AFO (CAFO/MAFO) Webpage
Welcome to the web home of the MDE Animal Feeding Operations (AFOs) Program. This is where you will find all of the information necessary to understand Maryland regulations for AFOs and if you are affected, how to comply with these regulations. If, after reading this webpage you have any questions, please call Gary Kelman at 410-537-4423 or send an e-mail to Gary.Kelman@maryland.gov.
Together, the regulations and General Discharge Permit (GD Permit) are designed to control nutrients from Maryland’s largest agricultural animal operations and are a significant step forward in protecting the Chesapeake Bay, local waterways, and our drinking water. The AFO regulations and new GD Permit are just one part of a comprehensive, statewide effort to address all sources of pollution that are impairing our waterways: wastewater treatment plants, industrial discharges, septic systems, urban/suburban stormwater runoff, and air emissions from power plants, vehicles, and trucks.
Quick Reference to AFO Program forms and documents
- Form requesting transfer of registration to new owner/operator or new operator for operations that have been registered as a CAFO or MAFO
Notice to All AFOs
March 12, 2015
For the first year of issuance (2014 – 2015), MDE is waiving the annual permit fee requirement for registration under the renewed GD Permit (NPDES Permit No. MDE01; State Discharge Permit No. 14AF), for Concentrated Animal Feeding Operations (CAFOs)*. This waiver is to allow MDE time to revise the current fee regulations. Therefore:
1. If you have already submitted your Notice of Intent (NOI) for your operation with no fee, MDE will send you a payment notice in November, 2015;
2. If you have submitted your NOI for your operation with a fee, the amount submitted will be credited to your account and no further payment will be necessary until year three;
3. If your operation was registered under the previous GD Permit, but you have not submitted a new NOI for coverage under the renewed GD Permit for your operation, you must submit a new NOI by March 31, 2015. MDE will send you a payment notice in November, 2015; or
4. If you sent in an NOI and required plan(s) for the previous GD Permit but were not registered under the previous GD Permit, you must submit a new NOI by March 31, 2015. MDE will send you a payment notice in November, 2015.
All NOIs must be submitted to:
Maryland Department of the Environment
Land Management Administration
1800 Washington Blvd., Suite 610
Baltimore, MD 21230-1719
If you have any questions, please contact Mr. Gary Kelman at 410-537-4423 or firstname.lastname@example.org.
*The annual CAFO permit fees are: $800 (large), $300 (medium), and $60 (small). These fees will be subject to regulatory review over the summer months. Please note that Maryland Animal Feeding Operations (MAFOs) do not require a fee.
Animal Feeding Operations (AFOs) in Maryland Must Take Action to Continue Their General Discharge Permit Registration
The Maryland Department of the Environment (MDE) has renewed the GD Permit for AFOs. The GD Permit that has been in effect since December 1, 2009 expired on November 30, 2014. The new GD Permit became effective on December 1, 2014, after a public participation process that consisted of the publication of a Tentative Determination on September 5, 2014, a public hearing on October 14, 2014, a written comment period ending October 20, 2014 and the publication of a Final Determination on this website and in the Delmarva Farmer, Salisbury Daily Times, Record Observer, and the Frederick News Post once per week for two consecutive weeks starting November 25, 2014. A response to comments is also available on this website, along with a Fact Sheet supporting the permit terms and conditions. MDE mailed notification letters to all registrants on August 26, 2014 with information about permit renewal procedures and a new Notice of Intent (NOI) for the new GD Permit.
If registrants know that they will NOT be operating the AFO after November 30, 2014, and, therefore, will not need GD Permit coverage after that date, they should notify the Department indicating that they will not need the permit as soon as possible. They should also notify MDE of the disposition of the operation (who it was sold to, the new operator’s name and contact information, whether it will remain a farm, etc.) in their notification.
Please call Gary Kelman at 410-537-4423 or email@example.com with any questions.
Maryland’s regulations for AFOs became effective January 12, 2009. The first Maryland General Discharge Permit for AFOs, applicable to Concentrated Animal Feeding Operations (CAFOs) and Maryland Animal Feeding Operations (MAFOs), became effective December 1, 2009 and expired on November 30, 2014. This general permit was renewed effective December 1, 2014 as GD Permit 14AF, MDG01 (State, federal permit numbers) and will expire on November 30, 2019.
What is an AFO? CAFO? MAFO?
An "Animal Feeding Operation (AFO)" means a feedlot or facility where:
- Non-aquatic animals are confined, fed, and maintained for at least 45 days in any 12-month period; and
- Crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility.
Use the AFO size chart to determine if your animal feeding operation is small, medium, or large.
A CAFO is a medium or large AFO that discharges or "proposes to discharge" manure, litter, or process wastewater. "Proposes to discharge" means that your facility is designed, constructed, operated, or maintained, such that a discharge to surface waters of the State WILL occur.
Large AFOs do not have to have a man-made ditch, flushing system, or other similar man-made device (such as a swale or pipe) to carry stormwater runoff containing manure, litter, or process wastewater from the production areas to surface waters of the State to be a CAFO. This is because EPA CAFO REGULATIONS define a large CAFO as a point source.
