April 15, 1999:
|Virtual Lecture (Real Audio format)|
|Transcript of Lecture|
|Discussion List (Justine Thompson from April 15- 22).|
Biography: J. Thompson is an attorney for the Southern Environmental Law Center where her work focuses on the protection of Georgia and Alabama's water resources. Prior to taking this position, Ms. Thompson served as law clerk for United States District Court Judge Robert L. Echols in Nashville, Tennessee and was an associate in the litigation department of the Atlanta law firm, Chorey, Taylor and Feil. She received a Juris Doctor degree with honors from Duke University School of Law in 1995, and received an economics degree from the University of California, Berkeley in 1988. During her tenure in law school, she served on the editorial board of Duke Law Journal where she authored an article on legal ethics. Prior to attending law school, she worked for non-profit environmental and educational organizations in both Washington, D.C. and California. (Editors Note: J. Thompson is now the Executive Director of Greenlaw).
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The Southern Environmental Law Center is a non-profit law firm and, it is comprised (the majority of it) [of] attorneys, though we have a couple of policy people that work with us as well. What we do is, we represent other non-profit environmental organizations. For instance, here in Georgia, [we represent] the Georgia Conservancy, the Sierra Club, the Upper Chattahoochee River Keeper. The type of issues that we deal with range from forestry issues, water pollution, air pollution. For instance, you might be familiar with the recent clean air lawsuit that was filed in the Atlanta metropolitan area, where we challenged federal highway funds under the Clean Air Act. Other types of actions that we've brought are in Alabama, we recently stopped some logging of public forests in the Talladega National Forest.
Now, working with a non-profit organization is a little bit different than working in just a law firm. The main thing that's different is that we tend to get involved in a particular issue much before a law firm would typically get involved. We try to work with the government agencies and administrative agencies to work out a solution well before litigation would ever occur. Sometimes that would mean we'd be working on an issue for maybe a year, two years, sometimes several years before litigation ever occurs. And another aspect of it is that we frequently work with grass roots organizations, such as the Sierra Club ... so that sometimes we're working with our partners to get in letters to legislators .... So it's a really varied type of work. Much different than my work at the law firm. You end up talking to the press, and administrative agencies, and all sorts of things.
Now, the purpose of my talk today is to ... provide an overview of a particular environmental problem, ... (hog farms and other types of industrial farming) and [discuss] how you address that kind of problem. In particular, the Clean Water Act is the umbrella that provides the response to this kind of pollution problem. But, the Clean Water Act is really just the first step in the process. I'm sure you know from your class... that the Clean Water Act was originally the Federal Water Pollution Control Act, and it has been supplemented by the Clean Water Act in 1977, and was amended in 1981, '87 and '93. So, this law has been around for quite a while, but the problem still exists. I'm hoping that through this talk today you'll have an understanding of why the problem still exists and how it requires a very complex solution.
I'm going to go ahead and start in on the problem with industrial hog farming. EPA has identified that agriculture is one of the leading causes of pollution in this nation's waters. It has led to excess nutrients in coastal rivers and estuaries, algal blooms, massive fish kills. What I'm going to talk about today are industrial hog farms. Now, I want to start out by saying that this is not the farm that you may think about where, you know, you're driving by and there's pasture, and you see some hogs running around, some cows running around. This is a very different kind of operation. A typical operation might have as many as 20,000 hogs. Now, just to give you an idea of what this means, one hog generates 2.5 times the amount of waste as one person. And, let me give you an example. Out west - I can't remember the state - there's a proposal for a hog operation with 850,000 hogs. That means they are going to be generating the amount of waste of a city of 2.2 million people. Now, we don't have any operations that big here in Georgia. A typical size in Georgia, the statistics are sketchy at best, but they tend to be about from 2-5,000 hogs. Now, with that amount of waste being generated, how do they handle all of the waste? Well, typically, the hogs are housed in a confinement building, and there are slats at the bottom of the hog pens, and basically, the waste goes down through the slats and then is flushed out of the building and then is put in giant lagoons. Sounds pretty disgusting, huh? And, these lagoons can be, for instance, eight acres. One lagoon. And it can have as much as 20, 25 million gallons of hog waste in this lagoon. And then, what they do to get rid of the waste is they will have a sprinkler system on fields near the lagoon, and then they will just spray the waste onto the land. So, next time you see a sprinkler system when you're going by a farm, you might wonder what's being sprayed out. There was one example in south Georgia where the sprinkler system had not been aligned right, and it was actually spraying cars as they drove by. So... not very pleasant.
