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Cabinet Urged To Require Co-Permitting and Better Controls on 9 Proposed Confined Hog Feeding Operations  Posted: May 23, 2006
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone
(502) 875-2845 fax
e-mail: fitzKRC@aol.com

May 22, 2006

Inventory and Data Management Branch
Division of Water
Environment and Public Protection Cabinet
14 Reilly Road
Frankfort, Kentucky 40601

Re: Applications for Kentucky No Discharge Permits
For Agricultural Wastes Handling Systems: Public Notice 2006-02

Caleb Deweese Hog Farm
Charles Cannon Hog Farm
J.P. Amberg Hog Farm
Keith Kimbell Hog Farm
Marsh Hunt Hog Farm
Matt & Jim Moss Hog Farm
Mike Hancock Hog Farm
Ralph Wayne Adams Hog Farm
Smith and Hancock Hog Farm

To Whom It May Concern:

These comments are submitted by the Kentucky Resources Council, Inc. regarding the above-referenced applications for no-discharge construction and operational permits for new hog finishing operations including a site-specific Nutrient Management Plan and land application of stored wastes.

For the reasons stated below and on the basis of the technical literature cited herein concerning the potential for surface and groundwater contamination, as well as potential generation of nuisance odors and contamination of lands, KRC respectfully requests that in conjunction with the issuance of any permit authorizing underfloor pit collection and storage of hog manure and surface disposal by soil injection, that each of these concerns be addressed through imposition of enforceable conditions.

KRC has a number of specific comments, but first addresses the legal obligations of both the permit applicants and the Cabinet with respect to these operations, providing the legal context in which these operations should be regulated. KRC incorporates herein by reference previous letters sent concerning these proposed hog “finishing operations” on July 25, October 24 and 25, and December 6, 2005, and requests responses to each comment contained in this letter and those previously submitted.

1. 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

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 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). 401 KAR 5:005 Section 24(4)(a) provides in part that “[p]ermits may contain special conditions that in the best professional judgment of the cabinet are necessary to comply with KRS Chapter 224 and administrative regulations promulgated pursuant thereto.” Likewise, Section 25(2) provides for imposition of special conditions.

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 respectfully requests that the Cabinet 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.

Additionally, 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).

2. These Specific Recommendations Should Be Incorporated Into Any Construction Permit Issued Pursuant to 401 KAR 5:005 For Animal Waste Handling Systems

Against that statutory and regulatory backdrop, KRC respectfully requests that specific permit conditions be included in any issued permit incorporating these recommendations:

Recommendation #1:

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

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. Certainly, any such contracts cannot alter or restrict the police power of the state.

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.”

The Cabinet must make 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 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.

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. 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, Tyson Foods, Inc. v. Stevens, Al., 783 So.2d 804 (2000), 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.

There is little question of who is “calling the shots” in terms of the construction of these facilities. The design graphics submitted with the applications, marked S-1 Floor Plan and S-2 Details, are identified as “Tosh Farms Standard Hog Barn.” Tosh is directing the manner in which the pit floor will be constructed, dictating Sump Pit and Pit Wall Detail, and prescribing the load requirements for the structure as well as site preparation, concrete specifications, materials to be used, and the foundation specifications.

In fact, the S-2 Construction Details specifically notes that “these plans are exclusively for the use of Tosh Farms. The engineer shall not be responsible for any use of these plans by any other person or entity.” (Emphasis added).

That being the case, either the applicants need to retain their own engineer to design plans for their use, or, more appropriately, the party that is dictating the essential conditions of the facility and its waste disposal needs to be named as a permittee.

All of the indicia that the Supreme Court of Alabama found sufficient to support agency and to hold Tyson liable is present here – Tosh is specifying the design of the “standard hog barn” and has prescribed the waste-management system to be used, is providing the hogs, and likely (although it is not clear since the contract is not part of the record) is providing the feed, veterinary supplies, and care, leaving the “farmers” with the responsibility to feed and water the animals. Given that Tosh’s dictation of the structural design of the wastewater holding pits and of the waste disposal method, it is arbitrary and capricious not to make Tosh a co-permittee sharing joint responsibility for environmental compliance.

Recommendation #2:

Language requiring that the applicant’s comply with all applicable local governmental ordinances should be included in the permit.

401 KAR 5:005 Section 25(2)(c) and (e) specifically recognize and provide a savings clause with respect to other statutes, administrative regulations, ordinances and orders of any governmental unit that may be applicable to the proposed operation. While proposed condition T-9 for STRC 4 recognizes that this permit does not relieve the applicant of responsibility for obtaining other permits, specific language requiring compliance with all other laws, regulations and ordinances should be incorporated into the permit.

Additionally, the Cabinet is specifically requested to acknowledge that the state standards are minimum standards that can be supplemented by local ordinance.

