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E-M:/ MI CAFO program "seriously lacking" says EPA interim report

Enviro-Mich message from anne.woiwode@sfsierra.sierraclub.org

The US Environmental Protection Agency has issued an interim report 
responding to a petition filed last November by Sierra Club, Michigan 
Environmental Council, the Michigan Land Use Institute, and Larry and Neva 
Bailey, calling for the State Clean Water Act program to be withdrawn as a 
result of failure to properly regulate concentrated animal feeding 
operations (CAFOs).

The EPA states in it cover letter to the petitioners that "we find that 
Michigan NPDES compliance evaluation and enforcement program for CAFOs is 
seriously lacking in several respects.  We also find that Michigan's NPDES 
permit application form and procedures do not provide for the submission of 
applications by CAFOs in accordance with Michigan rules." 

The letter goes on to state "Today we are advising MDEQ Director Harding in 
writing that our findings raise serious concerns that require his personal 
attention to resolve.  We have asked the MDEQ to provide, within 30 days, a 
written description of the actions it has taken or will take to fix these 

The EPA explains that this is an interim report because their review is not 
yet complete because two allegations in the petition need additional 
information.  First, they are seeking "an opinion from the Attorney General 
of Michigan regarding the effect of the Michigan Right-to-Farm Act on 
public participation in the Michigan NPDES program for CAFOs.  We will also 
seek an opinion regarding the right of citizens to participate in the MDEQ 
NPDES enforcement process for CAFOs."

The second allegation is that MDEQ has failed to issue permits to CAFOs, 
and EPA says "we have been unable to fully evaluate the second allegation 
due primarily to the fact that the MDEQ has not been willing to force CAFO 
dischargers to apply for and obtain permits as Michigan rules require."  
The petitioners had pointed out that Michigan's water quality rules define 
concentrated animal feeding operations as point sources and require all 
point sources to get water permits.  EPA also states that they "will act to 
ensure that CAFO dischargers in Michigan actually aply to MDEQ for NPDES 

"When we complete the evaluation and obtain opinions from the Attorney 
Genearl, we will prepare a final report and either deny the petitions or 
recommend that the EPA Administrator review the state's program and 
consider commencing proceedings to withdraw Michigan's approved NPDES 
program," the letter states.

In addition, the EPA "has increased our inspection presence at CAFOs in 
Michigan.  The reasons for this enhanced inspection activity are to: (1) 
improve the quality of information on actual or potential CAFOs that were 
subject to an investigation by the MDEQ or Michigan Department of 
Agriculture under the Michigan Right-to-Farm Act, (2) evaluate, with regard 
to actual or potential effects on water quality, the management of actual 
or potential CAFOs, (3) identify CAFOs that have discharged, are 
discharging, or have the potential to discharge, and (4) detrermine whether 
CAFOs have complied with or failed to comply with the duty under federal 
regulations to apply for a NPDES permit. We intend to maintain this 
inspection presence at CAFOs in Michigan until such time as the MDEQ fixes 
the problems with its NPDES compliance evaluation and enforcement program 
for CAFOs or until we issue a final report, whichever comes sooner."

The interim report itself is entitled "Results of an Informal Investigation 
of The National Pollutant Discharge Elimination System Program for 
Concentrated Animal Feeding Operations in the STate of Michigan, Interim 
Report" and was sent to the Governor, DEQ Director Harding and the 
petitioners for arrival this morning.  The interim report explains both the 
findings and the methods for the investigation conducted, and provides a 
detailed snap shot of what is wrong in Michigan's CAFO program right now.  

A "Summary of Findings" in the interim report notes the following:

"BAsed on information obtained to datea, EPA, Region 5, finds that the 
MDEQ's NPDES program for CAFOs is seriously lacking in several respects.  
As a result, the MDEQ must:

1) Improve its control over CAFOs by:

        (a) identifying the CAFOs that are subject to regulation under 
Michigan's approved NPDES program, and

        (b) determining compliance by CAFOs with the duty to apply for and 
obtain NPDES permits that exists in Rule 323.3106 of Michigan's Part 21 
Administrative Rules for Wastewater Discharge Permits.

2) Establish and begin to implement a program for periodic inspection of 
permitted CAFOs and known by unpermitted CAFOs.

3) Improve its enforcement program with regard to unpermitted discharges by 
CAFOs and the failure of CAFO dischargers to apply for and obtain NPDES 
permits as required by Rule 323.2106 of Michigan's Part 21 Administrative 

4) Improve the way in which it considers and responds to citizen complaints 
alleging, or which may result in a finding of, an unpermitted discharge 
from a CAFO.

5) Revise its NPDES permit application form and procedures so that CAFOs 
apply for NPDES permits as required by Rule 323.2106 of Michigan's Part 21 
Administrative Rules."

Additional responses from the petitioners will be available on Enviro-Mich 
later today.

Anne Woiwode
Sierra Club

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