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Animal Waste Disposal Issues

CHAPTER 3

WHAT CAN EPA DO?

EPA has recognized the value and benefit of pollution prevention initiatives. Encouraging and persuading, or if necessary, requiring and compelling facilities to operate in an environmentally responsible manner provides better protection for the nation's vegetation, animal, aquatic, and human population than any fines or penalties. As EPA's Five Year Strategic Plan states, "... anticipating problems and stopping them before they occur is far more cost effective and protective of the environment" than solving environmental problems long after they have been created.

Pollution prevention has changed the way EPA does business--but not as it applies to CAFOs. EPA's regulations were written in the 1970s, and have restricted EPA's ability to deal proactively with CAFOs. North Carolina had to change its regulations to handle situations which could not be dealt with adequately under existing federal regulations.

Before the 1995 spills, North Carolina had an animal feeding operation permit program that was, in many ways, stricter than the federal CAFO program. Yet, North Carolina experienced significant problems with animal waste operations. As a result, the state significantly strengthened its animal feeding operation regulatory program.

Twenty-two states, by law, cannot adopt environmental program regulations which are more restrictive than the specific requirements in the federal regulations. Should any of those states experience problems similar to the North Carolina spills, they cannot readily strengthen their own state environmental regulations to minimize future occurrences, nor can they rely on federal regulations to provide this protection.

Current Federal Regulations

Under federal regulations, only animal feeding operations defined as CAFOs are point sources and must be permitted. Meeting the definition of a CAFO requires consideration of several factors as defined in 40 CFR Part 122.23. First, the animal feeding operation must contain a specified number of animals, such as 700 dairy cattle, or 2,500 swine weighing over 55 pounds, or 1,000 animal units. Second, an animal feeding operation with a fewer number of animals (300 to 1,000 animal units) which discharges pollutants through a man-made device or directly into waters of the United States also a CAFO. While these two factors alone are somewhat complex, the addition of a third factor can confuse both regulators and the regulated community. Federal regulations state that any animal feeding operation that otherwise meets the definition of a CAFO (factor one or factor two) but discharges only in the event of a 25 year, 24-hour storm,(1) is not a CAFO.

The regulations also allow for the permitting authority (federal or state) to designate an animal feeding operation as a CAFO on a case-by-case basis if the operation is a significant contributor of pollution to waters of the United States. The designation authority has several specific requirements that must be completed for the case-by-case CAFO designation to be assigned. The permitting authority must conduct an on-site inspection prior to any designation. The size and location of the facility, the amount of waste reaching waters of the United States and means of conveyance of the waste, and the slope, vegetation, rainfall, and other factors affecting likelihood or frequency of discharge must also be considered. The designation process may be time- and manpower- intensive. However, we believe that it offers a measure of protection that otherwise would not occur. For this reason, we suggest adoption of the case-by-case designation on a more widespread basis.

Permitting Requirements

Federal regulations do not address land application, nutrient management, animal waste management plans, specific construction requirements, or operator training and certification. These factors, however, are critical elements of North Carolina's strengthened animal waste management and regulatory program. EPA regulations allow land application to be addressed in NPDES permits issued to CAFOs where land application is a necessary part of operating the animal waste management system to achieve the no discharge requirements of the feedlot effluent guidelines. EPA encourages permit writers to include the other elements in the permit. EPA Region 6 issued a general permit for CAFOs for the four states that have not been delegated NPDES authority. This general permit includes requirements for the above elements, as well as other requirements similar to those contained in the North Carolina permit program.

North Carolina has much stricter coverage, since it requires permits for facilities with many fewer animals and without regard to discharge. Region 6, and those states that must follow federal regulations, will not have the same depth of coverage as North Carolina. For example, in North Carolina, a swine facility with 250 hogs must be permitted, while in Region 6 the swine facility would generally need to have 2,500 hogs to be permitted. Permitting helps ensure that the critical elements of a good animal waste management system are adhered to.

The Office of Water has included CAFOs as a priority for its National Agenda for 1997-1998. Compliance with existing NPDES permits will be evaluated. The need to issue permits to additional animal feeding operations that are significant contributors of pollution will be assessed, as well as the need to strengthen national guidelines for CAFO operations through identification of improved operational practices.

Permitting Enhances Compliance And Enforcement Program

OECA has included CAFOs in its fiscal year 1998 national enforcement priorities. Headquarters and regions will develop memorandums of agreement that spell out regional enforcement expectations and responsibilities, and delineate roles. At the present time, OECA personnel noted that it is difficult to have an effective compliance and inspection program. Only 30% of the estimated 6,600 facilities that must meet the no-discharge CAFO regulations are permitted.

Permitting facilities will allow for more effective inspections. Inspection of non-permitted facilities, which is allowed by the CWA, is limited by the no-discharge regulation. This means that if inspections are conducted under federal requirements, the facility would have to have a discharge/spill in process at the time of the inspection for EPA to take expeditious action(2). Since permitted facilities must meet permit requirements, which include many of the critical elements mentioned above, such as nutrient management for land application, inspections for permitted facilities can be more effective. OECA is now working to develop a compliance and enforcement strategy, which would include means of identification of non-permitted facilities. Use of USDA data to identify areas with environmental problems is being considered as a means to focus the compliance and enforcement strategy for CAFOs.

