Comments submitted on Dec. 15, 2008 regarding the transfer of NPDES program

December 15, 2008

Mr. Matthew Gluckman
US EPA Region 5
NPDES Programs Branch
77 West Jackson Blvd.
Chicago, Illinois 60604

Dear Mr. Gluckman,

RE:     [FRL–8728–5] State Program Requirements; Application To Administer the National Pollutant Discharge Elimination System (NPDES) Program for Concentrated Animal Feeding Operations (CAFOs); Ohio

The Ohio Farm Bureau Federation (OFBF) is the largest general farm organization in the state of Ohio with more than 234,000 members and with members in all of Ohio’s 88 counties. Our members produce virtually every kind of agricultural commodity and as a result, OFBF is strongly interested in environmental policies and their potential impact to sustaining a viable agbioresource industry here in Ohio.

The State of Ohio has submitted a request for the United States Environmental Protection Agency (EPA) to approve a revision to the Ohio National Pollutant Discharge Elimination System (NPDES) program to allow the Ohio Department of Agriculture (ODA) to administer the parts of the program pertaining to concentrated animal feeding operations (CAFOs) and storm water associated with construction activity at animal feeding operations (AFOs) in Ohio. The Ohio Environmental Protection Agency (Ohio EPA) currently administers the Ohio NPDES program in its entirety. Under the proposed revision, Ohio EPA would continue to implement all other aspects of the State’s approved NPDES program.

We appreciate US EPA completing its review of Ohio’s application to revise the State’s NPDES program, requesting public comment about the proposal, and allowing us to provide comments to the Agency. For a variety reasons we support transferring authority for specific portions of Ohio’s NPDES program as detailed in the proposal from the Ohio EPA to the Ohio Department of Agriculture.

The Ohio Department of Agriculture submitted its NPDES delegation authority application to US EPA Region 5 in January 2007. Even though Region 5 promised that it would complete its review within six months, it actually took longer than this for Region 5 to complete the review process. Therefore, as far as we’re concerned, it’s time to get the job done and approve the Ohio Department of Agriculture’s application seeking NPDES delegation authority as it pertains to CAFOs and construction activities at AFOs here in the Buckeye State.

Efforts to initiate this change first began with the issuance of the Livestock Task Force Report’s recommendations more than ten years ago. Nearly eight years ago, Senate Bill 141, which authorized that
Ohio’s state permitting program for large livestock farms be transferred from the Ohio EPA to the Ohio Department of Agriculture, was signed into law. This piece of legislation also called for Ohio’s NPDES permitting program pertaining to CAFOs and construction activity at animal feeding operations to be transferred. Because of the Ohio Department of Agriculture’s pervasive knowledge of agriculture, members of Ohio’s General Assembly and the Administration felt it made sense to shift responsibility for environmental oversight of CAFOs and AFOs to the Department of Agriculture from Ohio EPA, an agency that had shown, despite its best efforts, that it was simply not suited to the task. Protecting the environment has much more to do with the proper management and recycling of manure, about which the Department of Agriculture knows a great deal.

Just like Ohio EPA, the Ohio Department of Agriculture is a regulatory agency. Unlike other state departments of agriculture, its primary function is not to promote agriculture, but to regulate it. Only seven percent of the Department’s budget is allocated towards promoting agriculture, while 93 percent of its budget goes towards enforcing regulations. The Department of Agriculture is dedicated to protecting producers, agribusinesses and the consuming public by enforcing clearly written, scientific-based regulations as stipulated in Ohio’s laws. These regulations apply to dairy production and processing, amusement rides, pesticides, animal health auctioneers, feeds, fertilizers, food safety, grain warehouses, meat and poultry slaughtering and processing, weights and measures, and more. By doing so, Ohioans get soundly regulated businesses that add value to neighborhoods and communities, and both farmers and consumers are protected.

The Ohio Department of Agriculture began administering the state permitting program through its Livestock Environmental Permitting Program (LEPP) more than six years ago. The state permitting program exceeds federal standards in many areas and has become a model for the nation. It has been deemed by Ohio’s Environmental Review Appeals Commission (ERAC) to be a comprehensive, proactive and effective approach to ensuring that livestock farms large enough to require permits attain and comply with stringent standards. The Department of Agriculture’s focus in its LEPP has been on compliance and inspection. Its emphasis on stringent monitoring and enforcement is protective of the environment.

During the past six years, Ohio’s General Assembly has twice passed legislation (signed into law) to update Ohio’s statutes to enable NPDES delegation authority being transferred from Ohio EPA to the Department of Agriculture. House Bill 152 contained several changes that were needed to be made to Ohio law to further enable the Department of Agriculture to obtain NPDES delegation authority per new rules US EPA announced in December 2002 that became effective in February 2003. House Bill 696 clarified several important issues identified by US EPA Region 5 and included amendments necessitated in the federal program since the passage of Senate Bill 141 and House Bill 152. Most recently, House Bill 635 and Senate Bill 383 were introduced in the 127th Session of the Ohio General Assembly to address statutory issues identified by US EPA Region 5 that needed to be changed to facilitate the transfer of the specific NPDES program aspects from Ohio EPA to the Department of Agriculture.

