poisoned waters

Who's Responsible for That Manure?

Half the pollution flowing into Chesapeake Bay is estimated to come from agriculture. And one concern is chicken farms on the Delmarva Peninsula. In 2008, these farms produced 1.5 billion pounds of manure -- more than the annual human waste of New York, Washington D.C., San Francisco and Atlanta combined.

Jim Perdue
Chairman, Perdue Farms Inc.

Help me understand one thing that's also got me baffled. ... How do you wind up owning the chickens, owning the feed and not owning, in the sense of legal responsibility, the manure?

The manure is considered a resource, actually. You know, when we went to Kentucky, they're used to buying chemical fertilizer to fertilize their hay. They think they've died and gone to heaven now because they've got a fertilizer that's organic also, which chemical [fertilizer] is not, so to them it's a big benefit. ... It's not a matter of who owns or doesn't own it; it's a matter of what use is being made from it.

The reason we built the AgriRecycle [program to distribute surplus manure as fertilizer] is that there's some producers now who may not have a place to go with the litter. So we're providing a facility where that could be taken if they didn't have a field situation and a nutrient management situation where they could use the litter. But the vast majority still do use the poultry litter if their nutrient management plan accepts that. In other words, the phosphorous level is such that they can use the poultry litter.

... I think essentially what you're saying is you want to deal with that issue of the excess manure voluntarily, not on a regulation or legal basis, is that right?

I don't understand what that means, "on a regulation basis."

... You obviously are familiar with the regulations or the laws that people have proposed ... suggesting that large poultry processors like yourselves should be jointly responsible with the growers. That's all I'm talking about. That's a legal or regulatory approach. ...

I don't understand the voluntary versus the regulatory. I really don't. I mean, what we're doing with EPA is a cooperative effort with the producer, cooperatively trying to accomplish what EPA wants and making sure that everything is in compliance with, I guess, regulations. ...

... People talk about the power and the influence of agriculture nationwide to resist regulation in ways that industry hasn't done. Is it all just a point source question, or is there something about the notion of the family farmer and the notion of the independence of a grower or somebody [who] grows crops? It's a different kind of social economic entity than a company or a manufacturing plant?

I think you're right. I think that it's all those things. I think it's the independence of the farmer. It's more difficult to change, where the industrial site has to change. It's the point source versus the nonpoint source, as you said. All those things are probably part of the difficulty in making change happen in agriculture. But agriculture will change. They'll do what it takes. I think they just have to be given a compelling reason why it's important to do that. …

We're trying to help [the farmers] understand what the regulators want, what the EPA, whoever it is, wants, and there's a way to get there without it being such an, in their mind, onerous process.

And is it expensive ... to take the steps that are necessary, to build the manure sheds, to put up the buffers, to put in the compost and so forth? ...

No. I don't think it's terribly expensive as long as the state helps, for example, on the manure sheds. They cost-share. I think it's important that that happens, that the states do their part. If they're interested in that, I think they will.

... Critics say that agriculture, specifically the chicken industry, is the primary source of pollution in the bay and that if large integrators like Purdue were to be responsible for the waste, it might be better cleaned up. [What's your] point of view on that criticism or argument? ...

The farmer puts the litter on his land, and that's a nutrient management plan, and we're not involved in that, you know? If he puts chemical on his land, he's responsible for what he does with his chemical fertilizer.

Carole Morison
Chicken grower

Perdue will send out one of their representatives to the farm, and it's normally right before you're getting ready to put a flock of chickens in, or the very day that they're going to be put in. They'll say, "We forgot to get the contract signed, and we have to do that before the chickens can come."

They'll put the contract on the hood of their pickup and tell you to sign it, and you try to read through it real fast. You can't negotiate with it, and you either go ahead and sign it, or you say, "No, don't bring your chickens." And this is how it works. ... The processors dictate all of the terms, and there are no negotiations. ...

