STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY FINDINGS OF FACT

Transcription

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 NEW FASHION PORK, ENGELKES SITE NOBLES COUNTY WORTHINGTON, MINNESOTA FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER FINDINGS OF FACT Pursuant to Minn. R (2003), the Minnesota Pollution Control Agency (MPCA) staff has prepared an Environmental Assessment Worksheet (EAW) for the proposed project. 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,, and Order: PROPOSED PROJECT DESCRIPTION Proposed New Construction The New Fashion Pork (Proposer), Engelkes Site project (Project) is a single 332 foot by 102 foot, 4,000 hog (1,200 animal unit) barn divided into four production rooms, each underlain by its own concrete manure storage pit under a slatted floor. Manure is to be stored in the pits until removal for land application as fertilizer on cropland in the Project vicinity at agronomic rates. The rate of application will be determined by means of soil testing to match available nutrients with crop needs. Application will take place by injection at least once each year, in the spring or fall. Environmental Concerns Typical environmental concerns associated with feedlots include air emissions, contaminated run-off, and seepage of feedlot contaminants to ground water. Additional Concerns Described in Comment Letters None. Community Involvement in Process Nobles County convened a public hearing on the application for a Conditional Use Permit for the Project on April 27, All local government units as well as the Project s nearest neighbors were notified of this hearing. TDD (for hearing and speech impaired only): (651) Printed on recycled paper containing at least 30% fibers from paper recycled by consumers

2 PROCEDURAL HISTORY 1. Pursuant to Minn. R , subp.29, an EAW was prepared by MPCA staff on the proposed Project. Pursuant to Minn. R (2003), the EAW was distributed to the Environmental Quality Board (EQB) mailing list and other interested parties on August 29, The MPCA notified the public of the availability of the EAW for public comment. A news release was provided to Cottonwood, Jackson, Murray, Nobles, Pipestone, and Rock counties, as well as, other interested parties on August 29, In addition, the EAW was published in the EQB Monitor on August 29, 2005, and available for review on the MPCA Web site at on August 29, The public comment period for the EAW began on August 29, 2005, and ended on September 28, During the 30-day comment period, the MPCA received two comment letters from government agencies and received no comment letters from citizens. 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. CRITERIA FOR DETERMINING THE POTENTIAL FOR SIGNIFICANT ENVIRONMENTAL EFFECTS 5. Under Minn. R (2003), 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 (2003). 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. 2

3 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 (2003). The MPCA findings with respect to each of these factors are set forth below. 7. Reasonably expected environmental effects of this Project to air quality: A. Hydrogen Sulfide B. Ammonia C. Odors D. Atmospheric acidity, atmospheric nutrient transport and deposition, global warming, and ozone layer depletion 8. The extent of any potential air quality effects that are reasonably expected to occur: The modeling analysis for this Project predicts that air emissions from the Project will fall below levels of concern for hydrogen sulfide, ammonia, and odors. This includes background concentrations without the Project. The modeling analysis also predicts that air emissions will be noticeable only within a limited area in the immediate vicinity of the Project. Animal agriculture as an industry is known to contribute to atmospheric acidity (ammonia, hydrogen sulfide), atmospheric nutrient transport and deposition (nitrogen compounds), global warming (methane, carbon dioxide, nitrous oxide), and ozone layer depletion. There is, however, no evidence to suggest that the proposed Project would contribute significantly to any of these phenomena. The air modeling report does not indicate the potential for significant air quality impacts from the Project. 9. The reversibility of any potential air quality effects that are reasonably expected to occur: The MPCA finds that any potential effect that is reasonably likely to occur from this 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. 10. Comments received that expressed concerns regarding potential effects to air quality: None. 3

