by Tom FitzGerald, Director, Kentucky Resources Council, Inc.
Sustain magazine Fall/Winter 2002
Few issues affecting agriculture have been as controversial and divisive as that of concentrated animal feeding operations (CAFOs). 1 The displacement of traditional, low-intensity, livestock operations with industrial-scale facilities where farmers under contract with corporate “integrators” feed and house the corporate-owned animals for a fee under controlled and confined conditions, has profound economic, environmental, social and political consequences.
These intensive livestock operations are a component of a system of industrial production of pork and chicken products through an integrated structure of companies, investors and contractors. These operations reflect an industrialization of agriculture, where the processing and production operations are controlled by fewer and larger businesses that either purchase farms to produce the products they need (called vertical integration) or make contracts with farmers to produce these products. Under the contract model, farm-level control over agricultural production decisions is replaced by corporate control through the contracts, relegating farm-level workers to the role of hired labor. 2
A modern industrial-type swine operation includes one or more hog houses holding potentially hundreds or thousands of animals, an automated feeding system, slatted metal floors with feces and urine collection system, an anaerobic lagoon, and fields for land disposal of partially decomposed wastes. Hogs produce a large amount of waste per animal, various estimates give figures of 2 to 10 times as much as a human per day. 3 The waste products of such facilities, although posing environmental and health concerns not dissimilar from human waste, are managed in a less rigorous fashion that creates a significant risk of on and off-site environmental contamination.
Intensive poultry operations, where chickens are raised in confined conditions, produce a waste litter that absorbs much of the liquid waste, but the operations generate significant waste material, odor, flies and associated air and water pollution problems otherwise similar to those of intensive hog operations.
The intensity of local opposition to concentrated poultry and hog feeding operations in Kentucky and catastrophic lagoon failures in eastern North Carolina, prompted action by the Patton Administration to impose a moratorium on permitting of industrial swine operations. By Executive Order on July 25, 1997, Governor Paul Patton directed the Natural Resources and Environmental Protection Cabinet to develop regulations sufficient to assure that livestock operations are conducted “in a safe and environmentally sound manner to ensure a safe, healthy and beautiful environment and the continued and renewed ability of the Commonwealth’s farmers to maximize production on their farms now and in the future[.]” The intervening 41 months since the issuance of that Executive Order have seen a tug-of-war between industrial livestock operation advocates and those favoring more rigorous regulation of such facilities and a model of lower intensity livestock production. It is a battle for survival of independent small farms v. agribusiness, being waged in part on the battleground of the environmental and community impacts, with executive and legislative policymakers at an impasse on whether to subsidize industrial agriculture by maintaining lax environmental requirements, or to require industrial agricultural operations to fully account for and mitigate environmental and community impacts, thus creating a less “hospitable” economic climate for such facilities.
In September 1997, the Natural Resources and Environmental Protection Cabinet published emergency regulations addressing certain aspects of concentrated animal feeding operations. From that time until the present, there has been a frustrating cycle of efforts by the Cabinet to adopt regulations establishing setbacks between such operations and natural resources and to require the corporate integrators to share in the liability for environmental compliance from such operations; rejection of regulations by legislative oversight committees, expiration of the regulations at the end of the following legislative session; unsuccessful efforts by industrial agriculture proponents to enact legislation foreclosing the Cabinet’s regulations, and a new set of regulations after the end of the legislative session. 4
The two issues in contention in the regulations are the use of “setbacks” in order to avoid environmental impacts from the feedlot and waste disposal areas of the concentrated animal feeding operations, and whether the corporate “integrators” who own the livestock, supply the feed and any additives, and exert substantial control over the conditions of the livestock production, and who reap the lion’s share of profits, should be required to bear commensurate risk by being jointly liable for environmental contamination or releases from the facility.
The potential for concentrated animal feeding operations to adversely affect the environment, including the quality of life of neighbors in rural areas, is well documented. The environmental problems associated with intensive poultry and hog operations arise in great extent because too many animals are confined in one place, creating a significant waste and wastewater volume containing high levels of nitrogen, phosphorus, and other constituents such as certain metals that must be managed and disposed. Rather, the debate centers on whether Kentucky should lead or follow in the area of extending regulation to the environmental and human consequences of these facilities, or to await federal leadership.
