### United States Government Ac countabilit y Office 

# GAO Testimony Before the Subcommittee on Environment and Hazardous Materials, Committee on Ener gy and Commerce, House of Repr esentatives 

# CONCENTRATED ANIMAL FEEDING OPERATIONS
EPA Needs More Information and a Clearly Defined Strategy to Protect Air and Water Quality

Statement of Anu K. Mittal, Director Natural Resources and Environment For R e lea s e on De live ry Expec t e d at 10 :0 0 a.m. ED T Wedn esd a y, S e p t em be r 24 , 20 0 8



### GAO-08-1177T

### What GAO Found

**United States Government Accountability Office** 

### Why GAO Did This Study 

# H ighlights **Accountability Integrity Reliability S**  **epte mber 24,**  **2 008**  

## CONCENTRATED ANIMAL FEEDING OPERATIONS

**EPA Need s**  **More Information and a Clearly Defined S**  **trate g**  **y to More Effectively Protect Air and Water Quality**  Highlights of GA O-08 -1177 T , a te stimony before the Su bco mmittee on Environment and Ha zardou s Materials, Comm ittee on Energy and Com m erce, Hou s e of Repre s entatives

Conc en tr at ed ani m al f e edi n g operations (CAFO) ar e large livestock and poultr y op er ations th at rai s e ani m al s i n a co nf i n ed situation. CAFO s may improve the ef

fi ci e n c y of ani m al pro d u c ti o n , but th e l a r g e amo unts o f m a nu re th ey pro d u c e can, i f impr op erly

man a ge d, de g r ad e ai r and wa ter q

u a lit y. The Env i ronmenta l Protection Agen cy (EPA) r e gulates CAFOs and re qui r es CAFOs th at d i sc ha rg e ce rt a i n p o llu ta nts t o obtain a per m it.

This testimony summarizes the f i n d i ng s of a

S e pte m be r 4
, 20 08 GAO re por t ( G AO- 0 8- 94 4) on ( 1 ) trends in CAF Os, (2) amou nts of

was t e th ey gener a te, ( 3 ) fin d ings of key r e s e ar ch on CAF Os’ h e alth and

en vi ronm en t a l i m pa cts, ( 4 )
pro g ress m a d e in developin g CAF O air emissions protoc ols, an d ( 5 ) th e ef

fe c t o f r e ce nt co urt d eci s i ons on EPA’s reg u lation of CAFO water pol l u t a nts

. G A O an al yz ed U.S

. D e p a r t me nt of Agr i c u ltu r e ’ s (US D A) data from 1982 th r ough 2002 for l a r g e farms as a pr oxy for CAFOs; rev iewed studie s , EPA docum ents , laws, and r e gulatio n s, and ob t a i n e d th e vi ews of f

e d e r a l and st at e of fi ci al s.


### What GAO Recommend **s**

In th e S e p t em ber 2 0 08 re po rt, GA O

re comm en de d t h a t EPA co mpl e t e its inve ntory of pe rmitte d CAFO s , reassess the air emissions monito ring study, and es tablish a st rate gy a n d time ta ble for develo p ing a pro cess-b a s e d mo del for me asuri n g CAFO ai r em i ssi ons. EPA pa rtia lly a g ree d with GAO ’s

recomm en dations. Be ca use no fe de ra l ag e n cy c o llec ts accurate and consistent data on the number, size, and locat ion of CAFOs, G A O could not determine the exact trends for these operatio n s. However , using USDA data for lar g e farms that rais e ani m al s as a proxy f o r CAFOs, it appears that the number of these operations increased by about 230 per cent, from ab out 3,600 in 1982 to almost 12, 00 0 in 20 0 2 . Th e number of anim als rais ed on lar ge far m s also incre a s e d during this 20-year period, but the rate of increas e v a ried by ani m al t y pe. Moreover, E P A does not have compre hensiv e, ac c u rate data on the number of permitted C A FOs nationwide. A s a r e sult, the ag e n cy does not have the information that it needs to effect i vel y regulat e thes e CAFOs . E P A is currently wo rking with the stat es to establish a new nati onal dat a base.

The amount of manure generated by large farms that raise animals depends o n the type and number of animals raised , but these operations can produce fro m 2,8 0 0 tons to 1.6 mil lion tons of manure a ye ar. Som e l a rg e farms that rais e animals can generate more manure an nually than t h e sanit a ry waste produced by some U.S. cities. Manu re can be used beneficia lly to fertilize crops; but

ac cording to some agri c ul tural experts, when anim al feeding operations are cluster e d in certain geo gr aphic area s, t h e manure th ey produce may not be effecti vel y us ed as fertili ze r on adjac e nt cropland an d could incre a se the potential of pollutants reaching nearby waters and degrading w a ter qu alit y.

Since 2002, at least 68 go vernment-s ponsored or peer-reviewed studies have been compl e ted that exa m ined ai r an d water qual i t y issu es ass o ciated with animal fe edi n g operations a nd 15 have directly lin ke d air and water pollutants from animal waste to specific health or environmental impacts. EPA h a s no t yet a s s e ss ed the extent to which pollu tants from animal f eeding operations may b e i m pai r ing human h ealth and the environment becaus e it la cks key data on the amount of polluta nts being di scharged by t h ese operations.

Considered a first step in deve loping air emission protocols for animal f eedin g operations, a 2-year natio n wide air em ission monit o ring st udy, largely funded by the industry, was initiated in 20 07. However, the study, as cur r ently structured, may not provide the s c i e ntific and statis tical ly valid d a ta it w a s intended to provide and th at EPA n eed s to develop these protocols. In addition, EPA has not yet es tablished a strategy or ti metable for developing a more sophisticat ed process-based mo de l that considers the interaction and impli cations of all emi ssio n sources at an anim al f e e d ing operatio n

.

Two recent f e deral court decis i ons ha ve affected E P A’s abilit y t o regulat e water pollutants discharged by CAFOs. The 20 05 Wa terkeepe r decision required EPA to abandon the approach that it had proposed forregulating CAFOs in 20 03. Simi lar l y , the Rapanos decision has complicat ed EPA’s enforcement of CAFO disc harges bec a u s e EP A be lie ves that it m u st now gather more evid e nce to establish which waters are subject to the Cl ean Wat e r Act’s permitting requirements. To view t he full product, including the scope and methodolog y, click on GA O-0 8 -1177 T

. For mo re informa t ion, conta c t Anu K. Mittal, (202) 5 12-384 1, mittala@gao.gov

.Con c en trat ed Anim al Feed in g Operation s Mr. Chairman and Members of the Su bcommittee:

We are pl eased to be h e re today to di scuss our re cently issued report on
concentrate d animal fee d ing operati ons (CAFO). 1 As you kno w, CAFOs are large ani m al livestock and poultr y operations that raise animals in confined sit u ations. Whi l e CAFOs have improved the effici en cy of the animal production indus try, they h a ve also raised environmental and health con c erns becaus e the large am ounts of manure they can produce, if not properly managed, m ay de grade ai r and water quality. Ani m al manure can be, and f r equently is, used benefi ci ally on far m s to fertilize crops and restore nutrients to soil. However, if manure and wastewater from animal feeding op erations are i m properly ma naged, po llutants such as nitroge n , phosphorus, bacteria, an d organic m a tter could enter nearby water bodies and could p o tentially im pair human health and d a mage the e n vironment. Improperly managed ma nure can also result in e m issions to the air of particles an d gases, suc h as ammonia and h y drogen sulfide, which could also result in potentially harmful envi ronmental and human health effe cts.

