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KRC Comments On Proposed Hog Farm Permits  Posted: October 25, 2005
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone
(502) 875-2845 fax
e-mail: fitzKRC@aol.com

October 24, 2005

Inventory and Data Management Section
Division of Water - KPDES Branch
14 Reilly Road
Frankfort, Kentucky 40601

Re: KPDES Public Notice 2005-29
Caleb Deweese Hog Farm, KPDES No. KY0106127
Charles Cannon Hog Farm, KPDES No. KY0106178
J.P. Amberg Hog Farm, KPDES No. KY0106020
Keith Kimbell Hog Farm, KPDES No. KY0106135
Marsh Hunt Hog Farm, KPDES No. KY0106186
Matt & Jim Moss Hog Farm, KPDES No. KY0106216
Mike Hancock Hog Farm, KPDES No. KY0106119
Ralph Wayne Adams Hog Farm, KPDES No. KY0106224
Sam Hancock Hog Farm, KPDES No. KY0106232

To Whom It May Concern:

These comments are submitted by the Kentucky Resources Council, Inc. in response to Public Notice 2005-29, which solicited public comment on the proposed issuance of KPDES permits for the above-referenced operations authorizing the construction, operation and animal waste management practices of new hog finishing operations “including a site-specific nutrient management plan.”

On behalf of members of the Kentucky Resources Council, Inc. (KRC) who live and own property in Fulton and Hickman Counties , and who will be adversely affected and aggrieved within the meaning of applicable law to the extent that these permits are not substantially strengthened, KRC submits the following comments concerning each of the proposed permits.

I. The Cabinet Must Clarify The Status of the Proposed Operations

It is unclear from the proposed permit and statement of basis whether the agency considers the “new hog farms” to be “concentrated animal feeding operations” within the meaning of 401 KAR 5:002 Section 1(58).

Regardless of whether the operations are so classified, it is apparent that the conditions proposed in the permits are grossly inadequate and fail to assure that the siting, construction and operation of the proposed intensive feedlot operations will be conducted so that surface and groundwater pollution will be avoided and nuisance conditions prevented.

Under 401 KAR 5:005, each proposed hog operation is an “agricultural waste handling system” that is required to obtain a 5:005 permit to construct and operate the facility, in addition to a requirement to obtain a KPDES permit if the operation falls within the category of “concentrated animal feeding operation.” Despite this clear obligation, there is no indication from the public notice or from the face of the proposed permits that the proposed facilities have obtained permits under 401 KAR 5:005, and it is likewise unclear what conditions have or will be placed on those facilities under the 401 KAR 5:005 program separate and apart from the KPDES water discharge permitting program.

There is no question but that these proposed operations fall within the ambit of 401 KAR 5:005 as “agricultural waste handling systems” which will “convey, store or treat manure” from an “animal feeding operation.” If the Cabinet considers the operations to fall within the ambit of concentrated animal feeding operations, then it is obligated to require that the facility obtain a permit meeting the requirements of 401 KAR 5:005 Section 1(3)(a) and Sections 2, 24, and 29(1)(h) and (i) of 5:005 as well as obtaining a KPDES permit. If the facility is not a concentrated AFO, then additionally Sections 25 and 27 are applicable and no KPDES permit is required.

Either way, the Cabinet must include in the final permit issued under 401 KAR 5:005 and any KPDES permit, a number of special conditions as outlined below to assure compliance with KRS Chapter 224. 401 KAR 5:005 Section 24(4)(a).

2. The Draft Permits Must be Withdrawn Pending Submittal Of Detailed Comprehensive Nutrient Management Plans

In the aftermath of the Second Circuit decision in Waterkeeper Alliance, et al. v. USEPA, 2005 U.S. App. LEXIS 6533, the Cabinet has been evaluating its regulatory approach to addressing the potential air, land and water pollution impact associated with this industrial activity. As KRC has previously expressed to the Cabinet by letter dated September 7, 2005, the Cabinet is not obligated by the Waterkeeper decision to alter its current overall approach to regulation of animal waste handling systems. A copy of that letter is attached as Appendix I and specific response is requested to the points raised therein.

To the extent that an agricultural waste handling facility is determined not to need a KPDES permit, disposal of livestock waste on land by the animal waste handling facility is no longer categorically exempt from RCRA, 42 USC 6903(27), and is subject to regulation as a solid waste disposal activity unless it is exempted under the narrow exclusion for those applications of “solid or dissolved material in . . . manure on the soil for return to the soil as fertilizers.”

The Waterkeeper decision does, however, require a few changes in the manner in which the Cabinet regulates AFOs, and specifically demands that this proposed group of permits be substantially revised and reissued for public comment, since the Cabinet has failed to require submittal of and public review of the site-specific nutrient management plans containing enforceable limitations.

The Waterkeeper Court, in rejecting that portion of the final rules that failed to require that the specific restrictions on application rate and other limiting terms of the nutrient management plans be reviewed by the agency and be incorporated into the NPDES permit as an effluent limitation, and which failed to provide that the nutrient management plans be available to the public for review and comment, casts grave doubt on the validity of the Cabinet’s general permits for beef, dairy, swine and poultry. For like the problematic EPA rules, the Kentucky general permits did not provide for individual agency review of the site-specific comprehensive nutrient management plans (CNMPs), nor for inclusion of the terms of those plans as permit limits.

KRC respectfully requests that prior to consideration of issuance of any permit that the applicant be required to submit a detailed, enforceable manure management plan developed by professionals of appropriate technical background and that enforceable conditions binding the applicants to those detailed construction and operational plans be imposed on each such operation.