The old adage “Your freedom ends where my nose begins” was never more appropriate than when addressing industrial-scale livestock waste management. The concentration of significant outputs of nutrients in waste into a geographically compact area, and use of land areas for disposal of partially treated wastes, is a legitimate matter for government concern. Intensive hog and poultry production operations can be significant sources of air pollution; odors, surface and groundwater pollution, and can if improperly sited, constructed or operated, create a public nuisance. The debate over environmental and human health costs associated with these industrial-scale operations and the management of the wastes and wastewaters generated by these facilities focuses on whether these impacts will be fully accounted for by the facilities and those who control the production decisions, rather than being placed on the contract farmer or externalized through groundwater or surface water pollution, contamination of agricultural land, and loss of property values and of use and enjoyment of other properties due to airborne odors, pathogens and air toxic emissions.
Among the concerns associated with industrial-scale livestock production are these:
- odors and gases within confinement buildings and emissions from anaerobic lagoons and land application, which are major sources of ammonia and other noxious and toxic emissions, posing risks to workers and neighbors alike. The physical and emotional toll of odors associated with these operations on “downwinder” neighbors has likewise been documented;
- excessive or inappropriate land application of wastes and wastewaters can cause surface water pollution since up to half of the nitrogen applied is not utilized and is transported through leaching, evaporation or runoff, along with phosphorus, copper, zinc and other trace metals and compounds;
- disposal of carcasses and of manure (CAFO operations can attract significant fly populations, which can be vectors of several diseases in humans);
- surface waters may be affected by the atmospheric deposition of ammonia off-gassed from lagoons;
- excess nutrient (nitrogen, phosphorus, minerals and metals) loading into streams resulting in nuisance algal blooms, hypoxia (low oxygen levels) and anoxia (complete loss of oxygen), causing fish kills. Excessive application of manure results in leaching of nitrates through soil into groundwater. The costs of improper management of animal wastes on fisheries and natural resources are potentially significant;
- animal wastes are a significant health concern because they contain a vast array of pathogens. The need to carefully control the management of swine wastes because of the possibility of transmittal of flu viruses and other diseases from swine to humans and from poultry via swine to humans;
- nitrate contamination of surface and groundwater supplies is a significant public health concern.
Against this backdrop, the Cabinet has been unsuccessful in adopting a durable set of regulations providing even a modicum of controls. The Cabinet has chosen to utilize two tools – first, it is has employed the use of setbacks as a tool for minimizing air and land transport of water pollutants from waste management and landspreading areas. Setbacks, creating a spatial buffer between the activity and sensitive human or ecological receptors, is a commonly-employed tool in managing the odors, airborne toxics, disease-causing organisms and other air contaminants associated with these facilities.
In establishing appropriate setback distances, varying distances have been utilized by states and localities. 5
The second controversial tool that the Cabinet has employed is to impose on the contracting corporations joint liability for environmental compliance with permit conditions. The inclusion of integrator liability rests on the principle that primary or joint responsibility for compliance with water discharge (KPDES) permit conditions rests with the owner of the animal generating the waste, and the one who is directing the manner in which the animal is raised and managed.
The imposition of responsibility for environmental compliance on the party contracting with the local producer is not without precedent, and is particularly appropriate in this case since the input and output decisions are largely dictated by the corporations and their integrators. The question is whether responsibility for environmental compliance should be shared by the corporation and integrators, or borne entirely by the contract farmer or other third party. The imposition of joint liability is fully consistent with the proposed EPA strategy for addressing confined livestock operations, and consistent with EPA’s recognition that “operator” is a term that is interpreted to include the corporate integrators, in order to assure that the responsibility and accountability is placed on those who own the animals and who have the ability to direct the operations of the facility.
