IDAPA 58.01.09
This rule applies to swine facilities as specified in 58.01.09.100, including swine facilities required to obtain and operate under an Idaho Pollutant Discharge Elimination System permit (IDAPA 58.01.25).
This rule establishes the procedures and requirements for the issuance of a permit to construct, operate, close or expand swine facilities of a defined capacity. The intent is to ensure animal waste from swine facilities are properly controlled so as not to adversely affect public health or the environment.
This rule implements the following statutes passed by the Idaho Legislature:
Health and Safety -
Environmental Quality:
Mary Anne Nelson
1410 N. Hilton
Boise, ID 83706
Phone: (208) 373-0291
Email: mary.anne.nelson@deq.idaho.gov
www.deq.idaho.gov
This rule chapter will be reviewed in compliance with Section 67-5292, Idaho Code, and in accordance with the 8-year rule review schedule linked here.
58.01.09 – Rules Regulating Swine Facilities
000. Legal Authority. ... 3
001. Title And Scope. ... 3
002. Administrative Appeals. ... 3
003. -- 009. (Reserved) ... 3
010. Definitions. ... 3
011. -- 099. (Reserved) ... 3
100. Applicability. ... 3
101. -- 199. (Reserved) ... 3
200. Permit Application. ... 3
201. -- 204. (Reserved) ... 6
205. Financial Assurance Requirements. ... 6
206. -- 249. (Reserved) ... 7
250. Water Quality Protection. ... 8
251. -- 299. (Reserved) ... 8
300. Application Processing Procedure. ... 8
301. -- 399. (Reserved) ... 9
400. Standard Permit Conditions. ... 9
401. -- 449. (Reserved) ... 11
450. Specific Permit Conditions. ... 11
451. -- 499. (Reserved) ... 12
500. Permit Modification. ... 12
501. -- 549. (Reserved) ... 12
550. Transfer Of Permits. ... 12
551. -- 599. (Reserved) ... 12
600. Violations. ... 12
601. -- 999. (Reserved) ... 13
The Idaho Legislature has given the Idaho Board of Environmental Quality the authority to promulgate these rules pursuant to Sections 39-104A, 39-105, 39-107, and 39-7906, Idaho Code. (3-24-22)
01. Title. These rules are titled IDAPA 58.01.09, 'Rules Regulating Swine Facilities.' (3-24-22)
02. Scope. These rules establish the procedures for the issuance of a permit to construct, operate, close, or expand swine facilities of a defined capacity. The intent is to ensure animal waste from swine facilities is properly controlled to not adversely affect public health or the environment. (3-24-22)
Persons may be entitled to appeal agency actions authorized under these rules pursuant to IDAPA 58.01.23, 'Contested Case Rules and Rules for Protection and Disclosure of Records.' (3-24-22)
The terms 'department,' 'director,' and 'waters' have the meaning provided for those terms in Section 39-103, Idaho Code. The terms 'animal unit,' 'facilities or facility,' and 'one-time animal unit capacity' have the meaning provided for those terms in Section 39-104A(6), Idaho Code. The terms 'animal waste,' 'animal waste management system,' 'applicant,' 'certified planner,' 'existing facility,' 'land application,' 'nutrient management plan,' 'nutrient management standard,' 'operate,' 'permit,' 'person,' and 'process wastewater' have the meaning provided for those terms in Section 39-7903, Idaho Code. (3-24-22)
01. New or Expanding. A facility being newly proposed to operate after July 1, 2000, and having a one-time animal unit capacity of two thousand (2,000) or more animal units, and expanding facilities or a facility of less than two thousand (2,000) animal units that increases its one-time animal unit capacity to two thousand (2,000) or more animal units or a facility that increases its one-time animal unit capacity by ten percent (10%) measured cumulatively from April 1, 2000. (3-24-22)
02. Unauthorized Discharge. A release of animal waste to the environment or waters that is not authorized by the permit or the terms of an IPDES permit. (3-24-22)
01. Permit. No person may construct, operate, or expand a regulated facility without first obtaining a permit issued by the Director as provided in these rules. (3-24-22)
02. Common Control. Two (2) or more facilities under common control of the same person may be considered, for purposes of permitting, a single facility, even though separately their capacity is less than two thousand (2,000) animal units each, if they use a common animal waste management system or land application site. (3-24-22)
A person must submit a complete permit application and fees to the Department. (3-24-22)
01. Preapplication Conference. Applicants are encouraged to meet with the Department prior to submitting an application to discuss the permitting process. (3-24-22)
02. Content. A complete application must contain the information identified in Subsections 200.03 through 200.10 and include payment of the applicable fee. (3-24-22)
03. Facility and Operator Information. (3-24-22)
a. Name, mailing address, and phone number of each facility owner and operator. (3-24-22)
