June 27, 2007, Introduced by Senators BASHAM, JACOBS, ANDERSON, BRATER, SCOTT, HUNTER, THOMAS, SWITALSKI, CLARKE and SCHAUER and referred to the Committee on Agriculture.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
(MCL 324.101 to 324.90106) by adding sections 8609, 8611, 8613,
8615, 8617, 8619, and 8621.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 8609. (1) An individual shall not supervise, control, or
operate a CAFO unless the individual has obtained certification by
the department of agriculture. The certification program shall be
designed to properly qualify individuals to operate 1 or more types
of CAFOs. As part of the certification program, the department
shall consider the experience of applicants. The department shall
also examine the background of the applicants to determine any
criminal, civil, or administrative violations of this act or the
environmental laws of other states, the United States, or other
countries. The department of agriculture shall issue a
certification to verify the successful completion of the
certification program.
(2) If a person other than an individual owns or operates a
CAFO, that person shall designate an individual as a responsible
agent to be in charge of the supervision, control, or operation of
the CAFO. The responsible agent shall fulfill the certification
requirements of this section. The responsible agent's name shall
appear on any permit required under this part or part 31.
(3) The department shall establish a schedule to phase in the
requirements of subsection (1) for CAFOs existing when rules
implementing subsection (1) are promulgated.
(4) The department of agriculture may conduct a program for
training persons seeking certification under subsection (1). The
department of agriculture may charge a fee based on the costs to
the department of operating the training program. The fees shall be
deposited in the CAFO certification and training fund created in
subsection (8).
(5) Before offering or conducting a course of training
represented to help an individual meet the certification
requirements of subsection (1), a person shall obtain approval from
the department of agriculture.
(6) The department of agriculture may recognize and approve
training programs conducted or approved by other states or the
federal government.
(7) After providing an opportunity for an administrative
hearing under the administrative procedures act of 1969, 1969 PA
306, MCL 24.201 to 24.328, the department of agriculture may deny,
suspend, limit, or revoke a person's certification issued under
subsection (1) or the approval of a training program under
subsection (5) for failure to meet the requirements of rules
promulgated under subsection (11).
(8) The CAFO certification and training fund is created within
the state treasury.
(9) The state treasurer may receive money or other assets from
any source for deposit into the fund. The state treasurer shall
direct the investment of the fund. The state treasurer shall credit
to the fund interest and earnings from fund investments. Money in
the fund at the close of the fiscal year shall remain in the fund
and shall not lapse to the general fund.
(10) The department of agriculture shall expend money from the
fund, upon appropriation, only for the purpose of exercising its
powers and performing its duties under subsections (1) to (5).
(11) The department may promulgate rules to implement this
section.
Sec. 8611. (1) Before constructing a large CAFO or medium
CAFO, expanding a large CAFO or medium CAFO that was in operation
on the effective date of the amendatory act that added this
section, or expanding a small CAFO into a large CAFO or medium
CAFO, the owner or operator of the CAFO or proposed CAFO shall
obtain all permits required under this act and register with the
department. The registration shall include all of the following:
(a) The location of the CAFO.
(b) The size of the CAFO, in acres.
(c) Whether the CAFO will be a large CAFO or medium CAFO.
(d) The type of animals that will be stabled or confined at
the CAFO.
(e) A site plan for the CAFO.
(f) Documentation establishing that the CAFO meets siting
criteria established as generally accepted agricultural and
management practices as defined in section 2 of the Michigan right
to farm act, 1981 PA 93, MCL 286.472.
(g) Any other relevant information required by the department.
(2) Upon receipt of a registration under subsection (1), the
department shall provide a copy of the registration to the township
and, if applicable, the village, or to the city, where the CAFO
will be located and to the county where the CAFO will be located.
The department shall also make the registration available on the
department's website.
(3) Upon the request of 1 or more persons, the department
shall hold an informational hearing on the nature of the proposed
new or expanded CAFO and the regulation of the CAFO under this
part.
Sec. 8613. (1) 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:
(a) The size of the AFO and the amount of production area
waste and process wastewater from the AFO being directly or
indirectly discharged into waters of the state.
(b) The location of the AFO relative to waters of the state.
(c) The means of conveyance of production area waste and
process wastewater into waters of the state.
(d) Slope, vegetation, rainfall, and other factors affecting
the likelihood or frequency of discharge of production area waste
and process wastewater into waters of the state.
(e) Other relevant factors.
(2) An AFO shall not be designated under this subsection
unless the department has conducted an inspection of the operation
as authorized under section 3105.
(3) An AFO with numbers of animals below those established in
the definition of medium CAFO in section 8603 shall not be
designated as a CAFO under subsection (1) unless either of the
following occurs:
(a) 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.
