Concentrated Animal Feeding Operations: EPA Needs More Information and a Clearly Defined Strategy to Protect Air and Water Quality
Published: 2008-09-24T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Concentrated animal feeding operations (CAFO) are large livestock and poultry operations that raise animals in a confined situation. CAFOs may improve the efficiency of animal production, but the large amounts of manure they produce can, if improperly managed, degrade air and water quality. The Environmental Protection Agency (EPA) regulates CAFOs and requires CAFOs that discharge certain pollutants to obtain a permit. This testimony summarizes the findings of a September 4, 2008 GAO report (GAO-08-944) on (1) trends in CAFOs, (2) amounts of waste they generate, (3) findings of key research on CAFOs' health and environmental impacts, (4) progress made in developing CAFO air emissions protocols, and (5) the effect of recent court decisions on EPA's regulation of CAFO water pollutants. GAO analyzed U.S. Department of Agriculture's (USDA) data from 1982 through 2002 for large farms as a proxy for CAFOs; reviewed studies, EPA documents, laws, and regulations, and obtained the views of federal and state officials.
section_title: What GAO Found
paragraphs: Because no federal agency collects accurate and consistent data on the number, size, and location of CAFOs, GAO could not determine the exact trends for these operations. However, using USDA data for large farms that raise animals as a proxy for CAFOs, it appears that the number of these operations increased by about 230 percent, from about 3,600 in 1982 to almost 12,000 in 2002. The number of animals raised on large farms also increased during this 20-year period, but the rate of increase varied by animal type. Moreover, EPA does not have comprehensive, accurate data on the number of permitted CAFOs nationwide. As a result, the agency does not have the information that it needs to effectively regulate these CAFOs. EPA is currently working with the states to establish a new national data base. The amount of manure generated by large farms that raise animals depends on the type and number of animals raised, but these operations can produce from 2,800 tons to 1.6 million tons of manure a year. Some large farms that raise animals can generate more manure annually than the sanitary waste produced by some U.S. cities. Manure can be used beneficially to fertilize crops; but according to some agricultural experts, when animal feeding operations are clustered in certain geographic areas, the manure they produce may not be effectively used as fertilizer on adjacent cropland and could increase the potential of pollutants reaching nearby waters and degrading water quality. Since 2002, at least 68 government-sponsored or peer-reviewed studies have been completed that examined air and water quality issues associated with animal feeding operations and 15 have directly linked air and water pollutants from animal waste to specific health or environmental impacts. EPA has not yet assessed the extent to which pollutants from animal feeding operations may be impairing human health and the environment because it lacks key data on the amount of pollutants being discharged by these operations. Considered a first step in developing air emission protocols for animal feeding operations, a 2-year nationwide air emission monitoring study, largely funded by the industry, was initiated in 2007. However, the study, as currently structured, may not provide the scientific and statistically valid data it was intended to provide and that EPA needs to develop these protocols. In addition, EPA has not yet established a strategy or timetable for developing a more sophisticated process-based model that considers the interaction and implications of all emission sources at an animal feeding operation. Two recent federal court decisions have affected EPA's ability to regulate water pollutants discharged by CAFOs. The 2005 Waterkeeper decision required EPA to abandon the approach that it had proposed for regulating CAFOs in 2003. Similarly, the Rapanos decision has complicated EPA's enforcement of CAFO discharges because EPA believes that it must now gather more evidence to establish which waters are subject to the Clean Water Act's permitting requirements.

section_title: Letter
paragraphs: We are pleased to be here today to discuss our recently issued report on  concentrated animal feeding operations (CAFO). As you know, CAFOs  are large animal livestock and poultry operations that raise animals in  confined situations. While CAFOs have improved the efficiency of the  animal production industry, they have also raised environmental and  health concerns because the large amounts of manure they can produce, if  not properly managed, may degrade air and water quality. Animal manure  can be, and frequently is, used beneficially on farms to fertilize crops and  restore nutrients to soil. However, if manure and wastewater from animal  feeding operations are improperly managed, pollutants such as nitrogen,  phosphorus, bacteria, and organic matter could enter nearby water bodies  and could potentially impair human health and damage the environment.  Improperly managed manure can also result in emissions to the air of  particles and gases, such as ammonia and hydrogen sulfide, which could  also result in potentially harmful environmental and human health effects.
The Environmental Protection Agency (EPA) has the authority under  several federal laws to regulate water and air pollutants from CAFOs. EPA  has specific authority under the Clean Water Act to regulate CAFOs like  any other industry if they discharge into federally regulated waters. Such  CAFOs must obtain permits, from EPA or the states that EPA has  authorized to administer this act, that stipulate how they will manage their  discharges. In contrast, three other laws—the Clean Air Act, the  Comprehensive Environmental Response, Compensation, and Liability Act  of 1980 (CERLCA), and the Emergency Planning and Community Right-to- Know Act of 1986 (EPCRA)—while not specifically citing CAFOs as  regulated entities, provide EPA with certain authorities related to air  emissions from these operations.
