     A discharge that is directed solely to a publicly owned treatment works, but not from a publicly owned treatment works.

(d)     Point source discharges of storm water, unless a person is required to apply for a national permit pursuant to R 323.2161 or R 323.2196.

 

R 323.2189 Referenced federal regulations; definitions; adoption of standards by reference.

Rule 2189. (1) As used in the federal regulations referenced in R 323.2161, the terms “NPDES state” and “NPDES authority” shall mean the department of environmental quality as specified in this rule.

(2) The following federal regulations are adopted by reference in these rules, are available for inspection at the Lansing office of the department of environmental quality, and may be obtained from the Department of Environmental Quality, Water Division, p.o. Box 30273, Lansing, mi 48909, at a cost as of the time of adoption of these rules of 5 cents per page and a labor rate of $19.20 per hour, or from the Superintendent of Documents, Government Printing Office, Washington, DC 20402, at a cost as of the time of the adoption of these rules of $66.00, or via the Internet at http://www.access.gpo.gov/nara:

(a) 40 C.F.R. §§122.3(e) (2000).

(b) 40 C.F.R. §122.7. (2000).

(c) 40 C.F.R. §§122.21 (20002003).

(d) 40 C.F.R. §122.26 to 27 (2000).

(e) 40 C.F.R. §122.28(b)(2)(v) (2000).

(f) 40 C.F.R. §122.34 to 35 (2000).

(g) 40 C.F.R. §§122.41 to 122.49 (2000).

(h) 40 C.F.R. §122, appendix G (2000).

 

 

(i) 40 C.F.R. §123 et seq. (1984).

(j) 40 C.F.R. §401.11 (2000).

(k) 40 C.F.R. §403 (2000).

(l) 40 C.F.R. §412 (2003) except that the definition for “land application area” shall be as defined in R 323.2103(f).

 

R 323.2196 CAFO permits.

Rule 2196. (1) CAFOs are point sources that require NPDES permits for discharges or potential discharges and require all of the following:

(a)    If an operation becomes a CAFO, then the NPDES requirements for CAFOs apply to all animals in confinement at the operation and all production area waste and CAFO process wastewater generated by those animals or the production of those animals, regardless of the type of animal.

(b)    All CAFO owners or operators shall apply either for an individual NPDES permit, or a certificate of coverage under an NPDES general permit, unless the owner or operator has received a determination from the department, made after providing notice and opportunity for public comment, that the CAFO has “no potential to discharge” pursuant to subrule (4) of this rule.

(c)   The discharge to waters of the state from land application areas is a discharge from the CAFO subject to NPDES permit requirements.

(2)   The schedule for permit application, coverage, and renewal shall include all of the following:

(a)     A CAFO shall apply for an NPDES permit not later than October 29, 2004, except as specified in subdivisions (b), (d), or (e) of this subrule.

(b)   An existing CAFO, or an existing AFO that becomes a CAFO, that has not had a regulated discharge since January 14, 2000, shall apply for coverage under NPDES general permit No. MIG440000 (effective January 1, 2003), or equivalent document approved by the department, not later than 90 days after notification by the department or by September 1, 2005, whichever is sooner. Before July 1, 2006, all CAFOs that are operating under an equivalent document approved by the department shall apply for an NPDES permit in accordance with subdivision (a) of this subrule. An existing CAFO or existing AFO is any CAFO or AFO that is constructed and populated before January 30, 2004.

(c)     For the purposes of subdivision (b) of this subrule, a regulated discharge is any of the following:

(i)    A discharge that causes or contributes to a violation of R 323.1041 to R 323.1117 of the Water Quality Standards.

(ii)      A discharge from the process or production area due to precipitation events, either by overland, drainage tiles, or other mechanisms, except the discharge of uncontaminated runoff that does not come into contact with any animals, animal waste, or production area waste.

(iii)    A dry-weather discharge, including an accidental release.

(d)     Newly constructed CAFOs shall apply for an NPDES permit at least 180 days before commencing operation.

(e)   AFOs that become CAFOs after September 1, 2005 shall apply for an NPDES permit at least 180 days before becoming a CAFO.