Medium AFOs are considered CAFOs if they have a man-made ditch, flushing system, or other similar man-made device (such as a swale or pipe) to carry stormwater runoff containing manure, litter, or process wastewater from the production areas to surface waters of the State.
Large or medium CAFOs, as defined above, are required to apply for the new General Discharge Permit for AFOs. A small AFO is not a CAFO unless MDE or the EPA specifically designates the operation as a CAFO. Reasons for this designation include the operation's potential for one or more pollutants in the discharge to contribute to stream impairment. If designated by MDE or the EPA as a CAFO, that small operation would also be required to apply for the General Discharge Permit for Animal Feeding Operations.
A MAFO is a large animal feeding operation that does not discharge or “propose to discharge” manure, litter, or process wastewater. If your operation is a medium or small AFO that does not discharge or “propose to discharge,” you are probably not a MAFO unless MDE designates you as one. Reasons for designating a MAFO include the type or location of animal waste storage or animal access to surface water is likely to cause a discharge of pollutants to ground or surface waters of the State. Contact MDE if you have any questions.
All existing medium AFO poultry operations that are not Concentrated Animal Feeding Operations (CAFOs) or Maryland Animal Feeding Operations (MAFOs) are required to submit to the Department a signed Certification of Conformance (COC) if
- it consists of the animal type "chickens (other than laying hens) with dry manure handling", has a house capacity greater than 75,000 square feet and less than 100,000 square feet; or
- it is an existing AFO that has enlarged or reduced the size of its operatin so that it currently meets the criteria for a certification of conformance.
New AFOs meeting the criteria for certification of conformance shall submit the certification prior to beginning operation.
See more information under COC Requirements in Section XI E.
CAFO/MAFO Public Information Search Tool
Use this tool to find information about the CAFOs or MAFOs who have applied for coverage under the GD Permit including public notice dates to submit written comments or request public hearings on operations prior to their registration under the GD Permit. Click here to use the search tool.
Documents Needed to Apply for Coverage
Once you have determined that you are a CAFO or a MAFO, you must submit to MDE a new NOI Form. CAFOs and MAFOs are also required to submit a required plan (comprehensive nutrient management plan (CNMP) that is developed in accordance with the USDA-Natural Resources Conservation Service (NRCS) technical standards OR a combination of a nutrient management plan (NMP) that is developed in accordance with the Maryland Department of Agriculture technical standards AND your soil conservation and water quality plan (conservation plan). The required plan(s) must comply with the requirements in COMAR 26.08.04.09N(3)(b) and federal regulations in 40 CFR 122.42(e). DO NOT WAIT UNTIL YOU GET YOUR REQUIRED PLAN(S) TO SEND IN YOUR NOI if you are required to have permit coverage. To apply for assistance in obtaining a CNMP, contact your local NRCS office. Assistance with NMPs or Conservation Plans can be obtained from your district office.
In order to obtain coverage under the GD Permit, if you are a corporation, you must be registered and in good standing with the Maryland Department of Assessments and Taxation (SDAT). The business or entity’s information provided in the NOI must match the information in the SDAT register. Please contact Mr. Gary Kelman, Head, AFO Section at (410) 537-4423, if you want to apply as an individual or self proprietorship.
NOTE: The permit fee and annual fee for coverage under the AFO GD Permit must be submitted with the NOI.
Pursuant to COMAR 26.08.04.09N(3)(c), “publication of public notices or public notification required by this regulation may be accomplished by posting on MDE’s web site at www.mde.maryland.gov.” The search initiated on this page will serve as notification to the public of the status of AFOs, which have applied for coverage under the General Discharge Permit for AFOs (GD Permit), State Discharge Permit No. 14AF and National Pollutant Discharge Elimination System (NPDES) Discharge Permit No. MDG01. This permit became effective on December 1, 2014.
If you would like to search for the status of AFOs that applied for coverage under the AFO GD Permit, click here.
Public Process for CAFOs and MAFOs:
COMAR 26.08.04.09N(3) describes the public process for CAFOs and MAFOs. This webpage and public information search function contains the required public notices for the AFO Program. Most information on the specific public process for a particular AFO is available by utilizing the public information search function under Section IV of this webpage.
Pending: During the time that AFOs are in the process of submitting their NOIs and Required Plans and the Department is reviewing the submission, the listing for the AFO will show a “Status” of “Pending”.
