STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY FINDINGS OF FACT

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2 ATTACHMENT 1 STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY IN THE MATTER OF THE DECISION ON THE NEED FOR AN ENVIRONMENTAL IMPACT STATEMENT FOR THE PROPOSED LISMORE HUTTERIAN BRETHREN, INC., SWINE FACILITY BIG STONE COUNTY PRIOR TOWNSHIP, MINNESOTA FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER FINDINGS OF FACT The above-entitled matter came before the Minnesota Pollution Control Agency (MPCA) Citizens Board at a regular meeting held in St. Paul, Minnesota, on February 27, Pursuant to Minn. R (2005), the MPCA staff has prepared an (EAW) for the proposed project. This matter is before the MPCA for a determination as required under Minn. R , subp. 7. Based on the MPCA staff environmental review, comments, and information received during the comment period, and other information in the record of the MPCA, the MPCA hereby makes the following Findings of Fact, Conclusions of Law, and Order: FACILITY HISTORY Overview Lismore Hutterian Brethren, Inc. (Proposer), Swine Facility (Project) proposes to construct and operate two swine production units: a 130-foot by 475-foot mechanically ventilated breeding and nursery unit and a 155-foot by 440-foot mechanically ventilated finishing barn. The total maximum capacity of this proposed Project is 1,996 animal units. The Project will be located in Section 28 of Prior Township in Big Stone County, Minnesota. Manure will be stored underneath the barns in engineered concrete pits, which will be directed into a 204-foot by 204-foot concrete tank, which will be covered with a concrete cap. The concrete tank will be 12 feet deep. The manure will subsequently be land applied, as directed in the Manure Management Plan (MMP). Permitting History The Project is an addition to an existing feedlot. A turkey facility is located in the NW¼ of the SE¼ of Section 29, T123N, R47W. The turkey facility consists of three 70-foot by 800-foot turkey barns, one 60-foot by 330-foot turkey barn, and a 140-foot by 180-foot by 8-foot concrete stacking area. A total of 49,500 turkeys over 5 pounds are housed in the 3 large barns and 18,000 turkeys less than 5 pounds are housed in the small barn. The turkey production units are registered with the MPCA (MPCA ) and the Proposer is currently in the process of renewing its NPDES/SDS permit. If the proposed swine operation is approved, it and the turkey production operation will both be covered by the NPDES/SDS permit. Previous Environmental Review Environmental review has not been required for previous activities taken by the Project Proposer. TDD (for hearing and speech impaired only): (651) Printed on recycled paper containing at least 30% fibers from paper recycled by consumers

3 Lismore Hutterian Brethren, Inc., Swine Facility Findings of Fact Conclusions of Law And Order Compliance/Enforcement History The MPCA does not have any history of compliance and enforcement issues with the Project Proposer. PROJECT DESCRIPTION Proposed Construction Schedule The Project Proposer will begin dirt work in the spring of 2007, assuming all applicable permits have been obtained. The dirt work will include excavation for two swine buildings and a covered, pre-cast concrete tank. Construction of the swine barns and erection of the pre-cast tank will begin in the summer of The swine barns will utilize reinforced concrete pits below them for manure storage. Site grading will include the construction of gravel roads surrounding the Project. Upon completion, the Project will house 1,996 animal units of swine. Environmental Concerns Because the proposed Project exceeds the current EAW threshold of 1,000 animal units for feedlot facilities, the preparation of an EAW was mandatory (as required by Minn. R , subp. 29). Environmental concerns related to feedlot facilities generally include: air quality (i.e., hydrogen sulfide [H 2 S], ammonia [NH 3 ], odors, and dust); ground-water impacts; surface-water impacts; and water appropriation. Concerns Described in Comment Letters The specific concerns described in the comment letters received for the proposed Project dealt with the potential impacts to ground water, surface water (in particular, Big Stone Lake) and air quality. Community Involvement in Process The EAW was published in the Environmental Quality Board s (EQB) July 31, 2006, edition of the EQB Monitor. Public comments were taken on the EAW from July 31, 2006, to August 30, The Project will require a Conditional Use Permit (CUP), which also entails a public process. PROCEDURAL HISTORY 1. Pursuant to Minn. R subp. 29, an EAW was prepared by MPCA staff on the proposed Project. Pursuant to Minn. R (2005), the EAW was distributed to the EQB mailing list and other interested parties on July 28, The MPCA notified the public of the availability of the EAW for public comment. A news release was provided to Big Stone, Traverse, Stevens, Swift and Lac qui Parle counties, including other interested parties on July 28, In addition, the EAW was published in the EQB Monitor on July 31, 2006, and available for review on the MPCA Web site at on July 31,

