United States
                                   Environmental
                                   Protection Agency
               Office of Enforcement
               and Compliance
               Assurance (2201 A)
EPA325-F-09-001
        s?j     Enforcement Alert
        <• PROtfc0                  4^
      Volume 10, Number 2
Office of Civil Enforcement
  March 2009
  EPA Targets  Clean  Water Act Violations
           at Livestock  Feeding  Operations
  Agricultural activities are a leading cause of water pollution.
Of particular concern to EPA are large-scale livestock feeding
operations that confine hundreds or thousands of animals in a
relatively small area. Because of their size, these animal feeding
operations (AFOs) can discharge a significant volume of animal
waste if designed, constructed and/or managed improperly,
potentially contaminating rivers, streams, lakes, bays, coastal
shorelines and other surface waters.
  Certain AFOs are defined as concentrated animal feeding
operations (CAFOs), which are subject to Clean Water Act (CWA)
requirements, including permits to discharge. Revised permitting
requirements were published by EPA in November 2008. Bringing
CAFOs that discharge into compliance with those requirements
is an EPA national compliance and enforcement priority. EPA
promotes compliance by providing extensive information and
outreach to CAFOs on applicable environmental requirements,
as well as by conducting compliance monitoring inspections at
CAFOs and initiating enforcement actions, where appropriate.

Pollution from CAFOs

  Consolidation in the livestock industry has resulted in large-scale
operations that can generate significant volumes of animal manure
in excess of what is needed to fertilize cropland in an operation's
immediate vicinity. The U.S. Department of Agriculture (USD A)
estimates that confined livestock operations generate about 500
million tons of manure annually - three times the amount of
human sanitary waste EPA estimates is produced annually in the
United States. Although most of the manure is used to fertilize
agricultural crops, manure and urine can escape from CAFOs
into the environment from leaking or overflowing animal waste
storage lagoons, as runoff in wet weather from animal confinement
areas and uncovered manure stockpiles, and from cropland where
manure is applied in excess of agronomic needs.
  Adverse environmental and human health impacts associated
with water polluted by animal wastes include: increases in
suspended solids that cloud the water and inhibit the functioning
of aquatic plants and animals, nitrate contamination of drinking
water, and transmission of pathogens (disease-causing bacteria)
          and parasites associated with food and waterborne diseases in
          humans. Animal wastes are typically high in nutrients, such as
          nitrogen and phosphorus, which can cause decreased oxygen
          levels, adversely affecting fish and other aquatic life. In addition,
          ammonia above certain concentrations in surface water is toxic to
          fish. An EPA analysis in 2000 found that, between 1981 and 1999,
          19 states reported a total of four million fish killed by runoff and
          spills from CAFOs.

              Manure discharges from the production area at a dairy


           Benefits of Permit Coverage and Revised
           Regulatory Requirements

             CAFO discharges have been regulated under the CWA for over
           30 years as "point source" discharges of pollutants into the waters
           of the United States. CAFOs are often complex operations that have
           many sources for discharges, such as animal confinement areas,
           lagoons, food storage, silage, and manure application fields. They
           are required to obtain National Pollutant Discharge Elimination
           System (NPDES) permits under the CWA if they discharge or
                   http://www.epa.gov/comphance/resources/newsletters/civil/enfalert/index.html