4 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 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. Reasonably expected environmental effects of this Project to water quality: A. Seepage to ground water of manure and mortality contaminants B. Contaminated run-off from the Project site and land application fields 14. The extent of any potential water quality effects that are reasonably expected to occur: Ground water. Manure seepage from the storage pits is expected to be minimal, since the pits will be constructed to specifications required by the MPCA. Since the predominant soils in the area are silty clay loams formed in glacial till, any contaminants that escape will most likely be quickly attenuated in the surrounding soil. Mortalities will be stored on-site in a dedicated structure built to standards required by the state Board of Animal Health (BAH), which include a requirement for a floor that is resistant to vertical movement of liquids. Storage is expected to be of short duration, as the rendering company will pick dead animals up the same day if called before 10:00 a.m. Vertical movement of manure contaminants on spreading fields is minimized by application of manure at agronomic rates, matching the volume of applied nutrients to what is taken up by crops. Surface water. Except for spills, manure will be completely isolated from stormwater run-off at the Project. The Proposer has developed a Spill Response Plan to deal with such events. Short term on-site storage of mortalities according to BAH guidelines will minimize the potential for contaminated run-off to leave the site. Run-off from spreading fields can pollute surface waters if not carefully managed. Since phosphorus tends to bind to soil particles, transport of phosphorus to surface waters is largely a function of soil erosion, which is addressed by use of Best Management Practices (BMP) such as contour plowing, grass waterways, and avoidance of steep slopes for cultivation. It is expected that those whose lands are used for manure disposal will follow such practices to minimize topsoil losses. Setbacks from sensitive receptors such as surface water bodies are prescribed by permitting agencies to protect such receptors from contamination. The Proposer will adhere to all required setbacks. 4

5 The fact that manure will be injected at agronomic rates and observing all prescribed setbacks will minimize the potential for contaminated run-off to escape the spreading fields. 15. The reversibility of any potential water quality effects that are reasonably expected to occur: The MPCA finds that any potential effect 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. 16. Comments received that expressed concerns regarding potential effects to water quality: None. 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 Project 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. 19. Reasonably expected environmental effects of this Project to wildlife: The Little Rock River, which lies in the vicinity of one of the manure application fields, has been designated as critical habitat for the Topeka Shiner, a fish species that is listed both as a federal endangered species and as a state species of special concern. There is no indication that the Project would negatively affect the Topeka Shiner, or other forms of wildlife in the area. 20. The extent of any potential wildlife effects that are reasonably expected to occur: Since a 25-foot setback must be observed when applying manure near streams, and since manure outside the setback will be injected, no significant impacts are expected on the Topeka Shiner, or any other species, from manure application. 21. The reversibility of any potential wildlife effects that are reasonably expected to occur: The MPCA finds that any potential effect that is reasonably likely to occur from this Project would be reversible. As discussed above, the expected effects on wildlife are minimal. There is no reason to believe that this Project is reasonably expected to cause a significant negative effect on wildlife. 22. Comments received that expressed concerns regarding potential effects to wildlife: 5

6 None. 23. The MPCA finds that the environmental review is adequate to address the concerns because: All potential impacts to wildlife that are reasonably expected to occur from the proposed Project have been considered during the review process and the potential for impact is considered minimal. 24. 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 to wildlife. Cumulative Potential Effects of Related or Anticipated Future Projects 25. 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 (2003). The MPCA findings with respect to this criterion are set forth below. 26. 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 potential cumulative environmental impacts that are reasonably expected to occur. 27. Public comments concerning cumulative impacts: None. 28. 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 29. 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 (2003). The MPCA findings with respect to this criterion are set forth below. 6

