A leaking lagoon, corroded pipes, erosion and really foul odors.

I could be talking about a typical 100-year-old residential plumbing and septic system. Or, I could be discussing a recent consent decree that the U.S. Environmental Protection Agency entered with a large pork producer to settle groundwater contamination allegations.

Hefty penalties of more than $240,000 were part of that agreement; and as Arlo Guthrie once said in a classic song about his conviction for littering and disturbing the peace—“We had to pick up the trash.” The pork producer promised EPA that the company would clean and close those leaking lagoons, ensure that future problems would be prevented and establish erosion-control measures at 16 farms.

Among the most significant developments in agricultural law in recent years is the federal government’s regulation of concentrated animal-feeding operations—or CAFOs. EPA, which takes the lead on CAFO issues, estimates that some 17,000 livestock operations across the country are subject to agency regulations that address a range of environmental concerns related to large-scale feeding operations. They include such things as effluent discharges, manure applications and hazardous-air emissions. These operations represent about 60 percent of all manure generated by confined-feeding facilities.

5 Factors in CAFOs’ Future

1) EPA is enforcing CAFO law, and the courts are approving settlements that include pollution penalties. Regulatory compliance will remain critical.

2) What other issues with an impact on CAFOs bear watching? Animal feed issues-- For example, have the crops used been genetically modified? If so, international rules may not allow export. Animal-health product use-- Can antibiotic resistance in humans be linked to use in animals? If a link is made, liability issues abound. Lawmakers and courts may be pressured into taking action.

3) Infectious diseases in animals raise the specter of human pandemics. Mass livestock slaughter and quarantines would test the limits of rights-based law.

4) If global climate change affects water supplies expect the CAFO debate to intensify as water shortages lead to legal disputes over use and pollution issues.

5) Agroterrorism is a threat the U.S. government is taking seriously. CAFOs, just like other parts of the nation’s infrastructure such as ports and bridges, may find that security measures will be added to their regulatory burdens.

In the push-and-pull atmosphere that permeates anything that government regulators turn their attention to, environmental activists want strict CAFO enforcement. Meanwhile, agribusiness interests support legislation (H.R. 4341) to declassify animal waste as a hazardous substance under the Superfund law.

That’s one reason why the agribusiness practice group at Shook, Hardy & Bacon has its eye on legislative and regulatory developments involving CAFOs, and encourages clients to stay informed and get active.

For example, we are monitoring revisions to the National Pollutant Discharge Elimination System permit regulation and effluent limitation guidelines for CAFOs that EPA proposed after a federal appeals court ruled that EPA could regulate livestock operations with “actual” discharges of pollutants but not those with the “potential” to discharge pollutants. The appeals court decision is referenced as Waterkeeper Alliance v. EPA, 399 F.2d 486 (2d Cir. 2005). Under the proposed revisions, only CAFOs that discharge or propose to discharge pollutants would be required to seek NPDES permits.

The revisions would also make CAFO nutrient-management plans subject to public review and would clarify that the land application of manure, litter and processed wastewater is exempt from permit requirements if the discharge consists of agricultural stormwater. EPA held five public meetings over the summer to discuss the proposed revisions and will be considering that input as the rules are finalized in the coming months.

What makes CAFO issues particularly interesting from a legal perspective is how the regulatory framework may be affected in future years as E. coli outbreaks and water shortages take a larger toll on public health and the economy.

Without knowing the source of this year’s bagged-spinach contamination, fingers pointed toward “industrial farms” that raise livestock on grain, a practice that apparently can cause particularly virulent E. coli strains in beef and dairy cattle. An article reporting on groups that are making such claims appeared in The New York Times, Nina Planck, “Leafy Green Savage,” Sept. 21, 2006. Environmentalists believe there is a link between contaminated runoff from dairy farms and tainted spinach, and they will press Congress hard as it debates H.R. 4341.

Water disputes between states and among large-scale water users have been going on for years, but they will escalate as the fresh-water supply remains static and demand increases with world population growth. Regional solutions may have to be sought when the questions involve groundwater – who owns it, who can access it, manage it, use it and replenish it.

CAFOs are clearly a long-term issue. How they are regulated now and in the future will depend on lawmakers, agency policymakers and the courts. Pork producers will have many chances to shape CAFO rules and regulations, from participating in federal and state rulemaking proceedings to funding the filing of amicus briefs in court cases that interpret CAFO law. Like most areas of the law, this is one that is dynamic and changing, and has the potential to affect the industry’s future.

Jim Neet has been practicing environmental law since 1984, first as Regional Counsel with U.S. EPA’s Region 6, and since 1989 with Shook, Hardy & Bacon in Kansas City, Mo. He can be reached at jneet@shb.com for questions related to this column, or about the firm’s Environmental & Chemical Update weekly e-mail newsletter.

Internet Sites to Investigate

www.epa.gov – To stay abreast of any changes to the CAFO regulations.

www.gpoaccess.gov/fr/index.html – To sign up for daily delivery of the Federal Register's table of contents, to monitor activities.

www.fb.org – To stay in touch with the American Farm Bureau Federation and its initiatives.

www.nppc.org – To monitor the National Pork Producers Council’s legislative and regulatory activities. It includes the Legislative Action Center, which provides updates on current issues.