BEFORE THE STATE OF WISCONSIN DEPARTMENT OF NATURAL RESOURCES In the Matter of the Wisconsin Pollutant Discharge Elimination System Permit No. WI-0059536-03-0 (WPDES Permit) Issued to Kinnard Farms, Inc, Town of Lincoln, Kewaunee County DHA Case No. KINNARD FARMS, PETITION FOR REVIEW BY THE SECRETARY OR DESIGNEE Kinnard Farms, Inc. (?Kinnard Farms?), by its attorneys, Michael Best Friedrich LLP, submits this petition pursuant to Wis. Admin. Code NR 2.20. Kinnard Farms requests the Secretary of the Wisconsin Department of Natural Resources or ?Department?) review and modify the Administrative Law Judge?s October 29, 2014 Decision in this contested case proceeding (?Decision?). A copy of the Decision is attached at Tab 1. Two aspects of the decision are plainly contrary to existing law and Kinnard Farms requests that the Secretary suspend and reverse them. Specifically, the Secretary should suspend and reverse those portions of the order that the DNR modify Kinnard Farms? WPDES Permit to reflect a maximum number of animal units at the facility (the ?Animal Unit Maximum?) and (ii) the DNR review and approve a plan for groundwater monitoring at off?site locations (the ?Off?site Monitoring Requirement?). In ordering DNR to impose these two requirements, the ALJ ranged far outside the scope of his legal authority. The Secretary now has the opportunity to correct this error and to direct her staff to not comply with these unlawful aspects of the order. Even if the had authority to make these orders, they would be contrary to law because he imposed them in the absence of reliable evidence. And, in the case of the Off?site Monitoring Requirement, he blindsided Kinnard Farms without giving Kinnard Farms any notice or opportunity to be heard on the issue. The requirement of off?site monitoring was not one of the issues for which hearing was specifically granted nor was it a request of any petitioner in this action. Indeed, the first mention of an off?site monitoring requirement in this entire case appeared in his Decision. On these many, troubling grounds, Kinnard Farms asks that the Secretary follow the law, suspend these requirements, protect her staff from enforcing these unlawful orders, and instead order that they not be imposed in Kinnard arms? WPDES Permit. Indeed, the Secretary should emphasize that neither of these requirements may be imposed in any WPDES permit unless and until the legislature enacts a statute or approves an administrative rule expressly authorizing them. And even then, not unless there is substantial evidence supporting their imposition. I. BACKGROUND A. Kinnard Farms? WPDES Permit Application and Departmental Review 1. Kinnard Farms is expanding an existing concentrated animal feeding operation located in the Town of Lincoln, Kewaunee County, Wisconsin. The expansion . includes ongoing construction of new facilities at a site (?Site approximately 1A mile from Kinnard Farms? existing facility. The facilities at Site 2 will include, among other facilities, a ten-row, mechanically ventilated barn, a milking parlor and associated holding area, feed storage - facilities with leachate collection and storm water runoff treatment facilities, and a waste storage facility. (BX. 101 (Engineering Report), pp. 2. In March 2012, Kinnard Farms applied to DNR for reissuance of its Wisconsin Pollutant Discharge Elimination System permit, and for review and approval of its plans and specifications for Site 2. On August 16, 2012, DNR reissued Kinnard Farms Permit (No. (BX. 301)) (the Permit?) and issued a notice of final determination to issue the permit (BX. 300). On August 20, 2012, DNR issued Kinnard Farms a conditional approval of plans and speci?cations for a feed storage pad and runoff control system at Site 2. (Ex. 7). On November 30, 2012, DNR issued to Kinnard Farms a conditional approval of plans and specifications for a waste storage facility, transfer system and sand separation at Site 2. (EX. 9). 3. On October 15, 2012, five individual petitioners requested a contested case hearing to challenge several aspects of the WPDES Permit. In reSponse to that petition, DNR granted the petitioners a contested case hearing on seven speci?c issues. One of those issues was whether DNR was unreasonable when it did not impose an animal unit maximum in the WPDES permit. The petition did not include any demand that Kinnard Farms be required to monitor groundwater quality at land spreading sites. As a result, a contested case hearing was not granted on that issue nor was it identified at any point as an issue for the contested case hearing. 