670003_ENFORCEMENT_20171231

NUHTH UAHULINA
Department of Environmental Qual

State of North Carolina
Department of Environments •7XYA
And Natural Resources 41i
Wilmington Regional Office i
Michael F. Easley, Governor NCDENR
Sherri Evans -Stanton, ActinOF
ENVIRONMENPrT ANSecretary NORTH AND NOLINA DEPARTMENTATtJRAL RESOUR
_ AI RCES
Kerr T. Stevens, Director
Division of Water Quality
Memo
To: Water Quality Compliance & Enforcement Unit
From: Water Quality Wilmington Regional Office
Date: January 8, 2001
Subject: Notice of Intent for 67-3 (Marion Howard)
Initial Statement
It is our belief that a majority of this lawsuit stems from a memo (enclosed) found in the
Division of Water Quality Wilmington Regional Office's General File for facility 67-3.
Upon review of the accusations set forth in the Notice of Intent and all documents found
in our files, the Notice is flawed with inaccuracies that will be highlighted in the following
statements.
The memo from Onslow County Soil & Water Conservation District office dated January
22, 1998 was found in the General File for facility 67-3. However, the memo fails to
state the exact facility for which the event took place. Upon review of the map
accompanying the District's memo, it is clearly evident that this facility was not involved
in the noted discharge. The facility in question is in fact facility 67-58, which is a sow
farm also, owned by Mr. Howard. Apparently, this information was incorrectly filed.
The original memo will be filed correctly under 67-58 and a copy of the memo will
remain in the 67-3 file with a reference to the mistake. An aerial photo from 1996
showing the proximity of these facilities is being provided with this memo.
The effect of this revelation causes a myriad of inaccuracies of the facts in the Notice in
addition to others.
Section 1
1. Harry Tyson with the NRCS certified this facility on 12-29-1997 for 3351 Feeder -
Finish. It has a Certificate of Coverage dated 9-23-1998 for 3271 Finish. The
lagoon is designed for 6300 Finish according to the permit application package. It is
unclear where 6800 Finish comes from in the Notice.

2. The June 12, 1997 inspection by Dave Holsinger does not indicate that more hogs
were on -site than design capacity. He indicated 6800 next to Feeder -Finish design
capacity, but correctly indicated 6300 by Total Design Capacity & Total SSLW.
Design capacity was apparently decreased when certified in Dec. 1997 due to lack
of acreage.
3. Wetted Acres -- It appears that Mr. Howard has a cost -shared irrigation design with
Onslow County. Apparently no design was on -site when evaluated on 5-21-1999 by
Patrick Fussell with DSWC. Also, no known waste utilization plans for this facility
state that acreage is based on a design.
4. Reference to a March 23, 2000 Memo about nitrates and clearing/ditching of land
refers to a Memo from Bruce Parris to Sue Homewood concerning the Brandon
Howard facility 67-20. It has absolutely no bearing on this case.
5. Statement about inspection conducted on June 12, 1997 is incorrect. Fields had
been recently converted (probably that spring) from row crops to Coastal Bermuda
according to Dave Holsinger. It is doubtful that this facility had a waste utilization
plan at all prior to certification. If it did, it was probably based on row crops.
Section 3
Their lagoon liquid volume, nitrogen, etc. statements appear to be based on a 6800
Farrow -Finish operation according the Notice. This is a Feeder -Finish operation and
size is not consistent with known stocking level.
2. It is highly doubtful that any commercial fertilizer or manure is being supplemented
on Bermuda fields at this facility. It may be occurring. at the sow operation 67-58
that utilizes row crops.
Section 4
1. We have no knowledge of any drain tiles at 67-3, but it does appear that the sow
operation 67-58 may have some.

�.,
RECEIVED _ Z� �
JAN D 2 20q] _.�
December 5 2000
BY: 1 III 1
DEC I 1 2F1�?q
CERTIFIED MAIL RETURN RECEIPT REQUESTED' = '• '
Marion Howard - - -
Certified Operator, Howard Farms (467-3)
5585 Gum Branch Road. --___-
Jacksonville, NC 28540
Ronnie Howard
Registered Agent for Howard Farms
1622 Howard Road
Autryville, NC 28318
Re: Notice of Intent to Sue for Violations of Clean Water Act, Resource
Conservation and Recovery Act, and Clean Air Act
Dear Mr. Howard,
I represent the New Riverkeeper and the Water Keeper Alliance. I am writing you as the
owner or operator of Howard Farms, facility number 67-3, located off SR 1316,
approximately one mile southwest of the intersection with SR 1308 (Gum Branch/Road)
("Howard 67-3"). This letter is to inform you that we intend to sue Howard 67-3 under
33 U.S.C. section 1365 for violating the Clean Water Act, under 42 U.S.C. section 6972
for violating the Resource Conservation and Recovery Act, and under 42 U.S.C. section
7604 for violating the Clean Air Act.
L Violations of the Federal Clean Water Act
1. Failure to obtain a required NPDES permit
We hereby place the owner or operator of Howard 67-3 on notice, pursuant to section
505(b) of the CIean Water Act, 33 U.S.C. section_ 1365(b), that we intend to sue Howard
67-3 for violating and continuing to violate effluent standards and limitations as defined
by section 505(f) of the Act, 33 U.S.C. section 1365(o, by discharging pollutants into
waters of the United States without a permit required under Act section 301(a), 33 U.S.C.
section 1311(a).
The Clean Water Act prohibits the discharge of pollutants from a point source to the
waters of the United States except pursuant to and.in compliance with a National
Pollutant Discharge Elimination System ("NPDES") permit. 33 U.S.C. § 1311(a); 33
U.S.C. § 1342. The Act defines "pollutant" to include solid waste, biological materials,
and agricultural waste discharged into water. 33 U.S.C. § 1362(6). "Point source" is
defined as "any discernable, confined and discrete conveyance, including but not limited
to any pipe, ditch, channel, tunnel, conduit', well, discrete fissure, container, rolling stock,
concentrated animal feeding operation ... from which pollutants are or may be

