Executive Summary

Report

Feedlot Dust
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Koch
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Pilgrims Pride
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Smith Farms
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Sustainable Livestock
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Antibiotic Resistance
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Vertical Integration
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Natural Meat
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Organic Meat
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Recommendations

TNRCC Ignores
Cumulative Impacts

Opposition to TNRCC's proposed regulatory changes extended beyond Texas. The US Fish and Wildlife Service also submitted comments on the rules, expressing concern that "the proposed rules do not appear to consider the potential cumulative impacts on waters within the state from multiple CAFOs permitted within the same watershed." (89)

TNRCC does not have a strong record of addressing the cumulative impacts of multiple CAFOs. Several years earlier, TNRCC began designating Dairy Outreach Program Areas (DOPAs) in eight counties of the state, including the Bosque and Lake Fork watersheds-areas where water quality degradation has already been linked to CAFO operations-in an attempt to address the 'cumulative impacts' of dairies. However, the program has done little to limit the expansion of new or existing dairies in the impacted areas. Instead, it merely requires that smaller dairies (300 to 1000+ head) obtain permits to operate and that owner/operators complete 8 hours of animal waste management training every two years. (90)

US Fish and Wildlife expressed particular concern about Tierra Blanca Creek, an intermittent waterway in the Panhandle, which flows into Buffalo Lake National Wildlife Refuge in Randall County-and is also home to a large number of cattle feedlots. During the 1960s and 1970s several fish kills, attributed to surface water runoff from cattle feedlots upstream, occurred at Buffalo Lake within the Refuge. (91) According to US Fish and Wildlife, poor water quality and reduction in flow in Tierra Blanca Creek resulted in the eventual disappearance of the lake, but the watershed still supports an endangered species, the bald eagle. "If a storm occurs in this watershed that exceeds current wastewater retention system designs, it would be expected that the stream would receive inflow of untreated wastewater from multiple CAFOs. In turn, based on the language of the proposed general permit, the National Wildlife Refuge could possibly receive up to 22,000,000 gallons of raw, untreated wastewater in a given 24-hour period." (92) US Fish and Wildlife recommended that the agency adopt stricter capacity requirements for wastewater retention systems that are located in watersheds with multiple CAFOs. (93) TNRCC failed to address the cumulative impacts issue in the final adopted rules.

In September of 1998, EPA officially delegated NPDES permit authority to Texas regulators as part of a national program designed to streamline the permit process and eliminate duplication between Federal and State requirements. Finalized in June of 1999, the CAFO regulations in Texas now implement both federal and state environmental laws in a single permit process.

The new rules require few changes to the operation of existing facilities, unless they want to expand or otherwise make a major change to the operation. (94) Despite EPA's delegation of permit authority to Texas, the federal agency "expressed concerns that the cumulative or individual permitted discharges from CAFOs might result in or contribute to violations of state water quality standards." (95) TNRCC responded that "for those Texas waters that are currently maintaining their approved water quality standards, there is little, if any, verifiable evidence that CAFO management practices and discharges…permitted under existing EPA and Texas rules…have caused or contributed to impairment of aquatic life uses." (96)

However, TNRCC agreed to conduct a "comprehensive study" in cooperation with the EPA, Texas Parks and Wildlife Department, and the United States Fish and Wildlife Service in which they would perform data analysis, modeling, and instream sampling of at least two distinct areas of Texas. TNRCC would then use the results to determine "what changes, if any, should be made in Subchapter B at its renewal." (97) As of March 2000, however, no research has been completed and the study remains in the planning stages.

The new rules do take some small steps toward improving CAFO regulation. They require applicants to submit a pollution prevention plan, require short buffer distances between facilities and well water supplies, and restrict the night-time application of manure. (98)

Many residents and environmental groups feel that the rules do not go far enough in protecting Texas' natural resources. The rules still allow operators to dispose of liquid waste by spray irrigation onto crops, a system which many environmentalists believe encourages run-off, and they continue to use nitrogen as the limiting nutrient. (99) The rules do not require lagoons to be covered or require filters for barns that blow hog and chicken odors out into the community. Despite the possibility that high levels of manure dust or organic compounds from manure gases may equally affect people's health and well being, (100) TNRCC does not describe or require any specific odor abatement practices, except to declare that CAFOs should operate "in such a manner as to prevent the creation of a nuisance or a condition of air pollution" as described by the state's Health and Safety Code. (101) Nor do TNRCC rules address the concern expressed by many adjacent landowners that the smell and flies significantly devalue their property.

