North Carolina § 143-215 - 10C. Applications and permits.

§ 143-215. 10C. Applications and permits.

No person shall construct or operate an animal waste management system for an animal operation or operate an animal waste management system for a dry litter poultry facility that is required to be permitted under 40 Code of Federal Regulations § 122, as amended at 73 Federal Register 70418 (November 20, 2008), without first obtaining an individual permit or a general permit under this Article. The Commission shall develop a system of individual and general permits for animal operations and dry litter poultry facilities based on species, number of animals, and other relevant factors. The Commission shall develop a general permit for animal operations that includes authorization for the permittee to construct and operate a farm digester system. It is the intent of the General Assembly that most animal waste management systems be permitted under a general permit. The Commission, in its discretion, may require that an animal waste management system, including an animal waste management system that utilizes a farm digester system, be permitted under an individual permit if the Commission determines that an individual permit is necessary to protect water quality, public health, or the environment. After the general permit for animal operations that includes authorization for the permittee to construct and operate a farm digester system has been issued, the decision to require an individual permit shall not be based solely on the fact that the animal waste management system utilizes a farm digester system. The owner or operator of an animal operation shall submit an application for a permit at least 180 days prior to construction of a new animal waste management system or expansion of an existing animal waste management system and shall obtain the permit prior to commencement of the construction or expansion. The owner or operator of a dry litter poultry facility that is required to be permitted under 40 Code of Federal Regulations § 122, as amended at 73 Federal Register 70418 (November 20, 2008), shall submit an application for a permit at least 180 days prior to operation of a new animal waste management system. An owner or operator of an animal waste management system for an animal operation or a dry litter poultry facility that is required to be permitted under 40 Code of Federal Regulations § 122, as amended at 73 Federal Register 70418 (November 20, 2008), shall apply for an individual National Pollutant Discharge Elimination System (NPDES) permit or a general NPDES permit under this Article and may not discharge into waters of the State except in compliance with an NPDES permit. An animal waste management system that is not required to be permitted under 40 Code of Federal Regulations § 122, as amended at 73 Federal Register 70418 (November 20, 2008), shall be designed, constructed, and operated so that the animal operation served by the animal waste management system does not cause pollution in the waters of the State except as may result because of rainfall from a storm event more severe than the 25-year, 24-hour storm. An existing animal waste management system that is required to be permitted under 40 Code of Federal Regulations § 122, as amended at 73 Federal Register 70418 (November 20, 2008), shall be designed, constructed, maintained, and operated in accordance with 40 Code of Federal Regulations § 412, as amended at 73 Federal Register 70418 (November 20, 2008), so that the animal operation served by the animal waste management system does not cause pollution in waters of the State except as may result because of rainfall from a storm event more severe than the 25-year, 24-hour storm. A new animal operation or dry litter poultry facility that is required to be permitted under 40 Code of Federal Regulations § 412.46, as amended at 73 Federal Register 70418 (November 20, 2008), shall be designed, constructed, maintained, and operated so that there is no discharge of pollutants to waters of the State. The Commission shall act on a permit application as quickly as possible and may conduct any inquiry or investigation it considers necessary before acting on an application. Failure of the Commission to make a final permitting decision involving a notice of intent for a certificate of coverage under a general permit for animal operations that includes authorization for the permittee to construct and operate a farm digester system within 90 days of the Commission's receipt of a completed notice of intent shall result in the deemed approval of coverage under the permit. If the Commission fails to act within 90 days of the Commission's receipt of a completed notice of intent, the permittee may request that the Commission provide written confirmation that the notice of intent is deemed approved. Failure to provide this written confirmation within 10 days of the request shall serve as a basis to seek a contested case hearing pursuant to Article 3 of Chapter 150B of the General Statutes. Unless all parties to the case agree otherwise in writing, the administrative law judge shall issue a final decision or order in the contested case no later than 120 days after its commencement pursuant to G.S. 150B-23; provided that, upon written request of the administrative law judge or any party to the hearing, the Chief Administrative Law Judge may extend this deadline for good cause shown, no more than two times, for not more than 30 days per extension. Upon review of a failure to act on a notice of intent, the administrative law judge may either (i) direct the Commission to issue a written certificate of coverage under the general permit