ICARE Idaho Draft NPDES CAFO Permit Comments

8/14/2019 ICARE Idaho Draft NPDES CAFO Permit Comments

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January 13, 2010

By E-Mail

Nicholas Peak

Regional CAFO CoordinatorEPA, Region 10, Idaho Operations Office1435 N. OrchardBoise, ID 83706Email:[email protected]

Dear Mr. Peak:

Idaho Concerned Area Residents for the Environment (ICARE) is pleased to submit theseformal comments on EPAs draft NPDES general permit for concentrated animal feeding

operations (CAFOs) in Idaho (Proposed Permit) and incorporated standards. Thesecomments are submitted on behalf of ICARE and its membership.

I. Introduction / General Comments

While the Proposed Permit addresses a number of flaws, loopholes, and outdatedstandards present in the 1997 permit, the Proposed Permit still fails to address keyrequirements of the Clean Water Act (CWA)1, and it must be amended to ensurevaluable prevention, reduction and elimination of animal waste pollutants from Idahosimportant natural resources.2

In issuing this permit, the Environmental Protection Agency (EPA) must comply with CWAs stated goalof not merely reducing, but eliminatingpoint source discharges.3

A. Idaho has ongoing difficulties with meeting CWA requirements due to surface

water pollution from animal waste sourcesespecially CAFO wastes.

One of the Idaho watersheds most heavily impacted by animal waste pollution is theSnake River. Pollutants of concern stemming from or correlated with animal wastesourcesammonia, e-coli, nutrients (particularly phosphorous and nitrogen) andsedimentare listed across more than 9,000 square miles of the Snake River and itstributaries.4Exceedance of EPA-approved Total Maximum Daily Loads (TMDLs) forthese pollutants is a chronic problem along portions of the Snakesuch as the Middle

1 33 U.S.C. 1251 et seq.2See 33 U.S.C. 1251(b).3See 33 U.S.C. 1251(a) (1) (emphasis added).4 Idaho Department of Environmental Quality (DEQ) Subbasin Assessment and Total Maximum DailyLoads for King Hill CJ Strike Reservoir, Snake River Hells Canyon, Mid Snake River/Succor Creek,and Watershed Management Plans for the Middle Snake River and Upper Snake Rock. Available at:

ICARE Proposed Permit Comments 1
mailto:[email protected]:[email protected]


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Snake/Upper Snake Rock segment (Milner Dam to King Hill)that run through IdahosCAFO hotspots.

EPAs historical tendency to underestimate the size and scale of Idahos CAFOs haveseriously hampered past efforts to deal with these pollutants.5 A look at more recent data

on Idahos beef and dairy industries alone provides a much better idea of how big a threatthe states CAFOs really pose to the quality of CWA watersheds.

CAFO threat to surface waters: by the numbers

In 2007 Idaho was home to between 765 and 1,505 cattle & calf facilities (includingdairies) that met EPAs definition of a Medium or Large CAFO.6 Though thesefacilities comprised a fraction of Idahos total dairy and beef cattle operationsbetween7% and 14%they housed 86% of the states total cattle inventory (a total of 1.95million cattle).

Between 307 and 495 (or 33% to 40%) of the Idaho operations meeting the EPAdefinition of a CAFO (housing between 32% to 35% of the states total cattle inventory)were located in counties along the Upper Snake Rock stretch of the Snake River and ontop of the Eastern Snake River Plain Aquifer (ESRP).7 Another 135 to 310 (or 18% to21%) of the Idaho operations meeting the EPA definition of a CAFO (housing between17% to 19% of the states total cattle inventory) were located in the Treasure Valleyalong impaired segments of the Snake River downstream of Upper Snake Rock.

All told, in 2007 nearly half of the states total cattleexcreting as much waste as21,914,240 humanswere housed in CAFOs (comprising, at most, a mere 7.5% of thestates total cattle operations) situated on top of an EPA-designated sole-source aquifer

and/or along 303(d) listed segments of the Snake River. More recent NationalAgricultural Statistics Service (NASS) data suggest that the states total cattle inventorymay have undergone a slight (temporary) dip during the recent recession, but the beef anddairy industries march towards ever-greater concentration and consolidation hasremained unchecked.

In comparison to the threat to surface water quality posed by the concentration andvolume of livestock waste, the threat posed by human waste is minor. According to theUS Census Bureau, 2008 human population estimates for the Snake River watershedslargest population centersthe Magic and Treasure Valleystotaled 801,421. Many ofthese people live in urban or suburban areas serviced by municipal wastewater treatment

5

For example, EPAs February 2002, Ecological Risk Assessment for the Middle Snake River, Idaho relieswholly on data from a 1993 study (i.e. it does not take into account animal industry growth) to determinelivestock-related pollutant loading to the Middle Snake.6 Source: 2007 Idaho Livestock Census. Because the Livestock Census data are not broken down exactlyaccording to EPA definitionsthe numbers listed here include operations with inventories of 500+ and200-499 headthe upper limit of the ranges listed here may include some operations that would not meetEPAs definition of a Medium or Large CAFO. However, as ISDA data are based on numbers reported inlengthy surveys that are entirely voluntary, it is also likely that the Livestock Census data itselfunderestimates the number and concentration of Idahos livestock.7 See: http://www.idbeef.org/idbc_beefindustry.htm

http://www.idbeef.org/idbc_beefindustry.htmhttp://www.idbeef.org/idbc_beefindustry.htm


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plants that, unlike CAFOs, have been required to continually test and monitor dischargeamounts of pollutants of concern.

CAFO impacts on surface water quality: Data

The raw data and trend analyses from DEQs Upper Snake Rock Surface WaterMonitoring (found in Appendix A of this document) provide a telling snapshot of themagnitude of Idahos CAFO pollution problem.8 For 6 out of 7 Upper Snake Rockmonitoring sites, total phosphorous exceeded the TMDL at frequencies at and above50%. Not surprisingly, the site with the highest total phosphorous exceedance rate(83.6%) is immediately downstream of a cluster of Jerome and Gooding County CAFOs.

Figure 1: Upper Snake Rock monitoring sites and area CAFOs9

8Note: Appendix A includes the data for Total Suspended Solids, Total Phosphorous, and E-coli at all 7Upper Snake Rock monitoring sites. Monitoring data for all other Upper Snake Rock pollutants of concernis available at DEQs Twin Falls Regional Office: 1363 Fillmore St. Twin Falls, ID 83301, (208) 736-21909 Many of the CAFOs pictured here have expanded and new CAFOs have been built since the satellitephotos in this figure were taken in 2003 (Source: Google Earth).



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While it is true that this site is also downstream of the city of Twin Falls, the cityspopulation center is well upstream of the Crystal Springs sitethe only Upper SnakeRock monitoring site with a 0% total phosphorous exceedance rate.

Figure 2: Twin Falls in relation to two Upper Snake Rock monitoring sites

Prior to entering the CAFO-crowded southern border of Jerome and Gooding counties,the rivers total phosphorous TMDL exceedance rate plummets from 79.6% at the MilnerPool area (not pictured) to 0 at the Crystal Springs area26.9 river miles. By contrast,after entering the stretch and reaching its peak exceedance rate at the Below Box Canyon

site, total phosphorous exceedance rates remain above 50% all the way through King Hill(also not pictured)40.4 river miles.

B. Surface water quality of CWA watersheds impacts groundwater quality and vice-

versa.

Idahos surface and ground water quality are intimately connecteda fact especially welldocumented in the Snake River basin. Along the Thousand Springs reach of the ESRP,for example, the aquifer discharges into the Upper Snake Rock segment of the SnakeRiver at a rate of 5,200 cfs, and irrigation with [Snake River] surface water accountsfor approximately 60% of total recharge to the [ESRP] aquifer.10

10 From Eastern Snake River Plain Surface and Ground Water Interaction, available athttp://www.if.uidaho.edu/~johnson/ifiwrri/sr3/esna.html#Hydrogeology; and Laura De Grey and Paul Link,Digital Geology of Idaho: Snake River Plain Aquifer. Available athttp://geology.isu.edu/Digital_Geology_Idaho/Module15/mod15.htm

http://www.if.uidaho.edu/~johnson/ifiwrri/sr3/esna.html#Hydrogeologyhttp://geology.isu.edu/Digital_Geology_Idaho/Module15/mod15.htmhttp://geology.isu.edu/Digital_Geology_Idaho/Module15/mod15.htmhttp://www.if.uidaho.edu/~johnson/ifiwrri/sr3/esna.html#Hydrogeologyhttp://geology.isu.edu/Digital_Geology_Idaho/Module15/mod15.htm


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Figure 3: ESRP groundwater flow and discharge into Snake River11

Figure 4: Surface water groundwater interaction along the ESRP12

11 Source: http://geology.isu.edu/Digital_Geology_Idaho/Module15/RRTESRPflowmap.gif12 Source:http://www.if.uidaho.edu/~johnson/ifiwrri/sr3/esna.html#Hydrogeology

http://www.if.uidaho.edu/~johnson/ifiwrri/sr3/esna.html#Hydrogeologyhttp://www.if.uidaho.edu/~johnson/ifiwrri/sr3/esna.html#Hydrogeologyhttp://www.if.uidaho.edu/~johnson/ifiwrri/sr3/esna.html#Hydrogeology


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DEQs December 2009 Ground Water Quality Technical Report No. 38, PossibleSources of Nitrate to the Springs of Southern Gooding County, Eastern Snake RiverPlain, Idaho (December 2009 Technical Report) provides a glimpse of the severity ofCAFO-related groundwater contamination in the ESRP. In spring discharge at an UpperSnake Rock monitoring site, DEQ found 6 types of livestock-only antibiotics along with

a number of other personal care products and pharmaceuticals (including reproductivehormones and fecal steroids) that are commonly used in or found on Idahos Beef andDairy CAFOs (December 2009 Technical Report, 13-14). Further:

A nitrogen loading analysis for the western part of the ESRP (Baldwin et.al, 2006) found the largest potential source of nitrogen in the area wasnitrogen from fertilizer applications (47%). Other substantial sources ofnitrogen were from dairy, beef, and other confined animal operations(43%). The remaining 10% of nitrogen sources include legume crops,industrial contribution (wastewater reuse), precipitation, and urban ordomestic waste. A majority of the potential nitrogen loading in spring

water at Snake River Farms likely comes from agriculture and livestockoperations within southeastern Gooding County and the southern part ofJerome County (Baldwin et. al, 2006). Land use northeast and up-gradientof Snake River Farms is predominately irrigated agriculture and confinedlivestock operations. (December 2009 Technical Report, 15).

