SAVE THE VALLEY V. EPA – FEDERAL COURT SLAMS IDEM FOR IGNORING THE CLEAN WATER ACT AND THE IMPACT OF CAFOs

Those who support CAFOs argue that Indiana and the Indiana Department of Environmental Management (IDEM) have been good stewards of CFO and CAFO management, yet the federal district court for the southern district of Indiana has found otherwise.

The case is somewhat lengthy (18 pages without footnotes); however, it is a case that needs to be read for its analysis and criticism of Indiana’s failure to comply with the Clean Water Act’s mandate of an adequate National Pollutant Discharge Elimination system of permits, which are required to be given to CFOs and CAFOs. After reading the case again for about the fifth time, I am even more convinced and disgusted that IDEM and its members have failed in their obligations to protect our Indiana environment and the rights of Indiana citizens to clean air, clean water, and clean soil. I hope, as readers, you have the time and patience to read my condensed summary of the case.

THE CASE

The full name of the case is Save the Valley, Inc., Thomas Breitweiser and L. Jae Breitweiser, Plainitffs v. United States Environmental Protection Agency, Christine Todd Whitman, in her capacity as Administrator of the Unites States Environmental Protection Agency, and David A. Ullrich, in his capacity as Administrator of the United States Environmental Protection Agency, Region 5, Defendants, Indiana Department of Environmental Management, Intervenor Defendant.

Quite a lengthy caption, so let me explain briefly about the parties.

The Plaintiffs:

  • Save the Valley: a not-for-profit corporation dedicated to protecting the environment.
  • Thomas and L. Jae Breitweiser: owners of property who lived adjacent to a proposed CAFO.

The Defendants:

  • Christine Todd Whitman: at the time of the lawsuit, Whitman was EPA administrator. She now is a partner in an environmental energy lobbying group working on behalf of businesses and corporations.
  • David A. Ullrich: at the time of the lawsuit, Ullrich was the administrator of the EPA’s Region 5 offices which included the states of Indiana, Michigan, Ohio, Illinois, Wisconsin, Minnesota, and 35 tribes. Ullrich is now director of the Great Lakes and St. Lawrence Cities Initiative, an effort by the region’s mayors to advance the restoration and protection of the Great Lakes ecosystem.
  • Indiana Department of Environmental Management (IDEM): IDEM intervened as a defendant pursuant to Federal Rules of Civil Procedure Rule 24. The rule allows certain groups, individuals, organizations, etc. to enter a lawsuit if they believe they have an interest that may be impacted by the court’s decision. In this case, IDEM was the manager of the NPDES permitting program.

Thus, the case proceeded with two plaintiffs – Save the Valley and the Breitweisers – and three defendants – Christine Todd Whitman as EPA administrator, David Ullrich as EPA Region 5 administrator, and IDEM as manager of the Indiana program in question.

CONCENTRATED ANIMAL FEEDING OPERATIONS AND THEIR ENVIRONMENTAL IMPACTS

Animal feeding operations – AFOs – are industrial farms that congregate animals, manure and urine, dead animals, and production into a small area of land. Not all AFOs are CAFOs since designation as a CAFO is based partly on their number of animals.

An AFO can be a CAFO when:

  • It has more than a 1,000 animals, or
  • It has between 300 and 1,000 animals and discharges pollutants through a man-made structure or into any waters that run through the facility or come into direct contact with the confined animals, or
  • It has less than 300 animals but has been a significant contributor of pollution to the waters of the United States.

Treatment of animals and their waste products is based mostly on a cost-benefit analysis. Animals are generally kept in pens and are not allowed outside into fields or open pens. The floors are slatted so that waste can drop through the slats into a holding tank below the floor. The animals are confined 24-hours a day with the animals’ waste dropping into a huge tank to be disposed of at a later time.

The waste is then pumped from the underground storage tanks to lagoons – large above ground storage facilities capable of holding millions of gallons of liquid manure. From the lagoons, the waste is transported to be spread, sprayed, or injected onto or into croplands or pastures. The picture to the right is of a tank used for spreading manure and is euphemistically called a “honey wagon.”