The Environ m ental Protection Agen cy (EPA) has the authori t y under several fed e ral laws to regulate wa te r and air pol lutants from CAFOs. EPA has specific authority un der the Clea n Water Act to regulate CAFOs like any other in dustry if they discharge i n to federally regulated waters. 2 Such CAFOs must obtain permits, from EP A or the states that EPA has authorized to administer this act, that stipulate h o w they will manage thei r discharges. I n contrast, t h ree other laws—the Cle a n Air Act, t h e Comprehensive Environmental Response, Compensation, and Liability A c t of 1980 (CERLCA), and the Emergency Planni ng and Community Right-t o

Know Act of 1986 (EPCRA)— w hile not specifical ly citing CA FOs as regulated en tities, provid e EPA with certain authorities related to air emissions from these operations.

Our testimo n y today summari zes th e following f i ve issues that we examined in our recent r e port: (1) trends in CAFOs; (2) the amount of waste they generate; (3) the findings of recent key academic, industry, an d government research on the impacts of air and water polluta nts from

1 GAO, Concentr a ted Ani m a l Feed i n g Op era ti ons: E P

A Need s Mor e I

n

form a ti on a n d a Clea rly Defi ne d S t ra tegy to P r

otect Ai r a n d Wa ter Qua l i t y from Poll uta n t s of Con ce rn, GAO-08-944 (W as hington, D

. C. : Se pt. 4, 2008)

.

2 Section 502 (14) of t h e Clean Water Act specifi c ally defines point sources of pollution to include CAF Os

.

P a g e 1 G A O- 08 -1 17 7TCon c en trat ed Anim al Feed in g Operation s CAFOs on h u man health and the environment, and the extent to which EPA has assessed the nature and severity of such impacts; (4) the progres s that EPA and the states have made i n regulating and controll ing the emissions of, and in d eveloping proto c ols to measure, air poll u tants from CAFOs that could affe ct air quality ; a nd (5) the e x tent to which recent court decisi ons have affected EPA and the states ’ ability to regulate CAF O discharges t h at impair water qualit y. In conductin g this work, we reviewed laws and reg u lations, fed e ral and stat e ag encies’ d o cuments, and met with officials from EPA and the U.S. Dep a rtment of Agriculture (USDA), industry, citi zen and en vi ronmental groups, and academia. We also spoke with state officials and vi sited CAFOs in eight stat es. 3 In additi on, we analyzed US DA data for large farms as a proxy f o r CAFOs, c onducted library and I n ternet sear ches to iden tify key stud ies complete d since 20 02 on air and w a ter pollutants from animal waste, and contact ed state officials in all 50 states t o determine which states had de velop ed air emission regulations app licable to CAFOs and how recent c ourt decisions had affected their ability to regulate CAFO disch a rges that i m pair water quality. W e conducted o u r work between July 2007 and August 2008 in accordan ce with general ly gov e rnment auditing s t andards. Th ese standards require that w e plan and p e rform the audit to obtai n sufficient, appropriate eviden ce to provide a re asonable basis for our findings and conclusions based on ou r audit objec tives. We b e l i eve th e evi d e nce obtained pr ovides a reasonable basi s for our findings and co nclusions based on ou r audit objectives.

In summary we found the following:

• Determining the trends i n the number of CAFOs over time is difficult because no f e deral a genc y colle cts co nsistent, reliable dat a on CAFOs. However, USDA data for large farms that raise a n imals can serve as a proxy for estimating trends in the n u mber and size of CAFOs. Using these data, we fou nd that the n u mber of these operatio n s appears to have increased by about 230 p e rcent from 1982 through 2002, from about 3, 600 to almost 12, 000. Moreov er, the number of animal s per farm increased, but the increase varied by an imal type, with hog farms showing the largest increase at 37 percent. Although EP A has been compiling data from its regional offi ces in an eff o rt to develo p information on the nu mber of permitted CAFOs nationwide, we found th at the data are i n consistent and inaccurat e a nd do not pr ovide ne ces sary information on the n u mber and

3 These states were Ar kansas, California, C o lorad o , Iowa, Maryland, Minne sota, N orth Carolina, and Texas.

P a g e 2 G A O- 08 -1 17 7TCon c en trat ed Anim al Feed in g Operation s characteristi cs of permitted CAFOs . We recommended that the ag ency develop a co mplete and accurate inv e ntory of pe rmitted CAFOs and incorporate appropriate internal con t rols to ensure the qualit y of the d a ta

. EPA concurred with this recommendation and st ated that it i s currently working with its regional offices and the states to develop and implement a national d a ta system to collect an d record faci lity-specific information on permitted CAFOs.

• While the amount of ma nure generat ed by l a rge f a rms that raise animals depends on the type and number of animals raised, such farms can produce from over 2,800 tons to more than 1.6 million tons of manure a year. In orde r to provide a perspectiv e on how much manure these operations produce, we compared the manure from some large farms that raise animals with sanitary waste produced by th e population s of some U.S. cities. F o r example, a very l a rge hog farm raising as many as 80 0,00 0 hogs—of which there are at least two in the Unite d States—co u ld generat e more than 1. 6 million tons of manure annually, or more than one-and-ahalf times the sanitary wastes produced by t h e about 1.5 mill ion residents of Philadelp hia, Pennsyl vania. W h ile we recogniz e that manure can b e a valuabl e resource used as fertilizer, some agricult u ral experts and government officials have raised co n cerns about the amount of manure produced by large fe edin g operations located wit h in a specifi c geo graphi c area. Whe n such clustering of larg e operations occurs, the manure they produce may not be effectively used as fertilizer on adjacent cropland and could incre a s e the poten tial for pollu tants to reach nearby waters and degrade wat e r quality.

• At least 68 government-sponsored or peer-review ed studies h ave b een completed o n air and wa ter pollutant s from animal feedin g o p erations since 20 02. Of these 68 s t udies, 15 di rectly linked air and wat e r pollutants from animal waste to specific health or environmental impact s, 7 found n o impacts on human healt h and the en vir onment, a nd 12 id entif i ed indirect linkages. Thi r ty-four other studies focused on measuring the amount of water or air pollutants from animal feeding o p er ations that are known to cause harm to humans or the enviro nment. However, EPA h a s not yet assessed the extent to w h ich air and water pollutants from CAFOs may be impairing human health and the envi ronment because it lacks key information on the amou nt of polluta nts discharged by th ese operations.

• The ongoin g national air emissions moni toring study is consi d ered a first step in devel oping proto c ols for measuring and quantifying ai r pollutants emitted by a n imal feedin g operations . While EPA believes th at this 2-year study, initiat e d in 2007, will provide a scientific b a sis for estimating air emissions from animal feeding o p er ati ons, conc erns have b e en raised th at

P a g e 3 G A O- 08 -1 17 7TCon c en trat ed Anim al Feed in g Operation s the study, as currently structured, may not provi d e EPA with the scientifi c and statistically v a lid dat a that it n e e d s to develo p these prot ocols. For example, th e study does not include a ll of the co mbinations of animal types and geographic regional pairin g s recommended by EPA’ s expert panel that would be repr esentative of the animal f eeding o p er ations in the United State s . Furthermore, EPA has not yet est a blished a st rategy or timetable fo r developin g a more sophisticated pr ocess-based model that the National Academy of Scienc es be lieved is n e e d ed to ensur e that the interaction and implications of all em ission sources at an an imal feeding operation ar e accounted for. Finally, some EPA a c tions have made it unclear at th is time how the ag ency i n tends to re gulate air e m issions from animal feedi n g operation s once the c u rrent air e m issions study is complete. F o r instance, EPA has not decided if it will aggregate the emissions occurring on an animal fe ed ing op eration or if the emissions from barns a nd manure storage areas w ill be considered separ a tely when determining if an operati on has ex ceeded air emissions thresholds. Moreover, in December 2007, EPA pr oposed a rul e to exempt all releases of hazardous substances, such as ammonia and h y drogen sulf ide, to the ai r from manure on farms, including ani m al feeding operations, f r om reporting requirements of certain federal laws. We recommended that EPA take a number of actions to ad dress the concerns that we identified with the ongoing air emi ssions study . EPA partially agreed with our recommend ations and d e scribed a n u mber of actions that it h a s underway to address them.