That the nitrogen loading due to fertilizer applications in this area exists in tandem withnitrogen loading due to CAFOs is no coincidence: both are a direct result of the CAFOmodel of production. CAFO operators grow huge monocultures of nitrogen-needy feedcropslike cornthat when farmed intensively and without proper crop rotation, requirecommercial fertilizer application over and above what is readily available in cattlemanure. Of course, in attempts to save money on expensive commercial fertilizer, thedata also indicates that many of these operators are applying cattle manure at rates greaterthan that of their crops phosphorous uptake.13

Evidence from both DEQ and ISDA thus shows that CAFO run-off, CAFO-waste-contaminated irrigation return flows and groundwater discharge into surface-waters aredirectly impacting surface water quality in Idahos CWA watersheds; the evidence alsoshows that leaky lagoons, irresponsible land application practices, and CAFO-waste-contaminated irrigation water contribute significantly to poor groundwater quality.14 AndDEQs data plainly demonstrates that CAFOs are the only possible source of an array ofemerging contaminants in both surface and ground water.

13 In its 2007 Dairy MOU Annual Report, ISDA freely admits that 126 of 397 fields tested were over the Pthreshold (ISDA 2006 Dairy MOU Annual Report, 6). Importantly, these tests were run on dairy farmswhose well nitrates were 10 ppm or greater.14 In yet another telling admission, ISDA writes: a concern of the industry, regulators, and those agenciesthat established the phosphorous threshold is because of all the years of nutrient applications, several fieldsare now above tolerance (ISDA 2006 Dairy MOU Annual Report, 7). See also: DEQs Water InformationBulletin, No. 50, Part 7, Trend Analyses for Idahos Nitrate Priority Areas 1994-2007, by Kenneth W.Neely (September 2008).



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Figure 5: Dairy CAFO Lagoon thinly separated from major canal

C. CAFO wastes are known sources of existing and emerging contaminants that pose

increasingly severe threats to public and environmental health.

CAFO wastes endanger public and environmental health because animal excrementcontains pathogens dangerous to people, other domestic animals, and wildlife, including anumber of known human viral, bacterial, and parasitic pathogens, such as influenza,salmonella, E-coli (particularly 0157:H7), yersinia, leptospora, cryptosporidium parvum,giardia lamblia, and probably several yet to be discovered.15 In their 2005 review of theavailable literature, Rogers and Haines found that between 61 to 75% of emerging humanpathogens are zoonotic and that the overwhelming majority of these pathogenic zoonosesthat commonly infect humans are related to animal husbandry practices (EPA CAFOPathogens Literature Review, 4). As Rogers and Haines note, regulatory limits for many ofthe pathogenic contaminants commonly found in CAFO wastes have not been established,and would not at present be regulated under the NPDES program (EPA CAFO Pathogens

Literature Review, 5). However, ICARE firmly believes that the function of the NPDESprogram must be viewed via the larger lens of the CWA and EPAs mission: though it may

15 Rogers, Shane, and John Haines. Detecting and Mitigating the Environmental Impact of Fecal PathogensOriginating from Confined Animal Feeding Operations: Review. National Risk Management ResearchLaboratory Office of Research and Development United States Environmental Protection Agency.Cincinnati, OH (September 2005): 4-10. Further references to this source will appear parenthetically withinthe text as EPA CAFO Pathogens Literature Review.



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not specifically address these contaminants, the Proposed Permit must proceed with a full andcomplete awareness of the threat they pose to public health and the environment

Emerging contaminants found in CAFO wastes pose an equal if not greater threat topublic health and the environment than the well-studied pathogens listed above. In 2007,

a previously unknown strain of Methycillin-Resistant Staphylococcus Aureus (MRSA)was discovered in livestock herds in the Netherlands.16This novel strain, dubbedLivestock Associated (LA) MRSA, is genetically distinct from and resistant to moreclasses of antibiotics than either Hospital Acquired (HA) or Community Acquired(CA) MRSA (JHU presentation). LA MRSA has subsequently been discovered in USlivestock herds in 2009 (JHU presentation). Importantly, MRSA need not be ingested orinhaled to cause infection: it can infect open or exposed wounds on the skin (JHUpresentation). Should LA MRSA find its way into the Snake River or other Idaho surfacewaters, it would be arguably the largest waterborne threat to public and environmentalhealth the state has ever seen.

Emerging contaminants from CAFOs are not confined to pathogens: CAFO livestock areroutinely administered subtherapeutic doses of antibiotics and other pharmaceuticals. Thevast majority of these drugs are excreted in the animals waste:

As much as 75-80% of an antibiotic may pass undigested through ananimal, thus its waste may not only harbor high concentrations ofantimicrobial-resistant bacteria, but also their resistance genes and raw(undigested) antimicrobial compounds(EPA CAFO Pathogens Literature Review, 17).

Antimicrobial resistance is widely documented in US CAFOs and poses a serious threatto human health (EPA CAFO Pathogens Literature Review, 16-17).17 Numerous studieshave documented the threat posed to aquatic species by endocrine-disrupting hormoneslike those commonly used to promote growth and spur milk production in CAFOlivestock.18Whether the observed effects of these hormones on wildlife may betransferrable to humans is uncertain, but is certainly a possibility and cause for concern.

16 From a presentation by Johns Hopkins University researchers Dr. Meghan Davis and DAnn Williams atthe Idaho State Department of Agriculture Negotiated Rule Making on Pathogen Drift from DairiesUtilizing Pressurized Irrigation. January 12, 2010. Further references to this source will appearparenthetically within the text as JHU presentation.17

See also: Gilchrist, Mary J., et al., The Potential Role of Concentrated Animal Feeding Operations inInfectious Disease Epidemics and Antibiotic Resistance, Environmental Health Perspectives Vol. 115No.2 (February 2007): 313316. Published online 2006 November 14. Available athttp://www.ncbi.nlm.nih.gov/pmc/articles/PMC1817683/. Among other public health threats posed byCAFOs, concerns about the intensified the risk for the emergence of new, more virulent, or more resistantmicroorganisms created by the routine use of subtherapeutic doses of antibiotics in livestock and fishproduction lead the studys authors to call for a phasing-out of the use of antimicrobial[s] as growthpromoters in these industries.18 One such recent study (of bass in the Potomac River) received coverage in the Washington Postunder theheadline Male Bass Across Region Found to be Bearing Eggs. Farenthold, David A. September 6, 2006.

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1817683/http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1817683/http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1817683/


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The CWA and NPDES program need not specify each and every one of these knownpathogens and emerging contaminants to protect human health and environment, but theProposed Permit absolutely must ensure that CAFOs do not dischargeCAFO wastesmust be continually tested and monitored, and the Proposed Permits penalties for non-compliance must be strictly enforced. Industry groups may balk at the cost and time

required to properly implement the Proposed Permits testing and monitoringrequirements, but ICARE is certain that even industry would agree that the cost ofspreading antimicrobial resistance, experiencing aquatic species die-offs and initiatingpandemics would be steeper.

Efforts to reduce these pollutants and/or deal effectively with emerging contaminants thatdo not address CAFO waste are doomed to failure.

D. History of CAFO noncompliance with and ISDA undermining of CWA

requirements

It is well documented nationally and in the state of Idaho that CAFOs contaminategroundwater and surface water with nutrients, pathogens, and other pollutants. CAFO-polluted groundwater and surface water can be dangerous to human health and theenvironment when people and wildlife come into contact with or consume it. Surfacewater pollution from CAFOs has already been seen to cause massive fish kills and theloss of other aquatic life.

