The Honorable Stephen Johnson
Administrator
Re: Revised National Pollutant Discharge
Elimination System Permit Regulations for Concentrated Animal Feeding
Operations; Supplemental Notice of Proposed Rulemaking
Docket
ID No. EPA-HQ-OW-2005-0037
Dear Administrator Johnson:
The North Dakota Stockmen’s Association (NDSA) represents
the beef cattle industry in
NDSA generally supports the concepts contained in the supplemental proposed rulemaking. In particular we applaud and appreciate the EPA’s proposal to include the “narrative approach” with respect to rates of application as a term of a CAFO’s nutrient management plan (“NMP”). We believe this approach is critical to ensuring that CAFOs will be able to meet NPDES permit requirements and protect the environment. On the other hand, while we support the concept of a zero discharge certification program, we are skeptical about whether producers would be willing to go through the very complex certification process described in the proposed rule if they would still be subject to liability for any rare and unexpected discharge that may occur. We also strongly urge the EPA to extend the compliance deadline to two years after states have completed their regulatory process incorporating new EPA requirements that will be promulgated in EPA’s final rule.
I.
No Discharge
Certification
EPA has proposed a voluntary option for a CAFO to certify that it does not discharge or propose to discharge based on an “objective assessment of the CAFO’s design, construction, operation, and maintenance” described in its NMP.
While NDSA generally supports the concept of a zero discharge certification option, NDSA is disappointed with the program’s complexity, and is perplexed by EPA’s contention that without such certification a CAFO would be subject to double liability in the event of an unpermitted discharge.
A.
Eligibility
Criteria
EPA has requested comment on eligibility criteria that a CAFO must meet for certification. The criteria would include “An objective evaluation of production area design, construction, operation, and maintenance, which shows that the production area will not discharge.” NDSA urges the EPA to establish criteria that are more appropriate for open-air cattle operations rather than confined livestock (swine, poultry etc.)
1. Recertification
Every Five Years is Unnecessary
NDSA believes that unless a CAFO makes significant changes to its operation after its initial certification, recertification every five years would be an unnecessary burden for producers. If it is EPA’s intention to move the goal post every five years, or periodically as UDSA – NRCS Animal Waste Management (AWM) software and Soil Plant Air Water (SPAW) hydrology tool are revised, NDSA predicts little participation in the program. Producers need some assurance that their certification would be tied to the goal post that was in place at the time of certification and that it will not move in the future.
II.
Terms of the
Nutrient Management Plan
NDSA commends the EPA for proposing the “narrative approach” for expressing the term of the NMP with respect to rates of application. NDSA believes this approach is the only viable option for open-air cattle operations since the nutrient value of manure generated in these operations changes often and is dependent on many variables. Predicting or even guessing about accurate manure application rates five years in advance of actual application is an exercise in futility and would produce at best only a “feasibility study.” Any requirement that those predicted or guessed rates must be used on future crops would be unreasonable and would not achieve environmental or crop yield goals. Achievement of agronomic and environmental goals requires flexibility to make adjustments based on soil test results, crop selection, weather, field and crop conditions, and manure sampling, among other variables.
The narrative approach gives producers the necessary flexibility to make these changes without the potentially water quality goal-defeating public comment process; and NDSA appreciates EPA’s recognition of, and proposed solution to, this critical issue. Stating actual application rates in the annual report will give the public the ability to assess whether the producer is complying with permit requirements.
A. Linear
Approach
This approach is generally not appropriate for open-air cattle operations since manure application rates must be determined at the beginning of the permit cycle and must be based on tons or gallons of manure or wastewater. As described earlier, the nutrient values of manure at open-air feedyards can vary tremendously depending on many factors, including the weather. The weather also influences the numbers of tons or gallons of manure or wastewater that is present at a feedyard at any given point in time without regard to the level of nutrients in those tons or gallons. Knowing nutrient content is critical to knowing how much manure or wastewater to apply to a field at agronomic rates. This approach may be workable for operations that have lagoons with more predicable nutrient values, but is not appropriate for open-air cattle operations.
B.
Matrix
Approach
Under the matrix approach, EPA asks producers to predict over the term of the permit the range of possible cropping scenarios for each field along with the allowable rates of application for nitrogen and phosphorus in pounds for each crop and field for a given year, and possible methods of manure and wastewater application, and present all possible combinations in a matrix. Creating such a matrix for producers who have many fields, several cropping possibilities (especially during a time of price fluctuations that is occurring today due to the ethanol boom and other factors), and several possible methods of application would be very difficult at best. Managing the scenarios may be impossible even with the aid of software.
C.
Narrative
Approach
NDSA once again thanks the EPA for proposing the “narrative approach” for determining manure application rates. Under this approach the NMP would include planned crop rotations for each field and corresponding projected amounts of nutrients to be applied. In addition this approach eliminates the five –year planning cycle associated with the previous approaches. Finally the narrative approach allows CAFO’s to adjust their rates of application without requiring the permit to be modified. We believe this is the only viable option for open-air cattle operations that will enable them to achieve desired production levels and protect the environment.
III. Proposed Compliance Deadline is Unreasonable
The EPA proposes to keep the current compliance deadline of February 27, 2009 by which it states the following must occur: “(1) operations defined as CAFOs as of April 14, 2003, that were not defined as CAFOs prior to that date, must seek NPDES permit coverage; (2) operations that become defined as CAFOs after April 14, 2003, due to operational changes that would not have made them a CAFO prior to April 14, 2003, and that are not new sources, must seek NPDES permit coverage; and (3) permitted CAFOs are required to develop and implement nutrient management plans.” Because EPA is expecting to issue a final rule in summer 2008, this deadline would give CAFOs no more than six to eight months to comply. This proposed deadline would be virtually impossible to meet and is unreasonable. In addition, the EPA must clarify that only those CAFOs that have a “duty to apply” as of the date of the deadline must get permitted by the proposed deadline.
NDSA submits it is unreasonable for the EPA to expect CAFOs
to move forward with a process that requires the expenditure of a large amount
of money without knowing exactly what will be required of them in final rules
promulgated by the EPA and the States in response to the outcome of the
appeals. The date on which appeals were
filed is the date on which prudent CAFO owners/operators ceased development of
NPDES permits, including NMPs, until the outcome of the case and promulgation
of new State and Federal final regulations were completed. The final EPA rule is not expected until July
or August of 2008. State rulemakings can
be expected to take from
Thank you for your consideration of our comments.
Sincerely,
Wade Moser, Executive Vice President
North Dakota Stockmen’s Association