Now, contained in the waste is nitrogen and phosphorous. These nutrients, if any of you garden, [you know that] they can be very beneficial for the land. And, in fact, we need them for good soil. However, the problem is when there is too much nitrogen and too much phosphorous. As I was telling you, they apply the waste to the land with a sprinkler system. Now, typically when a farmer is growing crops, and they're going to sell the crops, they want to apply the right amount of nitrogen and phosphorous to those plants or they're [going to] kill the plants. In a hog operation, they want to get rid of that waste. They have an incentive to put too much waste on the land, because they're trying to get it out of the lagoon. And so, what happens is you have too much nitrogen and too much phosphorous on the land. ...
Nitrogen and phosphorous have been associated with many types of health problems. One is pfisteria. This is a toxic micro-organism that can kill fish. ... [A]lso, when nitrogen and phosphorous get in the wrong place in high concentrations, they can stimulate algal growth, which leads to low dissolved oxygen rates. Another problem is that the nitrogen from the lagoons can go into the air as ammonia and then be deposited in the water and on the plants nearby. And then ... we have the problem with the lagoons themselves. Even with clay liners, which not all lagoons have, the lagoons leak. And, in fact, in North Carolina, they're allowed to have leakage up to .036 inches per day. That doesn't sound like a lot, but then think about it when you have a lagoon of eight acres. So, some of the problems that have resulted from this is contamination of groundwater drinking wells. In North Carolina, they have found that ten percent of wells near large hog and chicken operations have exceeded EPA standards. Thirty-four percent have had high levels of nitrate contamination.
Now, another problem that occurs [at hog farms] is also chronic leakage and catastrophic spills. For instance, between 1990 and 1994, the Department of Natural Resources in Missouri found that 63 percent of Missouri's factory farms suffer from spills. In 1995, an eight acre lagoon in North Carolina spilled 22 million gallons of animal waste into the New River. It killed ten million fish and closed 364,000 acres of coastal wetlands to shellfish harvesting. In 1996, 40 spills contaminated rivers and killed 700,000 fish in Iowa, Minnesota, and Missouri. These are just some of the examples of some of the spills that have occurred across the country.
Another problem with these kind of farms is the odor and health problems that are associated with it. You can imagine having these large lagoons that it creates quite an odor problem. And so, this isn't just necessarily an environmental issue, but also an issue of property rights of adjacent property owners. There have been studies that have demonstrated that property values actually decrease when a hog farm moves in next door. And you can possibly imagine why, if you would really want to live next door to a 20,000 hog operation. There have also been additional threats to public health including just some of the practices of a hog farm. Antibiotic resistance. They use a lot of antibiotics. Also, there's heavy metals in the feed which end up in the lagoon. And there's also methane released from the lagoons, which of course creates greenhouse gases.
To add insult to injury, there are some economic problems associated with these type of facilities. There's been a general consolidation of the hog farming industry. Right now, the number of hog growers has gone from 13,000 to under 5,000. That means it's the larger operations that are now in existence, and a lot of the family farmers are being driven out of business. Some of this is just due to general economics. You've seen Home Depot taking over the little hardware store, and that type of thing. But some of it's also some of the practices that are used. For instance, slaughter houses. There will usually be a slaughter house located in a central location to one of the hog farms. And, some of their practices discourage family farming. For instance, they will have a set number of hogs that you can bring to market - 1,000 hogs. Well, it's hard for a family farmer to bring 1,000 hogs to market at one time. They also have certain pricing mechanisms that make it difficult for the family farmer to get the same price that the large corporate farmers are doing. And also, a lot of these facilities have something they call corporate integration, where the large facility, the large industry, will actually own the livestock and the feed of the small farmer, and will provide veterinary care for the facilities, and that type of thing. However, they can cancel the contract, usually with 30 days notice. And if there are any pollution problems, the small farm is left cleaning up the pollution problem.