discharged." 33 U.S.C.- § � 362(14). Regulations promulgated pursuant to the Clean
Water Act state that, "(c]oncentrated animal feeding operations are poin soar —es -subject
to the NPDES permit program." 40 CX.R., pt. 122.23(a). Therefore, the discharge of
swine waste into waters of the United States from a concentrated animal feeding
operation is a regulated discharge of a pollutant from a point source and is prohibited.
unless in compliance with an NPDES permit. - ..
Howard 67-3 is an animal feeding operation because it has animals that are stabled or
confined and fed or maintained for 45 days or more in a 12-month period and no crops,
nor vegetation .forage growth, nor post -harvest residues are sustained in the normal
growing season over that portion of the lot where the animals are confined. 40-C.F.R,, pt.
122.23(b)(1). Howard 67-3 is a concentrated animal feeding operation within -the
meaning of the Clean Water Act because it has approximately 6,800 feeder to finish hogs,
which is more than 2,500 swine each weighing over 25 kilograms, or more than 1,000
animal units, or 750 swine each weighing over 25 kilograms, or more than 300 animal
units and pollutants are discharged into navigable waters through a manmade ditch,.
flushing system or other similar man-made device or pollutants are discharged directly
into waters of the United States which originate outside of and pass over, across or
through the facility or otherwise come into direct contact A ith the animals confined in the
operation. 40 C.F.K pt. 122, Appendix B. Additionally, as will be set forth below,
Howard. 67-3 has and continues to discharge other than in the event of a 25-year, 24-hour
storm event. Therefore, Howard 67-3 is not exempted by the Criteria for Determining a
Concentrated Animal Feeding Operation found at 40 C.F.R. part 122, Appendix D.
For these reasons, we believe that Howard 67-3 is violating the Clean Water Act by
failing to obtain an NPDES permit. 33 U.S.C. § 1311(a); 33 U.S.C. § 1342,
2. Specific illegal discharges to the waters of the [united States
We also hereby place the owner or operator of Howard 67-3 on notice pursuant to section
505(a), (b) and (0 of the Clean Water Act, 33 U.S.C. section 1365(a),(b), and (f), that we
intend to bring legal action against it for having discharged pollutants into the waters of
the United States on the dates indicated below. These discharges violate section 301(a)
of the Clean Water Act, 33 U.S.C. section 1311(a), which prohibits the discharge of any
pollutant to the waters of the United States except in conformity with the Act, and 40
C.F.R. parts 412.12 and 412.13, which prohibit the discharge of any process waste to
navigable; waters of the United States, except during the extreme precipitation events
referenced therein.
We believe that Howard 67-3 has discharged into the waters of the United States j
pollutants found in swine waste lagoons including, but not limited to the following:
biological material and ocher organic matter exerting chemical and biological oxygen J
demand in the waters; nutrients, including nitrogen and phosphorous; suspended and
dissolved solids; salts; metals; sewage; solid waste; pathogens; pesticides; biocides;
disinfectants; antibiotics, hormones; and other materials. These discharges have resulted
in the presence in the waters of distinctly visible: floating or settleable solids, suspended

solids, scum, foam, deposits of sludge and silt, bad odors, materials harmful to aquatic
life, distinctly visible color, and other conditions altering the integrity of such waters.
Specifically, Howard 67-3 is a point source of unpermitted discharges of pollutants into
tributaries of the New River, and other waters of the United States. The discharges have
occurred on a regular basis since the swine facility commenced operation.
The following information available to us at this time supports this claim. Documents on
file with the North Carolina_ Department of Environment and Natural Resources Division
of Water Quality ("DWQ") indicate that Howard 67-3 has discharged waste to waters of
the United States. In a memo dated January 22, 1998, Mike Carroll, of the Onslow Soil
and Water Conservation District reported that an inspection revealed that 200 gallons of
hog waste from Howard 67-3 had flowed down the sloped fields and into a drainage ditch
where the waste was noted 3/4 a mile downstream. Inspection reports, including that of
June 12, 1997, report that Howard 67-3 had more hogs than the facility was designed for.
The state discovered in a site inspection of September 6, 2000 that the facility's structures
lack adequate gauges and markers and that record keeping was inadequate. On August
27, 2000, state inspectors found that Howard 67-3 had failed to accurately state the
numbers of acres eligible to receive waste and that some or all of its fields were therefore
exceeding the allowable loading rates set in its waste management plan. On May 15,
2000, the DWQ notified Howard 67-3 that it had not submitted required information
about its wettable acreage determination. On March 23, 2000 a DWQ memo noted
highly elevated levels of nitrates were discovered in groundwater at or near Howard 67-3.
_ On the same date, inspectors noted that the facility was clearing and ditching in violation
of its waste management plan. On May 21, 1999, state inspectors found the records for
Howard 67-3 in poor condition. The inspection report notes that the justification and
documentation for the wettable acreage determination was unclear, illegible or lacked
information. On July 8, 1998, state inspectors discovered a leak in a return line and noted
that records related to spraying and to soil and waste analysis were not current. In
addition, in a site inspection of on June 12, 1997, inspectors noted that the sprayfield
crops were poorly maintained and that the wrong crop had been planted, in violation of
the waste management plan for Howard 67-3.
These site inspection records and our observations reveal a pattern of operational
problems at Howard 67-3 that make it likely that such discharges will continue. Each of
these incidents constitutes a violation of sections 301 and 402 of the Clean Water Act,
and of regulations found at 40 C.F.R., parts 412 and 413.
The New Riverkeeper has also observed operational problems such as those referenced
above at the Howard 67-3 facility. These operational failures strengthen our conviction
that such pollutant discharges will continue at Howard 67-3. Discharges from the
Howard 67-3 sprayfields appear to have caused a violation of water quality standards.
State water quality standards prohibit floating solids, settleable solids, and sludge
deposits in excess of amounts that will make the water unsafe or unsuitable for aquatic
life and wildlife, or that impair the waters for any of its designated uses as Class C
waters. Designated uses for Class C waters include wildlife propagation, fishing, and
.. 3