Finally, specific language should be incorporated in the permit indicating that the issuance of the permit shall not be construed as authorizing the creation or maintenance of a nuisance. 401 KAR 5:005 Section 25 (2)(c).

Recommendation #3

The cover letter accompanying the construction permit should be modified to reflect that the provisions of the permit are established pursuant to the Cabinet’s authority and duty under 401 KAR 5:005 Section 25(2) “to comply with KRS Chapter 224 and administrative regulations promulgated pursuant thereto.” While the provisions are established to protect human health and the environment, given the possibility of litigation challenging the permit conditions, the specific authority should be referenced.

Recommendation #4

The draft permit fails to identify the design capacity of the diversion ditches that are to be constructed in order to divert uncontaminated runoff from entering the treatment system.

Recommendation #5 The draft permit does not allow deviations from the plans and specifications submitted to the Cabinet, but nothing in the permit expressly requires the applicant to implement the plans and to follow through on commitments and limitations proposed in the permit applications.

Recommendation #6

The proposed KNDOPs fail to satisfy 401 KAR 5:005 in that the permit cover sheet notes that “any direct discharge to surface water is prohibited” but fails to likewise assure that the facility does not discharge to groundwater. “Discharge” means “any addition of any pollutant or combination of pollutants to waters of the commonwealth from any point source.” “Point source” means “any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, or concentrated animal feeding operation, from which pollutants are or may be discharged.”

“Waters of the commonwealth” as defined in KRS 224.01-010 includes any and all springs, wells, and all other bodies of surface or underground water, and is broad enough to require consideration of and protection of aquifers that might be adversely affected from pollutants discharged from point sources such as soil injectors, cracks in underfloor containment structures, or leaks from piping.

Recommendation #7

The proposed setbacks are plainly insufficient, based on available literature, to assure that nuisance conditions will be voided as required in 401 KAR 5:005 Section 25.

Sufficient setbacks should be provided to assure no nuisance odors from injection areas and from the confinement building. Setback distances should be a minimum of 2,600 feet from any soil injection area or confinement building to any property line in order to protect the full ability of adjoining property owners to utilize their properties. Setbacks should be increased as size of facility increases, and all confinement buildings should be required to use filtration.

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 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. 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].

The Cabinet’s proposed setbacks all-but-assure that nuisance conditions will be created. 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, the Cabinet sets the stage for 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 using the publics air to disperse odorous pollutants.

Instead, utilizing the authority to impose special conditions, the agency should require minimum setbacks from barns and pits, and injection sites, of 5,000 feet.

The Cabinet’s proposed setbacks are flawed for another reason – by requiring setbacks measures not to the permittee’s own property lines, but instead to dwellings, churches, schools, businesses and other structures, the Cabinet will adversely affect the ability of adjoining property owners to develop their properties for those uses, since presumably new construction of such structures would be subject to nuisance conditions. Under the draft permits, a permittee whose adjoining property owner had not yet constructed a dwelling or other structure would be able to land apply wastes, or to construct a barn or lagoon, right up to the property line, thus rendering up to 1,500 feet of the neighboring property unsuitable for those uses. This effects a taking of the neighbor’s rights by allowing the physical intrusion of odors onto the adjoining property, in effect a pollution easement, just as if the agency had occupied the property physically and restricted its use. All setbacks must be measured to the permittee’s property boundaries and must be sufficient to protect the full gamut of uses of adjoining properties.

Recommendation #8

The permits fail to properly reference and to incorporate a compliance obligation with 401 KAR 63:020, which requires “persons responsible for a source from which a hazardous matter or toxics substances may be emitted [to] provide the utmost care and consideration, in the handling of these materials, to the potentially harmful effects of the emissions resulting from such activities” and which prohibits the emission of “potentially hazardous matter or toxic substances in such quantities or duration as to be harmful to the health and welfare of humans, animals, and plants.”

The regulation requires the Cabinet to evaluate such facilities as to the adequacy of controls and emission potential on an individual basis, and KRC respectfully requests that the Cabinet do so, and require through 401 KAR 5:005 Section 25, the imposition of controls to assure minimization of creation and release of potentially hazardous matter or toxic substances.

There is no question but that emissions from these facilities may fall within the ambit of 401 KAR 63:020. “Potentially hazardous matter or toxic substances” as defined in that regulation includes “matter which may be harmful to the health and welfare of humans, animals, and plants[.]” The sources of odors from swine operations include ventilation air released from swine buildings, waste storage and handling systems including lagoons, and spray irrigation and other land application of manure and wastewaters. The odors are produced by a mixture of fresh and decomposing feces, urine, and spilled feed. The more objectionable odors appear to result from anaerobic microbial decomposition of the feces. A broad range of potentially hazardous or toxic compounds has been identified in livestock manure including volatile organic acids, alcohols, aldehydes, mercaptans, and nitrogen heterocycles.