Now, I'm mostly talking about hogs today, but be aware that there's also issues with other types of feeding operations. One is poultry. Poultry has a little bit different type of a system that they use. Basically, what they do is they "stack" the litter. It's called a dry litter operation. They don't pump anything into a big lagoon. And, so, typically, people have not thought that there's been a real problem, but they basically they put the litter in huge, giant haystacks. And then what happens is that it rains, or there's a windy day, or that type of thing, and then it can leach into the ground water. In fact, in the ACF Basin here in Georgia, there have been problems discovered by the United States Geological Survey. There's also been problems in Virginia, Maryland, North Carolina and Oklahoma, which has led some state legislatures to pass bills. And then, just to let you know, there's also other types of operations such as cattle operations, turkeys, though they don't really have a lot of turkeys in Georgia. If they use that same kind of lagoon system, it can cause similar problems.
Now, I want to go through an overview of the responses to this problem. And, you get responses on a variety of levels. Congress passes a law, and like I said, that's really just the first step. Congress passes a law, then the administrative agency, in this case, EPA, that is in charge of it, needs to promulgate regulations. There's also going to be a State response. The State response can be passing legislation, if they don't feel like the Federal law is sufficient, or passing regulations themselves, instituting a permitting program, if they don't want EPA to do it. Also, some States have responded by enacting moratoriums. North Carolina's legislature passed a moratorium two years ago on construction of new hog operations. Several months ago, the Georgia Department of Natural Resources Board passed a moratorium on new hog operations over 2,500 hogs until comprehensive regulations could be put in place. And then there's also local responses, which can be lawsuits or just local citizens action.
So, first the Federal response. All this regulation is taking place under the Clean Water Act. I'm sure you've probably studied already the National Pollution Discharge Elimination System. Now, under the NPDES program, you can only discharge into water with a valid NPDES permit. All point sources are required to get a NPDES permit. Now, the Clean Water Act defines a Confined Animal Feeding Operation, or CAFO, as a point source. So all CAFO's are subject to NPDES programs. Now, what is a CAFO? Well, a CAFO is an animal feeding operation, or an AFO, that meet one of three criteria. First, is that of a certain size. The size they have in the regulation is 1,000 animal units. An animal unit is basically determined on the amount of waste that that particular animal generates. For instance, 1,000 animal units equal 2,500 hogs, or 1,000 slaughter and feeder cattle, 700 mature dairy cattle, etc. There's a list of different types of animals, and what equals 1,000 animal units. So, if it's an animal feeding operation, with 1,000 animal units, it's a CAFO. And it's also a CAFO if it is an AFO (animal feeding operation) that discharges into the waters, or is a significant source of pollution. Now, what is an AFO? Now, an AFO is a facility at which animals are confined for at least 45 days within a twelve month period, and where crops are not grown where the animals are. So basically that means if you have a pasture and you have cows running around, this is not an AFO. You have to have a confined operation where there's no crops. Now, one of the interesting things that's arisen under the Clean Water Act is that this is a no-discharge system. The effluent limitation is no discharge. Now, so the AFO, the smaller facilities, which, by the way, is 300 to 1,000 animal units, if they discharge, they become a CAFO. But it's a no-discharge system. So if they discharge, they are violating the Clean Water Act. So, what happens? And this is something that courts have struggled with. It doesn't really make sense, because if they discharge once and they become a CAFO, well, they have to stop discharging. So, does that mean they bump back down into the AFO and they don't have to have a NPDES permit? So, that's one problem that's arisen.
The other problem that we were talking about - that someone over here asked - was the problem with poultry. Is poultry covered? Historically, people thought that poultry was not covered under the Clean Water Act. It's our position at the Southern Environmental Law Center that poultry is covered because a confined animal feeding operation is the animal feeding operation that is over 1,000 animal units. It says nothing in regulations about whether or not this facility uses a lagoon or not. Actually, EPA is beginning to come around to that point of view, and has recently released some documents that indicate that that's where they're going to be moving.
