Senate Committee on Government
Affairs
March 13, 2002
I.
Industrial
Pork Factories: A Threat to the
Economy, the Environment,
and our Democracy
A. Industrial Pork
Factories, Invented in North Carolina, Now Threaten
to Extinguish Family Farming in Thirty-Four States. ..………………………………………….4
B. Tradition of Land Stewardship and Animal
Husbandry is Disappearing
with the
American Family Farmer……………….………………………………………….……5
C. Industrial Animal
Production Subjects Millions of Animals to Conditions
that are Unspeakably and Unnecessarily Cruel
……………………………………….……….…..5
D. Pollution-based profits . ……………………………………………………………………..…...6
B.
Waterkeeper’s Hog Campaign…………………………………………………………………...10
III THE FEDERAL GOVERNMENT STEPS IN, THEN bush aministration
BACKS
OFF …………………………………………………………………………….…..…....11
Appendix A: Short Biographical Outline and Description of Neuse Riverkeeper Program………..…....18
Appendix
B: The Waterkeeper
Alliance……………………………………………………..………......21
.
Appendix
C: Factory Farms, a Pattern of Lawbreaking……………………………………..……….….22
Appendix
D: CAFO Comments to EPA, July 30, 2001,
January 15, 2002, February 4, 2002……….…44
Appendix
E: Environment: Bush Policies have Hurt
the Environment in Texas…………….……….…96
I want to thank Senator Lieberman and the
other members of the Senate Committee on Government Affairs for scheduling
these hearings and inviting me to testify before you. My testimony is presented
on behalf of the Waterkeeper Alliance, a non-profit umbrella organization
licensing and supporting more than 80 Waterkeepers protecting rivers, bays and
other watersheds throughout the country. My testimony will address concerns
about the negative impact of concentrated animal feeding operations (CAFOs) and
EPA’s failure to regulate such operations.
I am Rick Dove, and I have lived on the shores of the Neuse River near New Bern, North Carolina for over twenty-five years. In 1987, after retiring as a Colonel in the United States Marine Corps, I pursued a childhood dream and became a commercial fisherman. With three boats and a local seafood outlet store, my son Todd and I worked over 600 crab pots and more than 2,000 feet of gill nets. Things went well for the first two years. Then the fish began to die, many with open bleeding sores. At first it was only a few but, as time passed, the numbers grew larger and larger. Soon my son and I began to develop the same kind of sores on our legs, arms and hands. It took months for these sores to heal. I also experienced memory loss. At the time I did not connect my son’s and my health problems to my work on the water—that connection was established later.
By 1990, the situation became much worse. More and more of the fish in the Neuse River were developing bleeding lesions. Regrettably, my son Todd and I had no choice but to stop fishing. Frustrated and disappointed, I grudgingly returned to practicing law. In 1991, the Neuse suffered the largest fish kill ever recorded in the state’s history. Over one billion fish died over a period of six weeks during September and October. There were so many dead fish that some had to be bulldozed into the ground. Others were left to rot on the shore and river bottom. The stench produced by this kill was overwhelming and will never be forgotten.
In 1993, I became the Neuse Riverkeeper. In that capacity, I was a full-time, paid citizen representative of the non-profit Neuse River Foundation whose duty it was to restore, protect and enhance the waters of the 6,100 square mile Neuse River watershed. Due to ill health attributed in large measure from my exposure to the toxins in the river, my work as Neuse Riverkeeper ended in July 2000. A short biographical outline together with a detailed description of the Neuse Riverkeeper Program is attached as APPENDIX A
As the Neuse Riverkeeper, I was in a position, personally, to study the river, to work with scientists and state officials, and to closely monitor the various sources of pollution. I patrolled the river by boat, aircraft, vehicle and waders along with a corps of approximately 300 volunteers. All sources of pollution were exhaustively documented in thousands of photographs and hundreds of hours of video. By the time the next major fish fill occurred in 1995, I was in the best position to observe, report and document the cause and effect of one of the river’s most serious problems, nutrient pollution.