The odors from livestock manure are the result of a broad range of odor-producing compounds. Researchers have identified a total of 168 compounds associated with livestock manure. Thirty of them have very low thresholds at which the odors are detectable (less than 1 part per billion). Commonly reported compounds include sulfur-containing compounds, ammonia, volatile organic acids, phenols and alcohols.

In most large-scale facilities, the manure and urine that do not collect on the swine pass through slatted floors into a holding area beneath the building, where they remain until the next removal date. These holding areas often generate a large portion of the odors associated with housing facilities, especially when ventilation devices are utilized, pumping the odor by-products of decomposition outdoors.

The effect of environmental odors from commercial swine operations has been studied extensively by Dr. Susan Schiffman and others at Duke University. Dr. Schiffman reported that odors from swine operations have a significant negative impact on mood of nearby residents. Research from Duke University indicates that odors from hog farms cause tension, depression, anger, fatigue, and confusion in neighboring residents. Among the findings of Dr. Schiffman are that odorous compounds can be carried in a plume, and the concentration of these compounds may not be significantly reduced at distances of 750-1500 feet or more downwind from a source. This distance, and the fact that the number of odor-causing molecules needed to induce strong adverse reactions from humans are very small (in the parts-per-billion or parts-per-trillion range), suggests that setbacks of significant distances may still be no guarantee that adjoining and nearby properties will not be adversely affected. A North Carolina State University study indicated that “proximity of hog operations has a statistically significant and negative impact on property values.”

Dr. Schiffman also noted that roofing shingles, siding, fabrics and other materials can act as “sinks” for hog odors, trapping the compounds at night and releasing them during the day.

Odor in confinement buildings are of concern. Studies by Donham et al. have identified ventilation gases from urine on floors as a major source of ammonia emissions, where some 25-40% of the nitrogen in the animal wastes are converted to ammonia gas, much of which is reconverted to nitrate and deposited on land and water nearby. Emissions from these sources as well as anaerobic lagoons and land application should be aggregated and classified as air emissions and be subject to appropriate modeling and permit limits.

a. Odors From Deep-Pit Systems

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.

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.

For these reasons, the permits should include enforceable requirements to reduce dust emissions in order to reduce odors, 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 of 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.

Additionally, the underfloor system should be a closed system in order to protect workers in the workplace. 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).

Significant health problems confront workers in confinement houses, including exposure to hydrogen sulfide gas, organic dust toxic syndrome, bronchitis, respiratory problems and brucellosis. Acute poisoning from exposure to hydrogen sulfide gas is a risk, where liquid manure is stored under a building and is agitated. Chronic exposure to aerosols is more prevalent. Studies of workers in confinement buildings indicate that upper and lower airways inflammation is common, manifesting itself as bronchitis, rhinitis, pharyngitis and sinusitis. Additional generalized symptoms among swine workers included delayed onset of fever, malaise, muscle aches, fatigue, and pains, thought to be associated with chronic agricultural dust exposure. 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 to protect worker health.

Noxious gases formed during anaerobic decomposition of stored animal manures can pose a serious threat to the health and safety of both the worker and the animal. Carbon dioxide, hydrogen sulfide, ammonia and methane are the most important gases generated because of their well-known hazardous properties and the quantities produced. Exposure to high levels of these gases for even short period of time can produce acute responses both in animals and man which range from temporary irritation and discomfort to death. Daily exposure to lower levels of these same gases can present long-term health hazards for workers and production losses for animals.

b. Odors from Anaerobic Lagoons

Odors from anaerobic lagoons are a significant problem. According to the North Carolina Swine Odor Task Force, during the start-up period for lagoons, odors will be generated until the biological process stabilize, which may take as much as a year. Thereafter, addition of raw wastes too rapidly or thermal inversions can cause significant odors. Anaerobic conditions are responsible for far greater odor problems than aerobic treatment. While ammonia, with its sharp, pungent irritating odor, is caused by both aerobic and anaerobic conditions, anaerobic decomposition of manure is responsible for the powerful rotten egg odors of hydrogen sulfide, for volatile organic acids, and for the highly odorous phenolics. Ammonia disperses quickly; by contrast hydrogen sulfide is heavier than air and disperses slowly, and with phenolics has a very low detection threshold. Maintaining manure in an aerobic state results in stable organic compounds with minimal odor relative to the intense odor associated with anaerobic decomposition.

