CAFO Rules (Including for the Bosque)
Former Waco Mayor Linda Ethridge and her supporters were not at all happy with a TCEQ rules proposal [Log 2003-026-321-WT] that addressed concentrated animal feeding operations. Newly installed Mayor Mae Jackson, who was sworn in just last month, had apparently instructed attorney Jack Battle not to formally object to adoption of the rules despite ongoing differences with the Commission regarding its strategy of pushing the details for pollution control into individual permits. Waco has ongoing lawsuits against several dairies and other strategies designed to continue its fight to improve the quality of its drinking water.
The CAFO rules in part respond to the February 12, 2003, EPA final rule for the NPDES permit registration and effluent limitation guidelines and standards for CAFO’s and in part to a recent state law that requires TCEQ to process an application for authorization to construct or operate a CAFO located in the protection zone of a sole-source surface drinking water supply as an application for an individual permit.
Pursuant to the EPA rules, all CAFO’s must have a nutrient management plan by 2006, as well as a correctly sized retention control structure. In addition to requiring individual permits for daily CAFO’s in the Bosque River Watershed, the rules also require each dairy CAFO in the Bosque to develop and operation and management plan for each RCS and to maintain a margin of safety in the RCS’s equivalent to cover runoff and direct precipitation from a 25-year, 10-day rain. The rules allow land application on third-party fields only if they comply with TCEQ’s rules.
Waco had complained loudly about the proposal at agenda in February, claiming that the draft proposal did not address six critical areas identified in the implementation plan for soluble reactive phosphorus for the North Bosque and that the rules failed entirely reflect the work of white papers on RCS’s and waste application fields. The city also demanded specific numeric standards for waste application fields rather than a site-based approach that relies on individual nutrient management plans – but got nowhere. Waco also argued in vain that no runoff should be authorized from any land management unit on which waste or wastewater has been applied beyond the point that actual crop nutrient needs are met.
The city also complained that TCEQ had abdicated its responsibility to control waste and wastewater and left it to the Natural Resource Conservation Service to determine how much waste may be applied at each CAFO operation – again, to no avail. The city also argued that any CAFO in a 303(d) listed segment should have to get an individual permit if the segment is listed for CAFO-generated nutrients or other pollutants, not just after development of a TMDL or implementation plan. TCEQ disagreed.
On another front, Waco insisted that composting does not remove phosphorus and should be restricted in a major sole-source impairment zone. TCEQ declined to alter rule language once again. TCEQ did agreed with several of the city’s proposals for changes, but there remains major disagreement over whether these rules actually postpone implementation of the TMDL for the Bosque or instead are a key step in assisting with its implementation.
The city also claims that the rules continue to authorize discharges from RCS’s, that the rules cannot attain objectives of the TMDL’s because they do not include means to achieve best management practices and assumptions upon with the TMDL’s were based. In Waco’s view, nothing in the rules promotes attainment of the TMDL’s other than conversion to a 25-year, 10-day standard for RCS’s. Even this will not do the job if the SPAW model is used and management practices are not strictly enforced. Moreover, TCEQ should set a flat limit on the number of dairy cows in the region.
Others were just as disappointed in the rules. State senator Todd Staples, state representative Jim McReynolds, the Texas Poultry Federation, and 676 individuals urged TCEQ to allow dry poultry CAFO’s to operate under a general permit. That will not happen under these rules, but TCEQ did promise to consider existing requirements in water quality management plans for incorporation into TCEQ permits.
The Sierra Club claimed the rules will not meet water quality standards in streams where CAFO’s are allowed to discharge wastes, and urged a moratorium on issuance of any new or expanding CAFO impacting streams on the 303(d) list. TCEQ noted that new or expanding CAFO’s must ensure that additional waste retention capacity and land application areas are constructed or available to ensure no additional loading or contribution to the existing impairment – but that there will not be a formal moratorium.
The Office of Public Interest Counsel argued successfully that letters of consent should not be considered acceptable demonstrations of buffer distance compliance with regard to schools or parks. OPIC also wanted liner design and construction standards written into the rule, rather than a licensed Texas professional engineer certify these standards on a case-by-case basis. OPIC also claimed that the air standard permit does not require best available control technology, which includes lagoon covers and disposal using subsurface injection. TCEQ disagreed.
EPA stated that the proposed rules and the phosphorus index appear to be inconsistent, and recommend that regulation prohibit or strongly restrict further land application of manure or wastewater if the soil phosphorus is greater than the critical soil test phosphorus level as listed in the Texas Phosphorus Index.
Various industry groups complained that the requirements for animal feeding operations not designated or defined as CAFO’s are overly prescriptive and burdensome for most smaller AFO operations. TCEQ, however, said the rules were necessary as a method of authorization for AFO’s because the Water Code (section 26.121) does not allow a discharge of agricultural waste without authorization. On the other hand, EPA has already stated that true pasture and rangeland operations are not considered AFO’s.
In other action at the morning agenda on June 23, the Commission approved the rules reviews and readopted 30 TAC Chapter 331, Underground Injection Control [Log 2004-026-331-WS], and 30 TAC Chapter 335, Industrial Solid Waste and Municipal Hazardous Waste [Log 2003-060-335-WS], without changes.
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