OMAHA (DTN) -- Though Iowa has a zero-discharge law for confined animal feeding operations, three environmental groups point to the state's record on waste discharges as reason to let the Environmental Protection Agency permit those lots.

The Environmental Integrity Project, Iowa Citizens for Community Improvement and the Iowa Chapter of the Sierra Club asked EPA to implement a National Pollutant Discharge Elimination System permitting program for Iowa CAFOs or face a lawsuit, according to a letter sent to EPA Administrator Lisa Jackson Aug. 18.

The groups are prepared to charge that EPA's delay in responding to the groups' 2007 petition calling for these NPDES permits is "unreasonable." Since that petition, EPA has responded to similar concerns in Illinois.

Environmental groups made a similar request in Illinois in 2008. EPA later agreed that CAFOs in that state needed NPDES permits and a permitting program is being implemented.

Iowa state officials maintain their state's zero-discharge law is more stringent than any federal regulations, making NPDES permits unnecessary.

Iowa's state permit program is centered on open feedlots. The environmental groups' 2007 petition asked EPA to review the state's operation of confined lots to see if it meets minimum federal requirements and to take action if it doesn't.

Taking control of a state permitting program would not be unprecedented. In recent years EPA took over power plant permitting in Texas as a result of concerns that the state wasn't addressing requirements in the Clean Air Act.

Illegal Discharges Ongoing

Tarah Heinzen, attorney for the Environmental Integrity Project based in Washington, D.C., said the Iowa law isn't preventing illegal discharges from CAFOs into state waterways.

As of June, the state had levied about $1.8 million in penalties and restitution on 310 illegal discharges since 1992, according to Iowa Department of Natural Resources records. Those discharges resulted in millions of fish killed and are just the releases from confined operations for which companies have been penalized, Heinzen said.

Many discharges come about from over-application of manure on saturated cropland, as well as indirect discharges of polluted water through drainage ditches or tile lines.

"These discharges are harder to document than a catastrophic spill from a broken pipe or overflowing lagoon," she said. "Iowa has thousands of hog and poultry confinements, and they are not required to monitor water quality up- and down-stream of their operations."

Original Petition

In addition to requiring NPDES permits, environmental groups say having EPA enforce standards of the Clean Water Act would lead to heavier fines. The CWA allows for penalties of up to $32,500 per violation per day. According to the state, the single-largest penalty levied against a CAFO in Iowa was $125,000 in a 1998/1999 case.

According to IDNR records, most discharges are accidental, due to incidents such as equipment failure or forgetting to turn a pump off. Some discharges are due to issues such as a holding basin not having enough storage capacity when rain hits. Some, though, are intentional, such as when someone pumps down large amounts of waste water because it had been too long since the containment area was emptied.

Kevin Baskins, communications bureau chief for the IDNR, said recent court decisions have left the state in limbo.

"The bottom line is that the EPA definitions of which CAFOs would be required to have NPDES permits has been vacated by a federal circuit court (Fifth Circuit)," he said.

"Since we don't know what the federal rules are, it makes it difficult to issue a permit. This has been a long discussion over the years with EPA about the need to have discharge permits if the facilities are not allowed to discharge in the first place."

State Authority

Heinzen said the state's zero-discharge rule has been ineffective. "This is Iowa DNR's favorite talking point," she said, "but the state's rule simply does not reflect the reality on the ground, and DNR seems to be in denial about that fact."

Implementing a permit program for CAFOs in Iowa, Heinzen said, would require them to follow certain practices that would help prevent spills when storing and applying waste.

"If the CAFO industry were under more scrutiny in Iowa, the cost of polluting would go up, and operators would have more incentive to be more careful and avoid even accidental discharges." As is, she says, state penalties are "rare and insignificant enough that it pays for factory farms to pollute. The state's water quality is not likely to improve."

Though a lawsuit is possible, she said the groups hope EPA will act on this latest request. "We hope EPA will take action similar to its actions in Illinois," Heinzen said, and "issue a thorough response to the petition and develop a plan to bring Iowa into compliance with the Clean Water Act."

Baskins said increasing legal pressure from environmental groups and others has made it challenging for state officials to respond.

"I can't speak for EPA, but I can say that like EPA, it is difficult for us at many times to meet the wishes of so many different groups," he said. "We try very hard within the DNR to listen to the concerns of everyone involved and it is a fact of life that often times when the final decision is made, no one is totally happy because the final decision often makes considerations to multiple sides of an issue."

EPA Region 7 spokesman Kris Lancaster said EPA has been in discussions with various groups since the 2007 petition.

"However, the details of these discussions cannot be disclosed as they involve matters that are the subject of potential litigation," Lancaster said.

Todd Neeley can be reached at todd.neeley@telventdtn.com.

(GH/CZ/SK)

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