Manure contains nutrients such as nitrogen and phosphorus; pathogens (disease-causing bacteria) such as e. coli; salts such as ammonia which can be caustic and hazardous; and heavy metal such as copper and zinc. While manure can be beneficial in appropriate quantities, over application can be hazardous. The quantities now being generated by the industrial-sized CAFOs are no longer in the realm of beneficial. And, unlike human waste, animal waste need not be treated.

The pollution that can occur from lagoon breakage or spillage or improper land application adversely impacts surface water, groundwater, air quality, and soil quality.

Because the trend in the past 20 years has been toward fewer and fewer but larger and larger operations, in 1999, the EPA and the United States Department of Agriculture (USDA) implemented a Unified National Strategy for Animal Feeding Operations. The strategy recognized the role played by these operations in the pollution of national waterways.

THE CLEAN WATER ACT – 1972

The Clean Water Act was enacted in 1972 to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.Prior to 1972, the states were responsible for individual programs establishing standards and regulations for water quality.The states were assisted by minimal oversight from the federal government. Today, the Act regulates all discharges of pollutants into waters of the U.S.

The regulatory mechanism for discharge is a federally mandated and supervised National Pollutant Discharge Elimination System (NPDES) permit program. A state’s compliance with the Clean Water Act is determined by its compliance with the NPDES program. The permits impose limitations on the discharge of pollutants and establish related monitoring requirements.

The Clean Water Act assumes a partnership between the states and the federal government – cooperative federalism. Although the Act authorizes the EPA to issue NPDES permits, states may apply for and administer their own permit programs provided they comply with the Act’s detailed statutory and regulatory requirements.

THE CLEAN WATER ACT’S REGULATION OF CONCENTRATED ANIMAL FEEDING OPERATIONS

The Clean Water Act prohibits “point” sources from discharging pollutants into waters of the United States unless the discharge is made in conformance with a valid NPDES permit obtained prior to discharge. Thus, operations intending to discharge certain materials into waters of the United States may only do so subsequent to proper application and granting of an NPDES permit.

A point source is defined as “any discernable, confined and discrete conveyance….from which pollutants may be discharged. Under federal law CAFOs, not AFOs, are point sources subject to the NPDES permitting requirements. Any CAFO that discharges or proposes to discharge must obtain an NPDES permit.

Permits are designated as either general permits or individual permits. A general permit is written to cover a category of point sources with similar characteristics for a defined area. An individual permit is issued to a specific operation and tailored to its pollution issues.

Since states have been authorized to create and manage appropriate permitting programs, the CAFO operation must apply to the state for either a general permit or an individual permit to address the point source issue. CAFOs are often given general permits because of the similarity of their operations. If the CAFO is covered by a general permit, it must submit a written “Notice of Intent” (NOI) which serves as a permit application.

Even though a CAFO may be covered by a general permit, the state may require an individual permit if:

  • The operation is especially large, or
  • The operation has a history of compliance problems, or
  • The operation has some other exceptional characteristic

REGULATION OF CAFOs IN INDIANA

Indiana was one of those states which decided to create its own permitting program. In order to establish and administer the program, Indiana had to show that it had established sufficient legal authority to administer the program in accordance with federal law. In January 1975, the EPA approved Indiana’s proposed NPDES program. In April 1991, 16 years later, the EPA approved Indiana’s program for issuance and administration of general NPDES permits.

As required by the Act and federal regulations, Indiana regulations prohibited point sources from discharging pollutants into waters of the state without a valid NPDES permit. Yet, as of January 2002, IDEM – the agency in charge of issuing permits – had never issued an NPDES permit to a CAFO.