4 Lismore Hutterian Brethren, Inc., Swine Facility Findings of Fact Conclusions of Law And Order 3. The public comment period for the EAW began on July 31, 2006, and ended on August 30, During the 30-day comment period, the MPCA received two comment letters from government agencies and received 20 comment letters from citizens. There were nine requests for an EIS. As a result of the public comments, the Proposer delayed consideration of the Project to consider whether changes to the facility were required. The Project Proposers have reduced the barn sizes as discussed in the Response to Comments found in Appendix B. A copy of a more detailed Project manure management plan is included with this document. 4. The MPCA prepared responses to all comments received during the 30-day public comment period. Comment letters received have been hereby incorporated by reference as Appendix A to these findings. The MPCA responses to comments received are hereby incorporated by reference as Appendix B to these findings. Comment letters received after the 30-day public comment period have been included in the written record but have not been included in the Responses to Comments found in Appendix B. CRITERIA FOR DETERMINING THE POTENTIAL FOR SIGNIFICANT ENVIRONMENTAL EFFECTS 5. Under Minn. R (2005), the MPCA must order an Environmental Impact Statement (EIS) for projects that have the potential for significant environmental effects that are reasonably expected to occur. In deciding whether a project has the potential for significant environmental effects, the MPCA must compare the impacts that may be reasonably expected to occur from the project with the criteria set forth in Minn. R , subp. 7 (2005). These criteria are: A. the type, extent, and reversibility of environmental effects; B. cumulative potential effects of related or anticipated future projects; C. the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority; and D. the extent to which environmental effects can be anticipated and controlled as a result of other available environmental studies undertaken by public agencies or the project proposer, including other EISs. THE MPCA FINDINGS WITH RESPECT TO EACH OF THESE CRITERIA ARE SET FORTH BELOW Type, Extent, and Reversibility of Environmental Effects 6. The first criterion that the MPCA must consider when determining if a project has the potential for significant environmental effects that are reasonably expected to occur, is the "type, extent, and reversibility of environmental effects" Minn. R , subp. 7.A (2005). The MPCA findings with respect to each of these factors are set forth below. 3

5 Lismore Hutterian Brethren, Inc., Swine Facility Findings of Fact Conclusions of Law And Order 7. The EAW identified that the following were reasonably expected environmental effects of this project related to air quality: H 2 S Emissions NH 3 Emissions Odors Dust 8. The EAW discussed the extent of any potential air quality effects that are reasonably expected to occur and included the following information: H 2 S H 2 S is a potentially harmful gas (when encountered at high levels) that is created at feedlots when manure is broken down by bacteria. For the proposed Project, air quality dispersion modeling was performed using a U.S. Environmental Protection Agency approved model that calculated the estimated property line and nearest neighbor concentrations of H 2 S. Altogether, the modeling incorporated data from a total of eight neighbors. The modeling was based on the estimated H 2 S emission rates from the manure pits located beneath the hog barns and from off-site H 2 S emission sources. Background concentrations of H 2 S, developed from air quality monitoring data in Minnesota, were also included in these calculations to account for potential cumulative air effects. The modeling results indicated that the air emissions from the proposed Project will not exceed the Minnesota Ambient Air Quality Standards for H 2 S. The maximum property-line hydrogen sulfide concentration was 9.78 parts per billion (ppb). When a background H 2 S concentration of 17 ppb is presumed, the maximum property line concentration is ppb, which is below the ambient air quality standard of 30 ppb. The modeling study results indicate that no significant adverse effects are reasonably expected to occur from the proposed Project s H 2 S emissions. NH 3 NH 3 is also a potentially harmful gas (when encountered at high levels) that is created at feedlots when manure is broken down by bacteria. Air quality modeling was performed that calculated the estimated property line and nearest neighbor concentration of NH 3. The modeling was based on estimated NH 3 emission rates from the livestock units, including the manure storage pits beneath the hog barns and the turkey facility. Background concentrations of NH 3, developed from air quality monitoring data in Minnesota, were considered in these calculations to account for potential cumulative air impacts. The modeling predicted a maximum one-hour, time-averaged property line NH 3 concentration of 1,062 micrograms per cubic meter (µg/m 3 ). When a background concentration of 148 µg/m 3 is considered, the maximum property line NH 3 concentration is then 1,210 µg/m 3, which is below the acute inhalation health risk value (ihrv) of 3,200 µg/m 3 for NH 3. The predicted maximum one-year, time-averaged NH 3 concentration for the site s nearest neighbor is µg/m 3. When a background concentration of 5.72 µg/m 3 is considered, the maximum annual NH 3 concentration for 4