Idahos beef and dairy CAFOs have a dismal record of CWA violations. Recent high-profile CAFO CWA violators in Idaho include Double C Farms (2005), Bruneau CattleCo. (2006), and C Bar M (2008).19

In the past, industry and ISDA representatives attempted to use high-profile cases likethese and the figures reported in ISDAs Beef Cattle Environmental ControlMemorandum of Understanding (Beef MOU) and Idaho Dairy Pollution PreventionInitiative Memorandum of Understanding (Dairy MOU) Annual Reports as evidencethat the states CAFO enforcement programs were working and that more stringentregulation and oversight are unnecessary. Not only does the DEQ monitoring datadiscussed above directly contradict this assertion, this idea itselfthat high-profileviolations of a law are evidence that enforcement programs are workingis a product ofseverely twisted logic: ordinarily, such blatant displays of contempt for the law areindications that enforcement efforts are deeply flawed. There is also evidence indicatingthat the much-touted results appearing in ISDAs rosy Beef and Dairy MOUs

purporting to show steady declines in CAFO noncompliance and discharge violationsare largely illusory.

The Beef and Dairy MOU Annual Reports overlook several important facts. ISDAinspections function more as a shield for CAFO operators than as a tool for enforcingcompliance: ISDA does not consider evidence of past discharge as evidence ofnoncompliance, multi-day lag times between citizen complaints and ISDA inspections

19 Source: US EPA Enforcement & Compliance History Online (ECHO).



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are not uncommon, and ISDA protocol requires the agency to notify CAFO operators ofimpending inspectionsin the case of routine inspections (not prompted by complaints)operators may have several weeks notice.20Additionally, ISDAs refusal to givecredence to evidence of noncompliance submitted by anyone other than an ISDAinspector radically narrows the scope of actionable evidence; 21 ISDA and industry have a

record of resorting to intimidation to discourage citizens from reporting evidence ofnoncompliance; 22 ISDA is well-known for revealing to producers the identity of citizenswho have complained and asked to remain anonymous; and Department employees havea tendency to advise CAFO operators to utilize ethically questionable legal loopholes toavoid noncompliance citations.23 Even when ISDA issues a notice of noncompliance,operators can continue for months and (in several cases) years without being assessed afine.24

In the rare event that ISDA has taken substantive enforcement action, it has also, moreoften than not, reduced whatever fines or penalties are handed down to pennies on thedollar. For example: two Magic Valley dairy CAFOs caught discharging liquid waste into

irrigation ditches and deliberately spreading manure on a public roadway in 2007 wereinitially assessed a combined fine of $55,000; by early 2008, ISDA had agreed to whittlethat sum down to a total of $6,000.25 Asked about the Departments lenient approachtoward enforcement at an October 16, 2009 meeting with ICARE representatives, ISDADeputy Director Brian Oakey had this to say:

[] In my opinion, and in a lot of peoples opinions, this type ofenforcement program works. Because when youve got a $50,000 penaltythats held in probation for a year and says were going to hold you tothis you take remedial measures, and you ensure that it doesnt happen

20 This reality was best summed up in a quote from ISDA spokesman Wayne Hoffman: Until theyre

caught discharging theyre not out of compliance. Barker, Rocky. Feds Question Idahos Efforts toKeep Manure Out of Waterways, The Idaho Statesman, November 14, 2005. Available at:http://www.boisestate.edu/history/issuesonline/fall2006_issues/f1_news_pdf06fall/POLLUTION111405.pdf. Further references to this article will be made parenthetically within the text.21 At a public meeting on November 16, 2009, ISDA Dairy/CAFO Bureau Chief Marv Patten essentiallyadmitted that the agencys reluctance to act on citizen tips about CAFO violations was in part due to its fearof being sued by industry. ICAREs recording of this meeting can be accessed and downloaded at:http://idahocares.org/negotiated-rule-making.22 ICAREs Executive Director and several ICARE members have had first-had experience with this, andwould be happy to provide EPA with affidavits of their experiences, if requested.23Two well documented incidences of the latter include a third-party waste application in a fieldneighboring a Nampa dairy and paralleling Indian Creek (first reported in June 2005), and ISDA employeeJohn Chatburns advice to Double Cs operator that he could avoid regulation by simply opening a gate.

Sources: Idaho Press Tribune, Waste Floods Into Pasture, by Michael McAuliffe; Letter from Gary Bahr(ISDA Agricultural Bureau Chief, Water Quality Programs) to Mike McGown (DEQ), June 13, 2005; andBarker, 2005.24 For example: High N Dry Feeders/VL Livestock Inc. has continued to operate in noncompliance (for afaulty lagoon) since 2002 and has never been assessed a fine. Prior to being foreclosed on, Seth Matthewswas allowed to operate his Sunnyside Feedlot in continual noncompliance. Despite polluting 22 privateneighboring wells (and probably the Snake River) with nitrate, livestock-only antibiotics Sulfamethoxazoleand Sulfamethizine, and the hormone 17-beta estradiol, Matthews was never fined.25 See: Christensen, Matt, Jerome Dairies Fined for Waste Violations. Magic Valley Times-News. March6, 2008.

http://www.boisestate.edu/history/issuesonline/fall2006_issues/f1_news_pdf06fall/POLLUTION111405.pdfhttp://www.boisestate.edu/history/issuesonline/fall2006_issues/f1_news_pdf06fall/POLLUTION111405.pdfhttp://www.boisestate.edu/history/issuesonline/fall2006_issues/f1_news_pdf06fall/POLLUTION111405.pdfhttp://www.boisestate.edu/history/issuesonline/fall2006_issues/f1_news_pdf06fall/POLLUTION111405.pdfhttp://www.boisestate.edu/history/issuesonline/fall2006_issues/f1_news_pdf06fall/POLLUTION111405.pdf


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again, and if it does within the probationary period then were going totake the other $49,000. That gives them a very strong incentive to complywith the law, and to take extra effortextra measures beyond what thelaw requiresto ensure that these types of discharges do not occur.26

Oakeys assumption may be correct in the short terma producer assessed a fine that isheld in abeyance for a year has an monetary incentive to be on good behavior during theprobationary periodbut it fails miserably as a long-term pollution abatement strategy.27

In fact, the evidence indicates this policy has made Idahos CAFO pollution problemworse: on ISDAs watch, operators have been given what amounts to a once-a-year freepass on discharges. It is easy to see how even a handful of the states CAFOs takingadvantage of that free pass places the states CWA watersheds in peril.

These problems have been exacerbated by ISDAs use of outdated science and industrystandards. The states nutrient management planning software (Idaho One Plan), RulesGoverning Beef Cattle Animal Feeding Operations (Beef Rules) and Rules Governing

Dairy Waste (Dairy Rules) utilize outdated standards and data that make CAFOcontamination of surface and groundwater virtually inevitableeven if producers areattempting to be good environmental stewards. Former University of Idaho AssistantProfessor and Waste Management Engineer Dr. Ron Sheffield addressed this very issuein a July 18, 2007 letter reviewing the proposed NMP for a large Owyhee County dairyCAFO expansion. He wrote:

The proposed NMP was developed via the Idaho 1-Plan, and lacks severaldetails concerning the operation of the dairys manure handling systemand activities related to mitigating potential odors. []

1. Phosphorous Excretion. The manure generation values used in theNMP are based on 1991 manure generation values adopted by the USDA-NRCS. Several advances in animal genetics, dairy management, andfeeding strategies have taken place since the late 80s; the time in whichthe studies were conducted to generate the 1991 values. Subsequently, theAmerican Society of Agricultural and Biological Engineers and theAssociation for Professional Animal Scientists developed new a manuregeneration standards (ASA 384.2 MAR2005) that was adopted in 2005.Specifically, the standard raised the estimated phosphorous excretion for amature 1400 lb dairy cow from 0.21lbs P2O5/cow/day to 0.39 lbsP2O5/cow/day, nearly doubling the amount of excreted phosphorous perday. The use of the 1991 excretion values is in accordance with staterules. However, given the current accepted science, the proposed

NMP creates a false sense of security for the producer that the

management of phosphorous, through following the NMP, will occur

without excessive build-up of soil phosphorous in the soil, when in

26 Brian Oakey, October 16, 2009, ISDA Boise headquarters.27 Oakey implicitly admits as much: if it [discharge] does [happen again] within the probationary period(ICAREs emphasis).



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reality, that will likely occur because only half of the excreted manure

phosphorous has been accounted for in the NMP.28

To ICAREs knowledge, the Idaho One Plans manure generation values have not been

updated since this letter was sent.

Add to this the outdated NRCS 590 standard incorporated in the states Beef and DairyRules, the power granted ISDA in the now-defunct Beef and Dairy MOUs, and the safeharbor provisions of the states Beef Cattle Environmental Control Act (BCECA) andDairy Rules, and it becomes difficult notto see the consequencesnear-perfectimmunity from enforcement under the states Ground Water Quality Rule and heightenedprotection from the CWAwithin the past several years as the result of a deliberatelyplanned and carefully executed coup on behalf of industry by ISDA.29Conspiracytheories aside, there is no doubt that in the past several years ISDA has successfullycircumvented the intent of Congress (in creating the CWA) and the state legislature (in

creating the BCECA) and usurped powers rightfully exercised by EPA and DEQmuchto the detriment of the states waters.

Under the old General Permit and the regime of the Beef and Dairy MOUs, EPA was allbut powerless to do much about Idahos abysmal failure to meet CWA goalsa facttacitly acknowledged in EPAs March 3, 2009 letter to ISDA Director Celia Gouldwithdrawing from the MOUs.30ICARE urges EPA not to allow industry and ISDAsmoke and mirrors to distract or blind it to this reality. If polluting is cheaper and easierthan complying with the CWA, producers will continue to pollute.

