Welcome. Sarah Geers Staff Attorney

Transcription

1 Welcome Sarah Geers Staff Attorney

2 Many animals confined together Produce a lot of waste Stored in large open pits Disposed of by land applying to crop fields as fertilizer CAFOs concentrate around infrastructure Concentrated Animal Feeding Operations (CAFOs) and Water Pollution Snapshot - Kewaunee County, Wisconsin 16 large CAFOs 76,000 cows 340 million gallons of liquid manure land applied in

3 Surface Water Pollution Nutrients Nitrogen and Phosphorus Algal blooms - Cladaphora, toxic blue-green algae Low dissolved oxygen Contribute to dead zones in Gulf of Mexico, Green Bay, WI Bacteria Fish kills Beach closures Sediment Turbidity poor visibility

4 Ground Water Pollution Bacteria, Viruses, Parasites Total coliform, fecal coliform, ecoli Certain types of pathogens are very harmful if ingested (hemmoragic ecoli; campylobacter, giardia, cryptosporidum; listeria) Nitrates Particularly harmful to infants, causes shortness of breath and blue-baby syndrome May increase the risk of some types of cancer in humans The jar on the right contains water from a private well following a brown water event Other pollutants in cow manure such as hormones and other pharmaceuticals given to cows?

5 Kewaunee County - Karst Geology Fractured carbonate bedrock aquifer Fracture pathways in bedrock Sinkholes Disappearing streams Seepage Springs

6 Well Sampling Results - Kewaunee

7 The Treml Family

8 Federal Authority: Environmental Protection Agency Federal laws that protect water quality: Clean Water Act Resource Conservation and Recovery Act Safe Drinking Water Act

9 Clean Water Act (CWA) Agricultural discharges generally not subject to CWA because generally considered nonpoint sources Large CAFOs are different than other agriculture Defined by CWA as point sources Large CAFO = 1,000 animal units or more Large CAFOs must get NPDES or equivalent state permit. NPDES permit must include Nutrient Management Plan that regulates manure applications on fields. Waterkeeper v. EPA, 399 F.3d 486 (2d Cir. 2005) BUT the federal Clean Water Act applies to surface water discharges NOT groundwater discharges ALSO agricultural stormwater discharges are excluded from the definition of point source

10 Challenges to EPA s CAFO regulations: EPA s CAFO regulations challenged by both sides from the beginning: 2003 CAFO regulations large CAFOs required to obtain discharge permit duty to apply Challenged by ag and enviro groups. Court vacated duty to apply Waterkeeper Alliance v. EPA, 399 F.3d 486 (2 nd Cir. 2005) 2008 CAFO regulations large CAFOs could avoid permit by certifying that they did not discharge and did not propose to discharge to waters of the US Challenged by ag and enviro groups. Court vacated requirement to apply for permit for proposed discharge Nat l Pork Producers Council v. EPA, 635 F.3d 738 (5 th Cir. 2011) Settlement with enviro groups EPA committed to draft new rule that requires CAFOs to submit info to EPA (or explain why EPA would not require disclosure) 2011 proposed CAFO regulations two alternative rules that would require CAFOs to submit info about facilities to EPA under section 308 info gathering authority Also sought comment on alternatives for EPA to gather info from existing data sources 2012 withdrawal EPA withdrew two proposed rules that would ve required CAFOs to submit info to EPA Alternative approach EPA would gather data on CAFOs from federal, state, and local partners

11 EPA s Approach to Gather Information from CAFOs opposed by environmental groups Environmental Integrity Project v. U.S. EPA D.C. Circuit Court Judicial review under Administrative Procedure Act (APA) of EPA s decision to withdraw proposed 2011 information gathering rules after notice and comment D.C. Circuit Court granted EPA s motion for summary judgment EPA s decision to withdraw the rule is due enhanced deference greater deference than agency action to promulgate new rule or rescind existing one Decision was not arbitrary and capricious: EPA provided a plain and coherent explanation to rely on existing data The record supported the EPA s decision: for both permitted and unpermitted CAFOs, the evidence is sufficient to allow a reasonable person to reach the same conclusion as EPA EPA s decision to withdraw the rulemaking does not conflict with EPA s obligations under the CWA.

