CAFOs are industrial operations that confine a large number of animals – for example, at least 1000 beef cattle, 700 dairy cows, or 30,000 chickens – in facilities where vegetation is not sustained.
The facilities generate large amounts of waste that must be properly managed. A Government Accountability Office report estimates that a single dairy farm that meets EPA’s minimum large CAFO threshold of 700 dairy cows produces around 17,800 tons of manure a year, compared to the 16,000 tons of sanitary waste that it takes a city of 24,000 residents to annually generate.
To utilize the nutrients in the manure, and because other options are often cost-prohibitive, farmers frequently store the manure in lagoons and spray it on the land as fertilizer.
“When there’s over application, or land application during rain or snow, huge runoff takes place,” said Hannah Connor, Waterkeeper Alliance’s attorney who attended the settlement meeting. This can result in manure – which can contain antibiotic-resistant bacteria, hormones, nitrogen and phosphorus –
discharging into federally-regulated water, raising concerns about the impact on public health and the environment.
In the settlement, EPA agreed to release a guidance document that would clarify which CAFOs would need to apply for National Pollutant Discharge Elimination System (NPDES) permits under its 2008 final rule. The permits prohibit any discharge from entering waterways.
EPA will propose a new rule that would require all CAFO owners or operators to submit to the agency specific data about the number and types of animals that are being raised, the quantity of manure generated, the type and capacity of manure storage, and how the manure is disposed. This information would be collected every five years and would be made publicly available. This proposed rule would be open for public comment before EPA takes final action.
The settlement language comes directly out of the language of the Clean Water Act, said Hannah Connor, the Waterkeeper Alliance attorney, in an email.
The act states that “whenever required to carry out the objective of this Act […] the Administrator shall require the owner or operator of any point source to establish and maintain such records; make such reports; install, use, and maintain such monitoring equipment […] and provide such other information as he may reasonably require.”
Currently, reliable information concerning CAFOs is not available. Although EPA estimates that there are more than 19,000 large CAFOs, the GAO report determined that the data is inconsistent, inaccurate, and does not provide necessary information on the characteristics of CAFOs. The 2008 report recommended that EPA “complete its efforts to develop a comprehensive national inventory of permitted CAFOs” so that CAFOs can be effectively regulated. If the proposed rule is finalized, the new regulation would help EPA accomplish this objective.
Last month’s settlement was a result of a petition for judicial review that the environmental groups filed in response to EPA’s 2008 final rule. CAFO industry’s challenge to the final rule is still pending.
Reaction to the settlement has been mixed. Environmental groups overall seem to believe it is a step in the right direction.
“The settlement increases the information-gathering process to expand the universe of information that is available so that there’s more transparency,” said Hannah Connor, the Waterkeeper Alliance attorney.
CAFO-industry organizations on the other hand have expressed concern that the requirement for all CAFOs to submit information to EPA is beyond the scope of the Clean Water Act, which regulates only CAFOs that discharge. The regulations would require “all CAFOs – even if there is no evidence they are not properly managing their manure – to submit the kind of detailed information that would normally be included in a Clean Water Act CAFO permit,” the National Pork Producers Council said in a press release.
The group also expressed “deep anger and frustration” over costly regulations it feels provide few environmental benefits. CAFOs that discharge pollutants are subject to a daily fine of up to $37,500.
The new guidance document EPA issued as part of the settlement reconfirms the 2008 final rule requirement that CAFOs that discharge or propose to discharge will need NPDES permits, and specifies some factors that a CAFO owner or operator should take into account when making an objective assessment about whether there is a duty to apply for a permit. As specified in the final rule, a facility “proposes” to discharge if it is designed, constructed, operated, or maintained in such a manner that discharge will occur. The guidance document could help authorities identify which CAFOs need permits and assist in implementing permitting programs.
CAFO industry – which includes the National Pork Producers Council, American Farm Bureau Federation and United Egg Producers – in its petition challenging the final rule objects to the requirement that CAFOs that “propose” to discharge must apply for permits. They feel that it essentially forces a CAFO with only a potential discharge to apply for permit coverage, a requirement that was invalidated by the 2005 Waterkeeper court ruling.
The EPA settlement brings increased oversight of CAFOs a step closer. A rule that collects information from CAFOs should increase EPA’s ability to regulate the facilities. The guidance document, by explaining which CAFOs have a duty to apply for permits, helps authorities implement NPDES permit regulations and may trigger more investigations.
However, litigation between environmental and CAFO industry interests is far from over.
