Issues: Water

MONTANA

• Large-scale animal factories are beginning to move into the state.
  
  
• A study by the Northern Plains Resource Council and the Montana chapter of Public Employees for Environmental Responsibility documents that the state Department of Environmental Quality's program to regulate animal factories is woefully inadequate.
  
  
• In a move that will allow pollution from factory farms and other sources, the Montana DEQ is now proposing to eliminate any limit on nitrate pollution in 30 percent of Montana groundwater.
  
  
• Montana Department of Environmental Quality has less than one full-time employee devoted to dealing with permitting, monitoring and compliance of CAFOs in the entire state.

Between 1990 and 1995, Montana had a 40 percent drop in the number of hog farms but only a 2.7 percent drop in the total inventory of hogs and pigs.¹

Animal factories are moving into the state. In Big Horn County, four CAFOs are being proposed. In October of 1997, Agri-Systems, Inc. of Billings announced the restart and major expansion of its pork factory on the Crow Indian Reservation just outside the town of Hardin. Agri-System's new 3,000,000-gallon waste lagoon for the 2,700 sows is located less than 2,000 feet from the banks of the Bighorn River, a world renowned trout fishery.² The expansion also involves arrangements to breed 60,000 baby pigs a year. The company told local residents it was contracting with DeKalb Swine Breeders, the ninth largest hog company in the nation to farrow its sows. (Farrowing operations impregnate sows to breed baby pigs.) DeKalb's farrowing facilities include a factory farm just a few miles north of the Little Bighorn Battlefield.³

In addition, GTA/Cenex Feeds told residents that the company wants to contract with beginning farmers to build three 6,000-head hog finishing units in the Bighorn Valley as satellites of Agri-Systems.⁴ Finishing units grow young pigs to market size for slaughter.

Other companies, like Murphy Family Farms, have contacted tribal leaders on the Fort Peck Indian Reservation in northeast Montana about siting large-scale hog operations on the reservation, but nothing has been finalized yet.⁵

Pork producers in northern Montana are also reportedly working on a deal to site a gigantic hog packing plant and farrowing operation which would promote the growth of large-scale finishing operations along the Montana high-line (counties which border Canada).⁶

Pollution Problems

The Bighorn River, Montana's most fished trout stream, is the most concrete example of a surface water threat from CAFOs.⁷ The Agri-Systems Pork Facility built its new three million gallon waste lagoon on its property less than one-quarter mile from the Bighorn River.⁸ As a result of agricultural pollution and the damming of the river, the state has classified the river as "impaired" under Section 303(d) of the Clean Water Act.⁹ According to the state, it is no longer safe to drink water from the river at all times and the water is no longer pristine enough to support the level of trout and aquatic life that it once did.¹⁰

In 1997, Montana Department of Environmental Quality (DEQ) inspected Agri-Systems, after 22 complaints from citizens living within 1.5 miles of the facility were logged.¹¹ The inspection revealed that hog waste was exiting the new lagoon through a series of animal burrows, and contaminating groundwater. Later measurements at the lagoon monitoring wells showed nitrate levels in groundwater surrounding the lagoon were at 179 milligrams per liter (mg/L) and 59 mg/L, 18 times the amount allowed by law. Levels of ammonia nitrogen over 4.5 mg/L were also detected.¹² Residents use local groundwater for drinking, stock watering and irrigation.

Rather than assessing a penalty, Montana DEQ responded to the discharge by issuing the company a "notice of violation" for failing to maintain its lagoons in good working order.¹³ In a lackluster DEQ enforcement response, the agency required additional monitoring and installation of a compacted earthen liner as corrective action. The company disputed that the discharge was a violation of its general permit. But, in an interesting turn of events, Agri-Systems installed a plastic liner in three of its six lagoon partitions after DEQ contemplated an administrative order compelling corrective action.¹⁴

Regulatory Climate

Montana gained national recognition in 1972 with the passage of a new Constitution that guaranteed every citizen an inalienable right to "a clean and healthful environment" -- the only state constitution to include such a provision.¹⁵ In the 1970s the Montana Legislature passed a series of strong environmental laws, including the Montana Water Quality Act, which prevented new sources of pollution from degrading existing water quality.¹⁶