secondary recreation. 15A N.C.A.C. § 0211(1). The presence of floating and settleable
solid such as those caused by Howard 67-3 directly impair these uses.
We expect that records in possession of Howard 67-3, to which we do not have access at
this time, will provide further support for this claim.
3. Continuous illegal discharges from mishandled waste
This letter also places the owner or operator of Howard 67-3 on notice that in addition to
the specific discharges described above, we believe that the Howard-67--3`facility'is
violating the Clean Water Act because it is improperly handling its hog waste, causing
continuous discharges. Based on the acreage available for waste application at the
Howard 67-3 operation, the number and type of animals at the site, and the crops that
were to have been planted and harvested there, we are confident that Howard 67-3 is
dangerously overapplying waste to its fields. Over spraying hog waste pollutes
downstream waters in the same way that lagoon spills do. Mallin, M., Impacts of
Industrial Animal Production on Rivers and Estuaries, AMERICAN SCrENnST, Vol. 88,
January — February (2000), at 33.
The state of North Carolina requires that hog facilities adhere to a Certified Animal
Waste Management Plan because the handling of swine waste is inherently dangerous to
human health and the environment. The state approved the Waste Management Plan for
Howard 67-3 based on Howard 67-3's representations that it would follow strict
operational standards, including the following: minimum separations (buffers); liners or
their equivalent for lagoons or waste storage ponds; maintenance of adequate waste
storage capacity; adequate amount of land for waste utilization; access or ownership of
proper waste application equipment; adherence to an appropriate schedule for timing of
applications and application rates; attention to loading rates; and adherence to specific
crop planting and harvesting schedules. Although at this point in the proceedings we do
not have access to many of the records that exist related to Howard 67-3's compliance
with these conditions, our surveillance of the Howard 67-3 facility combined with our
experience with hundreds of similar facilities leads us to believe that Howard 67-3 has
violated some or all of the conditions listed above and that these violations have
contributed to pollutants regularly reaching groundwater, surface waters, and air.
Specifically, we intend to show that Howard 67-3 failed in at least the following respects:
failure to maintain accurate records of spray amounts and waste concentrations; failure to
maintain adequate freeboard levels; failure to plant the crops required by its waste
utilization plan; failure to harvest and remove crops as required by its waste utilization
plan; failure to maintain adequate vegetated buffers; and by applying waste at times when
it could not adequately be absorbed by the soil, such as during wet or frozen conditions.
Phosphorous and nitrogen are highly concentrated in hog waste. Maliin at 33. Studies of
the streams of Eastern North Carolina have demonstrated that even normal rainfall events
carry nutrients from hog facility sprayfields across the field or through shallow
groundwater into nearby receiving streams, leading to nutrient concentrations around
4

these operations high enough to cause damage to aquatic ecosystems. Mallin at 34. This
addition of nutrients is particularly detrimental to streams in the eastern part of the state,
known as "blackwater streams" because they are sluggish and characterized by low
gradients, which are especially sensitive to the effects of ovemutrifcation. Mallin at 34.
Howard 67-3 constantly produces massive amounts of nutrients, especially nitrogen,
phosphorous, and potassium. Quantities of nutrients in hog waste produced by the
Howard 67-3 facility can be estimated using averages created by North Carolina State
University (NCSU) in its manual for operators of animal waste management systems.I
Using these figures, the estimated 6,800 farrow to finish animals at Howard 67-3 will
produce an estimated 71,270,800 gallons of lagoon liquid annually and an estimated
58,711,200 gallons of slurry that will need to be land applied. Id. at 34. The slurry will
contain an estimated 1,820,047 pounds of nitrogen, an estimated 1,291,646 pounds of
phosphorous, and an estimated 998,090 pounds of potassium. Id. at 36. It will also
contain an unknown quantity of heavymetals, such as copper and zinc. Almost half of
these nutrients will not be available to be taken up by plants in the first year because the
organic nutrients must first be broken down by soil microbes into mineral forms before a
plant can use them. Id. at 35. Even if Howard 67-3 adheres perfectly to its Waste
Management Plan, 50 percent or more of the nitrogen put on its soils can enter the
environment by leaching into or running off into water or by volatilizing to air. Soil
Facts, Nutrient Rernoval by Crops in North Carolina, a publication of the North Carolina
State University Cooperative Extension Service, publication AG439-16 (1991).
Variables such as soil temperature greatly affect the rate of this breakdown. Certification
Training at 35. On information and belief, Howard 67-3 is also adding nutrients to its
soils in the form of commercial or starter fertilizers. The Waste Management Plan for
Howard 67-3 does not adequately account for these variables. Thus, the total nutrient
content at Howard 67-3 can only be conservatively estimated using figures from NCSU's
Certification Training Manual. NCSU's availability factors state that only approximately
30% of nitrogen from irrigated liquid waste slurry and only approximately 70% of
phosphorous and potassium from all waste types will be available to plants in the first
year. Certification Training at 36. Using these availability figures, it is clear that the
nutrients that are land applied each year but are not plant -available at Howard 67-3 are
substantial and can be estimated at 1,274,032 pounds of nitrogen, 387,493 pounds of _
phosphorous, and 299,427 pounds of potassium. These nutrients, since they cannot be
taken up by crops, may enter groundwater, surface water, or air.
Excessive nitrogen application causes nitrogen to enter the environment in various forms.
Some nitrogen applied to soils is converted to nitrate -nitrogen, which is highly water
soluble, therefore leaches into groundwater and runs off to surface waters. Fretz, T., et
al., Agriculture and its Relationship to Toxic Dinoflagellates in the Chesapeake Bay,
publication of the University of Maryland School of Agriculture and Natural Resources,
Certification Training for Operators ofAnimal Waste Management Systems, a'publication of the North
Carolina Co-operative Extension Service of the North Carolina State University College of Agriculture and
Life Sciences, publication AG-538 (1996). Note that in citing these figures we are not necessarily
endorsing them, but are using them for purposes of illustration only.
5

