Final Comments on
Roth Feeder Pig WPDES permit
Crawford Stewardship Project
PO Box 284
Gays Mills, WI 54631
Mr. Robert Rohland March 24, 2010
DNR, Black River Service Center
910 Hwy 54 East,
Black River Falls, WI 54615
RE: Roth Feeder Pig WPDES permit
Dear Mr. Rohland:
We are disappointed that given requests from many citizens and this facility's sensitive location immediately next to the Wisconsin River an EIS was not required for this permit. The Crawford Stewardship Project (CSP) would nevertheless like to thank the DNR for responding to concerns raised by citizens and the scientists engaged by Crawford Stewardship Project and for holding the March 18th hearing. The hearing allowed over forty citizens to express their strong opposition to the issuance of this permit and many others to express concerns to DNR in writing. We sincerely hope these comments will be acted upon.
Crawford Stewardship Project Comments on the Roth Feeder Pig WPDES permit:
It is the position of the CSP that the WPDES permit for Roth Feeder Pig of Wauzeka as drafted is seriously flawed and should not be issued. The major problem continues to be the threat of almost certain pollution to ground water and surface waters that are designated as Outstanding and Exceptional, and are already on the 303 (d) list for certain pollutants. This threat results from flaws in the NMP as well as the design and construction of the entire facility.
Outstanding Concerns over the Proposed Roth WPDES Permit
We disagree with DNR that the amount and type of land available for spreading is adequate, as represented by the results of the SNAP Plus program analysis. Beyond questions regarding the veracity of the Snap Plus program itself and how it could allow such a high volume of nutrients on such a small acreage, CSP realizes the outcomes of any computer program are only as accurate as data inputs. We site the conclusions expressed regarding this NMP by Dr. Byron Shaw:
"The overall level of nutrient management, high density of animals to land area, steep slopes, already overloaded soils with phosphorus, proximity to protected surface water resources, proximity to vulnerable groundwater and unrealistically low manure values all make it highly likely that significant water resource problems will occur if this facility is permitted as proposed."
For these reasons CSP believes the 1/10th of an acre per animal unit is not sustainable over the 5 years of the permit and certainly not the long term. Additionally the comments from geologists Dr. Kelvin Rodolfo and Michael Day speak to serious karstic concerns on the property. The issue of shallow soils to karst bedrock was not addressed by the permit in a way that would protect groundwater. Finally, Kathy Martin, P.E., put forth extensive engineering analysis and questions that remain unadressed. These engineering issues should be resolved before the issuance of any permit.
At the hearing one citizen called into question the practical likelihood, given the fact that compliance with NMPs is essentially voluntary, along with the complexity of the NMP, that the NMP will ever be properly implemented. The DNR has chosen not to take enforcement action against Roth despite the fact that this facility was built and operated for two years without either engineering approval or a WPDES permit. This history of non-enforcement reasonably calls into question whether the terms of even this weak permit will ever be followed. DNR has failed to create any deterrent against future violations, and the citizens of Crawford County stand to bear the consequences.
The DNR's own exposure to liability should water's of the state become further contaminated was also brought into question by citizens.
Recommended Changes to the Roth WPDES Permit
For these reasons CSP recommends the permit be denied and redrafted to include:
- Immediate correction and/or remediation of engineering shortfalls outlined below before the issuance of any permit. The permit terms should include regular testing of all wells on the property as well as a monitoring program implemented along the lines suggested by Kathy Martin, P.E.
- Require substantially more land be required for spreading. The amount of land required for spreading should be re-evaluated after requiring that the application land be surveyed by a professional geologist for the presence of karst features and depth to bedrock, and the resulting land calculations should be based on an official report. More land will be required to deal with the increased nutrient loads that would be generated if DNR were to use its authority to require knifing in of manure in the bottom lands. This would reduce the probability of runoff and would mitigate the noxious odors now being experienced by neighbors and visitors. Other improvements that would necessitate an increased land base include special allowances for spreading on fields with steep slopes, and planning to reduce high phosphorus levels. Spreading on any fields with karst features or depth to bedrock of less than 24 inches should also be restricted, in accordance with state law, but this cannot be accomplished without a thorough study for karst features.
- Formal support of citizen monitoring programs by DNR with a commitment to provide staff time and resources for training and lab testing. Baseline well and runoff data has been collected and a comprehensive program is now being put in place by neighbors and CSP for continuing this monitoring around the facility, as well as for permit compliance, should a permit be approved by DNR.
Supporting information and detailed recommendations
- No action will apparently be taken before permit issuance on the applicant's failure to respond over a period of eight months to the DNR's "Unfavorable Opinion" regarding engineering of August 2009. This was sent by DNR engineering staff due to the facts that the facility was built in 2007 without legally required DNR "plans and specifications" approval and that certain reports were lacking when the application was finally received. CSP questions why the applicant is given until July 1, 2010 to respond and until December 1st, 2010 to comply with any plans for corrections and monitoring that would be developed in response? This facility has been operating since January of 2008 without the WPDES permit required by federal and state law. When citizens called on the DNR to enforce the laws meant to protect the environment from the known risks of factory farm pollution, DNR attorneys responded by asking "Where is the environmental harm?" DNR should ask itself, "Who would know if harm is taking place? Why are citizens expected to prove this? And is not this the job of the Department? And further, where is the deterrent to future applicants who choose to ignore the law?" DNR has required no response from Roth to prove the facility meets engineering requirements before issuance of their permit. And so the threats posed by this facility operating with no regulation for over two years is compounded by the risk to groundwater from a potential engineering failure. In addition, this delay ensures any remediation and "monitoring and inspection" program for the storage structures is not submitted as part of the permit, giving the public no opportunity to comment on the specifics or suggest changes as part of the permit process. The Department should deal directly with this lingering problem by requiring immediate remediation of any engineering shortfalls or monitoring wells if remediation is not possible. The monitoring results should be tied to triggers for specific actions to stop leakage should groundwater contamination be detected.