Our testimony today summarizes the following five issues that we  examined in our recent report: (1) trends in CAFOs; (2) the amount of  waste they generate; (3) the findings of recent key academic, industry, and  government research on the impacts of air and water pollutants from  CAFOs on human health and the environment, and the extent to which  EPA has assessed the nature and severity of such impacts; (4) the progress  that EPA and the states have made in regulating and controlling the  emissions of, and in developing protocols to measure, air pollutants from  CAFOs that could affect air quality; and (5) the extent to which recent  court decisions have affected EPA and the states’ ability to regulate CAFO  discharges that impair water quality. In conducting this work, we reviewed  laws and regulations, federal and state agencies’ documents, and met with  officials from EPA and the U.S. Department of Agriculture (USDA),  industry, citizen and environmental groups, and academia. We also spoke  with state officials and visited CAFOs in eight states. In addition, we  analyzed USDA data for large farms as a proxy for CAFOs, conducted  library and Internet searches to identify key studies completed since 2002  on air and water pollutants from animal waste, and contacted state  officials in all 50 states to determine which states had developed air  emission regulations applicable to CAFOs and how recent court decisions  had affected their ability to regulate CAFO discharges that impair water  quality. We conducted our work between July 2007 and August 2008 in  accordance with generally government auditing standards. These  standards require that we plan and perform the audit to obtain sufficient,  appropriate evidence to provide a reasonable basis for our findings and  conclusions based on our audit objectives. We believe the evidence  obtained provides a reasonable basis for our findings and conclusions  based on our audit objectives.
In summary we found the following:    Determining the trends in the number of CAFOs over time is difficult  because no federal agency collects consistent, reliable data on CAFOs.  However, USDA data for large farms that raise animals can serve as a  proxy for estimating trends in the number and size of CAFOs. Using these  data, we found that the number of these operations appears to have  increased by about 230 percent from 1982 through 2002, from about 3,600  to almost 12,000. Moreover, the number of animals per farm increased, but  the increase varied by animal type, with hog farms showing the largest  increase at 37 percent. Although EPA has been compiling data from its  regional offices in an effort to develop information on the number of  permitted CAFOs nationwide, we found that the data are inconsistent and  inaccurate and do not provide necessary information on the number and  characteristics of permitted CAFOs. We recommended that the agency  develop a complete and accurate inventory of permitted CAFOs and  incorporate appropriate internal controls to ensure the quality of the data.  EPA concurred with this recommendation and stated that it is currently  working with its regional offices and the states to develop and implement  a national data system to collect and record facility-specific information  on permitted CAFOs.
While the amount of manure generated by large farms 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 order to provide a perspective on how much manure these  operations produce, we compared the manure from some large farms that  raise animals with sanitary waste produced by the populations of some  U.S. cities. For example, a very large hog farm raising as many as 800,000  hogs—of which there are at least two in the United States—could generate  more than 1.6 million tons of manure annually, or more than one-and-a-  half times the sanitary wastes produced by the about 1.5 million residents  of Philadelphia, Pennsylvania. While we recognize that manure can be a  valuable resource used as fertilizer, some agricultural experts and  government officials have raised concerns about the amount of manure  produced by large feeding operations located within a specific geographic  area. When such clustering of large operations occurs, the manure they  produce may not be effectively used as fertilizer on adjacent cropland and  could increase the potential for pollutants to reach nearby waters and  degrade water quality.
At least 68 government-sponsored or peer-reviewed studies have been  completed on air and water pollutants from animal feeding operations  since 2002. Of these 68 studies, 15 directly linked air and water pollutants  from animal waste to specific health or environmental impacts, 7 found no  impacts on human health and the environment, and 12 identified indirect  linkages. Thirty-four other studies focused on measuring the amount of  water or air pollutants from animal feeding operations that are known to  cause harm to humans or the environment. However, EPA has not yet  assessed the extent to which air and water pollutants from CAFOs may be  impairing human health and the environment because it lacks key  information on the amount of pollutants discharged by these operations.
The ongoing national air emissions monitoring study is considered a first  step in developing protocols for measuring and quantifying air pollutants  emitted by animal feeding operations. While EPA believes that this 2-year  study, initiated in 2007, will provide a scientific basis for estimating air  emissions from animal feeding operations, concerns have been raised that  the study, as currently structured, may not provide EPA with the scientific  and statistically valid data that it needs to develop these protocols. For  example, the study does not include all of the combinations of animal  types and geographic regional pairings recommended by EPA’s expert  panel that would be representative of the animal feeding operations in the  United States. Furthermore, EPA has not yet established a strategy or  timetable for developing a more sophisticated process-based model that  the National Academy of Sciences believed is needed to ensure that the  interaction and implications of all emission sources at an animal feeding  operation are accounted for. Finally, some EPA actions have made it  unclear at this time how the agency intends to regulate air emissions from  animal feeding operations once the current air emissions study is  complete. For instance, EPA has not decided if it will aggregate the  emissions occurring on an animal feeding operation or if the emissions  from barns and manure storage areas will be considered separately when  determining if an operation has exceeded air emissions thresholds.  Moreover, in December 2007, EPA proposed a rule to exempt all releases  of hazardous substances, such as ammonia and hydrogen sulfide, to the air  from manure on farms, including animal feeding operations, from  reporting requirements of certain federal laws.  We recommended that  EPA take a number of actions to address the concerns that we identified  with the ongoing air emissions study. EPA partially agreed with our  recommendations and described a number of actions that it has underway  to address them.