04. Written Estimate of Costs and Financial Assurance. A written estimate of costs for remediation and closure and proof of financial assurance to the Department for approval in accordance with Section 205. (3-24-22)
05. Construction Plan. Plans and specifications for the facility’s animal waste management system that include: (3-24-22)
(4) All irrigation systems used for land application, including details of approved water supply protection devices; and (3-24-22)
ii. Building plans showing: (3-24-22)
(1) All wastewater collection systems in housed units; (3-24-22)
(2) All freshwater supply systems, including details of approved water supply protection devices; (3-24-22)
and (3) Detailed drawings of wastewater collection and conveyance systems and containment construction; (3-24-22)
(4) Detailed construction and installation procedures. (3-24-22)
06. Site Characterization. A characterization of the facility and any land application site(s) owned or operated by the applicant, prepared by a registered professional geologist, a registered professional engineer or a qualified ground water hydrologist, that including: (3-24-22)
a. A description of monitoring methods, frequency, and reporting components related to either leak detection systems and/or ground water monitoring wells; (3-24-22)
b. The climatic, hydrogeologic, and soil characteristics; (3-24-22)
c. The depth to water and a potentiometric map for the uppermost and regional aquifer; (3-24-22)
d. The vertical and horizontal conductivity, gradient, and ground water flow direction and velocity; (3-24-22)
e. Estimates of recharge to the uppermost aquifer; (3-24-22)
f. Information which characterizes the relationship between the ground water and adjacent surface waters; and (3-24-22)
g. A summary of local ground water quality data. (3-24-22)
07. Nutrient Management Plan. A plan prepared by a Certified Planner demonstrating compliance with the Nutrient Management Standard for land application. (3-24-22)
08. Closure Plan. A plan describing the procedures for final closure of a facility that ensures no adverse impacts to the environment and waters of the state and includes: (3-24-22)
a. The estimated length of operation of the facility; and (3-24-22)
b. A description of the procedures, methods, and schedule to be implemented at the facility for final disposal, handling, management and/or treatment of all animal waste. (3-24-22)
09. Other Information. An applicant must provide any other information relative to Subsections 200.03 through 200.08 deemed necessary by the Director to assess protection of human health and the environment (3-24-22)
10. Application Fee. The appropriate application fee is due with the application submittal.
| One-time Animal Unit Capacity | Fee |
|---|---|
| Less than 5,000 | $3,000 |
| One-time Animal Unit Capacity | Fee |
|---|---|
| 5,000 to 10,000 | $5,000 |
| Greater than 10,000 | $10,000 |
(3-24-22)
Financial assurance mechanisms identified and submitted must meet the following general and specific conditions.
(3-24-22)
a. Detail the cost of hiring a third party to remediate potential contamination caused by the operation of the facility or of any potential spill or breach, including, without limitation, remediation pursuant to the facility's spill contingency plan, and closing the facility in accordance with an approved closure plan.
(3-24-22)
b. Revisions to remediation and closure cost estimates and the amount of financial assurance are to be submitted to the Department if changes to the closure plan, facility conditions or operations, or inflation changes the cost estimates at any time during the active life of the facility.
(3-24-22)
a. Proof of financial capability, acceptable to the Department, describes the ability of the applicant to perform remedial actions and meet the conditions of an approved closure plan for a facility. The mechanism(s) used to demonstrate financial capability must be legally valid, binding and enforceable under applicable law, and ensure that the funds necessary to meet the costs of remediation and closure will be available to the party conducting closure and remediation whenever the funds are needed. The mechanisms include but are not limited to any one or more of the following: surety bonds, trust funds, irrevocable letters of credit, insurance, and corporate guarantees.
(3-24-22)
b. Continuous coverage for remediation and closure is identified and sustained until the applicant is released by the Department from financial assurance obligations.
(3-24-22)
c. Prior to cancellation of a financial assurance mechanism, the applicant obtains a new financial assurance plan acceptable to the Department, or ceases operations and closes out the facility before the date of cancellation.
(3-24-22)
d. Financial assurance, less identified retainages, is released when the Department determines that initial closure activities have been completed. A sufficient amount of financial assurance is retained by the Department, up to five (5) years after closure, to ensure proper remediation and closure of a facility.