In the 1995 fish kill, for over 100 days, fish were once again dying in large numbers. Nearly all of them were covered with open bleeding lesions. In just 10 of those 100 days, volunteers working with the Neuse River Foundation documented more than 10,000,000 dead fish. At that time, many citizens who were exposed to this fish kill complained about a number of neurological and respiratory problems. North Carolina health authorities documented these problems and wrongly dismissed them. Later, researchers working similar fish kills on Maryland’s Pokomoke River would link these same symptoms to the cause of the fish kills, Pfiesteria piscicida.
By 1995, we knew what was killing the fish. It was Pfiesteria piscicida, a one-cell animal, so tiny 100,000 of them would fit on the head of a pin. This creature, often referred to as the “cell from hell” produces an extremely powerful neurotoxin that paralyzes the fish, sloughs their skin and eats their blood cells. It is capable of doing the same thing to humans. This neurotoxin is volatized to the air and is known to cause serious health problems, including memory loss, in humans who breathe it. Its proliferation has been directly linked to nutrient pollution from CAFOs, as well as other sources. One of the most exhaustive websites related to Pfiesteria piscicida can be found at www.pfiesteria.com
The fish kills continue today. Depending upon weather conditions, some years are worse than others. Many smaller kills are not even counted. Fishermen continue to report neurological and respiratory symptoms, and a dark cloud still hangs over the state’s environmental reputation and economy.
From an office located in North Carolina, I now serve as the Southeastern Representative of Waterkeeper Alliance. The Alliance’s headquarters is located in White Plains, New York. A major part of my duties involves assisting other Waterkeepers and investigating and documenting the environmental degradation resulting from CAFO operations, especially those involving hogs. The background on the Waterkeeper Alliance is set forth at APPENDIX B.
INTRODUCTION TO THE AMERICAN MEAT FACTORY
American meat production is currently undergoing the most
dramatic consolidation in our history.
Family farmers are disappearing and ceding control of the American
landscapes and food production to industrial meat factories owned by a handful
of giant corporations with little or no interest
in or capacity for socially responsible agriculture.
Meat factories do not produce meat more efficiently than
traditional family farmers. The
industry’s willingness to treat the animals with unspeakable cruelty and to
dump thousands of tons of toxic pollutants into our nation’s waterways, and
their ability to get away with it, however, has given it a dramatic market
advantage over the traditional family farm.
Indeed, the industry’s business plan is based upon its ability to use
its political clout to paralyze the regulatory agencies, thereby escaping the
true costs of producing their product.
For a decade, the Neuse Foundation and its Riverkeeper Program
have been the leading voice against industrial hog production in North Carolina
and one of the nation’s leading repositories for information on industrial meat
production. In December of 2000,
Waterkeeper Alliance launched a national campaign designed to reform this industry
and to restore healthy wholesome landscapes and waterways and bring back
humanity, prosperity and democracy to America’s rural communities. The Alliance
is partnering with animal welfare advocates, family farm advocates, other
environmental groups and others concerned about rural life in America to fight
hog factories in the courts, at all levels of legislative decision-making and
before the public. The Alliance has also created an elite legal team of
attorneys from fifteen prominent class action law firms who will use the courts
to challenge the industry’s control of America’s rural landscapes and
waterways. In
February 2001,Waterkeeper staff attorneys and the legal team
simultaneously filed a series of lawsuits against the industry in federal and
state courts across the nation.
I.
Industrial Pork
Factories: A Threat to the Economy, the
Environment, and our Democracy
A.
Industrial Animal Factories, Invented in North Carolina, Now Threaten
to Extinguish Family Farming in Thirty-Four States.
In the late 1980s, a North Carolina state senator, Wendell Murphy and his partners, Smithfield slaughterhouses, helped invent a new way to produce pork. Thousands of genetically enhanced hogs would be shoehorned into pens and tiny cages in giant metal warehouses, dosed with subtherapeutic antibiotics and force-fed growth enhancers in their imported feeds. Their prodigious waste would be dumped, sprayed, spilled and discharged onto adjacent landscapes and waterways. Within a few years, traditional North Carolina style hog farming gave way to the state’s infamous pork factories mostly owned by a single corporation.[1] In 1983, there were approximately 24,000 hog farms in North Carolina. Today, traditional family hog farmers are virtually extinct in North Carolina, replaced by 2,200 hog factories, 1,600 owned and/or controlled by Smithfield. Pork factories owned by Smithfield and a tiny handful of other large corporations, known as integrators,[2] have now moved into thirty-four states and are effecting the most dramatic consolidation in United States agricultural history.
