Testimony on CAFOS

September 6, 2007

Contact: Dave Warner (202) 347-3600

Washington, September 6, 2007 

Written Statement of the

National Pork Producers Council

Submitted to the

Committee on the Environment and Public Works of the U.S. Senate for a Hearing on

The Potential Human Health, Water Quality, and Other Impacts of the Confined Animal Feeding Operation Industry

September 6, 2007

I. INTRODUCTION

The National Pork Producers Council (NPPC), an association of 43 state pork producer organizations and the voice in Washington for the nation’s 67,000 pork producers, offers the following written comments with respect to your hearing today on agriculture’s effects on water quality. Thank you Chairwoman Johnson, Ranking Member Baker, and members of the subcommittee for this opportunity to provide you with our views on this critical issue.

Contributions to Agriculture, Jobs and the US Economy–The U.S. pork industry represents a significant value-added activity in the agriculture economy and the overall U.S. economy. Nationwide, more than 67,000 pork producers marketed more than 103 million hogs in 2005, and those animals provided total gross receipts of $15 billion. Overall, an estimated $20.7 billion of personal income and $34.5 billion of gross national product are supported by the U.S. hog industry. Economists Dan Otto and John Lawrence at Iowa State University estimate that the U.S. pork industry is directly responsible for the creation of 34,720 full-time equivalent jobs and generates 127,492 jobs in the rest of agriculture. It is indirectly responsible for 110,665 jobs in the manufacturing sector, mostly in the packing industry, and 65,224 jobs in professional services such as veterinarians, real estate agents and bankers. All told, the U.S. pork industry is responsible for 550,221 mostly rural jobs in the U.S.

The hog industry in the United States has seen rapid structural changes in recent years, yet total hog numbers have trended up since 1990. In 1990, inventories were 54.5 million head; data from December 2006 showed inventories over 62 million head. And in 2006 2.74 billion pounds of pork and pork variety meats were exported; U.S. consumers purchased 18.8 billion pounds of U.S.-produced pork. Domestic consumption of pork in 2006 was 3 billion pounds higher than it was in 1990; exports were 2.2 billion pounds higher than they were in 1990.

Meeting the Challenge of Feeding the World—The U.S. pork industry today provides 21 billion pounds of safe, wholesome and nutritious meat protein to consumers worldwide. In fact, 2006 was the fifth consecutive year of record pork production in the United States, and all indicators point to another record in 2007. Exports of pork also continue to grow. New technologies have been adopted and productivity has been increased to maintain the U.S. pork industry’s international competitiveness. As a result, pork exports have hit new records for the past 15 years. In 2006, exports represented nearly 15 percent of production.

Pork producers are proud of their industry’s ability to efficiently produce high quality food that is being consumed around the world not only at affordable prices but also with the use of manure management practices that protect water and land and conserve energy. They believe their achievements in food production while protecting the environment is a model approach that must play a role in helping feed the world safely, affordably and sustainably today and in the decades to come.

The scourge of worldwide undernourishment still confronts us today. The Food and Agriculture Organization (FAO) of the United Nations leads international efforts to defeat hunger worldwide. In 1996, 180 nations met at FAO headquarters for the World Food Summit (WFS) to discuss ways to end hunger. These nations pledged to eradicate hunger and committed themselves to a basic target: reducing the number of undernourished people by half by 2015. In their 2006 annual report on the State of Food Insecurity the FAO reported that despite the efforts to reach the goal of the WFS “there has been almost no progress in reducing global hunger” in terms of the absolute number of people who are undernourished. The FAO estimated that 854 million people in 2001-2003 suffered from chronic hunger, essentially the same number of undernourished people when the original WFS goals were set in 1996. [1]

And the challenge is not going to get any easier. The FAO estimates that world population is growing at about 70 million people a year. While the rate of increase will decline by the year 2050, there will still be 40 million or so new mouths to feed each year by the middle of the century.[2] The FAO points out that modern livestock production will be even more important at that time. These increasing population numbers mean that “the number of animals will still need to rise considerably. The projections show an extra 360 million cattle and buffaloes, 560 million extra sheep and goats, and 190 million extra pigs by 2030 – rises of 24, 32 and 22 percent respectively.” Fortunately, as the FAO notes, “it should prove possible to meet much of the extra demand by increasing productivity” and that there is “ample scope for this in developing countries.” [3]

US pork producers know about and understand well these challenges, what it takes in terms of investments in science and innovation, and are ready to work to see the that world’s food security needs are met. We also take a broad view of what it means to be environmentally responsible farmers and business people, and we have fully embraced the fact that as we operate our farms and help feed this country and the world that we must protect and conserve the environment and the resources on and off our farms. We take this responsibility with the utmost seriousness and commitment, and it was in this spirit that our producer members have made a major commitment to environmental conservation.

This commitment is also the reason why we welcome this hearing on the potential human health, water quality, and other impacts of CAFOs. We believe that the current regulatory system that is in place across the country and that is about to be strengthened with EPA’s issuance of the final CAFO rule later this year provides clear and strong protections for water quality and that our producers are ready to meet these standards. This is the case not only for the standard nutrient pollutants addressed by the CAFO rule, but also for other concerns that are commonly cited, like pathogens and antibiotics and antibiotic resistant bacteria. We also believe that there is a clear, emerging scientific record that indicates that our facilities, properly located and operated under current setback standards, do not pose human health risks for our neighbors and communities. Lastly, the multi-million dollar air emissions monitoring study being conducted under consent agreements with EPA will serve as the valid, scientific foundation for the proper regulation of our industry under the federal Clean Air Act where our air emissions prove to be of concern under the Act’s air quality standards.

Our testimony below deals with the following subjects relevant to today’s hearing:

· The pending CAFO rule and its protections for water quality, and our industry’s record of zero discharge performance over the last several years;

· The proper consideration of nitrate and nitrogen management in agricultural systems and what this means for CAFOs;

· Some critical considerations relative to pathogens in manure and their affects on drinking water;

· Some critical scientific considerations relative to antibiotics in manure and antibiotic resistant bacteria;

· Recent findings from monitoring and analysis done by the Iowa Department of Natural Resources with respect to aerial emissions from swine operations of hydrogen sulfide, ammonia and odor causing substances; and

· The reasons for and important role the Air Consent Agreement and the National Air Emissions Monitoring Study will have in the future regulation of our industry under the Clean Air Act.