Two recent federal court decisions have affected EPA’s ability to regulate  water pollutants discharged by CAFOs. First, in the 2005 Waterkeeper  Alliance Inc. v. EPA decision, the U.S. Court of Appeals for the Second  Circuit set aside a key provision of a CAFO rule EPA had issued in 2003.  This rule would have provided EPA with comprehensive information on  the universe of CAFOs and their operations and would have subjected a  large number of previously unregulated CAFOs to monitoring and  reporting requirements as well as periodic inspections. However, the court  concluded that EPA did not have the authority under the Clean Water Act  to require CAFOs that were not discharging, or proposing to discharge,  pollutants into federally regulated waters to apply for permits. The  decision has forced EPA to revise its 2003 rule for permitting CAFOs and  return to its approach in which CAFO operators determine for themselves  whether they need to apply for a federal permit. To help identify  unpermitted discharges, EPA must rely on other means to acquire  information about CAFOs that are illegally discharging pollutants, such as  following up on citizen reports of potential pollutants. Second, the 2006  Supreme Court decision—Rapanos v. United States—has complicated  EPA’s enforcement of CAFO discharges. This decision has made  determination of Clean Water Act jurisdiction over certain types of waters  more complex and, according to EPA, has required the agency to gather  significantly more evidence to establish which waters are considered  federal waters and subject to the Clean Water Act’s permitting  requirements. EPA enforcement officials told us that since the Rapanos  decision the agency may be less likely to take enforcement actions since it  may be more difficult to prove that a water body is federally regulated.
subsections: section_title: Background
paragraphs: The livestock and poultry industry is vital to our nation’s economy,  supplying meat, milk, eggs, and other animal products. However, the past  several decades have seen substantial changes in America’s animal  production industries. As a result of domestic and export market forces,  technological changes, and industry adaptations, food animal production  that was integrated with crop production has given way to fewer, larger  farms that raise animals in confined situations. These large-scale animal  production facilities are generally referred to as animal feeding operations.  CAFOs are a subset of animal feeding operations and generally operate on  a much larger scale.
Most agricultural activities are considered to be nonpoint sources of  pollution because the pollution that occurs is in conjunction with soil  erosion caused by water and surface runoff of rain or snowmelt from  diffuse areas such as farms or rangeland. However, the Clean Water Act  specifically designates point sources of pollution to include CAFOs, which  means that under the act, CAFOs that discharge into federally regulated  waters are required to obtain a National Pollutant Discharge Elimination  System (NPDES) permit. These permits generally allow a point source to  discharge specified pollutants into federally regulated waters under  specific limits and conditions. EPA, or the states that EPA has authorized  to administer the Clean Water Act, are responsible for issuing these  permits.
In accordance with the Clean Water Act’s designation 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 considered a CAFO a facility  must first be considered an animal feeding operation. Animal feeding  operations are agricultural operations where the following conditions are  met:    animals are fed or maintained in a confined situation for a total of 45 days  or more in any 12-month period, and   crops, vegetation, forage growth, or post harvest residues are not  sustained during normal growing seasons over any portion of the lot.
If an animal feeding operation met EPA’s criteria and met or exceed  minimum size thresholds based on the type of animal being raised, EPA  considered the operation to be a CAFO. For example, an animal feeding  operation would be considered a CAFO if it raised 1,000 or more beef  cattle, 2,500 pigs weighing more than 55 pounds, or 125,000 chickens. In  addition, EPA can designate an animal feeding operation of any size as a  CAFO if it meets certain criteria, such as being a significant contributor of  pollutants to federally regulated waters.
In January 2003, we reported that although EPA believed that many animal  feeding operations degrade water quality, it had placed little emphasis on  its permit program and that exemptions in its regulations allowed as many  as 60 percent of the largest operations to avoid obtaining permits. In its  response to our 2003 report, EPA acknowledged that the CAFO program  was hampered by outdated regulations.  The agency subsequently revised  its permitting regulations for CAFOs to eliminate the exemptions that  allowed most animal feeding operations to avoid regulation. The revisions,  issued in February 2003, also known as the 2003 CAFO rule, resulted, in  part, from the settlement of a 1989 lawsuit by the Natural Resources  Defense Council and Public Citizen. These groups alleged that EPA had  failed to comply with the Clean Water Act. EPA’s 2003 CAFO Rule  included the following key provisions:    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 federally regulated waters.
Expanded CAFO definitions. All types of poultry operations, as well as all  stand-alone operations raising immature animals, were included in the  2003 CAFO Rule.
More stringent design standard for new facilities in the swine, poultry,  and veal categories. The 2003 rule established a no-discharge standard for  new facilities that could be met if they were designed, constructed, and  operated to contain the runoff from a 100-year, 24-hour storm event.
Best management practices. Operations were required to implement best  management practices for applying manure to cropland and for animal  production areas.
Nutrient management plans. CAFO operations were required to develop a  plan for managing the nutrient content of animal manure as well as the  wastewater resulting from CAFO operations, such as water used to flush  manure from barns.