(1997), at 3. Several recent studies have established that where animal waste is the
primary source of fertilizer, phosphorous is being overapplied. Fretz at 5. A September
2000 study found that phosphorous was being vastly overapplied by hog operations.
Marberry, S., FEEDSTU�FS MAGAZINE, September 18, 2000. The University of Northern
Iowa study2 looked at ten operations, and concluded that the operations studied would
need an additional 24,000 acres, or six times the available land, to avoid overapplying the
phosphorous from the waste they were producing. Id. The waste handling system of
North Carolina hog operations like Howard 67-3 has caused excessive phosphorous to
accumulate in their soils. Mallin at 35. Excess phosphorous enters groundwater or .
surface water rather than binding to soil. Id. This is especially likely in areas with well -
drained, sandy soils such as those found in Eastern North Carolina, where Howard 67-3 is
located. Id. Soils overloaded with phosphorous generate significant amounts of soluble
phosphorous that can be readily transported by surface water runoff even with minimal
soil erosion. Fretz at 3. Phosphorous overloading exacerbates eutrification in surface
water. Mallin at 3 5.
As set forth above, even if Howard 67-3 were following all conditions of its Waste
Management Plan, Howard 67-3 would be systematically overapplying phosphorous.
When this phosphorous enters the environment, this is in violation of the Clean Water
Act. We believe that Howard 67-3 is vastly overapplying both nitrogen and phosphorous
as well as other nutrients and materials because it is failing to follow the terms of its
Waste Management Plan. Therefore, we believe that Howard 67-3 is illegally
discharging pollutants at least every time it rains in an amount that causes runoff from the
sprayfields.
We expect that records in Howard 67-3's possession, to which we do not have access at
this time, will provide further support for this claim.
4. Illegal discharges from subsurface drain tiles.
We also hereby notify the owner or operator of Howard 67-3 that we believe that Howard
67-3 may be regularly discharging swine waste into waters of the United States via
subsurface drainage tiles installed beneath its sprayfields. Subsurface drainage tiles are a
point source under the Clean Water Act, and consequently, any pollutant discharges from
those drainage tiles thaf,reach waters of the United States constitute a violation of the
Clean Water Act. It is unclear from publicly available records whether there are drainage
tiles at the Howard 67-3 facility. Based on the history of documented operational
problems at Howard 67-3 set forth in this letter and the possible presence of subsurface
drainage tiles under the sprayfields, it is likely that such discharges of swine waste will
continue to occur.
We expect that records in Howard 67-3's possession, to which we do not have access at
this time, will provide further support for this claim.
The study was conducted by Dr. Laura Jackson, professor of biology at University of Northern Iowa.
6

The discharges referenced above and Howard 67-3's failure to obtain a required NPDES
permit demonstrate a continuing pattern of pollution at Howard 67-3 in violation of the
Clean Water Act. Because the conditions that resulted in these violations persist, they
each constitute an on -going violation of the Act. Howard 67-3 will remain in violation of
the Act each day that it operates without an NPDES permit, and until such time as
Howard 67-3 ceases all discharges of pollutants to waters of the United States, including
discharges via subsurface drainage tiles. Howard 67-3 is liable for civil penalties of
$27,500 or more per day for each day it remains in violation of the Clean Water Act.
At the close of the 60-day notice period, we intend to file a citizen suit under section
505(a) of the Clean Water Act against Howard 67-3 as the operator of the above -
referenced facility for the violations discussed herein. This Notice of Intent to Sue covers
all Clean Water Act violations by Howard 67-3 during the five (5) years preceding the
date of this letter and covers all future violations arising from its continued operations.
11. Violations of the Federal Resource Conservation and Recovery Act
We also hereby place the owner or operator of Howard 67-3 on notice pursuant to 42
U.S.C. section 6972(b)(1)(A) and section 6972(b)(2)(A) that we intend to sue Howard
67-3 for at least two types of violations of the Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C. section 6972. >
1. Qpen dum in
First, we intend to sue Howard 67-3 for maintaining an open dump in violation of RCRA.
42 U.S.C. § 6945(a), 40 C.F.R., pt. 257. RCRA defines ""disposal" as "the discharge,
deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous
waste into or on any land or water so that such solid waste or hazardous waste or any
constituent thereof may enter the environment or be emitted into the air or discharged
into any waters, including groundwaters." 42 U.S.C. § 6903(3). "Solid waste" is defined
as "any garbage ... and other discarded material, including solid, liquid, semi -solid, or
contained gaseous material resulting from industrial, commercial, mining, and
agricultural operations..." 42 U.S.C. § 6903(27). Although regulations exempt from the
definition of solid waste animal manure that is returned to the soil as fertilizer at 40
C.F.R. part 261.4(b)(2)(ii), waste that is applied in excess amounts and is discharged into
surface waters is not being returned to the soil as fertilizer, but rather is being
"discarded," and is not covered by this exemption. See, Owen Electric Steel Company o
South Carolina, Inc. v. Browner, 37 F. 3d 146, 149 (4th Cir. 1994); Concerned Area
Residents v. Southview Farms, 34 F. 3d 114 (2d Cir. 1994). In addition, waste that
reaches groundwater, surface water, or air while it is stored in lagoons or impoundments
falls within this definition. RCRA defines "open dump" as "a facility for the disposal of
solid waste which does not comply with this part." 40 C.F.R., pt. 257.2.
Howard 67-3 is violating RCRA's prohibition against disposing solid waste in open
dumps by regularly overapplying hog waste, by keeping too much waste in its lagoons,
and by other operational failures, as set forth above.
7

