Issues: Water

RECOMMENDATIONS TO IMPROVE POLLUTION CONTROLS ON FACTORY FARMS

The Clean Water Act (CWA), enacted in 1972, works to help solve water pollution problems that are national in scope. Pollution from animal factories is a national problem, affecting more than half of the states in the United States. This report describes the pollution problems of thirty states and also documents the states' ineffective efforts to protect their citizens from animal factory pollution. However, even if a state were truly committed to solving the problems of factory farm pollution, it would be nearly impossible for a single state to accomplish that task given the extent to which factory farms pollute surrounding states. Pollutants gushing into waterways or wafting airborne do not stop at state boundaries. Moreover, because some of the largest operators try to site factory farms in states with the laxest environmental protections, only nationwide standards can assure this problem is addressed effectively. The pressing concern with factory farm pollution across the country provided the impetus for two bills being considered before Congress, S. 1323, "The Animal Agriculture Reform Act," sponsored by Senator Tom Harkin (D-IA) and H.R. 3232, "The Farm Sustainability and Animal Feedlot Enforcement Act," sponsored by Representative George Miller (D-CA).

In a proposal released earlier this year, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA) give long-overdue recognition to the problems of factory farm pollution. Their "Draft Unified National Strategy for Animal Feeding Operations" (referred to here as the EPA-USDA Draft Strategy) calls for the implementation of a national Clean Water Act program -- an urgent need documented by this report.^[1] However, the strategy must be considerably strengthened if it is to stop factory farm pollution.

The following recommendations outline a Clean Water Act blueprint for the control of animal factory pollution.

The current Clean Water Act standards under which factory farms operate are woefully inadequate. For example, the technology standards allow factory farms to build football-field sized, open-air manure cesspools. These manure lagoons have burst, leaked and overflowed -- polluting waterways across the country.

A lack of clarity in another set of rules -- the permitting rules -- has allowed many factory farms to evade the environmental restrictions that do apply under the law. As currently administered, the Clean Water Act has allowed individual factory farms to claim they are not polluters, even when the facility in question poses real-life pollution threats in its everyday handling of manure. Depending on the state, such a claim may exempt a livestock operator from the Act's restrictions on how polluters operate -- restrictions aimed at protecting water quality.

Under its new strategy, EPA is proposing to issue hundreds of permits to new and expanding factory farms. But these permits would be issued under the same antiquated technology rules that have allowed most factory farms to pollute.

EPA should impose a moratorium on permits for new and expanding animal factories that currently qualify as concentrated animal feeding operations. This moratorium should stand until all existing facilities have received permits, until EPA upgrades its standards regarding animal waste technology, and until EPA tightens its rules to insure comprehensively that all factory farms are required to obtain a permit. This time-out would also allow states to assess the water quality effects of existing CAFOs before new operations are built or existing operations are expanded. The wisdom of a temporary time-out has been recognized by states all over the country at one time or another, including North Carolina, Kentucky, Mississippi, Missouri and Oklahoma. Unfortunately, the EPA-USDA Draft Strategy does not include a moratorium.

Despite the risk that factory farms pose to water supplies and to public health, citizens in most states do not have the right to be notified before a factory farm moves into their community. Once citizens are faced with the prospect of a huge animal factory that will generate more waste than several of their small towns put together, there is rarely anything they can do to stop the facility from operating. And once an animal factory has been established, there is little citizens can do to ensure stricter pollution controls. The lack of citizen participation in basic decisions about how to protect their communities from huge potential polluters is a basic feature of the general permit, which is the type of permit most commonly employed by states.

Rather than allow general permits for factory farms, the EPA should require that all factory farms be subject to more stringent individual permits. Individual permits require public notice before a factory farm can be permitted, set site-specific permit terms and may require an on-site evaluation prior to permit issuance. Site-specific permit terms might, for example, require the siting of a manure storage facility in the least ecologically vulnerable location on a property, despite the owner's plans to put it elsewhere. An individual permitting system might have prevented the location of a controversial factory farm within close proximity to a wildlife refuge in Mississippi.