Enforcement: Ignoring Odors and Pollution

TNRCC does investigate odor complaints, however "nuisance" conditions are difficult to document because the assessment of odor is completely subjective. An investigator responding to a complaint has no tools to measure odor intensity-other than his own nose-which he uses to quantify the odor on a scale of 1 to 5. In order to issue a violation, the odor must fall under category 5, which is described as an odor that is bad enough to make people nauseous or force nearby residents to stay inside their homes. One TNRCC investigator in the Panhandle told a National Public Radio reporter that he only issues violations if the odor is strong enough to make him sick, and that has never happened. (102) The subjective nature of these investigations makes it difficult to document nuisance conditions and "even more difficult to litigate successfully except in the most severe and persistent cases."(103) For example, poultry facilities owned by Tyson Food Corp. were investigated at least four times between 1997 and 1999 for possible odor violations. In one case, the TNRCC complaint report listed the initial problem as "horrendous odors" which caused the office workers to become "nauseated." (104) In another case, the initial problem was described as "nauseating gas odors and smoke." (105) In two cases, odors were detected but did not constitute "nuisance conditions" in the opinion of the inspectors. (106) In another case, the odors were unconfirmed, but "inspection of the facility idicated (sic) the potential for odor does exist." (107) No formal action was taken in any of the investigated cases because Texas air quality regulations do not provide enforceable, quantified standards to address these kinds of complaints.

Compounding this problem are other TNRCC policies which hinder investigation and response to odor complaints. Because odors are variable and dependent upon climactic conditions and operating procedures, a quick response is necessary to document the problem. In the instances where TNRCC does investigate odor complaints, however, inspection may take place days or even weeks after the complaint. (108) Because of the variable nature of odors, it is unlikely that the odors which a neighbor complains about will still be present when the inspector arrives.

No matter how many neighbors call in complaints, TNRCC will not act on an odor problem unless it is documented by one of its inspectors. On the other hand, if an inspector personally observes nuisance level odors at a CAFO, he or she cannot cite a violation unless a private complaint has been filed. (109) In other words, the agency will knowingly ignore odor violations until a complaint has been filed but then demand strict verification once a complaint has been made. Yet TNRCC's policy discourages neighbors from making repeat complaints if inspectors cannot confirm the complaint. Agency policy states that "[i]f a regional office concludes that such repeat complaints are without merit…it may forward a recommendation to Austin requesting that response to complaints by that individual against that entity be discontinued." (110)

And, unlike investigations for all other industries, TNRCC policy does not allow inspectors to cite a CAFO nuisance violation in the field. Instead, the agency has created a separate procedure for processing CAFO odor complaints which requires the investigator to first submit a report to an agency "screening committee" in Austin. The committee, not the investigator, then determines whether to cite the violation or send a warning letter to the CAFO. (111) Taken together, these policies severely hinder the agency's ability to effectively respond to citizen complaints against CAFO odors.

National Ambient Air Quality Standards limit particulate emissions into the air. If particulate levels in a region of the state often exceed the standard, it can be designated a nonattainment area and must implement procedures to reduce pollution. The standards may also be used to estimate downwind emissions from a feedlot during the permit process. Although the particulate standards apply to feedlots, TNRCC rarely tests the air around feedlots for compliance, and when it has the results have been inconclusive in part because the dust events are sporadic and vary with weather conditions.

To further complicate the regulatory framework, TNRCC does not consider the manure dust kicked up under the hooves of cattle to be an emission for purposes of feedlot compliance with the federal Clean Air Act. The federal Clean Air Act requires a "major source" of pollution to get a federal permit, but each state determines what kinds of emissions will used to define a "major source." Currently in Texas fugitive emissions from the feedlot surface are not included. If they were, feedyards as small as 8000 head could be considered "major sources" of particulates.