4. Throughout the contested case hearing process, the petitioners prosecuted their claim that DNR was required to impose an animal unit maximum in the WPDES Permit. At no time during the contested case hearing process, however, did the petitioners ever suggest that Kinnard Farms should be required to conduct groundwater monitoring at off-site ?elds where it spreads manure. The ALJ held an evidentiary hearing in Green Bay, Wisconsin on February 11? 14, 2014. A portion of the hearing was designated the public hearing for any person of interest to testify about their views of the issues (the ?Public Hearing?). The parties submitted post- hearing briefs on the issues, together with proposed findings of fact and proposed conclusions of law. Neither party briefed nor offered proposed ?ndings of facts or conclusions of law on the issue of groundwater monitoring at off~site ?elds. 5. The ALJ issued the Decision on October 29, 2014. 1 All record references are to the record assembled in this contested case proceeding, Case No. unless as otherwise indicated. -2- B. The Decision 6. In his Decision, at pages 23, the ALJ summarized his holdings on each of the six issues that remained unresolved. This petition for review arises from Holdings 3 and 4. Holding 3 requires Kinnard Farms to undertake groundwater quality monitoring not only at Site 2, but takes the extra signi?cant step of purporting to require Kinnard to monitor groundwater quality at fields. Holding 4 requires DNR to modify the Kinnard Farms WPDES permit to include an animal unit maximum. For reference, holdings 3 and 4 are repeated here in their entirety: Issue 3. Whether Sections 1.1, 1.7, and 1.8 of the WPDES Permit are unreasonable because they do not require that the Department evaluate background groundwater quality, they do not require sampling or monitoring of groundwater, and they do not require that discharges from the production area authorized by the Permit comply with groundwater quality standards. Holding: The petitioners and members of the public have carried their burden'of proof in establishing that groundwater monitoring is feasible and appropriate because the ?facilities are located on or near areas that are susceptible to groundwater contamination such as direct conduits to groundwater, sandy soils, and sites with minimal separations between bedrock and high water tables?. NR 243 . 1 (sic)2 The Permit should be modified by the Department to establish a plan acceptable to the Department . for groundwater monitoring ?at or near? Site 2. Issue 4: Whether Sections 1.3.1, 1.3.3, 2 and 3.1.12 ofthe WPDES Permit are unreasonable because they do not include a limit on the current and proposed number of animal units allowed at the facility. Holding: The Permit should be modified by the Department to include a limit on the number of animal units to better provide for long term operational planning and to avoid prior problems with manure storage limits. Existing storage requirements should also be maintained. (Decision, pp. 2-3.) 7. The ALJ reduced his holdings on these issues to order points on pages 17 and 18 ofthe Decision. For Holding 4, the ALJ ordered ?that Sections 1.3, 1.3.3, 2 and 3.1.12 [of the WPDES Permit] be modi?ed to re?ect a maximum number of animal units at the facility in addition to current [manure] storage requirements.? (Decision, p. 18, the ?Animal Unit Maximum?.) Because it unlawfully exceeded the authority and is not supported by I adequate evidence in the hearing record, Kinnard Farms asks the Secretary to suspend and reverse the Animal Unit Maximum requirement. For Holding 3, the Division ordered ?that the Department should review and approve a plan for groundwater monitoring for pollutants of concern at or near the site because it has been demonstrated to be ?susceptible to groundwater contamination? within the meaning of Wis. Admin. Code NR (sic).3 The plan 2 It is apparent that the ALJ intended to reference Wis. Admin. Code NR 3 See note 2, supra. -3- should be submitted to the Department with (sic) 90 days of this Order, and shall include no less than six groundwater monitoring wells, and if practicable, at least two of which monitor groundwater quality impacts from off~site (Decision, p. 18. (the ?Off-site Monitoring Requirement?) Because it is unlawful, was not an issue granted for hearing, and is not supported by evidence in the hearing record, Kinnard Farms asks the Secretary to suspend and reverse the Off?site Monitoring Requirement. II. GROUNDS FOR REVIEW. A. Kinnard Farms is Adverser Affected by the Decision. 