Further, the "Abandonment Plan" for existing manure lagoons and buildings that have been shown to have contaminated soil and possibly groundwater near the farm was not included as part of this application . This plan was part of the discussion surrounding the Crawford County Livestock Facility Siting license, which was granted with the understanding that a phased abandonment would be completed within five years as part of the WPDES permit. These structures sit within fifty feet of the well on the property and even after their removal structures will still be less than the 100 foot setback required by NR 243. This well was not tested as part of the WPDES permit process but the nearest neighboring well down stream of the Roth facility already has tested high for nitrate at 15 ppm. The delay on this is unacceptable as it puts both ground and surface water at further risk. Steps should be taken to determine if the well on the site is contaminated and to ensure immediate remediation and determine if further contamination has occurred to neighboring wells. The Abandonment Plan should also be required and approved before DNR issues any permit.
- Fully half of the very limited acreage used for spreading at this facility is located in the eroded upland fields atop fractured 400 foot karsted limestone bluffs along the Wisconsin River. The Kickapoo Caverns, one of the largest natural caves in the Midwest, is just a few miles down-river in the same bluff. The permit drafter indicated verbally that a geology inspection was done by a DNR geologist as part of the Environmental Assessment, but this was not included in the EA. In response to concerns voiced by professional geologists, the DNR referred to “procedures in the Roth NMP for field verification of bedrock depth prior to manure applications to those areas of field that may have karst bedrock with 24 inches of surface” on only two small fields of 40. The owner testified at the hearing that he had looked at these fields and found no depth to bedrock less than 24 inches and would continue to spread these fields at the normal rate. What was the basis for this determination? Do these voluntary procedures adequately protect the groundwater under this porous bedrock?
- Citizens have raised concerns that the 180 acres of land in the NMP for spreading liquid waste is inadequate, in that it is only approximately one tenth the land area normally required for a facility of this size. This concern is heightened by the fact that fields used for spreading are immediately next to the scenic Wisconsin River and Boydtown Creek, a Class I trout stream. The DNR’s response to these concerns treated the SNAP Plus calculations as dispositive on the question of the adequacy of land for spreading. However, the NMP includes numerous complex special requirements, dubious retesting of soils, questionable nutrient values and other dispensations in order to shoe horn this facility to fit the standards of NR 243 and NRCS Standard 590. Given the fact that no on-site water monitoring is being required by DNR, what assurance does the public have that the "Outstanding" and "Impaired" resource waters of the state that receive runoff from this facility will be protected from additional pollution as required by the federal Clean Water Act? This lack of monitoring is also of concern when considering that compliance is almost entirely voluntary. Roth's voluntary legal compliance record has been put seriously in question by his disregard for DNR regulations during this permitting process as well as past documented DNR violations at facilities operated by the family. The DNR has the authority and the responsibility to monitor waters of the state and should assist citizen efforts now underway to monitor runoff to Boydtown Creek and the Wisconsin River. It is DNR’s responsibility to ensure compliance with Clean Water Act, test the effectiveness of the Snap Plus program, and ensure compliance with NRCS Standard 590 and other NMP requirements.
Finally, in response to earlier concerns raised by citizens the DNR has stated that they do not have regulatory authority to require monitoring and other changes to the NMP at the Roth facility. To the contrary, NR 243 specifically states that they do under the conditions outlined below. CSP believes the concerns outlined above indicate this facility meets the conditions highlighted below from the statute:
NR 243-14 (10) ADDITIONAL RESTRICTIONS. The department may require the permittee to implement practices in addition to or that are more stringent than the requirements specified in this section when necessary to prevent exceedances of groundwater quality standards, prevent impairments of wetland functional values, prevent runoff of manure or process wastewater during dry weather conditions or to address previous manure or process wastewater runoff events or discharges from a site to waters of the state that occurred despite compliance with this section and the conditions of a WPDES permit. These conditions may include additional restrictions on nitrogen and phosphorus loadings or other nutrients and pollutants associated with the manure or process wastewater, injection or incorporation requirements, restrictions on winter landspreading, distribution schedules, and other management or site restrictions. The department may also consider nutrient management conditions contained in ch. ATCP 50 as well as the following site−specific factors when developing permit conditions or reviewing and approving the nutrient management plan or any proposed amendments to an approved nutrient management plan: (a) Soil limitations such as permeability, infiltration rate, drainage class and flooding hazard.
(b) Volume and water content of the waste material.
(c) Available storage capacity and method of application.
(d) Nutrient requirements of the crop or crops to be grown on the fields utilizing the manure.
(e) The presence of subsurface drainage systems.
(f) Potential impacts to waters identified as source water protection areas.
(g) Potential impact to groundwater in areas with direct conduits to groundwater, shallow soils over bedrock, highly permeable soils and shallow depth to groundwater.
History: CR 05−075: cr. Register April 2007 No. 616, eff. 7−1−07.
NR243-15(7) GROUNDWATER MONITORING. The department may require the installation of groundwater monitoring wells in the vicinity of manure storage facilities, runoff control systems, permanent spray irrigation systems and other treatment systems where the department determines monitoring is necessary to evaluate impacts to groundwater and geologic or construction conditions warrant monitoring. If a groundwater monitoring system is required, plans and specifications for a monitoring system shall be submitted and the system shall, at a minimum, be designed, constructed and monitored in accordance with chs. NR 140 and 141 and s. NR 214.21
Thank you for considering these comments. Respectfully submitted,
Edie Ehlert, Crawford Stewardship Project Coordinator
Jennifer Nelson, Chair CSP Government/Legal Affairs Committee