As far as the poultry industry is concerned, the Environmental Protection Agency is the Energizer Bunny of regulatory agencies: Despite being rebuffed time and again in its effort to bring the industry under comprehensive regulation, EPA keeps going and going and going ...
EPA's initiatives, if they play out in full, would subject the industry to even more detailed and far-reaching rules than it has today, despite several legal cases in which the courts have pushed back against EPA's attempts to assert more authority. Much of the impetus comes from environmental advocacy organizations, acting on their own or in concert with EPA.
"We see it over and over again," said Paul Bredwell, vice president of environmental programs at the U.S. Poultry & Egg Association. "EPA is the EPA, and its charge is to protect the environment. We understand that. What's frustrating is that EPA gets sued by environmental groups, and it goes behind closed doors with them and comes out with a consent agreement. The stakeholders that are most affected have no say in the matter."
"We just wish they would be a little bit more reasonable as they meet their mission statement," Bredwell added. "There's no need to make the regulations so burdensome that they put us out of business."
Advocacy groups push for tighter regulatory controls
EPA is directly involved in at least six initiatives or court cases going on now that could lead to tighter regulation of the industry, and another case is pending in a state agency acting under EPA authority. The flash point is how much regulation the industry has to accept under the Clean Water Act.
The Clean Water Act makes it clear that a broiler operation using dry litter and not "discharging" doesn't have to get a permit. EPA and the environmental groups have never liked that exemption and would like to bring farms under the National Pollutant Discharge Elimination System (NPDES).
"The Holy Grail for these groups is to require livestock and poultry facilities to have NPDES permits," said John G. Dillard, a Washington lawyer involved in a case brought by a Rose Acre Farms facility in North Carolina. EPA and state environmental agencies can use that authority to dictate details down to the type of feed given to the animals, he said.
"When they can get that level of control, it makes you believe they are going beyond what the Clean Water Act intended," Dillard said.
It takes a scorecard to keep track of all the environmental issues confronting the industry (see sidebars), but here are the highlights:
New approach to permitting
In a case brought by industry groups, the U.S. 5th Circuit Court of Appeals ruled in 2011 that EPA had no authority to impose a duty on a farm to get a permit unless there is an actual discharge of pollutants.
Frustrated by its inability to lasso broiler operations, EPA is trying to redefine "discharge" to bring in the feathers and dust and bits of dirt or manure that get blown from the house by ventilation fans. EPA figures that if rain carries these through drainage ditches or swales to nearby water bodies, that creates a discharge through a "conveyance."
That was EPA's theory when it told Lois Alt to get an NPDES permit for her eight-house broiler operation near Old Fields, W.V. Protesting that she ran a clean operation, Alt sued EPA in federal court and was joined by the West Virginia and national Farm Bureaus. They argued that the alleged violation was covered by the exemption provided by Congress for "agricultural stormwater discharge."
"If this farm needs a permit, there's not one in the state that doesn't," said West Virginia Farm Bureau Administrator Steve Butler.
EPA saw it was losing the argument, let Alt off the hook, and tried to have the case declared moot. Not so fast, she and the farm bureaus declared.
"We need a court ruling that clarifies that ordinary rain water runoff from a perfectly well-run farm doesn't require a federal permit," said Ellen Steen, general counsel of the American Farm Bureau Federation. Judge John Preston Bailey has agreed to let the case continue.
Water pollution through the air
Another new twist is the idea that a facility can "discharge" by emitting ammonia that settles out of the air onto a nearby water body. That's one of the contentions made by the North Carolina Department of Environment and Natural Resources against Rose Acre Farms, the nation's second largest table egg producer, and its 3.2 million-bird complex in Hyde Country, N.C., near the Pocosin Lakes National Wildlife Refuge.
EPA may be on thin ice, however. Rose Acre's general counsel, Joseph P. Miller, is eyeing a recent case from Alaska with similar facts. Environmental groups sued a coal company, alleging that dust from a loading facility was contaminating the bay. The judge observed that the dust was carried through the air and not through a "conveyance" and threw out the claim.
The regional approach
EPA's Region 3 covering the mid-Atlantic states has a cause: saving the Chesapeake Bay, which has the bad luck to be downstream from 17 million people spread over 64,000 square miles in six states. EPA is taking the approach of setting "total maximum daily loads" in each river basin and sub-basin in the watershed. It will be up to the states to hash out the allocations among the thousands of competing interests in the region. How agriculture in general, and animal agriculture in particular, would fare in such a free-for-all is anyone's guess.
Agriculture groups led by the American Farm Bureau Federation filed suit, claiming the agency was exceeding its authority. A federal judge in Harrisburg, Pennsylvania, sided with EPA in September. Farm Bureau then filed notice that it would appeal the ruling to the U.S. Third Circuit Court of Appeals in Philadelphia.
"It would certainly put a question mark over the industry's ability to grow in that region in the future," Bredwell said. "If a company wants to open a new complex, it would have to recruit 500 to 1,000 more farmers. They would have to take allocations away from other stakeholders. That might not be possible." For that matter, the allocations could put pressure on current production levels.
How do you measure pollution, anyway? The usual approach has been a "narrative" one, with the regulations stating something like Florida's "in no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of flora or fauna." Pushed - again - by environmental groups, EPA now wants to replace the words with numbers - specific numeric criteria for nitrogen and phosphorus in the water. Of course, specific goals for nitrogen and Phosphorus could be problematic for the use of poultry litter, which is high in both of those elements and is often accused of contributing to runoff.
More fun with numbers
Under the Emergency Planning and Community Right to Know Act (EPCRA), industrial facilities are required to notify emergency responders of chemical spills and releases. Because ammonia is released as a byproduct of the breakdown of poultry manure, poultry houses can end up in the same category as giant chemical plants. The threshold is 100 pounds of ammonia per day, and a farm could produce that much. Previously EPA was content with a general, one-time notice to the local emergency center. After all, people in hazmat suits are not going to respond to ammonia being blown out of a chicken house.
EPA, however, is developing methodologies to help the farmer estimate how much ammonia his operation is producing. Unfortunately the formula is probably beyond the comprehension of anyone who doesn't happen to have a college degree in mathematics. EPA's own science advisory board urged the agency to try again.
EPA wants to count - and limit - bacteria from surface runoff. This could require processing plants to capture and treat cleanup water and stormwater from holding areas and other places where live birds are present. The limits EPA has proposed are lower than background levels found in non-poultry areas, such as highways.
"We are going to have to figure out a way to do this without shutting down the plant because they can't afford it," Bredwell noted.
Meanwhile, USPOULTRY is urging farmers to take a close look at the operations from the environmental point of view and see where performance can be improved. The program, called "Poultry and Egg Producers Environmental Enhancement and Protection Program," is available through the USPOULTRY website.
"We hope this will show EPA that positive steps are being taken by poultry producers nationwide," Bredwell said.
Perhaps EPA will see the merit of a cooperative approach. Otherwise, the court battles will continue.