8. Kinnard Farms participated as a party to the contested case. 9. Kinnard Farms is adversely affected by the Animal Unit Maximum because it is a requirement, condition and term of the WPDES Permit that is not required or explicitly permitted by any statute or DNR rule promulgated in accordance with the Wisconsin Administrative Procedure Act. Very simply, Kinnard Farms is adversely affected by the Animal Unit Maximum because the government is forcing limitations on Kinnard Farms without following the law. 10. Kinnard Farms is adversely affected by the Animal Unit Maximum because it unnecessarily and inefficiently duplicates the requirement in Wis. Admin. Code NR 243.176) that Kinnard Farms maintain a minimum of 180 days of manure storage, and the requirement in NR 243 .14 that it operate pursuant to a DNR-approved Nutrient Management Plan. 1 1. Kinnard Farms is adversely affected by the Animal Unit Maximum because it unreasonably fails to account for the lack of a reasonable quantitative relationship between animal units and the amount of manure produced at Site 2. 12. Kinnard Farms is adversely affected by the Animal Unit Maximum because it unreasonably restricts Kinnard Farms? ?exibility in conducting its business so long as it maintains 180 days of manure storage. 13. Kinnard Farms is competitively disadvantaged by the Animal Unit Maximum because it is not uniformly applied to Kinnard Farms? competitors. 14. Kinnard Farms is adversely affected by the Off-site Monitoring Requirement because it is a requirement, condition and term of the WPDES Permit that is not required or explicitly permitted by any statute or DNR rule promulgated in accordance with the Wisconsin Administrative Procedure Act. Very simply, Kinnard Farms is adversely affected because the government is forcing the Off?site Monitoring Requirement on Kinnard Farms without following the law. 15. Kinnard Farms is adversely affected by the Off?site Monitoring Requirement because there is insuf?cient evidence in the hearing record to show that such monitoring is capable of determining whether detected pollutants are attributable. to Kinnard Farms? 16. Kinnard Farms is adversely affected by the Off-site Monitoring Requirement because it may require monitoring of sites on which Kinnard rarely or ever conducts 17. Kinnard Farms is competitively disadvantaged by the Off-site Monitoring Requirement because it is not uniformly applied to Kinnard Farms? competitors. B. The Imposition Of The Animal Unit Maximum Is Unlawful Because The ALJ Had No Legal Authority To Impose It. Even If He Had The Authority, He Abused It By Failing To Base The Requirement On Any Reliable Evidence In The Record. 18. The imposition of the Animal Unit Maximum must be reversed for at least two reasons: First, The ALJ does not have the authority under any of the relevant statutes or administrative rules to impose a maximum limit on the number of animals to be housed at a single permitted dairy facility. See generaiiy Wis. Stat. ch. 283, Wis. Admin. Code ch. NR 243. There is no mention in any of the provisions any maximum number of animal units allowed at a facility. No administrative agency, including DNR, is allowed to impose conditions or terms or requirements on a permit ?unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with [the Wisconsin Administrative Procedure Act].? Wis. Stat. 227.10(2m) (?the Law?), created by 2011 Wisconsin Act-21 (?Act i 19. The applicable ?terms? of a WPDES permit are ef?uent limits, monitoring and reporting requirements, and applicable ground/ surface water quality standards, as well as applicable terms of a nutrient management plan, performance standards to achieve permit limits, and the conditions that are generally applicable to all WPDES permit holders. See Wis. Stat. Wis. Admin. Code NR 243.13, .14, .141, .15, .16, .17, .19; see also An animal unit ?limit? is not an ef?uent limit, monitoring requirement, reporting requirement, ground/ surface water quality standard, term of a nutrient management plan, performance standard, or a generally applicable permit condition. 