II. THE CAFO RULE’S PROTECTIONS FOR WATER QUALITY

The U.S. pork industry treats as its top goal meeting worldwide consumer demand while simultaneously protecting water, air and other environmental resources that are in our care or potentially affected by our operations. NPPC is proud of the reputation it and its members have earned for initiating innovative environmental improvement programs. NPPC and its producer members take an active role in advocacy at both the federal and state levels for clean water environmental initiatives, and our members have committed themselves to achieving high levels of environmental performance. Pork producers have made protecting water quality one of their top priorities for more than a decade, and the publicly available record demonstrates their accomplishments in this regard.

Over the last several years, there have been major and dramatic changes in federal water quality regulatory policy applicable to livestock and poultry producers in this country. By natural extension, these fundamentally new policies also reach to the intersection between livestock and poultry production and crop production and the use of our animals’ manure to substitute for commercial forms of fertilizer in support of crop fertility programs. It is very important that as the Committee considers the subject matter of this hearing that it also understand these policy changes, just how fundamental they are, and just how thoroughly prepared pork producers are to meet or exceed these standards.

In 2003 the U.S. EPA issued a final CAFO National Pollution Discharge Elimination System (NPDES) rule and Effluent Limitation Guideline, which dramatically extended and altered the CWA regulatory provisions applicable to animal feeding operations. EPA has subsequently initiated a rulemaking to make changes to the 2003 CAFO rule as a result of litigation that lead the federal courts to invalidate two important provisions of that rule in the so-called Waterkeeper decision by the U.S. Second Circuit Court of Appeals. The EPA proposed rule, expected to be issued in final form later this summer, deals with several extremely important aspects of CAFO regulation under the NPDES program. There can be a tendency to look simply at these marginal changes, between 2003 and today, and fail to see the broader sweep of change and reform that has occurred from the time preceding the 2003 rule to where we are to come out in 2007 when the current rule revisions are finalized. The scope of changes is enormous.

For example, we note that any animal feeding operation (pork, poultry, beef, dairy or horse) of almost any size faces potential enforcement and severe penalties for even a single discharge from their operations to waters of the United States. This was not the case prior to 2003, and this has been unchanged by the Waterkeeper decision. Perhaps even more important, the 2003 rule extended CWA protections to the application of manure to CAFO lands. Under this change, the application of manure to these lands without appropriate and documented agronomic and conservation best management practices would make any resulting stormwater runoff of pollutants to waters of the United States a CWA “point source discharge” potentially subject to extremely stiff penalties of $32,500 a day and possible other sanctions. This new regulation of land application practices was introduced in 2003, and it also has been untouched by the Waterkeeper decision.

These changes represent a monumental shift in the federal policies and regulations that govern animal feeding operations from pre-2003 to today. They have created substantial and effective incentives for CAFOs to prevent any discharge from CAFO production areas and to use sound and effective manure application practices on crop land. They represent substantial improvements in water quality protection, and there is no question that as an entire sector, livestock and poultry agriculture will improve their water quality performance as a result.

Moreover, consistent with the law under Waterkeeper, these incentives remain even for CAFOs that are not discharging or proposing to do so and that, under Waterkeeper, can choose not to get a federal NPDES permit. We argue that for the CAFO without an NPDES permit, the incentives not to discharge are even greater than for the CAFO that does get a permit. This is because a CAFO with a permit is allowed to have a discharge from its production area so long as its operation is designed, maintained and managed so as to contain a 25-year, 24-hour storm event. A non-permitted CAFO that discharges under those circumstances will be fully liable for CWA penalties under Waterkeeper and as a result, has a very effective incentive to design, maintain and manage its operation so as to never have a discharge.

We believe that EPA issued a proposed rule last summer that would result in a final CAFO rule that in many important respects remained effective, workable and within the legal constraints imposed by the Second Circuit’s Waterkeeper decision. We offered comments to that rulemaking in the firm belief that the final rule can and will achieve the no-discharge, water-quality protection goals of the CWA without requiring NPDES permits for non-discharging CAFOs.

The bottom line for pork producers is that they now must eliminate discharges and properly manage their manure and its nutrients under the effective standards set in the CAFO rule, and the fact that this could be done by many pork producers without a federal NPDES permit does not diminish in the least the protections to water quality.

As detailed in the following section, the actual, factual regulatory record for swine operations indicates that the overwhelming majority are not discharging. This should be no surprise as EPA’s own analysis and subsequent proposals in the proposed 2001 CAFO rule for the best available technology standard to be applied to swine CAFOs was predicated on the prominent use of animal and manure management systems that are essentially enclosed. EPA’s findings in this regard are discussed below.

EPA proposed in the 2001 rule a “zero-discharge” standard for the production areas of swine CAFOs. While there were numerous sound policy, technical, and economic reasons for EPA to ultimately reject that “zero-discharge” standard in the final 2003 rule, the fact remains that for many properly operated manure management systems, these CAFOs do not have to discharge – as EPA correctly noted.

In the case of swine operations, many of the existing operations in the Midwest use “deep pit” systems where the animals are housed over a below-ground, concrete manure storage unit. This system is used in the vast majority of new facilities that have been built in the Midwest over the last several years. As described by EPA, “Deep pit systems start with several inches of water in the pit, and the manure is collected and stored under the house until it is pumped out for manure application, typically twice a year.” [See Development Document for the Proposed Revisions to the National Pollutant Discharge Elimination System Regulation and the Effluent Guidelines for Concentrated Animal Feeding Operations, Page 11-6 (January 2001)]. The manure in a concrete “deep pit” that is being managed according to ordinary design standards should never come into contact with rainfall during the storage period, nor does the manure leak out of the concrete pit. It only comes out when the producer pumps it out so it can be applied to cropland. Manure in a swine deep pit system does not come into contact with rainfall. The concrete “deep pit” is also a “no-discharge” system.

