gc State oF Micuican year DEPARTMENT OF ENVIRONMENTAL QUALITY D € SF 7 Lansina 3 eS eR JENNIFER M. GRANHOLM: STEVEN E, CHESTER, April 4, 2008 U.S. Environmental Protection Agency Docket Center EPA West, Room B102 1301 Constitution Avenue, NW Washington, DC ATTENTION: Docket ID No. EPA-HQ-OW-2005-0037 SUBJECT: — Revised National Pollutant Discharge Elimination System Permit Regulations for Concentrated Animal Feeding Operations; Supplemental Notice of Proposed Rulemaking ‘The Michigan Department of Environmental Quality (MDEQ) has reviewed the proposed rule published in the March 7, 2008, Federal Register and has several comments. We appreciate the fact thal the U.S. Environmental Protection Agency (USEPA) has attempted to respond to the Waterkeeper Decision, and that the USEPA is contemplating various permitting options to deal with both the decision and the practicalities of permitting concentrated animal feeding operations (CAFO) and protecting the nation’s waters. Self-Certification Process We strongly recommend that the USEPA withdraw the proposal for the voluntary option for CAFOs to certify that the CAFO does not discharge or propose to discharge. We believe that this option as proposed is seriously flawed. This provision appears to have been advanced by the lobbyists for the factory farms as a self-serving means of ‘exempting factory farms from regulation, contrary to any other sector regulated under the Clean Water Act. Instead, we recommend that the USEPA refocus its efforts on clearly identifying the attributes that will constitute a discharge or proposal to discharge, and how these would be determined. We have this recommendation based on the following: (1) The proposed rule is contrary to the plain language of the Clean Water Act; not responsive to the Waterkeeper Decision in that it does not define what constitutes a proposal to discharge; sets a minimum design, operation, and management scheme that will not prevent discharge; does not provide a clear defined process for determining when a nonpermitted CAFO must apply for a permit; and has the sole purpose to provide liability protection for those who chose not to enter the permitting process. The self-certification provision is not needed and serves no purpose other than to provide a safe haven for CAFOs that will likely discharge but do not want to apply for a permit. CAFOs should have to decide either to obtain a permit and thus obtain the liability protection for duty to apply that goes along with being permitted; or not obtain a permit and take their chances with the compliance/entorcement actions that may follow a discharge. Itis unfair to those CAFOs that do obtain permits to give the same liability protection to those that simply decide to setf-certiy. ‘CONSTITUTION HALL + 625 WEST ALLEGAN STREET + PO, BOK 90273 LANSING, MICHIGAN 49909-7773 ‘wwanmenigaa gov + (517) 241-1300SUBJECT: Docket ID No. EPA-HQ-OW-2005-0037 Page 2 April 4, 2008 The self-certification process, through the liability protection from the duty to apply, ‘would make it much more difficult to compel CAFOs that have had a discharge or discharges to take the appropriate steps to correct the problems that lead to the discharges. This would be further complicated by the lack of any requirement for sett- certified CAFOs to report discharges and a three day period to simply report that they no longer met the certification requirements, which would result in most discharges being dissipated before the agency even knew about them. Also, as written, the certification and recertification process after a discharge would encourage a discharging CAFO to maximize its illegal discharge to acquire more operating capacity to provide time to “correct” a noted problem and then recertify in lieu if obtaining permit coverage. The immunity from the duty to apply provision is most likely not legal, except to the extent that the USEPA desires to exert enforcement discretion, because it is in conflict with the Clean Water Act. Notably, the immunity from the duty to apply provision is only mentioned in the preamble and is not a part of the regulation per se. In fact, we find no authority in the Clean Water Act that allows the USEPA to establish a self-certfication process in lieu of a permit for dischargers, let alone to arbitrarily establish such a process for a select group of dischargers contrary to how all other dischargers are regulated. This proposal, if enacted, would undoubtedly result in additional litigation and the resulting confusion that it would bring. This provision also attempts to negate the citizen rights to sue provisions of the Clean Water Act by eliminating a statutory provision by administrative regulations. The proposed USEPA criteria to be used to determine if a CAFO qualifies for the self- certification are not detailed enough to be useful in specific situations. The criteria need to be much more specific and established by appropriate state or similar regions. Michigan has established