August 2013Newsletter

EPA Targets CAFOs for Criminal Enforcement Actions under the Clean Water Act; CAFOs to Continue to be National Enforcement Priority for EPA in FY 2014-2016

Agribusiness, Food and Beverage Newsletter

The U.S. Environmental Protection Agency (EPA) recently issued a “Criminal Enforcement Alert” that summarized the agency’s most recent criminal enforcements against concentrated animal feeding operations (CAFOs). According to EPA, the purpose of the Alert was to “increase public awareness of the consequences of knowing or negligent Clean Water Act violations by animal confinement operations.” The Clean Water Act authorizes EPA to criminally prosecute livestock operation owners or operators that knowingly or negligently discharge pollutants (including manure or process wastewater) from a point source (lagoon, tank, pipe or other conveyances) into waters of the United States without a permit.


The EPA Alert summarizes the agency’s most recent criminal enforcement actions against livestock operators. The eight examples listed in the Alert all involved deliberate discharges to a water of the United States or repeat offenses that caused significant environmental damage. Examples of EPA criminal enforcement activities outlined in the EPA Alert are:


  • A Hog farm in North Carolina was required to pay $1.5M in fines and penalties, 5 years of probation and the company President was sentenced to 6 months imprisonment for pumping 324,000 gallons of hog manure from a lagoon into a nearby waterway.


  • An Oregon cattle operation was convicted of 27 state criminal acts of water pollution from an unpermitted CAFO operation for discharging animal waste using a manure gun into a nearby creek. The owner was required to pay $300,000 in fines, had 5 days of imprisonment and 3 years of probation.


  • A repeat offender feedlot in Nebraska was required to pay $12,000 and 3 years of probation after over-application of manure caused pollutants to flow into a nearby large wildlife protection area.


  • An Ohio egg producer was required to pay $300,000 in fines and penalties for a significant discharge to a creek of process wastewater after a worker over-applied wastewater from its wash water lagoons by leaving the spray application running unattended overnight.


EPA’s Alert serves as a timely reminder that one of the agency’s national enforcement initiatives for FY 2011-2013 has been to “take action to reduce animal waste pollution from livestock and poultry operations that impair [the] nation’s waters, threaten drinking water sources, and adversely impact vulnerable communities.” Although EPA sets its national priority enforcement initiatives every 3 years, the agency decided in January 2013 to continue its work on the same enforcement priorities for FY 2014-2016. In EPA’s announcement about the FY 2014-2016 national enforcement initiatives, EPA noted that it would “continue to focus federal enforcement investigations primarily on existing large and medium CAFOs identified as discharging without a permit to waters of the U.S., particularly in areas of concern due to impacts form CAFO/AFO wastes. In addition, EPA’s resources will be used to assure that CAFOs that already have permits are in compliance with those permits.”


Finally, EPA has indicated that it anticipates completing its review of the agency’s 2003 CAFO Rule’s impact on small entities in November 2013. This review, which began in October 2012, will evaluate whether the 2003 CAFO rule should continue without change, or if it should be rescinded or amended to minimize adverse economic impacts on small entities pursuant to the Regulatory Flexibility Act.

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