EPA acknowledged as much in its explanation in the 2001 proposed CAFO rule when it explained the “Option 5” technology standard for swine, veal, egg and poultry operations. Option 5 required “zero discharge of manure and process wastewater” and provided “no overflow allowance for manure and wastewater storage” from swine, veal, egg and poultry CAFOs. EPA justified its Option 5 proposal by stating that:

. . . swine, veal and poultry operations can house the animals under roof and feed is also not exposed to the weather. Thus, there is no opportunity for storm water contamination…Those operations with liquid manure storage can comply with the restrictions proposed under this option by diverting uncontaminated storm water away from the structure. . . .

[66 Fed. Reg. at 3,063 (emphasis added)].

EPA went on to say that those swine CAFOs with open liquid manure management systems and open manure impoundments or lagoons that were exposed to rainfall could comply with Option 5’s zero-discharge requirement by “covering the lagoons or impoundments.” Id. EPA ultimately rejected Option 5 as the technology standard in the 2003 final rule because the costs of retrofitting existing open air impoundments and lagoons with covers was found to be so costly that it would have put a large percentage of swine operations out of business. The rejected option therefore failed to meet the economic achievability standard required by the CWA. But this decision, which centered on the cost of covers for the open manure storage units, does not change the fact that all the “enclosed systems” presented “no opportunity for storm water contamination” and as they were currently designed and operated could achieve zero-discharge, as recognized by EPA.

EPA again recognizes in the 2006 proposed rule that these closed systems are zero-discharge systems. In its discussion of the application of modeling techniques that can demonstrate how classes of new CAFOs with open systems can effectively achieve zero-discharge, EPA notes that it “believes that facilities employing other manure handling technologies (e.g., under house pits) will be able to ensure zero-discharge of manure, litter, and process wastewater …” 71 Fed. Reg. at 37,762. The fact that swine operations have such a high probability that they will not discharge, as reflected in Table 1 in the section below, simply bears out EPA’s judgments in the matter.

Some critics of the swine sector have argued that an open lagoon manure treatment system must necessarily discharge as it is exposed to rainfall. EPA’s ultimate rejection of Option 5’s impoundment covers for open systems, as discussed above, is thought by some to justify the view that open systems must regularly discharge. The facts do not support this view. Swine operations in North Carolina, for example, rely almost exclusively on open lagoon systems that are exposed to rainfall. As reported in Table 1, the per facility, per year incidence of discharges from North Carolina swine facilities is estimated to be 1.1 percent. Each year, therefore, essentially 99 percent of the open lagoon facilities in North Carolina do not discharge.

There are several reasons for this strong performance record. One of the most important is the lagoon’s basic design. A swine lagoon in North Carolina is commonly designed according to state and USDA- Natural Resources Conservation Service lagoon storage and treatment design standards. The state has a highly developed regulatory system, and these standards are enforced. A swine lagoon in North Carolina built before the mid-1990s must be able to contain a certain number of inches of manure waste water (“minimum volume”), plus a specific, maximum number of inches of manure waste water that represents where the anaerobic treatment process will take place (“treatment volume”), plus a certain number of inches that represents the volume of rain that could fall directly into the lagoon in a 25-year, 24-hour rainfall event (“emergency storm storage”), plus 12 inches of “freeboard.” The only liquid entering this system is the manure waste water coming from the animal house and the rainfall that falls directly into the lagoon.

In North Carolina, the number of inches of “emergency storm storage” that corresponds to the 25-year, 24-hour rainfall event ranges from six to seven inches. Added to the freeboard volume, swine lagoons in North Carolina have effective emergency storm storage of 19 inches. By regulation, a properly managed lagoon in North Carolina must land apply its manure waste water so that in the normal course of operation the total number of inches of manure waste water in the lagoon does not exceed the combined minimum volume and treatment volume. This means that these systems are managed so that they can contain a minimum of 19 inches of rainfall. But beyond this minimum amount, the majority of North Carolina lagoons are being managed today under normal conditions so as to maintain approximately 36 inches of effective emergency storm storage at any time. The U.S. Geological Survey reports that a 100-year, 24-hour storm in North Carolina ranges between eight to nine inches, and that 500-year storm levels are not generally calculated for most parts of the country. But even if a 500-year storm is double the 100-year amount, the 19 inches of minimum available emergency volume could contain those 16 to 18 inches of rainfall.

The fact that most swine operators in North Carolina today take the added precaution of properly applying enough of their manure waste water so that they have an effective stormwater volume of 36 inches makes these systems effectively able to meet a zero-discharge standard. It is no wonder that when it comes to North Carolina swine lagoons and production areas, the discharge data indicates that discharges from these facilities are very rare.

The analysis presented in the 2006 proposed CAFO rule regarding the New Source Performance Standard also clearly demonstrates that the commonly used design and operating standards for open, liquid manure management systems using impoundments or lagoons make them effectively zero-discharge systems. 71 Fed. Reg. at 37,760-762. In this section, EPA presents the analytical and case study record of models of open system operations based on the usual and customary design standards resulting from the application of USDA-NRCS’ Animal Waste Management (“AWM”) design software and simulation analysis of actual field and rainfall conditions using the USDA-NRCS Soil Plant Air Water Hydrology (“SPAW”) tool.

EPA presents this information as part of its decision, in light of Waterkeeper, to change the New Source Performance Standard for swine, poultry and veal CAFOs to a zero-discharge rather than the 100-year, 24-hour design that was in the 2003 rule. The simulation modeling results are presented in this context to support EPA’s proposal to let state agencies allow a new-source CAFO establish that its open system will attain zero-discharge through “a rigorous modeling analysis that it has designed an open containment system that will comply with the no-discharge requirements.” 71 Fed. Reg. at 37,760. EPA also uses these results to support its proposal to not require that an individual new source conduct a detailed simulation of its proposed operation of an open system to justify a zero-discharge designation. Instead, EPA proposed to allow the state agency to create categories of pre-approved types of facilities that have been shown through simulation modeling to achieve zero-discharge as a class when used in certain areas of the state with certain climactic and other physical conditions. (“EPA solicits comment on this approach to streamlining the evaluation process for those CAFOs submitting ‘‘preapproved’’ designs and operational procedures.” 71 Fed. Reg. at 37,762.)