(b) Pollutants are discharged from the production area
directly into waters of the state that 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) The designation of a person as a CAFO shall be made in
writing and provide for an opportunity for an administrative
hearing before the department regarding that designation.
Sec. 8615. (1) CAFOs are point sources that require NPDES
permits for discharges. Except as otherwise provided in this part,
a person shall not own or operate a CAFO except pursuant to an
NPDES permit, an approved comprehensive nutrient management plan,
and an approved air emissions plan. 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
process wastewater generated by those animals or the production of
those animals, regardless of the type of animal. A CAFO owner or
operator shall apply for either 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 section
8617. The discharge to waters of the state from land application
areas is a discharge from the CAFO subject to NPDES permit
requirements.
(2) The owner or operator of an existing CAFO shall apply for
an NPDES permit not later than July 1, 2008.
(3) Until the department promulgates rules regulating the
operation of new or expanded CAFOs, the department shall not issue
an NPDES permit for a new CAFO of more than 10,000 animals or an
expanded CAFO composed of more than 5,000 animals. The department
shall promulgate rules regulating new and expanded CAFOs within 24
months after the effective date of the amendatory act that added
this section.
(4) Following promulgation of rules under subsection (3), an
AFO shall apply for an NPDES permit at least 180 days before
becoming a CAFO.
(5) 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
met:
(a) The facility has ceased operation or is no longer a CAFO.
(b) The permittee has demonstrated to the satisfaction of the
department that there is no remaining potential for a discharge.
Sec. 8617. (1) Notwithstanding any other provision of this
section, a large CAFO that has received a no-potential-to-discharge
determination from the department is not required to obtain an
NPDES permit under section 8615.
(2) The department, upon request, may make a determination
that a specific large CAFO has no potential to discharge, subject
to all of the following requirements:
(a) In making a no-potential-to-discharge 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. The
department shall not make a no-potential-to-discharge determination
if the CAFO has had a discharge within 5 years before the date of
the request. A no-potential-to-discharge determination only relates
to discharges of production area waste and process wastewater
covered by this part.
(b) In requesting a no-potential-to-discharge determination,
the CAFO owner or operator shall submit any information that will
support the determination. The information shall include a copy of
an approved CNMP, all of the information specified in 40 CFR
122.21(f) and (i)(1)(i) to (ix), and documentation showing that the
CAFO has been verified under the livestock system of the Michigan
agriculture environmental assurance program, or successor program,
if such a program is available. The department may require
additional information to supplement the request and may also
gather additional information through physical inspection of the
CAFO.
(c) Before making a no-potential-to-discharge determination,
the department shall issue a notice to the public stating that a
request for a no-potential-to-discharge determination has been
received. The notice shall indicate that copies of the approved
CNMP are available from the department and advise how a person can
obtain or review a copy of the CNMP. The notice shall also be
accompanied by a fact sheet which includes the following, if
applicable:
(i) A brief description of the type of facility or activity
that is the subject of the request for the no-potential-to-
discharge determination.
(ii) A brief summary of the factual basis, set forth in the
request, 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.
(d) The department shall base the decision to make or deny 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 a CAFO
owner or operator seeking a no-potential-to-discharge determination
of its final decision within 180 days of receiving the request.
(e) 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.
(3) 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 part 31 and rules promulgated under part
31 even if it has received a no-potential-to-discharge
determination from the department. If a CAFO has received a no-
potential-to-discharge determination, but the owner or operator
anticipates changes in circumstances that could create the
potential for a discharge, the owner or operator shall contact the
department and apply for and obtain NPDES permit authorization
before the change of circumstances. If a CAFO that has received a
no-potential-to-discharge determination has unanticipated changes
in circumstances that create the potential for a discharge, then
the owner or operator shall immediately notify the department and
submit a complete application for coverage under an NPDES permit
within 30 days after the change in circumstances.
(4) If the department has made a no-potential-to-discharge
determination, the department may subsequently require NPDES permit
coverage if any of the following apply:
(a) Circumstances at the facility change.
(b) New information becomes available.
(c) There is another reason for the department to determine
that the CAFO has a potential to discharge.
Sec. 8619. CAFO NPDES permits shall include all of the
following:
(a) An approved comprehensive nutrient management plan and a
requirement to maintain and implement the plan.
(b) A requirement that the owner or operator of the CAFO
maintain a copy of the CAFO’s CNMP at the CAFO and make it
available to the department on request.
(c) A prohibition on dry weather discharges from the CAFO
except in accordance with 40 CFR 412.31(a)(2) or 40 CFR 412.46(d).