criteria in national pollutant discharge elimination system permits for CAFOs with discharges, but the criteria are much more specific than the proposed criteria, and are more specific to the particular conditions in Michigan. It Is unlikely that the proposed USEPA criteria will serve any meaningful test to cerlfy that there is no discharge; instead, these criteria will only show that the discharges are less. frequent. ‘The USEPA frequently uses the phrase “in an unlikely event of a discharge from a certified CAFO.” We do not agree that such a discharge would be “unlikely.” Michigan's experience is that virtually all CAFOs with lagoons and/or land application have discharges. In fact, in administering the CAFO program in Michigan for about 200 CAFOs, we have found that only about five percent of the CAFOs can be determined to have No Potential to Discharge. Michigan has received 17 requests for a no potential to discharge determination. Of these, nine have been determined to meet this, determination; however, four other CAFOs who thought they had no discharge were found to be discharging at the time of inspection. To date, the CAFOs in Michigan determined to not discharge are those that are not proximate to surface waters, have their CAFO waste sheltered from the elements (either under barn or in dry storage), and. have particularly well managed facilities. Even these situations must be carefully assessed on a facility specific basis, as we have found some operations that met these ctiteria, did in fact have a discharge. For one such poultry CAFO with dry manure stored inside and no land application, we documented a discharge twice in one month as aSUBJECT: Docket ID No. EPA-HQ-OW-2005-0037 Page 3 April 4, 2008 result of exhaust of dust and subsequent storm water run off, with high pollutant concentrations in the discharge (especially biochemical oxygen demand, E. coli and ammonia). This serves to point out the difficulty of CAFOs self-certifying that they will not discharge, particularly without very specific criteria to use in making the evaluation. The proposed certification process essentially gives CAFOs a license to discharge with no consequences, and ties the hands of enforcing agencies. The solf-certification process also creates a significant work load for the states without any commensurate additional environmental protection. The burden of handling all of the additional paperwork associated with the certification would be substantial. In addition, considerable additional resources would be required to determine if each facility was actually in compliance with their certification and whether there were discharges or not. The only apparent result of finding e facility not in compliance with their certification or having a discharge would be for the facility to “fix” the problem causing the discharge and then to reapply for a new cettification. In addition, the certification process eliminates the ability of the public to comment on the appropriateness of certifying a facility. Often public comment can be valuable in identifying CAFOs that have had discharges. This proposal will severely undermine the efforts of those states that have implemented programs to adequately regulate CAFOs. The USEPA has encouraged states to do this, in the interim time period between the Waterkeeper Decision and the final promulgation of regulations consistent with that decision by the USEPA. Despite the argument that the USEPA will make that the states are free to implement requirements more restrictive than the federal requirements, the reality is that the states will be under increasing pressure to change their requirements to be “consistent with” the federal requirements, ‘This would result in not only significantly reduced effectiveness of controlling pollution from CAFOs, but also a waste of scarce state resources in the effort to redo their regulations. Ifthe USEPA persists in this wrong headed effort to have CAFOs self-certify, we recommend the following modifications to at least mitigate some of the worst features of the proposal. However, we must note that even with these changes we find the provision inadequate, contrary to law, and not protective of the environment and public health: ‘A. All documents related to the certification should be signed by a registered engineer (for structural issues) or a National Resource Conservation Service (NRCS) certified technical service provider (for other Comprehensive Nutrient Management Plan (CNMP] issues). B. Any Nutrient Management Plan (NMP) developed for certification must not only meet NRCS standards but also any standards or conditions established by states that permitted CAFO's must comply. The CAFO must also spectfically certify to this fact. ©. The rule needs to define what constitutes lands “under the control” of the CAFO. D. The rule needs to clearly state that before a CAFO could be certified, it must have in place and operating all required elements of the design, operation