JURISDICTION AND PROCEDURAL BACKGROUND
1. The Office of Administrative Hearings within the Environmental and Public Protection Cabinet has jurisdiction over this petition for hearing pursuant to KRS 224.10-420(2), which provides in relevant part that:
Any person not previously heard in connection with . . . the making of any final determination arising under this chapter by which he considers himself aggrieved may file with the cabinet a petition alleging that the . . . final determination is contrary to law or fact and is injurious to him, alleging the ground and reasons therefore, and demand a hearing. An order or final determination includes . . . the issuance . . . of a permit[.] KRS 224.10-420(2).
2. This request is timely filed, since pursuant to KRS 224.10-420(2), “[t]he right to demand a hearing pursuant to this section shall be limited to a period of thirty (30) days after the petitioner has had actual notice of the order or final determination complained of, or could reasonably have had such notice.”
3. Since the permitting actions complained of herein occurred on July 7, 2006, this petition is timely filed.
4. This petition is filed on behalf of Petitioners Gene Nettles, Nancy Nettles, Sue Whayne, Robert E. Wayne, David M. Carter, Dottie Carter, Paul S. Beck, Katie W. Beck, Helen Hall, Helen Hayden, Thomas Gargus, Joyce A. Gargus, Thomas E. Hancock, Christine Hancock, Tommy Hancock, Shirley J. Toon, Wilma Toon, Mary Lee Roberts, Janet Aldridge, Gerald N. Johnson, Betty Johnson, Thelma Morris, Carla Morris, Larry Lewis, Mary Jo Lewis, Norman T. Johnson, Robin Johnson, Clyde E. Batts, Dale P. Batts, Jim S. Bugg, Shirley L. Howell, John M. Howell, Wanda Powell, Judy Hutchens, Anna Hayden, Avery M. Hayden, Dennis Burns, Karen Burns, Seral D. Burgess, Margaret Bizwell, Ted Council, Malinda Burden, John Max Wilson, Max Wilson, Lucy Bondurant Wilson, L. W. Duncan, Clark Duncan, Judith Duncan, Bill Fenwick, Jessie Smith, Jeff LeBlanc, Melinda LeBlanc, Pamela Tucker, James Tucker, Charles Sharp, Ben Sharp, Ruby Sharp, Sue McClellan, Ralph King, Margaret Eads, Joyce Edmaiston, Kenneth Edmaiston, Joe Pitman, Ellen Varden, Dan Weatherspoon, Jenny Varden, Barry Sharp, Shirley Sharp and Michael Bonnet. The above persons are citizens and residents of Fulton County or Hickman County or Carlisle County, one or more of whom submitted written or verbal to the DOW in opposition to the above referenced permit applications and who are aggrieved by the DOW failure to properly consider such comments, and one or more of whom lives proximate to the Amberg Hog Farm and may experience a nuisance and adverse health or environmental impacts from the Amberg Hog Farm operations, which possible nuisance and risk of adverse health impacts were made known to the Cabinet and which the Cabinet is required to prevent and protect against. Petitioners are each a “person aggrieved” by the agency action in approving the construction and operation permit, within the meaning of that term in KRS 224.10-420(2), and the agency decision is injurious to Petitioners. Among the injury-in-fact that the Petitioners have or will suffer due to the agency decision is an interference with the use and enjoyment of his/her property due to the increased likelihood of odors from the confinement of the hogs and from the land application of the animal wastes. Additionally, one or more of the Petitioners has used and enjoyed the waters of Bayou de Chien and Mud Creek, and to the extent that the application of animal wastes associated with the proposed “hog farm” causes or contributes to pollution of these streams, Petitioners’ interests in recreational use of the stream will be impaired.
5. The injuries that Petitioners have and will suffer are causally related to the Cabinet’s action, since absent the Cabinet’s issuance of permits authorizing construction and operation of the confined animal feeding operation those activities could not occur.
6. Reversal of the agency decision and revocation of the construction and operation permits will redress the injuries complained of in this petition.