(3-24-22)
e. Nothing in these rules, including the release or use of all financial assurance, relieves the applicant of liability and responsibility for remediation and closure costs and activities. The use of all financial assurance does not relieve the applicant from responsibility and liability for remediation and closure costs.
(3-24-22)
03. Surety Bond. A certified copy of the bond from the surety company issuing the bond which at a minimum is among those listed as acceptable sureties on federal bonds in Circular 570 of the U.S. Department of the Treasury.
(3-24-22)
a. The penal sum of the bond will be in an amount at least equal to the most recent estimate of remediation and closure costs.
(3-24-22)
b. The surety will become liable on the bond obligation when the applicant fails to perform as guaranteed by the bond or the Department notifies the applicant that he has failed to meet the provisions of these
rules. (3-24-22)
a. A certified copy of a standby letter of credit showing the letter is irrevocable, issued in an amount at least equal to the current remediation and closure cost estimates, and for a period of at least one year. The expiration date will automatically extend for a period of at least one (1) year. The issuing institution must be an entity with authority to issue letters of credit and whose letter-of-credit operations are regulated and examined by a federal or state agency. (3-24-22)
b. Include a letter from the applicant referring to the letter of credit by number, issuing institution, and date, and providing the type of facility, name and address of the facility, and the amount of funds assured for remediation and closure of the facility by the letter of credit. (3-24-22)
05. Trust Fund. A certified copy of a trust agreement where the trustee is an entity with the authority to act on behalf of the applicant and whose trust operations are regulated and examined by a federal or state agency. (3-24-22)
06. Insurance. A copy of the policy of remediation and closure insurance from an insurer licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one (1) or more states. (3-24-22)
a. The insurance policy will: (3-24-22)
i. Be in an amount at least equal to the current remediation and closure cost estimates. The term “face amount” means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the face amount, although the insurer’s future liability will be lowered by the amount of the payments; and (3-24-22)
ii. Contain a provision: (3-24-22)
(1) Allowing assignment of the policy to a successor. Such assignment may be conditional upon consent of the insurer, provided such consent is not unreasonably refused; (3-24-22)
(2) Providing the applicant or successor with the option of renewal at the face amount of the expiring policy; and (3-24-22)
(3) Providing that the insurer cannot cancel, terminate, or fail to renew the policy except for failure to pay the premium. (3-24-22)
a. A certified copy of the guarantee and appropriate letter from a guarantor who is the direct or higher-tier parent corporation of the applicant, a firm whose parent corporation is also the parent corporation of the applicant, or a firm with a “substantial business relationship” with the applicant. (3-24-22)
b. A letter from the guarantor’s chief financial officer describing the value received in consideration of the guarantee if the guarantor’s parent company is also the parent corporation of the applicant. If the guarantor is a firm with a “substantial business relationship” with the applicant, provide a letter describing the “substantial business relationship” and the value received in consideration of the guarantee. (3-24-22)
c. Ensure the terms provide that the guarantor will perform, or pay a third party to perform, remediation and closure (performance guarantee) if the applicant fails to perform remediation or closure of a facility covered by the guarantee, or establish a fully funded trust fund as specified in Subsection 205.05 in the name of the applicant (payment guarantee). (3-24-22)
206. -- 249. (RESERVED)
The following minimum design and performance standards are a baseline for protection of public health and water quality. These standards apply to all facilities and are to be reflected in the permit unless the Director determines, based on an applicant’s site specific information, that compliance with a specific standard is not necessary to protect water quality or the public health. Other conditions, as determined by the Director to be necessary to protect water quality, may be included in a permit. (3-24-22)
01. Animal Waste Management System Design Criteria. A facility’s animal waste management system must: (3-24-22)
a. Be designed and constructed in accordance with NRCS or the American Society of Agricultural Engineers standards, whichever is most stringent; (3-24-22)
b. Contain the maximum expected operating water balance and the twenty-five (25) year twenty-four (24) hour rainfall event and the one (1) in five (5) year winter runoff; (3-24-22)
c. Provide capacity to store the peak volume of process wastewater generated during a six (6) month period; (3-24-22)
d. Provide a one (1) foot freeboard in addition to the storage provisions specified in Subsections 250.01.b. and 250.01.c.; (3-24-22)
e. Have impoundments, other than for emergency runoff, containing or designed to contain process wastewater for efficient leak detection and not be located in the one-hundred (100) year floodplain; and (3-24-22)
