LAGOON OVERFLOW FROM WASH AND STORMWATER     BOTTLED BLACKWATER             FISH KILL  - IN AMERICA'S HEARTLAND

New Mexico Dairy Reform Coalition investigation into denial of Ruch Dairy permit. The record seems to be indicative of the attitude of many dairies in New Mexico, with the opinion that these businesses are not responsible for their own waste.

 Ref:    Ruch Dairy, (DP-699)

            911 Lovington Highway

            Hobbs, NM (Public Hearing of Nov. 16, 2010)

TO ILLUSTRATE SOUND AND VALID DECISIONMAKING IN RESPONSE TO NUMEROUS VIOLATIONS OF BOTH NEW MEXICO REGULATIONS AS WELL AS THE CLEAN WATER ACT.

IN THE MATTER OF THE APPLICATION OF RUCH DAIRY (FORMERLY K & B DAIRY) FOR GROUND WATER DISCHARGE PERMIT RENEWAL AND MODIFICATION (DP-699) NO. GWB 10-25 (P)

FINAL ORDER OF CABINET SECRETARY RON CURRY

          Preface: Several thousand New Mexico residents  are allied in a common effort to identify and stop damage and destruction of our beautiful resources, in particular water pollution, since 90% of our citizens are dependant on ground water for their source of drinking water. We have been represented at all of the statewide dairy regulation meetings and hearings for over 2 years, and were parties to the recent WQCC hearings in which effective dairy regulations were adopted.

            These actions were a direct result of SB206, asked for and passed in response to the Dairy Industry, to give them a level playing field with some reasonable expectation of what would be the inherent requirements of Groundwater Discharge Permits.

Probably you might not have been aware that the state had no regulation procedure for dairies or any animal feeding operation, as per EPA, “CAFO”, or “AFO”. In other words, even though portions of other industrial regulations were adapted, none dealt with the massive amounts of animal waste that are generated when hundreds or thousands of animals are penned on a small plot of land. This is untreated and becomes a deadly toxic mix rather quickly.

Dairy cows in Chavez County alone produce as much waste as the human populations of Los Angeles and Philadelphia combined. The cities perform treatment on the waste which cleans it up greatly, animal waste is not treated. A lactating dairy cow will product just about 23 times the amount of waste daily as a human.

            For Ruch Dairy, members of our groups were present at the public hearing. The major opinion our folks expressed was shock and awe by the immediate and total denial of a Groundwater Discharge Permit for this facility. We were surprised because it seemed rather out of place to deny this permit as the NMED (Bureau) has already recommended issuance of the permit.

            Keeping in mind that the NMED is in place to protect our ground water and all our valuable New Mexico resources, we determined to try to track this down and see what the real history of Ruch Dairy or K & B Dairy or Goff Dairy, (beginning in February 1991) could be to deserve such abrupt and decisive action.

Members of our groups in both Anthony and Hobbs have contaminated ground water. Waters of the Rio Grande from Percha Dam to the state line are contaminated with E-Coli bacteria and has been listed in a 303(d) list for several years. According to the state publication, a portion of this is due to numerous CAFO’s in the area.     

Dairy Row south of Las Cruces is in abatement for contaminated ground water originating mostly from clay liners at 11 of those facilities. For some reason, certain dairy operators seem to believe it’s up to the State of New Mexico and the citizenry to protect against and clean up areas of their animal waste, and is not the responsibility of the dairy. Many residents of this area are prevented from drinking their own well water as contamination has perked through the aquifars and the wells bring up toxic water.

Another group member has contaminated well water. It’s not drinkable and actually back at the beginning when this contamination first occurred and no one knew, some serious family illness occurred caused by nitrates and other chemicals in the drinking water.

            We have sorted back through history to put some light and understanding to the Ruch issue, and have NMED records showing the history with the problems that have occurred. In fact, ground water at this facility is high in nitrates right now, and has been for several years. Here’s another site in New Mexico with “water unsafe to drink.”

This is somewhat indivicative of community water problems in most parts of the state that host dairy facilities.