Now, I just want to give a little aside on the effluent limitations for CAFO. I said that it's a no-discharge system, but there's actually an exception which says that they can discharge in a chronic rainfall. That is the equivalent of a 25-year, 24-hour storm. So, that means it's really not a no-discharge system, even though they're calling it a no-discharge system. This particular exception is of great concern, especially in the southeast, where we get a lot of rainfall. And so, right now they're designing systems that will discharge in the event of this type of storm.
Now, under the Clean Water Act, you might have already gone over some of these things with Professor Johnson, the NPDES permit requirements under the Clean Water Act. I'll just go over these briefly. One of the requirements [of the NPDES permitting program] is public participation. An individual NPDES permit requires public notice, which usually entails a public hearing, 30 day comment period. And, this kind of public notice is very important, particularly for this type of issue. When a hog farm moves in next door, this is going to effect the property value, quality of life of the neighbors. And, it's important to involve the community in this type of process. However, the same type of notice is not required under a general NPDES permit. So for instance, in Alabama, they basically are just issuing a general NPDES permit. What they did is they took the rule, the regulations that they're going to have with confined animal feeding operations, put it out for public comment, everyone comments on the rules. But then when an actual facility comes in, it's not going to go out for public notice. So, you might not know that one is coming in next door. In fact, what they're going to do is they're going to post it on their web page. And that's the only thing that they're planning on doing when a hog operation comes in, is put it on the web page. You can imagine that many people in a rural community probably do not check their web pages, you know, ADEM's web page every day. (Ed. Note - ADEM is the Alabama Department of Environmental Management.) Some other requirements under NPDES permits [are] monitoring and reporting. For individual NPDES permits, the administrative agency must require monitoring. However, how that monitoring takes place is discretionary, although EPA has laid down a law in some respects. For instance, they pretty much will require that there's monitoring if there's any sort of discharge.
Now, what I'd like to do is go a little bit into the State responses. As you may or may not know, the NPDES program can be delegated to states. Many states don't like EPA coming in and issuing all the NPDES permits. They want to issue those permits themselves. And so they can get the authority to be delegated to them by EPA, as long as they have an appropriate program that complies with the Clean Water Act. Most states do have delegated programs. Georgia has a delegated program, Alabama has a delegated program. And so what the state will do is they will go through and they will promulgate regulations and then EPA will take a look at the regulations and they'll say yes or no. And if it's approved, then they have a valid program. And then, if someone doesn't like it, what you can do is you can petition EPA to take away the NPDES program from the state. In fact, petitions to withdraw Georgia's and Alabama's authority to issue NPDES permits were filed in both states. It's still pending in Georgia, but they're working out a negotiated deal, is my understanding. But it's pretty rare for EPA to withdraw NPDES authority from a state. Now, responses in the state have been a variety of things. Mostly, states have promulgated comprehensive regulations. It pretty much varies from state to state, with really the result being that a lot of these industrial hog farms will kind of shop around from state to state looking for the weakest regulations. And the states are in different places on how their regulations have been formulated. For instance, in North Carolina, you might have heard about the hog problem in North Carolina, it received a lot of press. They have--I can't even remember how many they have--I think they have ten million hogs. They have more hogs in North Carolina than people. There's a big article actually in a George magazine this month on the hog problem. And then Alabama just recently did their regulations, they just approved them a couple of months ago. Tennessee is at a different place. They've just gotten a strategy, but they have not enacted regulations yet. Other states have responded by putting in actual legislation, such as Oklahoma and Colorado. For instance, Colorado just passed a referendum that is putting in much stricter standards for these operations than required under federal law.