12 EPA s Approach to Gather Information from CAFOs challenged by farm groups Am. Farm Bureau Fed. v. U.S. EPA U.S. Dist. Ct. Minnesota Farm groups sue EPA to prevent further disclosure of CAFO information in response to FOIA requests APA challenge to EPA s disclosure of CAFO information (including the physical address of the CAFO and operational details) on the basis that it was protected by a FOIA exception FOIA exemption 6 prevents disclosure of personal or medical information that would constitute a clearly unwarranted invasion of personal privacy District court dismissed case because farm groups lacked standing Affidavits of farm groups members did not establish actual or imminent injury Farm groups fail to establish that EPA s disclosure would cause CAFOs to lose control over personal information that was already public all declarants disclosed personal information in NPDES permit application which is required by law to be public It would also be unlikely that farm groups could demonstrate requisite causation or redressability elements of standing because the information is already public and their concerns are about what third parties not EPA would do with the information

13 Alt v. EPA Agricultural Stormwater What CAFO discharges are considered agricultural stormwater and thus exempt from the CWA s definition of point source? Clean Water Act - defines point source to include CAFOs, but exclude agricultural stormwater discharges. EPA s regulations and guidance - define agricultural stormwater exempt from the CWA as precipitation related discharges from land application areas when the manure was land applied in accordance with appropriate nutrient management practices. Facts: Alt owns a poultry operation that was discharging contaminated runoff from the production area, or area where poultry was housed. EPA required Alt to obtain a NPDES permit to regulate those discharges. Alt challenged EPA s order, arguing that those production area discharges were

14 Alt v. EPA Agricultural Stormwater N. Dist. West Virginia 2013 Discharges from the farmyard adjacent to poultry barns were exempt from the CWA as agricultural stormwater discharges The agricultural stormwater discharge exception is not limited to discharges from fields on which manure is land applied Interpreted CWA agricultural stormwater exemption without deference to EPA s rule interpreting that provision Concluded that the grassed area between barns was not part of the production area, but was instead was a farmyard Did not matter that the discharge originated from the barns within the production area Discharges from CAFOs are agricultural, not industrial EPA appealed, but later abandoned the appeal.

15 Resource Conservation and Recovery Act Citizen suits authorized against any person alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order under RCRA. 42 U.S.C. 6972(a)(1)(A). RCRA prohibits open dumping the disposal of solid waste at an open dump (any site other than a sanitary landfill). 42 U.S.C. 6945(a), 6903(3), (14), (27), 6944(a) RCRA makes it unlawful for any person to cause or contribute to solid waste handling, treatment, transportation, storage, or disposal that creates an imminent and substantial endangerment to human health or the environment. 42 U.S.C. 6972(a)(1)(B) Is manure from a CAFO a solid waste? Does RCRA s anti-duplication provision make it inapplicable to CWA-regulated CAFOs?

16 RCRA Community Association for the Environment v. Cow Palace, LLC Groups sue CAFO under RCRA citizen suit provision Alleged that the CAFO discards manure by improper handling, storage, and over-application of manure on fields Thus, CAFO violated prohibition against open dumping of solid waste that causes an imminent and substantial endangerment to public health and the environment Manure handling, storage and land application contributed to high nitrate levels in region s groundwater Some evidence provided by EPA study and consent decree pursuant to EPA s SDWA authority that addressed CAFOs contribution to nitrate pollution in the groundwater

17 RCRA Is manure a solid waste? CARE v. Cow Palace, LLC Yes - when over-applied to fields and leaches into groundwater because at that point the manure is no longer useful or beneficial as fertilizer RCRA does not apply to agricultural wastes when the wastes are returned to the soil as fertilizers, but that is not a blanket exemption for all agricultural waste involves factual inquiry into whether the waste is handled such that it is not a useful fertilizer Facts demonstrate that the CAFO discarded manure by applying it to fields in excess of crop needs and abandoned the waste when the CAFO allowed lagoons to leak Strong evidence that CAFO application was not useful or beneficial it was applied in excess of agronomic rates and without adhering to BMPs Manure leaks from lagoons a result of poorly designed storage and are not a natural, expected consequence of the manure s use as fertilizer Manure becomes solid waste when stored and composted on open native soil and allowed to leach into groundwater