Preliminary Approval: Once a NOI and the required plans are received, reviewed by MDE to assure that they meet the requirements of the GD Permit, and preliminarily approved, the listing for that particular AFO on the public information search function page is updated to include a Notice of Preliminary Approval of the required plans. This requirement is satisfied when there is a date under “Deadline to Request Hearing” and “Deadline to Submit Written Comments”. The “Status” changes from “Pending” to “Notice of Preliminary Approval”
CAFOs: A public hearing will be held upon request to review MDE’s preliminary approval of the required plan(s) if a written request is received on or before twenty (20) calendar days of the publication of notice of MDE’s preliminary approval on the MDE website. The request should indicate the name, address, and daytime telephone number of the person making the request, the name of any party whom the person making the request may represent, and the name of the operation. Interested parties may also submit written comments whether or not a hearing is requested. Any written comments concerning the preliminary approval must be received by the close of business, thirty (30) calendar days after the publication of notice on MDE's website. Requests for a public hearing or written comments should be sent to: Mr. Horacio Tablada, Director, Land Management Administration, 1800 Washington Blvd., Baltimore, MD 21230-1719. Upon prior request, MDE will provide an interpreter for the deaf or hearing-impaired persons.
MAFOs: Public hearings regarding MAFOs may be held at MDE's discretion. However, interested parties may submit written comments. Any written comments concerning the preliminary approval must be received by the close of business, thirty (30) calendar days after the publication of the notice on the MDE website. Written comments should be sent to: Mr. Horacio Tablada, Director, Land Management Administration, 1800 Washington Blvd., Baltimore, MD 21230-1719.
CAFOs and MAFOs: The submitted NOI and required plan(s) will be available for review at the location indicated in the search on the MDE website as “Plan Review Location”, and at MDE by appointment. For further information regarding this notice, to schedule an appointment to review the NOI or the required plan(s), or to request an interpreter, please contact Mr. Gary Kelman, Head, AFO Section, at (410) 537-4423.
Public Hearing: If a Public Hearing is requested during this period, the hearing will be scheduled and a date and location will appear on the public information search results for a particular AFO. The date will be listed under “Public Hearing Date”, a location will be listed under “Public Hearing Location” and the Status will be listed as “Public Hearing Scheduled.
Final Approval: If no comments are received during the 30 calendar day public comment period, the preliminary approval becomes a final approval and the AFO is registered. The public information search results for such an AFO will indicate a date under “AFO Registered Date” and “AFO Application Number” changes to “AFO Registration Number”. The “Status” changes from “Notice of Preliminary Approval to “Registered”.
MDE will prepare and provide notice of its final approval if:
- Written comments adverse to the preliminary approval are received by MDE within 30 calendar days after publication of the notice of preliminary approval;
- Comments adverse to the preliminary approval were received in writing at, or within 5 calendar days after, a public hearing held according to COMAR 26.08.04.01-2B(5);
- Comments adverse to the preliminary approval were received orally at the public hearing conducted in accordance with COMAR 26.08.04.01-2B(5); or
- The final approval is substantively different from the preliminary approval and all persons who may be aggrieved by the final approval have not waived, in writing, their right to request a contested case hearing.
The public will be apprised of the final approval of the requested plans through the public information search function under the listing for the particular AFO.
- If MDE determines that no modification of the required plans were necessary based on the comments received, a person aggrieved by MDE's final approval can request a Contested Case Hearing, in writing, within fifteen (15) calendar days. The public information search function listing for a particular AFO will provide a date under “Deadline to Request a Contested Case Hearing” and the “Status” will change from “Notice of Preliminary Approval” to “Notice of Final Approval and Opportunity to Request a Contested Case Hearing”. If no Contested Case Hearing is requested during this period, the AFO will be registered. This is indicated by a date under “AFO Registered Date” and “AFO Application Number” changes to “AFO Registration Number. The “Status” will change from “Notice of Final Approval and Opportunity to Request Contested Case Hearing” to “Registered”.
- If MDE determines that it was necessary to have the planner perform a substantial modification of the required plans, the public information search function listing for a particular AFO will indicate a second thirty (30) calendar day opportunity for public comment on the modified plans by listing a date under:
· “Required Plan(s) Review Location”;
· “Deadline to Request Hearing”; and
· “Deadline to Submit Written Comments”.
- The procedure will then be repeated as if this was a Preliminary Approval.
- The “Status” will change from “Notice of Preliminary Approval” to “Notice of Final Approval and Opportunity to Request Contested Case Hearing”.
- If no Contested Case Hearing is requested during this period, the AFO will be registered. This is indicated by a date under “AFO Registered Date” and “AFO Application Number” changes to “AFO Registration Number. The “Status” will change from “Notice of Final Approval and Opportunity to Request Contested Case Hearing” to “Registered”.
Contested Case Hearing: Notwithstanding COMAR 26.08.04.08K(1), which states that “a person may not request a contested case hearing on an individual discharge covered under a general permit adopted under the provisions of this chapter”, a person aggrieved by MDE’s final approval of the required plans, may request a contested case hearing. The form and content of a request for a contested case hearing shall be consistent with COMAR 26.08.04.08K(2) and (3). A contested case hearing conducted under these requirements shall be limited to contesting the terms of the approved plans. The public will be apprised of the contested case hearing through the public information search function listing for a particular AFO.
- If a Contested Case Hearing is requested during this period, the hearing will be scheduled and a date and location will appear on the public information search results for a particular AFO. The date will be listed under “Contested Hearing Date”, a location will be listed under “Contested Hearing Location” and the Status will be listed as “Contested Hearing Scheduled.