Now, what I want to do is talk a little bit about what's going on in Georgia. I've been involved in a process in Georgia since last year. Last year, EPA started to pressure Georgia, because they basically didn't have a valid program for permitting these facilities. What they were doing is they were operating under a memorandum of understanding between USDA and EPD (Environmental Protection Division) of the Department of Natural Resources here in Georgia. So, the Board of the Department of Natural Resources told EPD, which is underneath the Department of Natural Resources, to promulgate some regs. Now, a new thing that's happening these days [in Georgia] is called a stakeholders process, where government agencies, when they're about to put together some regulations, realize that just putting together the regulations, putting them on the table and asking for public comment sometimes is just a bomb waiting to go off. Because that always makes somebody unhappy. So what they decided to do in a lot of cases is have a stakeholders process where they bring together all the different interests for the particular regulations, get them to sit at a table and come up with some recommendations. And so then they go through the whole process of negotiation and compromise, and presumably, that means, at the end, everyone will be a little less angry, because they were actually involved in the process. So that's what happened here in Georgia. We had a stakeholders process that was comprised of environmental organizations, farmers, EPA was involved, Fish and Wildlife services was involved, there was academics involved, usually a wide variety of people, probably about 60 or 70 altogether. We met over several months, and came up with some recommendations in October and submitted them to EPD. And then, right before Christmas - I call it my little Christmas present - EPD put out the reg and they were two pages long. The first page was definitions and the second page was the Federal regs verbatim. So, the stakeholders process didn't really work in this particular situation. And it still remains a mystery of why this happened. There was actually an editorial about it in the newspaper last week, in the AJC last week, (Editor's note - the AJC is the Atlanta Journal and Constitution) wondering why this happened this way. After that, I was involved in the stakeholders process, and the Southern Environmental Law Center, along with Sierra Club, we went to the Department of Natural Resources, the Board that basically governs EPD, and informed them of what had occurred. And they said, "Well, we need to learn more about this issue," and, in what was called a very surprise move (usually the DNR Board is kind of a rubber stamp Board), they had a big public hearing that lasted several hours. We brought in experts from North Carolina, industry brought in experts, had a full blown hearing, and they threw out the rules, and asked Harold Reheis, who is the director of EPD, to come back with stronger rules.
So, I'm just going to give you a brief overview of what those rules look like. A lot of the components of this rule are very typical of regulations that you would see in other states, some of them are not typical. Now, the overall structure of the rule is a permitting system that basically has a tiered approach. And this is typical in a lot of environmental regulations, where the smallest facility has the least amount of regulations, where the largest facilities have the most. For a variety of reasons, of course, first it is thought that the larger facilities generate the greatest amount of waste, and so they should have stronger regulations. And also, in the case of hog regulations, there's an understanding that we want to protect the family farmer, and that there is a good reason to do that. So, the small facilities (generally considered to be the 300-1,000 animal units or 750-2,500 hogs), basically they have very minimal requirements. What they have to do is they have to implement a nutrient management plan. And this is basically the backbone of most regulations having to do with hog farming, is that they implement a nutrient management plan. And that means that they meet with government agencies and put together an approach for applying the waste to the land, designing their lagoons so they don't leak. As I discussed earlier, the land application, the rate at which they apply these nutrients to the land, is very important. When do they apply them? Don't apply them in the rain, or they're just going to run off into the water, different things like that. And making sure that the right level of nutrients are going onto the land. And they also have to undergo operator's training, which is another requirement that's becoming pretty typical across the states. They have to go you know a day or two, kind of like our continuing legal education.
And then the next level is the 1,000-3,000 animal units section. So this would be 2,500 hogs to 7,500 hogs. These operations have to get an individual NPDES permit. I'm not sure if you've gone over the difference between individual and general permits. Basically, in this context, individual permit means that it would be site specific. They look at the particular geology of that site, where streams are located, what the nutrient content of that land is, whether or not it's sandy soil, and then develop a permit based on that. Now, one of the things that these operations are going to have to do is they're going to have to have what are called setbacks. Now, setbacks are basically just where the lagoons and spray fields can be sited. And the reason for this is that the nitrates tend to leak underground or even to go over ground into the water. Now there's a whole variety of different kinds of setbacks. For instance, a lagoon cannot be located within 100 feet of surface waters. Now, my personal opinion is that's not really adequate. But that's what it is. And other types of setbacks are from property lines and from residences, from wells (500 feet from wells), and then 700 feet from property lines and 700 feet from a residence. Now the reason you have two setbacks, one for residence and one for property lines, is that someone could move their residence and so it's pretty much understood that that first setback from a residence you can't go back later, change it in case someone builds a house somewhere. And then there's also setbacks for spray fields, so that they're not located too close to streams.
