April 12, 2002

Re: Frank Volleman, TPDES Registration No. 03226

MOTION TO OVERTURN

Dear Ms. Castañuela:

In response to the letter from your office dated March 25, 2002, and in accordance with 30 TAC § 50.139 of the Texas Administrative Code, the Sierra Club - Lone Star Chapter hereby files this motion to overturn and respectfully requests that the Commission review the TNRCC Executive Director’s approval of Frank Volleman, dba Wildcat Dairy’s TPDES Registration No. 03226.

The Executive Director’s approval of Frank Volleman, dba Wildcat Dairy’s application for new registration authorized a dairy (CAFO) to expand from 990 head of cattle to 4,000 head of cattle. This CAFO is located in the drainage area of the Leon River below Proctor Lake in Segment No. 1221 of the Brazos River Basin. The Executive Director’s decision to approve this registration affects approximately 250,000 people, including residents of Killeen, Belton, Temple, Copperras Cove, Harker Heights, Fort Hood and others who rely solely upon surface water from Lake Belton as their source of drinking water. The Wildcat Dairy is located on the South Leon River, Segment No. 1221, which is listed on the 2000 state 303(d) list as impaired for pathogens and total dissolved solids. In addition, segment 1221 is listed as impaired for pathogens and concern for algae growth and depressed dissolved oxygen on the state’s draft 2002 305(b) assessment.

Although Lake Belton is not yet on the states 303(d) list of impaired waters, the draft 2002 305(b) assessment identifies a concern for nutrient enrichment (nitrate+nitrite nitrogen) on the upstream portion of the lake.

Numerous studies conducted by the Texas Water Commission, TNRCC, Brazos River Authority, TIAER and others have indicated that runoff from dairy feedlots, lagoons, and waste application fields has contributed significantly to the elevated levels of nutrients and pathogens in this segment. According to a 1998 TNRCC publication, "segment 1221 was classified as ‘water quality limited’ due to elevated fecal coliform densities in the lower portion of the segment, which are attributed to nonpoint source runoff from dairies." The evidence clearly indicates that runoff from CAFO facilities such as the Wildcat Dairy inevitably discharge waste to the waters of the state. The permitted expansion of this facility will undoubtedly exacerbate the existing impairment of this stream and thus should not be allowed under state and federal law.

The expansion of this facility violates numerous provisions of Chapter 122 of 40 CFR, incorporated into state rules by 30 TAC 305.38, pertaining to dischargers into water quality impaired waters. 40 CFR 122.4(a) is violated by the approval of this permit because "the conditions of the permit do not provide for the compliance with the applicable requirements of the Clean Water Act (CWA), or regulations promulgated under CWA." Subsection (d) of 40 CFR 122.4 essentially embodies the requirement in section 301 (b)(1)(C) of the Federal Clean Water Act that no permit may be issued when the conditions of the permit do not assure compliance with water quality standards, specifically the permitting of a new source or discharge on an impaired steam without an approved TMDL (segment no. 1221 is not scheduled for TMDL development until 2007).

The Wildcat Dairy expansion would require the construction of new confinement facilities, new wastewater lagoon, and additional waste application fields (WAF’s). These new facilities, as defined under TWC 26.001 (21), would constitute new point source dischargers, and as such are prohibited by the aforementioned state and federal laws. In addition, permits-by-rule issued for CAFOs by the TNRCC authorize discharges into the waters of the state in the event of "either chronic or catastrophic" rainfall events. These conditions would constitute a new source and/or discharge that would further contribute to the violation of water quality standards in segment 1221, and are thus prohibited by law.

Section 26.0286 of the TWC requires the TNRCC to process applications to construct or operate a CAFO as an application for an individual permit if the CAFO is located in the watershed of a sole-source surface drinking water supply and it is located sufficiently close, as determined by Commission rule, to a public water supply system intake so that contaminants discharged from the CAFO "could potentially affect" the public drinking water supply. Although segment 1226 of the North Bosque River is defined as a sole-source surface drinking water supply for Lake Waco, segment 1221 of the Leon River below Proctor Lake is not, even though the geographic characteristics between segment 1221 and Lake Belton are very similar. It seems obvious that the Wildcat Dairy is located "sufficiently close" to Lake Belton to "potentially affect" the sole-source drinking water supply for over 250,000 people, and thus should be authorized only under an individual permit as opposed to the existing permit by rule registration. It would only be prudent for the Commission to allow for public input on permits in this watershed and the opportunity for a contested case hearing to ensure that all issues and potential concerns could be fully addressed.

It is unclear why the TNRCC has yet to promulgate a rule implementing this statute to protect the public drinking water supply of the cities of Temple, Belton, Killeen, and others, especially given the evidence of problems with CAFO pollution experienced in Lake Waco, and, more importantly, the fact that TNRCC is the sole agency with authority to protect the health and human safety of citizens in this area.

In conclusion, there are numerous state and federal laws which prohibit this permit expansion. The TNRCC cannot legally approve applications for new or expanded permits which will undoubtedly further degrade water quality in an already impaired watershed such as segment 1221 of the Leon River. In addition, the TNRCC should allow greater consideration for the protection of human health and safety as well as the state’s most precious natural resource.

Therefore, the Sierra Club hereby files this Motion to Overturn, respectfully requesting the Texas Natural Resource Conservation Commission review and overturn the Executive Director’s approval of the application for a permit by registration by Frank Volleman, dba Wildcat Dairy.