or (ii) deny the petition. All applications for permits or for renewal of an existing permit shall be in writing, and the Commission may prescribe the form of the applications. All applications shall include an animal waste management system plan approved by a technical specialist. The Commission may require an applicant to submit additional information the Commission considers necessary to evaluate the application. Permits and renewals issued pursuant to this section shall be effective until the date specified therein or until rescinded unless modified or revoked by the Commission. An animal waste management plan for an animal operation shall include all of the following components: A checklist of potential odor sources and a choice of site-specific, cost-effective remedial best management practices to minimize those sources. A checklist of potential insect sources and a choice of site-specific, cost-effective best management practices to minimize insect problems. Provisions that set forth acceptable methods of disposing of mortalities. Provisions regarding best management practices for riparian buffers or equivalent controls, particularly along perennial streams. Provisions regarding the use of emergency spillways and site-specific emergency management plans that set forth operating procedures to follow during emergencies in order to minimize the risk of environmental damage. Provisions regarding periodic testing of waste products used as nutrient sources as close to the time of application as practical and at least within 60 days of the date of application and periodic testing, at least once every three years, of soils at crop sites where the waste products are applied. Nitrogen shall be a rate-determining element. Phosphorus shall be evaluated according to the nutrient management standard approved by the Soil and Water Conservation Commission of the Department of Agriculture and Consumer Services and the Natural Resources Conservation Service of the United States Department of Agriculture for facilities that are required to be permitted under 40 Code of Federal Regulations § 122, as amended at 73 Federal Register 70418 (November 20, 2008). If the evaluation demonstrates the need to limit the application of phosphorus in order to comply with the nutrient management standard, then phosphorus shall be a rate-determining element. Zinc and copper levels in the soils shall be monitored, and alternative crop sites shall be used when these metals approach excess levels. Provisions regarding waste utilization plans that assure a balance between nitrogen application rates and nitrogen crop requirements, that assure that lime is applied to maintain pH in the optimum range for crop production, and that include corrective action, including revisions to the waste utilization plan based on data of crop yields and crops analysis, that will be taken if this balance is not achieved as determined by testing conducted pursuant to subdivision (6) of this subsection. Provisions regarding the completion and maintenance of records on forms developed by the Department, which records shall include information addressed in subdivisions (6) and (7) of this subsection, including the dates and rates that waste products are applied to soils at crop sites, and shall be made available upon request by the Department. Any owner or operator of a dry litter poultry facility that is not required to be permitted under 40 Code of Federal Regulations § 122, as amended at 73 Federal Register 70418 (November 20, 2008), but that involves 30,000 or more birds shall develop an animal waste management plan that complies with the testing and record-keeping requirements under subdivisions (6) through (8) of subsection (e) of this section. Any operator of this type of animal waste management system shall retain records required under this section and by the Department on-site for three years. An animal waste management plan for a dry litter poultry facility required to be permitted under 40 Code of Federal Regulations § 122, as amended at 73 Federal Register 70418 (November 20, 2008), shall include the components set out in subdivisions (3), (6), (7), and (8) of subsection (e) of this section, and to the extent required by 40 Code of Federal Regulations § 122, as amended at 73 Federal Register 70418 (November 20, 2008), for land application discharges, subdivision (4) of subsection (e) of this section. Periodic testing of waste products as required in subdivision (6) of subsection (e) of this section, subsection (f) of this section and subsection (f1) of this section may be temporarily suspended in compliance with G.S. 106-399.4 when the State Veterinarian, in consultation with the Commissioner of Agriculture and with the approval of the Governor, determines that there is an imminent threat within the State of a contagious animal disease. The suspension of testing only applies to the animal operation types designated by the State Veterinarian, and shall be in effect for a period of time that the State Veterinarian deems necessary to prevent and control the animal disease. During the suspension of waste analysis, waste product nutrient content to be used for application of waste at no greater than agronomic rates shall be established by the 1217 Interagency Committee as created by Session Law 1995-626. The Commission shall encourage the development of alternative and innovative animal waste management technologies. The Commission shall provide sufficient flexibility in the regulatory process to allow for the timely evaluation of alternative and innovative animal waste management technologies and shall encourage operators of animal waste management systems to participate