To ensure compliance with state and federal law the Final Permit must provideheightened oversight and enforcement over Idahos CAFOs. To assist you in makingthese changes, we offer the following detailed comments.

II. Recommendations

A. EPA should operate under a presumption that all large CAFOs and all CAFOs

utilizing pressurized irrigation systems to land apply waste discharge and require

NPDES permits.

The reason for this recommendation is simple: 1) historically it has been the states largeCAFOs that have discharged; and 2) many of the states CAFOs utilize pressurized

28 Dr. Ron Sheffield to Mary Huff. July 18, 2007 (ICAREs emphasis). A copy of the entire letter isavailable in Appendix B of this document.29ISDA cites a philosophical difference as the basis of its decision not to incorporate the updated 590standard (2007 Dairy MOU Annual Report, 6).30Michelle Pirzadeh to Celia Gould. March 3, 2009. In the letter, Pirzadeh (Acting Regional Administratorfor EPA Region 10) states that preliminary review of the existing Beef Cattle and Dairy MOUs identifiedconcerns stemming from the limitations the MOUs place upon EPAs statutory inspection andenforcement authorities large enough to spur EPAs withdrawal from them (Pirzadeh, 2).



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irrigation systems configured so as to guarantee discharge.31Yet EPA in its ProposedPermit would allow large CAFOs to self certify that they will not discharge, and therebyavoid the need to obtain a NPDES General Discharge Permit.

In Waterkeeper Alliance v. EPA, the Court noted that, in defending its decision to requireall large CAFOs to apply for NPDES permits, EPA failed to argue for a presumption thatlarge CAFOs actually discharge.32In raising the point, the Court signaled that if EPAwere to implement such a presumption it could compel all large CAFOs to either applyfor a NPDES permit or to require that they prove that they meet the zero dischargeeffluent limitation.33

A presumption that large CAFOs actually discharge is not only appropriate, but alsocritical to any CAFO permitting scheme that aims to meaningfully protect the quality ofIdahos watersheds.34As tailored to the Idaho permit, all CAFOs that meet the largeCAFO threshold in the Definitions section of the proposed permit or utilize pressurizedirrigation systems (up to within 1/4 mile of major canals, creeks, streams, or other surfacewaters) to land apply waste should be presumed to actually discharge and therefore berequired to apply for a CAFO NPDES General Discharge Permit, unless they cansatisfactorily demonstrate that they do not and will not violate the zero dischargestandard.35

The Case Law Supports Establishing This Presumption:

Legal Authority for establishing a Presumption that large CAFOs discharge

31 The information about wastewater drift/discharge from pressurized irrigation systems cited heresummarizes a presentation given by DEQ personnel on modeling of wastewater drift on January 12, 2010 at

ISDAs Boise headquarters. The presentation can be heard in full athttp://idahocares.org/negotiated-rule-making-ii. For a copy of the presentation slides, contact Rick Hardy, Jeffrey Fromm, or Mike Cook atDEQs Boise office (208) 373-0502. For more detail, see Hardy, Rick; Kevin Schilling; Jeffrey Fromm;Xin Dai; and Michael Cook. Technical Background Document: Microbial Risk Assessment and Fate andTransport Modeling of Aerosolized Microorganisms at Wastewater Land Application Facilities in Idaho.Idaho Department of Environmental Quality (February, 2006). Available at:http://www.deq.state.id.us/water/assist_business/engineers/guidance/microbial_risk_assessment.pdf32See Waterkeeper Alliance v. EPA, 399 F.3d 486, 506 (2d Cir. 2005). We also note that the EPA has notargued that the administrative record supports a regulatory presumption to the effect that Large CAFOsactually discharge. As such, we do not now consider whether, under the Clean Water Act as it currentlyexists, the EPA might properly presume that Large CAFOs or some subset thereof actually discharge.Throughout the remainder of this section CAFO is used generically to mean a confined (or concentrated)animal feeding operation, not as it is used in the Proposed Permit, viz., as meaning only those CAFOs that

admit to discharging.33See id.34See 33 U.S.C. 1370 (affirming that States may adopt effluent limitation, effluent standard, prohibition,pretreatment standard, or standard of performance, provided that it is not less stringent than the federalrule);see also Homestead Mining Co. v. EPA , 477 F. Supp. 1279, 1283-84 (S.D. 1979) (holding EPA maynot disapprove standards for being too stringent; to do so would violate both the statute itself and the caselaw interpreting it).35 For CAFOs utilizing pressurized irrigations systems to land apply waste to be exempt from thispresumption, the operator should have to produce a certification from qualified DEQ staff confirming theoperators assertion that the irrigation configuration actually meets the standard.

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That agencies may establish evidentiary presumptions is a long settled principle ofadministrative law.36 To determine the validity of given presumption, courts evaluate itsconsistency with the Act and []rationality.37 More specifically, there must be asound and rational connection between the proved and inferred facts.38 Importantly,regulatory presumptions are entitled to substantial deference.39

There is a clear connection between the proved fact that a facility is a large CAFO andthe inferred fact that it actually discharges; and physics itself dictates that CAFOsutilizing certain pressurized irrigation configurations within a certain distance fromsurface waters discharge. Nationwide, large CAFOs often do not have enough land toabsorb the manure that they produce, which is one of the leading causes of excessnutrient build-up.40 In Idaho specifically, according to the Idaho State Department ofAgricultures own documents, cow numbers in both the Treasure Valley and the MagicValley already far exceeded the available agricultural land base 10 years ago.41 In 2007,irrigated acreage in the Magic Valleys three most CAFO-heavy countiesGooding,Jerome, and Twin Falls Countytotaled 527,773. That same year, the dairy cattle in

these three counties alone produced 107,250 lbs P2O5/day, a total of 39,146,250 lbsP2O5 for the year.42

1997 USDS study revealed that large CAFOs contribute the lions share of excessnutrients that the industry generates.43Not surprisingly, EPA has concluded that theunparalleled increase in excess nutrient levels in the mid-Atlantic and southeast between1982 and 1997 was mostly the result of the number and concentration of large poultryand hog operations in those regions.44 Similar findings have been issued in CAFO-overrun areas of the Midwest and West.45

36 See e.g., NLRB v. Baptist Hospital, 442 U.S. 773, 787 (1979); See also Republic Aviation Corp. v.NLRB, 324 U.S. 793, 804-805 (1945).37 NLRB v. Baptist Hospital, 442 U.S. 773, 787 (1979) (citing Beth Israel Hospital v. NLRB, 437 U.S. 483,501 (1978)).38 Id., at 787

39 See Id., at 796 (Justice Brennan Concurring);NLRB v. Los Angeles New Hospital, 640 F.2d 1017, 1020(9th Cir. 1981).40SeeNational Pollutant Discharge Elimination System Permit Regulation and Effluent LimitationGuidelines and Standards for Concentrated Animal Feeding Operations, 68 Fed. Reg. 7176, 7180 (Feb. 12,2003) [hereinafter2003 Federal Rule Preamble]41 Beddoes, J.C., and Mitchell, M.C. Idaho Dairy Nutrient Management. ASAE Annual InternationalMeeting. Toronto, Ontario, Canada. 19-21 July 1999. Pg. 2.42Calculated using the ASAE 384.2 MAR2005 manure generation values for a mature 1400 lb. dairy cow.43

2003 Federal Rule Preamble44Id.45 See: Caylor, Bob. Livestock Tied to Water Quality. The News Sentinel. Fort Wayne: Indiana. January16, 2009. Available at: http://www.news-sentinel.com/apps/pbcs.dll/article?AID=/20090116/BUSINESS/901160315. Keefer, Janelle. Water Survey Finds High Bacteria Level NearFarms. Daily Telegram, August 1, 2002. Available at:http ://www.lenconnect.com/display/inn_news/news05.txt. US Dept. of Agriculture Soil ConservationService, Upper North Bosque River Watershed Plan and Environmental Assessment, August 1992, p. 10.Hauck, Larry, "Fecal Coliforms: Their Presence & Meaning," in: Bosque River Advisory Committee,Briefing Papers (Stephenville, Texas, January 23, 1996), pp. D-3, D-4.

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With so much excess nutrients being produced in the Snake River basinparticularly theESRPcareful manure storage is essential to reducing nutrient-laden discharges. Yet,aerial and satellite surveillance photos of large CAFOs in the region suggest that farmerspervasively stockpile cattle manure in enormous haphazardly constructed uncoveredmounds. Runoff from these mounds during the next rain is all but inevitable

Taken as a whole, this line of evidence led the WaterkeeperCourt to declare, In ourview, the EPA has marshaled evidence suggesting that such a prophylactic measure[requiring all Large CAFOs to apply] may be necessary to effectively regulate waterpollution from large CAFOs.46 At the very least, this data establishes a rationalconnection between large CAFOs and pollution discharges.

Establishing a Presumption That Large CAFO Operations and CAFOs utilizing

pressurized irrigation systems to land-apply waste discharge is consistent with the Clean

Water Act.