Funding for best management practices (BMPs) to address resource management issues and to help farmers meet the new CAFO/MAFO requirements is available through both State and federal funding sources. State funding is available through the Maryland Agricultural Water Quality Cost Share Program (MACS) funded primarily by State water quality bonds. MACS funds targeting animal waste management Best Management Practices (BMPs) have also been provided from the Chesapeake 2010 Trust Fund recently. Farm Bill funding authorizations include creation of a Chesapeake Bay Watershed Initiative (CBWI) which has recently doubled available USDA funding and funding increases are authorized. Local Soil Conservation Districts can provide the most current information about fund availability and assist with the required applications and related paperwork.
To start the process, contact your soil conservation district and they will guide you to the appropriate funding source. Their website is: http://www.mda.state.md.us/resource_conservation/technical_assistance/index.php
Documents Answering Basic Questions
MDE has developed a list of frequently asked questions, a checklist describing the entire procedure, and a diagram where you can determine whether you need a permit for your AFO.
Other Documents of Interest/Guidance
USDA_Natural Resource Conservation Service Contact List
MDE and MDA AFO Letter
New Source CAFO Design Criteria
Optional Recordkeeping Forms for CAFOs and MAFOs: MDE has developed forms for the use by AFOs subject to the GD Permit to document the information required to be tracked by the Permit. If you already have a system in place to track this information, continue to use it. The use of these forms is not required.
Form requesting withdrawal of NOI due to sale, change in operator, or going out of business
Form requesting transfer of registration to new owner/operator or new operator for operations that have been registered as a CAFO or MAFO
Other AFO News and Information
A. Maryland Court of Appeals Uphold CAFO/MAFO Permit
Maryland's General Discharge Permit for Animal Feeding Operations (General Discharge Permit) (09AF, MDG01) has been upheld as a valid general permit by the Maryland courts. This removes uncertainty for AFOs that the GD Permit is legally sufficient. All AFOs that meet the requirements for needing coverage under the GD Permit should submit an NOI and the required plans, if they have not already done so. See Section XIII for more information on the history of the GD Permit.
B. CAFO/MAFO Annual Reports were Due March 1, 2014
All concentrated animal feeding operations (CAFOs) that are registered under the "General Discharge Permit for Animal Feeding Operations" (09AF, MDG01) or have entered into the "General Compliance Schedule for Applicants for CAFO Coverage" or the "General Compliance Schedule for Applicants for Concentrated Animal Feeding Operation (CAFO) Coverage with Comprehensive Nutrient Management Plans (CNMPs) Pending Review and Public Comment" were required to submit their CAFO/MAFO Annual Implementation Reports (AIR Form) by March 1, 2014 covering calendar year 2013.
For the last several years, the Maryland Department of Agriculture (MDA) and the Maryland Department of the Environment (MDE) have consolidated their respective annual reports for AFOs into a single report. This consolidation will make the AIR Form submittal less confusing to farmers which grow livestock and poultry. Applicable livestock and poultry farmers will receive one consolidated AIR Form from MDA. Once completed, this AIR Form should be mailed back to MDA. MDA will, in turn, forward the AFO AIR Forms to MDE.
If your operation is required to submit an AFO annual report and you have not received the four-page AFO AIR Form, please contact MDA at 410-841-5959. Registered MAFOs are required to submit the two-page MDA AIR Form to MDA.
These forms and instructions are available on the MDA website, www.mda.maryland.gov. Follow the "Nutrient Management" link.
C. MDE Provides Catastrophic Poultry Mortality Guidance
MDE has developed new guidance on "Working with MDE during Catastrophic Poultry Mortalities". This document provides a summary of the regulations and practices to be used in cases where a large number of chickens have died due to excessive heat, fires, or disease. Mortalities must be composted in facilities designed for that purpose. If these cannot accommodate a catastrophic mortality, MDE must be notified and give permission to compost in other areas, such as in poultry houses or manure sheds.
D. MDE Adds Approved Alternatives to the 100-foot Setback Standards for CAFOs and MAFOs
MDE has established new "approved alternatives" to the 100-foot setback standards required of CAFOs and MAFOs. As required under Maryland's AFO regulations and permit, MDE consulted with the MDA, USDA-Natural Resources Conservation Service and the University of Maryland Extension in their deliberations in establishing these approved alternatives. The alternatives will give CAFOs and MAFOs additional practices to use during the development of a farm's comprehensive nutrient management plan or nutrient management plan for application of manure. The document "Maryland Setback Standards and Approved Alternatives Consistent with CAFO/MAFO Requirements" is available by clicking on this link.
E. Certification of Conformance (COC) Requirements and Procedures
COMAR 26.08.03.09F states:
- “A chicken (other that laying hens) AFO with dry manure and a total house size capacity of 75,000 square feet or greater that is not otherwise categorized as a CAFO or MAFO, shall submit to the Department a certification of conformance within the time period specified in the general permit for AFOs issued under COMAR 26.08.04.09N.
