Farm Waste Spurring EPA Enforcement, Litigation Issues

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By Steven M. Sellers

Oct. 29 — American rivers are increasingly threatened by nutrient runoff from concentrated animal feeding operations, and EPA enforcement priorities and litigation are reflecting that trend, lawyers and agency officials say.

The industrial agricultural operations, many of which operate in close proximity to one another, produce large quantities of manure recycled as fertilizer. The over-application of the manure to farmlands and mismanagement of lagoons leaches the waste into rivers and streams, and it is catching the eye of the Environmental Protection Agency, according to the comments of an agency official at a Chicago conference of environmental lawyers Oct. 29.

“A lot of farms manage waste well,” said Mark Pollins, director of the EPA's Water Enforcement Division's Office of Enforcement Compliance and Compliance Assurance. “We use careful targeting to avoid the good actors,” Pollins said, adding that the EPA inspects about 250 farms and brings approximately 50 enforcement actions each year, most of them administrative.

The hazards extend beyond nitrates and phosphorus that can create algae blooms and “dead zones” near the mouths of rivers.

“We still have a major nutrient and bacteria problem in the U.S.,” Pollins said.

Controlling waste created by some large-scale dairy, swine and cattle farms may depend on technology, Pollins said.

“We're looking to advance nutrient recovery technology, as well as in-stream monitoring,” Pollins said, noting that EPA will be receptive to such solutions as part of its enforcement options for violators.

The runoff can pose environmental and health risks, but solving it may be costly, said Thomas Parker Redick, of Global Environmental Ethics Counsel LLC in St. Louis, who counsels industrial agricultural clients. “The mouth of every river is a point source,” Redick said.

When solutions are applied on a national scale, they might end up costing more than $250 billion, depending on the extent to which agricultural byproducts are excluded from the sweep of the Clean Water Act (40 C.F.R. 257.1(c)(1), Redick said.

And that cost isn't confined to the owners of industrial farms required to implement nutrient recovery technology or other steps to control animal waste.

“For drinking water plants, this is monumental,” Pollins said of the input he's received from water utilities at clean water conferences.

Litigation over the issue is catching up, in part because of the strain upstream contamination places on downstream farms, as well as drinking water supplies.

Animal waste is generally excluded from the scope of the CWA, but one court has held that the exclusion didn't apply in a citizen suit under the Resource Conservation and Recovery Act. The manure was over-applied as fertilizer, resulting in runoff rather than absorption, the U.S. District Court for the Eastern District of Washington said (Cmty. Assoc. for Restoration of the Environ., Inc v. Cow Palace LLC, 2013 BL 169098, E.D. Wash., No. 13-cv-3016, 6/13/13).

As a result, the animal waste was “solid waste” within RCRA's scope, the court said.

“The court found in this case that the farmers weren't taking into account the nitrates left in the soil from the prior crop season, and that the solid waste posed an imminent threat to the environment and health,” said Todd Janzen, an environmental lawyer with Plews Shadley Racher & Braun in Indianapolis.

Ongoing litigation includes environmental challenges over agricultural waste in Kewaunee County, Wisconsin, home to more than 76,000 dairy cows that produce as much as 340 million gallons of liquid waste annually, according to Sarah Geers, a lawyer with Midwest Environmental Advocates in Madison, Wis.

The lawyers spoke Oct. 29 at a Chicago conference of the American Bar Association's section on environmental, energy and resources law.

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bna.com.

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com.