Comments submitted on Apr. 7, 2008 regarding NPDES

April 7, 2008

United States Environmental Protection Agency
Water Docket
Mail Code 2822T
1200 Pennsylvania Ave., NW.
Washington, DC 20460

ATTN:     Docket ID No. OW– 2005–0037
Revised NPDES regulations for Concentrated Animal Feeding Operations (CAFOs): Supplemental Notice of Proposed Rulemaking

To Whom It May Concern:

The Ohio Farm Bureau Federation (OFBF), the state of Ohio’s largest farm organization, appreciates the opportunity to comment on the proposed supplemental concentrated animal feeding operation (CAFO) rulemaking. OFBF submitted comments to US EPA’s proposed CAFO rule in August 2006. We appreciate the opportunity to submit these supplemental comments and encourage the Agency to carefully evaluate the following comments and finalize a rule as soon as possible.

We generally find the no discharge certification proposal a useful concept. In our additional comments which follow, we will attempt to provide constructive criticism in order to improve the proposal. Our goal is to assist US EPA in fashioning a CAFO rule that enables CAFOs to continue to provide the safest and most affordable protein possible, while protecting the environment. We believe CAFOs that actually discharge without a permit are in violation of the discharge prohibition found in Section 301 of the Clean Water Act (CWA). We strongly believe, however, that there is no separate liability for failure to obtain National Pollutant Discharge Elimination System (NPDES) permit coverage in the first instance.

Initial Comments
In the Waterkeeper Alliance v. EPA litigation, the Farm Petitioners and EPA opposed positions taken by environmental groups that Nutrient Management Plans (NMPs) must be included as NPDES permit terms and open for public review and comment.  For most farmers, opening up the details of their operation not only reveals important financial information but is viewed as an invasion of personal privacy. The Second Circuit Court of Appeals agreed with the environmental petitioners, however, and the Court’s ruling will fundamentally change how farmers seek and receive NPDES permits. We appreciate EPA’s recognition that the NPDES process will be onerous for CAFOs post-Waterkeeper. We hope that our comments will provide some assistance in improving both the nutrient management proposal and the voluntary certification proposed by EPA for non-discharging CAFOs.

Furthermore, we disagree with certain fundamental legal principles driving this “voluntary” certification and with US EPA’s views on the certification’s overall benefit to CAFOs.  The purpose of the certification appears to be to encourage CAFOs to “certify” that they are non-discharging facilities. The purported benefit of seeking the certification is that the certified CAFO would not face liability for failing to obtain a permit should the CAFO have an accidental discharge in the future. We fundamentally disagree with US EPA’s position that discharging CAFOs face liability for failing to obtain a permit in the first instance. Because there is no separate liability under the CWA for failure to obtain permit coverage, the claimed benefit to CAFOs from the certification is dramatically overstated and confusing.

The CWA only regulates and authorizes enforcement liability for unpermitted actual discharges, and not for the failure to apply for a permit. Likewise, US EPA lacks the authority to impose additional liability for failure to apply should a CAFO lose its certification prior to an unpermitted actual discharge. Therefore, we do not believe that the Agency is foregoing a potential enforcement action in situations where a certified CAFO discharges.

Furthermore, to benefit from this certification option, a CAFO must be “designed, constructed, operated, and maintained” in accordance with the provisions US EPA proposed on June 30, 2006, for 40 CFR 412.37(a)-(c), 40 CFR 122.42(e)(1)(i)-(ix), and 40 CFR 412.46(a)(1)(i)-(vii). These regulations would impose the following requirements on CAFOs as a condition of certifying:

1.  Visual weekly inspections of the production area;
2.  Visual daily inspections of water lines;
3.  Depth markers indicating the minimum capacity for maintaining enough room for the 25-year/24-hour storm event;
4.  Correcting deficiencies found during inspections;
5.  Handling mortalities in a manner that prevents water pollution;
6.  Keeping records on the inspections, readings of manure depths in the storage structures, mortality management, overflows, and design and volume capacity of storage structures;
7.  Maintaining an NMP on-site;
8.  Keeping records of expected crop yields, dates of manure application, weather conditions during and 24 hours before and after application, test methods for sampling manure, manure and soil analyses, basis of application rates, calculations of amounts of nitrogen and phosphorus planned to be applied and actually applied to each field, the method of application, and dates of inspections for manure application equipment;
9.  Operating and maintaining manure storage structures so that they adequately store manure;
10.  Diverting clean water from the production area;
11.  Keeping animals out of streams;
12.  Keeping chemicals and other pollutants out of the manure storage structures if the structures are not designed to handle them;
13.  Adopting conservation practices such as buffers to prevent runoff;
14.  Keeping records demonstrating compliance with items 9 to 13 above;
15.  Designing manure storage structures so that they have adequate capacity to avoid land application during rainfall and winter conditions;
16.  Designing open manure storage structures in accordance with the most recent version of the United States Department of Agriculture’s (USDA) Natural Resources Conservation Service’s (NRCS) Animal Waste Management software, or some other equivalent and approved design software or procedures;
17.  Consideration of the following factors in evaluating open manure storage structures:  30 years of climatic data, number and types of animals, animal sizes or weights, added water and bedding, other process wastewater, and the size and condition of outside areas exposed to rainfall and runoff;
18.  Planning for the minimum number of months’ worth of manure that the storage structures need to handle;
19.  Considering site-specific design specifications affecting the sizing of manure storage structures; and
20.  Evaluating the adequacy of the designed manure structure using the most recent version of the Soil Plant Air Water (SPAW) Hydrology Tool, or equivalent and approved evaluation procedures.