The proposed rule discusses several case studies that EPA has entered into the record at DCN 1–01225 and 1–01226. These case studies are of systems designed according to AWM standards based on actual Comprehensive Nutrient Management Plans (CNMPs) for livestock operations with open systems in Georgia, South Carolina, Nebraska, North Carolina and Iowa. These modeled operations were designed to contain a 100-year, 24-hour storm and then were simulated with 100 years of actual or projected rainfall data to see if the system would discharge. On the basis of these results, EPA states that “If the facility shows no discharge over the 100-year simulation, then EPA has concluded that the lagoon or pond has been designed to achieve the requirement of no-discharge.” 71 Fed. Reg. at 37,762.

As a practical matter, any open impoundment with 25-year, 24-hour emergency storm storage capability that also has 12 inches of freeboard has an effective emergency stormwater storage equal to or in excess of the 100-year storm design standard. This fact, combined with the SPAW simulation modeling results, is further indication as to why the incidence of actual discharges from these CAFOs is so rare.

III. THE ZERO DISCHARGE RECORD UNDER STATE REGULATORY PROGRAMS

EPA’s findings in the development of the 2003 CAFO rule, and further reinforced in 2006, are fully supported by the available record of discharges for the last several years from states with regulatory programs.

The major swine producing states have state regulatory programs that involve some form of permitting requirements. Under those programs, many states keep records of manure releases or discharges from livestock operations. Some also have strict requirements that CAFOs report not only “discharges” to the waters of the state or U.S., but also other types of permit violations, as well as manure spills, releases or other incidents regardless of whether they involve waters of the U.S. Some of these states actively accept and act on public complaints about incidents, releases or violations, and they record the complaints and the actions taken in response. Some of these states require each regulated CAFO to have a periodic visit from a state regulator to check compliance. The scope, extent and consistency of these publicly available release or discharge records have grown extensively since the late 1990s. While there are differences in the information collected and reported or otherwise available at the state level, there is a sufficient quantity of information available to indicate how rare swine CAFO discharges to waters of the U.S. really are.

For example, Table 1 below summarizes this information for eight of the top 10 swine producing states in the U.S., which collectively account for 76 percent of the swine produced in the country. The states included are Iowa, North Carolina, Minnesota, Illinois, Nebraska, Missouri, Oklahoma and Ohio. Phone interviews were held with the state agency staff, who reported on the state regulatory data, gave their best professional account of the record in this regard or supplied the publicly available electronic information from these states.[4] Looking at the number of incidents reported, the number of years covered by the reports and an estimate of the number of regulated entities in the state, it is possible to estimate the average historical rate of incidents in a state, per year, per facility.

The average rate of swine producing facilities with discharges or release incidents for each of these eight states over the available data period ranged between zero to .036 (0 to 3.6 percent). The average for all eight states was .007 or 0.7 percent. This number is an overestimate of the actual historical rate of discharges as some of these incidents or releases did not constitute a CWA discharge because they never reached a water of the U.S.

Table 1 – History of manure release incidents involving swine operations during 2000 to 2005, selected states

Swine Operations – 8 States Representing 76% of Production

State

Rank in Production

# Regulated Sites (Estimated)

# Years Reported

# Incidents Reported, Total

Average # Incidents Per Year

Average Rate of Incidents Per Facility Per Year

IA

1

5,250

4

30

7.5

0.001

NC

2

2,300

2.5

64

25.6

0.011

MN

3

2,300

6

2

0.3

0.000

IL

4

3,400

4

6

1.5

0.000

NE

6

950

6

10

1.7

0.002

MO

7

570

6

5

0.8

0.001

OK

8

220

5

40

8

0.036

OH

10

690

6

23

3.8

0.006

Total

15,460

140

5.9

0.007

 

These findings are also highly consistent with the historical incidence of discharges from our operations in North Carolina when they have experienced major hurricane and flooding events. Perhaps the most dramatic example this is from 1999 when Hurricane Floyd’s 500-year storm event dumped 20 inches of rain to fall over the course of several hours over much of eastern North Carolina. Thirty-seven counties on the eastern end of the state between I-95 and the coast were inundated. Fifty-one people died, 24 or more municipal sewage water treatment facilities were flooded and overflowed, and overall damage exceeded six billion dollars, making it the state’s costliest natural disaster ever. During this storm, about 45 swine manure treatment lagoons were flooded and approximately five are thought to have breached. These 50 facilities represent slightly more than 1 percent of the approximately 4000 swine manure treatment lagoons in the state at that time. While even this 1 percent is more than our industry would like, it is a value consistent with what has been observed in North Carolina and other hog producing states for the last several years.

These results for a considerable majority of swine operations across the U.S. provide a sound, factual justification for why CAFOs as a class cannot be presumed to discharge. These rates may vary in other states, but they should not vary greatly. It is entirely reasonable to expect that the actual probability of a discharge from a particular CAFO in a particular year for all of these other livestock species will be quite low. The rarity of these discharges as a percent of all the regulated facilities subject to or covered by the reporting requirements shows that a presumption that swine CAFOs are commonly discharging in a manner requiring an NPDES permit is unwarranted.

IV. PROPER AGRONOMIC MANAGEMENT OF NITROGEN IN AGRICULTURE

Nitrogen is an essential nutrient for plant growth and our ability to feed ourselves has always depended on it. Modern plant breeding techniques adopted by Norman Borlaug and many of his colleagues in the 1950’s and 1960’s as part of the Green Revolution focused in part on breeding crop varieties that could have tremendous yield increases in response to the application of supplemental nitrogen fertilizers. The fact that the resulting increases in food production have prevented the starvation of millions of people and led to their having more productive lives is well-established.