The presumption that large CAFOs and CAFOS utilizing pressurized irrigation systemsto land apply waste actually discharge is clearly consistent with the goals of the CleanWater Act. As previously mentioned, the Acts stated objective is not merely to reduce,but to eliminate point source discharges to navigable waters.47Yet, under the terms of theProposed Permit, large CAFOs are only brought under the permit if operators voluntarilyadmit that their facilities propose to discharge orafterEPA detects a direct surfacewater discharge.48

Experience demonstrates that CAFO operators will not voluntarily subject themselves toregulations, and will therefore not apply for NPDES permits if they are not required to doso. For example, in the preamble to the 2001 proposed rule, the EPA noted that onlyabout 2,500 of the 12,000 CAFOs that should have applied for permits had actually done

so.49 Based on the continued CAFO-related impairment of neighboring watersheds, EPAconcluded that many of these large facilities were actually discharging and should haveapplied for a permit.50 Similarly, few if any of the beef, dairy, and soon-to-be poultryfacilities in Idaho that discharge into the states waters will apply for the ProposedPermit, claiming that their facilities do not propose to discharge. An enforcementscheme that necessarily requires pollutants to be discharged before adequate regulationstake effect directly contravenes the Clean Water Acts goal of eliminating discharges.51

Perhaps even more troubling, EPA will have great difficulty detecting illegal discharges.EPA has reported in the past that the sporadic nature of CAFO discharges makes itextremely difficultand time consumingto document discharges from individual

46Waterkeeper Alliance v. EPA, 399 F.3d 486, 506 (2d Cir. 2005).47 See 33 U.S.C. 1251(a) (1).48See Proposed Permit Part I.B.49 National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelinesand Standards for Concentrated Animal Feeding Operations, 66 Fed. Reg. 2960, 2963 (Jan. 12, 2001)[hereinafter2001 Federal Rule Preamble].50See 2003 Federal Rule Preamble;supra note 30, at 7180.51See 33 U.S.C. 1251(a) (1).



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facilities.52Especially considering the resource constraints that EPA officials report, witha shortage of inspectors to enforce environmental lawsa fact most recently commentedon by EPA at the third public hearing for the Proposed Permit.53 It seems highly unlikelythat EPA will have the time and resources necessary to directly observe discharges fromany significant number of the states 765 (minimum) beef and dairy CAFOsto say

nothing of its sheep CAFOs and incoming poultry CAFOsthat meet EPAs definitionof a Large CAFO.

In sum, a presumption of discharge that requires large operations and CAFOs utilizingpressurized irrigation systems to land apply waste to apply for NPDES permits is not onlyconsistentwith the broad purposes of the CWA but necessary to comply with theWaterkeeperCourts mandate for regulation in fact, not just in principle.54 Beyond this,in light of the evidence detailed above, we believe that a decision notto establish apresumption that Large CAFOs or CAFOs utilizing pressurized irrigation systems to landapply waste actually discharge would be arbitrary and capricious.

Industry representatives may complain that such a requirement would be financiallyinconvenient, or that the paperwork required by the Proposed Permit as written is adisincentive to apply. However, the CWA does not afford compromise in order to relieveindustry of minor inconveniences. In the words of one observer, the CWA seeks to toidentify classes and categories of polluting or environmentally destructive activities thatthreatened human health and the environment, and then to imposestringentstandards ontheir performance.55 In other words, the Clean Water Actand, by extension, thoseprograms issued under its authorityis concerned with reducing and eliminatingpollution, not appeasing industry. EPA must design and implement its Idaho permittingprogram with this goal in mind.

B. CAFOs should be prohibited in impaired watersheds

EPA should refuse to issue NPDES permits, general or individual to new CAFOoperations in impaired watersheds. Given the history of water pollution associated withCAFOs, these facilities would invariably discharge pollutants that would exacerbate analready impaired watershed. Any permit for an existing CAFO that is located in animpaired watershed should not only be an individual permit, but should also requireadditional monitoring, large buffers (minimum mile) between the facility and anysurface waters, and other measures to minimize the prospects of contributing to theincreased impairment of these waters.

52 Brief of Respondents at 72, Waterkeeper Alliance Inc. v. EPA, 399 F.3d 486 (2d. Cir. 2005) (No. 03-4470(L)).53 EPA, Proposed Permit Public Hearing. Idaho Department of Fish & Game Nampa Office. December 10,2009.54Waterkeeper Alliance Inc v. EPA, 399 F.3d 486, 498 (2d Cir. 2005).55 Richard Lazarus, The Greening of America and the Graying of United States Environmental Law:

Reflections on Environmental Laws First Three Decades in the United States, 20 VA. ENVTL. L.J. 75, 78(2001).



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C. EPA should eliminate the 25-year, 24-hour storm discharge exemption.

ICARE emphatically urges EPA to eliminate the 25-year, 24-hour storm exemption fromthe prohibition on discharges to surface waters. Allowing such an exemption will result inenvironmental devastation when the inevitable event occurs. CAFOs produce wastes that

are far too concentrated to be allowed to discharge at any time, especially when there isthe technology available to eliminate the need for such an exemption. EPA has notexplained (nor could it) that such technology does not exist. Eliminating the exemptionwould promote compliance with and give meaning to the no-discharge effluent limitationby simply requiring better-engineered facilities. This was the original intent behind thepassing of the CWAthat the technology would be developed to eventually eliminate theneed to discharge into our nations waters. As history has shown that dischargers are notwilling to move towards the CWAs no-discharge goal on their own, the only way toachieve this goal is by prodding the regulated industries to install the necessarytechnology. A discharge at any time should be subject to the strict liability standard of theCWA.

As EPA explains in the preamble to its January 2001 proposed CAFO rules, the 25-year,24-hour storm discharge exemption is an engineering standard for storm water detentiondevices.56 It is not appropriate to automatically carry over this exemption to another formof waste technology, especially given the fact that there are alternatives available tocontain the waste under these circumstances. EPA also acknowledges that [s]ection101(a) of the Clean Water Act states that elimination of discharges down to zero is to beachieved where possible.57 There are numerous technology evaluations currentlyunderway to contain the manure of all animal types that strive to achieve a zero dischargestandard. The proposed 25-year, 24-hour storm exemption would undercut these effortsby encouraging less ambitious waste treatment technologies that allow discharges in

certain circumstances.

EPA should seriously consider abandoning the 100-year, 24-hour exception to the No-

discharge effluent limitation

The second circuit invalidated EPAs decision to allow CAFOs to comply with a nodischarge effluent limitation by designing, operating, and maintaining a facility tocontain the runoff from a 100-year, 24-hour rainfall event58The court found itobvious that substantially preventing discharges is not the same as prohibiting themoutright.59Therefore, EPA must reconsider its decision to allow a 100-year, 24-hourexception to the no discharge effluent limitation for new source swine, poultry, and veal

Large CAFOs. As stated in the previous paragraphs, the technology is available andeconomically feasible to require that new source large CAFOs comply with a nodischarge effluent limitation, with no exception.

56 See: Preamble, NDPES Permit Regulation and Effluent Limitations Guidelines and Standards forConcentrated Animal Feeding Operations; Proposed Rule, 66 Fed. Reg. 2960, 3006 (January 12, 2001).57 id.58Waterkeeper Alliance, at 59.59 id.



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At the very least, EPA must revamp 24-hour 25-year storm water discharge and 100-year,

24-hour storm water calculations and assumptions to conform to up-to-date climate science

Historically, winter snow pack in the mountains above Idahos CAFO regions has helpedensure that lagoons will be okay until the start of the growing season. Increasingly,

however, because of decreased snow pack and increased winter rains, that is no longerthe case.60As Idahos climate continues to be impacted by global climate change, thesekinds of changes in precipitation patterns will significantly affect the ability of IdahosCAFOs to properly store manure. EPA should work with NRCS, USGS, NOAA andother stakeholders to recalculate the predicted magnitude of its 24-hour 25-year and 24-hour 100-year storm events so that NRCS and ASAE engineers can adjust their manurestorage guidelines accordingly.

D. EPA should strengthen the Proposed Permits various (groundwater, soil, and

waste) testing, monitoring, and reporting requirements.

Despite the pollution strength of raw manure being 160 times greater than rawmunicipal sewage and diluted manure such as runoff from outside lots having apollution strength that is two to four times greater than raw municipal sewage, under theNPDES system municipal point sources are required to implement pollutant monitoringand reporting programs, while CAFOs have historically been exempt from theserequirements.61 Reality clearly requires an abandonment of the assumption that CAFOsdo not discharge. As written, the Proposed Permit goes a long way toward rectifying thissituation.62Yet, though welcome, the Proposed Permits testing, monitoring, andreporting requirements are still not stringent enough to meet CWA goals.

Because of a significant data gap, it is impossible to say for certain that all of the surface

water problems associated with CAFOs are a result of mismanagement of waste on theCAFOs themselvesit is possible that some portion of these problems are a result of themisapplication of third-party waste. But if it were the case that a majority of theseproblems were due to third-party mismanagement, we would think industry wouldwelcome the opportunity to utilize the Proposed Permits testing requirements to clear itsreputation. Certainly the cost of the testing in such a case would be outweighed by thesubstantial economic benefit to the industry of being able to back up its claims ofenvironmental stewardship with hard data and put public misgivings to rest.

Further, having the testing to show that third-party application is indeed a problem wouldbe invaluable to EPA, state regulators and lawmakers in dealing with it.