Against this backdrop, KRC respectfully demands:

A. That the proposed permits be withdrawn pending submittal of site-specific nutrient management plans containing appropriate and enforceable limitations, and re-noticing of the permits for review and comment on the plans;

B. That the proposed KPDES permits be re-noticed in conjunction with the construction and operation permits required under 401 KAR 5:005 in order that the public be able to meaningfully review and comment on all conditions and requirements imposed under either the KPDES permit or the 5:005 permit.

3. The Cabinet Has Both The Authority And Duty To Impose Special Conditions on The Requested No Discharge Construction Permits In Order to Protect Surface and Groundwater Resources From Pollution

Reserving all objections and opposing issuance of any permit that does not include the site-specific nutrient management plan and which does not provide for concurrent review of the construction and operation permit under 5:005, KRC submits these comments below on those specific special conditions that should be incorporated into all construction and operation and KPDES permits.

Under Kentucky’s regulatory structure for management of confined animal feeding operations, operations meeting the definition of concentrated “animal feeding operations” in 401 KAR 5:002 Section 1(11) are required by 401 KAR 5:005 Section 1(3) to obtain a construction permit for the agricultural waste systems used to convey, store or treat manure from concentrated animal feeding operations, as well as obtaining either an individual KPDES permit or requesting coverage under the “General KPDES Permit for Concentrated Animal Feeding Operations – Swine Feeding Facilities.”

As you are aware, the Cabinet is charged by state law with the “authority, power and duty” to “[p]rovide for the prevention, abatement, and control of all water, land, and air pollution[.]” KRS 224.10-100(5). In furtherance of that duty, and on the basis of the information provided below concerning the potential adverse effects on land, air and water resources from undermanagement of wastes and air emissions generated by such operations, KRC believes it would be an arbitrary exercise of regulatory power not to utilize the authority conferred in 401 KAR 5:005 Section 24(4)(a) to impose a number of special conditions so as to assure that air, water and land pollution are prevented and controlled.

As reflected in that section, the obligation to impose such conditions is not limited to assuring compliance with state laws concerning water pollution, but requires imposition of such conditions as are necessary to assure compliance with all of the obligations of KRS Chapter 224, including those related to fugitive dust and toxic air pollutants (401 KAR 63) and those related to land disposal of wastes (401 KAR 47:030).

These specific recommendations should be incorporated into any construction permit issued pursuant to 401 KAR 5:005 for animal waste handling systems and into any KPDES permit for intensive hog farm operations:

A. The permit should be cosigned by the individual or corporate owner of the hogs as well as all operators of the facility.

401 KAR 5:005 applies “to owners and operators of facilities subject to the administrative regulations of this chapter” and prohibits a person from constructing, modifying or operating a facility without a permit. Similarly, the KPDES discharge permit obligation attaches to the “owner or operator.”

Prior to further technical review of the applications, the Cabinet must make and publish for comment a threshold determination of whether the appropriate parties have signed the application and are signatories bound by the terms and conditions of any issued authorizations or permits. The Cabinet must require a copy of, and review the terms and conditions of the contracts between the corporate integrator / owners of the swine and the permit applicants, since to the extent that the integrators/owners exercise significant operational and managerial control over aspects of these operations (as if typically the case in the industry), then those entities are to be considered “operators” and must be jointly liable under the 401 KAR 5:005 permit and KPDES permit.

It is unquestioned that many aspects of the proposed barn, and manure management program of underfloor pit and soil injection operations, are under the contractual control of the company or companies with whom these individuals are contracting. If other similar confined swine feeding operations are replicated here, the design, construction, and operation of the facilities and manner of management of inputs into and wastes generated by the animals will be under direct control and supervision of parties other than the farmer who, in essence, operates the facility and assumes full contractual risks for pollution and for animal mortality.

KRC believes that contracts which seek to immunize those with effective control over facilities and activities from pollution responsibility may well be void as against public policy. In any event, any such contracts cannot alter or restrict the police power of the state.

As a real party in interest, and the party who typically dictates many (if not all) of the material terms and conditions of the construction and operation of the facility, including the feed and other inputs and manner of management of the animals and wastes, the corporate integrator and owner of the animals should be made joint permittee and bear joint responsibility for environmental compliance under all permits issued by the Cabinet.

Responsibility for compliance with state law and for avoidance of nuisance conditions should rest with the owner of animals jointly with the operators. Those who own the animals and control decisions such as what the animals will be fed, and how they will be housed should be jointly responsible for complying with the permits, even where they contract with others to raise the animals.

The imposition of responsibility for environmental compliance on the party contracting with the local producer is not without precedent, and is particularly appropriate in this case since the input and output decisions are largely dictated by the corporations and their integrators. The responsibility for environmental compliance rests, under principles of agency law, jointly with the corporate owners and integrators, and the permit should prohibit as a matter of public policy the enforcement of any contract clause which attempts to shift that responsibility solely back to the farmer.

B. Authorization to Discharge From Waste Storage Structures Under Any Frequency of Storm Event Should Be Eliminated

The Statement of Basis indicates that the operations will use underfloor systems where the wastes will be collected in concrete holding pits, followed by “land application.”

KRC is somewhat mystified, given the nature of the waste storage, that the agency would allow discharges under 25-year, 24-hour storm events, since the underfloor systems should be designed to eliminate the commingling of any stormwater from the wastes and wastewater within the confinement building. Given the proposed use of an underfloor system, the language in Part I A allowing discharges under “chronic or catastrophic precipitation events” should be eliminated, and the exception from the “no discharge” requirement for such events should be eliminated, since the underfloor system collection of wastes occurs under roof and run-on controls should be in place to prevent stormwater from entering into underfloor systems and necessitating any discharge under a storm event of any frequency.