• Two recent federal court decisions have affected EPA’s ability to regul a te water pollutants discharged by CAF Os. First, in the 2005 Waterkeep er Alliance Inc

. v

. EPA deci sion, the U.S

. Court of Appeals for th e Second Circuit set aside a key provision of a CAFO rule EPA had issued in 2 003. This rule would have provided EPA with compre hensive info rmation on the universe of CAFOs and their ope rations and would have subjected a large number of previously unregula t e d CAFOs to monitoring and reporting requirements as well as pe riodic inspe c tions. However, the co urt concluded t h at EPA did not have the authority u nder the Clean Water Act to require C A FOs that were not discharging, or p r oposing to discharge, pollutants into federally regulated w a ters to appl y for permits. The decision has forced EPA to revise its 2003 rule for permitting CAFOs and return to its approach in which CAF O operators determine for themselves whether they need t o ap ply for a fed e ral permit. To help iden tify unpermitted discharges, EPA must rely on other means to acquire information about CAFOs that are ill egally disch a rging pollut a nts, such as following up on citizen r e ports of potential pollu tants. Secon d , the 2 006 Supreme Court decision— Rapanos v

. United States —has complicated EPA’s enforcement of CAFO discharges. This decision has made

P a g e 4 G A O- 08 -1 17 7TCon c en trat ed Anim al Feed in g Operation s determination of Clean Water Act ju risd iction over certain types of waters more complex and, acco rding to EPA, has required the a gen c y to gath e r significantly more evide nce to establ ish which waters are co nsidered federal waters and subject to th e Clean Water Act’s permittin g requirements. EPA enforcement offic i als told us that since the Rapanos decision the agenc y may be less likel y to take enf o rcement ac tions since it may be more difficult to prove that a water body is federally r egulated

.

The livestock and poultr y industry is vital to our nation’s eco nomy, supplying meat, milk, eggs, and othe r animal products. However, the p a st several de ca des have se e n substant ial chang e s in America’s animal production i ndustries. As a result of domestic and export market forces, technologi c al chan ges, and industry adaptations , food animal production that was integrated with crop producti on has gi ven way to fewer, larger farms that raise animals in confined situations. These large-s cale animal production f acilities are generall y ref e rre d to as animal feeding operations

. CAFOs are a subset of an imal feedin g operations and gen erall y operate on a much larg er scale.

Most agricultural activiti e s are cons i d ered to be nonpoint sources of pollution because the p o llution that occurs is in conjunction with soil erosion caused by water and surface r unoff of rain or snowmelt from diffuse areas such as far m s or rangeland. Howev e r, the Clean Water Act specifically designates p o int sources of pollution to include C A FOs, whic h means that under the act, CAFOs that discharge i n to federally regulated waters are required to o b tain a Na ti onal Pollutant Discharge Elimination System (NPDES) permit. These per m its generally allow a po int source to discharge sp ecified poll u tants into federally regul a ted waters under specific limits and condi tions. EPA, or the states that EPA has authorized to administer the Clean Water Act, are responsible for issuing these permits. 4

In accordan ce with the Clean Water Act’s design ation of CAFOs as point sources, EPA defined which poultry and livestock facilities constituted a CAFO and established permitting requirements for CAFOs. According to EPA regulations, first issued in 1976, to be consid ered a CAF O a facility 

# Background

4 Curre ntly, 45 states are aut hor ized to admi nis ter the NPDES permit p rogra m and their programs mus t be at leas t as s t ringent as t h e federal p rogra m. EP A has ret a ined p rogram authority for Al as ka, Ida h o , M a s s a chus etts , New Hamps h ire, and New Mexic o

. Oklah o ma has been aut h orized to issue permit s for m o st sources, but not CAFOs.

P a g e 5 G A O- 08 -1 17 7TCon c en trat ed Anim al Feed in g Operation s must first be considered an animal fe eding op eration. Animal feeding operations are agricultur a l operation s where the following co nditions are
met:

• animals are fed or maintained in a co nfined situat ion for a tot a l of 45 days or more in any 12-month period, and

• crops, veget ation, forag e growth, or post harvest residues are not sustained during normal growing seas ons over an y portion of the lot.

If an animal feeding op eration met EPA’s criteria and met or exceed minimu m size thresholds based on th e type of ani m al being raised, EPA considered t h e operation to be a CAF O. For example, an animal feedin g operation would be cons idered a CA FO if it raised 1,000 or more beef cattle, 2,500 pigs weighing more than 55 pounds, o r 125,000 chi c kens. 5 In addition, EP A can design ate an animal feeding op eration of an y size as a CAFO if it meets certain criteria, suc h as being a significant c ontributor of pollutants to federally r e gulated wat e rs. 6

In January 2003, we repo rted that alt hough EPA believed that many animal feeding op erations degra d e water qu ality, it h a d placed littl e emphasis on its permit program and that exempti ons in its regulations all o wed as many as 60 perc en t of the larg e s t operations to avoid o b taining per m its. 7 In its response to our 2003 rep o rt, EPA acknowledged t h at the CAFO program was hampered by outd a t e d regulatio n s. The ag e n cy subsequ ently revise d its permitting regulation s for CAFOs to eliminate the exempti ons that allowed most animal fee d ing operati ons to avoid regulation. The revision s, issued in February 2003, also known as the 2003 CAFO rule, resulted, in part, from the settlement of a 1 989 l a wsuit by the Natural Resources Defense Council and Pu blic Citizen. These group s alleged th at EPA had failed to c o mply with the Clean W a ter Act. EPA’s 2003 CAF O Rule included th e following key provision s :

5 40 C.F.R

. § 122.23(b).

6 Federally regul ated waterway s include waters of the United States as defined in 33 C

. F.R. §328.3(a)(1)-(7 ) and may include rivers, wetl ands, impoundm ents, th e territorial seas, andwaters use d in i n terstate c o mmerce.

7 GAO, Li vestock Agri cult u r e : I ncr ea sed EPA Oversi gh t Wi ll I m

p r

ove Envi ronmenta l Progra m for Conce ntra ted A n i m a l Feed i n g Op era ti ons, GAO-03-285 (Wa s hington, D

. C. : Jan. 16, 2003).

P a g e 6 G A O- 08 -1 17 7TCon c en trat ed Anim al Feed in g Operation s • Duty to apply . All CAFOs were required to apply for a permit under the Clean Water Act unless the permitting authority determined that the CAFO had no potential to discharge to fed e rally regul a ted waters.

• Expanded CAFO defin i tions . All types of poultry operations, as well as all stand-alone operations raising immature animals, were includ ed in the 2003 CAFO Rule.

• More string ent design s t andard for new fac i liti es in the sw ine, poultry, and veal categories . The 2003 rule est a blished a n o -discharge standard for new facilities that could be met if th ey were designed, constructed, and operated to contain the runoff from a 100- year, 24-hour storm event.