6 Lismore Hutterian Brethren, Inc., Swine Facility Findings of Fact Conclusions of Law And Order the site s nearest neighbor is µg/m 3. This concentration is below the chronic NH 3 ihrv of 80 µg/m 3. The modeling study results indicate that no significant adverse effects are reasonably expected to occur from the proposed Project s NH 3 emissions. Odors Hog facility odors are typically generated by multiple sources, including the animal waste, the animal waste storage areas, the animal barns, and the animals themselves. Using site-specific information and five years of meteorological data, air quality modeling was performed to calculate the estimated concentrations of 12 volatile odorous organic compounds at the proposed Project property lines and at the nearest neighbor. A similar analysis was conducted for the existing turkey operation using odor measurement data collected by the University of Minnesota. The modeling results suggest that while concentrations of odorous gases from the hog barns can exist off site, the highest concentrations any neighbor would experience would be 7.9 times less than the threshold concentration associated with unpleasant odors, using the 12 volatile odorous organic compounds. The modeling study results indicate that no significant adverse effects are reasonably expected to occur from the proposed Project s odorous gases. The model also employed odor units as part of the modeling to account for the turkey barns. An odor unit value of 25 or less is considered to be a very faint odor. The maximum nearest neighbor odor unit value predicted by the model was 15 odor units. Dust It is expected that dust will be generated during the construction of the proposed Project, and later when hogs and feed are delivered to and from the facility. If dust becomes a problem, the Project Proposer has agreed to apply a dust suppressant where it is needed. As a result, no significant adverse effects are reasonably expected to occur as a result of dust generated as part of the proposed Project. 9. The reversibility of any potential air quality effects that are reasonably expected to occur: The MPCA finds that any potential effect related to air that is reasonably likely to occur from the proposed Project would be reversible. As discussed above, the expected effects on air quality are minimal. There is no reason to believe that this Project is reasonably expected to cause a significant negative effect on air quality. However, should such impacts occur there is control equipment, such as a biofilters, that can be employed to improve odor control and other air pollutants impacts, if needed. While there is no evidence to suggest that this is an issue, in the unlikely event that an air quality issue would not be capable of control, the Project Proposers could reduce animal numbers. 10. Comments received on the EAW that expressed concerns regarding potential effects to air quality: As discussed above in Findings 8 and 9, and in the Responses to Comments received on the EAW (Appendix B), the MPCA staff analysis indicates that the effects on air quality that are reasonably expected to occur are not significant. The MCPA adopts the MPCA staff responses to comments as its findings with regard to the air issues raised by commenters on the Project. 11. The MPCA finds that the environmental review is adequate to address the concerns because all potential impacts to air quality that are reasonably expected to occur from the proposed Project 5

7 Lismore Hutterian Brethren, Inc., Swine Facility Findings of Fact Conclusions of Law And Order have been considered during the review process and methods to prevent these impacts have been developed. 12. The MPCA finds that the Project, as it is proposed, does not have the potential for significant environmental effects based on the type, extent, and reversibility of environmental effects reasonably expected to occur as a result of its air emissions. 13. The EAW identified that the following were reasonably expected environmental effects of this project related to water quality: Ground Water Surface Water Water Appropriation 14. The EAW discussed the extent of any potential water quality effects that are reasonably expected to occur and included the following information: Ground Water Based on the design of the proposed finishing hog facility and the planned implementation of an MPCA-approved MMP (as revised and enclosed), the extent of any potential effects to groundwater quality that are reasonably expected to occur as part of this proposed Project should be minimal. The two new total confinement barns will be equipped with concrete, slatted floors and a mechanically ventilated system. The barns will be equipped with reinforced concrete pits that empty into a 204-foot by 204-foot concrete tank that will be covered by a concrete cap. The concrete tank is 12 feet deep. The MPCA setback requirements will be observed around the water supply well for the barns. As a result, it is not expected that the manure stored at the existing or proposed feedlot site will come in contact with ground water. In order to avoid contaminating the ground water at the manure application sites, the manure will be incorporated into the soil at agronomic rates. These rates take into account the levels of nutrients (e.g., nitrogen and phosphorous) that will be utilized by the crops planted on the manure application sites, thereby reducing the possibility that excess nutrients will infiltrate down into the ground water. The details of the manure application methods to be implemented as part of this proposed Project are outlined in the MMP. In addition, the MPCA and Big Stone County setback requirements will be observed around the water supply wells located within and adjacent to the manure application areas. As a result, it is not expected that the manure injected at the manure application sites will come in contact with ground water. Surface Water Based on the design of the proposed finishing hog facility and the planned implementation of an MPCA-approved MMP, impacts to surface water quality should be minimal. The feedlot site is currently an undeveloped agricultural field. Surface-water runoff will increase at the proposed feedlot site due to an increase in impervious surfaces, mainly from the construction of two roofed buildings. A Stormwater Pollution Prevention Plan has been prepared for this proposed Project that addresses potential impacts to surface waters. A grass buffer will be planted around the barns, and in the event of a heavy rainfall, surface-water runoff will be dispersed into the field directly adjoining the site to the south. Because this will be a total confinement facility, with the manure 6