7 30. The following permits or approvals will be required for the Project: Unit of Government Permit or Approval Required Status A. MPCA National Pollutant Discharge Pending Environmental Review Elimination System/State Disposal System (NPDES/SDS) Feedlot/Stormwater Permit B. MPCA NPDES Stormwater Pending Environmental Review Construction Permit C. Nobles County Nobles County Feedlot License Pending D. Nobles County, DeWald Township, and Conditional Use or other Land Use Permit Conditional approval May 24, 2005 the city of Worthington E. Minnesota Department Water Appropriation Pending of Natural Resources (DNR) F. Nobles County County Building Permit Pending 31. The above listed permits include general and specific requirements for mitigation of environmental effects on the Project, as follows: A. NPDES Feedlot Permit. The NPDES/SDS individual feedlot permit applies to feedlots with 1,000 animal units or more that have the potential to discharge to the waters of the state. The MPCA is delegated to administer this NPDES/SDS Permit, and it will require specific conditions be adhered to for construction of the Project, for the operation of the Project, including land application of the manure, and for overall compliance with air and water quality requirements. B. NPDES Stormwater Construction Permit. A general NPDES Stormwater Construction Permit is required when a project disturbs one or more acres. It provides for the use of BMP such as silt fences, bale checks, and prompt re-vegetation to prevent eroded sediment from leaving the construction site. The Proposer must have a sediment and erosion control plan that will provide more detail as to the specific measures to be implemented and will also address: phased construction; vehicle tracking of sediment; inspection of erosion control measures implemented; and timeframes in which erosion control measures will be implemented. The general permit also require adequate stormwater treatment capacity be provided to assure that water quality will not be impacted by run-off once the Project is constructed. C. Nobles County requires a Feedlot License to operate a feedlot anywhere in the county. D. Conditional Use Permit. A Conditional Use Permit is required when a use is not usually allowed within a zoning district, but may be allowed with certain conditions. A Conditional Use Permit may be approved upon a showing by an applicant that standards and criteria stated in the counties ordinance would be satisfied. 7

8 E. Water Appropriation Permit. The Water Appropriation Permit is required for all users withdrawing more than 10,000 gallons of water per day or one million gallons per year. 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 uses. The program exists to balance competing management objectives including both the development and protection of the water resources. Information on permitted water users and reported water use is used to evaluate impacts from pumping on surface and ground-water resources. Water use data are also used for water supply planning and resolving water use conflicts and well interferences. The DNR administers this permit and requires monthly usage monitoring and annual reporting to ensure that surrounding communities and industries water supplies will not be affected by drawdown of the aquifer. Minn. Stat. 103G.261 establishes domestic water use as the highest priority of the state s water when supplies are limited. F. Nobles County requires a Building Permit for new construction within the county, in order to assure compliance with building codes. 32. The MPCA finds that ongoing public regulatory authority will address any significant potential environmental effects that were identified as reasonably expected to occur. 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. 33. 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 (2003). The MPCA findings with respect to this criterion are set forth below. 34. The following documents were reviewed by MPCA staff as part of the potential environmental impact analysis for the proposed expansion of the Project. This list is not intended to be exhaustive. The MPCA also relies on information provided by the Project Proposer, commentors, staff experience, and other available information. 35. The following documents were reviewed by MPCA staff as part of the potential environmental impact analysis for the proposed expansion of the Project. This list is not intended to be exhaustive. The MPCA also relies on information provided by the project proposer, commentors, staff experience, and other available information. A. Draft EAW completed data portion; and B. Project permit application with attachments. 36. 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. 8

9 37. 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 38. 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 New Fashion Pork, Engelkes site 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. 39. 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. 40. Based on the criteria established in Minn. R (2003), there are no potential significant environmental effects reasonably expected to occur from the Project. 41. An EIS is not required. 42. Any findings that might properly be termed conclusions and any conclusions that might properly be termed findings are hereby adopted as such. ORDER The Minnesota Pollution Control Agency determines that there are no potential significant environmental effects reasonably expected to occur from the New Fashion Pork, Engelkes site project and that there is no need for an Environmental Impact Statement. IT IS SO ORDERED Sheryl A. Corrigan, Commissioner Minnesota Pollution Control Agency Date 9

10 APPENDIX B Minnesota Pollution Control Agency Environmental Assessment Worksheet (EAW) RESPONSES TO COMMENTS ON THE EAW 1. Matt Langan, Minnesota Department of Natural Resources. Letter received September 27, Comment 1-1: The project does not appear to have the potential for significant environmental effects, and does not require an EIS. Response 1-1: None required. 2. Annette Bair, Southwest Regional Development Commission. Letter received September 12, Comment 2-1: The project is consistent with the goals of the SWRDC, but commenter expresses concerns about the potential for impacts on the Topeka Shiner, a state-listed species of special concern and a federal endangered species. Response 2-1: Since a 25-foot setback must be observed when applying manure near streams, and since manure outside the setback will be injected, no significant impacts are expected on the Topeka Shiner, or any other species, from manure application. Commenter notes that the MN DNR has stated that it sees no potential for the project to affect rare resources in the area of the project.