Nebraska DEQ on the Verdigre Creek:

In response to a request by deaddrift.com the NDEQ agreed to answer questions about the permitting of the expansion of a dairy on the East Verdigre Creek in Northeast Nebraska.

The purpose of our inquiry was to examine issues not fully explained in the press coverage and hearings regarding the controversial mega dairy located on one of Nebraska’s few cold water Class “A” trout streams.

After we have an opportunity to review the response from the DEQ we will publish a summary.

We would like to thank the NDEQ for taking the time to respond to our request and their willingness to allow us to publish their comments.

1. Does the Royal View Ranch LLC permit have to be stamped by a licensed engineer in Nebraska?

No, it is a new Class I facility, so the permit application does not need to be stamped by a licensed engineer. (The application was submitted under the name TeVelde, and DEQ has not received a request to change the name.)

2. DEQ’s original view was that they have only limited authority and that LB822 doesn’t give them the authority to deny the permit to Royal View Ranch LLC. Is this still the position of the agency?

Yes.

3. Has the agency considered other aspects of their general regulatory authority that could be used to deny the permit on the basis of protecting the environment and preventing disaster at the state-owned fishery {i.e. protecting public trust and public investment-tax dollars}?

DEQ does have general regulatory authority that could be used in situations where we believe a threat exists or a facility potentially threatens to impact waters of the state. We have not determined that this threat exists at this proposed facility.

4. Who is financially responsible for closure of the lagoon and what is the estimated cost of closure of this operation in the event that the dairy owners leave the site in the future?

The owner and operator of a livestock operation are always responsible for any actions or activities at the site, including closing the site and any necessary cleanup. They are not currently required to estimate costs of closure, but this issue is being evaluated by DEQ as a possible component of financial assurance requirements.

5. Will the public have the opportunity to comment on the closure of the facility before implementing any closure plan developed by the TeVeldes and assumably approved by the DEQ?

No. The closure plan is required by Title 130 - Rules and Regulations Pertaining to Livestock Waste Control, and is included in the permit application. It receives extensive review as part of the application. Should it be implemented, the current regulations do not require a public comment period.

6. What methods were taken by the DEQ to determine all pollutants in the wastewater regulated? If only nutrients are monitored, then how can the agency contend that they are protecting water quality standards in the CAFO permitting program without also looking at obvious pollutants of Total Dissolved Solids, Biochemical Oxygen Demand, enteric pathogens, undigested medicines, metals, etc.?

DEQ’s livestock waste control facility program is soundly based on commonly accepted methods for storage and handling of farm animal wastes. Nitrogen in the form of nitrate has been identified as a primary concern for ground water with respect to livestock wastes. The department does not have ground water standards for total dissolved solids, biochemical oxygen demand, enteric pathogens, and undigested medicines. Surface water standards exist for conductivity, dissolved oxygen, and fecal coliform, but livestock waste control facilities are non-discharging facilities, and thus, not expected to impact surface waters.

7. What are the expected transport and fate of each of the pollutants and are they pollutants of surface water, ground water or both? i.e. BOD, TDS, pathogens and metals – also nitrogen and phosphorous compounds.

The question implies that movement to ground water or surface water of the items identified is inevitable. This is not the case.

Should leakage occur, some constituents of livestock wastes are potential pollutants of surface or ground water. The transport and fate of these pollutants, in general, as they encounter both ground water and surface water, is to flow with the water, at generally the same velocity and in the same general direction as the water. There is a tendency for pollutants to disperse in water, just as food coloring does in a glass of water.

Some pollutants tend to “tie up” in sediments. This is because chemicals and even pathogens have a charge that attracts to oppositely charged soil particles. In ground water, ammonia and phosphorous tie up or bind to soil and sediments. Nitrate flows with ground water, at about the same velocity. Pathogens can tie up in soil or be slowed because they are bigger than the pore spaces in the soil or sediments.

