October 24, 1999

Mr. Gregory Beatty 401 M Street, SW

Mail Code 4203

Room 2304 NEM

Washington, D.C. 20460

Re: Comments on Draft Guidance Manual and Example NPDES Permit for Concentrated Animal Feeding Operations"

Via: email

Dear Mr. Beatty:

        Thank you for this opportunity to comment on the Draft Guidance Manual and Example NPDES Permit for Concentrated Animal Feeding Operations.  Barrett Farms is a family farm operation producing poultry under contract.

Comments in general:

        All Oklahoma poultry feeding operations, including ours, have requested technical assistance from USDA/NRCS to develop CNMPs.  Very few of these producers have received the technical assistance that they have requested.  USDA/NRCS is incapable or unwilling to provide adequate and timely technical assistance in the development of CNMPs that have been requested, in writing, and should withdraw its name and endorsement from the Unified National Strategy for Animal Feeding Operations. 

        Dry litter poultry feeding operations generate no wastewater discharge and are not point source dischargers.  Dry litter poultry feeding operations should not be subject to NPDES permitting.

        EPA does not have constitutional jurisdiction of non-point source pollution.

2.1     As indicated in the USDA/EPA Unified National Strategy for AFOs, discharges from areas where manure and wastewater are applied to the land can have a significant impact on water quality.  These land application areas, which are outside the area of confined animals, do not fall geographically within the regulatory definition of an AFO.  Nevertheless, discharges of CAFO wastes from land application areas can qualify as point source discharges in certain circumstances.

        Animal feeding operations that are not point source dischargers should not be designated as CAFOs based on "discharges of CAFO waste from land application areas".  Non-CAFO operations can not "discharge" CAFO waste and land application areas are obviously not point sources.

2.2     Once the facility meets the AFO definition, its size, based upon the total numbers of animals confined, is a fundamental factor in determining whether it is a CAFO.

        The size of an AFO should not determine that the operation is subject to CAFO permitting.  Larger operations are often better able to manage animal wastes than are smaller operations.

2.3.2   poultry operations that remove dry litter waste from pens and conduct improper land application activities or stack it in areas exposed to rainfall or adjacent to a watercourse may have been considered to have established a crude liquid manure system.

        "improper land application activities" for dry litter from poultry feeding operations is not defined and should not be used to re-define an AFO as a CAFO. 

2.3.3   "EPA has noted in other documents that a discharge of pollutants via a direct hydrologic connection between groundwater and surface waters may be subject to NPDES program requirements and meet the "method of discharge" criterion." 

        EPA should refrain from citing such self-serving references. An Agency should never use themselves as a "referencing" authority to prove a point.

2.3.5   During Round I, in determining whether to designate an AFO as a CAFO, NPDES permitting authorities should pay particular attention to information from the inspection and other sources that suggests that an AFO or collection of AFOs are significant contributors to water quality impairment.  In cases where water quality monitoring or other information provides evidence that pollution from these facilities is a significant contributor to water quality impairment of a water body or non-attainment of a designated use, the AFOs should be designated as CAFOs and be a priority for permitting in Round I.

        An AFO should never be considered a significant contributor to water quality impairment based on proximity to other AFOs that may be significant contributors to water quality impairment.  Such arbitrary subjection to permitting will cause much resentment and reluctance to pursue "voluntary" BMPs.

An AFO cannot be designated a CAFO on a case-by-case basis until the Director has conducted an on-site inspection of the facility and determined that the facility is a significant contributor of pollution.  The designation is based on the factors listed in 40 CFR 122.23 (c) and reiterated in Table 2-4.  This determination may be based on visual observations as well as water quality monitoring.

        CAFO designation of an AFO should never be based on a visual inspection alone.  Without sound scientific evidence (water quality monitoring data), CAFO designation is only an abuse of power by EPA that will be counter-productive in protecting water quality.

2.3.6   "However, to be eligible for the exemption, the facility must demonstrate to the permitting authority that it has not had a discharge.  It must also demonstrate that the entire facility is designed, constructed, and operated to contain a storm event of this magnitude in addition to process wastewater.  Facilities that believe that they do not discharge should apply for an NPDES permit and provide technical documentation of no discharge with the permit application."

        To require a facility to "demonstrate to the permitting authority that it has not had a discharge" is a presumption of guilt that is unfair to the facility and impossible to overcome.  The burden of proof that a facility has had a discharge should lie with the permitting authority.   An AFO should not be expected to apply for an NPDES permit unless and until the permitting authority has shown just cause for permitting the facility.

2.4     Corporate entities that exercise substantial operational control over a CAFO should be co-permitted along with the CAFO operator.

        Co-permitting will be detrimental to the contract grower (family farmer) because the integrator will be forced to enforce state and/or federal laws by placing restrictions within the contract or by withholding placement of animals to the farm.  Growers located in sensitive areas such as nutrient limited watersheds and nutrient vulnerable groundwater areas, scenic rivers watersheds, or so-called CAFO Impaired Watersheds will be susceptible to loss of contract.  Integrators should be encouraged to adopt VOLUNTARY measures to assist contract growers in complying with environmental regulations rather than be forced to rewrite contract conditions.

3.2.3   The permitting authority must ensure that any CNMP developed as a requirement of an NPDES permit is made available to the public upon request to the permitting authority….Where the States fail to do so, EPA will ensure its availability to the public.

        A CNMP will contain and be based upon information supplied by and sensitive to the operation for which the CNMP is developed.  This information should be confidential and not available to the public.  Making such information available to the public will undermine the relationship between producers and USDA in the implementation of voluntary programs that provide the basis of assisting agricultural producers in protecting water quality.

Don and Judi Barrett

Barrett Farms

Rt 5 box 126

Idabel, Ok. 74745

cc:    U.S. Senator Don Nichols

        U.S. Senator Jim Inhofe

        U.S. Representative Wes Watkins