8 Lismore Hutterian Brethren, Inc., Swine Facility Findings of Fact Conclusions of Law And Order stored entirely under the barns, it is not expected that the manure stored at the proposed feedlot site will come in contact with surface water. In order to avoid contaminating the surface waters located within and adjacent to the manure application sites (e.g., intermittent streams that run through both sites), the hog manure will be incorporated directly into the soil via injection, which substantially reduces the potential for contaminants in manure to come into contact with runoff water. Turkey manure is surface applied and incorporated. The incorporation of the manure into the soil will be done at agronomic rates. These rates take into account the levels of nutrients (e.g., nitrogen and phosphorous) that will be utilized by the crops planted on the manure application sites, thereby reducing the possibility that excess nutrients will come in contact with surface water. The details of the manure application methods to be implemented as part of this proposed Project are outlined in the MMP. In addition, the MPCA and Big Stone County setback requirements will be observed around the surface waters located within and adjacent to the manure application areas. As a result, it is not expected that the manure injected at the manure application sites will come in contact with surface water. Water Appropriation As identified below in Finding 24, a Water Appropriation Permit is required from the Department of Natural Resources (DNR) for the use of more than 10,000 gallons per day or 1 million gallons per year, which includes agricultural uses. The purpose of the permit program is to ensure water resources are managed so that adequate supply is provided to long-range seasonal requirements for domestic, agricultural, fish and wildlife, recreational, power, navigational, and quality control. The program exists to balance competing management objectives, including both the development and protection of water resources. Minn. Stat. 103G.261 establishes domestic water use as the highest priority of the state's water when supplies are limited. Any well interference or water use conflict would need to be addressed before the water appropriation permit could be issued. In addition, if a well interference arises, the DNR has a standard procedure for investigating the matter. The estimated water use of the Project at full production will be approximately 8 million gallons per year. Information concerning the Project s projected water use was provided to the DNR s Area Hydrologist for preliminary review. The Area Hydrologist does not believe the water use associated with this Project will cause interference with other users, based on his experience with water use in this area. 15. The MPCA finds that any potential effect related to water quality that is reasonably likely to occur from this project would be reversible. As discussed above, the expected effects on water quality are minimal. There is no reason to believe that this project is reasonably expected to cause a significant negative effect on water quality. If water impacts are identified, they could be reversed through implementation of remedial measures or additional best management practices. 7

9 Lismore Hutterian Brethren, Inc., Swine Facility Findings of Fact Conclusions of Law And Order 16. The MPCA received some comment letters on the EAW that expressed concern that manure storage and land application could cause ground-water and surface-water contamination. In addition, some comment letters expressed concerns that the amount of water used by the Project would impact the amount of drinking water available for surrounding residences. As discussed above in Findings 14 and 15, and in the responses to comments received on the EAW (Appendix B), the analysis indicates the effects on water quality that are reasonably expected to occur are not significant. 17. The MPCA finds that the environmental review is adequate to address the concerns because all potential impacts to water quality that are reasonably expected to occur from the proposed expansion of this facility have been considered during the review process and a method to prevent these impacts has been developed. 18. The MPCA finds that the Project, as it is proposed, does not have the potential for significant environmental effects on water quality based on the type, extent, and reversibility of environmental effects reasonably expected to occur. Cumulative Potential Effects of Related or Anticipated Future Projects 19. The second criterion that the MPCA must consider, when determining if a project has the potential for significant environmental effects that are reasonably expected to occur, is the " cumulative potential effects of related or anticipated future projects," Minn. R , subp. 7.B (2005). This criteria requires the MPCA to consider whether the proposed project, which may not individually have the potential to cause significant environmental effects, could have a significant effect when considered along with other projects that (1) are already in existence or planned for the future; (2) are located in the surrounding area; and (3) might reasonably be expected to affect the same natural resources. 20. The EAW, public comments, and MPCA follow-up evaluation did not disclose any related or anticipated future projects that may interact with this Project in such a way as to identify any cumulative potential effects that are reasonably expected to occur. There was some discussion in comments regarding the potential for additional residential development around Big Stone Lake. However, the MPCA could not locate any specific development plans making such developments and their potential cumulative impacts speculative and difficult to assess. The EAW considered cumulative potential effects from existing projects in a variety of ways. First, the existing turkey production facility was taken into consideration as part of the proposed project with regard to air, water and land pollution issues (manure management). Air modeling included background levels of hydrogen sulfide and ammonia to account for off site emission sources and activities. The results of the air modeling did not disclose a significant cumulative impact. The consideration of water use issues by the DNR hydrologist included knowledge of existing water users and did not suggest a significant cumulative impact. The manure used for nutrient is displacing currently used chemical fertilizer, and thus should not have a cumulative impact with existing agricultural use of fertilizers. The land that is identified for the purposes of land application has been used for agricultural production purposes. None of the land base is being converted to agricultural purposes as a result of this Project. 21. The MPCA received some comment letters on the EAW that expressed concern about the potential cumulative effects from other facilities on the water quality of Big Stone Lake and well water impacts. Responses to those comments are included in the responses to comments documents, and 8