Alternatively, if it is the intention of the agency to permit open lagoon storage of hog wastes and wastewaters, the permit should be rewritten to so provide and to address the numerous technical and operational issues associated with that manner of wastewater management.

Further, the failure of a facility to design an in-ground retention discharge with adequate freeboard hardly constitutes a “chronic or catastrophic precipitation event.” Proper design of a lagoon will include sufficient freeboard and run-on controls to prevent inflow of stormwater into the structure, and use of a cover can both prevent any necessity for discharge and better control the off-gassing of products of anaerobic decomposition.

The agency must make an evaluation under a “best professional judgment” permit of what is the best available technology for management of wastes and wastewaters, and must require that level of management. Detention in underfloor systems and in lagoons and periodic emptying of those systems and land application of the wastes is not “treatment,” but is instead storage with some uncontrolled decomposition through natural degradation under anaerobic conditions.

C. A detailed comprehensive nutrient management plan, designed and certified by a trained agronomic professional, must be required.

A detailed manure management plan, designed and certified by a trained agronomic professional must be required to demonstrate that the manure and associated liquids will be managed so as to prevent nuisance and pollution. The plan is needed both to prevent contamination of streams and groundwater from excessive or improper land application, and to prevent nuisance odors caused by exposure of the injected manure into the air.

The KPDES permits are inadequate both in failing to require that the CNMP be submitted for agency and public review, and also for failing to require the level of analysis and imposition of specific, enforceable limitations on each aspect of the management of the accumulated wastes and wastewaters needed to assure that pollution or air, land and water resources will not occur.

The commenters understand that soil injection is the proposed method of land application, though the KPDES permits do not (as noted below) limit the land application to that method.

While the use of soil injection, if properly controlled, can reduce odor emissions from those typically associated with landspreading by tankers or spray irrigation, and can result in a better balance between phosphorus and nitrogen in the manure, careful planning, choice of and proper use of injection tools, and monitoring of concentrations relative to crop needs, are necessary to avoid creation of nuisance and adverse environmental conditions.

The loss of ammonium nitrogen as a fraction of the available nitrogen from surface spreading can result in availability of phosphorus and nitrogen in the manure that is out of balance with the crop needs and can result in buildup of phosphorus. Injection, if properly undertaken to assure control of any release on the soil surface, can conserve ammonium nitrogen and provide more balanced nutrient availability.

Liquid manure injection can reduce but does not eliminate odors. Actual field tests on injection odor conducted in Iowa in 1998 by Iowa State University documented odor reductions of as little as 50% and never greater than 75% compared to broadcast applications. As noted below, sufficient setbacks are still needed due to this inability to completely control odors associated with even properly operated injection.

In order to reduce odor emissions and to conserve ammonium nitrogen, injection must be carefully managed in order to prevent release of the manure at the soil surface either from injecting at too high a rate for the conditions, or not having the injectors fully engaged in the soil and the beginning and end of the field before turning on the flow.

Additionally, if liquid manure is injected into the soil in concentrated subsurface bands rather than being properly distributed into the soil, there is likelihood, particularly under poor soil drainage conditions, for anaerobic decomposition with subsequent production of organic compounds toxic enough to stunt root growth of plants or even kill roots.

Liquid manure injection can result in significant odor emissions and nutrient losses when manure is not contained in soil but instead overflows to the soil surface. In order to assure no overflow manure, the manure management plan must identify the proposed injection tools and demonstrate that the injection tool meets the agronomic requirements for maximum nutrient benefit for the selected crops and that the tool capacity (and the void space created in the soil by the tool) is greater than the volume of manure to be injected. Other work underscores that the choice of tool type, injection depth, and extent of manure exposure, all affect the performance of injection relative to odor generation. Odour levels associated with land application of liquid manure are not directly related to the application method. That manure injection provides lower odour level than surface application is not necessarily true in some injection cases where excessive manure is exposed to the air as a result of poor injection operation or the use of an inappropriate injector. Odour levels are directly determined by the amount of manure exposed to the air and the surface area covered with exposed manure, if other conditions are the same. Injection may not reduce odour to a background level (equivalent to odour over an unmanured soil surface), even if it is properly done. Odour concentration at the ground level following manure injection varies from approximately double to 18 times higher than the background value, depending on the extent of manure exposure. The primary criterion for selecting an injector should be based on the tool capacity that must be sufficient in order to minimize exposed manure, and consequently odours. Other criteria should be also considered, such as the hose power requirement and manure distribution in soil.

Id. p. 1.

The rate of application and cumulative loading of nutrients into the soils must also be carefully evaluated. Excess loading of available nitrogen into the environment is emerging as a significant global environmental problem. A new peer-reviewed report appearing in Ecological Applications (August 1997), Human Alteration of the Global Nitrogen Cycle: Sources and Consequences, notes that the doubling of the amount of available nitrogen, and increased movement of nitrogen from place to place, is responsible for increasing ecological disruption, contributing to greenhouse gas concentrations, damaging the ozone layer, and reducing biodiversity. Ammonia gases are a major source of nitrogen movement between ecosystems, and fertilizer and wastes contribute a significant amount of the ammonia reaching the atmosphere.