TO BEGIN THE SERVICE RECORD (NMED FILES)

The original discharge permit for this facility, DP-699, was issued on February 1, 1991 to Buster Goff for the proposed Goff Dairy. Mr. Goff notified the Bureau that the facility had been leased or purchased as Ruch Dairy on June 4, 1994. The discharge permit was renewed and/or modified on July 16, 1996 as Ruch Dairy, and March 27, 2002 as K & B Dairy with Bruno Bruelhart as the responsible party. On March 7, 2003, the Bureau received notice from Mr. Bruelhart that management of K & B Dairy had been transferred to Klaas Sonsma and Gene Koopman.

This facility has had a history of non-compliance with DP-699, including  confirmed ground water contamination, and numerous spills of wastewater, stormwater and potable water. On December 26, 2006, the Bureau received an application for discharge permit renewal and modification from EnviroCompliance Services on behalf of K & B Dairy. The application proposed the discharge of up to 15,000 gallons per day of agricultural wastewater from the milking parlor to a concrete-lined sump and then to two claylined lagoons for storage, followed by land application of wastewater by center pivot sprinkler and flood irrigation to 175 acres of irrigated cropland under cultivation.

            Note: Keep in mind that we have no “new” water. Whatever we have on this earth is recycled. We might go to Walmart and buy new bottles, getting city tap water from somewhere for the most part, but we didn’t buy “new” water. With that point made, back to Ruch Story as it develops.

Ongoing wastewater, stormwater and potable water spills continued to occur throughout 2007 and 2008, as detailed in the testimony of Ms. Arthur. In January 2009, Mr. Koopman informed the Bureau that he was no longer milking at K & B Dairy and was no longer responsible for DP-699. All cattle had been removed by December 30, 2008. In February 2009, Applicants (Ruch) informed the Bureau that they were in control of the facility, and that DP-699 should be issued in their name.

In February 2009, the Bureau issued a preliminary draft discharge permit renewal and modification, and set March 25, 2009 as the deadline for response. The preliminary draft DP set out several requirements running from the DP effective date or prior to resuming discharge from the facility.

Applicants requested a two-month extension to respond, the Bureau agreed The response, received June 1, 2009, requested a much larger discharge of 40,000 gpd (gallons per day) and numerous extensions of deadlines for submitting lagoon plans and specifications, installation of a synthetically-lined lagoon, a solids separator, monitoring wells, totalizing flow meter, a grading and drainage plan and closure of old lagoons. The Bureau issued the draft discharge permit on July 21, 2009; the Dairy responded to the draft on August 28,2009.

NMED issued a revised draft discharge permit on November 6, 2009, reiterating that the Dairy did not have permission to resume discharging until the Bureau had issued a final version of DP-699. Applicants responded on November 23, 2009, requesting further changes to permit condition deadlines, and indicating that they intended to resume discharging in December 2009 to generate cash flow.

In January 2010, NMED replied with several reasons, including continuing ground water contamination, why certain actions were required to be completed prior to resuming discharge, and repeating that the Applicants did not have permission to resume discharging until the Bureau had actually issued a final version of DP-699.

Discussions continued in February 2010 between NMED and the Applicants, and public notice of the availability of the Second Revised Draft Discharge Permit Renewal and Modification of DP-699 was published on March 24, 2010. On April 29, 2010, the Bureau received a facsimile from Dorothy Runnels opposing renewal of DP-699, and requesting a hearing, which included a petition signed by 57 citizens of Lea County.

On May 14, 2010, the Division Director for the Water and Waste Management Division approved the hearing request.

On July 16, 2010, the Bureau was informed by a citizen that Ruch Dairy had resumed milking. An inspection on August 10, 2010, confirmed that the Dairy was milking 400 cows and had around 250 dry cows/heifers. Co-lessees at the site informed the inspector that milking had resumed "around the end of last year" or "sometime in January." Monthly discharge volumes were not reported in that time; on August 20, Applicants' consultant stated that the meter was broken. On September 3, 2010, Department counsel corresponded with Applicants' counsel to note that the Dairy was operating without a discharge permit and without authorization. The Bureau nonetheless requested monitoring reports and other information that would have been required under the permit, and made the necessary publications for the Nov 16 Public Hearing.