• Best manag e ment pract i ces

. Operations were required to implement best management practices f o r applying manure to cropland and for animal production areas.

• Nutrient m a nagement plans . CAFO operations were required to devel op a plan for managing th e nu trient conte n t of animal manure as well as the wastewater resulting from CAFO operat ions, such as water used to flush manure from barns.

• Compliance schedule . The 20 03 rule required ne wly defined CAFOs to apply for pe rmits by April 200 6 and e x isting CAFOs to develo p and implement nutrient management pla n s by Dece mber 31, 20 0 6

. 8

According t o EPA officials, the 2 003 rule was expected to ult i mately lead to better water quality b ecause th e revised regul a tions would extend coverag e to more animal feeding ope rations that could potent i ally discharge an d contaminate water bod ie s and subj ect these op erations to periodic ins p ections.

Three laws provide EPA with certain authorities related to ai r emissions from animal feeding op erations, but, unlike the Cl ean Wat e r Act, they do not specific a lly cit e CAFOs as regulated entiti es. The Clean Air Act 9 regulates an y animal fee d ing operati on, regardle ss of size, that exc eeds established air emission thresholds for certain p o llutants. Fo r example, i n certain spec ific situation s , hydrogen sulfide, ammonia, or particulate

8 In July 2007 , E P A extende d t h ese deadlines t o February 27, 2009.

9 The Clean Air Act, 42 U.S.C

. § § 7401-7671q.

P a g e 7 G A O- 08 -1 17 7TCon c en trat ed Anim al Feed in g Operation s matter may be regulat e d

. In addition, Section 103 of CERCLA and Sectio n 304 of EPCR A 10 require owners or op erators of a f acility to report to federal, stat e, or local a u thorities when a “repor table qu antit y ” of certain hazardous substances, such as hydr ogen sulfide or ammonia, 11 is released into the envi ronment. Together, CERCLA’s and EPCRA’s repo rting requirements provide go vernment au thorities, emergency management agenci es, an d citizens the ability t o k now about the source an d magnitude of hazardous releases.

EPA also wo rks with US DA to addr ess the impacts of animal feeding operations on air and water quality and human health. In 1998, EPA entered into a memorandum of understandi ng with USDA that calls for the agenci es to coordinate o n air qualit y issues related to agricult u re and share information. In a ddition, in 1 999, th e two agenci es issued a unifi e d national stra tegy ai med a t having t h e owners and operators of animal feeding op erations take actions to minimize water pollution from confinement facilities and land appli cat ion of manure. To hel p minimize water pollution from animal feeding ope rations and meet EPA’s regulato ry requirements, USDA, through its Natu ral Resources Conservation Service, provides financial and te chnical servi ce to CAFO operators in developin g and implementing nutri ent management plans.

Because no federal a gen cy coll ects a ccurate and consistent data on the number, size , and locatio n of CAFOs, it is difficult to determine precise trends in CAFOs. According to USDA officials, th e data USDA collects for large farms raising animal s can be us ed as a prox y for estimating trends in CAFOs nationwide. Using these dat a , we deter m ined the fo llowing:

• Between 19 82 and 20 02, the number of large far m s raising animals increased fr om about 3, 600 to almost 12,000, or by about 234 percent. Growth rate s varied dramatically by animal type. For instance, broiler chickens far m s showed the largest in crease, almo st 1,200 p e rc ent, followed by hogs at more than 5 00 p e rcent. In co mparison, beef cattl e farms grew by only 2 pe rcent and l a yer chick e n farms actually declin ed b y 2 percent. 

# The Number of Large Farms Raising Animals Has Increas e d, but Specifi c Data on CAFOs Are Not A v ailable

10 CERCLA, Pub. L. No. 96-510, 9 4 Stat. 2767 (codified as amended at 42 U.S.C

. §§9601- 9675)and EPCRA, Pub. L. N o . 99-499, Tit. III
, 1 00 Stat. 1728 (codified as am ended at 42 U.S.C. §§11001-11050).

11 Each of thes e h a z ardous s u bs tances has a rep ortable q u antit y of 100 p oun d s in a 24-h our period

.

P a g e 8 G A O- 08 -1 17 7TCon c en trat ed Anim al Feed in g Operation s • The size of these farms also increase d between 1 982 and 2 0 0 2 . The l ayer and hog sect ors had the l a rgest increases in the median number of animals raised per fa rm, both growing by 37 p e rcent betw een 1 982 an d 200 2. In contrast, large farms that raised eith er broilers or turkeys only increased slightly in si ze, by 3 and 1 percent, re spectively , f r om 1982 to 2002

.

• The number of animals raised on larg e farms increased from over 25 7 million in 1982 to over 890 million in 2002—an increase of 246 percent. Moreover, most of the be ef cattle , ho gs, and la yer s raised in the United States in 20 0 2 were raised on large f a

rms. Specifically, 77 p e rcent of be ef cattle a nd 72 percent of b o th hogs an d layers were raised on l a rge farms.

We also fou nd that EPA does not systematically collect nation wide data to determine the number, size, and location of CAFOs that have been issued permits nationwide. Instead, since 2 003, th e a g e n cy has c o mpiled quarte rly estimates obtained from its regional offices or the states on t h e number and types of CAFOs that have b een is sued permits. However, these data are inconsistent and in accurate and th erefore do not provide EPA with th e reliable dat a that it need s to identify permitted CAFOs nationwide. Without a systematic and coordinated process for collectin g and maintaining accurate an d complete i n formation on the number, size, and location of CAFOs nationwide, EPA does not have th e infor m ation it ne eds to effectiv el y monitor and regulate th ese operatio n s. In our report, we recommended that EPA develop a na tional inve ntory of permitted CAFOs and incorpo r ate appropriate internal controls to e n sure the qu ality of the data it col l ects. In response to our recommendation, EPA stated that it is currently working with its regional o ffices and st ates to dev e l op and implement a new national data system to collect and record facilityspecific info rmation on permitted CAFOs.

P a g e 9 G A O- 08 -1 17 7TThe amount of manure a large farm th at raises an imals can generate primarily depends on th e types and num bers of animals raised on that farm, but can range from over 2,800 t ons to more than 1.6 million tons a
year. 12 To further put this in perspect ive, the amount of manure produced by large f a rms that raise animals can exceed the amount of sanitary waste produced by some large U.S. cities. 13 For example:

• A dairy farm meeting EPA’s large CAFO threshold of 700 dair y cows can create about 17,800 tons of manure annua lly, whi c h is more than the abo u t 16,0 00 tons of sanitary waste gener ated per y e a r

by the alm o st 24,00 0 residents of Lake Taho e, California.

• A large farm with 800,000 hogs coul d produce over 1.6 millio n tons of manure per year, which is one and a half times more than the annual sanitary waste produced by the cit y o f Philadelphi a, Pennsylvania—about 1 million tons—with a population of almost 1.5 million. 14

Although manure is con s idered a val u ab le commodity, especi ally in states with large amounts of farmland, like Iowa , where it is used as fertilizer for field crops, i n some parts of the cou n try, large f a

rms that raise animals ca n be clustered in a few con t iguous cou n ties. Becau se this collo cation can result in the separation o f animal from crop production, there is less cropland on which manure can be app lied as a f e rtilizer. A USDA report first identified this concern as early as 2000, when it found th at between 1982 and 1997, as li vesto ck producti on became more spatially
concentrate d , when manure was applied to crop land, crops were not fully using the nu trients in manure, and thi s could result in ground and surface water pollution from the excess nutrients. 15 Accord ing to the re port, the number of counties where farms pro duced more manure nutrients, primarily nitrogen and p hosphorus, than could b e applied to the land 

# Large F a rms That Raise Animals Can Produce Thous ands of T o ns of Manure Each Y e ar , and Regi onal Clustering of Farm s Can Exacerbate M anure Management Probl ems

12 T h e amou nts o f manu re re por ted are es timates

. T h e actual a m ount of ma nu re p rod uced by an animal w ill vary based on, am ong othe r things, feeding programs, feed used, climatic conditions , p r o duction techniq u es , an d a n imal genetics

.