INDIANA’S PERMIT SYSTEM – DEALING WITH CAFOs

Indiana chose to deal with CAFOs through a system distinct from its NPDES point source permitting system. The state first enacted legislation in 1971 pertaining to the construction and operation of confined feeding operations. The Confined Feeding Control Act defined a confined feeding operation as:

  • Any operation with confined feeding of more than 300 cattle, 600 swine or sheep, or 30,000 fowl, or
  • Any operation with a history of pollution problems

But prior to 2001, Indiana did not require any confined feeding operations, including federally-defined CAFOs, to apply for or obtain NPDES permits. To add insult to injury, IDEM also failed to inspect CAFOs until 1999. Prior to 1999, Indiana had never pursued an enforcement action against any CAFO.

In 1997 – 25 years after the passage of the Clean Water Act – Indiana began to formulate new rules for confined feeding operations. The new rules were finally adopted in 2001, almost 30 years after passage of the Act.

The first individual permit for a CAFO in Indiana was publicly noticed in January 2002, a full 30 years after passage of the Act. Prior to that first public notice, Indiana had never issued a permit to a CAFO.

EPA KNOWLEDGE OF INDIANA’S NPDES AND CONFINED FEEDING PROGRAMS

The EPA had followed Indiana’s progress for some years, offering guidance as to the NPDES permitting process and its implementation.In November 1999, the EPA’s Region 5 office and IDEM entered into an Environmental Partnership Agreement.Through this Agreement, IDEM agreed that the Indiana Administrative Code would ensure that all CAFOs in Indiana would have a permit equivalent to an NPDES permit.Public input was sought in September 2000 by the EPA, who announced it would hold a public meeting.

In November 2000, after several back-and-forth communications and reviews, the EPA told IDEM that the proposed rule still did not meet requirements. Finally, in July 2001, the EPA told IDEM it was necessary for IDEM to implement and enforce the 25-year-old federal regulation that had been in place since the 1975 approval of the Indiana NPDES program.

Thus, in September 2001, IDEM told the EPA that it had passed “first-ever rules governing confined feeding operations in Indiana, implementing the state statute which has been in place since 1972.”

COURT FINDINGS

  1. Indiana’s program had never been in compliance with respect to CAFOs
  2. The EPA had engaged in significant efforts for at least three years to try to get Indiana to comply with federal law; nevertheless, IDEM failed to comply with federal law
  3. IDEM should not have its program withdrawn at that time as requested by the plaintiffs
  4. IDEM was given 120 days to adopt an option provided by the EPA to bring Indiana’s NPDES program into line with the Clean Water Act

The case citation is Save the Valley, Inc. v. EPA, 223 F. Supp. 2d 997 (S.D. Ind. 2002). For those of you who are not familiar with citations, go to the 2d series of the Federal Supplement and locate volume 223. Turn to page 997, and you will find the entire case. I have tried to condense the issues and facts to provide an accurate account.

The lack of care about our environment is egregious. The entire process, from the EPA’s failure to ensure that IDEM was in compliance with the federally-mandated NPDES permitting program to IDEM’s failure to guard the state’s environment by acknowledging the increasing size of point source operations in the form of CFOs and CAFOs is inexcusable. The harm to our environment is real, and IDEM’s relinquishment of its responsibilities on behalf of the citizens of this state is indefensible.

Although IDEM is now regulating CAFOs after three decades of neglect, the only action currently required at the state level is the application to IDEM for a permit. If all is in order, the application will be granted and a new CAFO will be constructed. Counties have not been able to step up fast enough to implement set back regulations or distance regulations.

Last year, the Indiana legislature failed to pass any legislation at all regulating CAFOs. Since counties have few rules or regulations as of yet dealing with CAFOs, it is up to our state legislators to step forward and pass legislation to regulate the increasing number of CAFOs. Unless concerned citizens take it upon themselves to become involved in this issue, odds are the legislature will again fail to pass laws regulating the ever-increasing number of industrial-sized farms with all their potential environmental hazards.

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About Charlotte A. Weybright

I own a home in the historical West Central Neighborhood of Fort Wayne, Indiana. I have four grown sons and nine grandchildren - four grandsons and five granddaughters. I love to work on my home, and I enjoy crafts of all types. But, most of all, I enjoy being involved in political and community issues.
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