But they talk about growers as independent farmers. ... If you talk to Perdue or to Tyson's or one of the big processors, they'll treat it almost as if [the farmer and the processor are] two equals.

No, there's nothing equal between the company and the farmer. Our investment in the industry is over 50 percent of the capital needed in the entire industry for it to operate. Our return is not equal to what the company gets. ... If you were truly independent, you would raise those chickens by your knowledge and how you saw fit to do it, not how the company is dictating to you how to do it. …

What's your take on the role of agriculture in terms of the contamination and the deterioration of Chesapeake Bay?

I definitely think that agriculture is a major contributor, especially poultry. With all of the chickens that are raised on this peninsula, there is nowhere near the land needed to spread this manure. We are spreading manure like icing on a cake ...

And [that's] coming from the chicken growing.

From the chickens, yes. And the industry knows it. And what I am tired of is everyone wasting all their time and energy and saying, "I didn't do it." I did it! Why can't they admit it? Let's all say: "OK, we're a part of it. Now, let's find an answer." ...

But they say the manure is not theirs, that it belongs to the growers. They own the chickens, but you own the manure.

Well, anybody else who owns an animal is responsible for their waste. If the company owns the animal, why are they not responsible for their waste? I've never understood that. I have horses; I have a dog that's outside; I'm responsible for their mess. Now, chickens are owned by these companies like Perdue and Tyson. How is it they're not responsible for it?

The only time they're going to take responsibility is when it's worth something. Right now, it is not an asset; it's a liability. As soon as it turns into money, these companies are going to say, "That manure's mine," and take it from the farmer. ... Right now, they're pushing off their industrial waste to another party to deal with. ...

They also say that the farmers, the growers want the manure. ...

Not true. There are some farmers who can use the manure if they till a lot of land and grow corn or soybeans. But we're talking a couple thousand acres where they need the manure. Most of the land on the peninsula is already saturated with phosphorus, so there's no need for the manure. ...

What would be the impact if the four or five major poultry processors on the Eastern Shore [of Maryland] either came together and agreed to take charge of the problem?

The impact would be that we would see things cleaned up. The farmers cannot afford to do it; these large corporations can. Technically, in my opinion, it's their problem. It's industrial waste. We're not talking about little Ma and Pa on the farm anymore. We're talking about industrial production. It is industrial waste. ...

Robert F. Kennedy Jr.
Chairman, Waterkeepers Alliance

Are you suing Perdue and Tyson's and the Big Chicken guys?

That's the purpose of our litigation strategy, is to force those companies to internalize the cost. Unfortunately, they have so much influence in the state Legislature that they've been able to evade the kind of reforms that would make them responsible for their own manure.

Maryland and Virginia and North Carolina have all considered in their Legislature what is known as integrator liability laws. ... They force the integrator -- that's a term of art that means the Big Chicken house, the owner, the Perdue, Tyson and [Pilgrim's Pride] -- if they own the chicken, they also own the manure, and they're responsible for disposing of it legally.

Is this a loophole in the law? Is this a failure of political will?

It's both. They've created a series of loopholes in the laws, but it mainly is a failure to enforce, because even with all their loopholes, they're still breaking the law. ...

What they say is they made chicken cheap and affordable for Americans. It went from $1.50 a pound down to 46 cents a pound. That's what the market wants.

It made chicken cheap at the grocery store. They made it appear cheap, anyway, but they did that by imposing huge costs on the rest of us, on the people who may not be eating that chicken.

In what sense?

Because they've destroyed the rivers, and they've destroyed the waterways, and they've destroyed the aquifers. ...

What I always say is we need free-market capitalism in this country. In a true free market, you can't make yourself rich without making your neighbors rich and without enriching your community. But what Tyson does and what Perdue does is they make themselves rich by making everybody else poor. They raise standards of living for themselves by lowering quality of life for everybody else. And the commodity they're selling appears to be cheap, but it's only because they have externalized the costs. ...