7. Respondent Cabinet is an agency of state government charged with the statutory duty to protect the environment within the Commonwealth of Kentucky, which statutory duties include the duty to implement the Clean Water Act, 33 USC section 1251 et seq. and the duty to prevent nuisance odors, and the duty to properly and effectively regulate the construction and operation of animal waste handling facilities, including concentrated animal feeding operations (“CAFOs”). Here, the DOW issued Amberg Hog Farm KNDOP No. 07020001; with Activity ID: APE20060001; and a Construction Permit, with Activity ID APE20050001, which final actions are the subject of this petition.
8. Respondent Amberg Hog Farm applied to the Cabinet for permits to construct and operate a 5,000 hog facility at 4188 St. Rt. 1128, Hickman, Fulton County, Kentucky, which operation would discharge into Mud Creek in the event of a discharge, and asserted that the hog wastes would be applied to 1536 acres of cropland. This application was subsequently revised to 4,960 total hogs, with a document identified as a comprehensive nutrient management plan, which omitted a manure allocation plan. However, the Field Nutrient Balance provided some information missing from the omitted manure allocation plan. The plan appears to provide that manure will be applied to six fields (150.3 acres) in 2007 and to one field (127.9 acres) in 2008.
OVERVIEW OF THE CASE
9. Respondent Amberg Hog Farm applied to the Cabinet on or about August 23, 2005 for permits to construct and operate a 5,000 hog facility at 4188 St. Rt. 1128, Hickman, Fulton County, Kentucky, seeking a KPDES permit. On September 21, 2005 the Cabinet issued a proposed KPDES permit with Statement of Basis stating that the operation would discharge into Mud Creek in the event of a discharge, and asserted that the hog waste would be applied to 425 acres of cropland.
10. This application was subsequently revised to 4,960 total hogs, apparently to avoid the legal designation of constituting a CAFO. The revised application included a document identified as a comprehensive nutrient management plan, including a manure allocation plan to apply manure to six fields (150.3 acres) in 2007 and to one field (127.9 acres) in 2008. According to the nutrient management plan, crop needs for phosphorus from hog manure are under 12,000 lbs per year P2O5. The nutrient management plan reports that the facility will generate 1,780,000 gallons of liquid manure per year, or 46,102 Lbs of available (P2O5).
11. The nutrient management plan identifies fields for manure application that are bounded or crossed by intermittent streams that are designated as floodplain, flooding, and severely eroded. Fields Radio Tower 2, Radio Tower 4, Radio Tower 3, Radio Tower 5, Radio Tower 6, Radio Tower 8, and Hepler 1349 9 are all shown as having Very High Soil Test P – as high as 320 lbs P. UK AGR 1 Table 13 puts these fields in Category High and states that no P2O5 is needed.
GROUNDS AND REASONS FOR PETITION
12. KRS 224.100-420(2) requires that a petition for hearing allege that the agency determination was “contrary to law or fact” and include “allege the “grounds and reasons therefore [.]” 13. The issuance of the construction and operation permit to Amberg Hog Farm was contrary to law and fact, for these reasons and on these grounds:
A. The Cabinet acted arbitrarily and capriciously in failing to impose conditions on the proposed animal feeding operation sufficient to assure compliance with KRS Chapter 224 and regulations adopted pursuant thereto.
i. An animal feeding operation is, for purposes of 401 KAR 5:005 and 401 KAR 5:050 to 401 KAR 5:080, a “lot or facility….where…animals…have been, are, or will be stabled or confined and fed or maintained for a total of forty-five (45) days or more in any twelve (12) month period; and . . . crops., vegetation forage growth, or postharvest residues are not sustained in the normal growing season over any portion of the lot or facility.” 401 KAR 5:002.
ii. The proposed “hog farm” that is the subject of this petition for hearing meets the criteria of an “animal feeding operation” as that term is defined in 401 KAR 5:002.
iii. An “agricultural wastes handling system” is defined by 401 KAR 5:002 Section 1(9) as a “no-discharge structure or equipment that conveys, stores, or treats manure from an animal feeding operation prior to land application”.
iv. Pursuant to 401 KAR 5:005, agricultural wastes handling systems are required to obtain a construction permit pursuant to Sections 2 and 24 of that regulation, and to either obtain a Kentucky No Discharge Operational Permit (KNDOP) pursuant to 401 KAR 5:005 Section 25 or, to the extent that the proposed facility is a “concentrated animal feeding operation,” to obtain a Kentucky Pollutant Discharge Elimination System (KPDES) permit and comply with water quality standards pursuant to 401 KAR 5:026 through 5:080. 401 KAR 5:005 Section 1(3) (a).
