Concentrated Animal Feeding Operations
Environmental Concerns
March 2007
CONTENTS
As the face of agriculture continues to change, states must be equipped with laws that protect the health of their citizens and the environment, while managing the changing dynamics of the agricultural field. The landscape has increasingly been swamped with large-scale farms known as Concentrated Animal Feeding Operations (CAFOs). Farms are consolidating, decreasing the total number of farms while raising the same number of animals comparable to years past. This consolidation has caused a score of environmental problems, most notably noxious and toxic odors emanating far beyond a farm’s property lines. Agriculture continues to receive exemptions from federal air regulations – most notably the Clean Air Act – and the largest CAFOs in the United States appear to have negotiated an amnesty plan with the U.S. Environmental Protection Agency in June 2003. According to a document obtained by the Sierra Club, the plan, known as the “Safe Harbor Agreement,” will allow a study that promotes self-monitoring, exempting farms from current violations as the study proceeds and from past violations as well.
This comes at a time when citizens, especially those in rural farming communities, have begun to note the effects that CAFOs are having on their health, livelihood, and property. Although over 160 volatile organic compounds (VOCs) and gases have been identified as coming from CAFOs, there are a few main culprits. Concentrations of ammonia and hydrogen sulfide in as little as 20 parts per billion (ppb) can cause irritation to a person’s eyes and respiratory system. This exposure can be especially dangerous to people who do not have a robust or fully developed respiratory system, including children, the elderly, and individuals with respiratory ailments. In addition to VOCs and gas components of air pollution from CAFOs, dust, dander, and pathogens are also components, and equally dangerous. A number of personal accounts of individuals living near CAFOs report extended periods of time where they cannot open their windows or perform outdoor activities, in part, because of the excessive fumes emanating from nearby CAFOs. Finally, and most notably, studies have demonstrated a decrease in the value of properties located near CAFOs.
The fumes can come from a number of locations on CAFO property including manure pits, fields where manure has been spread, and buildings where the animals are reared. Depending on weather conditions, odors from CAFOs can be detected as far as 5 to 6 miles away, although more commonly the distance is 3 miles. Although the odors are most detectable in the early morning and early evening, the odor particles can be trapped by surrounding structures, including individual’s homes. Studies conducted have suggested a number of alternatives to combat odor, including animal diet manipulation, chemical additives to mask the odor, and various land application techniques. Due to the complexity of issues surrounding odor regulation, states have taken a number of approaches to deal with offensive odors, mainly through directly regulating odor, or by indirect methods that include setbacks and permits.(1) Adding to the complexity of odor legislation is the existence of “Right to Farm” laws in many states. The “Right to Farm” laws protect agricultural operations from nuisance complaints under normal operating conditions, including normal odors associated with farms. However, most farms are no longer simple family farms, but CAFOs, causing some to question their right to protection under this law.
Under the Clean Water Act (CWA), an animal feeding operation (AFO) that is large enough to qualify as a concentrated animal feeding operation (CAFO) must apply for an National Pollutant Discharge Elimination System (NPDES) discharge permit. CWA §402. Generally, these regulations define CAFO as an animal feeding operation where more than 1,000 animal units are confined at the facility, however this number may depend on the size and type of animal being kept.
Under CWA §502(14) and implementing regulations at 40 C.F.R. §122.23 and 40 C.F.R. Part 122, Appendix B, “concentrated animal feeding operations” are point sources subject to the National Pollutant Discharge Elimination System (NPDES) program. Under 40 C.F.R. §412.4, a CAFO that applies manure, litter, or wastewater to its land must also submit a Nutrient Management Plan with its NPDES permit application. The frequency of which the plan, as well as other permit conditions, is monitored is determined by the standards set forth in 40 CFR §122.44(i), and must be of a “frequency sufficient to yield data which are representative of the monitored activity including, when appropriate, continuous monitoring.” 40 CFR 122.48 (b). Although the task of administering the Clean Water Act is largely assigned to EPA, the authority to issue and administer permits may be delegated to the states if the states have adopted regulatory programs that are at least as stringent as the federal program and EPA has approved the state program. 40 CFR §123.21; 40 CFR §122.23(c)(1)(i).
States that have implemented a state NPDES permit program for CAFOs may apply their own regulations regarding monitoring, as long as the requirements are at least as stringent as those set forth in 40 CFR §122.41 to 122.50. States may also adopt their own definition of how many animals, or how much land constitutes a CAFO, as long as the minimum requirements of the federal definition are satisfied as well. For example, Vermont has adopted the federal regulations for NPDES for CAFOs “adjusted to 95 percent of the federal threshold requirement.” 6 V.S.A. §4852 (2003). Also, New York has adopted the permitting provisions and requirements of 40 C.F.R. §122.23 (6 NYCRR §750-1.11) and 40 C.F.R. §122.21(i) (6 NYCRR §750-1.7).