Nitrogen (nitrate) and concentrations of other constituents in animal wastes tend to decline with time, depending on lack or presence of oxygen, exposure to sunlight, dilution, time of year, and other factors including transport, storage, and handling practices. Additionally, naturally occurring bacteria can “eat” some of the pollutants and cause them to change forms - ammonia denitrifies to nitrate, for example. Pathogens can die off due to lack of food, oxygen, or other critical life requirements.

8. Who bears the financial responsibility for clean up in case of contamination to the ground water?

See answer to #4.

9. If the TeVeldes do not take responsibility for clean up in case of contamination, what recourse do well water users have to insure that they have a safe drinking water supply?

Well water users should consult with their own attorney to determine what recourse they have under state law.

10. Is the DEQ subject to civil lawsuit if it is determined that due to their weak attempt to protect water quality that contamination occurred and the water supply was ruined?

Please consult with your own attorney to determine your legal rights and options.

11. Who bears the financial responsibility for clean up when the lagoon and all waste is retired?

See answer to #4.

12. We request a copy of the Implementation Plan you are using to insure that the state and federal water quality standards will be complied with in the CAFO permitting program.

There is no requirement for DEQ to develop an “Implementation Plan,” and no such plan exists. Title 130 (Rules and Regulations Pertaining to Livestock Waste Control) requirements are designed to ensure that water quality standards will be complied with.

13. Explain in detail how the DEQ staff has investigated the transport and fate of subsurface pollution originating with the allowable seepage from the lagoon into the shallow ground water system and follow the transport path to the spring located west of the lagoon that feeds into the Class A trout stream. Include published journal articles, academic treatise, and the like to prove that the seepage will not enter the ground water and if it did would never reach the spring.

This request would require research and extensive staff time to compile the requested document. This we are not able to do, but the following explanation of our application review is offered.

All livestock waste control facilities are reviewed for ground water monitoring requirements and all are done in the same manner. This review does not include transport and fate studies. When conducting a ground water review, we do not take into account the engineering aspects of lagoon liner materials or method of construction, type or number of animals, or the livestock operation management practices. We look strictly at the vulnerability of the ground water at that particular location.

The major components of our vulnerability review are depth to water, type of sediments between the surface and the water table, use of the ground water locally for private or public drinking water, use of irrigation in the area, and other local conditions that might be present. We use information that is available from the operation application, geologic logs from University of Nebraska Conservation and Survey Division test holes, records of registered wells, county soil surveys, any published reports, and other pertinent local information.

DEQ has never stated that livestock waste control facilities will not seep. The required ground water monitoring wells will not prevent ground water from being impacted, but would allow DEQ and the livestock operation to quickly take steps to correct any problems, should they occur.

14. Does the DEQ believe contamination will reach the creek from long-term seepage of the lagoon? If so, how long will it take for contamination to reach the creek?

The ground water may or may not become contaminated (see response to question #7). If seepage in fact occurs over the long term, ground water located beneath the lagoon at the TeVelde dairy could take anywhere from approximately 11 to 54 years to reach the creek, assuming that ground water flows directly from the area of the lagoon towards the creek. The University of Nebraska 1979 water table map indicates regional ground water flow is more to the north and west, rather than directly west, indicating a longer travel time. This is an approximate estimation because site-specific hydrogeologic information is not available. Additionally, this time-of-travel estimation does not take into account the distance seepage must travel between the bottom of the lagoon and the water table (approximately 40-50 feet).

15. What is the estimated mass of each pollutant that will be allowed to enter the subsurface in seepage for each year of operation and for the expected design life of 20 years?

DEQ does not make mass seepage estimates for contaminants from livestock waste control facilities. Permit requirements are based on a maximum seepage rate requirement established in regulation. The amount of seepage can vary depending on a number of factors including the level of compaction for an earthen structure, biological sealing from the waste, varying liquid levels in the structure, and confining layers beneath the structure. Constituents of any seepage may vary with distance from the facility. There is limited current research relative to seepage from livestock waste control facilities and potential impacts to ground water. DEQ has funded a research study, which is underway, to help evaluate these concerns. DEQ has also required ground water monitoring on a variety of livestock waste control facilities in the past two years (including the TeVelde site). This information will help the department evaluate a variety of types of facilities and operations.