13 Human s a nitary w a s te include s urine a n d fec es only; it d o es not inclu d e a n y othe r househ old sewage wastes such as water f r o m washing dish es or clot hes o r water used fo r

s how ers or flus hing.

14 EPA officials told us t h at t h e agency has ide n tified a hog fa rm of this size and USDA officials told us that t h ey are aw are of two hog farms of this size.

15 R. L

. Kellogg , C

. H. La nder , D. C. Moffitt, an d N. Golleho n. Ma nure Nu tri e n t s Rela ti ve to the Capac ity of Cr oplan d an d P a s t u r e l an d to As s i milate Nutr ie n t s: Spatial an d Temp o ra l Tr en d s for th e U n i t ed S t a t es

. (Was hington, D.C

. : December 2000 ).

P a g e 10 G A O- 08 -1 17 7T Con c en trated An i m al Feedi n g O p erati o n sCon c en trated An i m al Feedi n g O p erati o n s without accumulating nutrients in th e soil increased. As a result, the potential for runoff and l eachin g of t h ese nutrien ts from the soil was high, and water q u ality coul d be impaired. Agricultural experts and government officials who we spoke to during our review echo e d the findin g s of USDA’s report and provided several examples of more recent clustering trends that have resulted in degrade d water qualit y. For exam ple, according to North Carolina agricultu ral experts, excessive manure production f r om CAF Os in five conti g uous count ies has contributed to the contaminati on of some of the surface and well water in these counties an d the surrounding areas.

USDA officials acknowledge th at regi onal cl ustering of large animal feeding op erations has o ccurred, but they told us that they be lieve producers’ implementation of nutrie n t management plans an d use of new technologi e s, such as cali b rated ma nure spreaders and improved animal feeds, hav e r e sulted in an imal feeding operations more effectively using the manure being gener a ted and red u cing the lik elihood that pollutants from manure are ent e rin g ground an d surface water. However, USDA could not pr ovide us with information on the ext e nt to which these techniqu es a r e being use d or their eff ectiven ess in reducing water pollution from animal wa ste.

Since 2002, at least 68 government- sponsored or peer-review ed studies have b een c o mpleted on air and wat e r pollutants from animal feeding operations. Of these 68 s t udies,

• 15 directly l i nked pollutants from animal wast e generated b y animal feeding oper ations to specifi c health or environmental impacts . Eight of these 15 stu d ies were water qualit y studies and 7 were air emission s studies. Academic exper t s and industry and EPA officials told us that only a few studies directly lin k CAFOs with health or e n vironmental impacts because th e same pollutants that CAFOs discharge also often come from other sources, including smaller livestock operati ons; row cro p s using commercial fertilizers; and wastes from humans, municipalities, or wildlife, making it difficult to distinguish the act ual source o f the polluti on. 

# Studies Have Identi fied Im pacts of Pollutants from Animal W a ste, but EP A Has Not Assessed the Extent of Such Impacts

• 7 found no i m pacts on human health or the environment fr om pollutants emitted by CAFOs . Four of these 7 s t udies were water qualit y studies an d 3 were air e m issions studies. Accord ing to EPA a nd acad emic experts we spoke with, the concentrations of air and water p o llutants discharged b y animal feedi n g operation s can vary fo r numerous reasons, incl uding the type of an imal being raised, feed bei n g used and the manure management

P a g e 11 G A O- 08 -1 17 7TCon c en trated An i m al Feedi n g O p erati o n s system being employed, as well as the climate an d time of da y when the emissions occur.

• 12 made indirect l i nkages betw een air and wat er pollutants and health and environmental impacts . While these studies found that animal feeding op erations were the likely ca use of human health or environmental impacts occurring in a r eas near th e operations , they could not conclusi vely link waste from animal feeding operations to the impact s, often becau s e other sources of pollu tants could also be cont ributing.

• 34 of the studies focus e d on measuri n g the amounts of water or air pollutants discharged b y animal feeding opera tions that are known to cause huma n health or e n vironmental impacts a t certain
concentrat i o ns . Of the 34 studies, 19 focused on water pollutants and another 15 focused on measuring ai r emissions from animal feeding operations.

While EPA recognizes th e potential i m pacts that water and ai r pollutants from animal feeding op erations can h ave on human health and the environment, it lacks the data ne ce ssary to assess how widesp read the impacts are and has limited plans to collect th e d a ta that it ne eds. For example, with regard to water qualit y, EPA offici als acknowledged th at the potential human heal th and en vironmental impacts of some CAFO water pollutants, such as nitrogen, ph osphorus, and pathogen s, are well known. However, they al so stated that EPA does not have dat a on the number and location of CAFOs nationwide and the amount of discharges from these operations. Without this information and data on h o w pollutant concentratio ns vary by t y pe of operati on, it is diffi cult to estimate the actual disch a rges occurr ing and to assess the extent to which CAFOs may be contribut ing to water pollution. Al though EPA has recently taken some steps that may help provide some of these data, a gency offici als told us that EPA currently has n o plans to conduct a n a t i onal study t o collect information on CAFO wa ter pollutant discharges because of a lack of

resources.

Similarly, with regard to air quality , more recently, EPA has recognized concerns ab out the possible health a nd environmental impact s from air emissions produced b y a n imal feedin g operations . In this rega rd, prompted in part by publ ic concer n, EPA and USDA commissioned a 2003 study by the National Ac ademy of Sc iences (NAS) to evalu a te the scientific inf o rmation needed to sup port the regulation of ai r emissions

P a g e 12 G A O- 08 -1 17 7TCon c en trated An i m al Feedi n g O p erati o n s from animal feeding op erations. 16 The NAS report identified se veral air pollutants from animal feeding o p er at ions, such as ammonia and hydrogen sulfide, that can impair h u man health . The NAS re port also co ncluded th at in order to d e termine the human heal th and en vironmental eff ects of air emissions from animal feeding o p er ations, EPA and USDA would first need to obt ai n accurat e estimates of emissions a nd their con centrations from animal feeding op erations with varying char acteristics, such as animal type, animal feed , manure man agement te chniques, an d climate. In 2007 , the 2-y ear National Air Emissions Monitoring Study wa s initiated to collect d a ta on air emissions from anim al feeding operations as part of a series of consent agreements that EPA entered in to with individual CAFOs. This study, fund ed by indust r y and appro ved by EPA, is intended to help the a gency deter m ine how to measure and quantify ai r emissions from animal feeding operat ions. The data coll ect ed will in turn be used to estimate air emissions from animal feeding o p er ations with varying characteristi cs. Accordin g to ag ency officials, unt il EPA can d e termine the actual l evel of air pollut a nts being e m itted by CAFOs, it will be unabl e t o assess the extent to which these emi ssions are affecting hum an health an d the environ m ent.