(f)   Not later than 180 days before the expiration of the permit or equivalent document approved by the department, the permittee shall submit an application to renew its permit. However, the permittee need not continue to seek continued permit coverage or reapply for a permit if both of the following conditions are true:

(i)    The facility has ceased operation or is no longer a CAFO.

 

 

(ii)       The permittee has demonstrated to the satisfaction of the department that there is no remaining potential for a discharge.

(3)   In designating an AFO as a CAFO, the following apply:

(a)   The department may designate any AFO as a CAFO upon determining that it is a significant contributor of pollutants to waters of the state. In making this designation, the department shall consider all of the following factors:

(i)    The size of the AFO and the amount of production area waste and CAFO process wastewater reaching waters of the state.

(ii)    The location of the AFO relative to waters of the state.

(iii)    The means of conveyance of production area waste and CAFO process wastewater into waters of the state.

(iv)      The slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of production area waste and CAFO process wastewater into waters of the state.

(v)    Other relevant factors.

(b)   An AFO shall not be designated under this subrule unless the department has conducted an inspection of the operation.

(c)    An AFO with numbers of animals below those established in R 323.2103(m) shall not be designated as a CAFO unless either of the following occurs:

(i)      Pollutants are discharged from the production area into waters of the state through a manmade ditch, pipe, tile, swale, flushing system, or other similar manmade conveyance.

(ii)     Pollutants are discharged from the production area directly into waters of the state which originate outside of the facility and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation.

(4)   In making determinations for no potential to discharge for large CAFOs, all of the following apply:

(a)   The department, upon request, may make a determination that a specific large CAFO has no potential to discharge pollutants to waters of the state. In making this determination, the department shall consider the potential for discharges from both the production area and any land application areas. The department shall also consider any record of prior discharges by the CAFO. In no case may the CAFO be determined to have no potential to discharge if it has had a discharge within 5 years before the date of the request submitted under subdivision (b) of this subrule. For purposes of this rule, the term ‘no potential to discharge’ means that there is no potential for any CAFO production area waste or CAFO process wastewater to be added to waters of the state under any circumstance or climatic condition. A determination that there is no potential to discharge only relates to discharges of production area waste and CAFO process wastewater covered by this rule.

(b)   In requesting a determination of no potential to discharge, the CAFO owner or operator shall submit any information that will support such a determination. Such information shall include all of the information specified in 40 C.F.R. §§122.21(f) and (i)(1)(i) to (ix)(2003) and include documentation showing that the CAFO has been verified under the livestock system of the Michigan agriculture environmental assurance program (MAEAP), or successor program, if such a program is available. The department has discretion to require additional information to supplement the request, and may also gather additional information through physical inspection of the CAFO.

(c)     Before making a final decision to grant a no potential to discharge determination, the department shall issue a notice to the public stating that a no potential to discharge request has

 

 

been received. This notice shall be accompanied by a fact sheet which includes the following, if applicable:

(i)    A brief description of the type of facility or activity which is the subject of the no potential to discharge determination.

(ii)     A brief summary of the factual basis, upon which the request is based, for granting the no potential to discharge determination.

(iii)     A description of the procedures for reaching a final decision on the no potential to discharge determination.

The department shall base the decision to grant a no potential to discharge determination on the administrative record, which includes all information submitted in support of or against a no potential to discharge determination and any other data gathered by the department. The department shall notify any CAFO seeking a no potential to discharge determination of its final determination within 180 days of receiving the request.

(d)     The owner or operator shall request a no potential to discharge determination by the applicable permit application dates. If the department's final decision is to deny the no potential to discharge determination, then the owner or operator shall seek coverage under a permit within 30 days after notice of the denial.

(e)   The no potential to discharge determination does not relieve the CAFO from the consequences of an actual discharge. Any unpermitted CAFO that discharges pollutants into the waters of this state is in violation of the act even if it has received a no potential to discharge determination from the department. Any CAFO that has received a determination of no potential to discharge, but who anticipates changes in circumstances that could create the potential for a discharge, shall contact the department and apply for and obtain NPDES permit authorization prior to the change of circumstances. If any CAFO that has received a determination of no potential to discharge has unanticipated changes in circumstances that could create the potential for a discharge, then the CAFO shall immediately notify the department and submit a complete application for coverage under an NPDES permit within 30 days after the change in circumstances.