As you can tell from this lengthy list, a CAFO has to comply with a substantial portion of the requirements that would otherwise be imposed by an NPDES permit just to certify that it need not obtain a permit. All of these requirements provide numerous opportunities to negate a respective CAFO’s certification if a mistake occurs. The proposed regulation is not entirely clear on the circumstances under which a certification would be invalidated.  Proposed 40 CFR 122.23(h)(4) provides that the certification ends if “a discharge has occurred or when the CAFO ceases to meet the eligibility criteria in paragraph (h)(2) of this section.” Consequently, even if a certifying CAFO has no discharge, it would still be at risk to lose the certification due to insignificant violations of one or more of the many requirements of items 1 to 20 (see list above).  Although 40 CFR 122.23(h)(5)(iii) allows a CAFO to re-certify itself after correcting its deficiencies, this would be overly burdensome for a CAFO that has had only insignificant deviations from the requirements (e.g., missing a single inspection date). Therefore, we respectively request that US EPA provide more definition as to when re-certification must occur in order to correct past deficiencies. 

Of the enumerated list above, items 15 to 20 originate in the new source performance standards of the CAFO regulations applicable to new facilities. These regulations allow CAFOs to propose alternatives to the latest NRCS Animal Waste Management software or SPAW to the state, but currently there is no mechanism set-up to obtain state approval for such alternatives outside of a permit application. Therefore, we also request that US EPA clarify how this will work. 

No Discharge Certification, Section 122.23(h)
As discussed above, there is no enforceable “duty to apply” for a federal NPDES permit.  However, we appreciate and find very useful the “structured process” the Agency has developed to allow CAFOs to evaluate and “notify” the agency that they are not designed, constructed, operated and maintained to discharge nor do they propose to discharge. One of the key elements of this proposal is that the eligibility requirements for this process are strictly voluntary and do not, in and of themselves, implicate any regulatory requirement. Importantly, for this certification to be voluntary, the regulatory language must specify that a CAFO’s decision not to seek certification shall not be used as evidence, nor imply, that the CAFO proposes to discharge. We encourage the Agency to call this proposal a “notification” because this action is voluntary, does not require agency action and does not constitute a final agency action.  We read the preamble as saying this, as do your comments infra under “Additional Rationale.” 

Limitation on Certification
We agree that a CAFO’s notification that it does not discharge or propose to discharge should be renewed, if desired by the CAFO, every five years. We are very concerned, however, that the Agency intends to consider a recurring discharge as evidence that a CAFO is not eligible for this process and must seek permit coverage. As explained previously, the statute does not support a “duty to apply” even under this scenario. On a practical basis, a CAFO would likely seek permit coverage and operational changes under the scenario of a recurring discharge, but the statute does not impose separate liability for failure to do so. If such a scenario were to present itself, we would support fines under section 301(a) for each and every discharge. 

Submitting the Certification
The proposed regulatory language requires that a CAFO submit identifying descriptive information and a sworn statement. In the preamble, EPA sets forth a list of descriptive information that it believes should be included when seeking certification along with a request for comments as to whether the scope and type of the descriptive information is appropriate. We believe that, with the exception of a list of documents located on-site, the descriptive information is over inclusive and not relevant to the certification. Since EPA does not “approve” the certification and there is no regulatory requirement to provide public notice and comment, much of the information listed is superfluous and akin to a request for permit coverage. 

We believe that a list of on-site information should be the only documentation submitted to US EPA.  The CAFO’s on-site information, the sworn statement, and risk of losing the certification, are all sufficient to ensure that the CAFO has met the eligibility requirements for this voluntary submission (notification). Requiring information about the number of animals, manure storage, and storm size containment, parallels a Notice of Intent (NOI) to seek permit coverage and CAFO owners will be less likely to seek certification (file notification).