As with odor creation, much of the problem in surface water pollution arises from the utilization of land areas for disposal of partially treated wastes and manures where the uptake of nitrogen and other constituents of concern will not be complete. Most crops use only 50-70% of applied nitrogen fertilizer; the remainder is either transported by erosion or runoff, leached to groundwater, or transformed and lost to the atmosphere

Surface waters are also affected by the atmospheric deposition of ammonia off-gassed from lagoons, which is redeposited as acidic deposition nearby in streams. According to one report, University of North Carolina researchers found that as much as 1/4 of the nitrogen in waterbodies comes from rainfall, and a major source of the nitrogen is ammonia gas from animal waste lagoon and wastewater evaporation.

Excess nutrient loading into streams results in nuisance algal blooms, hypoxia (low oxygen levels) and anoxia (complete loss of oxygen), causing fish kills.

The determination of the appropriate rate of application of manure and wastewaters associated with confined animal facilities based on nitrogen, creates a real potential to overload land and water resources with phosphorus. Manure or compost application based on nitrogen needs of a crop can lead to significant soil accumulation of phosphorus, salt and other ions in the soil. There is a significant imbalance in manure and compost nitrogen to phosphorus ratios compared to plan N and P uptake. If manure or compost is applied to provide adequate nitrogen for a crop, the amount of phosphorus added to the soil in the manure or compost can be two to three times greater than the phosphorus needs of that crop, leading inevitably to P accumulation in the soil. This accumulation in turn increases the amount of dissolved P that is carried off in runoff, leading to algae blooms which deplete oxygen in waters. Id.

Phosphorus loading in waterbodies poses several threats to water quality. By relieving phosphorus limitation in waters, eutrophication is directly stimulated. Phosphorus loading has also been implicated in increases in frequency of toxic algae blooms in North Carolina’s coastal waters. Phosphorus loading in excess of relative needs can also create nitrogen limitation, favoring blooms of nitrogen-fixing blue green algae.

Since manure application to soils at crop-recommended rates of N results in excessive application of P, the only responsible approach to reduce or eliminate adverse environmental effects and provide crop nutrients, is to use phosphorus-based application of manure and wastewaters. Accumulation of “salts” is also a significant concern regarding long-term damage to the productive capacity of the soils, and for surface and groundwater pollution.

Underfloor systems in which manure is stored in pits below slatted floors, retain a high percentage of nitrogen, phosphorus and potassium, and injection of the manure results in a much higher percentage of nitrogen available in the soil due to less ammonia release. These factors make proper management of rates of injection critical to prevent overloading of soils with nitrogen and phosphorus.

Against this background, what must a proper plan include?

a. Complete characterization of the waste, wastewaters and manure is needed to assure that any land application will not exceed soil and plant uptake. Sampling of the metals, salt, nitrogen, phosphorus, and micronutrient content of the manure is necessary to match the nutrients to crops needs, and to minimize the risk of runoff of excess nutrients as pollutants. Maximum application rates must be limited to that the estimated plant available nitrogen from all sources, including past-years credits from legumes and manure, commercial fertilizers, soil organic matter, irrigation water, and nitrogen deposited from ammonia.

In order to minimize air and groundwater pollution, evaluation of partitioning of the nutrients must be included, identifying the fraction of the nutrients that will leach, volatilize, denitrify or be taken up by plants. The fate, partitioning, and transport of all constituents of concern associated with manure from concentrated swine feeding operations should be evaluated.

b. The suitability of the land for land application, including evaluation of soil and subsoil permeabilities, mapping and identification of the depth and extent of local aquifers, evaluation of vulnerability of groundwater resources, soil slope, erodability, land use of proposed disposal site and surrounding land uses, existence of water withdrawals downstream of proposed disposal site.

c. The equipment that will be used for injection, controls on the rate of injection, the specific procedures to be used to prevent releases of manure before the injector is fully engaged in the soil, the precautions that will be taken to prevent accumulations of manure in the injection zone causing anaerobic decomposition; all must be specific permit conditions.

d. The identification of the specific land area that will be used for manure application over the life of the facility, and copies of the easements or other demonstration of ownership or access to those lands to support the land application

e. Calculations based on a-c demonstrating that the rate and manner of application will not exceed crop nutrient removal rates for the land in order to prevent buildup and runoff of nutrients (particularly phosphorus) beyond suggested agronomic and environmental levels. The loading and cycling of nitrogen and phosphorus must be managed in order to assure that application rates will not result in excess available nutrients.

Limitations on application of manure or disposal of wastewaters should be established based on soil, slope and composition of wastes, to assure prevention of injection near areas of influence of sinkholes, wetlands, groundwater recharge areas, in proximity to surface waters and water wells. The current permitting reliance on nitrogen levels to determine loading rates will invariably result in overloading with phosphorus, salts and other contaminants that are less capable of volatilization and are less soluble than nitrogen. In addition to limits on application for nitrogen and phosphorus, consideration must be given to prevention of accumulations of toxic concentrations of metals. Appropriate limits, compliance with which must be documented by periodic soil tests, must be placed on individual and lifetime applications of manures, sludges and wastewaters for all potential pollutants of concern from an environmental or public health standpoint, including copper, zinc, nitrates, phosphorus, antibiotics, and enteric pathogens, roundworms, viruses and other biological contaminants of concern.

f. In order to prevent accumulation of “salts” which can result in reduced crop yields, a chemical analysis of the manure for electrical conductivity (a method of estimating content of sodium, potassium, calcium) should be conducted. Once these are known, proper application rates to prevent build-up in the soils and imbalances in sodium-potassium to calcium-magnesium from causing crop yield reductions, can be established. Where repeated land application of liquid manure occurs, the “salts” and sodium content of soil should be monitored, in addition to metals.

g. Buffer strips or berms by all intermittent and perennial streams should be required, the width of which are determined based on slope, area drained, vegetation and soil type.

h. Management of manure, wastes and wastewaters during months when land application is inappropriate must be addressed. Storage losses to air and through runoff, of nutrients in manures can be significant, and the permit should include specific conditions on how those wastes will be managed in order to prevent pollution.