The regulations are far from a comprehensive effort to manage the environmental impacts of CAFOs. Stymied by the legislative policy that creates a regulatory “ceiling” of federal “floor” pollution control standards, a more comprehensive regulatory framework awaits state legislative action or finalization of regulations and regulatory policy by the U.S. Environmental Protection Agency and U.S. Department of Agriculture. 6 Such an effort would include a comprehensive nutrient management plan addressing pollution runoff potential from all site activities, (including litter storage and landspreading, storage of feed and mineral or chemical additives and inputs; disposal of wastewater associated with the cleaning or disinfection of the facility); siting provisions; standards for construction and design of facilities; protection against catastrophic failure, leakage, odor from lagoons; liner and seepage standards for lagoons; characterization of wastes and wastewaters for all potential pollutants including disinfectants, pesticides, antibiotics, hormones, heavy metals in feeds, bacteria, and viruses; standards for control of odors, air pollution, potential for spread of disease, and water pollution associated with use of anaerobic lagoons and land application for waste and wastewater treatment; evaluation of the feasibility of alternative waste and wastewater treatment systems; controls on run-on and runoff from all waste storage and disposal areas; controls on land application, a comprehensive nutrient management plan demonstrating that the waste and wastewater will be managed so as to prevent nuisance and pollution; characterization of the waste, wastewaters and manure; controls on land application of wastes and wastewaters, including controls on application rates to assure that any land application will not exceed soil and plant uptake, and measures to address the problem of long-term concentration of salts and metals in soil, and movement of those salts and metals into the groundwater; litter and waste storage controls; prohibitions on aerial spraying of wastewater and requirements for immediate incorporation and injection; plans for management and disposal of dry chicken “litter” from broiler houses and layer cages and “wet litter”; and characterization of the geological setting proposed for land application of wastes from such operations. Such a program would also include consideration of the past compliance history of all owners and controllers of the applicant and a prohibition against issuance of new permits to any facility which has an outstanding unresolved violation of any air, land or water pollution law; financial assurance that some funds will be set aside to assure proper closure of the facility and clean-up of any spill or release is needed; liability insurance to pay any judgments or claims from third-parties; appropriate reporting obligations; a ban on anaerobic lagoons and landfarming wastes or wastewaters for intensive hog production operations; public participation; and use of Best Available Waste Management Technology for new or expanded large-scale operations.
The siting and operation of these concentrated animal feeding operations has been the subject of intense regulatory activity and legislative debate, pitting large corporations, the Farm Bureau, and livestock associations against small farmers, rural neighbors, urban and rural conservationists, and the cities and towns that are faced with the nuisance caused by concentration and landspreading of substantial volumes of minimally-treated wastes. Whether concentrated animal feedling operations will be required to fully account for and mitigate environmental impacts, will in turn affect the economic viability and environmental “sustainability” of this method of production. Whether the deep pocket corporations who have, through contracts of adhesion, shifted the liability and economic risk downwards in the integration model onto the contract farmers while maximizing control and profits up the chain, will be required to stand accountable in the environmental area for the compliance of those operations, will likewise determine whether the state is viewed as an environment accommodating to this model of production of livestock.
The environmental issues concerning concentrated animal feeding operations are a facet of the larger struggle to define the future face of agriculture in our state and nation - a struggle for survival of independent farms against the vertically integrated contract farming model. The issues concerning the trend of increasing concentration of agricultural and livestock ownership, control and market power in the hands of a few corporations, and the economic and social effects of introduction of contract livestock production on communities and local markets must be understood and assessed in order to shed light on the dramatic consequences of the policy choices that this Commonwealth will make in the next few years.
There is strong evidence that vertically integrated and contract-based livestock production operations have negative, rather than positive, economic effects on state and local economies, with attendant negative social and health consequences for communities. For those farmers who attempt to maintain independence, the advent of corporate livestock production is a significant threat. As the percentage of livestock production under contract to the corporate integrators increases, market availability and the sale price for the independents drops precipitously. Measured in local economic impact, vertically-integrated contract operations produce less permanent jobs, less local retail spending, and less local per-capita income, than independent farm operations. For every job created, factory farms displace many more jobs both on and off the farm. 7 Vertical integration means often that local suppliers of fuel, feed and farm supplies are shut out of the market and that the profits are shifted out of state. 8
Overall “a change towards corporate agriculture produces social consequences that reduce the quality of life for rural communities.” According to a 1990 Study by sociologist Linda Labao, summarizing fort years of empirical research, “an agricultural structure that was increasingly corporate and non-family owned” tended to lead to population decline, lower incomes, fewer community services, less participation in the democratic process, less retail trade, environmental pollution, more unemployment and an emerging rigid class structure.
Kentucky is in a somewhat unique position relative to other agricultural states. Kentucky has the highest number of family farms, many of which have been at least in part reliant on tobacco allotments for financial stability. The dramatic changes in the tobacco program which are anticipated in the near future, as well as structural changes in the agricultural economy, make this a particularly unsettling and vulnerable time for Kentucky’s farmers. In such a time, the potential for victimization by a system of integrated contract livestock and poultry production is heightened. 9
The environmental issues concerning concentrated animal feeding operations have also become a significant field of battle between the branches of state government over the implementation of regulatory policy. A legal challenge to the emergency regulation adopted after the 2000 General Assembly session resulted in a determination that under KRS Chapter 13A, the new regulation was “substantially similar” to the former, rejected regulation and thus could not be lawfully promulgated. 10 That decision is in abeyance pending resolution of a declaratory judgment action filed by the Governor, 11 spawned in no small part because of this policy impasse, asking the Court to declare that the legislative oversight committees lack the power to determine a regulation invalid and to cause it to expire at the end of the next legislative session unless enacted into law.
