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Ag department has violated CAFO permit law, suit says

Some farm math: Researchers at The Ohio State University calculate a 1,400 pound dairy cow “produces” about 25 tons of manure annually.126WatershedFactsKG

Multiply that by, say, 1,000 or more cattle housed in a Concentrated Animal Feeding Operations (CAFO) facility, and you have a lot of manure. And the phosphorus in the manure leaching from farm fields to tributaries of Lake Erie was one of the major concerns expressed by the public to the International Joint Commission as it prepared the Lake Erie Ecosystem Priority report released in 2014.

But it’s not just the volume of manure at CAFOs that worries Larry and Vickie Askins of Bloom Township in Wood County.

A lawsuit they filed in U.S. District Court in Toledo contends the U.S. Environmental Protection Agency and Ohio’s EPA and Ohio Department of Agriculture (ODA) have violated federal law covering permits for the facilities in the state. They also contend the run-off situation in Ohio has deteriorated since the ODA has assumed authority over CAFO permits.

Although Judge David Katz last month denied their request for a preliminary injunction to block the ODA from issuing any more permits for CAFOs without authorization from the U.S. EPA, they remain convinced their case is strong and look forward to a hearing.

126Lake-Erie-Center-3
Lake Erie, directly across the street from the Lake Erie Research Center, Oregon, during the water crisis. (Photo courtesy of
University of Toledo, Lake Erie Center)

According to their suit:
• The U.S. EPA has been aware the ODA has been administering the National Pollutant Discharge Elimination System (NPDES) permit program for CAFOs but hasn’t granted the department authority to do so.

• The federal EPA is the administrator of the Clean Water Act, including NPDES permitting, but states may seek approval to administer parts of the act and the permits. In 1974, the Ohio EPA and U.S. EPA reached agreement, allowing the Ohio EPA to oversee the permit program in the state. Regarding CAFOs, the state EPA regulatory process included a Permit to Install, Permit to Operate/wastewater management plan and an NPDES permit.

• The Ohio EPA administered the permitting program and issued more than 100 permits for CAFOs.

• But a state law went into effect in 2001 that transferred regulatory authority for CAFO permits from the Ohio EPA to the ODA. The ODA and EPA reached agreement in 2002 to transfer the authority but the state didn’t notify the federal EPA until 2006 of the transfer as required by federal law.

• Consequently, the ODA has “knowingly violated” federal law by not getting the federal EPA approval for permits prior to issuing them, the lawsuit states.

Ironically, the Askins attempted to file their lawsuit the day before the water emergency was in effect last August in Toledo, but due to a problem on the court website, it was filed the following Monday.

Vickie Askins said she is especially troubled by what she sees as loopholes in regulations that allow manure to be transported off-site for use as fertilizer on other fields.

“The ODA is supposed to work with CAFO owners and operators to develop manure management plans so the massive amounts of manure generated by the CAFO are properly applied to meet the agronomic needs of the next crop, but that is not happening,” she said.

“Instead, CAFO owners are allowed to elect the distribution and utilization method of manure management for ‘any quantity of manure that is not managed or under the control of the owner or operator,’ ” Askins said, citing Ohio Administrative Code. “This means Ohio CAFOs can circumvent liability for improper manure application by merely transferring manure for land application elsewhere, with little sunshine on what happens after the hand off.”

Dina Pierce, a spokesperson for the Ohio EPA, said the agency wouldn’t comment on the case while it is pending.

“While the law was changed to allow the department of agriculture to assume the CAFO wastewater discharge program (the NPDES permitting), this transfer has not yet occurred. Ohio EPA continues to issue discharge permits for CAFOs. CAFOs are not allowed to discharge wastewater except in certain circumstances and they must have written manure management plans,” Pierce said. “Also, Ohio EPA responds when there is a spill from a CAFO into surface waters. Ohio EPA can take enforcement action for these incidents, if warranted.”

According to figures compiled by the Ohio Lake Erie Task Force, overall cattle numbers are down in the Ohio Lake Erie Basin but dairy cattle inventories show an increase of 39 percent since 2002. “Beginning in the late 1990s, a trend toward construction of large, confined dairy facilities with herds from 650 to 3000 head began to occur. Many new dairies are located in the Lake Erie basin, especially the upper Maumee watershed in Michigan, Indiana, and Ohio. The largest dairy operations, i.e., those with greater than 500 head, handle the bulk of their manure as a liquid. Dairies with more than 700 head are also required (under CAFO rules) to contain and manage storm water runoff from the production area.

“In total, cattle-generated phosphorus was estimated at 5,670 tons in 2007, which is 50 percent of the total Lake Erie basin manure production. Approximately 36.5 percent of all cattle manure generated in the Lake Erie basin (from Ohio, Indiana and Michigan) is generated by producing dairy cows,” the task force report says.

 

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