- The Department may designate a facility a MAFO before or after the submittal of a certification of conformance if the Department determines that the facility is a MAFO under this regulation.
- Failure to submit the required certification shall result in the automatic designation of the facility as a MAFO, and the facility shall be subject to enforcement and penalty for operating without a State discharge permit from the effective date of this regulation or the date the facility began operating, whichever occurs later…”
Poultry AFOs that were not previously eligible for submission of a COC, but have RECENTLY increased the number of chickens to between 37,500 and 124,999 or increased their house capacity to at least 75,001 to 99,999 square feet OR NEWLY CONSTRUCTED A COC OPERATION must submit the COC to MDE as soon as possible or will be subject to enforcement and penalty for operating without a State Discharge Permit.
What to do IF YOUR OPERATION HAS RECENTLY BEEN UPGRADED to fall under the COC requirement or your NEWLY CONSTRUCTED OPERATION falls under the COC requirement:
If you fall under this requirement, please perform the following:
1. Poultry operations falling under the COC requirement that have already submitted a NOI as a MAFO and required plans must complete and return to MDE an AFO Status Form as soon as possible in accordance with the following:
- If your RECENTLY UPGRADED OR NEWLY CONSTRUCTED medium AFO has a total house capacity between 75,001 and 99,999 square feet and does not discharge or propose to discharge pollutants to surface waters of the State, please check the second box in the AFO Status Form, thereby withdrawing your NOI. You must also complete and submit to MDE a signed COC form as soon as possible.
- If your medium AFO discharges or proposes to discharge pollutants to surface waters of the State, please check the third box in the AFO Status Form, indicating your intention to seek permit coverage as a CAFO.
2. Poultry operations falling under the COC requirement that have not previously submitted their NOIs and required plans because they are not a CAFO must:
- Submit a completed and signed COC to MDE as soon as possible.
By signing the COC you commit to:
- Having the required plans on site;
- Implementing the required plans;
- Assuring that the required plans are consistent with MAFO requirements and incorporating all buffers, setbacks, and storage requirements otherwise applicable to MAFOs, as required in the GD Permit.
- Allowing the Department access to your operation to confirm your conformance; and
- Allowing access to your operation by researchers authorized by the MDA and MDE to study the effectiveness of best management practices for manure management.
MDE may reject a COC for cause including:
- False or inaccurate information was contained in the COC;
- Conditions or specifications included in the required plans have been or are about to be violated;
- Substantial deviation from the required plans has occurred;
- The AFO has failed to permit an authorized MDE representative, upon presentation of proper credentials, to:
- Enter at any reasonable time upon the AFO’s premises where a pollutant source is located, pertinent operations are conducted, or records related to the required plans are maintained;
- Access and copy any records related to the required plans;
- Inspect facilities to ensure compliance with the conditions of the COC;
- Inspect any monitoring equipment or method required in the required plans; OR
- Sample any discharge or pollutants;
- Any State of federal water quality stream standard or effluent standard has been or is threatened to be violated; or
- Any other good cause exists for rejecting the COC.
If a COC is rejected for any of the above reasons, the medium poultry AFO must immediately submit a MAFO or CAFO NOI, as applicable, and required plans. Failure to do so may result in enforcement action by MDE for the AFO's operation without a discharge permit.
F. Click Here for information on Maryland Department of Agriculture's Pesticide Container Recycling Program (June through September 2013)
G. Tentative Determination for GD Permit 14AF/MDG01 and Notification of Public Hearing Published
The Code of Maryland Regulations (COMAR) 26.08.04.08 requires publication of a Tentative Determination and a notification of a public hearing when a permit is renewed. Following is the publication as it appeared in the Maryland Register on September 5, 2014. The Tentative Determination also was published in the Demarva Farmer, Salisbury Daily Times, the Record Observer, and Frederick News Post once per week for two consecutive weeks between September 5, 2014 and September 19, 2014.
DEPARTMENT OF THE ENVIRONMENT
LAND MANAGEMENT ADMINISTRATION
Tentative Determination to Reissue Permit
General Discharge Permit for Animal Feeding Operations
The Maryland Department of the Environment (MDE) has made a tentative determination to renew, with modifications, the General Discharge Permit for Animal Feeding Operations, NPDES # MDG01, State Discharge Permit # 09AF (GD Permit). If renewed, the GD Permit will continue to carry NPDES # MDG01, but the State Discharge Permit number will be changed to State Discharge Permit # 14AF.
The permit is necessary to protect water quality and to comply with federal requirements under Code of Federal Regulations 40 CFR Parts 122, 123, 124, 125, and 412, as well as State requirements under Code of Maryland Regulations (COMAR) 26.08.04.09N. All large and medium animal feeding operations (AFOs) that discharge or propose to discharge to surface or ground water, or both, as defined in COMAR 26.08.03.09A must be covered under the GD Permit. Other AFOs may be required to be covered under the GD Permit at the discretion of MDE and the United States Environmental Protection Agency (EPA).
