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DEQ slams Michigan farms in comments to EPA
Editor's note: Following is the entire text of the public comment submitted by the Michigan Department of Environmental Quality to the Environmental Protection Agency (EPA) regarding a rule proposal from EPA that would allow farms to self-certify that the farm has not discharged and has no potential to discharge.
Verbatim:
The Michigan Department of Environmental Quality (MDEQ) has reviewed the proposed rule published in the March 7, 2008, Federal Register and has several comments. We appreciate the fact that the U.S. Environmental Protection Agency (USEPA) has attempted to respond to the Waterkeeper Decision, and that the USEPA is contemplating various permitting options to deal with both the decision and the practicalities of permitting concentrated animal feeding operations (CAFO) and protecting the nation's waters.
Self Certification Process
We strongly recommend that the USEPA withdraw the proposal for the voluntary option for CAFOs to certify that the CAFO does not discharge or propose to discharge. We believe that this option as proposed is seriously flawed. This provision appears to have been advanced by the lobbyists for the factory farms as a self-serving means of exempting factory farms from regulation, contrary to any other sector regulated under the Clean Water Act. Instead, we recommend that the USEPA refocus its efforts on clearly identifying the attributes that will constitute a discharge or proposal of discharge, and how these would be determined. We have this recommendation based on the following:
(1) The proposed rule is contrary to the plain language of the Clean Water Act; not responsive to the Waterkeeper Decision in that it does not define what constitutes a proposal to discharge; sets a minimum design, operation, and management scheme that will not prevent discharge; does not provide a clear defined process for determining when a non-permitted CAFO must apply for a permit; and has the sole purpose to provide a liability protection for those who chose not to enter the permitting process.
The self-certification provision is not needed and serves no purpose other than to provide a safe haven for CAFOs that will likely discharge but do not want to apply for a permit. CAFOs should have to decide either to obtain a permit and thus obtain the liability protection for duty to apply that goes along with being permitted; or not obtain a permit and take their chances with the compliance/enforcement actions that may follow a discharge. It is unfair to those CAFOs that do obtain permits to give the same liability protection to those that simply decide to self-certify.
The self-certification process, through the liability protection from the duty to apply, would make it much more difficult to compel CAFOs that have had a discharge or discharges to take the appropriate steps to correct the problems that lead to the discharges. This would be further complicated by the lack of any requirement for self-certified CAFOs to report discharges and a three day period to simply report that they no longer met the certification requirements, which would result in most discharges being dissipated before the agency even knew about them. Also, as written, the certification and recertification process after a discharge would encourage a discharging CAFO to maximize its illegal discharge to acquire more operating capacity to provide time to "correct" a noted problem and then recertify in lieu if obtaining permit coverage.
The immunity from the duty to apply provision is most likely not legal, except to the extent that the USEPA desires to exert enforcement discretion, because it is in conflict with the Clean Water Act. Notably, the immunity from the duty to apply provision is only mentioned in the preamble and is not a part of the regulation per se. In fact, we find no authority in the Clean Water Act that allows the USEPA to establish a self-certification process in lieu of a permit for dischargers, let alone to arbitrarily establish such a process for a select group of dischargers contrary to how all other discharges are regulated. This proposal, if enacted, would undoubtedly result in additional litigation and the resulting confusion that it would bring. This provision also attempts to negate the citizen rights to sue provisions of the Clean Water Act by eliminating a statutory provision by administrative regulations.
The proposed USEPA criteria to be used to determine if a CAFO qualifies for the self-certification are not detailed enough to be useful in specific situations. The criteria need to be much more specific and established by appropriate state or similar regions. Michigan has established criteria in national pollutant discharge elimination system permits for CAFOs with discharges, but the criteria are much more specific than the proposed criteria, and are more specific to the particular conditions in Michigan. It is unlikely that the proposed USEPA criteria will only show that the discharges are less frequent.
The USEPA frequently uses the phrase "In an unlikely event of a discharge from a certified CAFO." We do not agree with such a discharge would be "unlikely." Michigan's experience is that virtually all CAFOs with lagoons and/or land application have discharges. In fact, in administering the CAFO program in Michigan for about 200 CAFOs, we have found that only about five percent of the CAFOs can be determined to have No Potential to Discharge. Michigan has received 17 requests for a no potential to discharge determination. Of these, nine have been determined to meet this determination; however, four other CAFOs who thought they had no discharge were found to be discharging at the time of inspection. To date, the CAFOs in Michigan determined to not discharge are those that are not proximate to surface waters, have their CAFO waste sheltered from the elements (either under barn or in dry storage), and have particularly well managed facilities. Even these situations must be carefully assessed on a facility specific basis, as we have found some operations that met these criteria, did in fact have a discharge. For one such poultry CAFO with dry manure stored inside and no land application, we documented a discharge twice in one month as a result of exhaust of dust and subsequent storm water run off, with high pollutant concentrations in the discharge (especially biochemical oxygen demand, E. coli, and ammonia). This serves to point out the difficulty of CAFOs self-certifying that they will not discharge, particularly without very specific criteria to use in making the evaluation.
