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ACTION: Help preserve public input on CAFOs

by: desmoinesdem

Mon Aug 03, 2009 at 14:02:58 PM CDT

The state Environmental Protection Commission (EPC) is considering new rules that would limit public input during the permit approval process for confined animal feeding operations (CAFOs) in Iowa. Up to now, members of the public have been able to speak before the EPC concerning proposed new CAFOs. Under the new rules, only representatives of the entity applying for the permit, the county board of supervisors, and the Department of Natural Resources would be able to speak at EPC hearings on CAFO permits. People and entities that might be affected by downstream or downwind pollution from the proposed CAFO would not be allowed to speak at such hearings.

The public can submit comments on the new rule through this Thursday, August 6.

After the jump I've posted action alerts sent out by 1000 Friends of Iowa and Iowa Citizens for Community Improvement. They contain some talking points for public comments and contact information for the Iowa Department of Natural Resources. Iowa CCI also mentions two points worth preserving in the new rule, which industrial agriculture interests are apparently trying to have removed.

Comments must be received by Thursday, so if you are using the regular mail, please send your letter as soon as possible. There are also three DNR public hearings this week in Spencer, Des Moines and Ainsworth (details below).

I've also posted two pieces containing further background information after the jump. These may help you prepare comments to submit to the DNR. Shearon Elderkin discusses a controversial EPC decision last summer, which prompted the rewriting of the rules on the CAFO permit application process. Elderkin served on the EPC from August 2008 through April 2009. She had to step down when Iowa Senate Republicans blocked her confirmation for the position.

The final document you can find below is by Cedar Rapids attorney David Elderkin, Shearon's husband. He covers the legal issues at hand in more detail.

Please take a few minutes to submit a public comment on this issue by Thursday, August 6. Please forward to any friends or relatives in Iowa who might be willing to comment as well.

desmoinesdem :: ACTION: Help preserve public input on CAFOs
Action alert from 1000 Friends of Iowa:

The Environmental Protection Commission (EPC) Rule Changes Restrict Public Input on CAFOs

Comment period ends August 6th!

The only thing worse than discussing difficult subjects is for state government to inform Iowans that our opinions are no longer allowed at the table.   That is what happened recently at a rulemaking session of the Environmental Protection Commission (EPC).  The Environmental Protection Commission is an oversight commission of the Iowa Department of Natural Resources (DNR) dealing with air and water quality issues.  This is the commission that is pivotal in approving permits for Confined Animal Feedlot Operations (CAFO).  At the June 2009 meeting discussing the adoption of new rules for the EPC, a last minute amendment that states: "Oral participation before the Commission will be limited....to presentations by representatives from the county board of supervisors, the applicant, and the department."  in reference to CAFO hearings.  This rule will restrict public input and manipulate outcomes by withholding scientific and non-scientific information available from the public and their sources.  A CAFO applicant is not going to raise issues against themselves.  But the citizens, organizations and businesses (downstream, in the watershed or downwind especially) might have some issues to bring forth that the county and the applicant aren't going to bring to the table.  The public should obviously have a right to address controversial issues of public importance.  Sadly, the final vote to accept the amended rules was unanimous.  Why a commission would vote to hamstring itself into a vote seems questionable.  

However, the public is allowed to comment on these rules on or before August 6th.  

Tell the EPC:

   * It needs to add back into the rules the right of the public to appear and present evidence at EPC hearings.
   * They need to delete that portion of the rules restricting consideration by the EPC to those issues specifically raised by the county and applicant.  If it does not, the EPC will have placed itself in the position of having to rubber-stamp approve virtually all CAFO applications coming before it.
   * Our air and water quality, which is provably impaired, will continue to decline by virtue of these flawed rules, which limit the EPC from using all of its powers under Iowa law.

Iowa ranks first in egg, corn, soybean, hog, bio-diesel and ethanol production.  We Iowans are proud of that.  But we aren't quite as comfortable talking about what Iowa gives up to achieve and maintain those rankings in commodity sales.  Nor do we like to discuss what we send into our aquifers or downstream.  Our once pure waters contain 439 waterbodies with a total of 581 impairments. See Iowa's final 2008 list of impaired waters. Yet some try to pretend that our agricultural production should have no boundaries.

If Iowa is to be a sustainable place to live and grow, with the quality of life we desire for future generations, then we must start demanding that our state agencies act in a responsible manner.  Taking away the voice of  Iowa citizens is not acting in a responsible manner, and causes us to question who these rule-makers serve.   Please comment on this issue today!