(f)  Where the department has issued a determination of no potential to discharge, the department retains the authority to subsequently require NPDES permit coverage for any of the following:

(i)    If circumstances at the facility change.

(ii)    If new information becomes available.

(iii)     If there is another reason for the department to determine that the CAFO has a potential to discharge.

(g)  Notwithstanding any other provision of this section, a CAFO that has received a no potential to discharge determination from the department is not required to seek coverage under an NPDES permit that would otherwise be required.

(5)   CAFO NPDES permits shall include all of the following:

(a)    A requirement to develop and implement a comprehensive nutrient management plan (CNMP). The CNMP shall be approved by a certified CNMP provider. At a minimum, a CNMP shall include best management practices and procedures necessary to implement applicable effluent limitations and technical standards established by the department including all of the following:

(i)      Ensure adequate storage of production area waste and CAFO process wastewater, including procedures to ensure proper operation and maintenance of the storage facilities.

(ii)      Ensure proper management of mortalities and ensure that they are not disposed of in a liquid manure, storm water, or CAFO process wastewater storage or treatment system.

(iii)    Ensure clean water is diverted from the production area.

(iv)    Prevent direct contact of confined animals with waters of the state.

 

 

(v)     Ensure chemicals and other contaminants handled at the CAFO, that are not part of the normal agricultural practice at the production area, are not disposed of in any production area waste, CAFO process wastewater, or storm water storage or treatment system.

(vi)    Identify specific conservation practices to control runoff of pollutants to waters of the state.

(vii)     Identify protocols for testing of production area waste, CAFO process wastewater, and soil.

(viii)       Conduct a field-by-field assessment of land application areas and address the form, source, amount, timing, rate, and method of application of nutrients to demonstrate that land application of production area waste or CAFO process wastewater is in accordance with field-specific nutrient management practices that ensures proper agricultural utilization of the nutrients in the production area waste or CAFO process wastewater. The assessment shall take into account field-specific conditions including locations of tile outlets, tile risers, and tile depth before land application to determine suitability of land application and to prevent discharge of any potential polluting material.

(ix)    Ensure proper land application by complying with all of the following conditions:

(A)   Production area waste and CAFO process wastewater shall not be land-applied on ground that is flooded, saturated with water, frozen, or snow-covered where the production area waste and CAFO process wastewater may enter waters of the state.

(B)   Production area waste and CAFO process wastewater shall not be applied to frozen or snow-covered ground unless it is subsurface injected and there is substantial soil coverage of the applied production area waste and CAFO process wastewater, or it is surface-applied and incorporated within 24 hours.

(C)   Production area waste and CAFO process wastewater may be surface-applied to frozen or snow- covered ground and not incorporated within 24 hours only if there is a field-by-field demonstration in the CNMP showing that such land application will not result in a situation where production area waste and CAFO process wastewater may enter waters of the state.

(D)    Production area waste and CAFO process wastewater shall not be applied when precipitation exceeding ½ inch is forecast within 24 hours or if precipitation is forecast that may cause the production area waste and CAFO process wastewater to enter waters of the state.

(E)      Production area waste and CAFO process wastewater, if not subsurface-injected, shall be incorporated into the soil within 24 hours of application except on no-till fields.

(x)    Identify specific records that will be maintained to document the implementation and management of the CNMP.

(b)      A copy  of the CAFO’s  CNMP  shall be  maintained  at  the CAFO  and  made  available  to  the department on request. In addition, the executive summary shall be submitted to the department.

(c)      A prohibition on dry weather discharges from the CAFO except in accordance with 40 C.F.R.

§412.31(a)(2)(2003) or 40 C.F.R. §412.46(d)(2003).

(d)       Storm water discharges from land areas under the control of a CAFO where production area waste or CAFO process wastewater has been applied in compliance with field-specific nutrient management practices developed in accordance with R 323.2196(5)(a), and such discharges do not cause or contribute to a violation of water quality standards, are in compliance with this rule, provided such discharges are authorized by an NPDES permit.

