A Frank Assessment: EPA Finds Illinois' CAFO Program Inadequate

The EPA Region 5 recently published a refreshingly blunt report on the state of concentrated animal feeding operation (CAFO) permitting in Illinois, and the assessment is disturbing. EPA concluded that the Illinois Environmental Protection Agency’s National Pollution Discharge Elimination System (NPDES) permitting program for CAFOs “does not meet minimum thresholds for an adequate program.” Ouch.

As in many other states around the country, agriculture in Illinois is one of the state’s leading economic drivers and one of the leading sources of water pollution. The state has the fourth largest concentration of large-scale hog confinements in the United States, producing 4.5 million hogs each year. This massive hog production, highly concentrated in CAFOs, comes at a significant environmental cost. According to the state’s 2004 Water Quality Report, more than 85% of Illinois’ public lake acreage is impaired, largely attributable to agriculture. Moreover, the agriculture industry is responsible for 73% of Illinois’ river and stream impairments.

As a result, environmental groups filed a petition in 2008 to request that EPA withdraw Illinois EPA’s delegated authority to administer the CAFO permitting program. Under the Clean Water Act, EPA may delegate authority to states to administer the NPDES permitting program, but that authority may also be withdrawn under certain statutory conditions. For example, EPA can withdraw delegated authority when a state agency is no longer acting sufficiently to administer the program in compliance with federal requirements, such as failing to issue NPDES permits, to act on violations, or to seek adequate enforcement penalties or collect adequate administrative fines.

The petition alleged that many of these conditions are met in Illinois, and the findings in the EPA report largely agreed. Among the findings:

• Out-of-date CAFO Regulations. In 2008 EPA issued new, nationwide regulations for CAFOs. The regulations mandated, among other requirements, that CAFOs submit nutrient management plans (NMPs) as part of the NPDES permit applications. State permitting authorities must then review the NMPs and provide the opportunity for public comment and review. States are required to update their own CAFO permitting programs to be consistent with the federal regulations within one year (or two years if a state statutory change is required). The report found that Illinois’ regulations are out-of-date, and the state has no timeline or schedule to complete the revisions.
• Lack of Standard Inspection Protocol and Basic Inspection Information. Onsite, physical inspections are the most effective way for state agencies to ensure that self-monitoring reports from individual facilities are truthful and accurate. The report determined that Illinois EPA does not provide inspectors with any standard operating procedures for inspecting CAFO facilities, or any standard rubric for evaluating facility compliance. In reviewing inspection reports, the report found that basic information is often missing, including the location of the facility, the number and type of onsite livestock, the areas inspected, and even whether or not the facility had permit coverage or had applied for a permit.
• Inadequate and Ineffective Enforcement Efforts. A strong, effective, deterrent-based enforcement program is a key aspect of any NPDES permitting program. The threat of enforcement provides the fundamental motivation for facilities to comply with their permits. The report found that the Illinois EPA fails to act in a timely or appropriate way in response to violations, and its enforcement actions were ineffective—half of the pre-enforcement and enforcement actions “did not result in the facility returning to compliance, or did not appear likely to return a facility to compliance in the future.”
• Lack of Financial and Staffing Resources. Like many state agencies across the country, the Illinois EPA suffers from a severe lack of resources to administer an effective NPDES permitting program. The report found that the state's Bureau of Water has seven full-time employees who work on CAFO permitting and inspections for an estimated 500 CAFOs. However, EPA notes that the number of employees is an overestimate because these same employees have additional duties outside of the CAFO program.

As a result, EPA is giving Illinois EPA until October 28, 2010, to propose corrections to its program. EPA has directed Illinois EPA to fulfill the most basic tasks of its delegated authority, such as:

• Issue NDPES permits for facilities that meet the definition of a CAFO;
• Develop and maintain a comprehensive inventory of CAFOs and evaluate their regulatory status;
• Revise inspection and tracking protocols to better determine compliance;
• Address noncompliance through appropriate enforcement actions; and
• Update state CAFO standards to be consistent with the new federal CAFO regulations.

The open secret of petitions to withdraw a state’s NPDES authority is that the likelihood of EPA doing so is minuscule. But, like a blasting air horn, they serve to startle to attention the otherwise humdrum, quotidian march of too many state agencies. EPA has neither the desire nor the resources to take over these state programs, and states have too much pride to let it happen. Nevertheless, petitions like this one for EPA takeover of state programs are popping up all over the country. They force EPA to take a long overdue and careful look at state permitting programs, which in turn requires states to make changes to their anemic programs—and therein lies the value. Sadly, EPA’s assessment of the Illinois CAFO program is unlikely to be unique. Its conclusions probably apply far beyond Illinois’ borders, as do its recommendations for improvements.