The resolution of that case could affect more than merely the survival of this regulation. Propelled by the myth that economic development suffers from rigorous environmental regulation and high environmental standards, the legislature through the oversight committees have caused the expiration of numerous environmental regulations deemed to be “more stringent” than the bare minimum required by federal law. The legislative review process by which the Administrative Regulation Review Subcommittee and the substantive committee of jurisdiction review administrative regulations, has never resulted in the strengthening of a regulation proposed by the Governor, but instead has been a “no man’s land” in which any effort to extend protection of the laws to air, land and water resources more rigorous than mandated by federal law to states choosing to manage the federal environmental programs, is determined “deficient” and placed in jeopardy of expiration. The delegation of the power to determine law to a relative handful of legislators and the heavy-handed manner in which that review authority has been wielded in the environmental arena has affected not only the survival of the regulations, but has created a climate in which the agencies are loathe to attempt to propose a regulation more appropriate and comprehensive in approach. The result is the rejection of a modest regulation that, by any fair yardstick, is far short of the goal of the Executive Order.
The fundamental policy question that has to be asked is whether the state will follow a policy of allowing, even sanctioning, the development a corporate model of vertically integrated or contract-based industrial agriculture, in which the prices at the farm gate are kept low, the risks are disproportionately shifted to the backs of the farmers, and the farmers are required to have the best technology and to bear the risks associated with retiring the debt on such technology; or whether the state will help to foster locally-owned value added opportunities and help to create processing cooperatives that will enable farmers to obtain higher prices and to successfully compete with similar corporate-owned facilities for market share. Agriculture in Kentucky is at a crossroads, in which we can choose a path of replacing an uncomfortable dependency on tobacco production with an equally uncomfortable dependency on contract livestock production, or where we can cultivate and grow an agricultural economy which is locally owned and operated, capable of competing in the marketplace, and sustained by independent farmers cooperating in development of value-added agriculture.
As the state debates agricultural policy in the 2002 legislative session and allocates tobacco settlement money, the legislature has a fundamental policy choice that it must promptly face, lest inaction lead to de facto adoption of a policy that favors through inadequate economic policy and through inadequate environmental regulation, the displacement of local farm economies with vertically-integrated industrial-scale corporate farming. The question of industrial agriculture is not merely one of significant environmental problems associated with the intensity and density of such operations. It is, in fact, a question of whether we will seek to encourage, cultivate and sustain “a Kentucky where family farms, natural beauty and strong communities are enduring legacies to our children.” 1213 Agricultural economist John Ikerd, describing the industrial model of livestock production as tomorrow’s problem disguised as today’s solution, concluded with this observation:
"The primary advantages for rural areas in the twenty-first century will be the unique qualities of life associated with open spaces, clean air, clean water, scenic landscapes, and communities of energetic, thinking, caring people. Communities that sacrifice these long run advantages for short run economic gains may have a difficult time surviving in the new century. Thus, my number one concern is that large-scale, corporate hog operations are tomorrow’s problem disguised as today’s solution. They may keep rural people from doing the things that need to be done today to ensure the future of their communities. Large-scale, corporate hog operations will not create communities where our children and their children will choose to live and grow. Communities with a future must take positive actions today to ensure a desirable quality of life for themselves, their children, and rural children of future generations."
1 The determination of whether a livestock operation constitutes a “concentrated animal feeding operation” depends on the number of livestock housed, the conditions under which the animals are confined, the type of waste management system, and the environmental impacts.
2 One contract grower likened the relationship of integrator to contract farmer to a feudal relationship. “You are like a serf on your own land,” said Mary Clouse, a North Carolina grower. The integrators, through the contract, control the quality of chickens (and health) delivered, the composition of the feed, the type of equipment to buy and when to use it. Southern Exposure, “Ruling the Roost.” Summer 1989, Volume XVII, No. 2.
3 Cahoon, Hogs Threaten Disease As Well As Pollution, (1995).
4 The website for the Kentucky Division of Water on Concentrated Animal Feeding Operations, http://water.nr.state.ky.us/dow/cafo2.htm, contains an extensive chronology of the regulatory history of this issue, with links to court decisions, regulations, statements of consideration in response to public comments, and other supporting information. EPA maintains a website at http://www.epa.gov/ost/guide/cafo/index.html with access to supporting documentation concerning their strategy for addressing water-related impacts of concentrated animal feeding operations.