Compliance schedule. The 2003 rule required newly defined CAFOs to  apply for permits by April 2006 and existing CAFOs to develop and  implement nutrient management plans by December 31, 2006.
According to EPA officials, the 2003 rule was expected to ultimately lead  to better water quality because the revised regulations would extend  coverage to more animal feeding operations that could potentially  discharge and contaminate water bodies and subject these operations to  periodic inspections.
Three laws provide EPA with certain authorities related to air emissions  from animal feeding operations, but, unlike the Clean Water Act, they do  not specifically cite CAFOs as regulated entities. The Clean Air Act  regulates any animal feeding operation, regardless of size, that exceeds  established air emission thresholds for certain pollutants. For example, in  certain specific situations, hydrogen sulfide, ammonia, or particulate  matter may be regulated. In addition, Section 103 of CERCLA and Section  304 of EPCRA require owners or operators of a facility to report to  federal, state, or local authorities when a “reportable quantity” of certain  hazardous substances, such as hydrogen sulfide or ammonia, is released  into the environment. Together, CERCLA’s and EPCRA’s reporting  requirements provide government authorities, emergency management  agencies, and citizens the ability to know about the source and magnitude  of hazardous releases.
EPA also works with USDA to address the impacts of animal feeding  operations on air and water quality and human health. In 1998, EPA  entered into a memorandum of understanding with USDA that calls for the  agencies to coordinate on air quality issues related to agriculture and  share information. In addition, in 1999, the two agencies issued a unified  national strategy aimed at having the owners and operators of animal  feeding operations take actions to minimize water pollution from  confinement facilities and land application of manure. To help minimize  water pollution from animal feeding operations and meet EPA’s regulatory  requirements, USDA, through its Natural Resources Conservation Service,  provides financial and technical service to CAFO operators in developing  and implementing nutrient management plans.
section_title: The Number of Large Farms Raising Animals Has Increased, but Specific Data on CAFOs Are Not Available
paragraphs: Because no federal agency collects accurate and consistent data on the  number, size, and location of CAFOs, it is difficult to determine precise  trends in CAFOs. According to USDA officials, the data USDA collects for  large farms raising animals can be used as a proxy for estimating trends in  CAFOs nationwide. Using these data, we determined the following:    Between 1982 and 2002, the number of large farms raising animals  increased from about 3,600 to almost 12,000, or by about 234 percent.  Growth rates varied dramatically by animal type. For instance, broiler  chickens farms showed the largest increase, almost 1,200 percent,  followed by hogs at more than 500 percent. In comparison, beef cattle  farms grew by only 2 percent and layer chicken farms actually declined by  2 percent.
The size of these farms also increased between 1982 and 2002. The layer  and hog sectors had the largest increases in the median number of animals  raised per farm, both growing by 37 percent between 1982 and 2002. In  contrast, large farms that raised either broilers or turkeys only increased  slightly in size, by 3 and 1 percent, respectively, from 1982 to 2002.
The number of animals raised on large farms increased from over 257  million in 1982 to over 890 million in 2002—an increase of 246 percent.  Moreover, most of the beef cattle, hogs, and layers raised in the United  States in 2002 were raised on large farms. Specifically, 77 percent of beef  cattle and 72 percent of both hogs and layers were raised on large farms.
We also found that EPA does not systematically collect nationwide data to  determine the number, size, and location of CAFOs that have been issued  permits nationwide. Instead, since 2003, the agency has compiled quarterly  estimates obtained from its regional offices or the states on the number  and types of CAFOs that have been issued permits. However, these data  are inconsistent and inaccurate and therefore do not provide EPA with the  reliable data that it needs to identify permitted CAFOs nationwide.  Without a systematic and coordinated process for collecting and  maintaining accurate and complete information on the number, size, and  location of CAFOs nationwide, EPA does not have the information it needs  to effectively monitor and regulate these operations. In our report, we  recommended that EPA develop a national inventory of permitted CAFOs  and incorporate appropriate internal controls to ensure the quality of the  data it collects. In response to our recommendation, EPA stated that it is  currently working with its regional offices and states to develop and  implement a new national data system to collect and record facility- specific information on permitted CAFOs.
section_title: Large Farms That Raise Animals Can Produce Thousands of Tons of Manure Each Year, and Regional Clustering of Farms Can Exacerbate Manure Management Problems
paragraphs: The amount of manure a large farm that raises animals can generate  primarily depends on the types and numbers of animals raised on that  farm, but can range from over 2,800 tons to more than 1.6 million tons a  year. To further put this in perspective, the amount of manure produced  by large farms that raise animals can exceed the amount of sanitary waste  produced by some large U.S. cities. For example:    A dairy farm meeting EPA’s large CAFO threshold of 700 dairy cows can  create about 17,800 tons of manure annually, which is more than the about  16,000 tons of sanitary waste generated per year by the almost 24,000  residents of Lake Tahoe, California.
A large farm with 800,000 hogs could produce over 1.6 million tons of  manure per year, which is one and a half times more than the annual  sanitary waste produced by the city of Philadelphia, Pennsylvania—about  1 million tons—with a population of almost 1.5 million.