Texas Regulations Lag Behind Other States

In contrast to Texas, other states have implemented more stringent rules. Recent regulatory changes in the State of Washington authorized the environmental agency to include fugitive emissions from feedyards in the emissions inventory for federal Clean Air Act compliance. (112) The Georgia Department of Natural Resources recently adopted new rules for large swine operations that include air tight lagoon covers for larger facilities, topsoil injection of wastewater rather than spray irrigation, ground water monitoring, and financial responsibility provisions to cover the costs of closure and cleanup of the facilities as well as any fines that may be imposed. (113) And in North Carolina the state legislature passed a bill in 1997 which directed the state's Department of Agriculture to develop a plan to phase out the use of anaerobic lagoons and sprayfields at swine farms. (114) Iowa also recently passed a law requiring injection or incorporation of manure when applied within 750 feet of residences. (115) Kansas requires CAFOs to apply waste based on the phosphorus needs of the crops if soil samples indicate that phosphorus levels will exceed the holding capacity of the soil within five years. (116) And when Vall Inc., a multinational hog company, tried to set up facilities in Kentucky in 1997, local officials requested-and received-a moratorium on new CAFOs until the legislature could meet to review the state's environmental regulations. (117)

Several other states have found the health and environmental threats posed by CAFOs so overwhelming that they have imposed a moratorium on any new operations. The Mississippi state legislature enacted a moratorium on new hog CAFOs in June 1998, and in November 1999, the state Department of Health recommended an extension of the moratorium. (118) North Carolina first enacted a moratorium on CAFOs in August 1997, (119) and a subsequent bill continued the moratorium. (120) Georgia's Board of Natural Resources imposed a moratorium on hog CAFOs in January 1999 to give the state an opportunity to strengthen its regulations. (121) Now that the state has adopted new rules requiring lagoon covers and subsoil injection of waste, the Board has lifted the moratorium.

Unlike these states, Texas welcomes corporate agriculture. In contrast to Kentucky, for example, Texas opened its doors to Vall, Inc. in 1997 and issued permits for three hog facilities that would house up to 54,000 swine in Sherman County in the Panhandle. (122) In 1999 Vall, Inc. applied for two additional permits for facilities in Sherman County to house another 97,200 hogs. A nearby tourist ranch submitted public comments opposing one of the facilities and the US Fish and Wildlife Service expressed concerns over the impact of Vall, Inc.'s waste management practices on threatened bird and fish species in the area. The Office of Public Interest Counsel (OPIC) of the TNRCC recommended that a contested case hearing be granted on one of the permits, but the TNRCC's Executive Director recommended that the agency deny the hearing request. Both permits were approved in August of 1999, within three months of posting notice to the public. (123)

This is not surprising given that the TNRCC had already established a willingness to welcome large hog producers to the state-in 1994 the agency extended a permit to Premium Standard Farms to house up to 925,000 hogs in one site in Dallam County. In 1996 it issued a permit to Texas Farm Inc. for its 249,600 head facility in Ochiltree County. And a few months after approving the Vall Inc. permits in 1997, the TNRCC permitted another Premium Standard facility in Dallam County to house almost a quarter million pigs. (124)

While Minnesota has taken action to safeguard CAFOs' neighbors from hydrogen sulfide emissions by applying strict ambient air standards for hydrogen sulfide to CAFOs, Texas continues to monitor the situation. (125) The Minesota Department of Health is developing even more stringent ambient air standards to protect health and quality of life. (126) Kentucky has taken the very important step of making livestock corporations jointly liable for the environmental performance of the contractors who raise the animals and manage the waste. In February 2000, the Kentucky Governor signed emergency regulations that require both the animal owner and the contract operator to obtain Clean Water Act permits. (127) In Texas, the individual contract growers, not the large corporate farms, are held responsible for pollution violations, even if the animals are the property of the large corporation. Similarly, Texas CAFOs are not responsible for contamination caused by manure and waste if it has been sold or given away for off-site application.

The 76th Legislature--in HB 2-stated that agriculture, including livestock production, "renews the natural resources of this state" and is a vital part of the state economy. HB 2 directed the state to assess the condition of agriculture and the role of government, keeping in mind several state priorities including the promotion of Texas agriculture, protection of property rights and the "right to farm," and infrastructure development. Supported by the Texas Farm Bureau, the new law did not specify that sustainable agricultural production is a state priority, nor did it direct the interim committee to balance the needs of factory farming with the needs of neighboring property owners or the environment. The interim study will be drafted this summer with input from the public.