in the evaluation of these technologies. The Commission shall provide sufficient flexibility in the regulatory process to allow for the prompt implementation of alternative and innovative animal waste management technologies that are demonstrated to provide improved protection to public health and the environment. The owner or operator of an animal waste management system shall: In the event of a discharge of 1,000 gallons or more of animal waste to the surface waters of the State, issue a press release to all print and electronic news media that provide general coverage in the county where the discharge occurred setting out the details of the discharge. The owner or operator shall issue the press release within 48 hours after the owner or operator has determined that the discharge has reached the surface waters of the State. The owner or operator shall retain a copy of the press release and a list of the news media to which it was distributed for at least one year after the discharge and shall provide a copy of the press release and the list of the news media to which it was distributed to any person upon request. In the event of a discharge of 15,000 gallons or more of animal waste to the surface waters of the State, publish a notice of the discharge in a newspaper having general circulation in the county in which the discharge occurs and in each county downstream from the point of discharge that is significantly affected by the discharge. The Secretary shall determine, at the Secretary's sole discretion, which counties are significantly affected by the discharge and shall approve the form and content of the notice and the newspapers in which the notice is to be published. The notice shall be captioned "NOTICE OF DISCHARGE OF ANIMAL WASTE". The owner or operator shall publish the notice within 10 days after the Secretary has determined the counties that are significantly affected by the discharge and approved the form and content of the notice and the newspapers in which the notice is to be published. The owner or operator shall file a copy of the notice and proof of publication with the Department within 30 days after the notice is published. Publication of a notice of discharge under this subdivision is in addition to the requirement to issue a press release under subdivision (1) of this subsection. A person who obtains an individual permit under G.S. 143-215.1 for an animal waste management system that serves a public livestock market shall not be required to obtain a permit under this Part and is not subject to the requirements of this Part. History (1995 (Reg. Sess., 1996), c. 626, s. 1; 1997-458, s. 9.2; 1999-329, s. 8.2; 1999-456, s. 68; 2001-254, ss. 3, 4; 2001-326, s. 2; 2004-176, s. 2; 2009-92, s. 1; 2011-145, s. 13.22A(q); 2013-228, s. 1; 2015-263, s. 33(b); 2021-78, s. 11(b).) Editor's Note. - Session Laws 1999-329, s. 13.7, provides that this act shall not be construed to obligate the General Assembly to appropriate funds to implement the provisions of this act. Every State agency to which this act applies shall implement the provisions of this act from funds otherwise appropriated or available to that agency. Session Laws 2004-176, s. 4, provides: "An owner or operator of an animal operation or a dry litter poultry facility shall apply for a permit as follows: "(1) An owner or operator of an animal operation in existence on or before 14 April 2003, and subject to regulation under federal regulations on or before 14 April 2003, shall maintain continuous permit coverage and comply with the phosphorous provisions of the most current nutrient management standard on or before 1 July 2007. "(2) An owner or operator of a dry litter poultry facility in existence on or before 14 April 2003, and with a poultry population that made it subject to regulation under 40 Code of Federal Regulations § 122.23 (1 July 2003) only after 14 April 2003, shall apply for a permit no later than 13 April 2006. "(3) An owner or operator of a dry litter poultry facility in existence on or before 14 April 2003, who increases the poultry population of the facility to a number that subjects the facility to regulation under 40 Code of Federal Regulations § 122.23 (1 July 2003) after, but not on or before, 14 April 2003, shall apply for a permit by 13 April 2006, or 90 days after the increase in population, whichever is later." Session Laws 2004-176, s. 6, provides: "(1) In the event there is a final determination by a court of competent jurisdiction that part or all of the federal regulations governing dry litter poultry facilities are invalid, this act shall not be construed to implement the invalid parts of the regulations or to apply the invalid parts of the regulations to facilities otherwise made subject to those federal regulations. "(2) This act shall not be construed to affect the provisions of Section 1.1 of S.L. 1997-458, as amended by Section 2 of S.L. 1998-188, Section 2.1 of S.L. 1999-329, Section 1 of S.L. 2001-254, and S.L. 2003-266. "(3) This act shall not be construed to affect any federal permit requirement that was in effect on or before the date this act becomes effective [January 1, 2005]." Session Laws 2013-228, s. 2, made the amendment to subdivision (e)(6) by Session Laws 2013-228, s. 1, applicable to any animal waste management plan submitted to or approved by the Department after August 1, 2013. Session Laws 2021-78, s. 14(a), is a severability clause. Session Laws 2021-78, s. 11(c)-(f), provides: "(c) For purposes of this section, the following definitions apply: "(1) "Certificate of coverage" means an approval granted to a person who meets the requirements of coverage under a general permit as provided in 