f. Have seepage rates for impoundments no greater than 1x10⁻⁷ cm/sec. (3-24-22)
02. Water Quality Monitoring. Ground water and/or leak detection monitoring must be conducted for every facility with a liquid storage impoundment and be designed to give the earliest possible detection of an unauthorized discharge to ground water. (3-24-22)
03. Discharges. Facilities must be constructed, operated and maintained to not cause unauthorized discharges. (3-24-22)
04. Spill Contingency Plan. Facilities must prepare a discharge response strategy that describes procedures and methods to be implemented for the abatement and cleanup of any pollutant. (3-24-22)
05. Stockpile Areas. Animal waste stockpile areas, including compost areas, must be constructed to ensure that all water and precipitation, which comes into contact with the stockpiles, does not enter waters of the state. (3-24-22)
01. Application Completeness. Applications are reviewed for completeness within thirty (30) days of receipt. The applicant will receive written notice of the review, and the Department will provide public notice that a complete application has been received. Incomplete applications or those that do not meet the requirements will be returned with deficiencies identified. The applicant must respond to any deficiencies, or requests from the Department for additional information necessary to process a permit, within thirty (30) days of the request or the application may be denied unless a longer time period is approved by the Director. (3-24-22)
02. Notice of Environmental Suitability of Facility Location. Within thirty (30) days of the public notice, a letter with the Director’s determination of the suitability of the facility siting will be sent to the applicant and the appropriate county and city officials for the selected location including: (3-24-22)
a. A brief description of the proposed facility, its animal waste management system, and its nutrient management plan; (3-24-22)
b. A brief summary of the basis for the determination of environmental suitability including references to applicable requirements and supporting materials; (3-24-22)
c. A description of the schedule for issuing a permit; and (3-24-22)
d. The name and phone number of the Department staff to contact for additional information. (3-24-22)
03. Draft Permit. Within one hundred eighty (180) days of the Director’s determination that a facility is environmentally suitable for its proposed location, the Director will either issue a draft permit or a notice of denial of a permit. The draft permit will specify conditions of construction, operation, and closure. (3-24-22)
04. Public Comments. The Department will provide notice to the public of its issuance of a draft permit. The public may provide written comments for a time period and in a manner specified in the notice. The Department may provide an opportunity for the public to provide oral comments. (3-24-22)
05. Permit Denial. The Director may deny a permit if: (3-24-22)
a. The applicant of a facility is not in substantial compliance with a final agency order or any final order or judgement of a court secured by any state or federal agency relating to the operation of a swine facility; (3-24-22)
b. The application is inaccurate or incomplete; (3-24-22)
c. The facility as proposed cannot meet the provisions in these rules or cannot be constructed, operated, and closed in a manner protecting human health and the environment; or (3-24-22)
d. The appropriate county or city does not approve the location of the facility. (3-24-22)
06. Final Permit. Within sixty (60) days of the issuance of a draft permit, the Director will issue a final permit; however, a permit will not be issued until the applicant has received any needed IPDES permit; final approval from the appropriate county or city for the location of the facility; and approval for a water right from the Department of Water Resources. The permit will be effective for a fixed term of not more than ten (10) years and may be reissued to an existing facility upon receipt of an updated application, fees, and demonstration of compliance with the rules and permit existing at the time of reissuance. (3-24-22)
301. -- 399. (RESERVED)
01. Permits. Permits issued will contain the following conditions: (3-24-22)
a. Require compliance with all conditions of the permit. The permit does not relieve the permittee of the responsibility to comply with all other applicable local, state, and federal laws; (3-24-22)
b. Ensure the financial capability to perform remedial actions and to meet the conditions of an approved closure plan for a facility; (3-24-22)
c. Ensure that construction, operation, and maintenance of the facility proceed according to the construction plans and specifications and the approved monitoring, nutrient management and closure plans, and comply with the following: (3-24-22)
i. Within thirty (30) days of completion of construction, submit as built plans; (3-24-22)
02. Construction. If a permittee fails to begin construction or expansion of a facility within two (2) years of the effective date of a permit, the Director may void the permit. (3-24-22)
03. Renewal. If a permittee intends to continue operation of the facility after expiration of an existing permit, the permittee will apply for a new permit at least one hundred eighty (180) days before expiration of the permit. (3-24-22)
401. -- 449. (RESERVED)