We expect that records in Howard 67-3's possession, to which we do not have access at
this time, will provide further support for this claim.
At the close of the 60-day notice period, we intend to file a citizen suit pursuant to section
7002(a)(1) of RCRA, 42 U.S.C. section 6972(a)(1), for all violations of section 4005, 42
U.S.C. section 6945, described above, and all violations that occur after your receipt of
this notice letter. We intend to seek injunctive relief and penalties for the illegal handling
and disposal of solid or hazardous waste in violation of RCRA.
2. Imminent and substantial endangerment
Second; we intend to sue Howard 67-3 for violating RCRA's prohibition on,
"contributing to the past or present handling, storage, treatment, transportation, or
disposal of any solid or hazardous waste which may present an imminent and substantial
endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B). As set forth in
the preceding section, RCRA defines "solid waste" to include hog waste, and defines
"disposal" as "the discharge, deposit, injection, dumping, spilling, leaking, or placing of
any solid waste or hazardous waste into or on any land or water so that solid waste or
hazardous waste or any constituent thereof may enter the environment or be emitted into
the air or discharged into any waters, including groundwaters." 42 U.S.C. § 6903(27); 42
U.S.0 § 6903(3). As set forth above, Howard 67-3 has placed hog waste on its property
in an improper manner, violating its nondischarge permit, such that this waste has entered
and continues to enter the waters of the United States. Additionally, Howard 67-3 is
emitting pollutants to the air from its waste impoundments, lagoons, pipes, spray
equipment, and fields, and on information and belief Howard 67-3 is discharging
pollutants to groundwater from its lagoons and sprayfields. These discharges to air, soil,
and water are in violation of RCRA. Howard 67-3 continues to violate RCRA because it
continues to handle its waste in this manner.
Howard 67-3's handling of its hog waste threatens public health because it puts all nearby
groundwater at risk of contamination. Hog facilities like Howard 67-3 contaminate
groundwater with leaking lagoons and with leaching of waste applied to sprayfields.
Framework -for the Conversion of Anaerobic Swine Waste Lagoons and Spray fields,
North Carolina Department of Environment and Natural Resources website, at
www.enr.state.nc.us/files/ho gs/hogplan.htm, at 2. Polluted groundwater is dangerous to
human health and the environment because it may enter streams and other surface waters
where people come in contact with it and poison wells used for -human and animal
consumption. Mallin at 35. Groundwater serves as the source of drinking water for
nearly half the population of the United States. Nugent, M.; Kamrin, M., Nitrate -- A
Drinking Water Concern, a publication of the Center for Environmental Toxicology and
the Institute of Water Research of Michigan State University, at 1. Eastern North
Carolina, where Howard 67-3 is located, is especially vulnerable to groundwater
pollution because it has sandy soils and a shallow water table. Warrick, J.; Smith, P.,
New Studies Show that Lagoons are Leaking, THE NEWS & OBSERVER, February 19,
1995, at wwwTnando.net/sproject/hoos/lwater.html., at 2. Sand allows nitrates and

bacteria to pass'quickly to water supplies below. Warrick at 53. Hog waste lagoons are a
major source of groundwater contamination. Mallin at 35. Most hog waste lagoons leak
and studies show that even lagoons described as having "little seepage" still produced
groundwater nitrate levels up to three times the allowable limit. Warrick at 4.4 Sprayed
hog waste similarly pollutes groundwater. North Carolina State University research of
fields where hog waste was being sprayed as fertilizer reported that, "evidence of
contamination was found almost everywhere" in the sandy soils beneath the spray fields.
Id. S Contaminants seeping front hog lagoons and spray fields include nutrients,
numerous strains of harmful bacteria, and chemicals. Id.
Howard 67-3's hog waste handling also endangers public health because hog excrement
contains pathogens dangerous to humans and wildlife including a number of known
human viral, bacterial, and parasitic pathogens, such as influenza, Salmonella, E.coli,
Yersinia, leptospora, Cryptosporidia, Giardia, and probably several yet to be discovered.
McBride, D., Public Health Issues Related to Intensive Livestock Operations (1998), at
2.6 Howard 67-3's lagoon and sprayfield waste management system acts as a vector for
communicable disease transmission and increases the risk of human exposure to these
pathogens. McBride at 3. Diseases are transmitted when pathogens in hog waste
contaminate human drinking water sources and recreational waters. Id. Hog waste also
transmits diseases when sprayed near homes. Spraying creates opportunities for the
aerosolized spread of the pathogens. Id. These pathogens are particularly hazardous
because systematic overuse of antibiotics in animal agriculture has fostered the
emergence of antibiotic resistant organisms in swine populations. Id. Some organisms in
hog excrement are extremely hazardous to immune -compromised people, infants, and the
elderly. Id. North Carolina's leading public health official characterizes pathogens in
hog waste as posing "a very serious health concern." McBride at 2.
Howard 67-3's hog lagoons threaten public health by increasing the potential for the
emergence of new influenza strains. McBride at 4. They create opportunities for people
and birds to come in contact with hog waste. Id. The prospect of these potent new
illnesses is more than speculative. In May 2000, a study appeared in Science magazine
3Quoting Doug Rader, a former special projects group leader in DEM's water quality branch.
4 A 1995 study by Dr. Rodney Huffman and Dr. Philip Westerman of North Carolina State University of
eleven (11) North Carolina swine lagoons found that 55% leaked moderately to severely. The study
revealed nitrate -nitrogen concentrations of 50 mgtL in some wells near clay -lined waste lagoons. The
study showed that waste from 38% of older, unlined anaerobic lagoons leaked nitrogen compounds into the
groundwater at "strong" or "very strong" levels. A North Carolina Department of Environment and
Natural Resources analysis found that even 25% of lined facilities were leaking to contaminate
groundwater. North Carolina Department of Environment and Naturaly Resources website, at
www.enr.state.nc.us/fies/hogs/hogplan.htm, at 2.
5 Citing the findings of Dr. Rodney Huf fan, professor of biological and agricultural engineering at North
Carolina State University, who studied the groundwater quality in test wells in fields where bog waste had
been sprayed as a fertilizer.
6 This statement is based on the research of Dr. Mark Sobsey, professor at University of North Carolina's
School of Public Health, and other researchers.
Z