Nitrogen’s key role in plant growth and food production is directly assisted by its great flexibility to migrate among several different molecular forms and the fact that it is highly soluble in water. But these same properties also ensure that invariably some nitrogen is lost to the surrounding environment anytime food is produced, whether the lost nitrogen is in some gaseous form or dissolved in water and moving downward through the soil profile or across the soil surface in runoff. This fact bears repeating. No matter the source of nitrogen, whether it is from commercial fertilizer, fixed by leguminous crops, from animal manure or green manure, or from organic matter already present in the soil, when any crop (grain, oilseed, fruit or vegetable) is produced from it some nitrogen will invariably be lost. Some nitrogen will also be taken off with the crop, and some will remain in the soil in a fixed state in the organic matter.

Some environmental advocates mistakenly treat the loss of nitrate nitrogen from crop fields that have been fertilized with livestock manure as somehow constituting an abnormal agronomic consequence that constitutes an improper discharge subject to Clean Water Act enforcement. This perspective fails to take into account what is physically possible to achieve with nitrogen management while still producing crops. As is the case for use of commercial nitrogen sources, or green manure, some nitrogen can very well be lost in surface runoff, subsurface tile flow, or volatilized into the atmosphere when the nitrogen source is livestock manure even when all proper agronomic and conservation practices are used. Zero loss of nitrogen to the environment during crop production is simply impossible. The goal of proper agronomic management is to minimize this potential loss while producing the needed crop yields and at affordable prices.

Under the CAFO rule and the 2nd Circuit’s Waterkeeper decision, the land application of the manure or process wastewater is not a point source discharge and is eligible for the agricultural stormwater exemption (ASE) as long as its application conforms to “appropriate” agronomic, conservation, nutrient testing and recordkeeping requirements. The explicit stated goal of these measures is to minimize the runoff of nutrients from manure to waters of the US. Manure is not to be applied within 100 feet of a downgradient surface water or a tile inlet, or 35 feet with a vegetative buffer, or even less if the state deems the practices appropriate

Subsurface drainage is a normal agronomic practice used on both manure and commercially (chemical) fertilized fields. In the case of CAFOs, the use of the agronomic, conservation and nutrient testing measures to qualify for the ASE properly intends to maximize the use of the applied nutrients by the crop and minimize its loss to surface water. The same practices also are suited to minimizing the subsurface loss of nitrogen. As a result, the proper way for the CAFO rule to treat issues like nitrate nitrogen being present in subsurface flows of water beneath fields fertilized with manure is through the requirement that appropriate agronomic and conservation practices must be used on such fields. This is the case for the surface movement of nitrogen and the same standard, appropriate agronomic practices will also minimize the loss of nitrogen into subsurface water.

V. DRINKING WATER AND PATHOGENS

The first line of defense to protect drinking water from any risk of contamination from pathogens that may be present in livestock manure is the CAFO rule and its zero discharge requirements. Production areas where animals are housed and fed, and manure is stored, are not to come into contact with stormwater and discharges of manure and related wastes from the production area are not to occur. The land application of that manure is, under the CAFO rule, to be conducted so as to “minimize” the runoff of manure or manure related nutrients to surface waters. If the manure and related wastes do not come into contact with stormwater and runoff is minimized, pathogens are normally exposed to the natural disinfecting action of soil, open air and sunlight. But pathogen contamination of drinking water from livestock manure can and does occur. Still it is neither as common as many have indicated, and it is often associated with poorly located wells and the management of those wells.

For example, in May 2000, at Walkerton, Ontario, Canada, 2300 people were infected with E. coli O157:H7, and a smaller number were co-infected with Campylobacter jejuni. There were seven deaths, and more than 100 people were hospitalized. While a direct link was made to cow manure as the source of the pathogens since a pasture occupied by cattle, according to an Ohio State University fact sheet on this subject there is much more to this story and the lessons to be learned from it.[5] Walkerton is a small farming community with numerous small pasture operations with cows and calves. This particular incident followed 4 days of torrential rains. One city well was in a flooded hay field where manure had been applied from a beef operation. According to the fact sheet “This well had a history of positive total coliform bacteria tests and a cracked well casing. The city had been advised twenty years ago not to locate the well in this location.” The fact sheet goes on to say that:

All credible evidence indicates that if properly sited, constructed, and maintained, wells provide safe drinking water. In this instance, improperly sited wells flooded and supplied contaminated water to the city. In addition, the water was improperly chlorinated by the city water department.

Care must be taken, also, before jumping to conclusions about the source of pathogen contamination just because livestock may be present in the area where water sources originate. It is easy to assume that the cause of the contamination is livestock when in fact it can be human related or even originate from wildlife.

One of the most prominent examples of this is from the cryptosporidium outbreak in Milwaukee in 1993. This outbreak affected more than 400,000 people and at least at the time was the largest waterborne disease outbreak ever recorded in the United States. According to the report from researchers at the Centers for Disease Control (CDC), “The genotypic and experimental infection data from the four isolates we examined suggest a human rather than bovine source.”[6] While the CDC results were not firmly conclusive in their finding of human sources, the evidence points in that direction and is an indicator of the care that must be taken in understanding and making policy in response to such incidents.

Another example is from the recent record of the Chesapeake Bay. The Washington Post published a story on September 29, 2006 titled “Wildlife Waste Is Major Water Polluter, Studies Say”. The study notes that:

Scientists have run high-tech tests on harmful bacteria in local rivers and streams and found that many of the germs — and in the Potomac and Anacostia rivers, a majority of them– come from wildlife dung. The strange proposition that nature is apparently polluting itself has created a serious conundrum for government officials charged with cleaning up the rivers.

These examples are not meant to diminish the fact that pathogens are present in livestock manure and that this manure must be properly managed to ensure that drinking water supplies are protected. But it is worth noting that the actual recorded incidents of problems being created for drinking water by pathogens from livestock manure are actually relatively rare, that the incidents of pathogens commonly has other sources besides livestock manure, and that proper management of wells and municipal water supplies are also a must if drinking water quality is to be maintained and protected.

VI. ANTIBIOTIC RESIDUES AND ANTIBIOTIC RESITANT BACTERIA

The judicious and scientifically directed use of antibiotics is a critical element to most modern US swine production systems and helps ensure their ability to produce safe, abundant and affordable food. Pork producers use antibiotics for three purposes: to treat illness, to prevent disease and to improve the nutritional efficiency of their animals. Producers and their veterinarians use their experience and knowledge in combination with scientific information to decide when to use antibiotics in their pigs. Before an antibiotic can be used in swine production, the U.S. Food and Drug Administration (FDA) requires that it undergoes a vigorous review for safety to animals, humans and the environment. The FDA approval process assures food products from animals treated with antibiotics are safe.