20.? Wis. Stat. 283.31 authorizes DNR to include additional, ?more stringent limitations? in a WPDES permit, but only if those terms are: l. Necessary to meet federal or state water quality standards, or schedules of compliance established by the department; 2. Necessary to comply with any applicable federal law or regulation; or 3. Necessary to avoid exceeding total maximum daily loads established pursuant to a continuing planning process developed under 283 .83. Wis. Stat. The inclusion of an animal unit limit in a WPDES permit, however, does not fit within any of thoseprovisions. authority to regulate the number of animals housed at a facility is limited to ensuring that a WPDES permit holder has adequately sized and designed manure and wastewater storage/transfer facilities and has adequate land base -5- to properly manage its nutrients. See Wis. Admin. Code NR 243.14, 243.15. The WPDES permit program is structured so the permittee is obligated to maintain 180 days of manure storage and is obligated to maintain adequate land base to manage its nutrients. If the permittee fails to comply with either of those requirements, it will be in violation of its WPDES permit and chapter NR 243 and it will be subject to enforcement action. While the ALJ may believe the imposition of an animal unit cap is a good idea or policy, there is no requirement or authority in the statutes for DNR to limit the number of animal units at a private business. The scope of the authority in the context of a WPDES permit is to ensure that adequate manure storage and land base exist to allow the CAFO to safely manage its manure." No authority exists to go beyond this scope. If DNR, through its leadership, thinks animal unit maXimums are agood policy idea, then the only preper procedure to implement it is for the DNR to either pursue express authority from the legislature in a statute or to undertake rulemaking with the attendant requirements of Chapter 227 for public and legislative input and review. The ALJ and the Department cannot completely ?end run?.the legal limitations of Chapter 227 by simply imposing such requirements in a WPDES Permit. Wis. Stat. 21. A second ground for reversing the Animal Unit Maximum is that even if one assumes for the sake of argument that the ALJ had the authority to impose it (which he does not), he did not have suf?cient evidence in the record to conclude that the WPDES Permit was unreasonable? without it. A capacity for animals is limited by the amount of manure a CAFO can safely accommodate. That is why there is a requirement for a minimum of 180 days? manure storage capacity at the CAFO in existing law pursuant to NR There is no formulaic relationship between the number of animals at a CAFO and the amount of manure and process wastewater produced at the CAFO. That is because different varieties of animals, even within the same species, produce manure at different rates given a variety of operation-specific factors. For example, Holstein cows will produce manure at a much different rate than Jersey Cows. Operation specific factors, such as feed, supplements and rations also affect the quantity of manure produced by each animal. ?An Animal Unit Maximum also disregards the fact that animals of different sizes produce different amounts of manure, and that in order to have the ?exibility to competitively run a dairy farm, a farmer will have varying proportions of grown and young animals. A farmer should not have to spend each day recalculating the number of animal units at the farm based on changes in the mix of adult and young animals to meet a requirement that is not authorized by law, is unsupported by evidence in the record, and which is less robust and direct than the existing requirement to maintain a minimum amount of manure storage at the site. (See, ag, Bauman Pre?filed, pp. Pre~?led, pp. 23?24; Williams Pre-filed, pp. 13?14; Contested Case Hearing Transcript Vol. pp. 368:8-374:19; Tr. Vol. 3, pp. 632:10-637:18, 633:5?635:16, 666:23?667z8, 706:8-718:19, 802:19-804:17; Tr. Vol. 4, pp. 989:19?990:18, 1003:15~1005:19, 1066:12~1067:10, 10688-103832.) 