16. Has the DEQ determined that the ground water does flow or does not flow towards the creek?

Ground water certainly does flow toward the creek, but at what angle or how fast is unknown. The UNL 1979 water table map (regional) shows ground water flowing toward the north and west. The ground surface slopes toward the creek in the vicinity of the dairy, so ground water may flow that way as well. Without site-specific information (on-site monitoring wells or water level measurements) this cannot be determined. It is up to the livestock operator and his consultant to determine local ground water flow conditions prior to siting the permanent monitoring wells that DEQ has required at the site.

17. Is there any test to determine if the lagoon seepage is more than estimated?

Yes. One optional method for existing facilities is the mass balance approach. Standardized sampling and testing methods are used with this approach, but all evaluation methods have drawbacks and advantages. DEQ has developed a guidance document for evaluating existing facilities.

All newly permitted livestock waste control facilities with earthen storage structures are required to be tested to verify that the maximum allowable seepage limits are not exceeded.

18. Is there a new transfer form that the dairy had to fill out?

The owner or operator is required to notify DEQ when there has been a change in ownership of a livestock waste control facility. This is required so that the department can review information concerning the new ownership to determine whether the new owner(s) is considered a “bad actor.” A name change or legal status change does not, by itself, require the owner to notify the department. We do ask that a current Applicant Disclosure and Certification form be submitted prior to the department issuing or modifying a permit if information on that form has changed.

19. What kind of soil has been determined to be under the lagoon?

Soils at the TeVelde site are:

TfB Thurman fine sand, 3-6% slopes

BpB Boelus loamy fine sand, 0-3% slopes

NoC Nora silt loam, 2-6% slopes

Unsaturated sediments below the dairy are not specifically known, but may be similar to those found in the UNL test hole about 1/2 mile north (drilled 1957). These sediments include (from the ground surface down) about 36 feet of silt, 10 feet of sand, or sand and gravel, and another 6 feet of silt above the water table.

20. How many subsurface borings were made to determine the depth and expanse of any “clay materials” and what types of soil tests were made on this material to ensure that it is clay and not silt?

Preliminary borings were not required. However, the application submitted for the TeVelde dairy included borings and a laboratory analysis. The laboratory analysis referenced specific ASTM test methods and identified the material as “light brown, lean clay with sand.” It also included soil classification properties along with construction parameters to meet the minimum seepage requirement.

21. Is seepage of the lagoon in the engineering design? At what rate per day will the seepage leach into the local water table?

As noted in the response to question #20, a preliminary test was conducted. The liner will be tested following construction to ensure a maximum of 1/4 inch/day seepage is present. The actual amount of seepage will vary as explained in response to question #15. But in no case can it be greater than 1/4 inch/day.

22. How common are transfers since the TeVeldes have changed the name of their operation from Summerhill Dairy to Royal View Ranch LLC?

Title 130, Chapter 6 allows the transfer of a construction or operating permit to another person, so long as certain conditions are met and necessary information is provided to DEQ. The department does not maintain a list of such transfers, but it is not uncommon to transfer an operating permit and, less often, a construction permit. If ownership does not change, a name change would not be considered a permit transfer. (Also see response to question #1.)

23. Is this lagoon design the only available design for this site? Is it the safest design available for this site in an environmentally sensitive area?

No, there are other lagoon designs, as well as other types of waste control facilities. We review all applications to ensure that what is proposed will be protective of the environment. We feel that if the proposed facility is maintained correctly, it is a safe design for this area.

24. Is the DEQ aware of any other confined animal feeding operations in the West or East Verdigre watershed that have sought a permit in the past year?

Yes, two Class I operations have sought permits in the Verdigre watershed recently. Cedar Hill swine operation obtained an operating permit in June 1999, and a construction permit was issued to O&W Dairy in May 2000.