D. In order to prevent nuisance conditions and to control transport and deposition of fine particulates associated with dust and odor emissions, the confinement buildings should be designed and equipped to exhaust the building air through a biofilter or other air scrubbing system.

The use of an underfloor or “deep pit” manure collection system, has the effect of concentrating odors within the living environment for the animals and the workplace for those employed by the hog operation. “The source of odors from a manure pit is the volatile compounds generated during the decomposition of manure. The two principal odorous compounds are those containing sulfur (hydrogen sulfide) and those containing ammonia (nitrogen). The techniques for odor and gas control inside swine confinement barns are limited[,]” and usually involve venting the odors through the pit to the outside air.” The use of commercial chemical products introduced into the waste or feed to mask, block the sensing of odors, absorb odors or to alter the decomposition to avoid generating odors, have generally proven disappointing. Id.

Studies describing the adverse respiratory effects on swine production workers have been published in several countries, concurring that approximately 50% of the studied workers experiences one or more adverse respiratory health outcomes, including bronchitis, toxic organic dust syndrome, hyper-reactive airway disease, occupational asthma, hydrogen sulfide intoxication or chronic mucous membrane irritation. (Reynolds 1996).

The underfloor deep-pit waste system involves a high loading rate and favors minimal digestion of nutrients and production of metabolic end products (gases). With this type of system the gases/odors tend to be predominantly H2S (hydrogen sulfide) and VOCs (volatile organic compounds). Around manure pits, hydrogen sulfide gas can be a very serious hazard. At low concentrations, this gas is identifiable by its “rotten egg” odor, but at high concentrations, it may be undetectable by smell and can cause instant respiratory arrest and death. Several people in the Midwestern United States have been killed or critically injured by exposure to hydrogen sulfide after the agitation of liquid manure in deep pits. Noxious gases formed during storage of animal manures can pose a serious threat to the health and safety of both the worker and the animal; producing acute responses even after short period of exposure to high levels of these gases, ranging from temporary irritation to discomfort to death.

The storage of liquid manure under the building is being phased out on farms in Western Europe but is still fairly common in North America. The “most dramatic effect of any agent within livestock confinement buildings is that of the acute poisoning from hydrogen sulfide gas. For buildings with liquid manure stored under the buildings, occasional sudden exposures to high levels of hydrogen sulfide may result in fatal acute poisonings or pulmonary edema when the manure is agitated.”

Odors generated in livestock housing facilities that exit the housing can make their way to downwind neighbors. Odorous compounds tend to be carried on dust particles, and strategies to reduce odors focus primarily on housekeeping measures to reduce dust emissions, including “filtration of exhaust air as it leaves the housing facilities, filtration of odorous air prior to moving past the property line, construction of impermeable barriers to arrest particle transport, and reduction in the formation of odorous compounds within the housing environment.” Mechanical or biofiltration or use or air scrubbers can significantly reduce odorous emissions, and are recommended for “high-load” systems such as deep pits where biological processing of the waste tends to be incomplete due to an imbalance in microbial populations and a loading rate exceeding the microbial ability to utilize the waste sufficiently to prevent accumulation of odorous intermediate compounds. Id.

Since the primary cause of odor generation in the removal of manure from swine buildings is the agitation and mixing of manure, the method and frequency of removing the manure must be detailed, and carefully managed. The system should be closed, with ventilation systems that are biofiltered prior to release into the air.

Failure to require that the confinement building be equipped with biofilters or other air scrubbing or filtration system demonstrated to be effective to control dust and odor emissions from the building, would violate KRS 224.10-100 and 401 KAR 5:005 Section 24 by allowing emissions likely to violate prohibitions on fugitive dust emissions and on emission of air toxics in 401 KAR Chapter 63.

E. A groundwater protection plan should be required to be developed and submitted to the Cabinet for review.

A groundwater protection plan should be required, including analysis of the suitability of the land for land application, evaluation of soil and subsoil permeabilities, potentiometric mapping and identification of aquifers, evaluation of vulnerability of groundwater resources, and existence of water wells in proximity to the waste and wastewater disposal sites. While 401 KAR 5:037 exempts agricultural activities at an agriculture operation, the proposed in-ground storage of wastes and wastewaters under a building and the disposal of such wastes through injection into land is not an “agricultural” activity occurring at an agricultural operation unless the land on which the waste is applied as fertilizer is used for forage; if the lands are actually cropped rather than being used simply as a waste-disposal system; and if the amount applied is demonstrated to be limited to applications beneficial to the crops. Alternatively, even if 5:037 exempts the activities from the requirement of a groundwater plan, ample authority exists under 401 KAR 5:005 to require such a plan as a special permit condition.

The applicant should be required to characterize the geological setting proposed for land application of wastes from such operations; including identification of any aquifer capable of beneficial use and quarterly monitoring or other data indicating seasonal water table elevation, quality and groundwater flow patterns.