The New Mexico Water Quality Regulations define "discharge permit renewal" as "the re-issuance of a discharge permit for the same, previously permitted discharge." Section 20.6.2.7.4. NMAC. The New Mexico Water Quality Regulations provide that if the holder of a discharge permit submits an application for discharge permit renewal at least 120 days before the discharge permit expires, and the discharger is not in violation of the discharge permit on the date of its expiration, then the existing discharge permit for the same activity shall not expire until the application for renewal has been approved or disapproved. Section 20.6.2.3 106.F. NMAC.

Pursuant to NMSA 1978, Section 74-6-5, "the constituent agency shall deny any application for a permit if the applicant has, within the ten years immediately preceding the date of submission of the permit application, knowingly misrepresented a material fact in an application for a permit; refused or failed to disclose any information required under the Water Quality Act.. . . . ..; or exhibited a history of willful disregard for environmental laws of a state or the United States."

Notwithstanding the simultaneous request for modification of the discharge permit, with the definition of "modification" going to the location, quality or quantity of a discharge, the facts in this matter do not constitute a "discharge permit renewal."

The discharger under DP-699 was in violation of the discharge permit on the date of its expiration; the discharge permit did not continue in effect through the purported transfer to the Ruches. The Applicants knowingly misrepresented a material fact and failed to disclose required information in the final iteration of the application the fact that they were already operating, without a discharge permit.

Applicants further exhibited a history of willful disregard for the laws of New Mexico by operating without a discharge permit for several months.

At this point, the Secretary denied the application. We felt it commendable that the NMED was prepared to try to bring the permit back to life by taking the critical information, but it seemed the applicants would not visit this cause. We’re not sure that was to anyone’s benefit, as the troubled history of violations revisits the dire straights of the dairy industry in New Mexico, with 60% groundwater contamination figures, and has us thinking about high nitrates and E-Coli again. We feel that America’s food chain is already stressed and out of control, and with almost weekly recalls of some vegetable or meat or other product, it’s protective of our families health and well being that severe dangerous issues such as this are caught and identified before more sickness and harm results.

We are more satisfied that we now understand what happened with Ruch Dairy, and we understand and fully agree with NMED in any refusal to allow this to continue.

We feel the Ruch Family was treated fairly, in the interim as Under 74-6-10.2. Criminal penalties.

A. No person shall:

(1) discharge any water contaminant without a permit for the discharge, if a permit is required, or in violation of any condition of a permit for the discharge from the federal environmental protection agency, the commission or a constituent agency designated by the commission;

(2) make any false material statement, representation, certification or omission of material fact in an application, record, report, plan or other document filed, submitted or required to be maintained under the Water Quality Act

[Chapter 74, Article 6 NMSA 1978];

(3) falsify, tamper with or render inaccurate any monitoring device, method or record required to be maintained under the Water Quality Act;

(4) fail to monitor, sample or report as required by a permit issued pursuant to a state or federal law or regulation; or

(5) introduce into a sewerage system or into a publicly owned treatment works any water contaminant or hazardous substance, other than in compliance with all applicable federal, state or local requirements or permits, that the person knew or reasonably should have known could cause personal injury or property damage, which causes the treatment works to violate an effluent limitation or condition in a permit issued to the treatment works pursuant to the Water Quality Act or applicable federal water quality statutes.

B. Any person who knowingly violates or knowingly causes or allows another person to violate Subsection A of this section is guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.

C. Any person who is convicted of a second or subsequent violation of Subsection A of this section is guilty of a third degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.

D. Any person who knowingly violates Subsection A of this section or knowingly causes another person to violate Subsection A of this section and thereby causes a substantial adverse environmental impact is guilty of a third degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.

E. Any person who knowingly violates Subsection A of this section and knows at the time of the violation that he is creating a substantial danger of death or serious bodily injury to any other person is guilty of a second degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.

F. A single operational event that leads to simultaneous violations of more than one water contaminant parameter shall be treated as a single violation.

These regulations were violated or defeated or refused in practice.

Being involved with NMED and the Dairy Industry for some years now, our considered opinion is that the effect of discounting or denying these good sense regulations causes unaccountable harm to our limited resources, our groundwater, our land and rivers and streams, and as well represents a proven cause for human sickness and possible death. We request the full force of law be applied to stop and bring under control and rule, any acts of non-compliance anywhere that these conditions might exist.

New Mexico Dairy Reform Coalition.

PO Box 131

Caballo, NM, 87931

Jwn (signed)