10 Lismore Hutterian Brethren, Inc., Swine Facility Findings of Fact Conclusions of Law And Order the MPCA adopts the MPCA staff response as its findings. Based on MPCA staff experience, available information on the Project, including the permit application, air quality monitoring, public information on drinking water wells in the area, watershed water quality data, traffic data, and land use data, the MPCA does not reasonably expect significant cumulative effects from this Project. 22. In considering the cumulative potential effects of related or anticipated future projects, the MPCA finds that the reasonably expected effects from this Project will not be significant. The Extent to Which the Environmental Effects Are Subject To Mitigation by Ongoing Public Regulatory Authority 23. The third criterion that the MPCA must consider, when determining if a project has the potential for significant environmental effects that are reasonably expected to occur, is "the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority," Minn. R , subp. 7.C (2005). The MPCA findings with respect to this criterion are set forth below. 24. The following permits or approvals will be required for the Project: Unit of government Type of Application Status MPCA NPDES/SDS Feedlot/Construction Submitted Stormwater Permit Big Stone County Big Stone Conditional Use Permit Submitted DNR Water Appropriation Applied for after EAW approval 25. The MPCA finds that ongoing public regulatory authority will address any significant potential environmental effects that were identified as reasonably expected to occur. As noted above, the DNR Water Appropriation program operates to prevent and resolve well interference issues. Although well interference is not anticipated, if it should occur the DNR has the authority to resolve the issue. The MPCA is aware that Big Stone County may impose additional conditions to control potential odors from the facility through its Conditional Use Permit. Although the MPCA finds that the Project cannot reasonably be anticipated to create nuisance odors, the County has the means to impose conditions (including the use of biofilters or other odor control devices) to address the issues should they arise. 9

11 Lismore Hutterian Brethren, Inc., Swine Facility Findings of Fact Conclusions of Law And Order The Extent to Which Environmental Effects can be Anticipated and Controlled as a Result of Other Available Environmental Studies Undertaken by Public Agencies or the Project Proposer, Including Other EISs 26. The fourth criterion that the MPCA must consider is "the extent to which environmental effects can be anticipated and controlled as a result of other available environmental studies undertaken by public agencies or the project proposer, including other EISs." Minn. R , subp. 7.D (2005). The MPCA findings with respect to this criterion are set forth below. 27. The following documents were reviewed by MPCA staff as part of the potential environmental impact analysis for the proposed Project. This list is not intended to be exhaustive. The MPCA also relies on information provided by the Project Proposer, commenters, staff experience, and other available information. NPDES/SDS Permit Application Manure Management, Air Emission, and Emergency Response Plans 28. There are no elements of the Project that pose the potential for significant environmental effects that cannot be addressed in the Project design and permit development processes, or by regional and local plans. 29. Based on the environmental review, previous environmental studies, and MPCA staff expertise on similar projects, the MPCA finds that the environmental effects of the Project that are reasonably expected to occur can be anticipated and controlled. CONCLUSIONS OF LAW 30. The MPCA has jurisdiction in determining the need for an EIS for this Project. The EAW, the permit development process, the facility planning process, responses prepared by MPCA staff in response to comments on the EAW, and the evidence in the record are adequate to support a reasoned decision regarding the potential significant environmental effects that are reasonably expected to occur from this Project. 31. Areas where the potential for significant environmental effects may have existed have been identified and appropriate mitigation measures have been incorporated into the Project design and permits. The Project is expected to comply with all MPCA standards. 32. Based on the criteria established in Minn. R (2005), there are no potential significant environmental effects reasonably expected to occur from the Project. 33. An EIS is not required. 34. Any findings that might properly be termed conclusions and any conclusions that might properly be termed findings are hereby adopted as such. ORDER 10

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13 APPENDIX B Minnesota Pollution Control Agency (MPCA) Lismore Hutterian Brethren, Inc. (Proposer), Swine Facility Project (Project) (EAW) RESPONSES TO COMMENTS ON THE EAW 1. Comments by Jody Martinson, Minnesota Department of Transportation. Letter received August 7, Comment 1-1: After reviewing the information we received, MnDOT does not have any comments. Response: 1-1: The comment is noted. 2. Comments by Nash and Elsie Perrine, Ortonville, Minnesota. Letter received August 9, 2006, and received August 14, Comment 2-1: The commenters have expressed concern regarding the location of the proposed Project with respect to wells and Big Stone Lake. The primary issue is the location of this Project on the bluff and the possibility of contamination to Big Stone Lake and area wells in the event of a spill. Response 2-1: The MPCA staff has reviewed the proposed Project site and the land application acreage as part of the MPCA Environmental Review Program and the MPCA Feedlot Permitting Program in context to the issue raised by the commenter with respect to the bluff and wells. Response 2-1a: Site location The MPCA notes that there is a very distinct and abrupt elevation change at or near the edge of Big Stone Lake; however, to assert that the proposed Project is at the edge of a bluff, as presented in the comment letter, is misleading. The MPCA has reviewed topographic data for the proposed Project site and surrounding area. 1 The proposed Project location is nearly two miles from the topographic bluff feature and is more than two miles from Big Stone Lake, consistent with the Big Stone County setback Ordinance. 2 The proposed Project would be located approximately 1,120 feet above sea level, based on published U.S. Geological Survey topographic data. In a transect from the proposed Project location drawn due south to Big Stone Lake, the topographic changes within one mile is approximately 10 to 20 feet of elevation difference. The second mile along the transect indicates an elevation change of approximately 120 feet. The most dramatic elevational change (i.e., the bluff feature) occurs approximately two and one-quarter miles away, where the elevation changes from approximately 1,060 feet to Big Stone Lake (circa 920 feet) within approximately one-quarter mile. The general terrain around the proposed Project site is effectively flat lying. A spill from the livestock unit would not likely flow very far beyond the livestock structure before being detected. Additionally, in the event of a spill, 1 U.S. Geological Survey. Big Stone Lake East, Minn-S.Dak. [map]. 1:24, Minute Series. Washington, D.C.: Big Stone County Ordinance Section IV, A.7. (2003) requires a livestock operation to maintain a setback of Two miles from the Ordinary High Water Level of Big Stone Lake. The Project, as proposed, is in compliance with this setback.