Groundwater pollution often directly affects drinking water and can occur as contamination by bacteria, nitrogen and sometimes phosphorus The primary concern with phosphorus is not movement through soils to groundwater, but is instead the movement through soil erosion and runoff from precipitation or irrigation, increasing the P content of lakes and streams and leading to eutrophication, hypoxia and anoxia due to increased biological oxygen demand (BOD). The largest nutrient contamination concern for groundwater, however, is that of nitrogen leaching. Nitrogen leaches primarily as nitrate (NO3), an extremely mobile anion. High nitrate in drinking water has been documented to cause methemoglobinemia, or “blue baby syndrome” in infants under 6 months of age. The level to which groundwater becomes contaminated depends greatly on the circumstances in the crop production system, with the rate, method and timing of application of manure in the context of crop, rainfall and soil conditions, being critical considerations.

Nitrate contamination of subsurface water supplies is a significant public health concern for other reasons, since nitrate pollution has been linked to cancers of the stomach and urinary tract, and non-Hodgkin’s lymphoma as well as blue baby syndrome.

Injection of manure as a control strategy for limiting airborne release of ammonia nitrogen and other gases, can reduce the loss of ammonia nitrogen to the atmosphere, but may heighten the possibility of groundwater contamination by introducing manure with higher nitrogen content into void spaces created in the soil. Depending on the depth to groundwater, soil and subsoil characteristics, and the permeability and porosity of soil and bedrock, the rate of application, amount of rainfall, and the presence of pathways such as old wells, groundwater contamination can result from soil injection, and must be anticipated and avoided through proper planning based on site-specific characterization. The presence of a number of potential disease-inducing pathogens in animal manure, and trace antibiotics, make this form of fertilizer problematic from a groundwater contamination standpoint.

The possibility of groundwater contamination also exists from the containment systems used to store the manure, since cracks in containment vessels or piping through synthetic or clay liners may introduce untreated liquids into the vadose zone. Where, as in this area, the earthquake hazard potential is significant, the Cabinet should require that above-ground closed vessels be used for collection and storage of wastes and wastewaters rather than in-ground pit storage of liquid wastes, and if such in-ground underfloor systems are allowed, they must be designed with leak detection pans and monitoring of the vadose zone to promptly detect leakage or breach of containment.

F. Baseline monitoring of instream water quality and biological integrity of the aquatic communities should be undertaken in order to benchmark pre-operational conditions so that meaningful comparison can be made if discharges occur from the facility.

The proposed permit conditions requiring protection of instream values is without meaning and is unenforceable absent a baseline characterization of the quality and biological condition of the receiving stream(s).

G. The proposed setbacks are inadequate to prevent nuisance conditions and potentially implicate the agency in an unconstitutional taking of property without compensation.

Sufficient setbacks should be provided to assure no nuisance odors from injection areas and from the confinement building. Setback distances should be a flat distance of 5,000 feet or more from any soil injection area or confinement building to any property line, or a sliding scale depending on the size of operation, in order to protect the full ability of adjoining property owners to utilize their properties.

The setbacks proposed by the draft permits are inadequate for two reasons: first, the distances proposed are less than the available literature suggests is needed to fully protect the uses of other lands from injury; second, the failure to establish setbacks based on property boundary rather than existing structures has the effect of precluding the full utilization of those surrounding properties and constitutes an improper reverse “zoning” of those other lands that has profound constitutional ramifications.

The use of setbacks as a mechanism for isolating odors, airborne toxics, disease-causing organisms and other air contaminants from neighboring properties and incompatible land uses, is a tool that should supplement other measures taken to prevent nuisances. Setbacks should continue to be required to assure prevention of water pollution, and to minimize disruption and interference with the use and enjoyment of other lands through isolation of facilities and their inherent odors and vectors from neighboring land uses, but should not be considered a sufficient stand-alone pollution control strategy. In addition to setback requirements, the operator of a confined hog facility should be subject to a general prohibition providing no confined hog facility or any portion of the operation shall be allowed or permitted which will interfere with the reasonable use and enjoyment of the lands of another, nor become a nuisance due to the manner of construction, design or operation of the facility. The current permit language prohibiting creation of nuisance conditions should be retained. In establishing appropriate setback distances, varying distances are utilized by states and localities. According to an article in Environmental Health Perspectives, (December 1995), the National Pork Producer’s Association recommends new hog operations be located 1,500 feet from houses and 2,500 feet from schools, hospitals and churches. The research conducted by Schiffman at Duke University indicated that swine odors tend to drift in a plume that is not attenuated at significant distances, and which is offensive at extremely low concentrations. This is supported by other research and anecdotal evidence suggesting that odors are a problem at far greater distances that suggested above and than what is proposed in the draft permits. Pettis County, Missouri, adopted a sliding scale of setbacks depending on the number of animal units, which had as much as 3/4 mile setback from a dwelling, and 2 mile minimum distance from a populated area (increasing by 1/4 mile with each 500 more animal units).

North Carolina’s legislature, in 1996, proposed a 1,000-to 1,750-foot property line setback, depending on size of operation, 1/4 mile to any waterbody (minimum), up to 1/2 mile for significant waterbodies (down to 500 feet if lagoon is concrete lined); 500 foot to any well, 100 foot to any ditch or swale; which setbacks may be expanded depending on location relative to the 100-year floodplain, soil type, location in watershed, nutrient sensitivity of receiving waters, slope, proximity to other pollutant sources, and parklands. In Lincoln Township, Missouri, setbacks depend on the lagoon storage and volume with 1-mile setback from dwellings for lagoons of greater than 20-acre feet.