Unfortunately, the EPA-USDA Draft Strategy relies upon the use of general permits for animal factories, especially for existing operations. The strategy identifies a list of certain types of factory farms that should receive individual permits, such as new and significantly expanding operations and operations known to pollute or likely to pollute.^[2] This is a good starting point but not enough. All factory farms should receive individual permits. Additionally, EPA undermines the use of this limited list by giving states the option of ignoring it.

Permits issued under the federal Clean Water Act should be required for all factory farms. A national permitting system is needed to create greater consistency and protection across the nation than is offered by the current patchwork of state laws. As is currently the case under the Clean Water Act, states would be free to adopt more environmentally protective standards but could not sink below the "floor" of federal technology and permitting standards. There are several reason to mandate Clean Water Act permits: (1) Clean Water Act permits are designed to insure that water quality standards are attained.^[3] State permits are not necessarily based on this goal. (2) Under the Clean Water Act, if a nearby water body becomes polluted by feedlots and other industrial sources, EPA establishes pollution reduction goals for each polluter.^[4] (3) Under the Clean Water Act, citizens have the right to bring lawsuits against polluters to enforce the Clean Water Act.^[5] Few of the states allow a citizen to sue a polluter for a violation of a state water pollution control permit. To its credit, the EPA-USDA Draft Strategy recommends the use of Clean Water Act permits for all confined animal feeding operations.^{[6 ]}(Note: While some states now issue permits to feedlots under a variety of state laws, only Clean Water Act permits provide the consistent environmental protection and procedural rights we need.)

Finally, Clean Water Act permits for factory farms must be backed up with meaningful compliance. Most industries that are issued Clean Water Act permits must monitor receiving waters and periodically report the results to EPA. However, factory farms, which are not currently required to follow these water-testing requirements, should be required to follow them. A strict regimen of enforcement is needed, such as periodic and unannounced inspections and penalties for violations that will ensure compliance.

Factory farms generate so much manure and urine in one place that, unlike livestock operations on a smaller scale, their manure storage and land application practices are often more a matter of waste disposal than of fertilizing crops. Open air lagoons and aerial spraying by factory farms should be banned. They should be replaced with technologies that do not rely upon open air storage of vast quantities of liquid manure, or that store manure in a drier form. Additionally, environmentally friendly and more humane farming systems should be encouraged, including composting and pasture systems. These systems, as well as an innovative system in which hogs are raised on straw, have been proven to work in Europe and in the United States. North Carolina passed legislation that required the State Department of Agriculture to develop a plan to phase out lagoons and sprayfields, but the Department's plan has failed to comply with this mandate. H.R. 3232, the Farm Sustainability and Animal Feedlot Enforcement Act, sponsored by Representative George Miller (D-CA), would phase out open-air lagoons for factory farms. The EPA-USDA Draft Strategy barely mentions more sustainable approaches. The strategy appears to support the continued use of liquid manure systems in the short-term, and does not commit to banning lagoons and sprayfields in the long-term.^[7] Finally, the EPA-USDA Draft Strategy fails to embrace a comprehensive regulatory approach to addressing all elements of environmental degradation, not just water.^[8]

One of the best features of the EPA-USDA Draft Strategy would require factory farms to follow plans aimed at protecting soil and water from pollution through the land application of too much manure. Recognition has been growing that spreading vast quantities of manure on land can be as much of a pollution threat as a leaking manure lagoon.^[9]

In an important move, the EPA-USDA Draft Strategy requires factory farms to develop and implement nutrient plans that will "ensure that the proper amounts of nutrients are applied in a way that does not cause harm to the environment or public health."^[10] If this standard means restrictions based on the nutrient phosphorus and on pathogens, it would be a notable improvement over state permit programs that, for example, only consider nitrogen. Most states fail to prevent pollution from phosphorus, a nutrient in manure, even when they regulate the land application of manure. Polluted runoff rich in phosphorus poses environmental risks, including fish kills.