“Antibiotic resistance” refers to bacteria that are able to withstand exposure to antibiotics and, in fact, survive. Bacteria can and do evolve and adapt to threats to their existence, and resistance to antibiotics can develop as one such evolutionary response. Some medical doctors and veterinarians are concerned about antibiotic resistance because it might limit the effectiveness of antibiotics to fight infections in humans and animals.

Antibiotic resistance in bacteria is known to develop in response not only to antibiotic use in animals but also to their use in humans. The exact degree of response attributable to either human or animal uses is extremely hard to determine definitively, but one panel of experts estimates that 96 percent of antibiotic resistance in humans is due to human use of antibiotics and not transferred from animal uses.[7]

A recent Institute of Food Technologists’ expert panel report reached a similar conclusion, finding that meat from livestock raised with and without antibiotic use was shown to contain antibiotic-resistant bacteria and that antibiotic-resistant bacteria develop from many factors including human use of antibiotics and routine household use of disinfectants like antibacterial soap. Use of antibiotics in animals is only one small contributing factor in the overall picture.[8]

Some but certainly not all public health professionals object to the use of antibiotics by producers to improve the nutritional efficiency of their animals, citing concerns that this leads to an overuse of these products and therefore the acceleration of the development of antibiotic resistant bacteria. These concerns have led some to call for a ban on such uses of antibiotics, but the experience in Denmark with such a ban indicates that a ban may in fact be counterproductive, particularly in light of the findings cited above about human uses of antibiotics leading to resistance development. Denmark banned in 2000 the use of all antibiotics in swine to promote efficient growth. Initially, farmers generally reported few health problems with their finishing pigs and many (but not all) farms were able to adjust their production practices to address the negative impacts that were experienced. But the impacts on piglets have been more damaging and harder to address. Farmers noted an increase in piglet diarrhea, higher mortality rates, decreased weight gains, and greater weight variations. According to published news reports the number of pigs that died from illnesses increased by 25 percent from 1995 to 2005. These effects have still not been totally resolved.

On net, as the use of antibiotics for growth promotion was eliminated in Denmark, their therapeutic use of antibiotics increased substantially. While there has been a modest decline in total antibiotic usage, with the attendant piglet health and mortality problems cited above, this has probably achieved limited if not entirely understood impacts on the development of antibiotic resistance.

Lastly, some attention has been given recently to studies indicating the presence of tetracycline resistance genes in bacteria found in groundwater nearby facilities storing swine manure. Pork producers treat with the utmost seriousness the concerns surrounding the possible implications of tetracycline resistant genes. Science will help us understand this phenomenon and what if any hazards exist and what needs to be done in response. Right now, we are quite certain that a careful scientific reading of these findings indicates nothing particularly surprising nor alarming.

While it is interesting to find ‘almost identical’ tetracycline resistance genes in hog manure and nearby groundwater, there are also several examples reported in these studies of more numerous, indigenous groundwater-specific tetracycline resistance genes already present and at levels higher than that in the manure. Not only do such observations by themselves not establish an increase in hazard, many of these studies show that the tetracycline resistance genes are being hosted by mostly non-pathogenic bacterial types.

The fact is that tetraycline resistance genes are among the most common types on planet earth. That ground water located immediately next to manure storage facilities may contain such resistance genes is not unexpected. In fact, it would be surprising if they were not there. The papers discussing this phenomenon give alternative explanations for the patterns observed, many of which include likely high levels of indigenous tetracycline resistance genes. The statements on possible gene transfer events from hog manure to groundwater are therefore purely speculative at this point without any supportive experimental data capable of confirming either the phenomenon or the presence of any real hazards. We will monitor and support further research on this subject to ensure that any human health or environmental issues, should they develop or be uncovered, are addressed properly.

VII. AIR EMISSIONS, AIR QUALITY AND HUMAN HEALTH

One of the most authoritative studies published recently seeking to address the question of air emissions from CAFOs and their potential human health effects is that of the Iowa Department of Natural Resources issued in January 2006.[9] The study was required by state law enacted in 2002, and was to look at the airborne pollutants emitted by animal feeding operations (AFO’s), including hydrogen sulfide, ammonia, and odor.

The hydrogen sulfide and ammonia readings were taken from properties immediately adjacent to two CAFOs in 2002, six in 2003, and by 2006 and this year ten locations were being monitored. Iowa has established its own hydrogen sulfide standard of 30 ppb, and this is well below that set for work place safety by OSHA and that recommended by the CDC for protecting infants and the infirm. But the bottom line of this monitoring is that over 5 years of continuous monitoring near the very largest swine, dairy and layer farms in the state, there are simply no ammonia or hydrogen sulfide issues for neighbors.

The odor portion of the study was conducted from 2003 through 2005. The study results highlight for our industry that while significant challenges remain we have and can continue to make improvements in odor management of our facilities. There were 1708 measurements taken at the CAFOs fence line downwind from the animal housing area, at the fence line downwind from the land application areas when manure was being applied, and at neighbor’s houses or public use areas and institutions adjacent to CAFOs whether or not they were downwind from the CAFO. Of these 1708 measurements, 7 percent (118) incidents were recorded where odor levels exceeded the standard set by the state. Manure application measurements produced the highest exceedance rate (11 percent), followed by facility measurements (7 percent). Of the 304 measurements taken from an actual neighboring property, 11 (4 percent) had recorded exceedances. Again, these numbers are not as good as we would like, but we find them very encouraging. The practices and good manure management being advocated and adopted by our industry are having a significant positive effect in reducing the degree of odor issues with our operations.[10]

VIII. THE AIR CONSENT AGREEMENT AND EMISSIONS MONITORING

As an industry, pork producers are under increasing scrutiny and pressure to address the potential air emissions released from their farms. Understanding and quantifying the extent of air emissions from our operations are the critical first steps for our industries development of effective management practices and the technologies necessary to control or eliminate those emissions.