25. Does the DEQ have any solutions to the fears of ground water contamination?

It is probably impossible to allay all fears of ground water contamination. The department feels confident that we have evaluated the proposed system thoroughly and if the proposed facility is maintained correctly, it is a safe design for this area. In addition, we have required the operation to install monitoring wells.

26. Does the DEQ feel there is any threat to the drinking water from those who live downstream or those who have a shallow well or spring for their water supply?

No

27. Why, if Nebraska has only so few class A cold water streams, was the last time DEQ sampled in 1989? Shouldn’t sampling take place once a year? Or more?

Nebraska has a limited budget for surface water monitoring and existing funds have generally been targeted in areas where water quality problems are suspected or known to exist. Cold water class A streams generally have some of the highest water quality in the state and therefore haven’t been targeted in our monitoring program unless they are designated for primary contact recreation (swimming, canoeing, water skiing, and similar activities).

Cold water class A streams are included in the pool of perennial streams in the state that have been randomly selected for sampling by our biological monitoring program. However, only a small percentage of cold water class A streams are selected for sampling using this approach.

DEQ’s Surface Water Unit has applied for and received several new grants from EPA in the last two years to enhance water quality monitoring programs; additional funds were also received from the Legislature in 1999 for enhancing monitoring. We recently received permission to implement an ambient fixed-site monitoring network that will target cold water class A streams as one of its components. The proposed network will include a chemical and biological sampling site on the East Branch Verdigre Creek near Royal.

28. How many monitoring wells are located at the Royal View Ranch LLC?

Three wells are proposed in the ground water monitoring plan. There is the potential for requiring additional wells depending on the outcome of our determination of the local ground water gradient.

29. Does the DEQ have to monitor the wells at any time in the future?

No, DEQ generally does not conduct monitoring, but we have the authority at any time to collect a split sample, or to collect our own samples.

30. Do the owners of the Royal View Dairy LLC have to monitor the wells at any time?

The monitoring wells are to be sampled twice yearly, in the spring and fall, by “ a qualified person” (Title 130, Chapter 13, 005.02A). Regardless of who is collecting samples, they must be certified to collect ground water samples by the Nebraska Department of Health and Human Services.

31. If the wells are not monitored what are the reasons the wells are required?

The wells are required to be monitored.

32. Where do I go to find the water quality standards that apply to the proposed dairy?

Ground water standards are found in Title 118 - Ground Water Quality Standards and Use Classification, and surface water standards are found in Title 117 - Nebraska Surface Water Quality Standards. Both of these regulations are available on our web site (www.deq.state.ne.us) or you can request paper copies by calling (877) 253-2603.

33. Are any federal water quality standards involved in this proposed dairy?

State water quality standards apply. Technically, there are no federal water quality standards. Water quality standards must be proposed and promulgated within each state; these standards are then subject to EPA review and approval. However, EPA can choose to promulgate additional criteria in state standards, as they deem necessary, if states fail to address pollutants of concern. State standards for surface waters are generally derived from or identical to the criteria recommended by EPA.

34. Do any water quality standards apply to this proposed dairy? What protection has DEQ shown to these water quality standards?

(Part 1) See answers to #33 and #32.

(Part 2) Refer to answers for #25, 28, and 30.

If ground water monitoring at the site indicates a valid statistical increase over background (naturally occurring) levels, the TeVeldes would be required to correct the problem. Ground water monitoring will ensure that the situation described in question 34 will not occur. Ground water monitoring wells will not prevent ground water from being impacted, but would allow DEQ and the livestock operation to quickly take steps to correct any problems, should they occur.

35. Are most of the problems engineering or hydrogeology in determining the safety of a clay lined lagoon?

In determining the safety of a clay-lined lagoon, engineering factors are used in determining adequate compaction of the liner. Soil mechanics are important in determining the hydraulic conductivity of clay-lined structures. Hydrogeology is used in evaluating ground water concerns and ground water monitoring plans.