In 1995 and again in 1997, the Legislature weakened Montana's strong clean water protections.¹⁷ Despite the changes, Montana's Water Quality Act still provides significant leverage over factory farms. Rules promulgated under the Act allow any AFO that is causing, or may cause, pollution, to be regulated under the Act.¹⁸ While the Act allowed for the issuance of general permits for most CAFOs, individual permits were required for special circumstances. Montana issues Montana Pollution Discharge Elimination System (MPDES) permits in lieu of the federal permit. Like the national CAFO regulations, surface water discharges from CAFOs are limited to the 25-year, 24-hour precipitation event under Montana rules. Discharges to groundwater are limited to those which "result in a non-significant degradation, as determined by the [DEQ]."¹⁹ Prior to 1995, no new source could degrade existing water quality. Now only high-quality groundwater (specific conductance of less than 2,500 microSiemens/cm at 25 degrees C) is afforded this protection.²⁰ For most Montana groundwater, discharges are now only limited to 10 mg/L nitrate as nitrogen. The changes to the Water Quality Act also eliminated certain siting requirements for large scale animal feeding operations.²¹

Montana's efforts to protect groundwater have been weakened under a proposal adopted by Montana DEQ in November 1998 to increase the allowable level of nitrate pollution in about 30 percent of Montana groundwater, found mostly in the eastern two-thirds of the state. Such a change allowed industries such as factory farms, to increase their discharges to groundwater fivefold, from 10 parts per million (ppm) to 50 ppm.²² The director of DEQ, Mark Simonich, has indicated his support for weakening standards. On August 25, 1998, he stated on Yellowstone Public Radio that, "We're just lowering water quality standards for water that is already so dirty that it isn't usable."

Montana's general permits include requirements for land application of manure. Producers may use any means of land application so long as it provides for plant nutrient uptake during the growing season following application. Wastes must be so applied as to prevent any pollutant from entering state waters (surface/ground) in excess of the effluent limitation (zero discharge surface, 10 mg/L Nitrate-nitrogen ground).²³ Though these requirements appear to be stringent, there are two major flaws: 1) agronomic rates are based upon nitrogen, rather than more limiting pollutants such as longer-lived phosphorus; and 2) there is no opportunity to confirm whether landowners are adhering to the requirements since there is no public input on land application plans; they need not even be submitted to the state.

As with any general permit system, public input concerning the permitting of a specific facility is limited and encouraged mostly during the time that the general permit is renewed. If a new facility is proposed prior to the renewal cycle of the general permit, a nominal environmental assessment is conducted, a notice is published in a newspaper and the public can request a hearing. But the state is not obligated to hold such a hearing. The public has input into the limited number of individual permits, and full environmental assessments are conducted for those.²⁴

Even without weakening changes, the laws on the books are not being adequately enforced. DEQ has less than one full-time employee devoted to dealing with permitting, monitoring and compliance of CAFOs in the entire state.²⁵ The state has permitted 70 facilities, 46 "Large Feedlot Facilities" and 24 "Small Feedlot Facilities."²⁶ The number of facilities without permits is unknown, but could include hundreds of CAFOs and hundreds of thousands of AFOs in the state. In total, Montana raises approximately 2,500,000 cattle and 200,000 swine, which produce a total of 28,014,000 tons of manure annually. In 1995, Montana had 350 farms with 1,000 or more cattle, some of which qualify as CAFOs. Hog farms are not tracked by size.²⁷

With one part-time employee devoted to the task of administering the feedlot program, inspections do occur, but are complaint driven. Many CAFOs get inspected only once every couple of years.²⁸

In 1997, the Northern Plains Resource Council (NPRC) and the Montana chapter of Public Employees for Environmental Responsibility (PEER) commissioned a joint study on compliance with the state's water quality laws. The study was authored by the former chief of enforcement for the Montana Water Quality Bureau, a division of the now defunct Department of Health and Environmental Sciences, which was replaced by DEQ in 1995.