The air quality impact of animal agriculture is significantly more benign than the emissions from manufacturing industries. Unlike factories, farms have no “smokestacks” from which air emissions may be measured. Nor do farm emissions occur at regularly measurable rates. Instead, a farm’s air emissions are widely dispersed, often from animal housing or facilities installed for the proper management of manure in an environmentally sensitive manner.

The potential for air emissions is not limited to any specific type or size of pork production operation. All production system types and sizes have a potential for air emissions. While production systems of like size and type can be expected to have similar types and quantities of emissions regardless of ownership, these emissions occur at varying rates which are impacted by a range of factors such as the time of year, the time of day, temperature, precipitation rates, age and sex of animals as well as their overall health and diet. As a result, using current scientific knowledge, it is impossible to predict with any certainty the level of air emissions that emanate from a farm without new, focused, scientific investigations that specifically address all the potential variables that may arise.

As of late 2001, EPA recognized the difficulty it faced in estimating air emissions from agricultural operations and the need to better understand the environmental footprint of the livestock industry. Realizing that no large scale comprehensive effort had been undertaken to understand the nature of these emissions, then-EPA administrator Christine Todd Whitman admitted to Congressional inquires in November 2001 that EPA did not “currently have sound emission estimates to support regulatory determinations for animal agriculture.” As a result, EPA undertook to develop an effective approach to measure and regulate animal farm air emissions, enlisting the assistance of the National Academy of Sciences (“NAS”). In 2003, the NAS produced a comprehensive report on the issue, “Air Emissions From Animal Feeding Operations: Current Knowledge, Future Needs.” (“NAS Study”).

The NAS found, not surprisingly, that air emission rates from animal farms are uncertain, and that it is difficult, expensive and time-consuming to monitor such emissions on an individual farm-by-farm basis. For example, the NAS Study found huge variability in emissions rates at individual farms, affected by a number of known and unknown factors. One study analyzed by NAS demonstrated a 12.5-fold variation in measured ammonia flux in one summer season. Another study revealed a variability factor of 70 times in ammonia concentrations in the air near a dairy wastewater lagoon over a 30-minute period. The NAS study pointed out the flaws in the existing science of estimating air emissions, and recommended further study and new approaches to develop more accurate and representative data.

The NAS Study confirmed the scientific uncertainty in determining whether individual animal farms exceed the regulatory emission thresholds of the CAA, CERCLA, and EPCRA. There was a clear need for a uniform national methodology for estimating animal farm air emissions. Not surprisingly, some in the environmental community contend that EPA should respond to this basic lack of knowledge by embarking on a baseless quest to prosecute livestock producers. Their preferred course of action is not only needlessly provocative and fraught with all manner of due process perils, but also time-consuming and expensive for both EPA and the farms.

For example, the data that is being developed under the nationwide air emissions monitoring study to be used to estimate emissions for farms nationwide will cost roughly $750,000 per farm (for barns), and $360,000 per lagoon. Even a fraction of this cost would financially overwhelm an individual farm and be of no use to EPA in developing nationwide model, forcing EPA to spend hundreds of thousands of dollars each to obtain data to establish air emission estimates for hundreds (or thousands) of other farms.

Furthermore, such an approach would not produce any more reliable data any quicker than the air emissions monitoring study. Were EPA to follow an enforcement path, upon receipt of a EPA demand letter, the farmer would talk to a lawyer and a consultant, who would develop an answer to EPA’s demand. The consultant would likely be starting from scratch (in light of the limited scientific data available, as reported by the NAS), so there is no reason to believe that the result would be produced quickly. Moreover, EPA might not have full confidence in the consultant, who would have been selected by the farm. The expense of individual farm monitoring, likely to be hundreds of thousands of dollars, would motivate the farm to contest EPA’s request and minimize the scope of any such monitoring. These factors would combine to create a drawn-out, difficult, and expensive procedure for both EPA and the target farm.

Finally, even if a farm did conform to EPA’s demands, it would pay for only enough data to show whether its emissions exceeded regulatory thresholds and would be unlikely to produce data that could be used to estimate animal farm emissions elsewhere, much less nationwide.

Animal farms faced an uncertain and difficult enforcement climate–There have been several significant EPA and citizen enforcement actions against animal farms under the CAA, EPCRA, and CERCLA over the past five years, and those actions have highlighted the uncertainties, risks, and potential liabilities that animal farms face concerning how those statutes apply to air emissions from their operations. See, e.g. Sierra Club, Inc. v. Seaboard Farms, Inc., 387 F.3d 1167 (10th Cir. 2004); United States v. Buckeye Egg Farm, LP, consent decree entered July 6, 2004 (N.D. Ohio No. 3:03-cv-07681); Sierra Club, Inc. v. Tyson Foods, Inc., 299 F. Supp. 2d 693 (W.D. Ky. 2003); Citizens Legal Environmental Action Network, Inc. and the United States v. Premium Standard Farms, Inc., consent decree entered Jan. 23, 2002 (W.D. Mo. No. 5:97-cv-06073).

These enforcement actions created great regulatory uncertainty within the farm community and demonstrated the complex legal and technical issues surrounding animal farm air emissions, and the attendant risks and potential liabilities, including potential large civil penalties and expensive legal defense costs. If the regulatory programs were applied to a farm’s operations and it was faced with federal enforcement action, the potential civil penalties could run up to $32,500 per day per violation. Litigation on the liability issues would become a battle of experts offering competing views on the farm’s air emissions, and the outcome would ultimately depend on which expert the judge or jury found more credible. Such an enforcement action would also entail enormous defense costs – federal court litigation on air emissions can greatly exceed $100,000.

Thus animal farms face an awkward regulatory situation: they may be found to be in violation of various air emission regulatory requirements under the CAA, CERCLA and/or EPCRA, but no one, including EPA, has the definitive, uniform technical standards or methodologies needed to be certain. An individual EPA or citizen enforcement action would impose unreasonably high costs upon the farms for individualized expert air studies. Such actions would produce an answer that would surely be binding but might also be wrong.