Bill Satterfield
Delmarva Poultry Industry

A [1999] survey by the U.S. Geological Survey [USGS] found that the nitrate concentrations in groundwater in the Delmarva Peninsula were among the highest in the country; that of the samples they took, they exceeded federal standards, and these are sources of water for domestic use, and they identified agricultural pollution as a significant contributor to that. ...

You have to understand how water gets into the aquifers and underground. ... The U.S. Geological Survey says that in the Chesapeake Bay watershed, shallow water aquifers have water aged from 1 year to 50 years with a median age of the water underground of 10 years. So practices that were in place 30 or 40 years ago before we got into the heavy emphasis on environmental issues may have allowed nutrients to get into the aquifers.

So you are saying essentially, what the U. S. Geological Survey is finding ... is a legacy of the past and not a product of present activities?

What I'm saying is that water moves slowly underground, and it could be that the practices of decades ago are now just catching up to us and are in a position where they can be monitored.

I'm not sure what these studies indicate ... is the source of those nutrients. Is it nutrients from a chicken, from a fox, from Canada geese, from ducks, from cats, from dogs, from humans, from septic systems?

The study actually says that the levels are highest near concentrations of poultry farming.

That doesn't identify the source of the nutrient, though.

Do you think this is just a coincidence?

If we're going to talk scientific data, let's not jump to conclusions. ... To say that because there's a concentrated animal feeding operation [CAFO], a chicken house near where water samples are taken and there are high nutrient levels I think is jumping to conclusions.

... Does [the USGS data] identify a problem that the Delmarva Poultry Industry says, "Hey, we've got to do something about that"? ...

Lacking evidence of the source of the nutrients in the water samples, the Delmarva Poultry Industry has been very aggressive in the last 10 years in doing new things based on science to reduce nutrient inputs. We'd love to see data showing that the nutrient collected in the water sample came from a particular animal or a particular source. If it's the chickens, we'll do more. If it's something else, go after them. ...

[You believe that] the poultry companies which own the chickens, provide the feed, determine the regimen, pay the farmers, run the industry -- they have no responsibility for the manure that comes from the chickens they own?

According to the contracts voluntarily signed by the poultry companies and the farm families that grow their chickens, the manure belongs to the farm families, and that's the way it's been for 50 years. And for a lot of growers, that manure is a valuable asset in their farming operation because they can use it in lieu of buying commercial fertilizer. ...

We talked to plenty of farmers who have said to us, "Look, we have a problem getting rid of the manure." ... They also tell us that the idea that this is a voluntary contract is a bit of a myth; that the poultry companies … dictate the terms. So aren't the poultry companies responsible? Or are they just laying it off on the farmers because they're the little guys?

I don't know of any farm family that has had a gun put to its head to say, "You will grow chickens for a poultry company." They're entirely voluntary business agreements. Farm families decide they want to grow chickens. There are four companies they can select from. They don't like the deal, they don't have to grow chickens. ...

... Is the position of your industry that agriculture, and particularly poultry farming and poultry growing and processing, should not be regulated the same way as industry is, or sewage treatment plants, in terms of protecting the environment, in terms of issuing permits?

The poultry companies that have point source discharges are required to have the same industrial-strength permits as any other entity that has point source discharges. Our facilities are no different than anybody else. Nonpoint sources are the issues that might occur on a farm. It's not a discernible thing, quantity of material coming out of a pipe that can be captured and quantified. When poultry manure is put out on a field, the nutrients are taken up by plants. Sometimes there's too much. It may go down into the soil and into the aquifers, but there's no way to go in and measure out of a pipe from a farm. It's a different animal. ...

I'm not talking about fields. I've literally stood in front of farms, and I've literally looked at chicken houses. I've seen pipes coming into the drainage ditches, coming from ditches between the chicken houses. The source, visibly, is quite clear.

I've not seen that. I don't know of any pipes that run from a chicken house or underneath a chicken house into a ditch. It might exist. I'm not familiar with it. I've never seen it.