The report found that the agricultural program had little, if any, information about CAFO compliance with the Montana Water Quality Act. The report found that CAFOs "never report anything and DEQ has no knowledge as to whether discharges occur." It also found that there is absolutely no state strategy with regard to preventing or controlling pollution from large-scale factory farms.²⁹

Regarding air quality, though Montana has established ambient air quality standards for hydrogen sulfide, a major air contaminant and odor-causing agent emitted by animal factories, these standards have not been applied to concentrated livestock operations.³⁰

Local Control

Montana counties and municipalities have limited authority to address the impacts of animal factories, but no county has chosen to exercise this authority. Montana law mandates development of county comprehensive plans, and allows counties to adopt zoning ordinances, based on those plans. Counties can also adopt performance standards for industries in lieu of a comprehensive plan or impose siting requirements.³¹

Primary interviewee for this chapter:

Aaron Browning
Northern Plains Resource Council
2401 Montana Avenue, Suite 201
Billings, MT 59101
Phone: 406-248-1154
Fax: 406-248-2110
e-mail: nrpc@desktop.org

Notes

1. Montana Agricultural Statistics Service, Montana Agricultural Statistics (October 1996), pp. 13, 14, 85 and 91.

2. Timothy Byron, Montana DEQ, Mixing Zone Determination, Agri-Systems, Inc. (April 21, 1998); Letter from Federick Shewman, P.E., Montana DEQ, to Bob Hamlin, Agri-Systems, Inc. (May 20, 1998), re: "1) Authorization MT-G010152 to Discharge under the "Concentrated Animal Feeding Operation General Discharge Permit," NW 1/4 Section 17, Township 1 South, Range 34 East; Drainage - Little Bighorn River; 2) Mixing zone determination; 3) Significance determination; 4) Irrigation water application; 5) Monitoring requirements; 6) Waste management plan; 7) General permit termination."

3. Statement by Cenex/GTA Feeds representative to Bruce Hammond and Burton Farley, Northern Plains Resource Council board members, Hardin, Montana (December 5, 1997).

4. Statement by Cenex/GTA Feeds representative to Bruce Hammond and Burton Farley, Northern Plains Resource Council board members, Hardin, Montana (December 5, 1997).

5. Personal communication with Tom Breitbach, Past-Chair, Northern Plains Resource Council (February 19, 1998).

6. Alan Sorenson, "Pork Operation Awaiting Air Force Decision," Havre Daily News (July 2, 1998); "Air Force Base to Be a Pig Farm," Helena Independent Record (July 3, 1998); Jim Gransberry, "State Might Profit from Being Bullish on Pork," Billings Gazette (November 2, 1997).

7. Hale Harris, Bighorn Trout Shop Newsletter, Hardin, Montana (1997), p. 3.

8. Timothy Byron, Montana DEQ, Mixing Zone Determination, Agri-Systems, Inc. (April 21, 1998); Letter from Federick Shewman, P.E., Montana DEQ, to Bob Hamlin, Agri-Systems, Inc. (May 20, 1998), re: "1) Authorization MT-G010152 to Discharge under the "Concentrated Animal Feeding Operation General Discharge Permit," NW 1/4 Section 17, Township 1 South, Range 34 East; Drainage - Little Bighorn River; 2) Mixing zone determination; 3) Significance determination; 4) Irrigation water application; 5) Monitoring requirements; 6) Waste management plan; 7) General permit termination."

9. Montana Department of Environmental Quality, 1998 Waterbodies in Need of Total Maximum Daily Load (TMDL) Development (January 23, 1998), p. 107.

10. Personal communication between Bruce Hammond, Chair, Bighorn Resource Council, and Ed Thampke, Montana Department of Environmental Quality (October 22, 1997).

11. Personal communication between Bruce Hammond, Chair, Bighorn Resource Council, and Ed Thampke, Montana Department of Environmental Quality (October 22, 1997).

12. Letter from Timothy Byron, Montana DEQ, to Bob Hamlin, Agri-Systems, Inc. (December 5, 1997); Letter from Hanlin to Bryon re: monitoring well reports (December 1, 1997).

13. Letter from Timothy Byron, Montana Department of Environmental Quality to Bob Hamlin, Agri-Systems, Inc. (November 14, 1997) re: "Notice of Violation and corrective action requirement...."