Additionally, the Department has amended its rules numerous times to reflect changes made in state statutes, in federal rules, and to address issues identified by US EPA Region 5 that needed to be clarified to be consistent with the Code of Federal Regulations. Most recently, the Department of Agriculture held a public hearing on November 10, 2008, to receive public comment related to rules that US EPA Region 5 had requested to help facilitate the transfer of specific portions of the NPDES program from Ohio EPA to the Department of Agriculture. Consequently, these same rules were scheduled for a review by the Joint Committee on Agency Rule Review (JCARR) on December 8, 2008. In conducting its review, JCARR may only recommend to invalidate a rule if the rule exceeds the scope of the agency’s statutory authority to make rules; the rule conflicts with the intent of the legislature in enacting the statute under which the rule is proposed; the rules conflict with another rule of that agency or a different rule-making agency; and the agency has not proposed a complete and accurate rule summary and fiscal analysis of the proposed rule, and if the agency has incorporated a text or other material by reference, the agency has not met the standards stated in the Ohio Revised Code. We are not aware of any reason for which JCARR would consider invalidating the rules the Department of Agriculture has submitted to it pertaining to the NPDES transfer process.

Under the rules as finalized, we are pleased that the Department of Agriculture, working with
US EPA Region 5 has determined that stockpiling, a valuable manure management tool, will not be considered part of the production area; it will be considered part of the land application area. As part of the land application area, the owner/operator/manager is charged with the responsibility of ensuring that there is no run-off or discharge from the stockpile site.

Prior to the Ohio Department of Agriculture taking over the regulatory responsibility for the state permitting program, the Ohio EPA issued only permits to install for concentrated animal feeding operations, had no permit to operate and had no routine inspection program.  Now, under the Department of Agriculture, the state requires both a permit to install and a permit to operate, and conducts two on-site inspections each year. Additional inspections are conducted if warranted. As a matter of fact, the Department of Agriculture’s Livestock Environmental Permitting Program staff has conducted more than 1,700 inspections since the department began regulating large livestock farms in August 2002.  The Department’s Livestock Environmental Permitting Program officials conduct a full inspection of each permitted farm every six months, which is 10 times the federal requirement. Additionally, the state permitting program is an overall environmental permitting program designed to protect both ground and surface waters, which makes it twice as stringent as the federal NPDES program as it is designed only to protect surface water.

Few states have permitting programs for large livestock farms that include a permit to install and a permit to operate, and none are as comprehensive and stringent as Ohio’s permitting program. Ohio is the only state that requires an environmental background check of the farm’s owners and operators. Furthermore, Ohio law does not allow any operation to discharge into surface or ground waters, regardless of the size. Ohio’s permitting program for large livestock farms prohibits any discharge into waterways throughout the state and requires all manure and potentially contaminated runoff to be contained and applied to crop land.  

Actions taken over the past six years clearly demonstrate that the Department of Agriculture has the expertise and ability to issue permits and enforce regulatory compliance for livestock farms in the state of Ohio that will be required to apply for and obtain a NPDES permit. The Department has operated the state permitting program in an effective and knowledgeable manner. That was the main goal of this effort since the beginning. We are confident that the Department of Agriculture can and will operate the NPDES program in a similar manner. We have already witnessed the Department doing a better job of protecting the environment and precious natural resources through operating one of the nation’s most stringent state permitting and compliance programs for large livestock farms.

An example of the responsible manner in which the Department of Agriculture operates is how it responds to complaints. State and federal law requires that permitting program staff respond to all written
complaints. The Department’s livestock permitting program staff have exceeded this requirement by responding not only to all written complaints it has received, but also responding to oral complaints filed with it as well. This fully demonstrates that the Department of Agriculture is responsible and accountable to all stakeholders involved in protecting the environment, communities and neighbors.

With certain aspects of Ohio’s NPDES program being transferred to the Department of Agriculture, livestock farmers that need to obtain both a state permit and a federal permit will now only need to file paperwork with one agency; if they need to apply for both permits at the same time, this will be done under one permit application. This will be more efficient for livestock producers, will be more business friendly and will result in more efficient utilization of taxpayers’ dollars as one agency instead of two will be responsible for inspecting and enforcing regulatory compliance.

Once again, we wish to thank US EPA for completing its review of Ohio’s NPDES application in which the State proposes to transfer portions of the program related to CAFOs and AFOs from the Ohio EPA to the Ohio Department of Agriculture. We hope that you will positively consider our comments, as well of those who spoke favorably of the proposal at the public hearing conducted by the Agency in Columbus, Ohio, the evening of November 18, 2008. Providing that the rules proposed by the Department of Agriculture related to the NPDES program are not invalidated by JCARR and that the Ohio General Assembly passes House Bill 635 or Senate Bill 383 prior to the adjournment of its 127th Session, we urge the Director of the United States Environmental Protection Agency to approve the transfer.


John C. Fisher
Executive Vice-President


cpy:     The Hon. Sherrod Brown
    The Hon. George Voinovich
    The Hon. John A. Boehner
    The Hon. Steve Chabot
    The Hon. Robert E. Latta
    The Hon. David L. Hobson
    The Hon. Jim Jordan
    The Hon. Marcy Kaptur
    The Hon. Dennis J. Kucinich
    The Hon. Steven C. LaTourette
    The Hon. Deborah Pryce
    The Hon. Ralph Regula
    The Hon. Timothy Ryan
    The Hon. Jean Schmidt
    The Hon. Zachary T. Space
    The Hon. Betty Sutton
    The Hon. Patrick J. Tiberi
    The Hon. Marcia L. Fudge
    The Hon. Michael Turner
    The Hon. Charles A. Wilson

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