15A NCAC 02T.0111 (Conditions for Issuing General Permits). "(2) "Commission" means the Environmental Management Commission. "(3) "Notice of intent" means a request for coverage under a general permit using forms approved by the Division of Water Resources of the Department of Environmental Quality. "(d) The Commission shall immediately initiate the process of developing and issuing a general permit for animal operations that includes authorization for the permittee to construct and operate a farm digester system. In addition to conditions required to describe and authorize the construction, monitoring, and proper operation of farm digester systems, the general permit shall contain the same conditions that are included in the currently existing general permits for animal operations. The general permit shall become effective no later than 12 months after the effective date of this section and shall expire on the later of September 30, 2024, or the effective date of the next version of the currently existing general permit for animal operations. "(e) Until the general permit issued under subsection (d) of this section becomes effective, any animal operation that holds a general or individual permit that (i) is in effect on the effective date of this section and (ii) authorizes the construction and operation of a farm digester system may construct and continue to operate the farm digester system as authorized by that permit. For any animal operation that holds a general or individual permit that is in effect on the effective date of this section, but that does not authorize the construction and operation of a farm digester system, an operator may submit a notice of intent to be covered under the general permit to be developed under subsection (d) of this section. If the submitted notice of intent is incomplete, the Commission shall notify the applicant of the deficiency in the notice of intent. When an operator submits a completed notice of intent, the Commission shall, within 90 days of receipt of the completed notice of intent, either issue a certificate of coverage allowing the operator to construct and operate the farm digester system or notify the operator of the basis for the denial of the certificate of coverage. If the Commission fails to take action on the notice of intent within 90 days, authorization to construct and operate a farm digester system under the existing general permit shall be deemed approved. "(f) Nothing in this section shall apply to permits for facilities that are required to be permitted under 40 C.F.R. § 122, as amended at 73 Federal Register 70418 (November 20, 2008)." Session Laws 2021-78, s. 14(a), is a severability clause. Effect of Amendments. - Session Laws 2004-176, s. 2, effective January 1, 2005, in subsection (a), inserted "or operate an animal waste management system for a dry litter poultry facility that is subject to regulation under 40 Code of Federal Regulations § 122.23 (1 July 2003)" following "an animal operation," inserted "and dry litter poultry" following "for animal operations," and added the fifth and last sentences; inserted subsection (a1); added "or if required by 40 Code of Federal Regulations § 122.23 (1 July 2003) from a storm event more severe than the 100-year, 24-hour storm" at the end of subsection (b); in subsection (e), added "An" preceding "animal," and substituted "plan for an animal operation" for "plans"; in subdivision (e)(6), substituted "a" for "the" preceding "rate-determining," and inserted the third sentence; in subsection (f), inserted "owner or" preceding "operator" substituted "a dry litter poultry facility that is not subject to regulation under 40 Code of Federal Regulations § 122.23 (1 July 2003) but that involves" for "an animal operation with a dry litter animal waste management system involving"; and inserted subsection (f1). Session Laws 2009-92, s. 1, effective June 11, 2009, rewrote the section. Session Laws 2011-145, s. 13.22A(q), effective July 1, 2011, inserted "of the Department of Agriculture and Consumer Services" in the third sentence of subdivision (e)(6). Session Laws 2013-228, s. 1, effective August 1, 2013, substituted "once every three years" for "annually" in subdivision (e)(6). For applicability, see Editor's note. Session Laws 2015-263, s. 33(b), effective September 30, 2015, added subsection (f2). Session Laws 2021-78, s. 11(b), effective July 2, 2021, in subsection (a), added the third and sixth sentences; and inserted ", including an animal waste management system that utilizes a farm digester system,” in the fifth sentence; and added subsection (c1). Opinions of Attorney General Certain Animal Feeding Operations (CAFOs). - Subsection (b) is consistent with and at least as stringent as the federal NPDES requirements for certain animal feeding operations and, therefore, no permit terms can excuse a discharge of pollution to waters except as may result because of rainfall from a storm event more severe than the 25-year, 24-hour storm. See opinion of Attorney General to Daniel C. Oakley, General Counsel, North Carolina Department of Environment and Natural Resources, 2002 N.C. AG LEXIS 17 (5/17/02). Co-Permittees on NPDES General CAFO Permit. - Any entity, including an integrator, that exercises substantial operational control over CAFOs and the owner/operator of the animal operation such that it can fairly be determined to be "constructing or operating" an animal waste management system, can be included as a required co-permittee on the NPDES general CAFO permit. See opinion of Attorney General to Daniel C. Oakley, General Counsel, North Carolina Department of Environment and Natural Resources, 2002 N.C. AG LEXIS 17 (5/17/02).