The Iowa DNR has proposed new rules to allegedly regulate CAFOs. These new rules are supposed to comply with the EPA CAFO rule that was adopted in 2008. The EPC has issued a Notice of Intended Action to put these new rules out for public comment. The main issues we are concerned about in these new rules are:
1. According to the EPA rule, a CAFO must obtain an NPDES permit if it discharges or proposes to discharge pollutants to a water of the United States. Of course, CAFO operators claim they do not discharge or propose to discharge, so the Iowa rule needs to have a good definition or guidelines to determine when a CAFO proposes to discharge, in spite of what the operator says. The new rules simply use the general statement from the EPA rule that a CAFO proposes to discharge if "it is designed, constructed, operated, or maintained such that a discharge will occur." Obviously, that vague definition is not very helpful. As a result of a settlement of a lawsuit between the Sierra Club and EPA, EPA adopted guidelines for determining when a CAFO proposes to discharge. We asked that these guidelines be incorporated into the Iowa rules to make the issue clear and give everyone clear guidance. The DNR refused our request. So our comment needs to be that these EPA guidelines should be incorporated into the Iowa rules.
2. Iowa water quality rules say that any facility that operates a wastwater disposal system but is not required to have an NPDES permit must obtain an operation permit. These new Iowa rules exempt CAFOs from this requirement. Since most, if not all, confinement CAFOs will not be required to have an NPDES permit, they would have to have an operation permit if they were treated like any other wastewate disposal system. The DNR claims that for CAFOs, the NPDES permit is the operation permit. If that argument had even a shred of validity, then other wastewater disposal systems that are not CAFOs should not be required to have operation permits, either. Our comment needs to be that CAFOs that are not required to have NPDES permits should be required to have operation permits.
3. The EPA rule allows CAFOs to voluntarily certify that they do not propose to discharge pollutants. If they so certify, they do not need an NPDES permit. If, contrary to the certification, they do discharge, they are subject to an enforcement action for the discharge without a permit, but they are not required to obtain an NPDES permit if they certify again and claim they have corrected the problem that led to the discharge. So a CAFO can repeatedly certify, have a discharge, recertify, have a discharge, etc. and never have to get an NPDES permit. When we met informally with the DNR staff prior to the EPC considering these rules, the staff said they did not want to adopt the certification procedure in the Iowa rules. But, of course, when the rules were presented to the EPC, the certification procedure was there. A state does not have to adopt the certification procedure. Our comment needs to be that the state should not adopt the certification procedure.
4. The EPA rule says that every CAFO that is required to have an NPDES permit must have a nutrient management plan (nutrient means manure). The EPA rule further says that the nutrient management plan can use a "linear approach" or a "narrative approach." Without getting too technical, the linear approach uses numerical calculations of nitrogen and phosphorus and calculates the amount of manure that can be applied to a field from a CAFO. The narrative approach uses more descriptive statments of the procedures that will be used to apply the manure. Again, when we met with DNR staff they said they liked the narrative approach and would adopt that for the Iowa rules. The CAFO operators like the narrative approach. And of course, when the rules were presented to the EPC, they allow the CAFO to use either approach. Our comments need to be that the rules should adopt only the linear approach so there is better control on the amount of nitrogen and phosphorus that is applied.
Written comments are due by January 11, 2011. They should be addressed to Gene Tinker, Iowa Department of Natural Resources, Wallace State Office Building, 502 E. 9th St., Des Moines, Iowa 50319. You can also e-mail comments to Gene Tinker at [log in to unmask]
There will also be public hearings around the state in early January. The schedule is:
January 4 6 p.m. Northeast Iowa Community College
Dairy Center, Room 115
1527 Highway 150 South
Calmar
January 5 6 p.m. Lime Creek Nature Center
3501 Lime Creek Road
Mason City
January 6 6 p.m. Washington County Conservation Board
Education Center, Marr Park
2943 Highway 92
Ainsworth
January 10 6 p.m. Clay County Administration Building
Boardroom
300 W. 4th St.
Spencer
January 11 11 a.m. Wallace State Office Building
4th Floor Conference Room
502 E. 9th St.
Des Moines
Thanks to everyone who can attend one of these hearings and/or submit written comments. Good rules are extremely important in order to control CAFOs.
Wally Taylor
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