Kim Snell-Zarcone, staff attorney, agricultural issues, comments Submitted on the NPDES Permit for a CAFO in Straban Township, June 18, 2004

Sean Furjanic
DEP Southcentral Regional Office

909 Elmerton Avenue
Harrisburg, PA 17110

Re: Hillandale Gettysburg, L.P.
Draft NPDES Permit No. 0247138
 Straban Township , Adams County

 

Dear Sean,

 

On behalf of the Concerned Citizens of Straban Township (the "Concerned Citizens"), Citizens for Pennsylvania's Future ("PennFuture") hereby submits for your consideration the following comments concerning the draft individual NPDES permit for Hillandale Gettysburg, L.P. proposed Concentrated Animal Feeding Operation ("CAFO") located in Straban Township, Adams County and referred to as Pine Tree Farm. Pine Tree Farm is proposed to house 1.1 million layers and an egg processing facility. The Concerned Citizens have conducted an extensive review of the draft permit and supporting documents and have the following concerns.

1.       Pine Tree Farm is required to have an NPDES permit under federal and state CAFO regulations.

The Water Quality Protection Report (the "Report") states that the "application was submitted voluntarily under the Department's current CAFO permitting program." However, nothing in the state regulations exempts poultry operations from the regulatory oversight of the Department under the CAFO program. The state CAFO regulations define a CAFO as "a CAO with greater than 300 AEUs, any agricultural operation with greater than 1,000 AEUs or an agricultural operation with a discharge to surface waters during a storm event of less than a 25-year/24-hour storm." 25 Pa. Code § 92.1. Pine Tree Farm is proposed to house 3,369.6 AEUs, thus qualifying the facility as a CAFO. Nothing in the state CAFO regulations specifically exempts poultry operations from the regulatory system. Additionally, Pine Tree Farm is classified as a large CAFO under EPA's regulatory update, 40 C.F.R. § 122.23(b)(4)(xi), effective April 14, 2003. Thus, there is nothing voluntary about this application; the application is required under both federal and state regulation, and the applicant may not operate the facility until it receives an NPDES permit.

2.       Pine Tree Farm has not met the prerequisites for obtaining a CAFO permit under the state regulations.

Pine Tree Farm has failed to meet the prerequisite conditions for obtaining a CAFO permit. The state CAFO regulations require each facility to have a nutrient management plan, an erosion and sediment control plan, and a permit for stormwater discharges associated with construction. 25 Pa. Code § 92.5a(b). Additionally CAFOs with over 1,000 AEUs, such as Pine Tree Farm, are required to obtain a water quality management permit, a preparedness, prevention and contingency plan, and written agreements with importers or brokers. 25 Pa. Code §92.5a(c). It appears that Pine Tree Farm has written agreements with a manure broker and has submitted a preparedness, prevention and contingency plan with its NPDES CAFO permit application. As we explain below, however, it has failed to satisfy the remainder of these prerequisites to obtain an NPDES CAFO permit. The nutrient management plan ("NMP") for the Pine Tree Farm is insufficient to meet the requirements of 25 Pa. Code Chapter 83. Pine Tree Farm does not have an erosion and sediment control plan for agricultural plowing and tilling for the operation. Additionally, the facility does not have the required NPDES permit for discharges associated with construction activities. Finally, the facility has not yet secured the necessary Water Quality Management permits.

A.       Pine Tree Farm does not have a Nutrient Management Plan that satisfies the requirements of Chapter 83.

Pine Tree Farm's NMP was originally approved by the Adams County Conservation District on March 18, 1999. The plan was not altered during its three year review. (Letter dated December 26, 2002 from Bill Rogers to Kelly Koch) However, management practices proposed in the 1999 NMP differ from those proposed by Hillandale Gettysburg, L.P.'s management team in their NPDES CAFO permit application and supporting documents. The Nutrient Management Regulations state that a "plan amendment is required when the operator of a CAO expects to make significant changes in the management of nutrients from those contained in the plan" 25 Pa. Code §83.371(a). The regulations list a number of possible changes in management that would require amendment of a plan, but two seem most relevant.

 

                                                         I.            The Best Management Practices ("BMPs") described in Pine Tree Farm's NMP differ from those proposed in their NPDES application; therefore, Pine Tree Farm must amend its NMP to reflect the actual BMPs anticipated at the facility.