Virginia Tech Professor Emeritus of Agricultural Economics J. Paxton Marshall recommended setbacks of 1 mile from any group facility and .5 mile from any residence for large swine facilities (100 to 250 breeding stock); and for industrial scale operations, (greater than 250 head of breeding stock) 1 mile from residences and 1.5 miles from any group facility, with the possibility of individual waivers if all owners within the prescribed distances waive such setbacks. Concerning soil injection systems, the technical literature indicates that, using the dilution-to-threshold or “DT” concentration of 2 DT as a background odor concentration level at which odor nuisance conditions are not created, a minimum distance of 2,600 feet from the odor source is needed to achieve 2 DT for a 200-sow farm that utilized a scrape, storage pit and soil injection system (contrasted with 7,580 feet for a larger flush/lagoon/sprinkler irrigation system).

In developing setbacks and other regulatory requirements to prevent nuisance odors from affecting other landowners, the USDA (2000) cautions that “[o]f paramount importance to the success of present day [odor control] systems is to avoid overly optimistic assumptions in assessing manure production and treatment efficiencies in the design of storage, treatment and land disposal systems. Overly optimistic design assumptions in these areas have frequently been utilized to justify placing an operation on a particular parcel of land that is too small. These short-term expediencies result in operations that are more likely to lead to odor conflicts or environmentally unsustainable systems from a nutrient management perspective. Cost saving measures in site selection and facility design can lead to higher cost, including expensive retrofits and neighborhood conflicts in later years.” Id.

Finally, research conducted by Bazen and Fleming and published in the Journal of Environmental Quality specifically reviewed the current literature against the standards for setbacks contained in the General KPDES Permit, and found that the 1500-foot setback length from barns and manure storage (so-called low protection areas) and the High protection areas receiving a 3000-foot setback, were “too short for the conditions considered.”

“At the minimum,” the study concluded, “the setback length should be 1421 m [4,662 feet] in low protection areas and 1513 m [4,963 feet] in high protection areas.” Alternatively, the authors propose a single setback distance of 1550 m [5,085 feet]. For the Cabinet to continue to issue permits containing lesser setback lengths, in light of the weight of technical literature and in light of the Bazen/Fleming article reflecting that the lesser setbacks will harm property values of adjoining landowners, is to invite conflict among neighbors, litigation against both the operator and the agency concerning property losses (which litigation the article reflects “is justified” at the lesser setback distances), and does nothing to encourage the operator to rely on new technologies to control rather than disperse odors.

The Cabinet should reevaluate the proposed setbacks in light of this literature and should significantly increase the distances in order to fully protect against off-site impacts.

The second issue posed by the Cabinet’s proposed setbacks is the point at which the setback is measured. Under the Cabinet’s approach, the setback distances are measured from the land application area or barn / lagoon and certain structures (dwellings, churches, schools, businesses, parks, water wells) based on whether those structures are in existence when the facility receives its first KPDES permit.

Assuming, for the moment, that the setbacks were otherwise sufficient (which they are not, as shown above), the failure to set the setbacks from the property boundary of the proposed facility has the effect of creating a reverse zoning on the property of another in which an occupied structure may not be feasible due to the odors from the facility. Using existing structures as the rule, land application could occur or a lagoon could be built at a property line, thus effectively creating an area of up to 1,500 feet in which the ability of that neighbor to use their property for residential or other occupied purposes, or for a water well, would have been effectively foreclosed. The only way in which to protect the potential to utilize the adjoining lands for those uses, is to require that the facility setbacks be measured from the property boundary.

The failure to measure setbacks from the property boundary also has the effect of depriving the adjoining landowner of beneficial uses and value of their property, and could be characterized either as a physical “taking” of that land through the overlay of a zone of limited use on the neighboring land; or as a regulatory taking in which the state has granted a permit necessary to conduct the land application or confined hog rearing activity, and has allowed that activity to be sited in a manner calculated to deprive the neighbor of the ability to utilize a portion of their land for residential or other beneficial purposes.

H. Application areas should be bermed to prevent any runoff from reaching receiving streams

Berms should be constructed around fields accepting landspread wastes, to assure that no runoff contaminated with nutrients is discharged into streams or lakes.

I. A bond should be provided to assure that the facility will be properly closed and any spills or releases cleaned up.

J. Liability insurance should be required sufficient to pay any judgments or claims from third-parties, including third-party injury claims for nuisance or loss of property value.

In closing, thank you for consideration of these comments. KRC requests that the proposed permits be withdrawn pending submittal of a detailed Comprehensive Nutrient Management Plan and further that on reissuance of the proposed KPDES permit and/or issuance of a proposed no-discharge 5:005 permit, that conditions addressing each of the above-mentioned recommendation be included. KRC requests also that specific responses be provided for each of the comments raised in this letter and in support any decision by the Cabinet regarding issuance or denial of a construction and KPDES permit to these applicants.

Tom FitzGerald


September 7, 2005 Letter to Secretary Wilcher

Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone
(502) 875-2845 fax
e-mail: fitzKRC@aol.com

September 7, 2005

Secretary LaJuana Wilcher
Environmental and Public Protection Cabinet
5th Floor Capital Plaza Tower
Frankfort, Kentucky 40601

David W. Morgan, Director
Division of Water
14 Reilly Road
Frankfort, Kentucky 40601

Re: Regulation of Animal Feeding Operations

Dear Secretary Wilcher and Director Morgan:

I understand that in the aftermath of the Second Circuit decision in Waterkeeper Alliance, et al. v. USEPA, 2005 U.S. App. LEXIS 6533, and in light of several pending requests for Kentucky No Discharge Permits from several individuals seeking to construct and operate confined hog facilities in western Kentucky counties, that the Cabinet is `evaluating its regulatory approach to addressing the potential air, land and water pollution impact associated with this industrial activity. I am writing to convey the Council’s perspective and concerns in this regard.

