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Colorado

AFO SELF-CERTIFICATION PROGRAM

Though the federal CAFO regulations have been in existence for many years, all parties, including EPA and the state, acknowledge that the program was not previously fully understood by the regulated community, enforced by regulatory bodies, or effective in its disposition of wastes associated with agricultural operations. As noted in the very first paragraph of the Summary to the December 15, 2002 federal CAFO rule:

Today's final rule revises and clarifies the Environmental Protection Agency's (EPA) regulatory requirements for Concentrated Animal Feeding Operations (CAFOs) under the Clean Water Act. This final rule will ensure that CAFOs take appropriate actions to manage manure effectively in order to protect the nation's water quality. (emphasis added)

The Summary then continues:

EPA believes that these regulations will substantially benefit human health and the environment by assuring that an estimated 15,500 CAFOs effectively manage the 300 million tons of manure that they produce annually. The rule also acknowledges the state's flexibility and range of tools to assist small and medium-sized CAFOs. (emphasis added)

In the body of the preamble to the final federal rule, EPA points to 1998 efforts in cooperation with USDA to develop a "Unified National Strategy For Animal Feeding Operations."

The Unified National Strategy For Animal Feeding Operations established national goals and performance expectations for all AFOs. The general goal is for AFO owners and operators to take actions to minimize water pollution from confinement facilities and land where manure is applied. To accomplish this goal, the Strategy established a national performance expectation that all AFOs should develop and implement technically sound, economically feasible, and site-specific CNMPs to minimize impacts on water quality and public health. (emphasis added)

Under the new federal rule, states were given a year in which to adopt counterpart state regulations. Newly covered operations were then allowed until February, 2006 to apply for a permit, while all covered operations need not have a nutrient management plan in place until December, 2006.

Despite past attempts at CAFO controls, there is little doubt that the state and federal governments are embarking upon the implementation of a "new" pollution control program. Nevertheless, EPA's Office of Enforcement and Compliance Assistance (OECA) has recently identified "CAFO discharges" as a "national enforcement and compliance assurance" priority. 68 Fed. Reg. 68893, December 10, 2003. Immediate action to address identified concerns is certainly warranted.

An initial step in creating an effective regulatory regime is simply identifying the universe of entities encompassed thereunder. Another critical factor, especially where the number of potentially regulated entities far outstrips available government resources to address concerns associated therewith, is the creation of a strong working relationship with the regulated parties compliance, and trust those whose job it is to implement that program "on the ground." Without such cooperation, the program is ultimately doomed to failure.

With the above in mind, the Colorado Water Quality Control Division (WQCD) has set about establishing a new "state" regulatory framework for CAFOs with the assistance of the regulated community. Over twenty meetings with interested parties have been held in preparation for a February, 2004 rule-making hearing. In addition, the WQCD issued a Notice of Intent (NOI) form in an effort to have potentially regulated parties "step forward," i.e., acknowledge that they are subject to programmatic requirements, and to stagger the expected deluge of new permit applications. The WQCD has also investigated, to the extent limited resources allowed, the existence of "undisclosed" CAFO operations and has entered into inspection sharing arrangements with EPA as part of the Performance Partnership Agreement (PPA). Finally, the WQCD is close to retaining another full-time CAFO staff person (for three in total) and recently hired a temporary for this position. It should be noted in this regard that the WQCD is now totally dependant on "fee revenue" for the state's share of CWA program funding, and it is stretched to the limit in an attempt to meet minimum federal mandates. Given the above realities, the WQCD believes that a more creative approach to meeting CAFO regulatory objectives should be explored.

In 2002, CDPHE undertook a project called "SCORE" i.e., Self-Certification and Reporting. It is directed towards small quality generators of hazardous waste and turned upon "self certification" as compared to a "command and control" approach. The latter had shown no improvement in compliance rates, offering little or no general deterrence. In addition, it was proving ineffective relative to the rendition of useful compliance assistance. The project turned out to be similar to the Massachusetts' Environmental Results Program (ERP).

Each waste facility completed compliance checklists. Each facility was then, in turn, inspected by state personnel. The participants enjoyed enforcement amnesty (for the period of the initiative only) subject to four conditions:

  1. The small quantity generator (SQG) pursued appropriate efforts to return to compliance.
  2. The SQG cooperated with hazardous materials in investigating issues identified in self-certification.
  3. There was no imminent and substantial danger to the environment as a consequence of noncompliance.
  4. Enforceable agreements would be required for compliance issues that took longer than six months to remedy (but would not include fines/penalties).

The program was approved by EPA in April, 2002 and CDPHE is hopeful of a positive outcome. The preliminary results have been very promising.

The WQCD would like to explore a similar ERP concept with the CAFO sector. WQCD's proposed Self-Certification and Environmental Results Program (CAFO ERP) promotes integrated (cross-media) environmental management and will be directly transferable to other states. The project in essence pilots Massachusetts' ERP program for the CAFO sector, and is anticipated to include the following elements and goals:

A tentative outline of the program for a two-year project would be as follows:

The WQCD would propose three additional measures to round out this innovative regulatory approach. First, the WQCD would employ one or more "circuit riders" on an interim (1-2 year) basis whose job it would be to blanket the state both identifying regulated entities and providing compliance assistance. It is hoped that EPA State Innovation Grant monies would be available to assist in this effort. Second, the WQCD would explore pursuing a "permit by rule" approach to regulatory implementation, thereby freeing additional resources for "on-the-ground" compliance efforts. The permit by rule approach has been previously employed in a number of states, e.g., Michigan, Tennessee, Texas, Georgia, for programs touching upon all the environmental media. Finally, the WQCD in cooperation with the CDPHE's Sustainability Programs, has already embarked upon pilot EMS Permit Project, including CAFO facilities. This self-assessment initiative could be utilized to both refine application of the EMS Permit concept to animal operations and broaden the scope of entity participation.

It is hoped that if this CAFO ERP proves successful, the WQCD would only need to perform "spot checks" within the participating sector, in lieu of inspections at each facility. This would be in contrast with the current situation, where WQCD time is being diverted to processing large amounts of paper, i.e., permit applications and accompanying documentation, rather than field efforts focused on measurable water quality improvements. Under the ERP, compliance and pollution prevention assistance efforts and concurrent working relationships would be greatly enhanced, and the environment would benefit. As alluded to above, this approach to CAFO compliance could be expanded to cover all the environmental media impacted by these animal operations and accommodate, by way of example, any new air quality requirements that may be forthcoming.

Contact

Mark T. Pifher; Director, Water Quality Control Division; Colorado Department of Public Health and Environment; 4300 Cherry Creek Drive South, EDO-B2; Denver, Colorado 80276-1530; Phone: (303) 692-3509; Fax: (303) 782-0390; Email: mark.pifher@state.co.us

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