14 the Project Proposer would implement its Emergency Response Plan, which addresses spill response and which identifies how spills will be prevented from flowing off Project property. Please review Response to Comment 2-1c regarding the Emergency Response Plan. Response 2-1b: Manure storage The design and construction of the manure storage system is reviewed by the MPCA staff to identify potential structure failure. The following is a discussion of the MPCA review of this Project and the applicable MPCA feedlot regulations. The manure storage at the proposed swine facility consists of two types of concrete storage areas pre-cast and poured. Beneath each portion of the barn, poured-in-place concrete reception pits are present to collect the manure produced by the animals. These reception pits range in size and vary in depth from 2 to 12 feet. Some of the more shallow reception pits are intended to store manure temporarily prior to transfer to a larger storage area, while others will provide long-term storage. In addition to the poured-in-place concrete reception pits under the barn, a pre-cast concrete outdoor storage structure is proposed. This type of structure typically will have a concrete floor poured in place with a groove or channel for vertical pre-cast concrete panels to be located and secured. The panels are then placed in succession and secured with mechanical fasteners. This outdoor concrete storage structure will provide long-term storage of manure that is not able to be stored within the reception pits located beneath the barns. This structure will also be constructed with a concrete cover. Both types of storage structures will utilize water sealing materials at all construction joints, minimizing the potential for seepage occurring at these points. All cracks and defects are repaired prior to use of the storage structure. All storage structures proposed meet Minn. R design requirements and have been designed by a licensed professional engineer. Based upon similar operating storage structures, it is expected that these types of storage structures will meet the requirements of Minn. R ; however, in the unlikely event that a storage structure would structurally fail, the proposal is to locate the structures partially or mostly below ground elevation, thereby providing an additional, albeit temporary, safeguard against release to surface waters. Response 2-1c: Emergency Response Plan While a spill is unlikely, it is always a possibility even under the best of circumstances. The MPCA requires an Emergency Response Plan that addresses this specific issue. The Project Proposer has developed an Emergency Response Plan that will become an enforceable provision of the MPCA Feedlot Permit. 3 The Emergency Response Plan includes procedures that Project staff will implement to minimize impacts from spills, should they occur. The Emergency Response Plan also includes a list of persons to be contacted in the event of a spill to ensure adequate response resources are available. 3 The Emergency Response Plan is required for a National Pollutant Discharge Elimination System (NPDES)/State Disposal System (SDS) Permit under Minn. R , subp. B. (2), and must include the following procedures that: (a) contain, minimize, and manage an unauthorized discharge; (b) provide notification to the proper authorities; and (c) mitigate any adverse effects of an unauthorized discharge. This plan is an enforceable provision of the NPDES/SDS Feedlot Permit. 2