36. May I request all memos from within DEQ that are public record re: TeVelde or Summerhill, or Royal View Ranch LLC? How may I obtain them?

All of the DEQ’s public records are available for viewing and copying. To have records copied, or to set up an appointment to view our information about this facility or any other facility or information we have, contact our records management unit at (402) 471-3557 or 877-253-2603.

37. When closing a facility such as this dairy are you considering all pollutants of concern?

Title 130, Rules and Regulations Pertaining to Livestock Waste Control, Chapter 3, Section 001.04L, requires the operation to submit a plan to close the facility. The plan should detail the disposition of all accumulated waste, which complies with the requirements of Title 130, Chapter 11. Chapter 11, Section 006.02, states that the waste shall be applied at agronomic rates based upon nitrogen content. (If contamination of ground water has occurred, see answer to question #4.)

In addition, Title 130, Chapter 11, Section 006.03, states that the operation is required to contact NDEQ if the land application area soil samples exceed 150 parts per million (ppm) for soil phosphorus. Based on an evaluation by the department, the operation may be required to modify its Comprehensive Nutrient Management Plan. The department has a guidance document on closure plans available to the public.

38. When paying for the closure are you looking at both the operator and the owner of the waste? When evaluating why closure should take place, are you considering environmental liability with respect to financial institutions which could inadvertently “own” the land and liability?

Under DEQ regulations, both the owner and operator are responsible for the facility. If an owner (including a financial institution) or operator had nothing to do with a release or problem, those facts would be taken into consideration when making a determination on how to proceed.

39. What is the DEQ’s reaction to the opposition of the Nebraska Game and Parks Commission to the proposed dairy?

The Game and Parks Commission comments were taken into consideration, and we did explain to them that the provisions of LB822 did not apply to this facility.

40. What is the agency’s reaction to this quote: “…it’s distressing that DEQ has taken such a fainthearted interpretation of the law. If Nebraskans believe the proper role of the agency is to move aggressively against potential pollution, they cannot help but be disappointed in the agency’s role in the East Verdigre Creek case.” Lincoln Journal Star, Jan. 31, 2000

The Department believes it is following the plain meaning/reading of the law. If the state’s citizens seek more aggressive enforcement, more efforts need to be made by the citizens to make statutory and regulatory changes necessary to give the department more enforcement powers.

41. Does the agency have any comment on this quote by Tom Osborne, in testifying on LB822, said, “Trout are particularly sensitive to any type of runoff. If you have a good trout pond, you have to make sure there isn’t any runoff, no pesticides going in there, or they die… These lands, I believe, would constitute probably no more than one or two percent of the land mass of the state of Nebraska. But it does seem that there are certain areas that are ecologically fitted to raising trout, and we certainly shouldn’t degrade those streams in those areas where this can be done. It seems like there’s enough land mass that we can put these types of confinement operations other places.” Quote from testimony on LB822, the newly enacted Nebraska statute in May of 1999 to protect Class A trout streams.

We agree with Tom Osborne that runoff, particularly from agricultural and urban activities, is potentially significant in terms of water quality. LB822 (the legislative bill on which he was testifying) does restrict the location of facilities in Class A watersheds, but it does not restrict this particular facility.

42. Was another environmental analyses offered that contradicted the findings of Kathy Martin, environmental engineer hired by the opponents of the proposed dairy?

Kathy Martin’s findings were not submitted to DEQ, therefore no response to her claims or conclusions was asked for or prepared. The DEQ analysis of the TeVelde application is available for review (see answer to question #36).

43. Is the DEQ authorized to deny or restrict an application for a permit transfer or modification for an existing permitted livestock waste control facility based upon the potential degradation of a cold water class A stream?

Yes

44. How do you determine whether or not the lagoon is seeping more than the allowable amount?

Earthen structures are required to be tested to verify that the seepage limit has not been exceeded. Subsequent inspections by DEQ provide a visual check on the condition of the livestock waste control facility.