B. A Tradition of Land Stewardship and Animal Husbandry is Disappearing with the American Family Farmer.
In the 1980’s, the majority of pork production was still in the
hands of efficient independent farmers who kept herds small enough that they
could provide husbandry to the animals and manure production did not exceed
fertilizer demand. The independent
family farmer generally spreads the manure of a few hundred hogs as fertilizer
on the same cropland from which he derives produce to feed his herd. Traditional farmers thus achieve a rough
balance; growing crops that assimilate the nutrients in hog waste keeps these
nutrients from flowing into adjacent waterways and leaching into groundwater.[4]
By contrast, industrial hog producers
confine thousands of animals in warehouses, that produce tons of animal waste, liquefies that waste into open pits
adjacent to the hog confinement areas, and sprays massive quantities of the
liquefied manure onto fields too small to absorb the nutrients. Poison runoff from these fields destroys the
public waters that drain them.
Smithfield hog factories quickly triumphed over family farmers in the
marketplace, not due to their greater efficiency, but because the company
adopted the dual strategies of vertical integration and of circumventing
environmental and anti-cruelty laws. Hog producers reap enormous benefits by escaping
the costs of waste disposal and proper animal husbandry, and, in effect,
transferring these costs onto society.
C.
Industrial Pork
Production Subjects Millions of Animals to Conditions that are Unspeakably and
Unnecessarily Cruel
Factory meat production is an industrial rather than an
agricultural enterprise. Animal
husbandry is nonexistent. Industrial
pork barons produce pork chops and bacon and the animals themselves are treated
only as industrial production units.
Genetic manipulation for meat production has produced hog breeds that
are high strung and nervous. They live
short miserable lives characterized by extreme cruelty and extreme terror.
By nature, pigs are active, inquisitive and intelligent, and
they spend much of their time exploring ground cover and rooting for food. They are communal animals with a highly
developed system of vocalization that they use in courtship, self defense and
raising their young. The female pig,
the sow, has a strong instinct to build a nest before giving birth. She will wean her young for several months
and take care of them even longer.
In industrialized hog factories, pigs are raised in intensive
confinement for their entire lives in huge windowless structures choked by
their own foul stenches. Subject to
disease from overcrowding and entirely deprived of exercise, sunlight, straw
bedding, rooting opportunities and social interactions that are fundamental to
their health, factory hogs are kept healthy only by constant doses of
subtherapeutic antibiotics. Their
growth rates are unnaturally sped-up by feed additives including antibiotics,
hormones and toxic metals. Sows endure
in tiny crates that are too small for them to turn around, giving birth on bare
metal grate floors, their babies taken away after only three weeks of
weaning. Driven by frustration and
depression, sows continually gnaw on the metal bars of their crates. Severe restrictions on the pigs’ movement
over a lifetime impede bone development frequently resulting in broken
legs. Injured pigs are “culled”
sometimes by being dumped alive into waste lagoons. There are many accounts of brutal treatment of these animals,
including teeth pulling, castration without anesthesia, and beating disabled
sows unable or too terror stricken to walk to slaughter. According to the U.S. Humane Society, one
in five of all factory-raised pigs die prematurely, before reaching the
slaughterhouse.
In 1999, Smithfield made a major foray into Poland. At the invitation of the Animal Welfare
Institute, Andrzej Lepper, the President of Poland’s largest farmers’ union,
came to the United States and toured Smithfield hog factories. Mr. Lepper later recounted that he was
shocked by what he saw in the American hog factories which he referred to as
“animal concentration camps.” He added
that, “industrial husbandry methods of raising hogs are not in harmony with
nature.”
The Catholic Church Catechism holds that it
is legitimate for humans to raise animals for food but also says that it is,
“contrary to human dignity to cause animals to suffer or die needlessly.” In December 2000, a Vatican official wrote
that factory livestock operations, with their cramped and cruel methods, may
cross the line of morally acceptable treatment of animals.
D.
Pollution-based Profits
Industrial hog factories cram thousands of hogs into pens and cages for
a lifetime over slatted concrete and metal grate floors.[5] Their waste falls though the floor to a
cellar below the buildings that the operators periodically flush into an open
air earthen pit, euphemistically referred to as a “lagoon.” Flushing liquid comes from the lagoons
themselves. These manure pits are
really putrid cesspools one to twenty acres in size and up to fifteen feet
deep, brimming with tens of millions of gallons of untreated feces, urine and
toxic waste generally destined to ooze its way onto soils and into subsurface waters and rivers.