We believe that the current regulations for CAFOs need to be simplified and strengthened. We suggest elimination of the 25 year, 24-hour storm exemption and a reduction in the minimum number of animal units requiring an NPDES permit.

In the meantime, we believe that the Agency can and should be proactive by maximizing present permitting authority. This effort should begin by requiring that all operations meeting the CAFO definition and having unallowed discharges be issued NPDES permits. In addition, the case-by-case designation should be adopted on a more widespread basis. Under the present regulations, increased permitting would enhance the compliance and enforcement program.

This endeavor should be coordinated with OECA's compliance and enforcement efforts on CAFOs. OECA will need to develop a methodology to identify and prioritize at-risk feeding operations. Once the at-risk operations are identified, case-by-case CAFO designation efforts should be encouraged by the Agency in states with delegated authority, and initiated by the Agency where it retains authority.

Pollution Prevention

Pork industry figures indicate that, from 1991 to 1996, the number of hogs processed has increased 8% while the number of hog operations decreased over 20%. As the numbers of operations decrease while the numbers of hogs increase, one can conclude that the number of animals per operation is increasing. We understand that this trend is generally applicable across the animal feeding industry. Therefore, it appears that the number of facilities which meet the size requirements of CAFOs are also increasing. The Agency should be able to do more to ensure that the larger facilities operate in an environmentally responsible manner.

EPA has increasingly recognized the value and benefit of pollution prevention initiatives. We believe that permitting with its attendant management plans, specific construction requirements and operator training and certification, as well as inspections, are pivotal to the pollution prevention process.

The Agency's Strategic Plan presents pollution prevention as one of the seven Agency-wide principles and states that "Pollution prevention will be the first strategy considered for all programs at EPA." The goal for the CAFO program should be to prevent a spill, and therefore pollution, before it occurs. The permit can be the tool to help achieve that goal. For maximum effectiveness, the permit should address design and construction issues, waste and nutrient management issues, and waste management system operator training and certification. EPA already encourages including most of these areas in permits, but the effort would be enhanced by developing, with state and industry input, a model general permit for each type or all types of animal feeding operations.

Measuring Progress

Section 305(b) of the CWA requires states to provide biennial reports to the Agency on the quality of waters in the state. The reports generally describe the quality of waters, both surface water and groundwater, and existing state programs to protect water quality. Waters are assessed on how well they support designated use (e.g., swimming, aquatic life support, and water supply), as well as likely causes of impairment. The Agency is required to provide the state reports, together with an analysis of the reports, to Congress biennially.

As noted in the GAO report, Animal Agriculture: Information on Waste Management and Water Quality Issues, Agency officials believe that the 305(b) reports are the best available information on water quality. However, there are limitations to the usefulness of the reports. The reliability of the state report depends on how much monitoring the state actually does and how much estimation is used. In addition, the Agency does not know how states decide how and where to monitor. The Agency noted that the 1992/1993 state reports assessed 17% of the nation's rivers, 42% of its lake acres, and 78% of estuary square miles.

Agency officials said that North Carolina's monitoring program covers approximately 85% of the state's water. That program rates "pretty good" nationwide and really stands out in the region. When we asked if comparing 305(b) reports would help in assessing improvement/degradation of water quality, Region 4 officials said that a 305(b) report is a "snapshot" and not a "trend" document, so generally comparison would not be possible. However, since North Carolina does extensive monitoring, comparison of the state's reports might be possible.

The 305(b) reports give North Carolina a tool to evaluate the impact of its strengthened animal waste management system regulations on the state's water quality. Since the state knows where the CAFOs are and extensively monitors water quality for the 305(b) report, the state should be able to assess improvement/degradation in water quality.(3)

Not all other states are this advanced. Therefore, the usefulness of this tool will vary from state to state. This method of assessment will only be helpful with a suitable 305(b) water quality monitoring program and adequate CAFO permitting.

One of the ways the Agency proposes to measure results under the Government Performance and Results Act is through the use of the 305(b) reports. We do not believe that these reports will provide adequate national assessment at this time. Clearly, more needs to be done to improve the reports for use as a reliable measuring device. The Central Audit Division of the OIG is now addressing water quality issues Agencywide that will more completely assess the 305(b) report and other indicators, their functions, and usefulness.

Recommendations

We recommend that the Assistant Administrator for Water and the Assistant Administrator for Enforcement and Compliance:

1. Take actions to revise and reissue the CAFO regulations to include the following:

Agency Response

The Office of Water (OW) supported this recommendation, but noted that its implementation is a long-term action that is best conducted along with the study of the feedlot effluent guidelines. Estimated completion of the revised guidelines is December 2004.