The National Air Emissions Monitoring Study is intended to provide a scientific basis for estimating ai r emi ssions from animal feedi n g operations and to help E P A develop protocols that will allow it to determine which operati ons do not comp ly with applicabl e f e deral laws. According t o EPA, although it has th e authority t o require ani m al feeding operations to monitor their emission s and come i n to compliance with the Clean Air Act on a case-b y-case b a sis, this approach has proven to be time and labor int e nsive. As a n alternativ e to the c a se- b y-case approach, in January 2005, EPA offered animal feeding op erations an opp ortunity to sign a volunt ary consent agreement and final order, known as the Air Compliance Agreement. Almost 13,900 animal fe eding op erations were approved fo r participati on in the a g reement, representing the egg, broil e r chicken, dai r y, and swine industries. Some turkey operations volunteered but were not approved b ecause th ere were too few operations to fund a monitoring site, and th e beef cattle i ndustry chose not to par t icipate. In return for participating i n this agree ment and meeting certai n requirements, EPA agree d not to su e participating animal feed ing 

# It Is Unclear if EP A ’ s Efforts to Develop Air Emissions Protocols for Ani m al Feeding Operati ons W ill Be Effecti v e and W h ether EP A Intends to Regulate These Emissions in the Future

16 National Acade m y of Sciences
, Ai r Emi ssi ons from Ani m a l Feed i n g Op era ti ons: Curr ent Kno w l e d g e, F u tu re N eed . ( Washingt on, D

. C.: National Academies Press, 2003).

P a g e 13 G A O- 08 -1 17 7TCon c en trated An i m al Feedi n g O p erati o n s operations for certain past violations or violations occurring d u ring the National Air Emissions Monitoring St udy. 17

Although EPA told us that the Nation al Air Emissions Monitoring Study is the first step in developi ng comprehensive proto c ols for quantifying air emissions from animal feeding o p er ations, we found that th e study may not provide EPA with th e data that it needs for the following t h ree

reasons.

• The monitoring study may not be rep r esentative of the vast majority of participating animal feed ing operatio n s and will not account for differences i n climatic conditions, manure-handli n g methods, and density of operation s because it does not inc l ude the 16 c o mbinations of animal types and geographic regional pairin g s recommended by EPA’ s expert panel. EPA approved on ly 12 of the 16 recommended combin ations, excluding southeastern b r oiler, eastern layer, mid w estern turkey, an d southern dairy operation s.

• Selection of monitoring sites has been a con cern since the sel ection plan was announced in 2005. At that time, many agricultural experts, environmental groups, and industry and state off i cials disagr eed with the site selectio n methodology. They stat ed that the study did not include a sufficient nu mber of monitoring sites to establish a statistically valid sample. Without such a sample, we be lieve that EPA will not be abl e to accuratel y e s timate emissions for all ty pes of ope rations. More recentl y, i n June 200 8, t h e state of U t ah reach ed an agre e ment with EPA to separatel y study animal feeding op erations in t h e state be c a use of the s t ate’s continuing concerns that the Nationa l Air Emissions Monitoring Study wi ll not collect i n formation on emission s from opera tions in Rocky Mountain states and th erefore may not be mean in gful for those operations that raise animals in a r id areas.

• Agricultural experts also have raised concerns th at the Natio n al Air Emissions Monitoring St udy does no t include oth e r sources that can contribute significantl y t o emissions from animal feeding op erations. For example, the monitoring study will not capture data on ammonia

17 EPA placed ce rtain conditions and limits on its agreement not to sue animal feeding operatio n s part icipating in the Air Compliance Agreement

. F o r exam ple, EP A can c ontin ue to p urs ue cas es that pres e nt a n imminent an d substantial endangerment to public health,

w e lfare, or the environme n t. In ad dition, EP A’ s covena nt n o t to s u e only c o vers emis s i ons from agric ultural livestock and livestock waste and d o es not exten d to gene rators or lan d application of a n imal waste.

P a g e 14 G A O- 08 -1 17 7TCon c en trated An i m al Feedi n g O p erati o n s emissions from feedlots and manure a pplied to fi elds. Accord ing to these experts, feedlots and manure on fiel ds , as well as other excl uded sources account for approximately half of th e total ammonia emissions emitted by animal feedi n g operation s.

Furthermore, USDA’s Agriculture Air Quality Ta sk Force has recently raised concerns about the quantit y a nd quality of the data bei n g collected during the early phases of the study and how EPA will event u ally use th e information. 18 In particula r , the task fo rce expresse d concern th at the technologi e s used to coll ect emissions data were not function ing reliably. At its May 2008 task for ce meeting, t h e members requested t h at the Secretary of Agriculture ask EPA to review the fir s t 6 months of the study’s data to determine if the stud y needs to b e revised in order to yiel d more useful information.

EPA acknowledged that emissions data should be collected for every typ e of animal fe eding op eration and prac tice, but EP A officials stated that such an ext e nsive study i s impractical . Furthermore, they stat ed that the selected site s provide a r easonable re presentation of the v a rious animal sectors. EPA has also indicated th at it plans to u s e other rele vant information to supplement the study data and has identified s o me potential ad ditional data sources. However, acco rding to agri c ultural experts, unti l EPA identifies all the su pplemental data that it p l ans to use, it is not clear if these dat a , together with the emissions study data, will enable EPA to develop c o mprehensive air emissions protocols.

EPA has also indicated t h at completi ng the Natio n al Air Emissions Monitoring Study is onl y the first pa rt of a multiyear effort t o develo p a process-based model for predicting o verall emissions from animal feeding operations. A process-based model woul d captu re emissions data from al l sources and use these da ta to assess th e interactio n of all sources and the impact that different manure manag e ment techn i ques hav e o n air emissions fo r the entire operation. F o r example, technologi e s are availabl e to decrease emissions from manure lagoons by, among other things, covering th e lagoon to capture the ammonia. However, if an operation spreads the lagoon liquid as fertilizer for crops, ammonia emissions could increase on the field. Ac cording to N A S, a proces s-based model is need ed

18 The Agricultural Air Quality T a sk Force, crea ted in acc ordance with the 199 6 farm bill, is charged with a d vising the Secretary of Agric ul ture with respect to pr ovidi n g ove r s i ght an d

coor dination re lated to ag ricultural air q u ality, and c onsists of leader s in farming, industry, health, a n d science.

P a g e 15 G A O- 08 -1 17 7TCon c en trated An i m al Feedi n g O p erati o n s to provide s c ientifical ly sound estimates of air emission s fro m animal feeding op erations that c a n be used t o develo p management a nd regulatory p r ograms. Although EPA plans to develop a process-based model after 2011 , it has not yet esta blished a ti metable for completing t h is model and, t h erefore, it i s uncertain when EPA will have more sophisticated approach es that will more accurat e ly estimate emission s from animal feeding op erations.