The definition of a CAFO is an important consideration, since an AFO that does not qualify as a CAFO is not required under federal law to submit a nutrient management plan. See eg Wis. Adm. Code NR 243.01(2). Often states will define CAFOs in terms of “animal units” (Va. Code Ann. § 62.1-44.17:1), but leave it for the administrative code to more specifically define “animal units.” See eg §62-670.200(3) F.A.C.; K.A.R. §28-18-11 (2004) (adopting Federal standards); Mich. Admin. Code §323.2210(f) (2004); 314 CMR 3.05 (2004) (adopting Federal standards); 35 Ill. Adm. Code 307.2201 (2004). The administrative definitions of a CAFO usually either adopt and incorporate the federal CFR definitions by reference, without providing any accompanying tables, (6 NYCRR §750-1.11 (2004); 15A N.C.A.C. 2H.0123 (2004)), or they do provide accompanying tables and charts explaining the number and types of “animal units” a CAFO requires. See eg Wis. Adm. Code NR 243.11(2004); ARSD 74:57:01:04 (2004); N.J.A.C. §7:14A-2.13.
Florida and Louisiana also allow for a state case-by-case designation of CAFOs not otherwise falling into the statutory or code definition provided. §62-670.400(3) F.A.C.; LAC 33:IX.2505(C). This gives a state desirable flexibility. For example, North Carolina has adopted the definition provided in 40 C.F.R. 122.23(b)(3), but retains case-by-case regulatory authority for those individual and special cases where the federal definitions can not adequately protect the health and safety of its public. 15A N.C.A.C. 2H.0123 (2004). Similarly, Washington state gives its director of the department of ecology the authority to designate any dairy AFO as a CAFO based on a number of relevant factors as established by the department. Rev. Code Wash. (ARCW) § 90.64.020 (2004).
Some states have legislation for a particular type of CAFO. Arkansas, for example, requires all poultry feeding operations with more than 2,500 poultry to register annually with the Arkansas Soil and Water Conservation Commission. A.C.A. §15-20-901 to 906 (2003) (Poultry Feeding Operations Registration Act). Registration requires the payment of fees, an adequate waste and litter management system, and regular monitoring of that system. Id. Colorado has chosen to impose stricter regulations on large commercial swine feeding operations because of local odor and waste concerns. C.R.S. 25-8-501.1 (2003). While the state of Washington has chosen to monitor the nutrient management of all licensed dairy feeding operations, regardless of size. Rev. Code Wash. (ARCW) § 90.64.026(1) (2004).
The permitting process for a CAFO requires the submission, approval and regular monitoring of a plan for waste and nutrient management. The application is usually handled by a state designated department which deals in water or environmental quality. See eg Va. Code Ann. §62.1-44.17:1(C) (2004) (handled by Department of Environmental Quality). A designated state department will also ordinarily outline procedures for the approval/disapproval of a plan, as well as a nutrient management strategy to best implement the statutory grant of power. See eg Iowa Code §459.312 (2003) (Manure Management Plan Requirements).
States such as Colorado and Delaware monitor various key nutrients, such as nitrogen, phosphorus, heavy metals, and salts. See eg C.R.S. 25-8-501.1(6) (2003); 3 Del. C. §2247(b) (2004). In Texas, the plan must be prepared by a certified nutrient management consultant in accordance with the practice standards of the Natural Resources Conservation Service of the United States Department of Agriculture. Tex. Health and Safety Code §361.121(h)(4) (2004). While Virginia will accept a plan by any “employee of a soil and water conservation district with appropriate engineering approval authority,” Va. Code Ann. §62.1-44.17:1(E)(5) (2004) (see also Md. Agriculture Code Ann. §8-802 (2003) (Nutrient Management Act) (requiring certification or licensing by the state)).
Non-CAFO Nutrient Management Plans
A state may choose to implement a permitting process requiring a nutrient management plan for certain AFOs that do not ordinarily qualify as CAFOs. Virginia requires a nutrient management plan for all sites which apply sewage sludge to land, regardless of whether or not they qualify as a CAFO. Va. Code Ann. §32.1-164.5(C)(8). However, to lesson the financial burden on its farmers, Virginia offers tax incentives for the purchase of necessary nutrient management technology and equipment , Va. Code Ann. §58.1-337 (2004), with reimbursement in the form of grants to the local governments that provide these tax credits, Va. Code Ann. §10.1-2132(C) (2004). Delaware requires a nutrient management plan to be developed for all AFOs with greater than 8 animal units. 3 Del. C. §2247. The state of Washington has chosen to monitor and inspect the nutrient management of all licensed dairy feeding operations, regardless of size. Rev. Code Wash. (ARCW) § 90.64.026(1), .017(1) (2004) (Dairy Nutrient Management Act at § 90.64.005 to .901 requires the continued submission and inspection of nutrient management records and information for state registration and licensing, even if not required under the federal NPDES permit program). In Colorado as well, the requirement of a nutrient management plan is not dependant on CAFO status for certain commercial swine feeding operations. C.R.S. 25-8-501.1 (2003) (state requirements for commercial swine feeding operations); C.R.S. 25-8-504 (federal permitting requirements to apply to all non-commercial swine feed operations). Maine requires a nutrient management plan if one or more of the following conditions are satisfied: A) the farm confines and feeds more than 50 animal units, B) it utilizes more than 100 tons/year of manure not farm generated, C) the farm is a subject of a valid complaint, or D) the farm stores or utilizes regulated residuals. 7 M.R.S. §4204(2) (2003).
