United States: EPA’s Strategy For Regulating Animal Feeding Operations

Once relatively unaffected by environmental regulation, agriculture now finds itself under siege by the federal government, states, local boards, and citizen organizations seeking to change its traditional methods of operation. Regulators and citizens' groups no longer associate agriculture with family farms but instead regard agriculture as an industry in need of more regulation.

Nowhere is this trend toward stricter regulation more evident than in environmental law. Regulators are targeting agricultural operations for greater controls over the storage of manure, land application of manure, manure runoff into streams, odors, fugitive dust, air emissions, and fertilizer runoff. State and local agencies are imposing burdensome siting requirements on new or expanding agricultural facilities. Neighbors and citizen groups are quick to file lawsuits to block the construction of new animal feeding facilities and to hinder the operation of existing farming operations.

Bowing to pressure from citizens' groups and the news media, federal and state environmental agencies are planning to impose pervasive environmental controls on agricultural operations that raise, feed, or slaughter beef, dairy, pork, horses, poultry, and other animals. These controls will restrictively regulate the storage of manure and other animal wastes, land application of manure, and the disposal of carcasses, seeking to prevent surface water pollution, ground water contamination, and overfertilization of farm land. These regulations not only will demand additional expenditures and personnel time but will increase government and citizen lawsuits against animal feeding operations.

To initiate the federal government's expanded program, the Environmental Protection Agency ("EPA") and the U.S. Department of Agriculture ("USDA") jointly issued a plan entitled "Unified National Strategy for Animal Feeding Operations." This plan addresses the storage and land application of manure and other animal wastes produced by animals confined in lots and buildings, referred to as "animal feeding operations."

While the authors of the Unified Strategy expect some of the smaller animal feeding operations to tighten their environmental controls voluntarily, the government will require many other operations to apply for and obtain water pollution permits with strict operating controls. The Unified Strategy promises to require permits for any "concentrated animal feeding operation," or "CAFO." A CAFO is an animal feeding operation that hosts more than 1,000 animal units, defining an animal unit as one head of beef or an equivalent number of other animals.1 CAFOs also include any animal feeding operations between 301 and 1,000 animal units that discharge pollutants. The government may even designate an operation with fewer than 301 units as a CAFO if a government inspector decides that the operation is a significant polluter.

The centerpiece of the government's strategy is the Comprehensive Nutrient Management Plan ("CNMP"). EPA will force every CAFO to prepare and comply with a CNMP. The operator of an animal feeding operation will have to retain a certified specialist to develop a CNMP, prepare its plan with technical assistance from USDA, or obtain a certification to prepare its own plan.

CNMPs will govern every phase of manure management. They will require the diversion of storm water from feed lots and other animal areas. The plans will regulate the construction and maintenance of buildings, manure collection systems, and other structures to prevent leakage of animal waste into the soil and water. They will mandate manure treatment to reduce nutrient loss, pathogens, odors, and vectors. CNMPs will control the amounts and the timing of the land application of animal wastes. CNMPs will mandate land management practices to minimize the seepage of manure into streams and ground water, such as the installation of buffer zones to intercept runoff. The plans will include schedules for implementation and will require record keeping to document manure application and soil testing. USDA's guidance for the CNMPs will supply additional detail about the required contents of the plans to be submitted by farming operations, such as aerial photographs or maps, planned conservation practices, engineering designs, records of soil and nutrient tests, and rates for the land application of manure.