v. In the case of construction permits for both KNDOP and KPDES facilities (Section 24(4)(a)), and for KNDOP permits (Section 25(2)), the Cabinet is empowered to impose “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. The conditions shall be in writing and treated as a part of the permit.”
vi. The Cabinet erred as a matter of law in neglecting to impose special conditions sufficient to assure protection of surface and groundwaters from pollution, and to protect the utilization and enjoyment of adjoining properties from pollution. Against the administrative record citing significant published literature concerning the potential for air, land and water pollution, the Cabinet’s failure to impose such conditions was arbitrary and capricious, and contrary to law and fact.
vii. Among the specific failures to impose conditions, resulting in a determination that was contrary to law and fact, are these:
a. Failure to require, or adequately justify the decision not to require, bonding and liability insurance;
b. Failure to require compliance with 401 KAR 63:020 with respect to emissions of ammonia and other potentially hazardous matter or toxic substances or to adequately justify the decision not to require compliance;
c. Failure to adequately evaluate the fate and transport mechanisms of all constituents of the hog waste, or to justify the decision not to so evaluate;
d. Failure to require baseline monitoring of receiving waters in order to allow determination of compliance with no discharge requirements, or to justify the failure to do so;
e. Failure to require sufficient construction and engineering detail concerning the underfloor pit system to allow for reasoned determination of adequacy;
f. Failure to require that the Comprehensive Nutrient Management Plans provide accurate, sufficient information concerning the acreage to be used for land application, the basis for calculations of the composition of wastes and of the soils and of the soil and crop capacity to utilize waste constituents so as to avoid transport of waste constituents into waters of the Commonwealth; and
g. Failure to place sufficient controls on the equipment and manner of soil injection in order to prevent groundwater or surface water contamination and nuisance conditions.
viii. The Cabinet further erred as a matter of law and fact in declining to impose several conditions based on the mistaken assertion that the issues “are generally beyond the statutory and regulatory authority of the Division of Water and the scope of the KNDOP permit, the general purpose of which is to protect water quality. KRS Chapter 224 and the regulations promulgated pursuant thereto do not specifically address the issue raised by the comment.” See, e.g., Response to Comment 4, 5, 9, 62, 74. The Cabinet’s duty under KRS 224 extends to air, land and water pollution prevention, abatement and control, and the construction permit under Section 24 and KNDOP permit under Section 25 of 401 KAR 5:005 must contain conditions sufficient to protect all those media from pollution.
B. The Cabinet has a duty, pursuant to KRS 224, to provide “for the prevention, abatement, and control of all water, land, and air pollution, including, but not limited to, that related to particulates . . gases, dust, vapors, noise, . . . odor, nutrients. . . and other contaminants.” The issuance of the construction and operation permit without imposition of adequate conditions to assure prevention of water, land and air pollution and to address the specific concerns identified above in A.vii., violated this duty.
C. The Cabinet failed to impose controls on the land application of the animal wastes to prevent discharges to waters of the Commonwealth from the land applications.
i. An animal feeding operation (hereinafter (AFO) becomes a “concentrated animal feeding operation” (herein after CAFO) that is required under 401 KAR 5:005 to obtain a discharge permit under the Kentucky Pollutant Discharge Elimination System (KPDES) program, where it confines “more than 2,500 swine each weighing over twenty-five (25) kilograms (approximately fifty-five (55) pounds)” 401 KAR 5:002(58)(a)3 or “more than 750 swine each weighing over twenty-five (25) kilograms (approximately fifty-five (55) pounds)” 401 KAR 5:002(58)(b)1.c., and “either pollutants are discharged into navigable waters through a manmade ditch, flushing system or other similar manmade device; or pollutants are discharged directly into waters of the commonwealth which originate outside of and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation.”
ii. The proposed “hog farm” will confine swine in excess of the thresholds established in 401 KAR 5:002(58).
iii. To the extent that any of the proposed fields where the wastes from the animal feeding operation are to be land disposed have been tiled or ditched, the proposed facilities constitute concentrated animal feeding operations since the construction and operation permits issued by the Cabinet fail to impose conditions sufficient to prevent overapplication of wastes and contamination of surface and subsurface drainage from those fields.
iv. Additionally, the Cabinet failed to require a nutrient management plan sufficient to assure that the land application of the animal wastes will not exceed the uptake of nutrients and other constituents in the wastes. Lacking proper controls to assure that the runoff from the land application areas to surface waters will not contain excess organics, metals, salts or other constituents of land-applied wastes that could cause or contribute to pollution within those receiving waters, the proposed facility is a concentrated animal feeding operation.