The proposed certification process essentially gives CAFOs a license to discharge with no consequence, and ties the hands of enforcing agencies. The self-certification process also creates a significant work load for the states without any commensurate additional governmental protection. The burden of handling all of the additional paperwork associated with the certification would be substantial. In addition, considerable additional resources would be required to determine if each facility was actually in compliance with their certification and whether there were discharges or not. The only apparent result of finding a facility not in compliance with their certification or having a discharge would be for the facility to "fix" the problem causing the discharge and then to reapply for a new certification.
In addition, the certification process eliminates the ability of the public to comment on the appropriateness of certifying a facility. Often public comments can be valuable in identifying CAFOs that have had discharges.
This proposal will severely undermine the efforts of those states that have implemented programs to adequately regulate CAFOs. The USEPA has encouraged states to do this in the interim time period between the Waterkeeper Decision and the final promulgation of regulations consistent with that decision by the USEPA. Despite the argument that the USEPA will make that the states are free to implement requirements more restrictive than the federal requirements, the reality is that the states will be under increasing pressure to change their requirements to be "consistent with" the federal requirements. This would result in not only significantly reduced effectiveness of controlling pollution from CAFOs, but also a waste of scarce state resources in the effort to redo their regulations.
If the USEPA persists in this wrong headed effort to have CAFOs self certify, we recommend the following modifications to at least mitigate some of the worst features of the proposal. However, we must note that even with these changes we find the provision inadequate, contrary to law, and not protective of the environment and public health:
A. All documents related to the certification should be signed by a registered engineer (for structural issues) or a National Resource Comprehensive Service (NRCS) certified technical service provider (for other Comprehensive Nutrient Management Plan [CNMP] issues).
B. Any Nutrient Management Plan (NMP) developed for certification must not only meet NRCS standards but also any standards or conditions established by states that permitted CAFOs must comply. The CAFO must also specifically certify to this fact.
C. The rule needs to define what constitutes lands "under the control" of the CAFO.
D. The rule needs to clearly state that before a CAFO could be certified, it must have in place and operating all required elements of the design, operation and maintenance plan, and the NMP. A certification cannot be "conditional" based on a schedule.
E. The rule needs to provide that the certification is null and void if the permitting authority finds that a certified CAFO has or has had a discharge, does not have required records onsite or available, or in any way is not in conformance with the certification conditions.
F. The proposed rules states that if the conditions at a certified CAFO change, the CAFO "should make the necessary adjustments to accommodate the changes. This duty should be a mandate. The word "should" needs to be changed to "shall."
G. The certification statement has 5 conditions. Condition 5 should be changed to include, "an official signature that.... make the CAFO legally responsible for its representations to the Director regarding the design, construction, operation and maintenance of the CAFO and the NMP."
H. Add a requirement for the certified CAFO to notify the permitting authority whenever a change is made to certifying documents, procedures, or designs.
I. All documents related to the certification should be submitted to the Director and available to the public.
J. A CAFO that has had, or has a discharge should not be eligible for certification or re-certification.
K. A certified CAFO that has had a discharge should be required to report that discharge to the Director immediately, but no later than 24 hours. The report must detail the date, time, volume, duration of the discharge, what actions were taken to minimize the discharge, and the cause of the discharge.
L. The immunity from the duty to apply should be eliminated from the proposed regulations.
(2) The use of CNMPs alone to control discharges is not acceptable. In Michigan, we have found that CNMPs similar to the NRCS CNMPs are not sufficient to prevent discharges to surface waters. Also, CAFOs with such CNMPs tend to ignore their CNMPs unless there are specific permit requirements associated with these documents. As such, using CNMPs without associated permit requirements will likely result in improper waste, management, and subsequent discharges.
Instead of self-certification by CAFOs, the USEPA should establish criteria as to what constitutes a discharge. This would include using information that clearly shows discharges occur with lagoons and land application of CAFO waste if there are surface waters nearby. The proximity of surface waters would be a clear criterion for this determination.
(3) The self-certification program should be withdrawn. CAFOs are like other discharges associated with wet weather, such as combined sewer overflows, municipal separate storm sewer system overflows, and industrial storm water discharges. These discharges are inherently different than continuous point sources, like publicly owned treatment works. Wet weather discharges only occur during certain precipitation or snowmelt events, which are uncontrollable. This country has a relatively long history of dealing with continuous point sources, but a relatively short history with wet weather discharges. As such, we do not have a strong technical development of necessary controls and/or numerical effluent limits for wet weather discharges.
Nor do we have a strong understanding on how and when discharges occur. As such, when dealing with wet weather facilities, a strong understanding of when and how discharges occur is needed before deciding to allow a "self-certification" program that discharges do not occur. We sincerely doubt that the USEPA has such an understanding in regards to CAFOS, and in particular doubt that this had been developed with any rigor for the entire United States. Therefore, we have no confidence in the proposed "self-certification" program, and strongly recommend that it be withdrawn at this time.
Terms of the Nutrient Management Plan
We believe that the three prong approach described in the Preamble has merit. However, it is impossible to thoroughly comment on this issue without having actual draft regulations. We request that the USEPA not act on these rules until such time that the actual draft regulations covering this topic have been public noticed and an opportunity for public comment provided.
We appreciate the opportunity to comment. If you have any questions on these comments, please contact Mr. William Creal, Chief, Permits Sections, Water Bureau, at 517-335-4114, or you may contact me.
Richard A. Powers, Chief
Water Bureau
517-335-4176
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