As you know, the Waterkeeper decision considered and resolved numerous challenges from environmental and industry groups to the final permitting and effluent limitation guidelines adopted by the USEPA in 2003 to regulate water pollution associated with “concentrated animal feeding operations.”

The Court’s decision on the “duty to apply” raises several related question concerning which facilities must apply for NPDES permits under the federal program. The decision rejected the requirement of the CAFO rule “that CAFOs either apply for a permit – and comply with the effluent limitations contained in the permit – or affirmatively demonstrate that no permit is needed because there is “no potential to discharge[,]”, not because the Court believed that EPA was acting without reason in imposing the obligation on large CAFOs but because Congress limited EPA’s authority to regulating the actual discharge of any pollutant, not the potential to discharge.

The decision raises the question for the state of whether a change is needed in either the language or manner of application of 401 KAR 5:005, which currently requires that animal waste handling systems meeting the definition of a CAFO must obtain a 5:005 and a KPDES permit.

The Council believes that the Cabinet is not obligated to alter its current approach to regulation of animal waste handling systems. Animal waste handling systems that do not meet the definition of CAFOs either because they fall below the numerical threshold to be considered a CAFO or because they do not discharge except in response to a storm even greater than 25 year 2-hour frequency, remain subject to an independent state permitting obligation under 5:005 that is grounded in the broad legislative goal of safeguarding water from pollution and prohibiting direct and indirect discharges of pollutants under KRC 224-70-110(2) and 70-110. Those facilities conveying, storing or treating manures prior to land application are subject to 5:005 Sections 2, 24, 25, 27, and 29(1)(h) and (i), including Sections 24(4)(a) and 25(2) which authorize the Cabinet to impose such special conditions that are necessary to assure compliance with the laws and regulations.

The Waterkeeper decision rejected EPA’s authority under the Clean Water Act to require under the NPDES regulations, that a source affirmatively apply for a NPDES permit or demonstrate the lack of discharge, based on the term “discharge of a pollutant” which is keyed to the addition of a pollutant to a navigable water.

Kentucky law is not so limited, but in fact broadly empowers the agency to prevent the creation of any new pollution and to safeguard from pollution the uncontaminated waters of the Commonwealth. The prohibition on pollution in KRS 224.70-110 reaches direct and indirect discharges and evinces a broader remedial intent than regulating “discharges of a pollutant.”

Likewise, KRS 224.16-050 vests in the Cabinet specific authority to issue federal permits pursuant to the NPDES program and, in subsection (4), restricts the Cabinet’s authority to impose in a permit issued under that program an effluent limitation, monitoring requirement or other limits greater than would have been imposed had the permit been issued by the federal agency, but in no fashion restricts the ability of the state to require a permit from an entity that would not necessarily be obligated by EPA to apply for a permit after the Waterkeepers decision. The current state regulation at 401 KAR 5:005 providing that agricultural waste systems that convey, store or treat manure from a CAFO comply with Section 2, 24, and 29(1)(h) and (i) and obtain a KPDES permit can continue to be applied as it has, requiring the applicant to justify and demonstrate as part of the 5:005 process whether it falls within or without the CAFO definition.

An agricultural waste handling system owner and operator may believe, at first blush, that some advantage is derived from not holding a KPDES permit, yet such is likely not the case. For if the facility no longer possesses a KPDES permit, the disposal of livestock waste on land by the animal waste handling facility is no longer categorically exempt from RCRA, 42 USC 6903(27), and is subject to regulation as a solid waste disposal activity exempt only if it meets the narrow exclusion for those applications of “solid or dissolved material in . . . manure on the soil for return to the soil as fertilizers.” Additionally, the source is subject to agency enforcement action in the event of a discharge in response to a rainfall event of less than a 25-year, 24-hour event.

In sum, KRC believes that the Waterkeepers decision does not mandate a change in state regulation or in the obligation of an agricultural wastes handling system to obtain a KPDES permit if it is a CAFO. In any event, as KRC has previously recommended in the context of comments submitted on July 25, 2005 (which are attached as an appendix to this letter), the Cabinet has ample authority under state regulation independent of the Clean Water Act, at 401 KAR 5:005 Sections 24 and 25, to impose as a matter of best professional judgment, a comprehensive nutrient management plan and other requirements necessary to prevent air, land and water pollution.

The Waterkeepers decision does, however, require that the General permits issued by the Cabinet for beef, dairy, poultry and swine be reopened and revoked.

In rejecting that portion of the final rules that failed to require that the specific restrictions on application rate and other limiting terms of the nutrient management plans be reviewed by the agency and be incorporated into the NPDES permit as an effluent limitation, and which failed to provide that the nutrient management plans be available to the public for review and comment, the Court’s decision cast doubt on the validity of the Cabinet’s general permits for beef, dairy, swine and poultry, which likewise did not provide for individual agency review of the site-specific CNMPs and inclusion of the terms of those plans as permit limits. This letter serves to request that the agency reopen those general permits due to the lack of public availability and opportunity to review the plans, the lack of agency review of the sufficiency of the plans, and failure to include in the permits limitations based on the terms of the CNMPs.

Thank you in advance for the opportunity to express these concerns.

Tom FitzGerald

cc: Peter Goodman, Division of Water
Bruce Scott, Division of Waste Management
Scott Smith, Office of the Secretary

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