450. SPECIFIC PERMIT CONDITIONS.
01. Basis. Conditions necessary for the protection of the environment and the public health may differ from facility to facility because of varying environmental conditions and animal waste compositions. The Director may establish, on a case-by-case basis, specific permit conditions considering characteristics specific to a facility and inherent hazards of those characteristics, including, but not limited to: (3-24-22)
a. Chemical, biological, physical, and volumetric characteristics of the process wastewater; (3-24-22) b. Geological and climatic nature of the facility site; (3-24-22) c. Size of the site and its proximity to population centers and to ground and surface water; (3-24-22) d. Legal considerations relative to land use and water rights; (3-24-22) e. Techniques used in process wastewater distribution and the disposition of that vegetation exposed to process wastewaters; and (3-24-22) f. The need for monitoring and record keeping to determine if the facility is operated in conformance with its design and if its design is adequate to protect the environment and the public health. (3-24-22)
02. Limitations to Operation. Conditions of the permit may specify or limit: (3-24-22)
a. Process wastewater composition; (3-24-22) b. Method, manner and frequency of process wastewater treatment; (3-24-22) c. Physical, chemical and biological characteristics of a facility; (3-24-22) d. An odor management plan; and (3-24-22) e. Any other condition the Director finds necessary to protect public health or the environment. (3-24-22)
03. Compliance Schedules. The Director may establish a compliance schedule for facilities as part of the permit conditions including: (3-24-22)
a. Specific steps or actions to be taken by the permittee to achieve compliance with the permit or these rules; and (3-24-22) b. Dates by which those steps or actions are to be taken. (3-24-22) 04. Monitoring. Any facility may be subject to monitoring including, but not limited to: (3-24-22) a. The type, installation, use and maintenance of monitoring equipment; (3-24-22) b. Monitoring or sampling methodology, frequency and locations; (3-24-22)
c. Monitored substances or parameters; (3-24-22) d. Testing and analytical procedures; and (3-24-22) e. Reporting requirements including both frequency and form. (3-24-22)
451. -- 499. (RESERVED)
500. PERMIT MODIFICATION.
01. Minor Modifications. Minor modifications are those which do not have a potential effect on the environment or the public health. Minor modifications will be made by the Director and are generally limited to: (3-24-22)
a. The correction of typographical errors; (3-24-22) b. Transfer of ownership or operational control in accordance with Section 550; or (3-24-22) c. Certain minor changes in monitoring or operational conditions. (3-24-22)
02. Major Modifications. All modifications not considered minor will be considered major modifications. The procedure for making major modifications will be the same as that used for a new permit. (3-24-22)
501. -- 549. (RESERVED)
550. TRANSFER OF PERMITS.
01. Transfer Application.
a. A new owner or operator of a facility must submit a transfer application to the Director that includes at least the following: (3-24-22)
i. The relevant information provided in Subsection 200.03; (3-24-22) ii. Any change of conditions at the facility resulting from the transfer of ownership or operation; and (3-24-22) iii. Any change in financial assurance requirements. (3-24-22)
b. The Director will review the transfer application and within sixty (60) days of its receipt either approve or deny the transfer. (3-24-22)
02. Transfer Approval. An approved permit transfer is a minor modification in accordance with Subsection 500.01 as long as there are no major changes of conditions at the facility. Major changes of conditions at a facility will be subject to the provisions of Subsection 500.02. (3-24-22)
03. Transfer Denial. The notification of a permit denial includes the reasons for the denial, steps necessary to meet the conditions of a permit transfer, and the opportunity for the applicant to request a hearing. (3-24-22)
04. Permit Obligations. The new permittee assumes all rights and responsibilities of the transferred permit. (3-24-22)
551. -- 599. (RESERVED)
600. VIOLATIONS.
01. Failure to Comply. Failure by a permittee to comply with the provisions of these rules or any permit condition is deemed a violation. (3-24-22)
02. Falsification of Statements and Records. It is a violation of these rules for any person to knowingly make a false statement, representation, or certification in any application report, document, or record developed, maintained, or submitted pursuant to these rules or the conditions of a permit. (3-24-22)
03. Discharges. Any unauthorized discharge from a facility is a violation of these rules. (3-24-22)
04. Penalties. Any person violating any provision of these rules or any permit or order issued thereunder is liable for a civil or criminal penalty in accordance with Chapter 1, Title 39, Idaho Code. (3-24-22)
05. Permit Revocation. The Director may revoke a permit for: (3-24-22)
a. A material violation of any condition of a permit; or (3-24-22)
b. If the permit was obtained by misrepresentation or failure to disclose all relevant facts. (3-24-22)
06. Revocation Hearing. Before revoking a permit, the Director will issue a notice of intent which will become final unless the permittee timely requests an administrative hearing in writing. Such hearing will be conducted in accordance with Section 002. (3-24-22)
601. -- 999. (RESERVED)