However, the EPA-USDA Draft Strategy is short on the details of what will be required in a Comprehensive Nutrient Management Plan or what nutrients it has in mind. Additionally, it appears that factory farms will have years to develop plans and several years thereafter to implement the plans, so the benefits of these plans will not occur for years to come. Finally, although the Comprehensive Nutrient Management Plans are recommended as core features of factory farms' Clean Water Act permits, especially for facilities issued general permits, the public is given no say on their terms. The plans are only available to the public after they have been approved by the USDA and EPA.^[11]

Many of the states described in this report spoke of significant pollution problems from poultry operations. Yet most states fail to impose any kind of water pollution permits to set environmental controls on the land application and storage of chicken litter. According to the U.S. General Accounting Office, close to 2,000 poultry operations were of sufficient size to warrant a permit in 1992, but only 39 operations had them.^[12] The rationale used by most states and by EPA for exempting these operations was that poultry litter is dry. Yet even dry manure, when applied in excess quantities to the land, can create polluted runoff. Poultry factory farms should be issued Clean Water Act permits, whether the manure generated is dry or wet. The EPA-USDA Draft Strategy needs to state clearly that all dry litter factory farms will be regulated in the same fashion as other animal operations.

Large corporations often contract with smaller producers to raise their chickens and swine but do not take responsibility for disposing of the animals' waste. In many cases, farmers raising animals under contract are forced to become polluters because the major food corporations that own the animals will not provide enough acreage to apply wastes properly. As a result, small contract growers are often forced to over-apply manure to the fields that they have available. The EPA-USDA's Draft Strategy fails to impose legal liability and financial responsibility for factory farm pollution on the corporations pulling the strings. The onus to comply with permit restrictions should fall on the entity that owns the animals or that has control over how the animals are produced through production contracts. Shared responsibility for pollution between the corporation and the contract farmer is an approach taken by the state of Kentucky.

Finally, some corporations have subdivided their operations into smaller farms to evade permitting requirements for large-scale factory farms. To ensure that all operations which pose a pollution risk are covered, multiple facilities in the same area and owned by one corporation should be captured within the permitting systems.

Notes

1. U.S. Department of Agriculture and the U.S. Environmental Protection Agency, Draft Unified National Strategy for Animal Feeding Operations, Washington, D.C. (September 11, 1998).

2. U.S. Department of Agriculture and the U.S. Environmental Protection Agency, Draft Unified National Strategy for Animal Feeding Operations, Washington, D.C. (September 11, 1998). p. 26.

3. Clean Water Act, Sections 101(a) and 402.

4. Clean Water Act, Section 303(d).

5. Clean Water Act, Section 505.

6. U.S. Department of Agriculture and the U.S. Environmental Protection Agency, Draft Unified National Strategy for Animal Feeding Operations, Washington, D.C. (September 11, 1998), pp. 15-18.

7. U.S. Department of Agriculture and the U.S. Environmental Protection Agency, Draft Unified National Strategy for Animal Feeding Operations, Washington, D.C. (September 11, 1998), p. 31.

8. U.S. Department of Agriculture and the U.S. Environmental Protection Agency, Draft Unified National Strategy for Animal Feeding Operations, Washington, D.C. (September 11, 1998), p. 5.

9. Concerned Area Residents for the Environment, et al. vs. Southview Farm and Richard Popp, 834 F. Supp. 1410 (W.D.N.Y. 1993), Defendant's Motion for Judgment as a Matter of Law, 834 F. Supp. 1422 (Cir. 2 1993), (rev'd 34 F. 3d 114 (2d Cir. 1994) ( reversing defendant's motion)), cert. denied, 115 S. Ct. 1793 (1995)

10. U.S. Department of Agriculture and the U.S. Environmental Protection Agency, Draft Unified National Strategy for Animal Feeding Operations, Washington, D.C. (September 11, 1998). p. 8.

11. U.S. Department of Agriculture and the U.S. Environmental Protection Agency, Draft Unified National Strategy for Animal Feeding Operations, Washington, D.C. (September 11, 1998), p. 8-26.

12. U.S. General Accounting Office, Briefing Report to the Committee on Agriculture, Nutrition and Forestry, U.S. Senate, Animal Agriculture, Information on Waste Management and Water Quality Issues, GAO/RCED 95-200BR, Washington, D.C. (1995), pp. 58-61.