45. Does the DEQ know the actual amount of wastewater that will be generated with the pull-plug system?

Each applicant provides an estimate of wastewater generated. Typically, wastewater use figures are used to compare to the estimates provided by the applicant. Actual wastewater use will depend on day-to-day operations when a facility is in use. A variety of types of waste handling systems are employed by different operations. Some underfloor pit facilities generate very little wastewater while some gutter-flush facilities put a large amount of fresh water into the waste handling system. Some flush systems also recycle wastewater, which significantly reduces the overall volume of wastewater generated when compared to an operation that uses fresh water flush only.

The TeVelde plan is for a recycle flush gutter to the solid separator. The pull plug is in the solid separator, which drains to the storage pit, i.e. this is not like a confinement building where the underfloor pits are pull plug directly to the pit or lagoon. This is not a lagoon system. Consequently, the amount of flush water or the pull plug schedule was not provided. They will most likely pull the plug on the portion of the solids separator that they intend to scrape out next. Note that this is a recycle flush system, so the flushing alone should not add liquid to the system. Also note that under current Title 130 requirements, the DEQ will require an Operation and Maintenance plan and would most likely request more detail about this part of the operation.

46. Does the DEQ know the actual dimensions of the pit under the floor of the barn and how many times a day or week the plug will be pulled?

As noted in question #45, and as detailed in the application, there are no pits under the floor of the barn.

47. How much water will be used to power wash the stalls and the pit when the plug is pulled?

See response to question #45.

48. No question #48 submitted.

49. Will the agency comment on the discretionary questions brought up by Bruce Curtis, attorney for the landowners who oppose the dairy location, in the same article in the Lincoln Journal Star, “It’s an abuse of discretion to have this here at all. How could you have discretion to deny a transfer of an existing permit but not to a new one? I find that invalid.”

The Department believes it is following the plain meaning/reading of the law. State statutes create the DEQ’s authority and the department does not have the ability to arbitrarily modify the law.

50. Renee Hancock, Unit Supervisor for the DEQ on the TeVelde permit, hand write the words, “Class 1=no public notice required.” on a memo dated August 19, 1999. Why was no public notice required?

LB870, effective May 1999, requires public notice to be issued on classes II, III, and IV livestock waste control facility applications once they are deemed complete. There are no public notice requirements for Class I facilities.

51. The editorial in the Lincoln Journal Star on Jan. 31, 2000 states, “State Senator Ed Schrock, who helped write the law (LB822), says that it gives the DEQ authority to ban harmful lagoons. Why is Sen. Schrock, who wrote the bill, incorrect in your view and the decision of the attorney general?

The interpretation of the law by DEQ and the Nebraska Attorney General appear to be different than Sen. Schrock’s interpretation as it relates to Class I facilities. DEQ agrees with Sen. Schrock that we do have powers to ban class II, III, and IV operations from the watersheds of cold water Class A streams.

52. Did the DEQ representative Renee Hancock say “…even if it leaks, it would take 29 years to reach the creek” in the meeting with Dr. Pedersen at the unicameral?

Renee Hancock was not present at the meeting with Dr. Pedersen. A DEQ staff member did speak about the time frame involved should leakage occur. This staff member estimated (with limited information available) that travel time between the lagoon and the creek would be anywhere between 11 and 54 years.

53. Does the agency stand by the statement in the Lincoln Journal Star on Jan. 31, 2000 that quoted Dennis Heitmann, Agriculture Section Supervisor with the DEQ, “There wasn’t anything to indicate to us so far, with proper management and maintenance of the system, it will be a threat.”?

Yes

54. DEQ is required to inspect sites both pre- and post-construction and is supposed to conduct annual unannounced inspections as well, but has been unable to complete some of these tasks in the past. Why is that?

In the past, a lack of sufficient staff in the agriculture program prevented the department from completing some of these tasks. Program priorities previously focused on initial (pre-construction) inspections and complaint investigations.