MCE Continues to Watchdog Environmental Agencies During COVID-19
As COVID-19 has put a strain on the country’s agriculture and other industries, federal and state agencies have decided to loosen regulations at the cost of health and environmental harm to communities, industry workers, farmers, and families.
On March 26, 2020, the United States Environmental Protection Agency (EPA) announced that environmental enforcement measures across industries would be temporarily suspended to accommodate the impacts of COVID-19. In the official news release, the agency explained that it “does not expect to seek penalties for noncompliance with routine monitoring and reporting obligations that are the result of the COVID-19 pandemic”. The EPA’s stated intention was to recognize that measures to protect workers’ and public health from the virus may pose challenges to meeting regulatory requirements. However, this also gives industries “free reign” to emit unlawful air and water pollution if they can claim it as a result of COVID-19. Cynthia Giles, head of the EPA Office of Enforcement under Obama, responded that “EPA should never relinquish its right and its obligation to act immediately and decisively when there is threat to public health, no matter what the reason is. I am not aware of any instance when EPA ever relinquished this fundamental authority as it does in this memo.”
On April 24, 2020, the Missouri Department of Natural Resources (DNR) announced a similar statement that it would temporarily suspend certain regulatory requirements for animal feeding operations in light of COVID-19. Animal feeding operations (AFOs) are permitted and regulated based on their “class size”: the number of animals they have on site. The COVID-19 emergency has disrupted transportation and animal processing operations, which is forcing some operations to keep increased numbers of animals on-site. Typically, increased animal capacity would be met with new permitting requirements; greater buffer distances from surrounding homes and buildings; neighbor notices; confinement building and waste storage facility modifications – but these human and environmental health precautions are being overlooked to allow “owners and operators to adapt to temporarily elevated animal numbers without adding additional paperwork and permitting application requirements”.
The following rules have been suspended effective April 23, 2020 through June 15, 2020*:
This notice suspends the requirement for AFO and Concentrated Animal Feeding Operation (CAFO) owners to obtain a permit prior to operating a waste management system at their facility. While this notice suspends the permitting requirement, “it does not suspend obligations to abide by water-quality protection requirements”. The rationale is that transportation disruptions due to COVID-19 have led to an increased number of animals on-site at many operations and, while operators typically need to apply for new or modified permits when they house more animals on-site, suspending this requirement will allow owners to adapt to temporarily-elevated animal numbers. However, the increased waste generated from a larger number of animals can pose health and environmental concerns. See our CAFO story map here to learn more about these concerns. This suspension only applies to facilities that were in operation on or before March 18, 2020; new facilities must still obtain a permit before operating a waste management system on-site.
This notice temporarily suspends the requirement for a Class II AFO to apply for a permit when the number of animal units on-site would classify the facility as a Class I AFO or CAFO. According to the DNR, an AFO is considered a CAFO when it exceeds 999 animal units (equivalent to 699 dairy cows, 999 beef cattle, 2,499 large swine, or 124,999 chickens). While this notice suspends the permitting requirement for existing facilities with size increases, “it does not suspend obligations to abide by water-quality protection requirements”. Any new facilities with greater than 999 animal units on-site must still apply for CAFO permits; only Class II facilities with temporary size increases are exempt from this requirement.
When seeking a permit, facilities must issue notices to surrounding residents within a certain area based on their class size (see Table 3 on this DNR fact sheet). Facilities must also meet buffer distances – space between lagoons or confinement buildings on-site and pre-existing public buildings or occupied residences not owned by the CAFO – based on their class size (Table 3). This notice temporarily suspends the requirement for Class I CAFO owners and operators to issue new or additional neighbor notices and buffer requirements based on temporarily-increased class size. Facilities operating at an increased class size will therefore be allowed to house more animals and more waste on-site without maintaining larger buffer distances usually required for facilities of that class size. Greater exposure to animal waste poses increased public health and environmental threats to the surrounding community, however without a notice requirement, residents may not be aware of increased animal capacity at CAFOs in their area nor have the expected opportunities to voice their concerns.
As a result of temporarily-elevated animal numbers, DNR foresees that facilities may have to make structural additions and modifications to confinement buildings and/or lagoons. Usually, owners must plan and construct confinement buildings to accommodate new and expanding operations according to certain design standards. This rule has temporarily been suspended such that existing lagoons and confinement structures may be modified without following these design standards. DNR states that it is “continuing to require operational and water-quality protection measures at all CAFOs” and adds that “[i]ncreased facility monitoring and additional Department considerations for waste disposal can address any temporarily elevated waste production in lieu of new designs and otherwise unnecessary construction.” However, the DNR has not explained any additional monitoring or waste disposal considerations that it will make. In its statement on regulatory relief, the DNR stated that it will continue its “compliance-assistance” approach which does not provide significant enforcement mechanisms. Confinement buildings and waste lagoons generate pollution even when they are constructed according to design standards, so resident monitoring and reporting of suspicious liquids or runoff into rivers and streams, elevated nitrate levels in well water, stronger or more frequent agricultural odors, and/or uncovered animal carcuses near CAFOs is important to protect environmental and human health in our state – even when CAFOs do not house temporarily-elevated numbers of animals or waste.
*Originally, the rules were suspended through May 15, 2020 but will remain suspended so long as Governor Parson has declared a state of emergency.
The Governor’s office has also temporarily suspended Subsection 2 of Section 640.710, RSMo which, like 10 CSR 20-6.300(3)(B)1, sets buffer distances for CAFOs based on animal capacity. Unlike the rule suspensions listed above, there is no language in the suspension of this statute which specifies that it only applies to facilities with temporarily-elevated animal capacity, but rather that it applies to all “existing facilities”. The DNR reiterates that it “has not suspended environmental-protection requirements, including ‘no-discharge’ requirements, for any facility, and these suspensions will not allow new facilities to come online without observing the full requirements of the statute and rule” but now is certainly a crucial time to understand CAFO regulations and “watchdog “ their behavior to ensure that COVID-19 regulatory suspensions do not lead to increased environmental and public health hazards. MCE encourages Missourians to check out our CAFO Toolkit, which includes resources for tracking, monitoring, reporting, and responding to any concerns observed around CAFOs or regarding DNR regulation during the declared state of emergency. You may also report certain concerns directly to the DNR using their online environmental concern form.
During the state of emergency, facilities in non-compliance or delayed compliance are expected to request enforcement discretion by emailing regulatory.inquiry@dnr.mo.gov with the following information:
- the nature of the compliance issue, including the affected location(s);
- the anticipated duration of the issue;
- the specific rule citation, permit provision, or the order or decree requirement for which the regulated entity is seeking enforcement discretion;
- the steps taken to avoid the compliance issue (including whether you contacted the Department for assistance) and why the compliance issue was not reasonably avoidable; and
- the connection between the compliance issue and the challenges in responding to COVID-19.
However, the DNR does not include any mechanisms to ensure facilities self-report these compliance issues. See DNR’s statement on regulatory relief from March 24, 2020 here for details. On July 17, 2020, DNR posted a list of requests for enforcement discretion and agency decisions on their website. According to this list, no CAFOs requested regulatory relief due to COVID-19, however it is possible that facilities simply did not report regulatory challenges. We know that livestock operations have struggled to manage animal capacity on-site with outbreaks and closures at meat processing facilities. As conditions of the pandemic change, MCE continues watching our state and federal agencies during this time and strategizing how to ensure Missouri’s health and environment are not harmed further during COVID-19 as a result of poor government oversight.
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