Moreover, two recent EPA decisions suggest that the a genc y has not y e t determined how it intends to regulat e air emissions from animal feeding operations. Specifically:

• In December 2007, EPA proposed ex em pting releases to the air of hazardous substances from manure at farms that meet or exceed the reportable quantities from both CER CLA and EPCRA notification requirements. According to EPA, this decision was in part a response to language in congressional committ ee reports related to EPA’s appropriations legislatio n for 2005 a nd 200 6 that directed th e agen cy to promptly and expeditiou sly provide clarification on the appli cation of these laws to poultry, livestock, a nd dairy operat i ons. In addi tion, the agency recei ved a p e titio n from the several poult r y indus try organizations seeking an exemption from the CER CLA and EPCRA reporti ng requirements for ammon i a emissions from poultry operations on the grounds that ammonia emission s fro m poultry operations pose little or n o risk to public health, an d emergency response i s inappropriate. In proposing the exemption , EPA noted that the agency would n o t respond to releases from animal wa stes under CERCLA or EPCRA nor would it expect state and local go vernments to respond to such releas es because the source and nature of these releas es are such t h at emergen cy response is unnecessa ry, impractical, and u n lik ely. It al so noted that it had recei ve d 26 comment letters from state a nd lo cal emergen cy response agenci es supporting the exemptio n for ammoni a from poultry operati ons. However, during the p ublic comment period ending on March 27, 2008, a nation al association representing state a nd lo cal emergen cy responders with EPCRA resp onsibilities questioned whether EPA had the authority to exempt these operations until it had data from its monitoring study to demonstrate actual l evel s of emission s from animal feeding operations. This national association further commented that EPA should withdraw the proposal because it d e nied respo nders and th e public th e information

P a g e 16 G A O- 08 -1 17 7TCon c en trated An i m al Feedi n g O p erati o n s necessary to protect the m sel ves from dangerous releases. 19 Furthermore, the proposal also seems to be a d e pa r t ure from EPA’s past regulatory enforcement actions that have i n clud ed charges o f failing to comply with the release r e porting req u irements when bringing claims agai nst producers for violating several en vi ronmen tal laws and is also contrary t o one of the st ated go als of the Air Compliance Agre ement. We b e lieve that the timing of this proposed exemptio n, before the National Air Emissions Monitoring Study has been completed, calls into question the basis for EPA’s decision.

• EPA has also recently stated that it will not make key regulatory decisio n s on how certain federal air regulation s apply to an imal feeding operations until after 2011, when the National Air Emissions Monitoring Study is completed. For example, accordin g t o EPA, the agency will not issue guidanc e for several more ye ars defini ng the scop e of the t e rm “source” as it relates to animal agriculture and farm activities. According to EPA, it has not yet deci ded if it will aggregate th e emissions occurring o n an animal feeding op eration as one source or if the emissions from the barns, lagoons, feed storage, and fields will each be co nsidered as a separate source when determining if an op eration has ex ceeded air e m issions’ reportable quantities. Depending on t h e approach EPA takes, how emissions are cal culated could differ significantly

. For example, ac cording to preliminary data EPA has receiv e d from an egg -laying o p er ation in Indiana, indi vidual chicken barn s may exceed the CERCLA re portable quantities fo r ammonia. Moreover, if emissions from all of the barns on the operation ar e aggregat ed , they might be more than 500 times t h e CERCLA reportable quantities.

To address the various c oncerns that we identifie d with the ongoing air emission mo nitoring study, we reco mmended that EPA (1) reassess the study to ensure that it will provide valid data which the agency can use t o develop air emissions protocols and (2) provide stakeholders with information on the additi onal data th at it plans to use to supplement the study. In ad dition, we recommended that EPA establish a strategy and timetable fo r developin g a process-b a sed model that will provide more sophisticated air emissio n s estimatin g methodologies for ani m al feeding operations. EPA responded that it h a s develop e d a quality a ssurance pla n for the study but did not address other issues that we identifi ed in our

19 The National A ssociation of SARA Title III Program Officials. The Superfund Amendments a nd Rea u thorization Act (SARA ) amended CE RCLA on October 17 , 1986
, after the first 6 years of t h e program.

P a g e 17 G A O- 08 -1 17 7TCon c en trated An i m al Feedi n g O p erati o n s report, such as the valid ity of the stud y’s sample and the omission of other sources that can co ntribute significa n tly to the ai r emission from animal feeding op erations. Furthermore, al though EPA concurred with the need to identify s upplemental data an d est a blish a strategy and timetable for developin g a process-based model an d described actions that it has underway, t h e agency provided no i n dication of when it will complete its plans to either identify t h e data it will use to augment the monitoring study or develop a process-based model.

Two federal court decisi ons— Wat e r k eeper All i a n ce Inc

. v

. EPA and Rapanos v

. United States —have affected EPA an d some states’ abilities to regulate CA FOs for wat e r pollutants.

In its 2005 W a terkeep er d ecision, the U.S. Court of Appeals fo r the Second Circuit set aside a key provision of EPA’s 2003 C A FO rule requiring ev ery CAFO to apply for a per m it. Under the 20 03 rule, large numb e rs of previously u n regulated CAFOs were required to apply for pe rmits and would have been subject to monito ring and repor ting require m ents imposed by the permit as well as periodic inspec tions. According to EPA, the 2003 rul e would have expand ed the number of regulated CAFOs from an estimated 12,5 00 to an estimated 1 5 ,30 0 , an i n c r ease of abo u t 22 percent, a n d would have provided EP A with more comprehensive information on the number and locati on of CAFOs, enabling t h e agency to more effectively lo cate a nd inspect t h ese operati ons nationwide.

However, in 2003, both environmental and agricul t ural groups challen ged EPA’s 2003 ru le. The cou r t agreed with the en vironmental groups’ arguments that, among other things, EPA’s 2003 rule did not adequat ely provide for public revi e w and comment on a CAFO’s nutrient management plan and ins t ructed EPA to revise th e rule ac cor d ingly. Th e court also agreed with the agricultu ral groups’ arguments that EPA had exceed ed its authority un der the Clea n Water Act by requiring CAFOs that were not discharging pollutants into federally regulated w a ter to appl y for permits 

# T

w o F e deral C ourt Decisions Have Affected EP A ’ s and Some States’ Ability to Regulate W a

ter Pollutants Discharged by CAFOs

W a terk eeper Allia n ce Inc

. v

. EP A ( W a terkeep er )

P a g e 18 G A O- 08 -1 17 7TCon c en trated An i m al Feedi n g O p erati o n s or demonstrate that th ey had no pot en tial to disc harge and th erefore set aside the rul e ’s permitting requirem ents for those CAFOs that did not discharge.

The Waterke e per decision, in effe ct, r e turned EPA’s permitting program to one in which CAFO operators are not required t o apply for a NPDES permit unless they disch a rge, or pro pose discharging, into f e derally regulated w a ters. As a result, EPA must identify and prov e that an operation has discharged or is discha rging pollutants in order to require the operator to apply for a permit. To help identify unpermitted discharges from CAF Os, EPA officials told us that they h ave to rely on ot her methods that are not necessarily all-inclusive, su ch as citiz e ns’ complai n ts, drive-by observation s , aerial flyo vers, and sta t e water quality assessments that identify wat e r bodies impaired by po llutants associated with CAFOs. According t o EPA officials, these methods have helped the agency identi fy some CAFOs that may be dischargin g as well as t a rgeting ins p ections to such CAFOs.

As a result of the Waterkeepe r decision, EPA proposed a newrule in June 2006 requiri n g that (1) o n ly CAFO opera tors that discharge, or propose to discharge, apply for a permit, (2) permitting authorities review CAFO nutrient management pl ans and inco rporate the t e rms of these plans into the permits, and (3) per m itting authorities provide the publi c with an opportunity to review an d comment on the nutri ent management plans. According t o EPA officials, the final rule is currently being re viewed by th e Office of Management a nd Budget, b u t at the time we issued our report, these official s were unce r tain when this review would be com p leted and the final rule issued.

State water pollution co ntrol official s have ex pre ssed some concerns that EPA’s new 2006 rule will place a gre a t er administrative burde n on states than the 2 0 0 3 rule would have. In an August 2006 letter to EPA, the Association of State and Interstate Wa ter Pollution Control Administrator s noted that t h e “reactive” enforcem ent that EPA will now follow will require per m itting authorities to si gnificantly in crease their enforcement efforts to ac hieve th e le v e l of envi ronmental bene fit that would have been provided by the 20 03 rul e . These offi cials belie ve that requiri n g EPA and the states to identify CAFOs that actu a lly discharg e pollutants into federally regulated water bodies w ill consume more resources than requiring all CAFOs to apply for a per m it.