22. Moreover, the only explanation the ALJ provided for imposing the Animal Unit Maximum on Kinnard Farms is that ?in 2009 and 2010 Kinnard failed to have permanent markers installed to allow a ready indication of when it had reached the '180?day limit of manure and wastewater storage.? (Decision, p. 12.) This technical issue provides no justification for the imposition of an unlawful condition. First, there is no evidence in the record that Kinnard Farms failed to correct the de?ciency that was noted at its existing site 4 5 years before the hearing or that Kinnard Farms had any problem with its markers since. Second, and more compelling, the record demonstrates that during both 2009 and 2010 Kinnard Farms emptied its manure lagoon -6- completely, and demonstrated to DNR that when empty Kinnard Farms realized available storage capacity of 11 1/2 months and 8 months respectively far in excess of the 180-day storage requirement. (Tr. Vol. 4, pp. lO68:23-1069:18, 1070:24-1073:1, 1073:16-1074:18; Exh. 58, p. 10; Exh. 59.) There simply was no evidentiary basis for the ALJ to impose the Animal Unit Maximum in this case. - - - 23. The tenuous correlation between animal numbers and manure production, together with the relatively more robust regulatory tool of controlling for overpopulation by requiring a minimum amount of storage is why the rulemaking committee for NR 243 expressly rejected the concept of an Animal Unit Maximum the last time it revised the rules. (Polenske Pre??led, pp. 23-24; Tr. Vol. 3, pp. 633:5~635:16, 666:23~667:8, 706:8-708:21, 717:1 Indeed, the imposition of an Animal Unit Maximum in the face of testimony that the rules committee considered and rejectedthe requirement for the reasons just discussed vindicates the Legislature?s decision to pass Act 21 as a means of reigning in the arbitrary imposition of requirements on businesses without the bene?t of a vetted, publically reviewed and legislatively approved administrative rule. Here, there was not only no rule, there was no evidence to support the Animal Unit Maximum. The Secretary should reign this type of behavior in and send a strong message that ?enough is enoug C. The Imposition Of The Off-site Monitoring Requirement Is Unlawful Because The ALJ Had No Legal Authority To Impose It. Even If He Had The Authority, He Abused It By Failing To Base The Requirement On Any Reliable Evidence In The Record. 24. The ALJ does not have the authority under any of the relevant statutes or administrative rules to impose groundwater monitoring at off-site sites. See generally Wis. Stat. ch. 283, Wis. Admin. Code ch. NR 243. It is clear from the Decision that the ALJ relied on the Department?s authority under Wis. Admin. Code NR to impose the Off?site Monitoring Requirement. 4 That section, however, does not provide the explicit authority the law requires for the Department to impose the Off?site Monitoring Requirement. In fact, as demonstrated next, both DNR Staff and the ALJ have acknowledged this limitation in recent CAFO permitting cases. i 25. The Department promulgated Wis. Admin. Code ch. NR 243 pursuant to its authority under Wis. Stat. ch. 283 for the explicit purpose of ?implement[ing] design standards and accepted management practices and to establish permit requirements and the basis for issuing permits to Wis. Admin. Code NR 243.010). The application of manure on crop ?elds is regulated under the detailed technical standards set forth in NR 243.14. In contrast, the design and construction of ?reviewable facilities? is regulated by NR 243.15. 