60 For example, in the 2007 Dairy MOU Annual Report ISDA noted an increase in discharges due to heavywinter rains (5).61 Source: http://www.bbe.umn.edu/extens/ennotes/enwin95/manure.html62 Specifically, the Proposed Permits mandate that Manure, litter, and process wastewater handling,treatment, and management shall not create an environmental or public health hazard and shall not result inthe contamination of drinking water in exceedance of Idaho Rules for Public Drinking Water Systems isan exemplary expression of the function of the NPDES permit as intended under the CWA and must beretained in the final permit (Proposed Permit, III.D.5., p.26).



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General

The following changes should be made to all of the Proposed Permits Inspection,Monitoring, Recordkeeping, and Reporting requirements (Proposed Permit IV, 26-31).

All samples should be taken, preserved and transported in a manner and time framerecognized and recommended by the testing authority (i.e., the soil scientist, the lab, etc.)

The Proposed Permits requirement that operators provide documentation of alloverflows from all manure and wastewater storage structures must include photographicdocumentation (Proposed Permit IV.A., 27). These photographs should be taken as soonas the producer/operator becomes aware that a discharge has occurred. The photographsshould include information about the discharge and the context of the dischargeclose-up photos of discharges that do not adequately document the context and extent of thedischarge (i.e. small or large overflow into a creek, small or large lagoon breach, etc.)should be considered inadequate to fulfill this requirement. Pg. 27: Table 5a:

Documentation of all corrective actions takenshould include a proposed timeline forcorrection.

The Proposed Permit must require site maps to show and state the purpose of allexisting/proposed pipes on facility property (i.e. pipes to/from retention storage area tosurface water, to/from wetlands, to/from freshwater ponds, etc.).

If the person listed on a facilitys proposed NMP is anyone other than the owner, theProposed Permit must require that the proposed NMP include an include an affidavitfrom the owner stating that he/she is familiar with the NMP, aware of the activities beingconducted on the property, and accepts shared responsibility with the facilitys operator

and/or manager in ensuring that the NMP is adhered to. The Proposed Permit shouldrequire such an affidavit to be filed along with any changes in property ownership ormanagement.

Groundwater

The need to protect groundwater in any final permit is essential. Over half of Idahospopulation resides side-by-side with the Magic and Treasure Valleys CAFOsin areaswith phosphorous-saturated soils (which facilitate the transport of nitrogen intogroundwater), basalt aquifers and typically high water tablesand (as already discussed)their drinking water is especially vulnerable to CAFO pollution.63

As the effects on human health of pathogens and nitrates found in ground water havebeen well documented, from a public health perspective, there is no question that CAFOsshould be required to conduct groundwater monitoring under the Proposed Permit.Nitrate contaminated drinking water is most notorious for its link to blue baby

63 Ground water supplies 95% of the water used in Idaho households and provides drinking water to morethan 200 Idaho cities and towns, Source: DEQ Website. Available at:http://www.deq.state.id.us/WATER/prog_issues/ground_water/nitrate.cfm

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syndromewhich causes developmental deficiencies and even death in severe cases.However, more recent studies have tied high nitrate levels toa number of other serioushealth problems including hyperthyroidism, cancer, diabetes, non-Hodgkins lymphoma,and birth defects.64 Leaking CAFO lagoons and over application of CAFO wastes are alsoa common cause of pathogenic and pharmaceutical contamination of groundwater.65

In the past, industry might have attempted to duck this requirement by pointing out thatboth DEQ and ISDA conduct water monitoring, and argued that asking industry toreproduce work already being conducted by state agencies is an inefficient andunnecessary use of funds. However, now that the state legislature has cut all funding forsurface and groundwater monitoring, this argument no longer holds up.66Both surfaceand ground water quality are imperiled by the states elimination of funding. At least forthe foreseeable future, the only means of ensuring that Idahos CAFOs meet the ProposedPermits zero discharge requirement is for CAFO operators to accept responsibility formonitoring of pollutants of concern at and near their facilities and land application areas.

For these reasons and more, ICARE urges EPA to include ground and surface watermonitoring for these common animal waste pollutants in the final permit: total nitrogen,nitrate, phosphorous, ammonia, and e-coli. ICARE recommends that these tests beperformed on a monthly basis (quarterly or annually for smaller facilities). ICARE alsoasks EPA to require the following more specialized tests (these may be run lessfrequently than the previously listed contaminants, but should be performed annually at aminimummore frequently if tests for other pollutants show increasing trends):antibiotics, hormones, bacterial DNA and nitrogen isotopes.

ICARE is certain that industry interests will point out that NPDES is neither designed norintended to regulate groundwater. Aside from the evidence presented in the introductorysection of this document illustrating that, for pollutants of concern associated with orstemming from animal waste sources, Idahos surface and groundwater issues areinseparable, there is the obvious flipside of industrys argument: Congress obviously didnot intend for the CWA or the programs administered under its authority to execute asimple Kansas City shuffle and transfer the burden of the nations water pollution

64For a summary of the research and references, see: Ward, Mary H., et al. Workgroup Report: Drinking-Water Nitrate and HealthRecent Findings and Research Needs. Environmental Health Perspectives113(11) (November 2005): 16071614. Published online 2005 June 23.65 For Idaho-specific documentation of this phenomenon, see: Health Consultation: Sunnyside AreaGroundwater Contamination: Evaluation of Antibiotic, Steroid Hormone & Nitrate Compounds inGroundwater Near a Confined Animal Feeding Operation (CAFO); Weiser, Washington County, Idaho,prepared by Idaho Department of Health and Welfare Division of Health under a cooperative agreement

with the US Department of Health and Human Services Agency for Toxic Substances and DiseaseRegistry, March 19, 2007 (a full copy appears in Appendix C). See also: Rice, Karen C.; Michele M.Monti, and Matthew R. Ettinger, Water-Quality Data from Ground- and Surface-Water Sites nearConcentrated Animal Feeding Operations (CAFOs) and non-CAFOs in the Shenandoah Valley and EasternShore of Virginia, JanuaryFebruary, 2004 US Department of the Interior US Geological Survey:Prepared in Cooperation With the Virginia Department of Health, Reston, VA: 2005; Arnon, Shai et al.,Transport of Testosterone and Estrogen from Dairy Farm Waste Lagoons to Groundwater,Environmental Science and Technology Vol. 42 No. 15 (2008): 5521-26.66 Funding from Idaho Power does ensure that some limited monitoring will continue along Upper SnakeRock.



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problems from surface to groundwater. Yet EPAs past decision to exempt IdahosCAFOs from groundwater monitoring and reporting has led to several well-known andhighly-publicized instances of large CAFOs doing exactly that.67

Legally, there are strong grounds for compelling CAFO operators to monitor

groundwater. Direct groundwater monitoring is a uniquely accurate means of detectinggroundwater contamination.68

Furthermore, numerous Circuit Courts have held that groundwater discharges should beregulated under the NPDES program because of the potential for groundwater dischargesto contaminate hydrologically connected navigable waters.69 At the very least, this line ofcases dictates that CAFOs located above water that is hydrologically connected tonavigable waters must undertake thorough groundwater monitoring.70 A failure to requirethese facilities to monitor groundwater discharges, which can contaminate surface waters,would plainly undermine the Acts goal of eliminating point-source discharges.71

The failure to monitor groundwater would also create the potential to undermine IdahosWater Quality Standards and therefore, violate the CWAs proscription that NPDESpermits may only be issued where such permits ensure that every discharge of pollutantswill comply with all applicable effluent limitations and standards.72

67 Examples include, but are not limited to: the installation and operation of injection wells at Double Cfeedlot in Burley, the contamination of 22 private domestic wells at the former Sunnyside Feedlot inWeiser, ever-increasing nitrate contamination (and evidence of bacterial and pharmaceuticalcontamination) near several large industrial dairies in Marsing (an October 2009 sample showed nitrate at170 mg/l), and widespread groundwater contamination issues in the CAFO-burdened ESRP.68 Whereas monitoring soil surface conditions only detects superficial contamination and provides littlemeaningful feedback, groundwater monitoring can detect infiltration of animal waste into groundwater,where it may also contaminate hydrologically connected drinking water wells as well as surface waters andwetlands. Neal Wilson, Soil Water and Groundwater Sampling, 5-8, CRC Press (1995).69See Washington Wilderness Coalition v. Hecla Min. Co., 870 F.Supp. 983, 990-991 (E.D. Wash. 1994)(holding that allegations were sufficient to support a claim under the CWA because they alleged ahydrological connection between seepage into groundwater and the nearby surface waters of a creek andlake); Sierra Club v. Colorado Refining Co., 838 F.Supp. 1428, 1434 (D. Colo. 1993) (holding thatallegations that a defendant has and continues to discharge pollutants into the soils and groundwaterbeneath its property which then make their way to a navigable water through the groundwater state a causeof action under the CWA; Williams v. Pipe Line Co. v. Bayer Corp., 964 F.Supp. 1300, 1320 (holding thatdischarge of petroleum into groundwater that is hydrologic ally connected to surface waters is a violation ofthe CWA);Idaho Rural Council v. Bosma, 143 F.Supp.2d 1169, 1180 (D. Idaho 2001) (holding that the

CWA extends federal jurisdiction over groundwater that was allegedly polluted by a dairy that ishydrologically connected to surface waters that are waters of the United States).70 The states own modeling of the ESRP considers several portions of the aquifer to be interconnectedwith the Snake River (see: http://www.if.uidaho.edu/~johnson/ifiwrri/sr3/esna.html#Hydrogeology). Inaddition, the United States Geological Survey (USGS) has even more advanced modeling that EPA couldutilize to determine which sections of the aquifer are hydrologically connected.71See 33 U.S.C. 1251(a) (1).72Waterkeeper Alliance v. EPA, 399 F.3d, 486, 498 (2d Cir. 2005) (emphasis added);see also 33 U.S.C. 1342(b) (requiring that state permitting programs apply and insure compliance with, any applicable[effluent limitations and standards].).