In addition to the lack of strong environmental regulation of livestock facilities, the 75th Texas legislature authorized TNRCC to implement a new permitting process in which the agency could authorize one "general permit" for a region or for the whole state. (128) In this case, most CAFOs would no longer be permitted or regulated individually-instead they could simply file a "notice of intent to operate" under the general permit that applies to the whole state, stating their intention to comply with the general conditions set out in that 'permit.' There would be no opportunity to include site-specific conditions for a particular facility as is now possible with an individual permit. There also would be little opportunity for public comment or a contested case hearing for general permit facilities. Instead, public comment would only be solicited every five years at the time that the general permit expires.

On March 6, 1998, TNRCC issued public notice of a proposed general permit, a first step in implementing this process. (129) Many concerned citizens and environmental groups submitted comments in opposition to the proposal. TNRCC has left the matter pending but is expected to eventually act on its authority to issue the general permit.

NOTES:

89 Letter to TNRCC from Robert Short (US Fish and Wildlife Service), April 10, 1998, p. 1.

90 30 T.A.C. §321.33(g); 30 T.A.C. §321.41(a)(1).

91 Letter to TNRCC from Robert Short (US Fish and Wildlife Service), April 10, 1998, p. 1.

92 Ibid., Letter to TNRCC from Robert Short, p. 2.

93 Ibid., Letter to TNRCC from Robert Short, p. 2.

94 30 TAC §321.23(l).

95 Krishna and Wise (1999), p. 5.

96 Texas Register, Vol. 24, No. 30, July 23, 1999, p. 5723. TNRCC did not comment on impaired waterways.

97 Krishna and Wise (1999), p. 5.

98 30 T.A.C. §321.39; 30 T.A.C. §321.40(7); 30 T.A.C. §321.39(f)(24)(H).

99 30 T.A.C. §321.39(19)(B).

100 Schiffman, Susan S., et al., "The effect of environmental odors emanating from commercial swine operations on the mood of nearby residents," Brain Research Bulletin, Volume 37, No. 4 (1995), pp. 369-375.

101 30 T.A.C. §321.31(c).

102 TNRCC, "Categorization of Odors," attachment to Interoffice Memorandum to Field Operations Air Program Managers, from Debra Barber, Air Program Director, Re: "Odor Complaint Handling Procedures," December 14, 1993; National Public Radio: Texas Hogs (transcript of radio broadcast on All Things Considered, March 8, 2000).

103 Auvermann, Brent W., "Suppressing Fugitive Dust Emissions From Cattle Feedyards," Texas Annual Manure Management Conference (Austin, Texas, September 9-10, 1999), p. 2.

104 TNRCC Complaint Printout, Complaint No: 100000050, 9/22/1999. Data provided by TNRCC, 3/13/2000.

105 TNRCC Complaint Printout, Complaint No: 109800164, 12/5/1997. Data provided by TNRCC, 3/13/2000.

106 TNRCC Complaint Printout, Complaint No: 100000050, 9/22/1999 and Complaint No. 109800164. Data provided by TNRCC, 3/13/2000.

107 TNRCC Complaint Printout, Complaint No: 109800526, 12/5/1997. Data provided by TNRCC, 3/13/2000.

108 TNRCC, "Odor Complaint Prioritization Criteria," attachment to Interoffice Memorandum to Field Operations Air Program Managers, from Debra Barber, Air Program Director, Re: "Odor Complaint Handling Procedures," December 14, 1993. TNRCC utilizes four "Odor Complaint Prioritization Criteria" to determine how quickly to respond to complaints. Only "Priority 1" complaints warrant an immediate response. CAFO nuisance odor complaints generally fall under "Priority 3," to be investigated within 30 calendar days.

109 Letter to Charles C. Ross, Director of Field Operations, Railroad Commission of Texas, from TNRCC, October 16, 1996, p. 2. Specifically, TNRCC states: "The agency has always held that an investigator should not (typically) cite a nuisance violation based exclusively on personal observation of emissions of a nuisance character. Such violations should result from an investigation initiated by a complaint from a private citizen alleging nuisance odor conditions."