14. Letter from Timothy Byron, Montana Department of Environmental Quality to Bob Hamlin, Agri-Systems, Inc. (November 21, 1997), which states, in relevant part, "The department does not consider your response an adequate commitment to achieving compliance.... Should you fail to meet this second deadline, I will request that the department's Enforcement Division prepare an administrative order containing the appropriate stipulations."

15. Art. II, Sec. 3, Mont. Const. (1972).

16. Section 75-5-101, Montana Code Annotated, et seq. (1993); Petition for Cert., Northern Plains Resource Council and Cottonwood Resource Council v. State of Montana ex rel. Board of Health and Environmental Sciences et al., Cause No. ADV, 92-1148 (1st Dist. Mont.), p. 11.

17. Chapters 495, 497, 501, 539, 546 and 582, Laws of 1995 (Mont.); Chap. 541, L. 1997 (Mont.); Dan Frasier, former Chief, Water Quality Bureau, Montana Department of Health and Environmental Sciences, "1995 Changes to the Montana Water Quality Act," Public Education for Water Quality Project (September 1996).

18. Montana Department of Environmental Quality, "Regulations for Concentrated Animal Feeding Operations," (undated), p. 2.

19. Fred Shewman, Concentrated Animal Feeding Operation -- General Discharge Permit, Montana Department of Environmental Quality (1996), pp. 4-5.

20. Administrative Rules of Montana (ARM) 17.30.1001-1011; § 75-5-303, MCA (1997).

21. Chapters 495, 497, 501, 539, 546 and 582, Laws of 1995 (Mont.); Chap. 541, L. 1997 (Mont.); Dan Frasier, former Chief, Water Quality Bureau, Montana Department of Health and Environmental Sciences, "1995 Changes to the Montana Water Quality Act," Public Education for Water Quality Project (September 1996).

22. Aaron Browning, "Enough is Enough: Tell DEQ Not to Allow More Pollution of Our Water" (July 1998), pp. 1-4; Montana Administrative Register Public Notice No. 37-78 (July 16, 1998).

23. Montana Department of Environmental Quality, "Regulations for Concentrated Animal Feeding Operations," (undated), p. 2; Fred Shewman, Concentrated Animal Feeding Operation -- General Discharge Permit (Montana Department of Environmental Quality (1996), pp. 4-5.

24. Montana Environmental Policy Act (MAPA), §75-1-101 et seq; John Mundinger and Todd Everts, Legislative Environmental Policy Office, Montana Environmental Quality Council, "Appendix B: Model MEPA Rules," A Guide to the Montana Environmental Policy Act (June 1998).

25. Kevin D. Keenan, "Part 4: The Agricultural Permit Program." Phase 1 Report, Joint Water Quality Compliance Study, Northern Plains Resource Council and Public Employees for Environmental Responsibility (September 17, 1997), p. 1.

26. Montana Department of Environmental Quality, "Large Feedlot Facilities" and "Small Feedlot Facilities," MPDES permit database print-outs (undated but received by Northern Plains Resource Council in 1997).

27. Montana Agricultural Statistics Service, "Montana Agricultural Statistics" (October 1996), pp. 13, 14, 85 and 91.

28. Kevin D. Keenan, "Part 4: The Agricultural Permit Program." Phase 1 Report, Joint Water Quality Compliance Study, Northern Plains Resource Council and Public Employees for Environmental Responsibility (September 17, 1997), p. 1.

29. Kevin D. Keenan, "Part 4: The Agricultural Permit Program." Phase 1 Report, Joint Water Quality Compliance Study, Northern Plains Resource Council and Public Employees for Environmental Responsibility (September 17, 1997), p. 1.

30. Letter from Edward Thampke, Montana Department of Environmental Quality, to Patricia Vandersloot (December 4, 1997), p. 3.

31. Personal communication between Aaron Browning, North Plains Resources Council, and Gavin Anderson, Local Government Assistance Division, Montana Dept. of Commerce (June 22, 1998); §§75-2-304(4), 75-5-311(6), MCA.