We are also concerned that this information will be subject to the Freedom of Information Act (FOIA) and will therefore discourage CAFO operators from providing information that will be used by the public for harassment purposes. US EPA can point to no legal requirement that CAFOs submit such information to the Agency. Producers will be reluctant to provide information that will be made public when there is no regulatory mandate to disclose the information.

Additionally, we request that US EPA clarify as to when the voluntary certification/notification becomes effective. We firmly believe that it should become effective upon the date of receipt by US EPA or an authorized/delegated state agency. We see no reason for the voluntary certification/notification process to be subjected to a waiting/review/approval process similar to NPDES permits as it is not a permit and therefore should not, in any fashion, be treated as such.

Liability for False Statements
We are concerned that EPA has added an additional and overbroad source of liability by requiring a sworn statement under penalty of law. We assume that the Agency intends the liability for making a false statement under Title 18 of the U.S. Code.  Our concern is based primarily on the fact that the statement is based upon what the producer knows at the time of the statement. The terms of the statement relate not only to the operation of the facility at the time the statement is made, but how the producers will act in the future.  Producers should not be liable for a false statement if all factual representations were true at the time of the statement.

Additional Rationale
Under this proposal there could be three categories of livestock operations: one that seeks the certainty associated with NDPES permits; one that seeks to periodically notify or “certify” that they are designed, constructed, operated and maintained so as not to discharge or propose to discharge; and one that will not discharge or propose to discharge and choose to not notify or “certify.”  For this third category of operations, we agree that foregoing the notification or “certification” process would not, in and of itself, establish whether the CAFO has a “duty to apply.” However, should a non-certifying CAFO experience an unpermitted discharge, we fundamentally disagree, as explained previously herein, that the CAFO can face separate CWA liability for failing to obtain a permit. 

Terms of the Nutrient Management Plan
The Second Circuit in Waterkeeper decided that all terms of a CAFO’s nutrient management plan (NMP) must be subject to public comment. The Court determined that all provisions in an NMP are effluent limitations, including field-specific rates of manure application. This leads US EPA to the unfortunate conclusion that a CAFO must submit its entire NMP, including field-specific information, as part of the permit application for public comment. Even worse, any changes to NMP terms, including the addition of new fields, will require modification of the permit and public comment. This will hinder a CAFO’s ability to quickly add more fields to the NMP where and when they become available or where necessary to replace fields that have been withdrawn by their owners from use as land application areas.

We wish to bring to the Agency’s attention a statement in its discussion of NMPs to which we object. On page 12329, column two, US EPA states:

Likewise, the terms of the NMP would need to ensure, for example, proper management of mortalities and diversion of clean water.  However, the number of animals confined would not necessarily need to be a term of the NMP because a CAFO operator would be required to properly operate and maintain the CAFO’s storage facilities regardless of the number of animals or the volume of manure, litter, or process wastewater generated.  On the other hand, the Director could, for example, include an upper limit on the number of animals as a term. 

EPA’s point is that the NMP must be adequate to handle the number of animals in a CAFO, e.g., by having enough land application acreage. This portion of the Agency’s observation is accurate and acceptable. However, the NPDES program provides US EPA and its state-delegated agencies with no authority to dictate the size of an operation by limiting the number of animals a CAFO can have. The NPDES program does not limit the size of factories or wastewater treatment plants that can be built; it just requires the permittee to install an adequate amount of wastewater treatment to handle the expected effluent.  Similarly, nothing in the NPDES CAFO program authorizes the government to interfere with a CAFO’s business decisions under the guise of water pollution control. This would be a dangerous power encouraging hostile region and state regulators to hinder the construction and expansion of livestock and poultry operations. 

Under the supplemental rule making proposal, the Agency is seeking comment on three proposed frameworks (linear, matrix and narrative rate approaches) for nutrient management that are needed to satisfy the requirement that the NMP include ‘‘protocols to land apply manure, litter or process wastewater, etc. that ensure appropriate agricultural utilization of the nutrients.’’ [40 CFR 122.42(e)(1)(viii)] We encourage US EPA to adopt all three approaches and provide each livestock operation the flexibility to choose the approach that works best for them, as long as they maintain the same approach for a five-year term.

Furthermore, we ask for US EPA to further review its proposed narrative rate approach as it appears that US EPA is extending its regulatory authority to reach nutrients applied to fields beyond those which receive manure application. While we can certainly understand and accept that nitrogen and phosphorus chemical fertilizer applications (or from other nutrient sources) must be taken into consideration when applied on the same fields the same years that manure is applied, the Agency needs to be mindful that such chemical fertilizer applications are not subject to review and approval where manure is not involved.

The Ohio Farm Bureau Federation appreciates the opportunity to comment on the proposed supplemental rulemaking for CAFOs and looks forward to finalizing a realistic and attainable policy. We highly urge EPA to positively consider making the revisions noted in our comments.


John C. Fisher
Executive Vice-President


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