Using a variety of water cannons, hog factories spray this raw
urine and fecal marinade from their waste pits onto adjacent land,
ostensibly as fertilizer. Industrial
hog factories illegally deposit hundreds of millions of pounds of untreated hog
feces and urine and other contaminants into the sprayfields each year. However, the frightening tonnage of liquid
and solid hog excreta generated by swine cities vastly exceeds the absorption
capacity of the crops on sprayfields for nitrogen, phosphorous and metals. Most
sprayfield are heavily ditched to carry subsurface and surface runoff directly
to public waters.
These discharges overload public waterways with nutrients, injuring aquatic life and endangering human health. According to the federal Environmental Protection Agency, sixty percent of river miles, fifty percent of lake access, and thirty four percent of estuary acres are degraded by agricultural pollution, mostly from factory farms. In addition to nutrients, swine waste lagoons contain a witch’s brew of nearly 400 volatile organic compounds and toxic poisons including pathogenic microbes (protozoas, bacteria, viruses), biocides, pesticides, disinfectants, food additives, salts, heavy metals (especially zinc and copper), antibiotics, hormones, and other materials.
E.
Antibiotic Use
Promotes Resistant Bacteria
Industrial meat producers routinely dose their animals with
sub-therapeutic antibiotics for non-medical purposes, primarily to stimulate
unnaturally rapid growth in hogs. The
excessive use of antibiotics is an integral part of the production system both
to bring them to market faster and to keep them alive in otherwise unlivable
conditions. Many of the antibiotics
given to livestock, such as tetracycline, penicillin, and erythromycin, are
important human medicines. Up to 80% of
antibiotics administered to hogs pass unchanged through the animal to bacteria
rich waste lagoons. This soup is then
spread on sprayfields, allowing the antibiotics to enter groundwater and run
off into surface waters.
Routine administration of sub-therapeutic antibiotics endangers
public health by contributing to drug-resistant pathogens with which humans and
animals may come in contact through ground water, surface water, soil, air, or
food products. Once antibiotics have
entered hog factory effluents, they can enter waterways and spread through the
environment in low concentrations – killing susceptible bacteria and leaving resistant
survivors to multiply. Resistant
bacteria can then infect people who swim in lakes and rivers or drink well
water.
In January 2001, the Union of Concerned Scientists issued a report that
included the following shocking statistic:
84% of all antibiotics consumed are used in livestock, the vast
majority for nontherapeutic purposes!
The hog industry uses eleven million pounds of antibiotics annually
while a comparatively modest three million pounds are used in human medicine.
Many public health officials have warned that the use of subtherapeutic antibiotics in hogs is extremely dangerous. The World Health Organization, the U.S. Centers for Disease Control and Prevention, and the American Public Health Association have all urged that using the antibiotics of human medicine in hogs should be prohibited. The European Union has banned nontherapeutic agricultural use of antibiotics that are important in human medicine. In some European countries, such as Sweden, using any antibiotics in raising hogs is illegal.
There are myriad alternatives to the lagoon and sprayfield system, but the industrial hog barons refuse to adopt innovations that might cut profit margins. For example, in Sweden, where factory farming is banned, hogs are raised in a deep-bedded straw system, where ample straw bedding is provided to pigs and they are allowed to move freely, interact socially with other pigs, and engage in other natural behaviors such as rooting and nest building. There are no farrowing crates. There is no liquefied manure, no waste pits, and none of the stench that envelopes the American hog factories. Under the Swedish system, there is little risk of environmental injury because the manure is not liquefied and is naturally composted in the straw. Pigs raised under these conditions are also unstressed and healthier. The animals in Swedish farms and the people who raise them exist in a much healthier environment because they emit substantially less pollution to the air. In America, there are still a number of family farmers who used improved traditional methods to produce vegetables, meat and milk. Organic Valley and Niman Ranch are two successful leaders in this field. Their products are wholesome and tasty and they are produced through sustainable farming methods. Where animals are involved, they are treated humanely. These farmers do not use growth hormones or subtherapeutic antibiotics, and their farming practices are environmentally sound. These farmers could easily out compete their industrial competitors if the industrialist were required to bear the full cost of protecting the environment.