5 According to an article in Environmental Health Perspectives, (December 1995), the National Pork Producer’s Association recommended new hog operations be located 1,500 feet from houses and 2,500 feet from schools, hospitals and churches. The research conducted by Dr. Schiffman at Duke University indicated that swine odors tend to drift in a plume, and that the plume is not attenuated at significant distances, and is offensive at extremely low concentrations.
North Carolina’s legislature, in 1996, proposed a 1,000-to 1,750-foot property line setback, depending on size of operation, 1/4 mile to any waterbody (minimum), up to 1/2 mile for significant waterbodies (down to 500 feet if lagoon is concrete lined); 500 foot to any well, 100 foot to any ditch or swale; which setbacks may be expanded depending on location relative to the 100-year floodplain, soil type, location in watershed, nutrient sensitivity of receiving waters, slope, proximity to other pollutant sources, and parklands. In Lincoln Township, Missouri, setbacks depend on the lagoon storage and volume with 1 mile setback from dwellings for lagoons of greater than 20-acre feet.
J. Paxton Marshall, Virginia Tech Professor Emeritus of Agricultural Economics (deceased), recommended setbacks of 1 mile from any group facility and .5 mile from any residence for large swine facilities (100 to 250 breeding stock); and for industrial scale operations, (greater than 250 head of breeding stock) 1 mile from residences and 1.5 miles from any group facility, with the possibility of individual waivers if all owners within the prescribed distances waive such setbacks.
6 In March 1999 EPA and the USDA announced a joint strategy for Animal Feeding Operations. In August 1999 EPA issued a draft “Guidance” for state water discharge permitting of concentrated animal feeding operations. On January 12, 2001 EPA published proposed revisions to the National Pollutant Discharge Elimination System Permit Regulations and the Effluent Guidelines and Standards for Concentrated Animal Feeding.
7 Illinois Stewardship Alliance.
8 A University of Minnesota study found that livestock operations grossing under $400,000 a year spent 79% of their business expenditures within 20 miles of the farm; but that larger operations spent only 49%.
9 The lack of equal bargaining position of the contract growers relative to the corporate integrators has been the subject of recommendations from state Attorneys-General, growers association, and others, for adoption of state laws mandating fair contracting and reporting. In Kentucky, the plight of the contract grower and the adhesion contracts common in the industry drew little legislative attention, until the parallel concept of contracting for tobacco production highlighted the potential for overreaching in such contracts and the need to assure fundamental fairness in contracts that affect the public interest as does agricultural production and the health of the farm economy.
10 Kentucky Farm Bureau Federation, Inc., et al. v. Commonwealth of Kentucky, Natural Resources and Environmental Protection Cabinet et al., Franklin Circuit Court Case No. 00-CI-00706 (Decided May 25, 2001, decision on Motion to Vacate, Alter or Amend pending).
11 Patton v. Sherman and Wunderlich, Franklin Circuit Court Case No. 01-CI-00660 (2001) pending.
12 Executive Summary, p.7, Kentucky farms and markets: emerging policy opportunities, Office for Environmental Outreach, Kentucky Department of Agriculture
13 In his essay on the “Top Ten Reasons for rural communities to be concerned about large-scale, corporate hog operations,” agricultural economist John Ikerd, of the University of Missouri, Columbia noted the arguments in favor of locating large-scale corporate hog operations in specific rural communities, including jobs, tax base, maintaining the agricultural base, the inevitability of “progress,” consumer preferences for uniform quality, and the economy of scale.
Ikerd outlined ten top reasons for local communities to be concerned about hosting these facilities: odor, the grueling work, problems with concentration of wastes, lack of consumer benefit, continuing regulatory problems; loss of local control over future of community;
Divisions caused in communities by these facilities; and the degradation of the productive capabilities of rural residents. In concluding that the “solution” of factory farms are really tomorrow’s problem disguised, Ikerd notes that in one generation, large-scale industrial livestock operations will wipe out the “vast treasure of public confidence and good will” towards agriculture that has resulted in special privileges, exemptions, and variances to agriculture under a whole host of public policies—from taxation to environmental regulations—because they were trusted to behave in the public interest. The destruction of public confidence in agriculture is a possible outcome of these industrial-scale operations, according to Ikerd.