identifying a new viral species called the Nipah virus. Recer, P., Researchers Identify
Killer Virus, Associated Press wire story, May 25, 2000. The virus, which is carried by
pigs and other animals, killed 106 people in Asia in 1998 and 1999. Id. It causes severe
encephalitis and is lethal to about 40 percent of people infected. Id. Contact with the
urine and mucus of infected animals spreads the virus to humans. Id. The National
Academy of Sciences reported in 1998 that potentially life -threatening microbes, -
including salmonella and E.coli are passed from animals to humans in food products and
through contact with animals or their manure. Antibiotic Use in Food Animals .
Contributes to Microbe Resistance, News Release of the National Academy of Sciences,
July 9, 1998. North Carolina's top health official states that the introduction of new
illnesses like these in North Carolina's hog populations "could have serious, if not
devastating, consequences." McBride at 4.
The threat to public health from microbes in hog waste that reaches surface waters can
last for many weeks. Mallin at 31. Scientists have found sediments contaminated by a
hog waste spill with very high fecal coliform counts 61 days after the spill. Id. at 32.
When disturbed, these sediments threaten human health even when the water appears
safe. Id. -at 30.
Hourard 67-3's hog waste lagoons and sprayfields may also increase the opportunity for
the spread of disease by supporting hugely increased populations of disease carrying
vectors, especially several species of flies. McBride at 3-4. In sufficient numbers, these
disease carriers pose an imminent threat to public health. Id. In reference to industrial
hog -operations, North Carolina's highest public health official has stated that, "[t]he
potential for the transmission by flies or other mechanical vectors of disease greatly
increases the risk to human health." McBride at 4.
The overnutrification of North Carolina's waterbodies also endangers human health and
the environment. North Carolina has recognized the Neuse River as "nutrient sensitive
waters." A major source of nutrient pollution to North Carolina's waters is runoff from
croplands and intensive livestock operations. Warrick at 7. Polluted groundwater also
causes overnutrification of surface waters. For example, an analysis by the United States
Geological Survey of the impact of nutrients on the Chesapeake Bay found that nutrients
leaking into groundwater were a major source of nutrient contamination of the Bay.
;t Nutrients also seep into the groundwater from the land surface and make
their way into the rivers and streams that flow into the Bay, or directly into
the Bay itself Groundwater is an important source of surface water and
nutrients. The USGS has determined that about 50 percent of the water in
streams comes from groundwater, but the amount can be as low. as 27
percent or as high as 85 percent. The amount of groundwater varies
according to the type of rock and sediment beneath the land surface. Up
to one half of the nitrogen entering the Bay travels through groundwater.
It is possible that about 10 to 20 percent of the phosphorous entering the
Chesapeake Bay also travels through groundwater.
10

't-
What We Know So Far ... Nutrients, Ground Water, and the Cheasapeake Bay —A Link
with Pf esteria?, USGS website, www. Us s. ov/ ublic/ ress/ ublic-affairs/ ress-
release/pr343m.htm.
Improper disposal of animal waste, like the disposal of hog waste at the Howard 67-3 .
facility, endangers public health and the environment by causing elevated levels of
nitrates in groundwater. Nugent at 1. Waste contains nitrogen -laden compounds that are
converted to nitrates in the soil. Id. Nitrates are extremely soluble in water and can
move easily through soil into the drinking water'supply. Fretz at 3. Because nitrates
move with the flow of groundwater, the contamination can move great distances from its
source. Nugent at 2. As set forth above, research has established that hog lagoons and
sprayfields are causing widespread contamination of groundwater. Although the U.S.
Environmental Protection Agency has established a drinking -water standard for well
water of 10 mg/L of nitrate or less, a 1995 study of North Carolina wells near swine
waste lagoons found ammonia-N concentrations of up to 300 mg/L and nitrate-N
concentrations of up to 40 mg/L. Mallin at 35. Based on the operational practices of the
Howard 67-3 facility and the high percentage of hog facilities that have caused elevated
nitrates in groundwater, we believe that it is likely that the operations of Howard 67-3 are
causing elevated nitrates in nearby groundwater. The North Carolina Division of Water
Quality and local health department tested over 1600 well water samples from people
living adjacent to intensive livestock operations and found that more than 10 percent of
these samples contain nitrate levels above the EPA's recommended limit of 10 ppm.
McBride at 4; and Crane, D.; Schriber, C., Industrial Hog Operations Emissions Study
Released, News Release from the State of North Carolina Department of Health and
Human Services, May 7, 1999, at 2.
Drinking water with elevated nitrates is dangerous to humans and animals. The greatest
danger to public health from nitrate -tainted drinking water is methemoglobinemia. The
condition occurs when hemoglobin, the oxygen carrying component of blood, is
converted by nitrite to methemoglobin, which fails to carry oxygen efficiently through
the body, causing vital tissues, including the brain, to receive less oxygen than they need.
Nugent at 2. Severe methemoglobinemia can result in brain damage and even death.
Nugent at 2-3. Young infants, especially those under six years, are highly vulnerable and
some adults are susceptible to methemoglobinemia. Id. Ingestion of drinking water with
very high levels of nitrate (greater than 1000 mg/1) can lead to acute nitrate poisoning.
Id. Nitrate ingestion is also believed to contribute to the development of some cancers
and cause adverse reproductive outcomes. Id; and McBride at 4. Where animal waste
has caused elevated nitrate levels, bacteria, viruses, and protozoa may also be present.
Nugent at 4.
Manure washing off hog sprayfields and leaking to groundwater also contributes to the
outbreak of toxic Pfiesteria piscicida. WASHINGTON POST, September 14, 1998, p. Al;
and, Burkholder, J.M., Mallin, M.A., Glasgow, H.B., Jr., Larsen, L.M., Holden, M.,
Scalian, C., Deamer-Melia, N., Briley, D., Springer, J., Touchette, B.W., Briley, D.,
Springer, J., Touchette, B.W., Briley, D., & Hannon, E., Impacts to a coastal river and
estuary from rupture of a large swine waste holding lagoon, JOURNAL OF
I