15 Response 2-1d: Land application As a requirement of the permitting process, a Manure Management Plan (MMP) was developed for this proposed Project. The MMP indicates how much manure is expected to be generated, which fields will receive manure, at what rate the manure will be applied, and what preventative measures are used to mitigate impact to sensitive features. The MMP for this Project estimates that 2,500 tons of poultry litter and 3.55 million gallons of swine manure will be produced and that approximately 5,600 acres of land are available for application of manure. The rates of application are consistent with the University of Minnesota recommendations and meet all Minn. R. ch requirements. The proposed rates are approximately 4,000 gallons/acre of swine manure and 4 tons/acre of poultry litter, which provide 140 pounds of nitrogen and 162 pounds of nitrogen, respectively. The application rates will also provide 128 pounds of nitrogen and 144 pounds of phosphorus for the swine and poultry manure. The proposed nitrogen applications meet all applicable rule requirements. Although the proposed phosphorus applications are more than can be removed by the crop grown immediately following the application, phosphorus removal credits are given for subsequent crops in the rotation, and it is expected that with the current land base, the build-up of phosphorus in the soil is not expected to be a concern. The Project Proposer does employ a crop consultant and uses soil testing on all fields to determine nutrient needs and monitor the phosphorus levels. The soil testing will be conducted consistent with MPCA feedlot rules. 4 Manure application is proposed to occur in the late fall following harvesting of the crops. The swine manure is proposed to be applied with knife injection. Poultry litter will be surface applied and incorporated. These practices will minimize the potential of rainfall coming into contact with the manure, reducing the potential to create nutrient-laden runoff. The application timing will minimize the potential of nitrogen leaching in the soil profile, as the bacteria that convert the applied nitrogen to nitrate are not active when the soil temperature is below 50 degrees. The MMP identifies that intermittent streams, drainage ditches, wetlands over ten acres, and other conduits to waters exist in some of the land application fields. The management practices used to mitigate impacts to these features are to inject or incorporate within 24 hours within 300 feet of a water body, ditch, or intermittent stream, and observe a 100-foot, non-manured setback. It is important to note that the minimum setback when manure will be incorporated is 25 feet; however, the Project Proposer has chosen to increase the setback distance in order to further protect these features. These measures are acceptable best management practices under the MPCA feedlot rules, which were designed to minimize or eliminate potential water-quality impacts to these features. Comment 2-2: Commenters claim that there are underground springs present, adding to the risk of the Project. Response 2-2: The MPCA has conducted a review of the relevant geological information for the area as well as conducted a site visit. The geology of the area is not of a type that would typically create the sinkhole feature alleged in the letter. Based on the MPCA staff information, the presence of an underground spring is not likely and was not revealed during the MPCA site visit. 4 Under Minn. R , subp. 3. C. feedlots capable of holding the manure produced by 300 or more animal units, soil samples from the upper six inches must be collected at a minimum frequency of once every four years and analyzed for phosphorus This information is submitted to the MPCA for review. The results of soil testing are used to determine the development of a new MMP. 3

16 Comment 2-3: The commenters are concerned about potential human health impacts from this Project with respect to private wells. Response 2-3: The MPCA has reviewed data retrieved from the Minnesota Department of Natural Resources (DNR)/University of Minnesota regarding water resources and from the Minnesota Department of Health (County Well Index) regarding well depth in the surrounding area. An area map entitled Geologic sensitivity to pollution of near surface ground water resources, prepared jointly by the DNR and the University of Minnesota, rates the general project area as having a high sensitivity to near surface ground-water impacts based on a three-point scale of medium, high, and very high. 5 The map defines high to be: The estimated travel time is weeks to years. Includes coarsetextured stream sediments overlain by up to 10 feet of finer textured sediments. The scale of the map provides some general inferences to potential pollutant-related ground-water sensitivity; however, it does not represent the site-specific characteristics of the area. The MPCA has reviewed this data in context to the potential manure storage structure site and the land application areas. The rating of high nearsurface ground-water sensitivity is addressed through the regulatory review process associated with the manure pit construction and the Land Application Plan. Based on the MPCA staff review of the manure management system and Land Application Plan, the MPCA finds that the design of the Project (manure storage and land application) will be adequate to protect ground-water resources, taking into consideration the factors that lead to the characterization of the general area of the Project as high sensitivity. The MPCA also retrieved the drinking water well logs in the area from the Minnesota Department of Health County Well Index. While the depth of the drinking water wells in the area varies, the range of depths included approximately 110 feet to as great as approximately 440 feet. It was also noted that drinking water wells near the shore of Big Stone Lake were generally less than 100 feet in depth. The well depths within the influence of the Project area are at depths that do not appear to present a groundwater impact concern from existing land application activities, including the expansion of the proposed Project. Based on the existing land use for production agricultural purposes, the use of a Land Application Plan designed to provide manure application at agronomic rates, and the depth and construction of drinking water wells in the surrounding area, the MPCA does not reasonably foresee the potential for significant impacts from the construction and operation of this Project. Comment 2-4: The commenters have requested an Environmental Impact Statement (EIS). Response 2-4: The comment is noted. The MPCA Citizens Board will convene on February 27, 2007, to determine if this Project will require further environmental review in the form of an EIS. You will be provided a copy of the MPCA Citizens Board Agenda as part of this correspondence. As an interested party, you are encouraged to attend and provide comment. Please note that the written record for this Project will close on February 22, 2007, at 4:30 p.m. 5 Minnesota Department of Natural Resources and the Regents of the University of Minnesota. Geologic sensitivity to pollution of near-surface ground water. Regional hydrogeologic assessment Upper Minnesota River Basin [RHA-4, Part B, Plate 4 of 4]. 1:200,000. St. Paul, Minnesota:

17 3. Comments by Roger Johnson, Ortonville, Minnesota. Letter received August 16, Comment 3-1: The commenter is concerned with the location of the proposed Project in context to Big Stone Lake and the potential for impacts to water quality, including wells, in the area. Response 3-1: The comment is noted. Please refer to Response to Comment 2-1 regarding Big Stone Lake. Comment 3-2: The commenter has requested an EIS. Response 3-2: The comment is noted. Please refer to Response to Comment Comments by Donna Leiferman, Ortonville, Minnesota. Letter received August 16, Comment 4-1: The commenter is concerned with the location of the proposed Project in context to Big Stone Lake and the potential for impacts to water quality in the area. Response 4-1: The comment is noted. Please refer to Response to Comment 2-1. Comment 4-2: The commenter has requested an EIS. Response 4-2: The comment is noted. Please refer to Response to Comment Comments by Norman A. Shelsta, Ortonville, Minnesota. Letter received August 21, Comment 5-1: The commenter is concerned with the location of the proposed Project in context to Big Stone Lake and the potential for impacts to water quality in the area, particularly in the event of a heavy rainfall. Response 5-1: The comment is noted. Please refer to Response to Comment 2-1. The MPCA reviewed 10 years of precipitation data and 20 years of flash flood data from the University of Minnesota. While not frequent, heavy rainfall events do occur in the area and may result in flash floods on occasion, based on the historical information retrieved from the University of Minnesota. It is important to note that the land application for this Project will employ a combination of injection (swine manure) and surface application with incorporation (turkey manure). These land application practices greatly reduce the likelihood of runoff, even during a heavy rainfall event. Please note that in the event that runoff occurs due to a heavy rainfall, as long as a livestock producer or commercial applicator follows the MPCA feedlot regulations, it is not considered a violation of the law. 6 Additionally, livestock producers holding an NPDES/SDS Permit are exempt from legal suits resulting from any discharges that may occur during a 25-year, 24-hour storm event. 7 Comment 5-2: The commenter has requested an EIS. Response 5-2: The comment is noted. Please refer to Response to Comment Minn. Stat , subd. 7. n. notes that: For the purposes of feedlot permitting, a discharge from land-applied manure or a manure stockpile that is managed according to agency rule must not be subject to a fine for a discharge violation. 7 See generally 40 CFR (a)(1)(i). 5

18 6. Richard A. Gold, Minneapolis, Minnesota. received August 25, Comment 6-1: As the main purpose of feedlot legislation is to protect citizens from pollution caused by animal manure, I question (1) an adequate process for soil testing and (2) for applying manure to the required acreage needed for this size operation. (3) I question the accuracy of the stated acres available for injecting with the frequency necessary of reapplying to the same acreage. Response 6-1: The comment is noted. As noted in the cover letter for this Project, several details of the Land Application Plan have been modified since the Project was first placed on notice July 31, A copy of the Project MMP is provided with this mailing. The MMP is consistent with the land application provisions found in Minn. R. ch The following are specific responses to the three points raised in Comment 6-1: Response 6-1a: (1) an adequate process for soil testing The MPCA finds that there is an adequate process for soil testing for this Project. Soil testing requirements are addressed within the MPCA feedlot regulations and are designed to assess soil conditions in order to avoid phosphorus loading. 8 In the event that phosphorus loading becomes an issue, several options exist, including the use of a phosphorus-based (rather than a nitrogen-based) MMP, cropping practice modification, or removing a field from the crop rotation and the Land Application Plan. It should be noted that some fields within the Project s MMP are operating under a phosphorus-based application rate for manure; however, the fields can be utilized for crop production. Response 6-1b: (2) for applying manure to the required acreage needed for this size operation The MPCA finds that the process for applying manure to the required acreage as described in the MMP is adequate to protect the environment. The land application rates are based on the soil types, cropping practices, manure composition, soil chemistry, and land application method. These factors are used to develop the agronomic rate that is integrated into the MMP. An agronomic rate is the amount of nitrogen needed by crops or other vegetation. It is designed to minimize the amount of nitrogen (or phosphorus) in manure that passes below the root zone of the crop into ground water. Response 6-1c: (3) I question the accuracy of the stated acres available for injecting with the frequency necessary of reapplying to the same acreage. The MPCA has also reviewed this issue in detail and found that the cropping practices and land application are consistent with the amount of acres proposed to manage the Project and comply with the MPCA feedlot regulations. Please refer to the revised Project MMP provided in this mailing. Comment 6-2: Does our county feedlot officer have the resources, tools and equipment needed to monitor this feedlot? There is one EO in Big Stone County. Will there be time and money available to adequately fulfill the intent of monitoring this facility? The barns are sized in the EAW, what assurance do I have that that sizing prevents the operation from exceeding the 1,999 AU in their proposal? Re: Dead animal disposal The losses will be composted in accordance with the mortality plan Which is an enforceable provision Who is the enforcer? One county EO? 8 Under Minn. R , subp. 3. C. feedlots capable of holding the manure produced by 300 or more animal units, soil samples from the upper six inches must be collected at a minimum frequency of once every four years and analyzed for phosphorus This information is submitted to the MPCA for review. The results of soil testing are used to determine the development of a new MMP. 6