Concurrently, OW will be developing and implementing a watershed approach in abating pollutants from CAFOs. This short-term action is to assist upper level management in understanding the overdue need for revising the CAFO regulations at 40 CFR Part 122.23. OW and OECA will develop a draft CAFO regulatory deficiency paper to be distributed at a national OW/OECA National CAFO meeting in May 1997. OW, OECA, and the Office of General Counsel will develop a policy statement to clarify the definition of a CAFO. The policy statement will be used by the EPA Regions and the states to help them determine which operations are required to obtain an NPDES permit.

OIG Response

Although not specifically stated, your response seems to indicate that the revision to the CAFO regulations at 40 CFR Part 122.23 will be completed at the same time as the effluent guidelines. We agree with this concurrent approach. Please provide milestone dates for revising 40 CFR Part 122.23. Also, we will need milestone dates for the policy statement to consider your response complete.

2. Take actions to address in a regulatory manner (either through CAFO or effluent limitation guideline regulations):

Agency Response

In the short-term, the Agency stated that it will encourage permitting authorities to include in permits minimum requirements for animal waste management (including ultimate disposal of waste), and the development of best management practices (BMPs) which assure adequate knowledge of waste management by operators. OW noted that many of these issues are included in its effluent guidelines preliminary study of feedlots. The Office of Wastewater Management (which is responsible for permitting) will assist the Office of Science and Technology (which is responsible for effluent guidelines) in the effluent guidelines study.

OIG Response

We agree with the Agency response. Please specify exactly how and when you intend to encourage permit authorities to include minimum waste requirements in their permits. OW must ensure that the areas above are included in the feedlot effluent guidelines study.

3. Maximize use of existing regulations:

Agency Response

OW, OECA, and the Office of Policy, Planning, and Evaluation are forming a team to develop a methodology and a policy paper to encourage Regions/States to use existing case-by-case designation more frequently for permitting at-risk animal feeding operations. The project completion date is March 1998.

OIG Response

We agree with the Agency response.

4. Develop a model general permit, such as Region 6's general permit, for required use in non-delegated states and encourage use in delegated states where state actions can be no stricter than federal requirements.

Agency Response

OW agreed that the need for a model general permit should be considered, but noted that there are quite a few CAFO general permits in existence at the present time. OW agreed to investigate the need to develop a model general permit through input from Regions and States over the next six months. If development of a model general permit, which includes requirements for land application, operations and maintenance, and reporting requirements is warranted. The Office of Wastewater Management in OW will undertake the development of a model general permit in fiscal 1998-1999.

OIG Response

We agree with the Agency response.

5. Establish a plan to inspect permitted and unpermitted CAFOs on a regular basis by either including some CAFOs in existing regularly scheduled inspection programs or developing a regularly scheduled program for inspection of CAFOs.

Agency Response

The Agency response stated that implementation of this recommendation could be resource intensive. OECA noted that the most realistic approach would be to establish a targeted plan for inspecting some permitted/unpermitted CAFOs based on the risk to the environment. For example, under a States Watershed Protection Approach (WPA), an identified universe of unpermitted/permitted CAFOs could be inspected during a certain cycle in a Basin Management Plan.

OIG Response

We agree with the proposed actions as long as some permitted and unpermitted CAFOs are included in annual inspection plans. Determining which CAFOs are inspected based on watershed risk certainly seems to be a reasonable and appropriate approach.

6. Develop a model project to assess the usefulness of 305(b) reports as a performance measurement for water quality related to CAFOs. The project should also include assessment of the most effective monitoring methods that would be helpful in improving and standardizing the monitoring program nationwide.

Agency Response

OW and OECA did not generally agree with this recommendation. Because the OIG Central Audit Division is now addressing water quality issues Agency-wide that will more completely address the 305(b) reports, its functions and usefulness, the program offices stated that it would be prudent to wait for the complete recommendations on the 305(b) reports before the offices commit to, develop, and implement this recommendation.

OIG Response

While the OIG is addressing the 305(b) reports as part of its work with water quality issues, we do not agree that implementation of this recommendation should be delayed. Gaps in the 305(b) data are readily apparent and recognized in the agency. We believe that the project recommended can be implemented on a small scale and still be effective. There are existing state water quality monitoring programs and CAFO programs that contain the necessary information to allow a model project to be implemented. The project could be established in an appropriate watershed to allow assessment of such a performance measure and provide information that can be used by the Agency to improve performance measurement. The information can also be used by the OIG as it further considers the 305(b) reporting processes.

Footnotes
  1. The National Weather Service publishes maps that show the amount of rainfall (expressed in inches) that constitutes a 25 year, 24-hour storm for every location in the United States.
     
  2. EPA can also take action upon observing indications that problems are imminent, such as a lagoon near the top of its embankment or improper operation of the lagoon, but the action cannot occur as quickly as when a spill is observed.\
     
  3. We realize that this is an oversimplification of the implementing use of such a tool. But we are including it as a means for encouraging uses of existing sources of data for performance measurement.
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Created April 21, 1997

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