All AFOs currently registered under the GD Permit must reapply for coverage under the renewal permit by notifying MDE, in writing, at least sixty (60) calendar days prior to the expiration of the current permit. Once a request for continuing coverage has been filed, the expired GD Permit will continue in force and effect until the new general permit is issued and any deadline for opportunity to register under the renewal permit is reached or the general permit is revoked or withdrawn.
Within sixty (60) calendar days after the renewal and reissuance of the GD Permit with new effective and expiration dates, the current registrant is required to either submit to MDE a written notice if the operation will no longer need the general permit or a new Notice of Intent (NOI).
All existing AFOs required to be covered by the GD Permit who are not covered by the current GD Permit must submit a new NOI and any fee required by the new GD Permit immediately, but no later than sixty (60) calendar days prior to the expiration of the current GD Permit. All new AFOs that will be in operation during the effective dates of the renewed GD Permit, must submit their NOI and required plans at least one-hundred-eighty (180) calendar days prior to commencing operations.
The proposed modifications to the current GD Permit are primarily minor in nature and the draft GD Permit is at least as stringent as the existing GD Permit. Most of the changes are to eliminate requirements that are no longer applicable in the second round of the permit, such as many of the deadlines. Also, some editorial changes were made to provide consistency and reflect current standards (throughout). Other than these, specific changes include (Page numbers refer to draft permit.):
1. Part IA5: Clarification of "Certification of Conformance" (Page 2) – This section has been re-written to clarify this requirement.
2. Part IVA6: Logbooks/Recordkeeping (Pages 12, 13, and 14) - This section was expanded to clarify recordkeeping requirements for both land and no-land operations in fulfillment of the recordkeeping requirement of 40 CFR Part 122.42(e)(1)(ix).
3. Part IIIA2/Part IIIB2/Part IVA1: Removal of the CAFO-only requirement to fulfill the application requirement to submit a NMP and Conservation Plan by the submission of a CNMP (Pages 7, 8, and 10) – CAFOs will now have the same requirements as MAFOs – to submit either a CNMP or a combination of a NMP and Conservation Plan – “the required plan” provided that it complies with the requirements in COMAR 26.08.04.09N(3)(b) and the federal regulations in 40 CFR Part 122.42(e)(1). These regulations address the requirement of the nine minimum standards to protect water quality. This requirement is at least as stringent as the current GD Permit and will result in AFOs being able to timely obtain and make updates to plans.
4. Part IIIB5: Required plan incorporation into permit (Page 8) – This section reinforces that requirements in a required plan are also permit terms as required by federal regulations, 40 CFR Part 122.42(e)(5).
5. Part IIIC: Addition of NOI requirement for “the total square footage of all poultry houses” (Page 9) – This information is necessary to determine whether an operation that has no discharge may apply for a Certification of Conformance or must apply for coverage under the GD Permit as a MAFO.
6. Part IIIF: Removal of explanation of when fee is deemed paid and relation to effective date of payment (Page 10) – The deleted provision is not necessary and is related to internal MDE business operations rather than a condition to discharge.
7. Part IVA(1)(a)(3): Requirement for the NMP to be prepared by a certified and licensed nutrient management consultant (Page 11) – This Section is required to comply with COMAR 15.20.04, 15.20.07 and 15.20.08.
8. Part IVB(6)(a)/Part IVB(8)(a): Clarification of existing permit requirement that field ditches are included in the setback requirement of standard 6 of the nine minimum standards (Pages 14 and 15) – This Section clarifies the existing provision.
9. Part IVD2 to Part IVA(6)(b)(4) and Part IVA(7)(a)(v): Move of weekly animal waste storage and storm water routing structure inspection requirement from Page 16 to Pages 13 and 14. – This is a clarification of the existing requirements. Current permit requires these inspections, but not documentation of the inspections.
10. Part IVF: Clarification of the obligations of permittees when they modify their operation. Requirements are split into those that require a new NOI and those that require only notification (Page 17) – A new NOI will be required for all substantial modifications to operations.
11. Part VC(2)(b)/Part VC(2)(c): Reduction of the requirement to collect waste generated data and field-specific land application data from per month to per year, to be reported on the annual report (Page 19) – This provision is to make permit requirements consistent with industry practices.
12. Part VIIB: Addition of “United States Environmental Protection Agency” under the “Right of Entry” general condition (Page 22) – This provision was added at EPA’s request.
13. Part VIIH: Addition of a statement that the Department may impose additional requirements on the permittee by the Oil Control Program and Emergency Planning and Community Right to Know Act (Page 23). – This provision was added to address other requirements that may be applicable to AFOs.
14. Part VIIK: Added statement/text requiring the permittee to implement BMPs required to satisfy the Chesapeake Bay Watershed Implementation Plan (WIP) and reserving the right of the Department to impose additional BMPs to minimize phosphorus and nitrogen transport (page 24). – This provision was added per EPA’s request.
NOTE: A public hearing on the tentative determination is scheduled to be held in Princess Anne, Maryland on October 14, 2014 at 6:00 PM at the Richard A. Henson Center, University of Maryland Eastern Shore, 30665 Student Services Center Lane, Princess Anne, MD 21853.