G. Hog Barons Proliferate Through A Pattern of Law Breaking
By illegally polluting, industrial hog producers gained a critical advantage over their
competitors – the American family farmer – in the marketplace. These are not businessmen making a “honest buck”. Instead, they are lawbreakers and bullies who can only make money by polluting our air and water and violating the laws with which other Americans must comply.
Environmental lawbreaking is an integral component of factory pork production. Records of state environmental agencies in over a dozen states demonstrate that factory hog producers are chronic violators of state and federal law. For example, North Carolina’s Department of Environment and Natural Resources (“NCDENR”) records show thousands of violations by Smithfield’s facilities[7] of state environmental laws. This is notable considering North Carolina’s lack of inspectors and extremely poor enforcement record. The number of violations is believed to be considerably greater since, prior to 1995, the environmental agency was not even allowed to know the locations of the hog factories, or to inspect them unless ‘invited’ to do so by the operators or owners. Needless to say, such ‘invitations’ were exceedingly rare. The massive and persistent drumbeat of violations recorded in these documents prove that hog factories and their facilities are chronic, deliberate and habitual violators of state laws designed to protect the environment and minimize discharges of swine waste.[8]
II Waterkeeper
Alliance Campaign Against Industrialized Hog Factories
A.
Waterkeeper’s Hog Factory Campaign
The consolidation of pork production by large industries and the proliferation of pork factories with lagoons and sprayfields have caused a dramatic public reaction in farm states particularly among factory neighbors. Many citizen organizations mobilized in the late 1980s to oppose the proliferation of meat factories. These groups began attending meetings of local boards of health, county commissions and drain commissions, and voicing their concerns to state and federal legislative bodies and agencies. Farmers, fishermen, and property owners warned the industry that its public claims that these factories could operate without polluting air and waterways would be exposed as false. Corporate pork production has harmed so many people in different ways that many groups have identified it as a threat to their constituencies. By the early 1990s watchdog organizations such as the Waterkeeper Alliance (through its local Riverkeeper programs) have been raising concerns and exposing chronic and severe violations of environmental laws.
B.
Waterkeeper’s Legal Campaign
The Waterkeeper organizations have a strong track record of bringing legal actions against polluters to enforce environmental laws. Waterkeeper Alliance President, Robert F. Kennedy, Jr., founded the Alliance and co-directs the Environmental Litigation Clinic at Pace University School of Law, which is known for its groundbreaking work in environmental enforcement. Waterkeeper has also assembled an elite team of nationally recognized class action law firms to address pollution and health problems caused by the hog industry. Waterkeeper is coordinating a national legal attack designed to civilize the factory pork industry through a series of lawsuits and administrative actions under federal environmental laws, state “nuisance” and health laws and the federal racketeering law (RICO).
In December 2000, Waterkeeper Alliance issued Letters of Intent
to Sue to six industrial hog facilities impacting the Neuse, New and Cape Fear
rivers in North Carolina for violations of the Clean Water Act, Resource
Conservation and Recovery Act (“RCRA”) and Comprehensive Environmental
Response, Compensation, and Liability Act (“CERCLA”). Waterkeeper subsequently filed lawsuits under environmental
statutes against two Smithfield-owned hog factories in North Carolina and is
engaged in settlement discussions with others.
Waterkeeper Alliance is working with environmental and farm organizations
and activists in Michigan, Minnesota, Iowa and South Dakota to develop other
lawsuits to reform the hog industry in each of those states.
In June of 2000, the Alliance and the North Carolina Riverkeeper
organizations filed a 36 count lawsuit in North Carolina Superior Court against
all of Smithfield’s North Carolina operations.
Invoking the state’s nuisance laws and the public trust doctrine, the
suit seeks an order requiring that the hog factories stop polluting local
waterways and the air and redress the damage they have caused to North
Carolina’s rivers and river communities.