Anaerobic lagoons have traditionally been prohibited from use in treating human wastes because of odors, and aeration has been the process of choice because, among other things, it generally eliminates noxious odors. Aerobic treatment has been found to be the most effective method to date for deodorizing pig slurry. Aeration technology has been available for many years. AWASH process has been applied recently to hog wastewater in North Carolina. Composting manure, which is the aerobic treatment of manure in a temperature range of 104-149 degrees F, has advantages of little odor of fly breeding potential when used as fertilizer, and of reducing manure volume, as well as killing pathogens.

The Swine Odor Task Force report Options for Managing Odor, identified facilities, lagoons, land application and disposal of dead pigs as the major sources of odors, and identified alternative waste handling systems that can reduce the amount of waste to be treated or improve the management of such waste through separate handling of solids and liquids.

In order to assure worker and public protection, the applicants should be required to install controls to minimize dust and accompanying odor emissions. The confinement building should be equipped with biofilters or other air scrubbing or filtration system demonstrated to be effective to control dust and odor emissions from the building. 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.

Recommendation #9

A groundwater protection plan must 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, soil slope, erodability, land use of proposed disposal site and surrounding land uses, and existence of water withdrawals downstream of proposed disposal site. 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. Immediate reporting of any releases or spills, leaks or groundwater contamination, should be required.

The basis for these requirements is found in 401 KAR 5:005 Section 25. In order to protect groundwater from pollution associated with leakage from waste containment, holding pits, or soil injection, a plan must be developed and the operation of the facility monitored to assure compliance with the environmental performance standards of 401 KAR Chapter 47 with respect to disposal of the solid wastes.

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.

Significant issues that must be addressed include the characterization of the hydrological and geological setting. The fate and transport of contaminants must be evaluated, and characterization of wastes and wastewaters must include the fate of disinfectants, pesticides, antibiotics, hormones, heavy metals in feeds, bacteria, and viruses. Pigs are physiologically similar to humans, and disease can be passed back and forth. Subsurface chemical reactions, such as nitrification and denitrification, must also be evaluated.

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, permeability and porosity of soil and bedrock, and rates of application and rainfall, and the presence of pathways such as old wells, groundwater contamination can result from soil injection, and must be addressed through proper characterization in the groundwater protection plan of the depth to groundwater, and site hydrogeology. 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, or if depth to seasonal high groundwater table is relatively shallow, consideration should be given to use of above-ground closed vessels rather than in-ground pit storage of liquid wastes, and if such systems are allowed, they must be designed with monitoring of the vadose zone to detect leakage or breach of containment.

Additionally, the permit applications lack sufficient information concerning the design and construction of the underfloor pit system to enable the Cabinet to make a reasoned determination that the pits will be able to store the wastes until land application without leaking into the subsurface. Monitoring requirements must be imposed to enable the applicant and Cabinet to determine compliance with the groundwater protection standards in 401 KAR Chapter 47.

Recommendation #10

The Comprehensive Nutrient Management Plans are inadequate to demonstrate that the manure and associated liquids will be managed so as to prevent nuisance and pollution.

CNMPs are needed both to prevent contamination of streams and groundwater from excessive or improper land application, and to prevent odors caused by exposure of the injected manure to the air.

After review of the CNMPs submitted with the nine permit applications, KRC has these concerns:

A. The setback requirements, which are based on those proposed by the Cabinet in the now-withdrawn KPDES permit applications, are grossly inadequate to prevent off-site nuisance conditions, and are not consistent with the technical literature. For the reasons stated above in Recommendation #7, the setback requirements must be significantly increased, and must be measured from the property boundary rather than on the basis of existing off-site features.

B. The plan fails to adequately address the fate, partitioning, and transport of all constituents of concern associated with manure from concentrated swine feeding operations, particularly with respect to mapping and identification of the depth and extent of local aquifers, and evaluation of vulnerability of groundwater resources.

C. The equipment that will be used for injection, the rate of injection, the 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 discussed in detail and become specific permit conditions.

D. The plan must also, for any lands that will be used for manure application over the life of the facility, provide copies of the easements or other demonstration of ownership or access to those lands to support the land application.

E. Buffer strips by all intermittent and perennial streams should be required depending on slope, area drained, vegetation and soil type.

F. 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.

G. 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 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.

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. The detailed study on Liquid Manure Application Techniques to Minimize Odours published by Ying Chen of the Department of Biosystems Engineering of the University of Manitoba, summarized the potential odor problems with injection of liquid manure, and explained why the choice of manure incorporation method, in and of itself, is not a panacea for odors:

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.

G. 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.

H. 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

I. 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.

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.

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.

J. 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.

Recommendation #11:

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

Recommendation #12:

A bond should be provided to assure that the facility will be properly closed and any spills or releases cleaned up. 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 specific findings of fact and conclusions of law concerning the comments raised in this letter and to support any decision by the Cabinet to issue a construction permit to these applicants.

Tom FitzGerald

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