The regulations state that an amendment is needed if a different BMP is proposed to address manure management or stormwater management concerns than that called for in an approved plan. 25 Pa. Code §83.371(a)(5). The 1999 approved NMP states on page 1 that the manure will be temporarily stored in "a manure storage building." It further states that manure will be stored in "this building before a broker removes it." (NMP, page 1) This seems to indicate that manure will be centrally located in one manure storage structure. However, the documents supporting the NPDES application indicate that manure will be stored in the eight individual houses in a covered and enclosed manure storage area at the end of the house. This area is to be completely enclosed and have a filtration barrier to capture particulate matter. Thus the currently proposed BMPs intended to address manure management have changed significantly from those original proposed in the 1999 approved NMP. Because the manure management BMPs have changed significantly, an amended NMP must be approved by the Adams County Conservation District.

 

                                                        II.            The utilization of excess manure proposed in the NPDES permit application differs from that in the NMP; therefore, Pine Tree Farm must amend its NMP to reflect the actual usage of excess manure generated at the facility. This revision must be meaningful and account for the nutrients exported to local farms.

The regulations state that an amendment is required if a change occurs in the utilization of excess manure. 25 Pa. Code § 83.371(a)(3). The approved NMP states that all of the manure produced at Pine Tree Farm will be brokered to the mushroom industry. (NMP, page 3) However, documents supporting the NPDES application indicate that at least some manure may be utilized on local fields, and maybe even by Hillandale. The Report states on page five that, "Hillandale revealed that plans for the brokered manure may change, and some local farms may receive the manure." An addendum to the application indicates that Pine Tree Farm intends to "broker as much manure as possible to the mushroom industry in Chester County ." (Letter dated April 4, 2003 from Bill Rogers to Kelly Koch) Page 3 of the Report states that, "[t]he writer requested that the NMP be updated to indicate that all of the manure may not be shipped to the mushroom industry. Hillandale agreed, and issuance of this permit will be held until an updated NMP is received." It remains unclear whether Pine Tree Farm would export manure directly to local farms or whether it would continue to provide all manure generated to the manure broker, who would in turn sell the manure to the local farmers.

The Report, therefore, seems to indicate that DEP will require, and Hillandale has agreed to, some form of revision to its NMP. The real question then becomes what type of amendment would be sufficient to meet the requirements of the Nutrient Management Act. It would be insufficient for DEP to merely require the excess manure utilization section of the NMP to state that not all manure may be shipped to the mushroom industry. The export loophole has been a serious point of contention between the State Conservation Commission and environmental organizations for some time. If Pine Tree Farm exports manure, the NMP must include a nutrient balance sheet for crops upon which the manure will be utilized (i.e. the fields to which the manure is exported). The NMP exportation balance sheets must account for not only the nitrogen content of the manure, but also the phosphorus content. Adam v. Commonwealth of Pennsylvania , No. 2002-189 MG ( Pennsylvania Environmental Hearing Board May 12, 2004). This same requirement should exist where Pine Tree Farm exports manure to these same local farms indirectly through a broker. That is to say, Pine Tree Farm should not be allowed to circumvent the requirement to account for manure nutrients exported to local farms by laundering its manure through a broker. DEP should not act upon Pine Tree Farms NPDES CAFO application until it has received an amended NMP that accounts for exported manure nutrients.

 

                                                      III.            Because Pine Tree Farm has agreed to amend its NMP to include certain conditions, DEP should require this amendment to include consideration of the fact that soil additives will be used on the property to grow crops.

The Nutrient Management Act seeks to regulate agricultural operations that both "generate or utilize" animal manure. 3 P.S. §1702(1). Pine Tree Farm is a proposed agricultural operation that will generate animal manure (and may even utilize animal manure, if chicken litter is applied to crops). The regulations promulgated under the Nutrient Management Act contemplate that soil additives other than fertilizer could be utilized on crops. 25 Pa. Code §83.291. These alternative soil additives must also be accounted for in a NMP. 25 Pa. Code § 83.282(a)(2). Pine Tree Farms 1999 approved NMP does not account for the soil additives that will be utilized on crops grown at the operation.