Although manure is considered a valuable commodity, especially in states  with large amounts of farmland, like Iowa, where it is used as fertilizer for  field crops, in some parts of the country, large farms that raise animals can  be clustered in a few contiguous counties. Because this collocation can  result in the separation of animal from crop production, there is less  cropland on which manure can be applied as a fertilizer. A USDA report  first identified this concern as early as 2000, when it found that between  1982 and 1997, as livestock production became more spatially  concentrated, when manure was applied to cropland, crops were not fully  using the nutrients in manure, and this could result in ground and surface  water pollution from the excess nutrients. According to the report, the  number of counties where farms produced more manure nutrients,  primarily nitrogen and phosphorus, than could be applied to the land  without accumulating nutrients in the soil increased. As a result, the  potential for runoff and leaching of these nutrients from the soil was high,  and water quality could be impaired. Agricultural experts and government  officials who we spoke to during our review echoed the findings of  USDA’s report and provided several examples of more recent clustering  trends that have resulted in degraded water quality. For example,  according to North Carolina agricultural experts, excessive manure  production from CAFOs in five contiguous counties has contributed to the  contamination of some of the surface and well water in these counties and  the surrounding areas.
USDA officials acknowledge that regional clustering of large animal  feeding operations has occurred, but they told us that they believe  producers’ implementation of nutrient management plans and use of new  technologies, such as calibrated manure spreaders and improved animal  feeds, have resulted in animal feeding operations more effectively using  the manure being generated and reducing the likelihood that pollutants  from manure are entering ground and surface water. However, USDA  could not provide us with information on the extent to which these  techniques are being used or their effectiveness in reducing water  pollution from animal waste.
section_title: Studies Have Identified Impacts of Pollutants from Animal Waste, but EPA Has Not Assessed the Extent of Such Impacts
paragraphs: Since 2002, at least 68 government-sponsored or peer-reviewed studies  have been completed on air and water pollutants from animal feeding  operations. Of these 68 studies,    15 directly linked pollutants from animal waste generated by animal  feeding operations to specific health or environmental impacts. Eight of  these 15 studies were water quality studies and 7 were air emissions  studies. Academic experts and industry and EPA officials told us that only  a few studies directly link CAFOs with health or environmental impacts  because the same pollutants that CAFOs discharge also often come from  other sources, including smaller livestock operations; row crops using  commercial fertilizers; and wastes from humans, municipalities, or  wildlife, making it difficult to distinguish the actual source of the pollution.    7 found no impacts on human health or the environment from pollutants  emitted by CAFOs. Four of these 7 studies were water quality studies and  3 were air emissions studies. According to EPA and academic experts we  spoke with, the concentrations of air and water pollutants discharged by  animal feeding operations can vary for numerous reasons, including the  type of animal being raised, feed being used and the manure management  system being employed, as well as the climate and time of day when the  emissions occur.   12 made indirect linkages between air and water pollutants and health  and environmental impacts. While these studies found that animal  feeding operations were the likely cause of human health or  environmental impacts occurring in areas near the operations, they could  not conclusively link waste from animal feeding operations to the impacts,  often because other sources of pollutants could also be contributing.    34 of the studies focused on measuring the amounts of water or air  pollutants discharged by animal feeding operations that are known to  cause human health or environmental impacts at certain  concentrations. Of the 34 studies, 19 focused on water pollutants and  another 15 focused on measuring air emissions from animal feeding  operations.
While EPA recognizes the potential impacts that water and air pollutants  from animal feeding operations can have on human health and the  environment, it lacks the data necessary to assess how widespread the  impacts are and has limited plans to collect the data that it needs. For  example, with regard to water quality, EPA officials acknowledged that  the potential human health and environmental impacts of some CAFO  water pollutants, such as nitrogen, phosphorus, and pathogens, are well  known. However, they also stated that EPA does not have data on the  number and location of CAFOs nationwide and the amount of discharges  from these operations. Without this information and data on how pollutant  concentrations vary by type of operation, it is difficult to estimate the  actual discharges occurring and to assess the extent to which CAFOs may  be contributing to water pollution. Although EPA has recently taken some  steps that may help provide some of these data, agency officials told us  that EPA currently has no plans to conduct a national study to collect  information on CAFO water pollutant discharges because of a lack of  resources.
Similarly, with regard to air quality, more recently, EPA has recognized  concerns about the possible health and environmental impacts from air  emissions produced by animal feeding operations. In this regard,  prompted in part by public concern, EPA and USDA commissioned a 2003  study by the National Academy of Sciences (NAS) to evaluate the  scientific information needed to support the regulation of air emissions  from animal feeding operations. The NAS report identified several air  pollutants from animal feeding operations, such as ammonia and hydrogen  sulfide, that can impair human health. The NAS report also concluded that  in order to determine the human health and environmental effects of air  emissions from animal feeding operations, EPA and USDA would first  need to obtain accurate estimates of emissions and their concentrations  from animal feeding operations with varying characteristics, such as  animal type, animal feed, manure management techniques, and climate. In  2007, the 2-year National Air Emissions Monitoring Study was initiated to  collect data on air emissions from animal feeding operations as part of a  series of consent agreements that EPA entered into with individual  CAFOs. This study, funded by industry and approved by EPA, is intended  to help the agency determine how to measure and quantify air emissions  from animal feeding operations. The data collected will in turn be used to  estimate air emissions from animal feeding operations with varying  characteristics. According to agency officials, until EPA can determine the  actual level of air pollutants being emitted by CAFOs, it will be unable to  assess the extent to which these emissions are affecting human health and  the environment.