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Baseline and continued groundwater monitoring is a reasonable step towards ensuringthat the NPDES Permit for Idahos CAFOs adheres to the true spirit and purpose of theCWA.

Waste

ICARE applauds the Proposed Permits waste analysis and record keeping requirements.We are certain that knowledge of the nutrient content and ratio of each facilityswastewaters will reduce the potential for surface water pollution andassist operators inmore efficiently managing their waste and feed crops.

ICARE does feel that these requirements could benefit from some minor tweaks andadditional testing requirements. As with the Proposed Permits other testingrequirements, ICARE believes that these requirements could be more effectivelymanaged by implementing a sliding scale that is sensitive to site-specific conditionsthisscale might require different testing frequencies for different-sized facilities or increase

or decrease (up to a point) testing frequencies for good or bad behavior (based on numberof complaints, number of non-compliance notifications, etc.). Devising a model flexibleand robust enough to make this idea work may take some time, but would be worth theeffort in the long run. ICARE also feels thatparticularly given the increasing threat of aflu pandemic and/or spread of antimicrobial resistant pathogensEPA should require apathogen load analysis as well as tests for antimicrobial resistant pathogens of everyfacilitys waste at least once a year.

Currently, several segments of the Snake River downstream of CAFOs have consistentlyhigh pathogen counts.73 DEQ has been unable to locate the source of these pathogens andcorrect the problem in large part because of a significant data gap: Idahos CAFOs have

not been compelled to screen their wastewater for pathogens or perform DNAfingerprinting on wastewater or solid waste bacteria that could definitively tie particularfacilities to particular waterborne pathogens.74DEQ has the data to show that, for themost part, Southern Idahos fish hatcheries are in compliance and are not significantcontributors of pollutants of concern to the Mid Snake.75 Industrial point sourcesdischarging into the Mid Snake are required to treat and test their wastes prior todischarging. Though the only possible remaining culprits are the regions numerousCAFOs, without the necessary data DEQ and EPA are powerless to fix the problem. 76

Thus, to bring the many 303(d) listed segments of the Snake River into compliance withestablished TMDLs, DEQ and EPA need to have data from all point sources showingwhat, if any, pollutants of concern they are contributing. If those point sources are not

73 See: Appendix A.74 Conversation with DEQ Twin Falls Regional Office staff, January 12, 2010.75 Id. DEQ asserts that when test results reveal that a hatchery is out of compliance, the operator is assesseda steep fine.76 To ICAREs knowledge this is the same data gap that hamstrung EPAs case against Burleys Double CFeedlot: when the single test that had been performed was called into question by the court, EPA had noother testing history to fall back on.



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contributing, then EPA, DEQ and Idaho lawmakers will know to start looking moreclosely at non-point sources.

Soil

The permits soil testing requirements must either be stricter across the board or moreefficiently implemented through a sliding scale. Given that as early as 2005, 31% of allfacilities with well nitrate levels greater than 10mg/L were above phosphorousthresholds, and that ISDAciting philosophical differences with the more conservative2007 NRCS 590 standardhas obstinately continued utilizing a 10-year-old nutrientstandard that doubtlessly contributed to the formation of the problem in the first place,there is no reason to believe that soil quality has since improved. Indeed, there is everyreason to believe that soil quality (and, therefore, potential for surface-water run-off) atCAFO facilities has gotten much worse. To ensure that CWA goals are met, EPA mustapproach the Proposed Permits soil testing requirements assuming the worst rather thanthe best.

ICARE urges EPA to seriously consider requiring CAFOs to conduct biannual (springand fall) soil testing. At the very least, EPA should require more frequent soil testing atfacilities whose wells exhibit nitrate levels greater than 10mg/L: ISDAs previous workhas established that there is a significant correlation between facility groundwaterproblems and phosphorous threshold exceedance in facility soils.

Cost

Undoubtedly, these testing and reporting requirements will cost Idahos beef and dairyproducers some money. However, as the Supreme Court explained, Congress devised the

CWA with such economic consequences in mind:

Prior to the passage of the [Clean Water] Act, Congress had before it areport jointly prepared by EPA, the Commerce Department, and theCouncil on Environmental Quality on the impact of the pollution controlmeasures on industry. That report estimated that there would be 200 to300 plant closings caused by the first set of pollution limitations.Comments in the Senate debate were explicit: There is no doubt that wewill suffer some disruption in our economy because of these efforts; manymarginal plants may be forced to close.(EPA v. National Crushed Stone, 449 U.S. 64, 80 (1980)).

Economic inconveniences or difficulties are clearly not sufficient to justify weakeningCWA programs. To allow industrys bottom line to dictate the form of the final permitsrequirements would be an outright betrayal of the public interest and the CWAs purpose:there is no possible justification sufficient to shift the burden of industrys pollution ontothe people of Idaho (whose state government cannot at present afford to continuemonitoring the groundwater to determine whether industry is in compliance or not).



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Industrys waste is industrys responsibility. Industry cannot be allowed to continuefeeding at the public trough at the expense of the public and environmental health.77

However, there are several measures EPA could implement to offset the cost of theserequirements. It could more equitably distribute the financial burden by implementing a

sliding scale requiring different testing frequencies for facilities of different sizes: as it isa matter of common sense to presume that large CAFOs and CAFOs utilizing pressurizedirrigation systems discharge, so it is a matter of common sense that large CAFOs pose agreater potential threat to surface water quality and should be required to test morefrequently than small or medium-sized CAFOsthe more waste a facility generates, thegreater its potential to inflict serious damage on the surrounding environment. It alsomakes sense to presume that Large CAFOs can more easily absorb the additional coststhat more frequent testing would entail.

E. Keep the Proposed Permits manure transfer record-keeping requirements, add a

requirement to report the amount of acreage third-party receivers will apply waste to,

and require CAFO operators to submit these records to EPA on annual basis.

ICARE realizes that this issue has already been reviewed by the courts, but we feel theneed to address it regardless: the loophole in which, once transferred to a third-partyrecipient, CAFO waste is somehow magically transformed into a product on a par withcommercial fertilizer is completely ludicrous. This loophole violates the purpose of theCWAs designation of CAFOs as point-sources: A CAFO is a point source because ofthe sheer volume and concentration of waste it produces; the purpose of designatingCAFOs as point sources was to ensure that the hazardous wastes generated by the CAFOmodel of production would be phased out as sources of pollutants of concern to USwaters. Yet the loophole has the effect of ensuring quite the opposite: as it becomes more

difficult for CAFOs (of any size) that accept responsibility for all of their waste and applyonly on facility lands to meet the Permits requirements, the perverse incentive to avoidresponsibility for waste by haphazardly disposing of it to third-parties becomes evergreater. As CAFOs become increasingly more concentrated and lose more irrigable landto development and sprawl, this perverse incentive will pose a huge risk to surface andground water quality.

Apart from the source of the fertilizer, there are very real and tangible differencesbetween commercial fertilizer and third-party land-applied CAFO-waste. It is painfullyobvious that this was an equivalence concocted out of political expediency by personswho know absolutely nothing about farming: it is an equivalency based in pure fantasy,

and having nothing whatsoever to do with facts.

Obviously, fixing this problem will require a rewrite of the law or another court battle. Itis our opinion that both of these options should remain on the table. In the meantime,

77 Industry arguments that Idahos CAFOs are vital to the health of the states economy are circumstantialat best and deeply flawed and deliberately misleading at worst. There is plenty of evidence suggesting thatCAFOs ultimately cost rural communities more than they contribute, and that smaller-scale sustainableanimal husbandry practices are both more profitable for operators and a greater economic and social goodfor rural communities.



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however, EPA would be doing a great service to Idaho producers, citizens, lawmakers,and regulators by keeping the Proposed Permits manure-transfer reporting requirementsintact as written, and by adding a requirement to report the amount of acreage third-partyreceivers will apply waste to.

F. EPA Must not allow excessive CAFO waste stockpiling, and should considerexcessive third-party stockpiles as point sources of pollutants of concern.

Producers who stockpile waste should adhere to EPAs technical guidance for the CAFOprogram, which requires that stockpiles be covered after 14 days. Additionally, EPAshould consider uncovered stockpiles (for longer than 14 days) to constitute a liquidmanure handling system, any AFO choosing to store waste in this manner should beconsidered a Large CAFO and third-party receivers of waste doing the same should betreated as point sources and required to obtain a NPDES permit.