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                                            Enforcement Alert
propose to discharge into waters of the United States. Discharging
without an NPDES permit and failing to apply for an NPDES permit
when one is required are violations of the CWA.
   CAFO owners or operators that do not apply for NPDES permits
operate at their own risk because any discharge from an unpermitted
CAFO (other than "agricultural stormwater")  and the failure to
apply for an NPDES permit when one is required are violations of
the CWA subject to enforcement action, including third party citizen
suits. NPDES permit coverage provides the benefit of certainty to
CAFO owners and operators regarding activities and actions that are
necessary to comply with the CWA. Compliance with the permit is
deemed compliance with the CWA and thus acts as a shield against
EPA enforcement, state enforcement, or citizen suits. For example,
NPDES permits for large CAFOs specify operating requirements
that the operator must meet. If the operator is in compliance with
these permit requirements, the CAFO is deemed in compliance with
the CWA. In addition, NPDES permits include provisions that may
be used by the permittee as a defense when emergencies or natural
disasters cause discharges beyond their reasonable control.
   EPA estimates that there are currently 19,000 large and medium-
sized CAFOs nationwide and that as many as 75% of these may
need to obtain NPDES permits because they discharge or propose to
discharge. As of March 2008, approximately 9,000 CAFOs (47%)
have NPDES permit coverage.
   Unfortunately, many owners or operators of unpermitted CAFOs
mistakenly believe that  the animal waste that escapes from their
facilities does not constitute a discharge as defined by the CWA,
and therefore erroneously conclude that they are not subject to the
Act's regulatory requirements.
   Some unpermitted CAFOs do not currently discharge but are
nevertheless designed, constructed, operated or maintained so that
discharges will occur, particularly during severe or chronic weather
events. In other words, these facilities propose to discharge and are
therefore subject to enforcement action for failure to apply for an
NPDES permit. A discharge from these unpermitted CAFOs would
subject the CAFOs to liability for the discharge and for failing to
apply for the NPDES permit. The CWA authorizes EPA to seek up
to $37,500 per violation per day.
   EPA published revised CAFO permitting regulations in
November 2008.  In the discussion accompanying the revised rule,
EPA describes how CAFOs should evaluate whether they discharge
or propose to discharge in order to determine if they need to seek
NPDES permit coverage.
   As explained in the final rule, this evaluation calls for a case-by-
case determination by the CAFO owner or operator as to whether
the CAFO does or will discharge from its production area or land
application area based on an objective, rigorous assessment of the
CAFO's design, construction, operation,  and maintenance.  This
evaluation must take into account not only the characteristics of the
man-made aspects of the CAFO itself, but climatic, hydrological,
topographical  and other characteristics beyond the  operator's
control. When making such a determination the owner or operator
must keep in mind that any discharge from an unpermitted CAFO,
even one that is unplanned or accidental, is illegal under the CWA
and may result in significant penalties.
   The 2008 CAFO rule creates an optionfor a CAFO to voluntarily
certify that it does not discharge or propose to discharge. A valid
certification establishes that the certified CAFO is not required to
apply for an NPDES permit. The requirements for certification are
stringent and require a demonstration that the CAFO is designed,
constructed, operated, and maintained such that the CAFO will not
discharge. A discharge from a CAFO with an invalid certification
would render the CAFO liable for multiple days of violation for
failing to apply for an NPDES permit, in addition to liability for
the actual discharge.  Therefore, if a CAFO seeks to minimize its
potential liability, EPA recommends that the CAFO apply for an
NPDES permit.
    Manure runoff from a beef cattle CAFO in the Midwest
EPA  Compliance  Monitoring
Enforcement Activities
and
   In response to state water quality reports of large numbers of
surface waters impaired by nutrients and frequent CWA violations
in the CAFO industry, EPA made CAFOs a national compliance and
enforcement priority. The Agency is using all available compliance
assistance, compliance monitoring and enforcement tools to ensure
CAFO compliance with regulatory requirements; the goal is to
improve animal waste management nationwide.
   EPA's primary inspection and enforcement emphasis is on those
CAFOs that have failed to obtain an NPDES permit (despite their
discharges of animal waste) and that may be expected to cause the
most significant environmental harm from uncontrolled discharges.
Generally, these are large and medium-size CAFOs with outdoor
production areas and  inadequately designed or operated manure
storage lagoons, containment systems or uncovered stockpiles.
   From October  1, 2007, through September 30, 2008, EPA
conducted a total of 220 federal CAFO inspections; an additional 87
inspections were conducted jointly with state agencies at CAFOs.
During this same time period, EPA concluded 71 CWA enforcement
actions against CAFOs, including one  civil judicial settlement
and 70 administrative actions. These actions resulted in a total of
over $9,000,000 spent on corrective measures, a reduction of over
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                                            Enforcement Alert
 31,000,000 pounds of pollutants that would have otherwise been
 discharged, and over $500,000 in penalties.

 Federal District Court Actions

   Two civil judicial settlements  concluded by  EPA in 2007
 brought 239 swine CAFOs and one large egg processing facility,
 with its seven associated poultry farms, into compliance with the
 environmental laws.
   M.G. Waldbaum Company has a large egg processing facility
 and seven associated poultry operations near Wakefield, Nebraska.
 EPA alleged  that Waldbaum violated the CWA by overloading
 the wastewater treatment lagoons at Wakefield's publicly-owned
 treatment works, illegally discharging pollutants from a large
 pile of poultry waste from its poultry CAFO into a creek, and
 improperly dumping process sludge waste from its egg processing
 facility at two of its other operations.
                        C j
        Chicken litter pile at Waldbaum's poultry CAFO