section_title: It Is Unclear if EPA’s Efforts to Develop Air Emissions Protocols for Animal Feeding Operations Will Be Effective and Whether EPA Intends to Regulate These Emissions in the Future
paragraphs: The National Air Emissions Monitoring Study is intended to provide a  scientific basis for estimating air emissions from animal feeding  operations and to help EPA develop protocols that will allow it to  determine which operations do not comply with applicable federal laws.  According to EPA, although it has the authority to require animal feeding  operations to monitor their emissions and come into compliance with the  Clean Air Act on a case-by-case basis, this approach has proven to be time  and labor intensive. As an alternative to the case-by-case approach, in  January 2005, EPA offered animal feeding operations an opportunity to  sign a voluntary consent agreement and final order, known as the Air  Compliance Agreement. Almost 13,900 animal feeding operations were  approved for participation in the agreement, representing the egg, broiler  chicken, dairy, and swine industries. Some turkey operations volunteered  but were not approved because there were too few operations to fund a  monitoring site, and the beef cattle industry chose not to participate. In  return for participating in this agreement and meeting certain  requirements, EPA agreed not to sue participating animal feeding  operations for certain past violations or violations occurring during the  National Air Emissions Monitoring Study.
Although EPA told us that the National Air Emissions Monitoring Study is  the first step in developing comprehensive protocols for quantifying air  emissions from animal feeding operations, we found that the study may  not provide EPA with the data that it needs for the following three  reasons.
The monitoring study may not be representative of the vast majority of  participating animal feeding operations and will not account for  differences in climatic conditions, manure-handling methods, and density  of operations because it does not include the 16 combinations of animal  types and geographic regional pairings recommended by EPA’s expert  panel. EPA approved only 12 of the 16 recommended combinations,  excluding southeastern broiler, eastern layer, midwestern turkey, and  southern dairy operations.
Selection of monitoring sites has been a concern since the selection plan  was announced in 2005. At that time, many agricultural experts,  environmental groups, and industry and state officials disagreed with the  site selection methodology. They stated that the study did not include a  sufficient number of monitoring sites to establish a statistically valid  sample. Without such a sample, we believe that EPA will not be able to  accurately estimate emissions for all types of operations. More recently, in  June 2008, the state of Utah reached an agreement with EPA to separately  study animal feeding operations in the state because of the state’s  continuing concerns that the National Air Emissions Monitoring Study will  not collect information on emissions from operations in Rocky Mountain  states and therefore may not be meaningful for those operations that raise  animals in arid areas.
Agricultural experts also have raised concerns that the National Air  Emissions Monitoring Study does not include other sources that can  contribute significantly to emissions from animal feeding operations. For  example, the monitoring study will not capture data on ammonia  emissions from feedlots and manure applied to fields. According to these  experts, feedlots and manure on fields, as well as other excluded sources  account for approximately half of the total ammonia emissions emitted by  animal feeding operations.
Furthermore, USDA’s Agriculture Air Quality Task Force has recently  raised concerns about the quantity and quality of the data being collected  during the early phases of the study and how EPA will eventually use the  information. In particular, the task force expressed concern that the  technologies used to collect emissions data were not functioning reliably.  At its May 2008 task force meeting, the members requested that the  Secretary of Agriculture ask EPA to review the first 6 months of the  study’s data to determine if the study needs to be revised in order to yield  more useful information.
EPA acknowledged that emissions data should be collected for every type  of animal feeding operation and practice, but EPA officials stated that  such an extensive study is impractical. Furthermore, they stated that the  selected sites provide a reasonable representation of the various animal  sectors. EPA has also indicated that it plans to use other relevant  information to supplement the study data and has identified some  potential additional data sources. However, according to agricultural  experts, until EPA identifies all the supplemental data that it plans to use,  it is not clear if these data, together with the emissions study data, will  enable EPA to develop comprehensive air emissions protocols.
EPA has also indicated that completing the National Air Emissions  Monitoring Study is only the first part of a multiyear effort to develop a  process-based model for predicting overall emissions from animal feeding  operations. A process-based model would capture emissions data from all  sources and use these data to assess the interaction of all sources and the  impact that different manure management techniques have on air  emissions for the entire operation. For example, technologies are available  to decrease emissions from manure lagoons by, among other things,  covering the lagoon to capture the ammonia. However, if an operation  spreads the lagoon liquid as fertilizer for crops, ammonia emissions could  increase on the field. According to NAS, a process-based model is needed  to provide scientifically sound estimates of air emissions from animal  feeding operations that can be used to develop management and  regulatory programs. Although EPA plans to develop a process-based  model after 2011, it has not yet established a timetable for completing this  model and, therefore, it is uncertain when EPA will have more  sophisticated approaches that will more accurately estimate emissions  from animal feeding operations.