26. Wisconsin Admin. Code NR authorizes the Department to I require the installation of a groundwater monitoring system if it determines such a system is ?necessary to prevent discharges of manure and process wastewater to groundwater? from a ?storage or containment and only then if that facility is ?located on or near areas that 4 The Decision repeatedly quotes language from NR 243 . as the source of authority to require groundwater monitoring, but incorrectly cites to NR in the Order. There is no NR 243 . in chapter NR 243. -7- are susceptible to groundwater contamination.?5 In this case, the seems to have ?xated on the ?on or near? language in the rule, perhaps thinking that so long as he required monitoring of off~site activities somewhere ?near? the facility, it would not matter that he was requiring monitoring of something other than the ?storage or containment facility.? The manure storage facility proposed for Site 2 is a reviewable facility regulated by Wis. Admin. Code NR 243.15. The proposed off?site of manure is not. Thus, regardless of how ?near? off?site activities may be to Site 2, NR 243.15(3) does not authorize the Department to require Kinnard Farms to monitor them. 27. Although not Speci?cally cited by the ALJ, the DNR is also more generally authorized to require groundwater monitoring ?in the vicinity of? reviewable facilities ?where the department determines monitoring is necessary to evaluate impacts to groundwater and geologic or construction conditions warrant monitoring.? NR This authority also exclusively applies to the regulation of ?reviewable facilities,? however, as de?ned by rule. See NR 243.0366). Fields where manure is land applied are not reviewable facilities. 28. In imposing the Off?site Monitoring Requirement, the ALI seems to have not only disregarded the plain language of the rule but has apparently forgotten his own interpretation of the rule in a decision he rendered just three years ago. There, he detailed the regulatory difference between the CAFO site and off?site fields: ?[T]he operator] is correct that cropland land applications do not constitute a ?reviewable facility or system? within the above de?nition [of ?reviewable facility? at NR and the requirements of NR 243.15 relating to facilities and systems. Rather, the land application on croplands is subject to the provisions of NR 243.14, relating to nutrient management plans.? In the Matter of the Petition for a Contested Case hearing on WPDES Permit No. Issued to Rosendale Dairy, LLC, Case No. lH-09-10, Ruling on Motion for Summary Judgment, p. 4 (Jul. 19,2011) 29. It is clear that professional staff also knows that land application ?elds are not ?reviewable facilities? and that the law does not currently allow DNR to require off-site monitoring. When commenters in a relatively recent CAFO permitting case demanded that DNR impose off-site groundwater monitoring at land application ?elds, DNR staff correctly responded that ?the Department does not have the authority to require monitoring in targeted [land application] ?elds. . . Notice of Final Determination to Modify WPDES Permit No. 0063959?01-2, Summary ofPublic Comments, I.C.2. (Jan. 22, 2010). 30. Kinnard Farms, as a party to this contested case proceeding, had ?a right to be apprised of the issues involved and to be heard on such issues.? Bituminous Cos. Co. v. DILHR, 97 Wis. 2d 730, 735, 295 183 (Ct. App. 1980). To satisfy this right, the Department and the Division were required to provide pre-hearing notice that the issue of off?site monitoring was going to be addressed in the hearing (see Wisconsin Bell, Inc. v. Bie, 216 F. Supp. 2d 873 (W.D. Wis. 2002)) and a meaningful opportunity for Kinnard Farms to present evidence and make arguments related to the issue (see General Electric Co. v. Wisconsin Employment Relations Bel, 3 Wis. 2d 227, 88 691 (195 Kinnard Farms received neither of those protections. 5 That this is what NR authorizes is evident by reading that paragraph of subdivision 2 in conjunction with NR ., and -3- 31. The petitioners in this contested case never requested, much less suggested, that the ALT require off-site groundwater monitoring at land application sites. Nor was that issue explored in any detail during the four-day contested case hearing. And none of the parties addressed the issue in any of the post-hearing briefs. It appears that the decided, on his own, that the Off?site Monitoring Requirement would be a good idea, as a response to the general concerns raised during the public hearing portion of the proceedings. Administrative . agencies are not permitted to engage in such regulatory sandbagging and for this reason alone the Secretary should reverse the Off-site Monitoring Requirement. 