110 TNRCC, "Alternative Odor Complaint Handling Procedures," attachment to Interoffice Memorandum to Joe Vogel, Deputy Director, Office of Compliance and Enforcement, from Debra Barber, Air Program Director, Re: "Alternative Odor Complaint Handling Procedures," April 24, 1996, p. 4 (attachment).

111 Interoffice Memorandum to Regional Managers, Air Program Managers, TNRCC, from Debra Barber, Air Program Director, Field Operations, Re: "Investigations/Violations at CAFOs," March 22, 1994.

112 Parnell, Charles, Bryan Shaw and Brent Auvermann, Agricultural Air Quality Fine Particle Project, Task 1 Final Report, December, 1999 and Washington Administrative Code 173-400-105.

113 Rules of the Georgia Department of Natural Resources, Environmental Protection Division, Chapter 391-6.20(5)(i); 391-6.20(8)(n)(2); 391-6.20(8)(o); 391-6.20(8)(p); 391-6.20(11).

114 General Assembly of North Carolina, House Bill 515 (1997).

115 Iowa HJ 2344, 1998, An Act Providing for Agricultural Production, Including Regulating Animal Feeding Operations and Making Penalties Applicable and Providing Effective Dates.

116 Kansas, SH 2950, 1998.

117 Lucas, John, "Kentucky Ponders Hog Plan," The Evansville Courier, July 15, 1997. Internet source: http://courier.evansville.net/news/97/Ken071597.html; Thompson, Nancy, "What's Happening? A State-by-State Summary," Center for Rural Affairs, p. 4. Internet source: http://www.salamander.com/~manyhogs/thompson.html.

118 Mississippi Senate Bill 2895 (1998); Letter to Charles Chisolm, Mississippi Department of Environmental Quality from F.E. Thompson, Jr., M.D., M.P.H., State Health Officer, November 17, 1999, p. 5.

119 General Assembly of North Carolina, House Bill 515 (The Clean Water Responsibility and Environmentally Sound Policy Act, 1997).

120 General Assembly of North Carolina, House Bill 1480 (1997).

121 Georgia Board of Natural Resources, "Resolution Regarding Large Hog Producing Operations in Georgia," January 27, 1999.

122 TNRCC, CAFO permits database printout. Data provided by TNRCC, March 8, 2000.

123 TNRCC, "Executive Director's Response to Public Comments," Application by Vall, Inc. for Permit No. 04087, Docket No. 1999-0859-AGR, July 30, 1999; TNRCC, "The Office of Public Interest Counsel's Response to Request for Hearing in the Matter of the Application by Vall, Inc. for TPDES Permit No. 04087," TNRCC Docket No. 1999-0859-AGR; TNRCC, "Executive Director's Response to Hearing Requests," Application by Vall, Inc. for Permit No. 04087, Docket No. 1999-0859-AGR, July 22, 1999; TNRCC, "CAFO Inventory by SIC Code," permit database compiled by TNRCC, March 7, 2000. Letter to TNRCC from Thomas J. Cloud Jr., U.S. Fish and Wildlife Service, June 29, 1999. Public Notice, Stratford Star, June 17, 1999, p. 8. TPDES Permit for Concentrated Animal Feeding Operations, Permit No. 04087, August 12, 1999. TPDES Permit for Concentrated Animal Feeding Operations, Permit No. 04105, August 24, 1999.

124 TNRCC, CAFO permits database printout. Data provided by TNRCC, March 8, 2000.

125 Minnesota Rules 7009.0080.

126 Memo to Greg Ruff, Minnesota Pollution Control Agency, from Kathy Norlien, Minnesota Department of Health, February 15, 2000.

127 Statement of Emergency from Governor Paul E. Patton, February 11, 2000; 401 Kentucky Administrative Rules 5:072E.

128 75th Texas State Legislature, House Bill 1542 (1997).

129 Texas Register, "Texas Natural Resource Conservation Commission: Notice of a Proposed General Permit," Vol. 23 (March 6, 1998), pp. 2597-2598; Texas Water Code §26.040.