ENVIRONMENTAL QUALITY, Vol. 26, pp. 1451 — 1466 (1997). Toxic Pf esteria zoospores
consume urea found in animal waste as a source of organic nitrogen in their nutrition.
Lewitus, A.J., Burkholder, J.M., Glasgow, H.B., Jr., Gilbert, P.M., Willis, B.M., Hayes,
K.C., (accepted) Mixotrophy and nutrient uptake by Pfiesteria piscicida (Dinophyceae),
JOURNAL OF PHYcoLoGy. Nutrient loadings to surface waters also contribute to
outbreaks of Pfiesteria by stimulating the growth of algae -that Pfiesteria feeds on when
in its non -toxic forms. What you should know about Pfiesteria piscicida, E.P.A. web site,
Office of Water, at www.epa.govlowow/estuaries/12fiesteri/fact.htm, at 6. Among the
chief sources of nutrient pollution in coastal areas are polluted runoff from agricultural
operations, and air pollutants that settle on land and water. Id. The Pfiesteria piscicida
dinoflageilate is highly toxic to fish and dangerous to humans. A 1998 peer -reviewed
article published in Lancet reported the following:
People with environmental exposure to waterways in which Pfiesteria
toxins are present are at risk of developing a reversible clinical syndrome
characterized by difficulties with learning and higher cognitive functions.
Risk of illness is directly related to degree of exposure, with the most
prominent symptoms and signs occurring among people with chronic daily
exposure to affected waterways.7
A 1995 peer -reviewed article published in the Journal of Toxicology and Environmental
Health documented numerous adverse effects on human health effects from Pfiesteria
toxins absorbed from water or fine aerosols.$
Hog waste also endangers public health and the environment because it causes elevated
ammonium levels when it reaches groundwater and surface waters. Mallin at 30.9 At
7 The study found that, "[p] eople with high exposure [to Pfiesteria toxins] were significantly more likely
than occupationally matched controls to complain of neuropsychological symptoms (including new or
increased forgetfulness); headache; and skin lesions or a burning sensation of skin on contact with water.
No consistent physical or laboratory abnormalities were found. However, exposed people had significantly
reduced scores on the Rey Auditory Verbal Learning and Stroop Color -Word tests (indicative of difficulties
with learning and higher cognitive function), and the Grooved Pegboard task. There was a dose -response
effect with the lowest scores among people with the highest exposure." Gratten, L., et al., Learning and
Memory D ffculties after Environmental Exposure to Ifatenvays Containing Toxin — Producing Pfiesteria
or Pfiesteria-like Dinoflagellates, LANCET, vol. 352, pp. 532 — 39 (1998).
9 The study reported that, "[h]uman exposure to aerosols from icthyotoxic cultures ... has been associated
with narcosis, respiratory distress with asthma -like symptoms, severe stomach cramping, nausea, vomiting,
and eye irritation with reddening and blurred vision (hours to days); autonomic nervous system
dysfunction; central nervous system dysfunction [sudden rages and personality change (hours to days), and
reversible cognitive impairment and short-term memory loss (weeks)]; and chronic effects including
asthma -like symptoms, exercise fatigue, and sensory symptoms (tingling or numbness in lips, hands, and
feet; months to years). Elevated hepatic enzyme levels and high phosphorous excretion in one human
exposure suggested hepatic and renal dysfunction (weeks); easy infection and low counts of several T-cell
types may indicate immune system suppression (months to years)." Glasgow, H.B.; Burkholder, J.M.;
Schmechel, D.E.; Tester, P.A.; and Rublee, P.A., Insidious effects of a toxic dinoflagellate on fish survival
and human health, JOURNAL OF Tox coLOGICAL AND ENviRONMENTAL HEALTH, 46: 101— 122 (1995).
12

sufficiently high levels, ammonium causes injury or death to fish and other aquatic life.
Mallin at 3G. The open and exposed manner that hog waste is captured, stored and
sprayed at the Howard 67-3 facility allows the release of ammonium to groundwater and
causes the substantial release,of ammonia gas to the air. The Howard 67-3 facility .
produces tons of ammonia gas every year.10 70-- 80% of the nitrogen in hog lagoons
enters the environment as airborne ammonia �as. Warrick at 7. The ammonia then falls
to earth as rain that triggers algal blooms. Id.. 1 Hog operations in North Carolina have
caused significant levels of ammonia in the ambient air. Id.i2 Ammonia and other gases,
such as sulfur dioxide, are emitted and lead to the formation of fine particulate matter,
which can endanger to human health. McBride at 5.
Hog facilities. like Howard 67-3 cause human health ailments. A 1999 health survey of
over 150 people taken in North Carolina found that people living near large hog facilities
suffer significantly higher Ievels of upper respiratory and gastrointestinal ailments than
people living in non -livestock areas. Crane at 1. People near hog facilities reported
higher levels of headaches, runny nose, sore throat, excessive coughing, diarrhea, and
burning eyes. Id.
Hog waste also places public health and the environment at risk because it contains
antibiotics, hormone disrupter compounds, heavy metals, disinfectants, and other toxics
and contaminants that are harmful to the environment. McBride at 4.
We expect that records in Howard 67-3's possession, to which we do not have access at
this time, will provide further support for this claim.
At the close of the 90-day notice period, we intend to file a citizen suit against Howard
67-3 pursuant to section 7002(a)(1) of RCRA for the violations described above, and all
violations of this provision that occur after your receipt of this notice letter we intend to
seek injunctive relief and penalties for Howard 67-3's violations of RCRA.
III. Violations of the Federal Clean Air Act
This letter is also to put the owner or operator of Howard 67-3 on notice pursuant to
section 304(b) of the Clean Air Act, 42 U.S.C. section 7604(b), that we intend to bring an
action against Howard 67-3 for violating the Federal Clean Air Act, 42 U.S.C. section
7410 et seq. Specifically, Howard 67-3 is operating without obtaining or applying for
any air quality permit pursuant to section 15A NCAC 2Q .0100 of the federally
9 A 1995 study of hog lagoons by Dr. Rodney Huffman and Dr. Philip Westerman found average
concentrations of ammonia -nitrogen of up to 1,000 mg/L in wells near hog lagoons. Mallin at 35.
'0 Research of Dr. Leon Chesnin, professor of waste management and utilization at the University of
Nebraska -Lincoln, cited by Warrick at 7.
" Citing the research of Dr. Hans Paerl, professor of Marine and Environmental Sciences at University of
North Carolina at Chapel Hill.
'' Citing the research of Dr. Viney Ane}a of North Carolina State University.
13