Page three of the 1999 approved NMP states that there are no crops associated with this farm. However, page 4 of the Report states that, "[e]gg washwater will be land applied by tank spreaders to a field of approximately 30 acres on-site according to Hillandale (with secondary fields of approximately 25 acres), located east of the poultry houses on property formerly owned by Musser and recently acquired by Hillandale (see Attachment B). The crops grown on these fields will be grass hay and corn according to Hillandale." Hillandale also proposes to spray irrigate sewage on this same 55 acre tract. Because Hillandale now intends to grow crops on the farm and utilize soil additives such as sewage waste and residual waste, the amended NMP that Hillandale has agreed to submit should include consideration of the soil additives and crops to be grown. Additionally, the egg washwater land application restrictions and monitoring requirements outlined on page 18 of the Report should be included in the new NMP. DEP should not act upon Pine Tree Farm's NPDES CAFO application until it has received an amended NMP that considers the crops to be grown on the property and the soil additive to be utilized.

 

B.       Pine Tree Farm does not have an erosion and sediment control plan that meets the requirements of Chapter 102.

The state CAFO regulations require a regulated facility to have an erosion and sediment control plan meeting the requirements of Chapter 102. 25 Pa. Code § 92.5a(b)(2). An erosion and sediment control plan is required for plowing and tilling operations that disturb more than 5,000 square feet. 25 Pa. Code § 102.4(a)(2). Again, the application contains conflicting information regarding whether crops will be planted and harvested on the Pine Tree Farm property. Page three of the NMP states that there are no crops associated with this farm. However, page four of the Report states that, "[e]gg washwater will be land applied by tank spreaders to a field of approximately 30 acres on-site according to Hillandale (with secondary fields of approximately 25 acres), located east of the poultry houses on property formerly owned by Musser and recently acquired by Hillandale (see Attachment B). The crops grown on these fields will be grass hay and corn according to Hillandale." Assuming that crops will be grown on at least 30 and possibly as much as 55 acres of Hillandale property, the facility will need an erosion and sediment control plan if tilling and plowing practices will be utilized on these fields. The Department must withhold action on this NPDES permit application until Hillandale either demonstrates that it has developed an erosion and sediment control plan that satisfies the requirements of Chapter 102 or demonstrates that no such plan is required for Pine Tree Farm.

 

C.      Pine Tree Farm has not secured the necessary NPDES permit for stormwater discharges associated with construction activities.

Federal NPDES regulations, as implemented in Pennsylvania by DEP, require that stormwater discharges associated with both large (five or more acres) and small (one to less than five acres) construction activities obtain an NPDES permit authorizing such discharges. 40 C.F.R. § 122.26(c)(1); 25 Pa. Code § 92.2(b)(8) (incorporating federal NPDES stormwater discharge regulations by reference). Pine Tree Farm does not have the required erosion and sediment control plan, nor the NPDES permit for stormwater discharges associated with construction activities. Page three of the Report states that "the earth disturbance area according to Hillandale will be approximately 21 acres." Because Pine Tree Farm's earth disturbance associated with construction will be greater than 5,000 square feet, it must develop an approved erosion and sediment control plan meeting the requirements of Chapter 102 before issuance of the NPDES CAFO permit. Similarly, because the proposed earth disturbance is greater than one acre, an NPDES permit for discharges of stormwater associated with construction activities is required before the NPDES CAFO permit can be issued.

 

D.      Pine Tree Farm does not have a water quality management permit for activities associated with field application of sewage and egg washwater.

 

 The Pine Tree Farm operation poses a complicated issue of determining the cumulative effects of disposing of both the facility sewage and egg washwater (and, if applicable, chicken manure) on the same property (the Musser property). Page three of the Report indicates that Hillandale has received sewage planning approval for an on-site spray irrigation system for sewage disposal. A Water Quality Management ("WQM") permit is needed for this activity, which Pine Tree Farm has yet to secure. Additionally, the Report states on page four that egg washwater will be land applied by truck to the same land area. The Report continues that no WQM permit is necessary for this activity because "Hillandale selected to apply by truck to avoid the permitting process." (Report, p. 4) The Department has taken the position that Hillandale qualifies for a permit exemption under the residual waste regulations when applying the washwater by truck.