   Under a 2007 settlement, Waldbaum agreed to apply for
 an NPDES permit at its CAFO and develop and implement
 manure management plans at its six other poultry operations.
 To resolve CWA violations associated with its egg processing
 facility (which is not a CAFO), Waldbaum agreed to construct a
 wastewater treatment plant. Waldbaum also paid a $1.05 million
 civil penalty. EPA estimates that these actions will result in annual
 pollutant reductions of 60 pounds of phosphorus, 61,000 pounds
 of suspended solids and 41,600 pounds of ammonia.
   Seaboard Foods LP, one of the nation's largest pork producers,
 has  239 CAFOs in Oklahoma, Kansas, Texas  and Colorado. In
 2006, Seaboard paid a $205,000 civil penalty for failure to comply
 with the CWA and the Clean Air Act. The company was ordered
 to implement erosion control measures at 16 CAFOs to prevent
 runoff of soils to nearby waters and to establish protective buffer
 zones around sensitive wetland areas at 17 of its other CAFOs.
   David Inskeep. EPA also pursues criminal violations of the
 CWA at CAFOs. In September 2005, David Inskeep, who formerly
managed and operated the Inwood Dairy in Elmwood, Illinois,
was charged with one criminal count of knowingly discharging
pollutants without an NPDES permit. Although specifically
warned that the Dairy's waste lagoon was full and advised to stop
pumping in more waste, Inskeep refused to turn off the pump or
hire waste haulers to remove the waste. When repeatedly advised
that his action was illegal, Inskeep kept pumping waste from the
lagoon, discharging more than one million gallons of waste and
manure into a tributary of the Illinois River on his property.  In
2006, Inskeep pled guilty to a one-count misdemeanor, and was
sentenced to 30 days in prison and a criminal fine of $3,000.

EPA's  CAFO  Compliance Assistance
Resources
   Providing extensive technical and compliance assistance
resources is  an EPA priority. EPA has awarded $8 million in
federal grants for providing technical assistance to livestock
operators, including animal feeding operations, for the prevention
of water discharges and reduction of air emissions. Under these
grants, CAFOs can obtain facility-specific, confidential nutrient
management plans (NMPs) at no cost to the operator. For more
information see http://livestock.rti.org and http://www.erc-
env.org/CLEANMP.htm. The Manure Management Planner
software program, under development by a grant from EPA and
USDA to Purdue University, is a computer program that will
provide permitting authorities and producers assistance in NMP
development (http ://www.agry.purdue .edu/mmpA.
    EPA's National Agriculture Compliance Assistance Center (Ag
Center) supplies important information on laws and regulations,
and state and regional contacts, as well as links to information on
agricultural production, education and training opportunities, best
management practices, research and compliance and enforcement
matters. The Ag Center also staffs a toll free phone line (888-663-
2155) where agricultural producers, advisors or the general public
can ask questions, request publications or receive a referral for
more information. The Ag Center works mainly with advisors to
agriculture operations; for example, university extension agents,
consultants and USDA field staff.
   Compliance assistance materials are provided to state and
federal inspectors to be distributed to producers during inspections
and site visits, and provided to producers and  advisors at
conferences. In 2007,  the Ag Center's web  site (http://www.
epa. gov/agriculture) had requests for over 1.42 million pages of
information,  approximately 15 percent of which were related to
livestock and poultry. Since 1999, the Ag Center has distributed
nearly 30,000 animal-related publications.
   The Ag Center funded the development of the Livestock and
Poultry Environmental Stewardship training curriculum, and is
currently involved with the Livestock and Poultry Environmental
Learning Center in coordination with USD A's extension service to
make  the best scientific information available on the internet.
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                                           Enforcement Alert
Further Information

For information on EPA's CAFO regulations: http://www.epa. gov/npdes/afo, see 40 CFR
Parts 9, 122, 123, and 412 Revised National Pollutant Discharge Elimination System
Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated
Animal Feeding Operations (CAFOs) in Response to the Waterkeeper Decision; Final
Rule,  Federal  Register. Vol. 73, No. 225, Thursday, November 20, 2008, pp. 70418
- 70486, or contact Rebecca Roose, Water Permits Division, Office of Wastewater
Management at (202)564-0758; Email: roose.rebecca(@,epa.gov.

For further information of the estimated waste produced annually by CAFOs, see Preamble
to 40 CFR Parts 9, 122, 123, and 412 National Pollutant Discharge Elimination System
Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated
Animal Feeding Operations (CAFOs); Final Rule, Federal Register. Vol. 68, No. 29.
Wednesday, February 12, 2003, pp. 7180 - 7181 and 7235 - 7238.

EPA's National Agriculture  Compliance Assistance Center: http ://www. epa. gov/
agriculture, or contact Carol Galloway, Agriculture Division, Office of Compliance at
913-551-5092;  Email: galloway.carol(@,epa.gov.

For a summary of EPA's National Performance-based Strategy for CAFOs: http://www.
epa. gov/compliance, or contact Kathry n Greenwald, Water Enforcement Division, Office
of Civil Enforcement at (202)  564-3252; Email: greenwald.kathryn@,epa.gov.
  Disclaimer:  This document attempts to clarify in plain language some EPA provisions.
  Nothing in this Enforcement Alert revises or replaces any regulatory provision in the cited
  part, or any other part of the Code of Federal Regulations, the Federal Register, or the Clean
  Air Act, the Comprehensive Environmental Response, Compensation and Liability Act or
  the Emergency Planning and Community Right-To-Know Act. For more information go to:
  www.epa.gov/compliance
  vvEPA
  United States
  Environmental Protection Agency
  Office of Civil Enforcement
  (2241 A)
  Washington, B.C. 20460

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 Document Number:  EPA 325-F-09-001
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March 2009

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