Make your written suggestions or comments on the proposed amendment on or before August 6, 2009.  Include your name and address.  Written comments should be directed to:

Randy Clark, Iowa Department of Natural Resources
Wallace State Office Building
502 E. 9th Street                        
Des Moines, IA 50319-0034   or E-mail Randy.Clark@dnr.iowa.gov
Fax (515) 281-8895

Action alert from Iowa Citizens for Community Improvement:

Stand up for our Voice!
The Department of Natural Resources (DNR) and the Environmental Protection Commission (EPC) are working to pass new rules that will change the way we handle factory farm appeal hearings. These appeal hearings have traditionally been the last place for community members to have their voices heard and call for a proposed factory farm to be denied.
The EPC has put a rule together out for public comment that they feel will make it easier to look at more information when hearing an appeal - however, in the process they have severely restricted their ability to consider comments made by community members who would be most impacted by their decision!
Public comment for this rule is happening right now! We need you to speak out and stand up for our voice and ability to express our concerns to the EPC. Tell the DNR and EPC that they must include a provision in the rule that would allow them to consider public comment and allow them to ask necessary questions of community members at the hearing!
The new rule isn't all bad - and there are some changes we want to keep too. Currently there are two changes for the better that the industry is fighting hard to stop:
1.) The new rules would allow the EPC to call in a "technical expert" to provide them with more information at a hearing. For example - if there is a concern about water quality, the EPC could request information from the Des Moines Water Works about how polluted a watershed is already. They should have access to all important information in order to make the right decision.
2.) The new rule requires that all the application materials, including the master matrix and manure management plan, be posted online. Factory farm applications are already open to the public - but they are expensive to copy and not easily accessible.
Community members should be able to easily access this information - it shouldn't be hidden away in the county courthouse.
Here's what we need you to do:
1.) Contact DNR Director Rich Leopold and attorney Randy Clark to demand that the community has a voice and access to information! Follow this link to send in your comment before Aug. 6!
Or, you can give them a call -
Rich Leopold: 515-281-5385
Randy Clark: 515-281-8891
Let us know if you give them a call by replying to this email.
2.) Attend a public comment hearing with the DNR
Aug. 4 @ 1pm:                
Clay County Administration Building
300 W. 4th St, Spencer, IA
Aug. 5 @ 1pm:                
Wallace State Office Building - 5th floor E. Conference Room
502 E. 9th St, Des Moines, IA
Aug. 6 @ 1pm:                
Washington County Conservation Board, Education Center-Marr Park
2943 Highway 92, Ainsworth, IA
Take action and submit your comments today!

Excerpt from a background document by Shearon Elderkin, former member of the Environmental Protection Commission (posted with permission):

Hearing for Notice of Intended Acton-Chapter 65 Confinement Feeding Operation Application for Construction Permits

What is the Issue and Why Should You Care?

The population of Iowa is around 3 million while the population of hogs is nearing 20 million.  Hogs produce 4 times the bodily waste material than do humans.  Large numbers of these hogs are raised in Confined Animal Feeding Operations known as CAFO's.  A single unit may hold some 2,500 hogs!  While waste water of humans is strictly controlled in an entirely closed system, the CAFO unit holds the waste material in a huge open 8' concrete vault or open lagoon.  The building, holding the hogs have fans at either end, spreading high levels of ammonia and hydrogen sulfide into the surrounding community.  Without the fans the hogs would die within hours.  The collected waste material is eventually spread as fertilizer on agricultural fields either by spraying or injecting.  Within minutes the tiling lines are transferring much of this to the nearest ditch, stream, and eventually river.  Iowa's rivers are the source for many municipal water systems and, when levels of nitrates and toxins pass a critical threshold, the water, which at that point cannot be treated, must be diluted from another source or not used at all.  This huge amount of hog waste contains more pathogens than human waste, in addition to a critical antibiotic load, yet it is treated much less than human waste.  

The Environmental Protection Commission is an oversight commission of the Iowa Department of Natural Resources (DNR) dealing with air and water quality issues.  In this capacity it is frequently called upon to approve or disapprove an applicant's request to build and operate a CAFO.  Until August 2008 only 4 had been denied on procedural deficiencies and none on the merits.  That month on a 6 to 2 vote the EPC denied a double CAFO application in central Iowa on the basis that it would further degrade the Raccoon River, source of Des Moines' drinking water.  Within hours the Farm Bureau struck back, demanding through the Attorney General's (AG) office that the vote be voided or the case be settled. The applicant, backed by a large corporation/business partner, threatened to sue the EPC.

After this debacle, clear thinking persons on the EPC felt that they needed to place themselves in a better position.  They wrote and offered (March 2009) procedural rules that would give the EPC the maximum discretion, as well as the best hearing record, for handling future CAFO applications.  The AG's office proceeded to re-write the rules to make them ineffective as possible.  At the June 2009 meeting the rules were further degraded by a last minute amendment that states: "Oral participation before the Commission will be limited....to presentations by representatives from the county board of supervisors, the applicant, and the department."   This is to restrict public input and manipulate outcomes by withholding scientific and non-scientific information available from the public and their sources.  The public should obviously have a right to address controversial issues of public importance.  Sadly the final vote to accept these amended rules was unanimous even though the amendment was not.  All the applicant has to show is a passing score (50% of the possible points) on the Master Matrix.  This Matrix contains 44 questions with the applicant required to answer only enough of the questions to get the required score.  Not only is this a self scoring document that receives cursory oversight, but this means that only 14 to 16 questions of the 44 need to be answered.