Moreover, two recent EPA decisions suggest that the agency has not yet  determined how it intends to regulate air emissions from animal feeding  operations. Specifically:  In December 2007, EPA proposed exempting releases to the air of  hazardous substances from manure at farms that meet or exceed the  reportable quantities from both CERCLA and EPCRA notification  requirements. According to EPA, this decision was in part a response to  language in congressional committee reports related to EPA’s  appropriations legislation for 2005 and 2006 that directed the agency to  promptly and expeditiously provide clarification on the application of  these laws to poultry, livestock, and dairy operations. In addition, the  agency received a petition from the several poultry industry organizations  seeking an exemption from the CERCLA and EPCRA reporting  requirements for ammonia emissions from poultry operations on the  grounds that ammonia emissions from poultry operations pose little or no  risk to public health, and emergency response is inappropriate. In  proposing the exemption, EPA noted that the agency would not respond to  releases from animal wastes under CERCLA or EPCRA nor would it  expect state and local governments to respond to such releases because  the source and nature of these releases are such that emergency response  is unnecessary, impractical, and unlikely. It also noted that it had received  26 comment letters from state and local emergency response agencies  supporting the exemption for ammonia from poultry operations. However,  during the public comment period ending on March 27, 2008, a national  association representing state and local emergency responders with  EPCRA responsibilities questioned whether EPA had the authority to  exempt these operations until it had data from its monitoring study to  demonstrate actual levels of emissions from animal feeding operations.  This national association further commented that EPA should withdraw  the proposal because it denied responders and the public the information  necessary to protect themselves from dangerous releases. Furthermore,  the proposal also seems to be a departure from EPA’s past regulatory  enforcement actions that have included charges of failing to comply with  the release reporting requirements when bringing claims against  producers for violating several environmental laws and is also contrary to  one of the stated goals of the Air Compliance Agreement. We believe that  the timing of this proposed exemption, 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 decisions  on how certain federal air regulations apply to animal feeding operations  until after 2011, when the National Air Emissions Monitoring Study is  completed. For example, according to EPA, the agency will not issue  guidance for several more years defining the scope of the term “source” as  it relates to animal agriculture and farm activities. According to EPA, it has  not yet decided if it will aggregate the emissions occurring on an animal  feeding operation as one source or if the emissions from the barns,  lagoons, feed storage, and fields will each be considered as a separate  source when determining if an operation has exceeded air emissions’  reportable quantities. Depending on the approach EPA takes, how  emissions are calculated could differ significantly. For example, according  to preliminary data EPA has received from an egg-laying operation in  Indiana, individual chicken barns may exceed the CERCLA reportable  quantities for ammonia. Moreover, if emissions from all of the barns on the  operation are aggregated, they might be more than 500 times the CERCLA  reportable quantities.
To address the various concerns that we identified with the ongoing air  emission monitoring study, we recommended that EPA (1) reassess the  study to ensure that it will provide valid data which the agency can use to  develop air emissions protocols and (2) provide stakeholders with  information on the additional data that it plans to use to supplement the  study. In addition, we recommended that EPA establish a strategy and  timetable for developing a process-based model that will provide more  sophisticated air emissions estimating methodologies for animal feeding  operations. EPA responded that it has developed a quality assurance plan  for the study but did not address other issues that we identified in our  report, such as the validity of the study’s sample and the omission of other  sources that can contribute significantly to the air emission from animal  feeding operations. Furthermore, although EPA concurred with the need  to identify supplemental data and establish a strategy and timetable for  developing a process-based model and described actions that it has  underway, the agency provided no indication of when it will complete its  plans to either identify the data it will use to augment the monitoring study  or develop a process-based model.
section_title: Two Federal Court Decisions Have Affected EPA’s and Some States’ Ability to Regulate Water Pollutants Discharged by CAFOs
paragraphs: Two federal court decisions—Waterkeeper Alliance Inc. v. EPA and  Rapanos v. United States—have affected EPA and some states’ abilities to  regulate CAFOs for water pollutants.
subsections: section_title: Waterkeeper Alliance Inc. v. EPA (Waterkeeper)
paragraphs: In its 2005 Waterkeeper decision, the U.S. Court of Appeals for the Second  Circuit set aside a key provision of EPA’s 2003 CAFO rule requiring every  CAFO to apply for a permit. Under the 2003 rule, large numbers of  previously unregulated CAFOs were required to apply for permits and  would have been subject to monitoring and reporting requirements  imposed by the permit as well as periodic inspections. According to EPA,  the 2003 rule would have expanded the number of regulated CAFOs from  an estimated 12,500 to an estimated 15,300, an increase of about 22  percent, and would have provided EPA with more comprehensive  information on the number and location of CAFOs, enabling the agency to  more effectively locate and inspect these operations nationwide.
However, in 2003, both environmental and agricultural groups challenged  EPA’s 2003 rule. The court agreed with the environmental groups’  arguments that, among other things, EPA’s 2003 rule did not adequately  provide for public review and comment on a CAFO’s nutrient management  plan and instructed EPA to revise the rule accordingly. The court also  agreed with the agricultural groups’ arguments that EPA had exceeded its  authority under the Clean Water Act by requiring CAFOs that were not  discharging pollutants into federally regulated water to apply for permits  or demonstrate that they had no potential to discharge and therefore set  aside the rule’s permitting requirements for those CAFOs that did not  discharge.