Finally, Waterkeeper is assisting grass root activists in
defending themselves against industry lawsuits to intimidate them from
exercising their constitutional rights to petition and to free expression. For example, Waterkeeper’s attorneys are
currently fighting a so-called SLAPP (Strategic Lawsuit Against Public
Participation) suit against a group of Nebraska farmers by Sands, Nebraska’s
largest industrial hog producer. Sands
filed the suit in an attempt to harass farmers who had filed comments with the
Nebraska Department of Environmental Quality regarding an application by Sands
to significantly expand one of its facilities without appropriate environmental
safeguards. Sands is suing for
defamation and emotional distress. The
outcome of this case could be crucial to the future of public participation in
industrial meat factory issues.
Waterkeeper attorneys have filed a counterclaim against Sands claiming that
the industry lawsuit violates Nebraska’s anti-SLAPP statute and are lawsuits
intended to silence the community’s right to freely express its opposition to
this industry.
Although the Clean Water Act, adopted thirty years ago, explicitly recognizes Concentrated Animal Feeding Operations (CAFOs) as a major threat to water quality by enumerating them as a regulated point source, neither the federal EPA nor the state agencies have fully implemented a Clean Water Act permitting program for CAFOs. In fact, some states, such as North Carolina and Michigan, vehemently denied for years that they were required to establish a Clean Water Act CAFO permitting program.
The failure of the states and the federal government to implement the Clean Water Act and enforce existing laws and regulations against CAFOs has resulted in the widespread violation of the statute and its regulations by the livestock and poultry industry. This widespread violation of the Clean Water Act is acknowledged by EPA itself and the livestock industry (See CAFO NODA, p. 58571), which is now ironically using its failure to comply with existing regulations as an excuse for its inability to bear the cost of proposed, more stringent regulations. They represent a violation of the statutory mandate of EPA to develop regulations for this industry that use the best available technology, a standard that does not permit EPA to disregard an existing technology because it is more expensive for industry. This universal failure to implement the nation’s most important water protection legislation is a national scandal and has resulted in a substantial degradation of our nation’s waters from agricultural pollution.
In recognition of the environmental destruction that large
livestock and poultry operations have been wreaking on the environment and
because it was sued by NRDC, EPA published proposed new regulations for CAFOs
and NPDES permitting guidelines on January 12, 2001. In March 2001, representatives of the major livestock and poultry
producers petitioned the Bush administration for an extension of the comment
deadline, so the Administration pushed the comment deadline back to July 30,
2001.
Following submission of public comments on the proposed
regulations, EPA published a Notice of Date Availability; National Pollutant
discharge Elimination System Permit Regulations and Effluent Guidelines and
Standards for Concentrated Animal Feeding Operations (referred to herein as
“the November 12 regulations” or “the NODA”, Federal Register Vol.66, No.225,
58556 (Nov 21, 2001). The NODA states
that the January 12 regulations generated a significant number of comments from
livestock and poultry industry representatives or land grant university
professors who argued that EPA had failed to adequately calculate the costs
and/or economic impact. Section V,
pages 58566-58591, is devoted entirely to financial and economic analysis.
Reading through the November 12 regulations, one might have guessed that “EPA” stands for “Economic Protection Agency.” The NODA seeks input on approximately eighty-eight different issues, the majority of which request comments related to cost and economic or financial impact. Virtually every revision proposes a weaker regulation than the earlier version. In fact, in no case does the November 12 version propose a stricter environmental standard.
While the January 12 CAFO regulations moved EPA in the direction of solving some of the ills caused by CAFOs, the November 12 regulations suggest substantially scaling back these efforts and demonstrate a deterioration of the federal government’s only serious attempt to address the crescendo of citizen and scientific voices in this country calling for major CAFO reform.
The November
12 regulations are an alarming retreat by the federal Environmental Protection
Agency (EPA) from the January 12, 2001 version of the regulations. It is
troubling that at the moment in history when the public outcry over CAFO
pollution is the loudest, EPA signals its withdrawal from its earlier
commitment to address it and finally to require this industry to comply with
the Clean Water Act. The January 12
version, the result of years of EPA, citizen, and industry review and dialogue,
was crafted to make necessary improvements in the regulation of CAFOs. A copy
of Waterkeeper Alliance’s submissions to the EPA on July 30, 2001, January 15,
2002 and February 4, 2002 are attached as APPENDIX D.