Further, the absence of nationally applicable standards for estimating animal farm air emissions creates an uneven playing field for animal farms in two respects: first, if they are targeted by EPA or citizen groups, they would be forced to incur high defense costs and possible civil penalties while their neighbors escape enforcement. Second, federal litigation or administrative actions may result in dramatically different emissions estimates for similar or even identical farms, imposing unequal penalties and disparate obligations on each. This difficult regulatory enforcement climate gave animal farms the incentive to enter into the Consent Agreements proposed by EPA and described below.

The Consent Agreements will resolve uncertainties for both EPA and animal farms–The Consent Agreements resolve EPA claims against signatory farms for potential air emission violations under CAA section 113 (42 U.S.C. § 7413), CERCLA sections 103 and 109 (42 U.S.C. §§ 9603, 9609), and EPCRA section 325 (42 U.S.C. § 11045) and provide for an air monitoring study that would produce nationally uniform methodologies for estimating air emissions from dairy, swine, broiler chicken, and egg farms. Those methodologies would determine the application of the CAA, CERCLA and EPCRA to such farms nationwide.

The Consent Agreements protect the signatory farms by providing repose and certainty of obligation. The farms will pay a civil penalty in return for a limited covenant not to sue from EPA until such time as the Agency establishes national methodologies for estimating the air emissions from their operations. They will be given time to come into compliance after the study is concluded and EPA has established national emission factors. All dairy, swine, broiler chicken, and egg farms will be treated uniformly in the emissions estimates – regulatory obligations will be applied on the same basis to similar farms. The Consent Agreements thus protect the farms from uneven enforcement, uncertain liability, and a competitively harmful application of the laws.

Compared to the alternative approaches EPA could have embarked on, the Consent Agreements will produce more useful air emissions data at lower overall cost. The monitoring study is an independent, high quality study that applies the best science available. This “state-of-the-art” two-year study will produce publicly available data from the monitoring of emissions of volatile organic compounds, hydrogen sulfide, particulate matter, and ammonia from animal housing structures and animal waste storage and treatment areas. An “independent monitoring contractor” will manage the study and Dr. Al Heber, an agricultural engineer with Purdue University and director of Purdue’s Agricultural Air Quality Laboratory, was selected as the independent contractor.

The study will produce high quality data applicable across the entire country in about the same time frame as EPA embarking on an single enforcement action against a single farm, but without the delay of legal challenges and litigation over the scope of EPA’s authority. Finally, as for farms that do not sign a Consent Agreement, after EPA develops the emissions estimating methods, EPA will be free to pursue enforcement actions against them based on data from the air monitoring study.

CONCLUSION

The new CWA CAFO rule requirements are extensive and thorough when viewed from the perspective of today relative to shortly before the 2003 rule was issued. In the short period of about five years, federal CWA regulations for concentrated livestock operations have been changed to effectively encompass all animal species and all clean water aspects of the production of their animals, their manure and the use of that manure on land for crop production that the farmer controls. CAFOs now have more than adequate regulatory incentives to ensure that they do not discharge their manure to water and use sound and appropriate agronomic practices for applying their manure to land because failure to do so can result in major CWA penalties. But these water quality protections, which pork producers are treating as a “no-discharge standard,” are now achievable without a CAFO having to get a federal CWA permit, and many CAFOs will choose to do that.

It is very important that as the Committee considers the subject matter of this hearing that it also understand these policy changes, just how fundamental they are, and how well prepared pork producers are to meet them. Furthermore, it is both sound and prudent for Congress to give these policy changes time to get fully in place and adopted before contemplating other policy changes.

NPPC believes that this record of the exceedingly rare occurrence of discharges from our producers’ operations and the strong demand relative to the supply of manure for crop fertility purposes are strong indicators of just how ready pork producers are to meet the no-discharge requirements of the pending final CAFO rule.

Thank you once again Chairwoman Johnson for this opportunity to provide you with our written views on this important subject. We are most happy to respond to any questions you might have on this or other related subject matters and ask that you contact us if that is the case. We also look forward to working closely with your committee on the implementation of the new CAFO rule requirements and the CWA in general to ensure that our manure is properly managed, to achieve the no-discharge standard and to protect our Nation’s water quality.


[1] See the poster presentation accompanying the 2006 FAO annual report on the State of the World atftp://ftp.fao.org/docrep/fao/009/a0750e/a0750e00b.pdf.

[2] Seethe FAO’s 2001 State of the World at http://www.fao.org/docrep/003/Y1500E/Y1500E00.HTM, page 36.

at ftp://ftp.fao.org/docrep/fao/004/y3557e/y3557e04.pdf, page 60.

[4] This data and information was collected on behalf of the National Pork Producers Council by C&M Capitolink, LLC between April and July, 2006. For some of the states reported, the manure “release” data is available on their websites. Some other states will provide this data in written form upon request. In others, the data was gathered through phone interviews with state agency staff responsible for the CAFO permitting program. The number of estimated swine production sites is based on USDA/NASS data on the number of hog farms in the US in 2005 with more than 500 head, except in the case of Illinois, North Carolina and Oklahoma, whose state agencies reported the number shown. See Appendix A of NPPC’s CAFO rule comments of August 29, 2007, submitted with the United Egg Producers, American Farm Bureau Federal, National Corn Growers Association and the National Council of Farm Cooperatives for further detail on state specific sources of data and for comments on the extent that the data includes incidents and releases not necessarily lending to discharges.

[5] See http://ohioline.osu.edu/ls-fact/0005.html.

A. [6] See Emerg Infect Dis. 1997 Oct-Dec;3(4):567-73, Genetic Polymorphism Among Cryptosporidium parvum Isolates: Evidence of Two Distinct Human Transmission Cycles.

[7] Casewell and Bywater, Journal of Antimicrobial Chemotherapy 46: 639-645, 2000.

[8] Institute of Food Technologists, www.ift.org, Antimicrobial Resistance: Implications for the Food System, July 14, 2006.

[9] See the Iowa DNR website at http://www.iowadnr.com/air/afo/afo.html for a discussion of the ongoing under this study and the reports already issued.

[10] See http://www.iowadnr.com/air/afo/files/Odor.pdf, page 6.