State of Oklahoma
Office of the Secretary of the Environment
June 17, 2005

Peter Goode, P.E., Chief
NPDES Permits and Engineering Section
Water Protection Program,
Missouri Department of Natural Resources
P.O. Box 176
Jefferson City, MO 65102

Re: Draft Missouri State Operating Permits - MOARK Productions, Inc. (MO-0122840, MO-0122572 and MO-0123382

Dear Mr. Goode:

The Oklahoma State Environmental Agencies have come into possession of three Draft Missouri Operating Permits for Confined Animal Feeding Operations in the name of MOARK Productions, Inc. ("MOARK"), near Neosho, Missouri, which includes Anderson (MO-0122572), MOARK 7 (MO-0122840) and Top Notch (MO-0123382) Farms. Please note that none of the Oklahoma agencies received official notice of these permits as required by the Federal Water Pollution Control Act and its implementing regulations. Thus, our analysis and subsequent comments are based upon only a cursory review of the subject permits.

The draft permits would allow the construction of poultry houses and manure storage pits accommodating over five (5) million laying hens and pullets, with a population equivalent of over 500,000 people. Our apprehensions stem from the potential for degradation of water quality in northeastern Oklahoma resulting from the proposed permitted operations. Because the draft permits are for proposed activities upstream of Oklahoma and potentially may involve permitted activities in our State, we have conducted a perfunctory review and offer the following comments:

1. Does the Elk River TMDL include the nutrient loading from the litter application associated with these permits? The permit states that composted poultry litter qualifies for a permit exemption in accordance with Missouri Clean Water Law, but the poultry litter applied in the Elk River watershed should be included in the TMDL and applied in accordance with those requirements, or it should be verified that litter will not be applied within the watershed. How do the proposed operating permits insure compliance with the Elk River TMDL?

2. The property owned by MOARK and identified for use in the application of poultry process waste, manure and processed litter is less than 850 acres, and the location of the approximately 20,000 acres of leased land available for land disposal is not identified in the permits. In order to properly assess the potential environmental impacts in Oklahoma, it is necessary to know the location of the waste disposal sites associated with these permits. We therefore request that the location of all potential poultry waste disposal sites be identified and forwarded to the State of Oklahoma for review prior to any further action regarding these permits.

3. The production facilities listed in the permits are located on tributaries to the Spring and Elk Rivers, both of which flow into Oklahoma. Both of these streams are located in the watershed of Ft. Gibson Reservoir, which is designated as nutrient limited in the Oklahoma Water Quality Standards. A nutrient limited watershed designation is given when the designated beneficial use(s) of a waterbody is adversely impacted by excess nutrients in the drainage area. As a result of this designation, additional rules regulating animal and poultry waste (Oklahoma Statute 2 O.S. §9-10 & OAC 35:17-5-3) administered by the Oklahoma Department of Agriculture, Forestry and Food ("ODAFF") apply to this watershed in Oklahoma. The draft CAFO permits proposed by Missouri DNR establish a goal whereby 90% of all litter produced would be land applied either north of the Spring River in Missouri, nearby in Kansas or somewhere in northeastern Oklahoma. As this provision would conceivably place a portion of the CAFO operations within Oklahoma, then those activities related to the CAFO would be subject to Oklahoma jurisdiction. Therefore these permits should include a condition(s) requiring that all poultry waste transported to Oklahoma be disposed of in compliance with the laws of the State, and particularly with the ODAFF rules, including:

   1. All land application sites in the State of Oklahoma must be submitted to and approved by ODAFF before the land application of litter generated by this facility can occur in the State of Oklahoma.

   2. Any land application of litter in the State of Oklahoma must be conducted by a person licensed pursuant to the Oklahoma Poultry Waste Applicators Certification Act, 2 O.S. §10-9.16 et seq..

   3. Any Oklahoma landowner who accepts litter from this facility is required to have the litter land applied pursuant to a Conservation Plan available from the local county NRCS office prior to the commencement of the land application of the litter pursuant to 2 O.S. § 10-9.19a.

   4. Litter generated by this facility shall be land applied at a rate not to exceed the current NRCS Conservation Practice Standards pursuant to OAC 35:17-5-3.

   5. The permits should require testing for additional parameters, including BOD[small 5] and TSS. Pursuant to 2 O.S. § 9-205.3 (B)(5)(e) requires the sampling for BOD[small 5] or TSS for discharges. Since the MOARK facility is designated as a CAFO and CAFOs are by definition a "point source discharge," see 40 CFR § 122.2, therefore, all litter to be land applied must be tested prior to the land application of said litter, for BOD[small 5] or TSS in addition to parameters set forth in the draft permit.

   6. The Oklahoma licensed waste applicator must submit a detailed annual report to ODAFF pursuant to the requirements of 2 O.S. § 10-9.18.

4. The draft permits designate the MOARK facility as a CAFO. CAFOs are by definition a "point source discharge," see 40 CFR § 122.2. Two of the permits are located on streams that flow into the Elk River in Oklahoma, which is listed as impaired (Category 5) for pathogens on Oklahoma's 2002 Water Quality Assessment Integrated Report. Nothing in the draft permits states how the facility will protect the EPA approved water quality standards for the Elk River in Oklahoma as required by Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046 (1992).

5. According to Missouri Department of Natural Resources (DNR) records MOARK has consistently violated the terms and conditions of their existing permits. What assurances are there that the proposed permits will not just be a continuation of past problems and an undocumented source of additional nutrient loads to an already sensitive area?

Without the location of the potential waste disposal sites, the State of Oklahoma cannot realistically assess the potential environmental impacts of the draft permits at this time. As a result of this omission, and the fact that the State did not receive adequate notification for the proposed permits, we are requesting the location of all disposal sites be forwarded for our review and that the notice be reissued.

I look forward to resolving these issues in the coming weeks and to our continued cooperation in the future. Please contact me at (405) 530-8995 if you wish to discuss these matters further.

Sincerely,

(signed)

Miles Tolbert
Secretary of the Environment

MT/JC/MD/BB/jds

CC. Steve Thompson, Oklahoma Department of Environmental Quality
Terry Peach, Oklahoma Department of Agriculture, Forestry and Food
Duane Smith, Oklahoma Water Resources Board
Mike Thralls, Oklahoma Conservation Commission
Kelley Burch, Assistant Attorney General
Troy Hill, Acting Chief, NPDES, Permits Branch, EPA Region 6(6WQ-P)

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