32. The ALJ ?s grounding of the Off?site Monitoring Requirement in public testimony given by opponents of Kinnard Farms is a separate and signi?cant problem. Witness a?er witness, in what appeared to be highly coordinated fashion, gave anecdotal testimony about contaminated wells generally in the area. Yet, with only one exception, none of these witnesses thought to bring any documentary evidence to the hearing to substantiate their woes. No well test reports, no speci?c testimony that would tie well contamination to any activity attributable to Kinnard Farms or to'any of its contemplated operations. The single exception to this parade of unsupported allegations was the testimony'of a Mr. Mindak. His well, however, was in such poor shape at the time it was tested that it was condemned and a replacement well installed. (See, Tr. Vol. 3 at 535-56, 862?64; Tr. Vol. 4 at 1124; Exh. 138, Since he installed a compliant well, however, tests have not revealed unacceptable levels of any contaminants. Justice demands that allegations as weighty as those leveled at Kinnard Farms during the public hearing be accompanied by some evidence of such contamination, not to mention evidence of some link between the alleged contamination and Kinnard Farms. Justice also demands that a tribunal Wei ghing such testimony be highly concerned about the lack of any reliable evidence. Yet, on the basis of wholly unsubstantiated stories of well contamination, the ALJ not only found the testimony credible, he relied on it for his sensational conclusion that DNR is guilty of a ?massive regulatory failure.? (Decision, p. 13.) To have so maligned regulatory efforts without reliable evidentiary support suggests that for the ALJ, the Off-site Monitoring Requirement is a solution in search of a problem, not the other way around. The Secretary should reverse the Off?site Monitoring Requirement both on grounds that it exceeds the authority under ch. NR 243 and because it is not lawful to order any requirement on the basis of unsubstantiated testimony of well contamination. RELIEF REQUESTED 33. For all of the reasons articulated above, Kinnard Farms requests that the Secretary review and immediately suspend the Animal Unit Maximum and the Off-site Monitoring Requirement, and: a. Reverse that aspect of the Order by which the Division ordered ?that Sections 1.3, 1.3.3, 2 and 3.1.12 be modi?ed to re?ect a maximum number of animal units at the facility in addition to current storage requirements.? (Decision, p. 18 and b. Reverse any aspect of the Decision that would require Kinnard Farms to monitor groundwater to detect impacts of off-site activity. In particular, the Secretary should reverse that part of the Decision on p. 18 which requires Kinnard Farms ?if practicable? to install at least two wells to ?monitor -9- groundwater quality impacts from off-Site (Decision, p. 18.) The requested modi?cation should clarify that DNR will not require Kinnard Farms to monitor groundwater at any sites. 34. Kinnard Farms further requests that the Secretary exercise her authority pursuant to Wis. Admin. Code NR 220(5) to immediately, and in writing, suspend the Animal Unit Maximum and the Off-site Monitoring Requirement. Speci?cally, Kinnard Farms requests that the Secretary immediately issue instructions to the Administrator of the Division of Water and to the Director of the Legal Services Bureau to not enforce either the Animal Unit Maximum or the Off-site Monitoring Requirement until further instructions issue from the Of?ce of the Secretary. The basis for this suspension request is that by its terms the Decision requires - Kinnard Farms to prepare and submit a groundwater monitoring plan within 90 days of the Decision date. Kinnard Farms would also have to expend considerable resources trying to determine what the appropriate Animal Unit Maximum should be. It wouldbe'manifestly unfair to require Kinnard? Farms to evaluate potential sites as potential groundwater monitoring locations, or to expend resources trying to ?gure out how many animal units correlate to its storage capabilities, when the decision to impose each of these requirements so plainly violates the law. Dated this 18th day of November, 2014. MICHAEL BEST FRIEDRICH LLP - Attorneys for Kinnard Farms, Inc. By: Jordan 1. IHie'maidbE?SBl?il 1026993 Michael P. Screnock, SBN 1055271 MICHAEL BEST FRIEDRICH LLP One South Pinckney Street, Suite 700 PO. Box 1806 Madison, WI 53701?1806 Phone: 608.257.3501 Fax: 608.283.2275 fj'hemaidan@michaelbest. com com -10-