Written comments concerning the tentative determination will be considered in the preparation of a final determination if submitted to MDE by the close of business on October 20, 2014 to the attention of Mr. Horacio Tablada at Maryland Department of the Environment, Land Management Administration, 1800 Washington Blvd., Suite 610, Baltimore, Maryland 21230-1719 Attn: Mr. Horacio Tablada and must include the name, address and telephone number (home and work) of the person making the comments and the party whom the person making the comment may represent. Please include the GD Permit number on the comment document (i.e., NPDES # MDG01, State Discharge Permit # 14AF.)
The fact sheet for the tentative determination and a copy of the renewal GD Permit for AFOs may be viewed on the MDE website, www.mde.maryland.gov. Persons may also review the supporting documentation by contacting Mr. Gary Kelman at 410-537-4423 or firstname.lastname@example.org to make an appointment or by written request to Mr. Kelman at the above address. Copies of documents may be obtained at a cost of $0.36 per page.
H. Final Determination for GD Permit (MDG01, 14AF) Published
Final Determination Published
The Code of Maryland Regulations (COMAR) 26.08.04.01-3A(2) requires publication of a Final Determination if (b) "Comments adverse to the tentative determination were received in writing at, or within 5 days after, a public hearing held according to Regulation .01-2B(5) of this chapter; (c) Comments adverse to the tentative determinatin were received at the public hearing conducted under this section and the Department prepared a transcript of the comments made at the hearing; or (d) The final determination is substantively different from the tentative determinatin and all persons who may be aggrieved by the final determination have not waived, in writing, their right to request a contested case hearing.
The Maryland Department of the Environment (MDE) held a public hearing on the Tentative Determination at the University of Maryland Eastern Shore on October 14, 2014. Oral comments were received at the hearing and written comments were received prior to the expiration of the 5-day post hearing comment period on October 20, 2014. MDE published the Final Determination for the General Discharge Permit for Animal Feeding Operation (GD Permit) on this website and in the Delmarva Farmer, Salisbury Daily Times, the Record Observer, and Frederick News Post once per week for two consecutive weeks starting November 25, 2014 and following:
DEPARTMENT OF THE ENVIRONMENT
LAND MANAGEMENT ADMINISTRATION
Final Determination to Reissue
General Discharge Permit for Animal Feeding Operations
In accordance with § 1-604(b) Environment Article, Annotated Code of Maryland, the Maryland Department of the Environment (the “Department” or “MDE”) has made a Final Determination to renew, with revisions, the General Discharge Permit for Animal Feeding Operations, NPDES # MDG01, State Discharge Permit # 09AF (“GD Permit”). The new GD Permit will continue to carry NPDES # MDG01, but the State Discharge Permit number will be changed to Permit # 14AF. The new GD Permit will be effective on December 1, 2014.
The permit is necessary to protect water quality and to comply with federal requirements under 40 Code of Federal Regulations (“CFR”) Parts 122, 123, 124, 125, and 412, as well as State requirements under Code of Maryland Regulations (“COMAR”) 26.08.04.09N. All large and medium animal feeding operations (“AFOs”) that discharge or propose to discharge to waters of the State must be covered under the GD Permit. Other AFOs may be required to be covered under the GD Permit at the discretion of MDE or the United States Environmental Protection Agency (“EPA”).
As required by COMAR 26.08.04.08H, MDE conducted a Public Hearing on October 14, 2014 at the Richard A. Henson Center, University of Maryland Eastern Shore, 30665 Student Services Center Lane, Princess Anne, Maryland 21853. In addition to the proposed revisions to the previous GD Permit, which were included in the Tentative Determination issued by the Department on September 5, 2014, MDE has made the following additional revisions in response to comments received as part of the public participation process:
Part I.A.5.b: Reworded to clarify that the deadlines listed for submitting an updated notice of intent and required plans for existing MAFOs that have become CAFOs applies only to MAFOs that are designated as CAFOs under 40 CFR §122.23(c).
Part III.F: Reduced the annual permit fees for small, medium, and large CAFOs to $60, $300, and $800, respectively.
Part IV.A.1.a(1) and (2): Clarified that the provision allowing use of other NRCS Practice Standards for stockpiling to develop required plans is in addition to and not an alternative to the requirement to form piles of litter in conformance with NRCS Practice Standard 633.
Part IV.A.6: Changed the requirement to document inspections of animal waste storage areas once annually for dry animal waste operations to once every three months. Changed the requirement to document inspections of storm water routing structures once annually for dry animal waste operations to once weekly.
Part V.A: Added “total phosphorus” and “any other constituents as may be required by the Department” to the list of constituents that must be analyzed when the Department requires a permittee to collect samples of surface discharges.
Part V.C: Added to the list of items to be included in the CAFO annual report “any other information required to be reported under federal or State law.”