D. The Cabinet erred as a matter of law and fact in failing to require that the integrator (Mr. Tosh or Tosh Farms) be included as a permittee.
i. 401 KAR 5:005 Section 1(1) applies, by its terms, to “owners and operators of facilities[.]”
ii. An “owner” is defined as any “person who possesses any interest in . . . any facility or activity.” 401 KAR 5:002 Section 1(214).
iii. To the best of Petitioner’s knowledge, the integrator possesses an interest in the feeding operations as owner of the hogs.
iv. An “operator” is defined to include “any person involved in the operation of a facility or activity[.]” 401 KAR 5:002 Section 1(207)(a).
v. To the best of Petitioner’s knowledge, the integrator is involved, through contract terms, in the operation of the facility, dictating such terms and conditions as the manner of feeding and housing of the animals, waste management and disposal, and other terms and conditions.
vi. As a matter of law, the integrator who evinces ownership and control through a contract with the on-site manager of the animal feeding operation is required to be co-permittee, and the Cabinet erred as a matter of fact and law in failing to required co-permitting in this instance, and likewise failed to conduct appropriate inquiry into the terms and conditions of the contract and the degree of ownership and control, despite specific comments suggesting that the Cabinet should to so. See: Comment 2 and Response 2, Response To Comments Western KY Hog Farms.
vii. Additionally, under principles of agency law, the integrator should properly be characterized as the principal and be required to make application for and be primarily liable for compliance with necessary permits. Contractual arrangements to insulate from accountability under KRS 224 those integrators who exercise effective ownership and control over the operation should be considered void as against public policy.
E. The Cabinet acted arbitrarily and capriciously in failing to adequately respond to comments and to explain the basis for the agency exercise of “best professional judgment” in deciding not to impose conditions in response to comments received. The failure to adequately respond and to explain the agency decision, other than to provide conclusory rote statements such as “the Division of Water believes that the restrictions placed on the permits … are comprehensive and afford reasonable protection to the environment” is arbitrary and capricious and violates Petitioner’s rights under Kentucky Constitution Section 2 to procedural due process.
F. The Cabinet acted arbitrarily and capriciously in failing to establish setbacks consistent with protection of the full utilization of adjoining lands and protection of water resources.
i. The Cabinet erred as a matter of law and fact in failing to require setbacks consistent with the literature provided in the administrative record indicating interference with use and enjoyment of lands at distances far greater than those provided in the permits. It is irrational, for example, to require a 3,000-foot setback from an artificial boundary between a city and surrounding county, while failing to require adequate setbacks from property boundaries in order to protect the full utilization of adjoining lands.
G. The Cabinet acted arbitrarily and capriciously in failing to require baseline hydrologic conditions to be established for both surface and groundwater.
H. The Cabinet acted arbitrarily and capriciously in failing to require utilization of affordable, available technology to prevent emission of odors from confinement structures.
I. The Cabinet erred in failing to require sufficient controls on the land application of the animal wastes to assure that the application does not constitute disposal of waste in excess of agronomic needs of the land and crop. Overapplication of manures as will occur absent such controls does not qualify for the “fertilizer” exception to the definition of “waste” in KRS 224.01-010 and constitutes waste disposal requiring a waste permit pursuant to KRS 224.40-305.
WHEREFORE, for the reasons outlined above and contained in the administrative record of the construction and operation permit, the Petitioners respectfully demands a hearing and requests that the agency determination to issue the construction and operation permit to Amberg Hog Farm be revoked and the matter remanded to the agency.
W. Henry Graddy, IV
W.H. Graddy & Associates
103 Railroad Street
P.O. Box 4307
Midway, KY 4047
Kentucky Resources Council
213 St. Clair Street
P.O. Box 1070
Frankfort, KY 40602