enforceable North Carolina State Implementation Plan ("SIP'), which is authorized by
section 110 of the Clean Air Act, 42 U.S.C. section 7410, and the regulations
promulgated by the Environmental Protection Agency under the Clean Air Act at 40
C.F.R. part 51.
The Howard 67-3 swine operations degrade North Carolina's air quality. Among the
airborne pollutants from the Howard 67-3 operations are nitrogen compounds, including
ammonia. State wide, swine operations account for about 20% of nitrogen emissions, in
the form of NH3 ammonia. Framework for the Conversion of Anaerobic-Sivine Waste
Lagoons and Sprayfields, North Carolina Department of Environment and Natural
Resources website, at www.enr.state.nc.us/files/hogs/hogplan.htrn, at 3. In Eastern North
Carolina, where Howard 67-3 is located, hog facilities account for an astonishing 53% of
the total atmospheric nitrogen compounds. Id. These compounds react with other
constituents in the air and are deposited on land, vegetation, and water bodies. Id.
The North Carolina SIP states that "the owner or operator of a new, modified, or existing
facility or source shall not begin construction or operation without first obtaining a
construction and operation permit." 15A N.C.A.C. 2Q .0101(b)(1) and 2Q.0301(a). The
permit requirement applies if the source emits or has the potential to emit any regulated
pollutant or one of the pollutants listed in section 2Q.0101(a)(1) at quantities sufficient to
be regulated and does not qualify for an exemption.
Publicly available information has established that confined swine feeding operations
with liquid waste management systems such as Howard 67-3 emit to the air multiple
regulated air pollutants, including particulate matter, precursors to fine particulate matter,
hydrogen sulfide, ammonia, methane, phenol, p-cresol, mercaptans, and chlorine. The
specific amounts of these emissions can be calculated based on the size of the operation,
weather data, and other variables. We have a good faith basis to believe that the
impoundments, anaerobic lagoons, manure pits and spray systems constructed, modified,
and/or operated by Howard 67-3 for the holding of swine waste, the structures
constructed, modified, and/or operated by Howard 67-3 within which swine waste is
generated and confined, and the land application of swine waste by Howard 67-3: (1)
emit or have the potential to emit five (5) tons per year or more of particulate matter; (2)
emit or have the potential to emit one hundred (100) tons per year of ammonia, an
immediate precursor to particulate matter; and (3) emit or have the potential to emit
hazardous air pollutants including but not limited to chlorine, mercaptans, phenol, and p-
cresol in quantities sufficient to be regulated.
Our review of public records has led us to conclude that Howard 67-3 has failed to apply
for or receive any air quality permits pursuant to the Clean Air Act or the North Carolina
SIP, including construction and operation permits. In addition, Howard 67-3 has failed to
apply for or receive any exemption from air quality permit requirements, nor does
Howard 67-3 qualify for any of the exemptions. Further, Howard 67-3 appears to have
undertaken no record keeping efforts, nor any efforts to monitor, control, minimize, or
prevent the emissions of these air pollutants from Howard 67-3's impoundments,
14

lagoons, manure pits, structures, and spray fields. Failures that may exist in the state's air
emissions program do not excuse violations by Howard 67-3 of the Clean Air Act.
We believe that the acts and omissions of Howard 67-3 in operating its lagoons and
facilities in this manner violates the Clean Air Act. At the close of the 60-day notice
period, we intend to file a citizen suit under section 304 of the Clean Air Act, 42 U.S.C.
7604, against Howard 67-3 for the violations discussed herein, to compel Howard 67-3 to
obtain proper Clean Air Act permits, and to compel you to monitor, control, minimize,
and prevent the emission of pollutants to the atmosphere from this facility. This notice of
intent to sue covers all the Clean Air Act violations by the Howard 67-3 facility during
the Iast five (5) years preceding the date of this letter and covers all future violations
arising from its continued operations.
For each violation set forth in this letter, the New Riverkeeper and the Water Keeper
Alliance give notice to the following parties: the owner or operator of Howard 67-3, the
United States Environmental Protection Agency, United States Department of Justice,
and the State of North Carolina's Department of Environment, and Natural Resources.
For each of these violations we will ask the court to consider Howard 67-3's history of
environmental quality violations in assessing the penalty. We intend to seek an
injunction requiring Howard 67-3 to apply for and obtain an NPDES permit, to
immediately cease overapplication and discharges of swine waste, and to remove all
subsurface drainage tiles. If Howard 67-3 fails to obtain an NPDES permit after a
reasonable amount of time, and / or continue its illegal discharges, we intend to seek an
injunction that prohibits the continued operation of the Howard 67-3 facility.
We would be willing to discuss effective remedies to the violations noticed in this letter.
However, we do not intend to delay the filing of a complaint in federal court when the
notice periods end_
All inquiries and responses to the issues raised in this letter should be directed to attorney
Nicolette Hahn at the address and phone number listed below.
Attorney for Plaintiffs
Water Keeper Alliance
78 North Broadway, "E" Building
White Plains, NY 10603
[phone]
Robert F. Kennedy, Jr.
President
Water Keeper Alliance
15

78 North Broadway, "E" Building
White Plains, IVY 10603
[phone]
Lynn O'Malley
Executive Director
78 North Broadway, "E" Building
White Plains, NY 10603
[phone] --
Basil Seggos
Legal Intern.
Pace Environmental Litigation Clinic, Inc.
Pace University School of Law
78 North Broadway
White Plains, NY 10603
[phone]
Tom Mattison
New Riverkeeper
P.O. Box 241
Jacksonville, NC 28541-0241
[phone]
C: Carol M. Browner, Administrator
United States Environmental Protection Agency
401 M Street, SW
Washington, D.C. 20460
Janet Reno, Attorney General
United States Department of Justice
I0`h Street & Constitution Ave., NW
Washington, D.C. 20530
John H. Hankinson, Regional Administrator
United States Environmental Protection Agency
Region IV
345 Courtland Street, N.E.
Atlanta, GA 30365
Bill Holman, Secretary
North Carolina Department of Environment and Natural Resources
512 North Salisbury Street
Raleigh, NC 27611
16