(e) In cases where production area waste or CAFO process wastewater is sold, given away, or otherwise transferred to other persons (recipient) and the land application of that production area waste or CAFO process wastewater is not under the operational control of the CAFO owner or operator that generates the production area waste or CAFO process wastewater (generator), a manifest shall be used to track the transfer and use of the production area waste or CAFO process wastewater.

(i)    The CAFO owner or operator shall do all of the following:

 

 

(A)    Prepare a manifest for tracking the production area waste or CAFO process wastewater before transferring the production area waste or CAFO process wastewater.

(B)     Designate on the manifest the recipient of the production area waste or CAFO process wastewater.

(ii)     The generator shall use a manifest form which is approved by the department and which has locations for recording all of the following information:

(A)  A manifest document number.

(B)  The generator's name, mailing address, and telephone number.

(C)    The name and address of the recipient of the production area waste or CAFO process wastewater.

(D)   The nutrient content of the production area waste or CAFO process wastewater to be used in determining the appropriate land application rates.

(E)  The total quantity of production area waste or CAFO process wastewater by units of weight or volume and the number and size of the loads or containers used to transfer that quantity of production area waste or CAFO process wastewater.

(F)   A statement that informs the recipient of his or her responsibility to properly manage the land application of the manure and/or wastewater to minimize the discharge of pollutants to waters of the state.

(G)    The following certification: "I hereby declare that the production area waste or CAFO process wastewater is accurately described above and is suitable for land application."

(H)   Other certification statements as may be required by the department.

(I)   Address or other description for the final destination of the production area waste or CAFO process wastewater for completion by the recipient after land application or other disposal or use of the production area waste or CAFO process wastewater.

(J)   Locations for dates and signatures.

(iii)    The generator shall do all of the following with respect to the manifest:

(A)  Sign the manifest certification by hand.

(B)  Obtain the handwritten signature of the recipient and the date of acceptance on the manifest.

(C)  Retain 1 copy of the manifest.

(D)  Give the remaining copies to the recipient.

(E)   Advise the recipient of his or her responsibilities to complete the manifest and return a copy to the generator within 30 days after completion of the land application or other disposal or use of the production area waste or CAFO process wastewater.

(iv)     One manifest may be used for multiple loads or containers of the same production area waste or CAFO process wastewater transferred in 1 calendar day to the same destination.

(v)     The generator shall not sell, give away, or otherwise transfer production area waste or CAFO process wastewater to a recipient if any of the following occurs:

(A)  The recipient has previously not returned a copy of the completed manifest to the generator.

(B)  The returned manifest indicates improper land application, use, or disposal.

(C)     The generator has been advised by the department that the department or a court of appropriate jurisdiction has determined that the recipient has improperly land-applied, used, or disposed of a manifested production area waste or CAFO process wastewater.

(vi)      All copies of manifests shall be kept with the CAFO owner or operator’s CNMP for a minimum of 3 years.

(vii)     The requirements of this rule do not apply to quantities of production area waste or CAFO process wastewater less than 1 cubic yard or 1 ton per recipient per day.

 

 

(f)   A requirement that the CAFO owner or operator shall submit annual reports to the department. The annual report shall include, but is not limited to, all of the following:

(i)     The number and type of animals, whether in open confinement or housed under roof (beef cattle, broilers, layers, swine weighing 55 pounds or more, swine weighing less than 55 pounds, mature dairy cows, dairy heifers, veal calves, sheep and lambs, horses, ducks, and turkeys).

(ii)     Estimated amount of total production area waste and CAFO process wastewater generated by the CAFO in the previous 12 months (tons/gallons).

(iii)      Estimated amount of total production area waste and CAFO process wastewater transferred to another person by the CAFO in the previous 12 months (tons/gallons).

(iv)     Total number of acres for land application covered by the CNMP developed in accordance with subdivision (a) of this subrule.

(v)     Total number of acres under control of the CAFO that were used for land application of production area waste and CAFO process wastewater in the previous 12 months.

(vi)       Summary of all production area waste and CAFO process wastewater discharges from the production area that have occurred in the previous 12 months, including date, time, and approximate volume.

(vii)       A statement indicating whether the current version of the CAFO's CNMP was developed or approved by a certified CNMP provider.