Nutrient pollution from land applications of manure: discerning a remedy for pollution.

• Author: Centner, Terence J.

INTRODUCTION

The production and processing of food involves byproducts that may create problems if not handled appropriately. Manure, poultry litter, and process wastewater are major byproducts of raising animals for food. (1) Historically, nuisance causes of action were employed to alleviate conditions related to the inappropriate disposal of animal wastes. (2) Common law causes of action, however, did not lead to the cessation of annoyances and discomforts associated with some activities. (3) In a case seeking relief from offensive odors from a poultry slaughtering plant, the Iowa Supreme Court found that the facility was not a nuisance per se, and that it could continue with its operations if it took certain remedial actions to reduce odors. (4) The court observed that the squeals of pigs and odors arising from chickens do not constitute nuisances. (5) Another case decided that a total injunction of any release of dirty water was too broad. (6) Nuisances could not be precluded unless they caused substantial injury to the party seeking relief. (7) Common law causes of action also generally could not grant relief from a nuisance before injury occurs. (8)

These cases highlight situations where common law remedies did not provide outcomes desired by a majority of the public. Because common law was not precluding egregious polluting activities, Americans turned to their legislatures and sought legislative prohibitions. (9) To address water pollution, Congress enacted the Clean Water Act of 1972. (10) The act precludes discharges of pollutants into navigable waters from point sources without a permit. (11) Under the National Pollutant Discharge Elimination System (NPDES), persons apply to a permitting authority and thereafter can discharge regulated amounts of pollutants into waters. (12) Recognizing that large animal production facilities might be the source of significant pollution, Congress defined point sources to include concentrated animal feeding operations (CAFOs). (13) Pursuant to subsequently adopted regulations, confined animal operations with more than a defined number of animals need NPDES permits. (14) The permitting requirements of the Clean Water Act have spurred efforts to reduce pollution and have presented controversies about who must have permits and what must be done to reduce discharges of contaminants. (15)

After learning about the harm inflicted by the disposal of hazardous substances at Love Canal and other sites, Congress enacted the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). (16) This act joined the Resources Conservation and Recovery Act of 1976 (17) and the Toxic Substances Control Act of 1976 (18) in regulating hazardous waste. The federal government was authorized to take actions to clean up, remove, and arrange for remedial action relating to hazardous wastes. (19) Primary goals included protecting public health, (20) promoting the prompt cleanup of hazardous waste sites, and sharing financial responsibility among parties creating the hazards. (21) State common law causes of action were retained, (22) but the federal government could act to protect the public against injuries. (23)

Focusing on water pollution, the success of the Clean Water Act in reducing discharges by industrial and commercial point sources of pollutants has elevated the prominence of other sources of pollution, especially agricultural pollution. (24) Agricultural activities that have major impacts on water quality include tillage, fertilizing, manure spreading, pesticides, feedlots, irrigation, clear cutting, silviculture, and aquiculture. (25) Much of this pollution comes from nonpoint sources, and the Clean Water Act does not meaningfully protect the nation's waters from this pollution. (26)

In delineating provisions in the Clean Water Act, Congress "drew a distinct line between point and nonpoint pollution sources. Nonpoint source pollution generally results from land runoff, precipitation, atmospheric deposition, or percolation rather than from a discharge at a specific, single location. (28) Given the absence of an identifiable conveyance of pollutants allowing for a workable method for governmental oversight, nonpoint source pollution is not regulated by the NPDES permitting system. (29) Instead, states have designated areas with substantial water quality control problems, (30) and the U.S. Secretary of Agriculture has established the area-wide waste treatment program incorporating best management practices to control nonpoint source pollution. (31)

CAFOs have been governed for more than thirty years by federal regulatory provisions adopted by the Environmental Protection Agency (EPA), (32) known as the CAFO regulations. (33) Environmental groups have challenged the regulations for being inadequate in a series of lawsuits since the late 1980s. (34) The EPA was ordered to revise its CAFO regulations in 1992, (35) and after considerable study and public input, new rules were adopted in 2003. (36) These were immediately challenged by agricultural and environmental interest groups, leading to a Second Circuit ruling in Waterkeeper Alliance, Inc. v. Environmental Protection Agency. (37) Revised federal CAFO regulations were issued in 2008, (38) and these were also challenged. (39)

