David Kirby, author of Animal Factory, The Looming Threat of Industrial Pig, Dairy, and Poultry Farms to Humans and the Environment, tells story after story in his book of factory farms discharging waste irresponsibly -- sometimes on purpose, and sometimes not. As Karen Hudson, whose story is told in the book, says, "Factory farms are dangerous to the environment; they are ticking time bombs of manure just waiting to be spilled into public waters."
The simple fact is that factory farms produce over 100 times more waste than all American humans produce combined. In the past, a pastured cow might disperse waste over an acre or more; how can farmers responsibly deal with the waste of 1,000, 5,000, or even 10,000 or more animals when they are crammed in tightly together? And, unfortunately for the farmers, they are often working under contract for major meat or dairy conglomerates who own the animals and leave the farmer with a tiny profit margin (or none at all) -- plus all of the liability, dead animals and manure. Therefore, in addition to simply disposing of manure responsibly, they also need to dispose of it cheaply if they are to stay in business.
In Karen's story, the CAFO in question perhaps did not intend to discharge manure. The farmer, if given the choice, may not have decided to apply for a permit. In February 2001, heavy rains coupled with melting snow and ice raised the levels of the nearby megadairy's manure lagoon to just inches below the rim. Panicking, the farmer, David Inskeep, decided not to hire tankers to haul away his cows' waste, as investigators had ordered him to do. Instead he ran hoses from the lagoon to a nearby ravine over a mile away and pumped two million gallons of "a foamy, brown-yellow stew" into it. The 10-foot-high berm that dammed the ravine gave way, and the result was "the worst livestock spill in Illinois history."
The permits in question in the recently decided case would require farmers like Inskeep to make a plan for how to handle animal waste, and to follow that plan or face penalties. A version of this law has been in place for decades, but the details of the law have changed several times in the last few years. The major question of the case is: Can a CAFO be held liable for failing to apply for a permit?
Under a 1976 rule, all large CAFOs (those with more than 1,000 cattle or equivalent amounts of other species) and some medium-sized CAFOs were required to have permits to discharge waste. If a CAFO discharged waste without a permit, it faced civil or criminal penalties. The only permissible, unregulated pollution was "agricultural stormwater discharges," when a storm carried animal waste into navigable rivers.
This changed in 2003, when a new rule required all CAFOs to apply for permits or to ask the EPA for a "no potential to discharge" determination to become exempt from needing a permit. Additionally, the 2003 rule required all CAFOs to design and implement a "Nutrient Management Plan" (i.e. a plan to responsibly deal with animal waste). So long as the farmer followed his or her Nutrient Management Plan, any pollution of waterways was to be included in the "agricultural stormwater discharges" exemption.
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