Hog farm threatened with lawsuit

Legal Actions 2005/2006

See:  http://www.waterkeeper.org/mainarticledetails.aspx?articleid=87

The following is taken from the Waterkeeper Web Site at: http://www.waterkeeper.org/mainarticledetails.aspx?articleid=132

Waterkeeper
11/18/2003

WATERKEEPER ALLIANCE CHALLENGES EPA OVER CAFO RULE

In February of this year, EPA published its long-overdue overhaul of the Clean Water Act regulations for Confined Animal Feeding Operations (a.k.a. Factory Farms or "CAFOs") that dated back to 1974. Originally developed under the Clinton Administration, the CAFO rules were called back by President Bush on his first day in office. The final rules that emerged a year later gutted the enhancements proposed by Clinton’s EPA, substituting a rule so weak that it actually expands the opportunities for CAFO industry pollution. Waterkeeper Alliance joined with NRDC, Sierra Club and the American Littoral Society to challenge these rules in court. The case is being heard by the Court of Appeals for the 2nd Circuit.

The CAFO Rule: Something for business, Nothing for the rest of us.

While the new rules do require that every CAFO obtain an NPDES permit, the permits they will get will not offer meaningful protection to our nation’s waters. The new rules continue to allow the use of lagoons and sprayfields – according to EPA, the “best” technology available to treat raw animal manure is an open cesspool followed by an open field. The only major requirement in the rules is that CAFO must have a Nutrient Management Plan setting “agronomic rate” levels of waste application – CAFOs can use their waste as fertilizer as long as the nitrogen needs of the crop are not exceeded. EPA did not require more relevant, and more restrictive, phosphorus based limits.

The Lawsuit

There are four major issues in the lawsuit

-Permitting & Self-permitting-
In a most astonishing development, EPA’s rules allow the CAFO operator to write its own Nutrient Management Plan, and then shields the CAFO from enforcement as long as it has implemented the Plan. This write your own ticket to pollution approach has been soundly rejected by the 9th Circuit in a case challenging EPA’s similar approach to urban stormwater.

-Agricultural Stormwater-
Under the new rules, if a CAFO has a Nutrient Management Plan, then any polluted runoff from its sprayfields is blessed as “agricultural stormwater” and exempted from regulation or enforcement. The trouble is, EPA has illegally expanded the Clean Water Act’s definition of “agricultural stormwater” to cover these discharges from CAFOs.

-Water Quality Standards-
At the last minute the White House forced EPA to insert language into the rules that exempts CAFOs from a core component of the Clean Water Act. Under the law, when NPDES permits do not result in sufficient protection of our waters, then the permits must contain additional control measures, called Water Quality Based Effluent Limitation Standards. While this may sound like so much “bureaucrat-ese” these standards a vital tool for ensuring that stream, rivers, ponds and lakes meet water quality levels. EPA has categorically exempted CAFO permits from having to include these standards, in direct violation of the law.

-Treatment Technology-
EPA’s approach to CAFO waste treatment technology is to allow the industry to use centuries old techniques – storing untreated waste in a big hole until its spread across rural fields. EPA ignored numerous examples of more protective technologies, treatment methods that would reduce the amount of pollutants in animal waste before it reaches our waters. The Clean Water Act requires EPA to demand that CAFOs use the “best technology available,” a mandate that EPA flatly ignored.

You can read our brief, by clicking
here . (Requires Adobe Acrobat or Reader)