• EPA and its state partners plan to expand the regulatory program for animal feeding operations by taking the following steps to tighten regulations and issue more permits:
• EPA will develop model NPDES permits and permit guidance for CAFOs.
• EPA will assist USDA in its development of guidance for CNMPs.
• EPA will develop comprehensive state CAFO permit strategies in consultation with the states.
• The states will amend their regulations to conform to EPA's guidance, if necessary.
• EPA or the states will issue Round I NPDES permits to all CAFOs with more than 1,000 animal units, utilizing existing EPA authority. These permits will impose CNMPs and other requirements.
• EPA and or the states will issue permits for smaller operations that are new operations, significantly expanding operations, operations with historical compliance problems, operations with significant environmental concerns, and operations that are significant contributors of water pollutants to waters not attaining water quality standards.
• EPA or the states will issue statewide or watershed general permits for all other CAFOs pursuant to 40 CFR 122.28. Watershed general permits will reflect any Total Maximum Daily Loads ("TMDLs") developed for the watershed.
• EPA will revise the NPDES CAFO permit regulations to increase the requirements applicable to CAFOs and to expand the number of AFOs that are subject to CAFO permitting.
• EPA will revise the effluent limitation guidelines for feedlots in 40 CFR Part 412 by promulgating new guidelines for poultry, swine, beef, and dairy.
• EPA and the states will ensure that CAFOs develop and implement CNMPs pursuant to their NPDES permits.
• EPA and the states will issue Round II NPDES permits to CAFOs with terms that reflect the more stringent requirements of the new effluent limitations guidelines and the new permit regulations.

EPA expects that 15,000 to 20,000 CAFOs will need permits, in contrast to the 2,000 CAFOs with current permits.

In the event that CAFOs sell or donate manure to other persons, EPA will require the CAFOs to record the names and addresses of the recipients and the amounts of manure transferred to them. The CAFOs must list the nutrient contents of the manure to assist the recipients in determining approximate land application rates. In a move certain to chill CAFOs' ability to unload their extra manure, EPA has also announced that CAFOs will be required to obtain signed commitments from the recipients to apply the manure in accordance with their own CNMPs. CAFOs will be required to submit these records to the government annually.

An important provision of EPA's strategy applies to "integrators," defined as corporations that contract with independent farms to raise the corporations' animals. EPA has announced its intent to require integrators exercising "substantial operational control" over contract farms to assume joint responsibility for implementing their water pollution permits. To determine whether an integrator has exercised "substantial operational control" over a farm, EPA and its state partners will consider (1) the integrator's ownership of the animals, (2) the integrator's control over the raising, feeding, or medication of the animals, (3) the integrator's direction, supervision, or participation in activities at the farm, and (4) any other factor the government believes demonstrates control over the farm. If EPA is successful in implementing this change in policy, integrators will be liable to the government, neighbors, and citizen groups for water pollution and permit violations at the farm, the very situation that integrators typically seek to avoid by contracting with others to raise the animals.

Besides expanding the universe of persons subject to its permit requirements, EPA also plans to pursue aggressive enforcement against animal feeding operations. According to EPA records, EPA and its state partners will increase their inspections of CAFOs to look for pollution. Increased lawsuits, orders, and penalties will follow.

The Clean Water Act also authorizes citizens to file suit to enforce these permits. This means that neighbors and special interest groups will be able to sue agricultural operations to enforce their CNMPs and other requirements of the permits.

EPA's regulatory program will affect both large and small animal feeding operations. However, by carefully planning ahead, an operator or integrator can reduce the cost and time necessary to comply with this impending regulation. Where possible, the operator will be well advised to take actions to minimize the probability that EPA or a state will require its operation to obtain a water pollution permit. Integrators should avoid activities that would be considered substantial operational control over the operations of their contract farmers or make sure that the farmers avoid CAFO status. Operators and integrators who anticipate and plan their activities in light of EPA's impending regulatory program will ease their regulatory burdens, avoid enforcement, and maintain healthy relationships with their neighbors.

For further information on the subject of this Jones Day White Paper, readers may wish to consult its principal author, Jack Van Kley, in our Columbus Office (telephone: 614/469-3875) or their regular contacts at Jones Day concerning their own situations or any specific legal questions they may have.

1. This is equivalent to 700 dairy cattle, 2,500 swine, 10,000 sheep, 500 horses, 100,000 laying hens or broilers with a continuous-flow watering system, 30,000 laying hens or broilers with a liquid manure handling system, 55,000 turkeys, or 5,000 ducks.