1. November 12 regulations fail to consider cost to environment.
There is no discussion in the NODA of the economic analysis of CAFO pollution. Where is the dollar value assigned to loss of fisheries, loss of swimable waters and drinkable groundwaters, injury to human health, and loss of quality of life? And how is this taken into EPA’s economic equations? It appears that it is not.
2. November 12 regulations fail to consider whether an operation is a family farm.
At the same time, however, EPA’s economic analysis should take greater account of the impact its actions will have on family-owned farms. There are sound environmental policy reasons for this. Farmers reside on their farms, live in the communities, drink from the groundwater under their farms, breathe the air from their operations, worship and shop with the people near their farms, and fish and swim in the surface waters affected by their farms. Simply put, family farmers are the best stewards of the land. Yet, EPA’s analysis fails to consider whether the operation is a family farm in its economic analysis.
3. November
12 regulations would allow states to avoid implementing the Clean Water Act.
The November 12 CAFO regulations also propose giving the states greater flexibility to implement the Clean Water Act. Waterkeeper Alliance has had meetings with high level officials of several farm states to discuss CAFO pollution. Without exception, the state officials acknowledge that they have issued few or no CAFO NPDES permits. In most cases, they have attributed this at least partially to a lack of funding. They say that the state environmental agencies barely have funding for their existing programs. The same explanation is given for their failure to prosecute the thousands of known violations by CAFOs of environmental laws, regulations and standards. Given a proven lack of will, and the lack of resources at the state level, granting states continued “flexibility” would ensure that CAFO pollution will go unaddressed.
4. November 12 regulations move toward fewer NPDES permits.
The Clean Water Act contains the requirement that point source dischargers get NPDES permits, 33 U.S.C. §1311, and defines CAFOs as point source dischargers, 33 U.S.C. §1362 (14). Thus the Clean Water Act unambiguously mandates that CAFOs get NPDES permits. EPA is attempting to circumvent this requirement by seeking “equivalents” of the NPDES permit. Equivalents are whatever an implementing state wants them to be. In North Carolina they are called “General Permits”, ie., they apply to all CAFOs in the State without regard to the water quality of the waterbody to which they are adjacent. The non-discharge provisions of these permits are industry friendly. Most provisions of these permits do provide for citizen suits. The issuance of these non-NPDES Permits is counter to the plain wording and the intent of the Clean Water Act. EPA is bound by the law. The EPA must be required to follow the law. There are no exceptions.
5. November 12 regulations reduce critical
groundwater protection.
CAFOs are major
contributors to groundwater contamination.
Thus, it is important that EPA’s CAFO regulations require that risks to
groundwater be minimized and that CAFOs monitor groundwater quality. In the November 12 regulations, EPA says
that it is considering “adopting a performance standard based on …[the]
permeability [of synthetic / clay double liners]” rather than a zero discharge
that would be verified by groundwater monitoring, which was proposed in the
January 12 version. This is another
example of EPA looking first at the economic issues to CAFO profits rather than
the environmental or public health issues and failing to consider the cost of
degraded natural resources. It is
irresponsible for EPA to recognize that a waste storage technology is poisoning
groundwater and conclude from that that it must change its performance standard
rather than change the required, and readily available, technology. This is not the formation of good environmental
science and policy, and, moreover, it violates EPA’s clear statutory
mandate.
EPA must retain the groundwater controls and the zero discharge performance standard it had earlier proposed, which are scientifically possible and technologically available to protect the nation’s groundwater supplies.
6. November 12 regulations propose inappropriate Phosphorous “banking.”
EPA’s November 12 regulations propose to allow the “banking” of phosphorous. The proposal is nonsenscial since the NODA itself states that “EPA is concerned some levels of phosphorous banking would no more prevent discharges to the waters than would unrestricted application rates or application of manure on a nitrogen basis.” As noted in EPA’s NODA, many CAFO land application areas are vastly over-saturated with phosphorous. It is poor environmental policy for EPA to propose that “banking,” a practice that it doubts will protect the environment, be used to address the serious problem of phosphorous pollution from CAFOs. Instead, EPA must follow the law and require CAFOs to limit their phosphorous application rates to agronomic rates.
7. November 12 regulations propose less
frequent manure sampling.
EPA’s November 12 regulations propose to allow less frequent manure sampling. Recent research has confirmed that there is great variability in the components of lagoon wastes, depending on when and how the samples are taken. The EPA must require improved and increased frequency of waste sampling prior to land application, not diminish it.