Under Pennsylvania’s Nutrient Management Act (3 P.S. §1701 to 1718 (2004)), an agricultural operation which is not a CAFO may also voluntarily develop a nutrient management plan and the state shall assist and promote these voluntary plans as well. Id. at 1706(h). New York has developed a similar voluntary program to assist farmers with their nutrient management. NY CLS Agr & M §151 (2004).
States with a nutrient management program in place have recognized the need for continuing research and education in nutrient management and thus appropriate state money towards furthering that end. See eg Cal. Wat. Code §79114.2 (2004); Burns Ind. Code Ann. §14-32-8-7 (2004); Va. Code Ann. §10.1-2132 (2004). A few of them have delegated the responsibility of nutrient management testing and research to their university system. See eg K.S.A. §65-1, 195 (2003); Md. Agriculture Code Ann. §8-801.1, Editor’s Notes (2003) (Nutrient Management Act); Rev. Code Wash. (ARCW) §15.92.030 (2004); Wis. Stat. §92.05(3)(d) (2003).
New Hampshire has recently created a program which would provide both financial assistance and educational training to qualified agricultural land or livestock owners. RSA 431:36 (2003). Similarly, Delaware and Pennsylvania have especially comprehensive nutrient management programs, which not only include permitting and monitoring requirements, but research and educational programs as well. 3 Del. C. §2240 to 2249 (2004) (State Nutrient Management Program); 3 P.S. §1701 to 1718 (2004) (Nutrient Management Act). Under Oklahoma’s Registered Poultry Feeding Operations Act, all employees of a licensed poultry feeding operation must complete nine (9) hours of training and education in the area of nutrient/waste management as part of the permit application process. 2 Okl. St. §9-205(H) (2004).
If a state has an act or program established to consider issues related to nutrient management, they usually work in close conjunction with the state pollutant discharge elimination system (SPDES) permit program. See eg NY CLS Agr & M §151-e (2004) (calls for the coordination of its voluntary, incentive-based Agricultural Environmental Management Program with the SPDES program).
Below is a summary of current regulations and proposed legislation dealing with air emissions from CAFOs.
County Regulations
Monroe Township, Pennsylvania
Monroe Township Noxious Agricultural Odors Ordinance establishes a conditional use permitting system to control noxious odors from large agricultural operations.
State Regulations
Note: Air regulations exist in some form for all 50 states. The list below is a sample of what states are doing to combat odor from CAFOs.
Arkansas
- Setback requirements of 50 to 1320 ft.
- Training required for waste management and odor control
- Permitees encouraged to adopt “good neighbor” policy to minimize odor
See Arkansas Pollution Control and Ecology (APC&E) Commission Regulation No. 5 and Commission Regulation No. 18, Appendix A.
Colorado
- Odor regulations include dilution standards for swine facilities at the property line and detection at places beyond the property line
- Setback requirements of 100 ft. to 1 mi. for swine facilities only
- Odor management plans must be formed and odor control technologies must be employed to obtain permit
- Anaerobic lagoons (swine only) must be covered
See Colorado Air Quality Control Commission Regulation No. 2.
Maine
- Large CAFOs required to use best available management practices to control odor
See Maine Revised Statues Title 7, Chapter 747.
Minnesota
- Hydrogen Sulfide Ambient Air Standard in place, 30 ppb or 50 ppb at the property line
- Although permits required, new feedlot rules have been proposed
See Generic Environmental Impact Statement on Animal Agriculture, Minnesota Rules Chapter 7009 and 7020, and Minnesota Statues Chapter 116.0713.
North Dakota
- Hydrogen Sulfide Standard of 50 ppb
- No discharge of odor in excess of two odor units outside the property line
See North Dakota Administrative Code 33-15-16 and 33-16-03.
Oklahoma
- An odor control plan for swine and poultry facilities is required for the permit
- Setback requirements of .25 to 3 mi. for swine and poultry facilities
Odor emission is indirectly defied as air pollution. See Oklahoma Administrative Code 35:17-3 and 17-5.
South Carolina
- Waste management plan needs to include an odor abatement plan
- Lagoon restriction of no more than 4 acres
- Odor regulations require that a producer may not cause, allow, or permit emission of an undesirable odor into the ambient air unless preventative measures to abate/control are utilized
See South Carolina Code of Regulations 61-43.
Iowa
S.J.R. 5 nullifies the administrative rules put forth by the Department of Natural Resources relating to ammonia and hydrogen sulfide ambient air standards.
Codified at: http://www.extension.iastate.edu/Pages/communications/EPC/Fall04/feedlots.html
Michigan
MI S.B. 388 amends Michigan’s Right to Farm Act to allow inspectors to charge non-compliant farm operators for investigation and review. This is initiated after two inspections of noncompliance with normal agriculture procedures.
Oklahoma
OK H.B. 1643 makes revisions to Oklahoma’s Odor Abatement Plan.
NCSL Staff Contacts
Doug Farquhar (303) 364-7700
Scott Hendrick (30) 364-7700
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