18 RCRA CARE v. Cow Palace, LLC Takeaway from CARE v. Cow Palace, LLC Manure can be considered a solid waste subject to RCRA when the manure is handled or used in such a way that it is discarded and no longer used as a valuable fertilizer RCRA liability attaches to anyone who contributes to contamination that endangers health or the environment don t need to establish that the CAFO is the sole or primary source of contamination E.D. Washington concluded that RCRA s anti-duplication provision did not bar recovery here June 21, 2013 order denying summary judgment There is nothing inconsistent between the requirements of RCRA and the SDWA, so the suit under RCRA may proceed

19 RCRA anti-duplication Ecological Rights Foundation v. PG&E N.D. California District court Jan. 30, 2015: ERF brought citizen suit under CWA and RCRA for discharges of pentachlorophenol, oils, and dioxins from the PG&E facility s stormwater conveyance system ERF cannot sue under RCRA because the anti-duplication provision, 42 U.S.C. 6905(a), bars those claims RCRA claim is unavailable because PG&E s discharges were also subject to CWA regulation CWA does not require a permit for those stormwater discharges and RCRA cannot serve to impose a different regulatory requirement.

20 RCRA anti-duplication Ecological Rights Foundation v. PG&E 9 th Circuit Awaiting decision from 9 th Circuit EPA filed amicus brief in opposition to the district court s ruling USDOJ 1984 opinion - RCRA s anti-duplication provision requires a case-by-case analysis to determine if RCRA s requirements actually conflict with other federal laws including the CWA The district court ruled that the CWA s permit requirements didn t apply to the stormwater discharges at issue, so there is no RCRA conflict

21 Safe Drinking Water Act Protects drinking water sources both surface water and groundwater But EPA s regulatory authority is limited primarily to public water supply systems and underground injection wells Requires EPA to establish minimum health standards for the amount of contaminants that can be present in drinking water Maximum Contaminant Levels (MCLs) 1996 amendments require EPA to review and revise MCLs every six years General authority to investigate and address contamination of an underground source of drinking water that has presented and continues to present an imminent and substantial endangerment to public health Note parallel to imminent and substantial endangerment standards in RCRA and CERCLA Basis of EPA authority to study and address nitrate contamination of groundwater in Yakima Valley, Washington

22 Kewaunee County Groundwater Quality Crisis CAFO NPDES Permit Challenge SDWA Petition

23 Wisconsin NPDES permit challenge results in ruling that groundwater quality crisis a massive regulatory failure Administrative Law Judge decision modified the CAFO Wisconsin NPDES Permit to include additional monitoring and safeguards against pollution. Groundwater monitoring at the production area Groundwater monitoring at off-site landspreading fields Animal unit limit

24 SDWA Petition to EPA: Address the groundwater quality crisis in Kewaunee County Petition under EPA s authority pursuant to the SDWA, CERCLA, and RCRA EPA is empowered to act to address contamination in an underground source of drinking water that presents an imminent and substantial endangerment to human health Provides broad authority to EPA to issue orders to protect citizens from the threats of a polluted drinking water supply Used in Yakima Valley, Washington Nitrate pollution from large CAFOs May challenge terms related to groundwater discharges: Adequacy of conditions to ensure compliance with groundwater protection standards Alternative concentration limits Groundwater monitoring

25 Action in response to SDWA petition EPA is letting the Wisconsin Department of Natural Resources address the problem DNR response - convene stakeholder workgroups to study the problem and identify solutions 1. Short-term solutions how can we get clean drinking water to those in Kewaunee with polluted wells? 2. Defining areas susceptible to groundwater contamination and Best Management Practices appropriate to protect groundwater 3. Compliance how can we get more farms and CAFOs to comply and limit groundwater pollution? 4. Alternative technologies are there new technologies that can limit pollution from CAFOs? 5. Communication how can we get the word out to producers? DNR says only voluntary recommendations no changes to laws Citizens frustrated with the lack of concrete action

26 Thank you! QUESTIONS? Midwest Environmental Advocates Website: midwestadvocates.org Facebook: facebook.com/pages/midwest-environmental- Advocates