The definition of production area makes no distinction between short-

term or temporary storage areas. Note in particular, however, that at layerand broiler operations, whether uncovered stockpiles of litter exist onlytemporarily or for a longer period of time can make a difference as to thefacilitys regulatory status. At these operations, uncovered stockpiles oflitter generally constitute a liquid manure handling system, andoperations with a liquid manure handling system are defined in theregulations as Large CAFOs at a lower threshold number of animals thanother operations. However, the permit authority may authorize somelimited period of no more than 15 days for temporary storage of litter (e.g.,where this time is needed to allow for contract hauling arrangements),within which time the uncovered stockpile of litter would not be deemed

to be a liquid manure handling system.

78

There is no reason why Idahos beef, dairy, and sheep CAFOs and AFOs choosing tostockpile waste should be treated any differently under the law than poultry operations.

The already tenuous logic that exempts third-party receivers from CWA requirements byplacing them in the same non-point source category as users of commercial fertilizercompletely fails when these receivers choose to stockpile waste. By their very naturecommercial chemical fertilizers cannot be stockpiled, and thus cannot act as point sourcesof pollutants. Given that CAFO wastes can and are stockpiled, EPA should treat suchstockpiles as liquid manure systemsa CWA designated point source.

Even in the absence of certainty that Idahos waterways are unaffected by runoff andtransportation of nutrients and contaminants from open field stockpiles, the PrecautionaryPrinciple must be applied so as to require that stockpiled solid waste be stored in shedsand, if there is overflow and temporary storage is required in the field, that it be covered

78 Motor Vehicles Association of the United States v. State Farm Mutual Automobile Insurance, 463 U.S.29, 42 (1983) [hereinafter State Farm].



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and appropriately located.79 The present approach in the Proposed Permit plainly violatesthe zero discharge standard.80 By extension, it also contradicts Congresss overarchinggoal of eliminating the discharge of pollutants to navigable waters.81

G. The proposed permits lagoon liner requirements must be more specific and take

into account livestock production characteristics unique to Idaho.

The concentration and distribution of Idahos CAFOs as well as the typical hydrogeologyand soil characteristics in areas densely populated by CAFOs necessitate that, in order toprevent off-site ground and surface water contamination, the Proposed Permit require theinstallation of NRCS-approved synthetic liners in all waste holding ponds/lagoons.82

Producers wishing to be exempt from this requirement should have to construct holdingponds in accordance with site-specific tests that have determined what leakage rate thesoil can properly filter and install monitoring equipment to ensure that the holding pondsdo not leak. If these precautions have been taken and monitoring indicates that theholding ponds are leaking nonetheless, producers should be required to submit a plan for

remediation and timeline for completion.

Further, the Proposed Permit must be specific about its definition of significant leakage(Proposed Permit D.1.a., Pg 25). In the recent past, ISDA has interpreted Idaho NRCSspecifications that define initialseepage rates of 1,000 gallons/acre/day to allow forcontinualseepage at this rateEPA must avoid the serious threat posed to the statesCWA watersheds by this kind of gross misinterpretation of NRCS standards by setting aconcrete volume and time limit on allowable lagoon seepage.83 Ideally, this limit shouldbe determined on a site-specific basis or at least according to general surface waterquality, hydrogeology and topographic conditions in those areas of the state most heavilypopulated by CAFOs.

H. Waste treatment

Industrial and municipal point sources are required to treat their waste prior toapplication. Yet Idahos CAFOs, though generating waste that is equally, if not more,hazardous and certainly more potent and voluminous than the states various industrialand municipal point sources, are exempt from this requirement. This is a ludicrous andoutdated inequality. Idahos CAFOs are industrial operations. EPA should deal with these

79 At a very minimum, operators should be required to place any solid waste produced by their facilities on

pads or liners and cover all stockpiles with a tarpaulin.80 See 40 C.F.R. 412.31, 412.32, 412.33, 412.35, 412.44, 412.46 (setting a zero discharge standard fromproduction areas of new and existing CAFOs).81 33 U.S.C. 1251(a) (1).82At the very least, this should be a requirement in the ESRP (and areas with similar vulnerability togroundwater contamination) and in areas with a direct hydrologic connection to surface water (such as ontop of basaltic aquifers (or portions thereof)).83 See: Natural Resources Conservation Service Agricultural Waste Management Field HandbookAppendix 10D (Appendix 10D) (1997 Edition) (USDA, NRCS), and American Society of Agricultural andBiological Engineers Specification ASAE EP393.3 Manure Storages February 2004,(ICAREs emphasis).



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facilities accordingly, and require the implementation of the same waste treatmenttechnologies being utilized at industrial and municipal wastewater treatment plants.84

I. Until the Idaho One Plans manure generation values have been updated to be

consistent with the most recent ASAE 384.2 (March 2005) values, EPA must not

accept NMPs calculated using Idaho One Plan modeling.

See pages 11-12 of this letter and Appendix B for detail. Additionally, EPA must requirenutrient management planners to certify that they have utilized the ASAEs March 2005384.2 manure generation values in calculating facility phosphorous production. EPAshould also seriously consider more stringent qualificationssuch as required ongoingtrainingfor nutrient management planners than those listed in the Proposed Permit, orat least ensure that nutrient management planners have enough training to ensure that thepermitted facilitys NMP will be in compliance with CWA requirements.85

J. Strengthen the Proposed Permits public notice and open records provisions

All informationincluding but not limited to all waste, water, and soil tests andmonitoring results, third-party waste recipient names, addresses, and reported receivingacreage, etc.reported by permittees to EPA should be digitized and made publiclyavailable and accessible online (such as through EPAs ECHO database). Making thisinformation publicly available and readily accessible (as opposed to requiring apotentially lengthy FOIA submission process) will allow local citizens to moreeffectively assist EPA oversight. As local citizens deal with CAFOs and observe theiroperations more often than EPAs limited staff may, empowering these citizens to holdtheir CAFO neighbors accountable will help keep EPA abreast of potential problems,streamline EPA oversight (saving money and time) and better ensure compliance with the

Proposed Permits no-discharge requirement.

Specifically changes to the Proposed Permit that would move toward this goal include:

Requiring that, the process outlined in III.A.6.d. (pg. 21) of the Proposed Permit shalloccur if there have been any non-compliance issues or multiple complaints against afacility whether or not proposed changes to the terms of its NMP are deemedsubstantial.

84

Producers could undertake collective implementation of this requirement (i.e. treat the collected wastes ofseveral facilities within a given radius of each other as a city would treat its wastesat a single plant) inorder to mitigate the economic impact to individual operators. Certainly if Idahos dairy and cattleindustries can band together to retain the services of one of the states most expensive law firms (GivensPursley), these same associations could band together to pay for several CAFO waste treatment plants. Infact, doing so would likely rid industry of a large part of the reason for having to retain the esteemed lawfirms services (namely, dealing with environmental liability).85 For this reason, EPA should also reconsider its automatic acceptance of the qualifications of nutrientmanagement planners certified by the state: ISDA certified nutrient management planners are only requiredto take a single course to become certified.



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Stating that any change in property ownership or facility management should requireresubmission of the NMP and public comment, especially if operation has a history ofnon-compliance and complaints.

Changing III.C.1.d. (pg. 24) of the Proposed Permit to read: retain the records on-site,

for a period of five years, and submit the records to EPA annually.86

K. EPA must keep the Proposed Permits up-to-date NRCS standards.

L. Add a provision that allows for automatic incorporation of significant updates of

NRCS and ASAE standards that occur within the 5-year coverage period and/or

during any administrative extension.

See the discussion about the effect that Idahos obstinate refusal to accept updatedstandards has had on Idahos CWA watersheds on pages 9-12 of these comments forinformation about why such a change is necessary.

M. Miscellaneous

II.B.1.g. (pg. 13) of the proposed permit should cite a concrete rate or time period forequipment inspections (biannually, seasonally, etc.) and require detailed recordkeeping (dates, times, repairs needed and performed, and photos).

III.B.1.c. (pg. 23): An operation that has been out of use for 12 consecutive months butclaims to qualify that it is financially viable and intends to resume operation must berequired to submit documentation to show that these terms in fact apply.87Also, theoperator should be required to submit an NMP to EPA detailing how it plans to dispose

of the water that has been sitting in the bottom of lagoon during temporary closure.

III.D.4 (pg. 26): The Proposed Permit should be more specific about the definition of theterm significant in the following sentence: significant fish, wildlife, migratory bird,and endangered species kill or die-off on or near retention facilities, or in fields wherewaste has been applied. Additionally, ICARE feels strongly that any die-off (large orsmall) of endangered species in such areas is by its very nature significant, and must bereported to EPA. Define significant.

III. Closing

ICARE and its members in Idaho others respectfully submit these comments for EPAsconsideration. In do doing it is our intention to provide valuable input and informationthat will enable EPA to ensure the protection and successful restoration of the Idahoswaters for current and future generations. Should you or any of your staff have any

86 This same change should made to any portion of the Proposed Permit currently stating that recordsshould be made available upon request.87 In the case of a claim that the facility intends to resume operation, documentation should include anaffidavit attesting to the fact and a timeline for the facilities proposed resumption of operations.



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questions regarding these comments, please contact Alma Hasse at (208) 695-1556 orShavone Hasse at (208) 695-1488.

Sincerely,

Alma Hasse, Executive Director, ICAREPO Box 922Fruitland, ID [email protected]

Shavone Hasse, Board Member, ICARE

PO Box 922Fruitland, ID [email protected]


Documents

ICARE Idaho Draft NPDES CAFO Permit Comments