The Waterkeeper decision, in effect, returned EPA’s permitting program to  one in which CAFO operators are not required to apply for a NPDES  permit unless they discharge, or propose discharging, into federally  regulated waters. As a result, EPA must identify and prove that an  operation has discharged or is discharging pollutants in order to require  the operator to apply for a permit. To help identify unpermitted discharges  from CAFOs, EPA officials told us that they have to rely on other methods  that are not necessarily all-inclusive, such as citizens’ complaints, drive-by  observations, aerial flyovers, and state water quality assessments that  identify water bodies impaired by pollutants associated with CAFOs.  According to EPA officials, these methods have helped the agency identify  some CAFOs that may be discharging as well as targeting inspections to  such CAFOs.
As a result of the Waterkeeper decision, EPA proposed a new rule in June  2006 requiring that (1) only CAFO operators that discharge, or propose to  discharge, apply for a permit, (2) permitting authorities review CAFO  nutrient management plans and incorporate the terms of these plans into  the permits, and (3) permitting authorities provide the public with an  opportunity to review and comment on the nutrient management plans.  According to EPA officials, the final rule is currently being reviewed by the  Office of Management and Budget, but at the time we issued our report,  these officials were uncertain when this review would be completed and  the final rule issued.
State water pollution control officials have expressed some concerns that  EPA’s new 2006 rule will place a greater administrative burden on states  than the 2003 rule would have. In an August 2006 letter to EPA, the  Association of State and Interstate Water Pollution Control Administrators  noted that the “reactive” enforcement that EPA will now follow will  require permitting authorities to significantly increase their enforcement  efforts to achieve the level of environmental benefit that would have been  provided by the 2003 rule. These officials believe that requiring EPA and  the states to identify CAFOs that actually discharge pollutants into  federally regulated water bodies will consume more resources than  requiring all CAFOs to apply for a permit.
Moreover, although the Waterkeeper decision has affected EPA’s ability to  regulate CAFOs’ water pollutant discharges, state officials we contacted  indicated that this decision has not had the same impact on their ability to  regulate these operations. As table 1 shows, the impacts of the  Waterkeeper decision have ranged from having little impact on state  regulation to impairing state CAFO programs.
section_title: Rapanos v. United States (Rapanos)
paragraphs: Although the Rapanos case arose in the context of a different permit  program, the scope of EPA’s pollutant discharge program originates in the  same Clean Water Act definition that was at issue in the case.  As a result,  the decision has complicated the agency’s enforcement of CAFO  regulations. According to EPA enforcement officials, the agency will now  be less likely to seek enforcement against a CAFO that it believes is  discharging pollutants into a water body because it may be more difficult  to prove that the water body is federally regulated. According to EPA  officials, as a result of the Rapanos decision, EPA must spend more  resources developing an enforcement case because the agency must  gather proof that the CAFO has not only illegally discharged pollutants,  but that those pollutants have entered federally regulated waters. The  difficulties EPA has experienced were highlighted in a March 4, 2008,  memorandum in which EPA’s Assistant Administrator for Enforcement  and Compliance Assurance stated that the Rapanos decision and national  guidance issued by EPA to ensure “nationwide consistency, reliability, and  predictability in their administration of the statute” in light of the Supreme  Court’s decision has resulted in significant adverse impacts to the clean  water enforcement program. According to the memorandum, the Rapanos  decision and guidance negatively affected approximately 500 enforcement  cases, including as many as 187 cases involving NPDES permits.
In conclusion, Mr. Chairman, EPA has regulated CAFOs under the Clean  Water Act for more than 30 years, and during this time it has amassed a  significant body of knowledge about the pollutants discharged by animal  feeding operations and the potential impacts of these pollutants on human  health and the environment. Nevertheless, EPA still lacks comprehensive  and reliable data on the number, location, and size of the operations that  have been issued permits and the amounts of discharges they release. As a  result, EPA has neither the information it needs to assess the extent to  which CAFOs may be contributing to water pollution, nor the information  it needs to ensure compliance with the Clean Water Act. More recently,  EPA has also begun to address concerns about air pollutants that are  emitted by animal feeding operations. The nationwide air emissions  monitoring study, along with EPA’s plans to develop air emissions  estimating protocols, are important steps in providing much needed  information on the amount of air pollutants emitted from animal feeding  operations. However, questions about the sufficiency of the sites selected  for the air emissions study and the quantity and quality of the data being  collected could undermine EPA’s efforts to develop air emissions  protocols by 2011 as planned. A process-based model that more accurately  predicts the total air emissions from an animal feeding operation is still  needed. While EPA has indicated it intends to develop such a model, it has  not yet established a strategy and timeline for this activity.
Mr. Chairman, this concludes my prepared testimony. I would be happy to  respond to questions that you or Members of the Subcommittee may have.
section_title: Contact and Staff Acknowledgments
paragraphs: Contact points 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, please contact Anu Mittal, Director,  Natural Resources and Environment (202) 512-3841 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.
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