8. November 12 regulations allow inappropriate
exception for a “chronic storm event.”
EPA’s January 12 version proposed to eliminate the exception for permitted operations in the event of a “chronic or catastrophic” rain event. EPA’s November 12 regulations indicate that it is reconsidering eliminating this language based on CAFO operations’ inability to meet it. For example, EPA seeks information on the storage capacity of existing lagoons. EPA is attempting to address the problem backwards. Rather than looking at the environmental problem and coming up with the solution, EPA is looking at existing operations and asking what regulation the industry can afford. This is an illegal analysis. EPA also fails to consider obvious solutions to lagoons that are being over-filled over, such as requiring reduction of herd sizes during the rainy months. EPA’s approach ensures the continuation of systems that are destroying the environment by polluting when it rains.
EPA’s suggestion that it eliminate the performance standard is particularly ironic because the CAFO industry constantly insists that it operates “zero discharge” systems. We urge EPA to require that CAFOs operate without discharging and that EPA eliminate the “chronic and catastrophic” exception, as it had previously proposed. Again, the best available technology standard required under the law requires the EPA to impose technologically available solutions to these pollution sources, regardless of decreased profits that the CAFO industry might experience.
9. November 12 regulations allow
non-compliance to be a boon to violators.
EPA notes that numerous commenters acknowledge that “many CAFOs do not have the necessary waste management components in place to comply with the existing CAFO regulations promulgated in the early 1970s.” EPA goes on to say that these commenters argue that EPA has wrongly underestimated the cost of financial impacts of the proposed regulations because it has failed to acknowledge this widespread noncompliance. In other words, the industry is arguing that many CAFOs are violating existing laws, and they should benefit from it. It essentially argues that violators should be rewarded for failing to comply with the law. Such an argument deserves no response. EPA must reject this backward logic and base its regulations on the law and sound environmental policy rather than trying to figure out ways to perpetuate the status quo. We urge EPA to calculate costs as it had in the January regulations.
10. November 12 regulations would allow the
inappropriate substitution of Environmental Management Systems (EMS) for
compliance with Clean Water Act and CAFO regulations.
EPA asks for input on the use of Environmental Management Systems (EMS). As examples, EPA states that EMS may deal with odor, noise, or energy conservation. These are matters that a responsible business should address to be a good corporate citizen, for its own protection against nuisance suits, and to save money. These matters have no connection to whether the CAFO is complying with a permit or whether it meets the definition of a CAFO. While we do not object to EMS, we strongly object to the suggestion that an EMS can serve as a substitute for an NPDES permit or show compliance with any environmental regulations.
As specific examples of EMS, the NODA points to the ISO 14001, including that obtained by Smithfield Foods’ operations in North Carolina. Smithfield Foods’ North Carolina operations are a perfect example of why the EMS is virtually meaningless for environmental protection. Even a cursory review of state records reveals that Smithfield’s North Carolina operations continue to violate hundreds of environmental regulations and standards. Neighbors see no tangible improvement in the operations, in spite of the ISO designations. EMS fail to provide necessary environmental protections. Therefore, EPA should reject the idea that it use EMS instead of permits or that it use EMS in its determination of which operations meet the definition of CAFO.
11. November 12 regulations contain a faulty
definition of “Proper Agricultural Practice.”
EPA proposes to define “proper agricultural practice” as follows:
One of any number of conservation practices, production measures, or management techniques that the CAFO operator or manure recipient can use to improve the efficiency, economy, or environmental condition of the site and surrounding land areas and waterbodies. (emphasis added)
This definition is inappropriate because it would classify anything that made the operation cheaper or more efficient a proper agricultural practice, even if it had no legitimate agricultural purpose and even if it damaged the environment. For example, applying more manure to land so that crops were killed from over application and groundwater and surface water were threatened might meet this definition.
If EPA wishes to define the term “proper agricultural practice,” a reasonable definition must contain some reference to a benefit to the agriculture practiced at the site. Merely lowering the cost of one’s production cannot be the standard. Otherwise, virtually any conduct would fall within the definition, including blatantly illegal and environmentally destructive practices.
12. November 12 regulations propose an
inappropriate substitution of co-permitting by Environmental Management Systems
(EMS).