EPA calls on Iowa to fix CAFO oversight

Jul 20, 2012

The Environmental Protection Agency (EPA) released a preliminary report on Thursday, July 12, outlining several deficiencies in the Iowa Department of Natural Resources’ (IDNR) dealings with confined animal feeding operations (CAFOs). At issue are Iowa’s CAFOs, their alleged discharge of pollutants into nearby waterways, their regulation, and what IDNR is (or isn’t) doing about it.

Following a five-year investigation, the EPA report concluded that while IDNR has made admirable strides in fixing many problems, it still has several “areas of improvement.” Of particular concern were unclear definitions of procedure and jurisdiction related to permitting, a lack of rigor regarding inspections, and inaction on discharge violations.

IDNR’s initial response to the report reiterated a dedication to improving its procedural system, protecting Iowa’s natural resources, and working with “producers on how environmental impacts from livestock operations can be avoided.”

The EPA’s self-described “informal investigation” was conducted in response to a petition submitted in 2007 by the Iowa Citizens for Community Improvement, the Sierra Club and Environmental Integrity Project. The petition sought to withdraw its National Pollution Discharge Elimination System (NPDES) permitting authorization from IDNR on the grounds the group was not fulfilling the requirements of the Clean Water Act (CWA).

In its original form, the petition alleged 31 different violations, complaints, and/or deficiencies in IDNR’s dealing with CAFOs. EPA, IDNR and the petitioning parties have met periodically since the initial petition was submitted. In that time, most of the original allegations have been taken care of, leaving only five issues still needing attention.

The report’s findings requiring action are as follows:

• IDNR is not issuing NPDES permits to CAFOs when appropriate • IDNR has not conducted comprehensive inspections to determine whether unpermitted CA- FOs need NPDES permits

• EPA finds that in a number of cases reviewed (49 percent), IDNR failed to act, or did not follow its enforcement response policy when addressing CWA/NPDES permit violations • IDNR is not assessing adequate penalties against CAFOs

• Land application setbacks are not equivalent to federal requirements and are not included in IDNR-approved nutrient management plans According to the EPA report, the deficiencies found in the IDNR are easily correctable and the report contained a number of possible fixes. Most of the suggestions boil down to recommendations that IDNR clarify their state-wide legal definitions, bring their definitions and inspection programs in line with EPA or federal standards, and be more rigorous in their activities regarding CAFOs.

In its initial response to the report, IDNR indirectly countered several of EPA’s actionable findings, most notably the claim of inaction against CWA violators.

“The DNR also properly investigates and responds to all citizen complaints regarding manure discharges and has required the timely submission and complete record keeping for all nutrient management plans to ensure proper land application of manure.”

IDNR has until mid-September to draft a comprehensive response and action plan. EPA has stated it hopes to have a public comment period following ID- NR’s submission of a plan. In the end, EPA will either deny the original 2007 petition’s request should appropriate corrective steps be made by IDNR, or will continue with procedures to withdraw NPDES authorization from the group.

According to EPA definitions, Iowa has roughly 7,000 CAFOs within its borders. It leads the nation in pork production, but is also home to numerous beef feedlots.

One sticking point between EPA and IDNR seems to be definitions. Earlier statements of Iowa officials have cited the state’s zerodischarge law as being more stringent than CWA, making additional NPDES permitting superfluous. The EPA report, however, questions the relevance of Iowa’s zero-discharge law due to a claimed lack of clarity.

“IDNR has asserted that its non-CWA state law provisions are an outright discharge prohibition that allows the state to meet federal requirements. The state law provisions for confinement feeding operations are not clear enough on their face to enable EPA to conclude that the state’s program meets federal requirements.”

Caitlin Miller, director of government relations at the Iowa Cattlemen’s Association, had a different position when asked about Iowa’s zero-discharge law.

“There are a lot of state regulations that are more stringent than federal regulations, so some of these allegations of the DNR being in noncompliance [with CWA discharge standards] are incorrect.”

EPA wasn’t the only voice in the conversation which pointed to lack of clarity and inaction as an issue. IDNR’s initial response had veiled allegations of the same problems on the other side.

“In 2010, the DNR initiated rulemaking to adopt EPA’s pollution control permitting regulations for CA- FOs that discharge. The DNR hosted public meetings, solicited public comments and was in the process of finalizing its rule when the federal 5th Circuit Court of Appeals vacated portions of the EPA rule. At that time, the DNR vacated its rulemaking to await a revised version of the federal rule. After a year, the DNR is still waiting for a revised version of the federal rule.”

When asked how potential changes to IDNR’s CAFO permitting and inspection process might affect Iowa ranchers, Miller said it was too soon to tell considering IDNR hasn’t had time to draft an official action plan.

“It’s hard to say what the impact will be until these remaining allegations are addressed.”

However, she shared the opinion voiced by the report itself that the deficiencies, where they might exist, would be easy to solve.

“There should just be some operational or procedural changes. It seems to be that they should be easy to fix.”

Despite the call for action the report represented, EPA—both in the report itself and in official statements regarding the report—commended IDNR for its recent actions and the group appreciated the acknowledgement.

“It is important to note that the EPA acknowledges that Iowa DNR has already addressed 26 of the 31 original deficiencies alleged by the petitioners in their original request for review filed in 2007.

“In less than 10 years, Iowa has gone from many uninspected and potentially discharging large open feedlots to DNR having identified and obtained pollution control permits for all large open feedlot CAFOs in Iowa and is on track to inspect 100 percent of these facilities every five years.” — Kerry Halladay, WLJ Editor