Moreover, al though the Waterk eepe r decision has affected E P A’s ability t o regulate CA FOs’ water pollutant disc harges, state officials we contacted

P a g e 19 G A O- 08 -1 17 7TCon c en trated An i m al Feedi n g O p erati o n s indicated that this decisi on has not had the same impact on their ability to regulate th e s e operation s. As table 1 shows, the impacts of the Waterk eepe r decision ha ve rang ed from having li ttle impact o n state regulation t o impairing state CAFO programs.

**T a**  **b l**  **e 1: State O fficials’ Views o**  **f th**  **e Im p**  **act o f**  **th e**  **W a**  **terkeep e**  **r Decisi**  **o n**  **on Th**  **eir CAFO Pr**  **ogr a**  **m s** 

**Imp act o**  **f W**  **a terk**  **eep er**  **Nu mb**  **er o f**  **states rep o**  **r tin**  **g imp**  **act**
W a terkeep er h ad little or n o i m pact **16**
Reduc ed the n u mber of CAF O s with permits **15** Impaired state program **10**
W aiting for EP A to issue revis ed rul e **9** Prompted state legisl a ture to r equir e permits for CAFOs **1**

Sour ce: GAO an al ysi s of st a t e officials’ resp o n ses

Although th e Rapanos c a se arose in the context of a differen t permit program, the scope of E P A’s pollutant discharge program originates in th e same Clean Water Act definition that was at issue in the case

. As a result, the decision has complicated the age ncy’s enforc ement of CAFO regulations. According t o EPA enforcement officials, the agency will now be less likel y to seek enf o rcement ag ainst a CAFO that it beli eves is discharging pollutants into a water b ody because it may be more difficult to prove that the water body is feder a lly regul a ted. According to EPA officials, as a result of th e Rapanos decision, EPA must spend more resources developin g an enforcemen t case be cau se the ag enc y must gather proof that the CA FO has not only illegally discharged pollutants, but that those pollutants have entere d federally regulated waters. The difficulties EPA has experienced we re highlighte d in a March 4, 2 008, memorandu m in which EPA’s As sist an t Administrator for Enforcement and Compliance Assurance stated th a t the Rapan os decision and nation al guidance issued by EPA to ensure “n ationwide consisten cy, reliability, and predictabilit y in their administration of the statut e” in light of the Supreme Court’s decision has resulted in sign ificant ad ver se impacts to the cle a n water enforcement program. According to the m e morandum, the Rapano s decision and guidanc e ne gativel y affe cted approxi mately 500 e n forcement cases, inclu d ing as many as 18 7 cas es involving NPDES permits. 

## Rapanos v

. United States ( Rapanos )

P a g e 20 G A O- 08 -1 17 7TCon c en trated An i m al Feedi n g O p erati o n s In conclusio n , Mr. Chairman, EPA has regulated CAFOs unde r the Clean Water Act fo r more than 30 y ears, an d during this time it has a m assed a significant b ody of knowledge about the pollutan t s discharged by animal feeding op erations and t h e potential impacts of these pollutants on human health and t h e environment. Neverth eless, EPA still lacks co mprehensive and reliabl e data on th e number, location, and si ze of the op erations that have b een is sued permits and the am ounts of discharges they release. As a result, EPA has neither t h e informati on it needs to assess the extent to which CAF Os may be contributing to water pollution, nor th e information it needs to e n sure compliance with t h e Clean W a ter Act. More recentl y, EPA has also begun to address concerns about air pollutants that are emitted by animal feedin g operations . The nation wide air emissions monitoring study, alon g with EPA’s plans to develop air emi ssions estimating protocols, are important steps in provi d ing much n eeded information on the amou nt of air poll u tants emitted from animal feeding operations. However, qu estions about the sufficiency of the sites selected for the air e m issions study and th e q u antity and quality of t h e data b e ing collected co uld undermine EPA’s efforts to devel op air emissions protocols by 201 1 as pla nned. A pro cess-based model that more accura tely predicts the total air emissions fro m an animal feeding operation is still needed. Whi l e EPA has indicated it i n tends to develop such a model, it has not yet esta blished a strategy and ti meline for this activity.

Mr. Chairman, this concl udes my prepared testimony. I would be happ y to respond to questions that you or Members of the Subcommittee may have.

Contact poi nts for our Offices of Congressional Relations and Public Affairs may be found on the last page of this testimony. For further information about this testimony, pl ease contact Anu Mittal, Director, Natural Resources and Envi ronment (202) 51 2-3 841 or mittala@gao.gov

. Key contributors to this testimony were Sherry McDonald, Assistant Director; Kevin Bray, Paul Hobart; Holly Sasso; Carol Herrnstadt Shulman; James Turkett; and Greg Wilmoth. 

# Contact and Staff Acknowledgments

P a g e 21 G A O- 08 -1 17 7T (361013)T his is a work of the U.S. government a nd is not subject to copyrig h t prote c tion in the United States. T he pub lish ed prod uct may be r epro duce d a nd distri buted i n its entirety without further permissi on fro m G A O

. Howe ver, becaus e this work may c ontai n copyrig h ted im ages or oth e r material, p e rmi ssion from the copyrig h t hol de r may be

necess a ry if you wish to repr o duce this mate rial sep a rate ly.

# GAO’ s Mission The Govern m ent Accountability Offi ce, the audit , evalu a tion, and investigative arm of Congress, exists to support Congress in meeting its constitutional responsibilities and to help improve the perfor mance and account abili ty of the fed e ral government for the American people. GAO examines the use of pub lic funds; eval uates fed e ral programs and policies; and provides analyses, recommendations, and ot her assistance to hel p Congress make informed oversight, policy, and f unding decisions. GAO’s commitment to good go vernment is reflected in it s core values of account abili ty, integrity, and reliabilit y.

The fastest a nd easiest way to obtai n copies of GAO documents at no cos t is through GAO’s Web site ( ww w.gao.gov ). Each weekday, G A O posts newly releas ed reports, testimony, and correspondence on its Web site. To have GAO e- mail you a li st of newly posted products every af ternoon, go to ww w.gao.gov and select “E-mail Updates.”

The first copy of ea ch pri n ted report i s free. Additional copi es are $2 each

. A check or money order should be made out to the Superint endent of Documents. GAO also accepts VISA a nd Mastercard. Orders for 100 or more copies mailed to a single addre ss are discounted 25 per cent. Orders should be sent to:
U.S. Government Accountability Offi ce 441 G Street NW, Room LM Washington, DC 20548
To order by Phone: Voice: (202) 512-6000 TDD: (202) 51 2-25 37 Fax: (202) 51 2-60 61

Contact:

Web site: www.gao.gov/ f raudnet/fraudnet.htm E-mail: fraudnet@gao.gov Automated answering system: ( 800) 424- 545 4 or (202) 51 2-74 70

Ralph Dawn, Managing Director, da wnr@gao.go v , (202) 512- 4400 U.S. Government Accountability Offi ce, 441 G Str eet NW, Roo m 7125 Washington, DC 20548

Chuck Youn g, Managing Director, yo ungc1@gao. g ov , (202) 5 12-48 00 U.S. Government Accountability Offi ce, 441 G Str eet NW, Roo m 7149 Washington, DC 20548 

# Obtaini n g C opi es of GAO R e ports and Te s t i m o n y

Order by Mail or Phone



# To R e p o r t F r a u d , W a ste, and Abus e in Federal Programs
Congressional Relations

Public Affairs

**PRINTED ON RECYCLED PAPER**