Pork Producers Want Sound Science and Affordability

August 1, 2001

The National Pork Producers Council (NPPC), in comments make to the Environmental Protection Agency on rules for livestock operations, called for sound science but also rules that are affordable to producers who must live with the regulations. The proposed National Pollutant Discharge Elimination System (NPDES) Permit Regulations and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations (CAFO) cover all species of livestock and poultry and are scheduled to become final in December 2002.

NPPC President Barb Determan said while NPPC supports the general objectives that EPA is pursuing, it opposes elements of the proposed rule for economic and legal reasons. "We support programs that are based on sound science and that are affordable, achievable and sustainable for pork producers of all sizes and geographical locations," Determan said.

She said EPA's economic estimates inadvertently omitted the cost of impermeable lagoon covers for a substantial percentage of the operations that would be required to install them under the rule, a significant oversight that called into question other economic estimates contained in the rules.

"Independent economic analysis done by the Food and Agricultural Policy Research Institute (FAPRI) showed that these added costs dramatically increased the probability that significant numbers of hog operations of all sizes in the Midwest and Mid-Atlantic regions would be driven out of business."

Determan said EPA overstepped its authority under the Clean Water Act many times in the draft rule. But in highlighting those instances, she said NPPC also suggested alternative ways in which the goals of the rule could be achieved.

"We will continue to support many of the goals that EPA's proposed rule seeks to promote, such as wide-scale adoption and implementation of comprehensive nutrient management plans by all producers, licensing or permitting of all commercial producers to promote and ensure environmentally responsible practices, and efforts to ensure the responsible use of manure or wastewater by third-parties," Determan said.

"Our industry has earned a reputation for developing pro-active environmental improvement programs available to all pork producers that are achievable, sustainable, affordable and scientifically based. Some of our environmental programs have been so successful, they are being applied to other livestock species."

NPPC's objections to the proposed rule include:

*Co-permitting: EPA proposes to require corporate entities who contract with CAFOs to be "co-permitted" with CAFO owners and operators if the NPDES permit authority determines that the contracting party exercises "substantial operational control" over the CAFO. This proposal is beyond EPA's CWA authority, since the CWA governs only the "discharger" of pollutants, not other persons or entities. There is no statutory basis for deeming contracting entities to be "dischargers" under the CWA. In addition, EPA's proposal can only lead to further integration and consolidation within the livestock industry, to the detriment of existing independent contract producers.

*"Zero discharge" with no 25-year, 24-hour storm exception: EPA has proposed eliminating the "24 hour, 25 year" storm event exemption and imposing a "zero discharge" Best Available Technology (BAT) for hog operations. This proposal is based on EPA's conclusion that hog operations can completely eliminate all potential for discharge in all weather conditions through available technology involving the use of synthetic, impermeable covers for hog lagoons. EPA has concluded, based on available synthetic lagoon technology, that absolute zero discharge in all weather conditions is technically feasible and "economically achievable."

*EPA must reject the proposed zero-discharge BAT for hog operations because it is not economically achievable. NPPC's own review of EPA's analysis and the comparison of EPA's analysis to an independent analysis by the Food and Agricultural Policy Research Institute (FAPRI) revealed substantial errors in EPA's methodology, data, and conclusions. Most significantly, NPPC's review revealed that EPA inadvertently omitted from its cost calculations the cost of lagoon covers for a substantial percentage of hog operations ("Category III" operations within EPA's analysis). This error is fatal to EPA's findings concerning the cost of achieving a zero discharge standard for the hog sector. In fact, when the cost of lagoon covers for these operations is accounted for, calculations by FAPRI demonstrate that the proposed BAT would cause anywhere from a four-fold to ten-fold increase in the probability that 150, 200, 500 and 2,400 sow operations in the Midwest and Mid-Atlantic regions would go out of business. The probability of failure for the largest of these operations is substantial (60% in the Mid-Atlantic) and for the smaller operations reaches levels of more than 70% and 80%.

*In addition, the substantial errors in EPA's analysis and in its documentation of that analysis call into question the entire ELG proposal. NPPC's review of EPA's documentation revealed numerous discrepancies that made it impossible to understand (much less replicate) EPA's analysis. Accordingly, EPA must audit its entire ELG record to identify any other major errors (such as the omission of lagoon cover costs) and to present the agency's analysis in a form that is transparent. EPA must invest the time and resources necessary to fully document the basis for its rulemaking in a format that allows study, review, and independent reproduction of its results. Without such an effort, the public will essentially be denied the opportunity to identify and comment on specific errors in EPA's analysis, and EPA and the public can never have confidence in the agency's findings.

*"Zero discharge" to ground water: This proposed standard would apply to all beef and dairy CAFOs and all "new" swine and poultry CAFOs, unless the CAFO can obtain a determination (from the permitting agency) that there is no "direct hydrologic connection" to surface waters from ground water beneath the CAFO. Under EPA's proposed "new source" definition for CAFOs, existing swine and poultry CAFOs would become "new sources" (and subject to the zero discharge to ground water standard) if they simply replace animal housing, waste handling systems, or other equipment to maintain ongoing operations. Other existing swine or poultry CAFOs also could be subject to this standard, based on the permit writer's determination that such requirements are necessary based on location-specific water quality considerations. EPA lacks authority under the CWA to regulate discharges to ground water, despite its belief that these discharges often reach surface waters via a "direct hydrologic connection." In addition, EPA cannot impose regulatory burdens based on the unsupported presumption that a "direct hydrologic connection" exists unless the CAFO proves otherwise.

*EPA regulation of manure land application practices and agricultural storm water discharges: Where AFO or CAFO manure has been applied to land, EPA's proposal would apply the statutory agricultural storm water discharge exemption for those areas only if "proper" land application practices, as defined by EPA, have been implemented. In this way, EPA would seek to regulate land application practices of CAFOs, as well as AFOs or other third-party recipients who use AFO or CAFO manure as fertilizer. Although we support the development and implementation of environmentally protective nutrient management plans, EPA lacks authority to require such plans and practices as a condition of NPDES permits or as a condition of retaining the agricultural storm water exemption. Discharges caused by rainfall - i.e. "storm water discharges" - are exempt under the statute without qualification, so long as those discharges originate from agricultural operations. Crop production areas are, without exception, agricultural operations entitled to the agricultural storm water exemption. EPA may not simply narrow the statutory exemption to exclude sources that it wishes to regulate.

*Duty to apply for NPDES permit in the absence of a discharge: EPA's proposal would require all CAFO owners or operators to apply for an NPDES permit based on EPA's presumption that their operations have a "potential" to discharge to waters of the U.S. The CWA, however, prohibits only actual discharges. Thus, EPA can penalize any person who "discharges" to waters of the U.S. via a point source without a permit. EPA may not require producers, or operators of any other type of facility, to apply for a permit in the absence of discharges.

The full text of NPPC's comments, as well as FAPRI's economic analysis of EPA's draft rule, is available on the NPPC website, www.nppc.org.