Now, the most interesting part about this rule that's a little bit different than other states is the recognition that the largest farms pose the greatest threats. These are what are called 3,000 animal units, or 7,500 hogs and over. There was pretty much general consensus that mega farms are not good for Georgia. As I was telling Steve earlier, during the Department of Natural Resources' hearing, the head of the pork producers council even admitted that mega farms are bad for Georgia. These rules are a little bit different in that they are very stringent for these larger farms. For instance, these larger farms have to show proof of financial responsibility, in the sum of ten percent of their initial capital costs and $100,000 to cover any fines that may be imposed by EPD. Another thing that they have to do is that they have to have airtight lagoon covers. This prevents the odor from going to the neighboring property. Also, it helps prevent overflowing of lagoons if the water doesn't get in the lagoons. To my knowledge, only one other state has airtight lagoon covers. EPA says Colorado has it, which they passed by initiative. Someone said that Arizona does, but I'm not sure. And also the large facilities have to have top soil injection, which means you can't have a sprinkler system and they said they have to inject it right into the land, which helps prevent all the waste going to the neighbors' property. So that's basically an outline of the rule, and that's, for the most part, pretty typical of what's being done in many states. So that's kind of the state response.
Now I just want to talk a couple of minutes about local response. Many times, the local communities don't feel like the State response was strong enough. One response to that is to pass local ordinances. Those local ordinances will usually be very similar to some of the requirements that are in State regulations. However, they'll be a little bit more stringent. Most notably will be setbacks. And this is basically when the neighborhood doesn't really want any hog farms coming in too close to them, or too close to a valuable water resource. They will pass an ordinance saying that they have to be 1,500 feet from something or another. Now, the problem with attempting to solve the problem with hog pollution through local ordinances is that it's very county specific on what the type of response will be. Some counties are going to be very amenable to putting in environmental and public health controls, while other counties aren't. So, basically, the citizens are at the mercy of their particular county's politics.
Another approach has been through private lawsuits. Most states, you've seen a number of nuisance lawsuits being filed. There was a nuisance lawsuit filed here in Taylor County. There was a gentleman named Purvis who had some serious environmental problems in North Carolina with his hog farms and was actually held in contempt for his problems. So, just on an aside, the contempt order was overturned last week. But not because he didn't do it, they said it wasn't intentional. But, he had a variety of pollution problems in North Carolina and he wanted to set up a 20,000 hog operation in Taylor County. Well, the first response from the community was citizen action, letters, and generally opposition to the facility. Then the next thing was they hired a lawyer, filed a nuisance lawsuit. And it was a prospective nuisance lawsuit. And they got experts, they asked for a preliminary junction, they got experts on the stand and basically put testimony on that this place was going to smell and it was going to smell very bad. And they got the person who was going to manage the farm to agree that odors could be smelled as far as three miles away. So, the trial court issued an injunction and it went up to the Georgia Supreme Court on whether or not this type of prospective nuisance could be filed. And about three or four months ago, the Supreme Court upheld it. Basically what happened at this point, it still needs to go to trial, this was just a preliminary injunction. What happened was that Purvis gave up, and withdrew the application, and basically was just tired of the opposition. So, that's a typical local response.
One other thing I wanted to talk about is, we've been talking about all the regulations that are in place, the federal law, etc. There's one more component that's very important to understanding whether or not this problem is getting resolved, and that's enforcement. The Environmental Protection Division here in Georgia is notorious for lack of enforcement. If you have these regulations in place and no one is out there enforcing it, it's going to be a problem. The Clean Water Act, I'm sure you've discussed, has a citizen suit provision. However, it's slowly being weakened by the Supreme Court. So, what we're working towards is actually to get EPD to be doing it's job in going out there and enforcing it. Right now, there are 72 facilities over 2,000 hogs in Georgia and three have permits. So, this is kind of a problem. Another thing that needs to be done to solve the problem is to move away from the current technologies that are being used. In Europe they have industrialized hog farms but they do not use lagoons. They use other types of technology, there's composting and different kinds of processes that you can use. But, here in the United States, there has not been a real movement towards that, and one of the reasons is cost. So, we need to make decisions on what is more important to us. That's something we're going to have to do in the future. Actually, North Carolina's legislature passed a bill saying that new technologies were going to have to be identified and implemented. But, it has not happened yet. So, that's kind of an overview of a response to one pollution problem. An imperfect response, but a response nonetheless.