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Too Much Manure, Too Little Space.

Animal farming in the United States has changed dramatically over the last several decades. Where livestock (e.g., chickens, hogs and cows) were once raised on tens of thousands of small farms that dotted the landscape, now increasingly there are industrial-sized operations, which can confine thousands, if not millions, of animals within a small area.  For example, in the last 15 years, the number of hog farms has dropped from 600,000 to 157,000, even though the number of hogs raised remained the same.  The animal waste, or manure, produced by these factory farms can be truly staggering.  In 2003, factory farms produced an estimated 500 million tons of manure—three times the amount of waste produced by the entire United States’ human population.  Disposal of this waste can and has created serious health and environmental problems and the cost of fixing these problems can run into the tens, if not hundreds, of millions of dollars.  This article briefly describes the significant issues and concerns associated with concentrated animal feeding operations. 

Historical Operations

Historically, farm animal waste has not been treated, but rather stored in manure pits and lagoons and then spread on adjacent farmlands.  If manure overflows the storage lagoons or is over-applied to farmland, it can impair local water quality.  Application of excess manure to farmlands can also result in excessive bacteria, nutrient, and organic matter loads entering local surface and shallow ground waters.  In most cases, operators of the concentrated animal feeding operations (CAFOs) work under contract with a larger firm, or integrator (e.g. Tyson Foods, Inc., Cobb-Vantress, Inc., Cargill, Inc., Simmons Food, Inc.).  While integrators have tried to avoid legal responsibility for CAFO waste disposal by requiring the CAFOs to deal with waste disposal issues, recent lawsuits, such as the 2005 State of Oklahoma suit, are attempting to shift liability for environmental damage onto the integrators.  Also, several recent court rulings have found integrators liable for the environmental damage from CAFO operations.   

Regulatory Change

Although agricultural activities historically have not been subject to the requirements of environmental law, CAFO waste discharges to the nation’s waters are regulated under the Clean Water Act (CWA).  In the late 1990s, the U.S. Environmental Protection Agency initiated a review of the CWA rules that govern these discharges.  These rules had not been revised since the 1970s, even though significant structural and technological changes in the animal agriculture industry had occurred during the last 20 years.  The Clinton Administration proposed a revision of the rules in December 2000.  The final revised regulations, which were promulgated by the Bush Administration in December 2002, took effect in February 2003.  However, the final rules were considered less stringent than the 2000 proposal and have been criticized by environmental groups, which may force their reconsideration, particularly if a Democratic Administration captures the White House in 2008.

Case Studies

In 1995, an eight-acre hog waste lagoon in North Carolina burst spilling approximately 25 million gallons of manure into the New River, killing between 8 to 10 million fish.  Similar discharges of untreated manure in Iowa, Illinois, Minnesota, Missouri, Ohio, and New York have caused fish kills and contaminated drinking water supplies.  An August 10, 2005 release of several million gallons of manure from a large dairy operation in New York to an adjacent field resulted in contamination of the Black River.  This spill caused a large drop in dissolved oxygen levels in the water, killed over 375,000 fish in an 20-mile stretch of the river and eventually led to a $2.2 million Natural Resources Damage claim settlement. 

On June 13, 2005, the Oklahoma Attorney General filed a lawsuit against local poultry operators for water and soil pollution. The lawsuit contended that “runoff from the improper dumping and storage of poultry waste has contaminated Oklahoma’s rivers and streams particularly in the Illinois River watershed where phosphorus from the poultry waste is estimated to be equivalent to the waste generated by 10.7 million people.”  The lawsuit also alleged violations of Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), federal and state nuisance laws, and state environmental and administrative laws.  Although the lawsuit is still pending, poultry operators (i.e., integrators) have notified their insurance carriers of both their duty to defend and the potential size of future damages.

What to Look For

As a result of these events, animal farming operations are currently receiving a great deal of attention both nationally and locally.  As the number and size of CAFOs expands, the legal and regulatory challenges to these operations are expected to increase.  In just the last several years, additional state and federal regulations have been proposed, including requirements for management of manure and its land application as well as new permitting and reporting requirements.  As more stringent regulations are enacted, the number of insurance claims will likely increase significantly.

For more information, please contact John Elliott at 925-403-6200.