MDE has also made the following typographical corrections to the GD Permit:
Part I.A.5.a: The missing word “or” was added between Part I.A.5.a.i(a) and I.A.5.a.i(b). The improper capitalization of “is” was fixed in I.A.5.a.i(b). The references to I.A.5.a were revised to reference Part I.A.5.a.i(a).
Part I.A.5.b: Comprehensive Nutrient Management Plan (CNMP) was replaced with “required plan” to reflect the deletion of the CAFO-only requirement for submission of a CNMP.
Part II.E: The State general discharge permit number was updated to 14AF.
Part IV.A.1: Deleted extra spaces.
Part IV.A.1.b: Added a space between “plan” and “must” in the first sentence.
Part IV.A.7.a: Deleted extra periods after items 1) through 5).
As provided by § 1-601(c) of the Environment Article, a Final Determination by the Department on the issuance, denial, renewal, or revision of this permit is subject to judicial review at the request of any person that: (1) Meets the threshold standing requirements under federal law; and (2) (i) Is the applicant; or (ii) Participated in the public participation process through the submission of written or oral comments, unless an opportunity for public participation was not provided. Judicial review is based on the administrative record before the Department and limited to objections raised during the public comment period unless the petitioner demonstrates that: (i) The objections were not reasonably ascertainable during the comment period; or (ii) Grounds for the objections arose after the comment period. Md. Code Ann., Envir. § 1-601(d). A person petitioning for judicial review shall file the petition in accordance with Title 1, Subtitle 6 of the Environment Article and the Maryland Rules. Md. Code Ann., Envir. § 1-605 (a), (c). A party submitting a petition for judicial review shall file the petition within thirty (30) calendar days after publication of a notice of Final Determination. Md. Code Ann., Envir. § 1-605 (b).
A document entitled “Response to Public Comments Regarding General Discharge Permit for Animal Feeding Operations, NPDES Permit # MDG01, State Discharge Permit # 14AF, November 20, 2014”, as well as the new GD Permit may be viewed on the MDE website at www.mde.maryland.gov. Copies of these documents may be obtained from MDE at a cost of $0.36 per page by contacting Mr. Gary Kelman at (410) 537-4423 or email@example.com.
This information is presented for those who are interested in the history of the development of the regulations and the 2009 GD Permit. The following documents are archival in nature and should not be viewed as current requirements.
*Note: MDE issued its final determination to issue a GD Permit for AFOs on January 2, 2009; however, issuance of the GD Permit was delayed by a legal challenge. On May 5, 2009, the Maryland Office of Administrative Hearings issued a Proposed Decision upholding the permit against this legal challenge, and Petitioners Assateague Coastkeeper, Lower Susquehanna Riverkeeper, C. & B. Schelts, & Waterkeeper Alliance filed exceptions to that ruling. On September 2, 2009, following further briefing and oral argument, MDE issued the Final Decision, holding that the Petitioners have not placed any material fact in dispute and that the proposed GD Permit conforms to federal and State law. The issuance of this Final Decision allows MDE to issue the GD Permit and to place applicable facilities under the new requirements designed to protect the waters of the State. The Petitioners filed an appeal of the Final Decision in the Circuit Court for Baltimore City on October 2, 2009. In the absence of a court-issued stay of the Final Decision, MDE and MDA agreed that it was in the best interest of Maryland's waterways, facilities subject to Maryland’s AFO requirements, and all Marylanders for MDE to issue the permit, effective December 1, 2009. This allowed existing AFOs and those wishing to construct new AFOs to implement the necessary environmental controls under the clear and consistent guidelines provided by the GD Permit.
The Assateague Coastkeepers, Waterkeeper Alliance and the Lower Susquehanna Riverkeeper argued that the GD Permit was deficient because it was not as stringent as federal law. MDE argued that the GD Permit was at least as stringent as federal law, and in fact, more stringent in that it requires MAFOs to seek permit coverage.
The Office of Administrative Hearings, the MDE Final Decision Maker, and the Circuit Court of Baltimore City all held that the GD Permit was valid.
On September 6, 2011, the Court of Special Appeals (CSA) agreed with MDE and the lower decisions and held that the GD Permit was at least as stringent as federal law. The CSA held that certain challenged provisions of the GD Permit were based on substantial evidence considered by the Department from various sources including the EPA, University of Maryland Scientist, the Wye Research and Education Center, and scientists at the Chesapeake Research Consortium. The Court also agreed with MDE that the GD Permit would not cause or contribute to violations of water quality standards because the GD Permit, which regulates a previously unregulated community, will result in a net reduction in pollution.
On January 23, 2012, the Court of Appeals of Maryland denied the Petitioners request for review of the CSA ruling; thereby, making the CSA decision final.
Implications of Ruling
Maryland’s General Discharge Permit for Animal Feeding Operations (09AF, MDG01) has been upheld as a valid general permit by the Maryland courts. This removes uncertainty for AFOs that the GD Permit is legally sufficient. All AFOs that meet the requirements for needing coverage under the GD Permit should submit an NOI, if they have not already done so.
If you have any questions, please contact Gary Kelman at 410-537-4423 or e-mail at Gary.Kelman@maryland.gov.
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