Storm water discharges from land areas under the control of a CAFO
are not prohibited if such discharges are authorized by an NPDES
permit, production area waste or process wastewater has been
applied in compliance with field-specific nutrient management
practices developed under R 323.2196(5)(a) of the Michigan
administrative code, and such discharges do not cause or contribute
to a violation of water quality standards.
(d) Requirements for a manifest system, as described in
section 8625, if applicable.
(e) For a new or expanded CAFO, a prohibition on land
application of manure, process wastewater, or production area
waste.
(f) An approved air emissions plan and a requirement to
maintain and implement the plan.
(g) A requirement to maintain financial security under section
8633.
(h) A requirement that the CAFO owner or operator submit
annual reports to the department. An annual report shall include,
but is not limited to, all of the following:
(i) The type of animals (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) and number of animals, whether in open
confinement or housed under roof, of each type.
(ii) The estimated amount of total production area waste and
CAFO process wastewater generated by the CAFO in the previous 12
months, expressed in tons or gallons.
(iii) The estimated amount of total production area waste and
CAFO process wastewater transferred to another person by the CAFO
in the previous 12 months, expressed in tons or gallons.
(iv) The total number of acres for land application covered by
the CNMP.
(v) The total number of acres under control of the CAFO that
were used for land application of production area waste and process
wastewater in the previous 12 months.
(vi) A summary of all production area waste and process
wastewater discharges from the production area that have occurred
in the previous 12 months, including date, time, and approximate
volume.
(vii) Documentation establishing that the current version of
the CAFO's CNMP was developed or approved by a certified CNMP
provider as required under section 8621.
Sec. 8621. (1) An NPDES permit for a CAFO shall include a
comprehensive nutrient management plan submitted by the applicant
and developed or approved by a CNMP provider and the department. A
CNMP shall include best management practices and procedures
necessary to implement applicable effluent limitations and
technical standards established by the department, including
practices and procedures to do all of the following:
(a) Ensure adequate storage of production area waste and
process wastewater, including procedures to ensure proper operation
and maintenance of the storage facilities.
(b) Ensure proper management of mortalities and ensure that
they are not disposed of in a liquid manure, storm water, or
process wastewater storage or treatment system.
(c) Ensure clean water is diverted from the production area.
(d) Prevent direct contact of confined animals with waters of
the state.
(e) 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,
process wastewater, or storm water storage or treatment system.
(f) Identify specific conservation practices to control runoff
of pollutants to waters of the state.
(g) Identify protocols for testing of production area waste,
process wastewater, and soil.
(h) 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 process wastewater is in
accordance with field-specific nutrient management practices that
ensure proper agricultural utilization of the nutrients in the
production area waste or 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.
(i) Ensure proper land application by complying with all of
the following conditions:
(i) Production area waste and process wastewater shall not be
land-applied on ground that is flooded, saturated with water,
frozen, or snow-covered if the production area waste and process
wastewater could enter waters of the state.
(ii) Production area waste and process wastewater shall not be
applied to frozen or snow-covered ground unless 1 of the following
requirements is met:
(A) It is subsurface injected and there is substantial soil
coverage of the applied production area waste.
(B) It is surface-applied and incorporated within 24 hours.
(C) It is surface-applied and there is a field-by-field
demonstration in the CNMP showing that the application will not
create the possibility of production area waste and process
wastewater entering waters of the state.
(iii) Production area waste and process wastewater shall not be
applied when precipitation exceeding 1/2 inch is forecast within 24
hours or if precipitation is forecast that could cause the
production area waste and process wastewater to enter waters of the
state.
(iv) Production area waste and process wastewater, if not
subsurface-injected, shall be incorporated into the soil within 24
hours of application except on no-till fields or as provided in
subparagraph (ii)(C).
(j) Identify specific records, including, but not limited to,
manifests under section 8625, that will be maintained to document
the implementation and management of the CNMP.
(2) Upon receipt of a proposed new or renewal CNMP or an
amendment to a CNMP, the department shall do both of the following:
(a) Forward the proposed CNMP or amendment to the city,
village, township, and county in which the CAFO is located.
(b) Post a summary of the proposed CNMP or amendment on its
website. The summary for an amendment to or renewal of a CNMP shall
clearly indicate any changes from the existing CNMP.
(c) Make copies of the proposed CNMP available to the public.
(3) Upon request of any person, the department shall hold a
public hearing and take testimony from the public on the content of
a proposed CNMP.
(4) Information required to be maintained under a CNMP shall
be made available to the department and the department of
agriculture upon request.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 94th Legislature are
enacted into law:
(a) Senate Bill No. 614.
(b) Senate Bill No. 613.
(c) Senate Bill No. 615.
(d) Senate Bill No. 616.
(e) Senate Bill No. 617.
(f) Senate Bill No. 618.
(g) Senate Bill No. 619.
(h) Senate Bill No. 620.