Background document by David A. Elderkin (posted with permission):


Whoever wrote the final version of the recently enacted procedural rules for handling hog lot applications before the EPC has hamstrung the EPC from being in an effective position to deny the same when that action is deemed necessary.  Each application comes initially to the DNR, which studies it and makes a preliminary decision that it be approved or denied.  If there is no objection by the affected county or the applicant, the preliminary decision stands as final.  If either objects, then they have the opportunity to "contest" the recommendation before the EPC by means of a public hearing.  At this point, the DNR as an agency has nothing further to do with deciding the matter.  The EPC takes over completely, reviews the evidence received at the hearing and hands down a final decision on behalf of the Department.

The affected county and applicant have the right to raise issues before the EPC pertaining to whether the EPC should approve or disapprove the application in question.  It is clear, however, that the EPC is not limited by those issues raised by the county or applicant, and can consider any factors available under the law.  This would at a minimum include considerations involving the Matrix and whether the hog lot project being considered violates any of the provisions of Iowa Code Chp. 459.  If this were not the case, vital matters not likely to be raised by the affected county, such as the manure to be produced as a result of the proposed CAFO would adversely affect the drinking water in a city in a different county, would not be available for consideration.

The permit application procedure for hog lots is similar to that established for ruling on certificate of need applications by the Iowa Health Facilities Council in Iowa Code Chp. 135.  In brief, each certificate of need application is reviewed by the Iowa Department of Public Health for the purpose of furnishing to the Council the information necessary to enable it to determine whether or not to grant the certificate of need, then the Council holds a public hearing at which it evaluates the application against the criteria in Sec. 135.64 and permits "any affected person" or that person's designated representative to have the opportunity to present testimony, and finally the Council approves or denies the application and issues written findings stating the basis for its decision.  The Iowa Supreme Court in Greenwood Manor v Iowa Department of Health, 641 N.W.2d 823 (Iowa 2002) held that this procedure set forth proper "other agency action".

Under the new procedural rules, the EPC - for the first time - is permitting itself to be straight-jacketed by the county and applicant as to what it can consider in ruling on the application.  At the time either or both initially "contest" the DNR's preliminary decision, they must submit a "statement" setting forth all of their "reasons why the application for the permit should be approved or disapproved".  As later stated at rule 65.10(9)(7): "Only the issues submitted by the parties in the demand for hearing and responses shall be considered by the Commission as a basis for its decision."  Obviously, an applicant will rarely raise any issue other than it obtained a passing score on the Matrix.  And the county is not likely to raise any issues not directly affecting persons in its jurisdiction.  But the important point is that the county and applicant, unlike the situation with applications for certificates of need submitted to the Iowa Health Facilities Council, will now dictate the scope of what the EPC can consider.  The procedure thus appears to provide for little more than a de facto contested case decision by the EPC,- a decision that would be reviewed in court by a substantial evidence rather than by an arbitrary and capacious standard.

If there is any doubt about the above, consider that the rules no longer provide for any input by the public.  No persons who will be personally affected by the odor from the CAFO in question, no municipality that has concerns about the effect of the proposed hog lot on its water supply, and no Sierra Club or 1000 Friends of Iowa representing the public at large will be permitted to appear, just as they would not if the application were being handled as a contested case before an ALJ.  The bottom line is that the authors of the aforementioned portions of the current rules have resorted to the old shell game.  While everyone was watching them declare that the rules provide for other agency action and contain no burden of proof provision, they were quietly making changes that will undoubtedly cause the Iowa Supreme Court to find that, all things considered, the procedure provides for a contested case.

Some persons contend that causing all hearings on hog lot applications to be contested cases handled first by an ALJ is the best way for the EPC to proceed.  They argue that because such hearings would be tightly structured by the provisions of the Iowa Code 17A, the best record would be established for possible appeal to district court.  The problem, however, is that the record material would be limited to those issues raised by the county and/or the applicant (i.e. the contesting parties).  No member of the public could testify and the EPC would have no ability to consider anything not supported by the evidentiary record before the ALJ.  The EPC's right to make its decision based on all of the considerations available to it under Iowa law would thus be clearly frustrated.  The obvious present action the EPC needs to take is to add back into the rules the right of the public to appear and present evidence at the hearing before the agency and to delete that portion of the rules restricting consideration by the agency to those issues specifically raised by the county and applicant.  If it does not, the EPC will have placed itself in the position of having to rubber-stamp approve virtually all CAFO applications coming before it.

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