Efforts to reduce the impairment of waters by pollutants from food animal production disclose controversy about the rights of agricultural producers to engage in practices that cause water pollution. (40) Regulatory inertia in confronting unacceptable pollution (41) and conflicting beliefs concerning rights to pollute as opposed to rights to pollutant-free waters have interfered with meeting water quality goals. (42) Federal law allows agricultural stormwater discharges accompanying the application of manure to fields,(43) and other agricultural pollutants come from animal production facilities that are not CAFOs (44) and from CAFOs that lack NPDES permits. (45)

Frustrations in the failure of the Clean Water Act to end unacceptable pollution has led proponents of cleaner water to seek other remedies. One is to return to common law nuisance.

A second is to seek response costs for water contamination under the recovery provisions of CERCLA. (46) In 2005, the Oklahoma Attorney General commenced a legal action against Tyson Foods, Inc. and other poultry integrators for water contamination in northeastern Oklahoma under several causes of action, including nuisance and CERCLA. (47) Documentation prepared for Oklahoma v. Tyson Foods, Inc. shows multiple legal causes of action offering possibilities for curtailing animal waste contamination. (48)

While the CAFO regulations and CERCLA provisions provide important remedies for reducing pollution, they also express changed values and expectations that affect property rights. Former animal production practices accompanied by pollution may no longer be tolerated as the public demands the cessation of practices causing harm. (49) In defining acceptable agronomic practices, the federal CAFO regulations offer a standard for reasonable manure application: nutrient sufficiency for plant growth. (50) Any deviation from the standard leading to discharges of nutrients into waters may be unreasonable. (51)

Tip O'Neill, former speaker of the House, once declared that "all politics is local." (52) The examination of water pollution from animal production supports this observation. Although Congress has enacted laws making egregious water pollution illegal, exceptions allow polluting activities to occur and some areas may wish to do more to curtail the release of pollutants. (53) To address existing sources of pollution, including contamination accompanying the overapplication of manure, citizens may need to resort to nuisance law. (54) Nuisance is based on unreasonable, annoying, or vexatious conduct, and depends on the locality. (55) In defining discharges for CAFOs, the federal CAFO regulations establish a benchmark for determining what constitutes reasonable manure application practices. This benchmark might be employed to determine what constitutes the reasonable application of fertilizer permitted under CERCLA. Practices involving manure applications that fail to conform to this benchmark are unreasonable and might be addressed through nuisance lawsuits.

1. THE REGULATION OF MANURE APPLICATION

   The federal CAFO regulations differentiate CAFO production areas from land application areas. (56) Production areas are point sources of pollution and, due to the federal regulations, are not able to have any discharges. (57) The fact that CAFO production areas cannot have discharges suggests that the impairment of water quality from the production of farm animals is related to the application of waste to land and nonpoint source pollutants from farm animals. (58) Because land application areas are indispensable parts of CAFO operations, runoff from land application areas under the control of a CAFO owner or operator is regulated by the CAFO regulations. (59) Owners and operators of CAFOs who apply manure, poultry litter, and process wastewater (hereinafter called manure) to land are precluded from discharging pollutants into waters of the United States, (60) except for agricultural stormwater discharges. (61)

   1. Agricultural Stormwater Discharges

      The Clean Water Act defines the term "point source" so that it "does not include agricultural stormwater discharges and return flows from irrigated agriculture." (62) Agricultural stormwater discharges are not defined by the Act, but the EPA defined this term in the CAFO regulations. (63) To exempt agricultural stormwater discharges as required by statute, (64) the CAFO regulations differentiate between agricultural stormwater discharges and other discharges. The regulations provide that:

      [W]here the manure, litter or process wastewater has been applied in accordance with site specific nutrient management...