 

Even if land application of the egg washwater does not require a second permit, the Concerned Citizens are worried about the cumulative impacts that could result from applying both sewage and egg washwater to the same fields. There is no indication in Chapter 8 of the Food Processing Residuals Management Manual ("Recycling FPRs as Soil Conditioners or Fertilizers") that the Manual contemplates the beneficial use of FPRs on sites that are also receiving any wastes other than FRPs, such as treated human sewage. In addition, the Manual indicates that FRPs that contain fats and oils, like the mineral oil contained in Hillandale's egg washwater, can reduce the permeability of soils. Neither the Manual nor the Departments Report concerning this permit analyzes whether the Department should permit treated human sewage to be sprayed on fields that also are receiving FRPs containing oils. At some point, however, it is critical for the Department to evaluate the impacts of simultaneously disposing these two waste streams on the same lands in order to carry out its mission of preventing pollution by thoroughly evaluating activities potentially causing pollution. See 35 P.S. §§ 691.401, 691.402; 25 Pa. Code § 91.6. The Concerned Citizens urge the Department to properly analyze the cumulative impacts to the farmland from applying both sewage waste and egg washwater to the same land.

 

Page four of the Report states that detergent, bleach and mineral oil are used to clean the eggs. After a review of the MSDS information, DEP concluded that "it does not appear that there are any chemicals that would pose a concern unless the washwater were to enter surface waters." (Report, page 4) That's a big "unless," and the Report contains no assessment of the probability that none of the washwater will find its way into nearby surface waters. By itself, the proximity of streams and wetlands to the receiving lands makes it likely that some washwater will enter them. Additionally, pollution resulting from mis-management of washwater is more likely given that such a pollution event occurred at a stream adjacent to Site 2. This pollution event resulted in a fish kill, and Hillandale was fined by both the PA Fish & Boat Commission and the PA DEP. (Report, page 10) Given the compliance history of Hillandale, it is not only possible that washwater may enter surface waters; it is likely.

 

The Department has not yet considered what the maximum rates should be for the washwater applications. Page 17 of the Report contains a blank space where the maximum application rate should be noted. This indicates that the Department has failed to analyze the holding capacity of the soil, in addition to the nutrient needs of the crops and that contained in the soil additives. The Department should analyze these issues, along with the issue of cumulative effects of co-disposal of human waste and egg washwater, in reviewing Hillandales application for a WQM permit for the spray irrigation system. Before the Department issues that permit or the NPDES CAFO permit, it must determine that local surface waters will not be threatened by using the same lands for both kinds of wastes.

 

3.       Pine Tree Farm is currently violating conditions of its General Permit No. 5 Utility Line Stream Crossing permit. Pine Tree Farm was granted a General Permit No. 5 on March 26, 2003. Authorization to operate under this permit comes in the form of the Pennsylvania State Programmatic General Permit (PASPGP-2). The PASPGP-2 requires the permitee to complete a compliance certificate upon completion of all permitted work, or within one year. Although this work might not be complete, one year has clearly passed since the permit was issued. The Concerned Citizens were unable to locate a PASPGP-2 Permit Compliance, Self-Certification Form in the DEP files to which they were given access. Since such a record would be a public document, the Concerned Citizens can only assume that Pine Tree Farm has not submitted the Permit Compliance, Self-Certification Form. Because Pine Tree Farm has not submitted the Form, as required under their permit conditions, they are in violation of their PASPGP-2 permit. Pursuant to Section 609 of the Clean Streams Law, DEP shall not issue an NPDES permit if the applicant has shown a lack of ability or intention to comply with the law as indicated by past or continuing violations. 35 P.S. § 691.609(2). Since Pine Tree Farm is currently in violation of a Department issued permit, it would be inappropriate for DEP to grant Pine Tree Farm an NPDES CAFO permit.

 

4.       DEP should require groundwater monitoring at Pine Tree Farm as a condition of the NPDES CAFO permit.

 

Although DEP has required Pine Tree Farm to complete pump tests to ensure that the water supply is not depleted, the draft permit does not go far enough to ensure the quality of the groundwater is not compromised. On April 17, 2004, DEP issued a Public Water Supply Permit (No. 0103511) for one of the Hillandale operations in Tyrone Township. This permit is for the installation of a nitrate removal system. The nitrate pollution is arguably occurring due to the poultry production facilities and associated activities. The Pine Tree Farm operation is similar in type to those located in Tyrone Township, per the Report. It is also unclear whether manure will be spread on the Pine Tree Farm or former Musser properties. Thus, the likelihood of nitrate levels reaching unsafe levels in the groundwater is a possibility at the Pine Tree Farm location. For this reason, the Department should require groundwater monitoring at Pine Tree Farm as a permit condition.

 

Respectfully submitted,

 

Kimberly L. Snell-Zarcone, Esquire
Staff Attorney, Agricultural Issues  


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