We have pictures of it. Let's just say for a moment that in fact there are pipes coming from ditches on chicken-growing farms between the chicken houses, and you can see them flowing directly into drainage ditches by the roadside. ... Should that be regulated the same as an industrial plant?

If in that pipe the only thing there is is what comes from the chicken house, then perhaps the argument can be made that that is a point source. And if it is a point source, then perhaps it would be covered under the Clean Water Act or state statutes. If it's something other than a point source, to know where those nutrients came in would require an investigation, and if the pipe passed under a chicken house and started over here in a field, who's to say what entered into that pipe on that end? Who's to say whether the nutrients, if there are any, came from chickens or fox or deer or birds or something else or flow from upstream from an action five, 10, 15 years ago? If it's a discernible point source, then it sounds to me -- and I'm no expert on nonpoint source or point source program -- then perhaps a permit would be required.

Tom Horton
Chesapeake Bay author and reporter

I think you can't look at the chicken companies, even the biggest ones like Tyson, outside of the overall fabric of agriculture. Agriculture, whether it's Maryland or the country, has always been very resistant and very successful in resisting regulation, and I would be the same way if I were a farmer. They need to have a lot of options to move this way or that. They don't have time for paperwork, etc., so I think the whole agricultural community has remained maybe the biggest, largely unregulated area of water pollution. And it's why EPA [Environmental Protection Agency] tells you across the country, agriculture's responsible for 60 percent or something like that of our water-quality problems.

So I think it's not like the poultry companies are some little isolated island. They're operating within a larger, very powerful community which is also in the public eye kind of iconic. No one wants to think of farmers primarily as polluters, even if they're farmers raising a couple million chickens a year. They're still farmers. ...

It looks like, to somebody coming in new like myself, as though the farm lobby, whether it's Big Chicken or the growers in [Maryland] and the other states of Delmarva, has basically got the political system tied up.

Until very recently, the states and the federal government have essentially ceded to agriculture -- and by that I mean the state departments of agriculture, the U.S. Department of Agriculture, the poultry companies, the individual farmers -- we have ceded to them the right to control their pollution, assuming, not based on any real good reason, that they would do a good job of that.

So it's voluntary. ... Does voluntary work?

No. ... Voluntary does work when there's a big old mean law on a deadline and enforcement penalty in the background. Then people do some amazing things of their own volition. They do them amazingly well. But no, voluntary alone doesn't have a very good track record, unless it's very simple and easy and doesn't cost any money. ...

Leon Billings
Maryland legislator, 1991-2003

Agribusiness is a huge denominator of public policy when it comes to pollution these days. You think about whether it's runoff or whether it's air pollution from cow farms or whether it's the use of chemicals and fertilizer -- these are the remaining major sources of pollution. These are where the major investments are going to have to be made, and these are where the chemical companies don't want you to go.

When I was in the [Maryland] Legislature, I fought the chemical companies tooth and nail on this in relation to the Eastern Shore of Maryland. The fertilizer companies don't want you to go there, and clearly the big agricultural operations don't want you to go there. ...

... You sat in the Maryland Legislature for 12 years. During that period, did you see the Big Chicken companies steadily resist regulation on manure runoff?

Absolutely. Big Chicken companies were a presence. Jim Perdue, the son of Frank Perdue, was a constant presence. Whether he was sitting in my chairman's office or holding a reception in the evening or whatever, the chicken lobby was well represented. They hired the top guns in the lobby community in Annapolis, and they made every effort to prevent us from enacting tough regulations on agriculture.

Steadily, through this whole period.

The whole period. And my suspicion is that they still are today. In fact, I know they still are today.

And they make the argument that voluntary nutrient management plans and the voluntary approach is adequate, is going to protect the bay.

Actually, they make a different argument. ... The farmer, the contract grower, is responsible for the dead chickens and the chicken waste, and they have no problem with Legislature imposing that burden on the contract grower who makes a couple cents a chicken, just so long as none of that burden, the regulatory burden, imposes any cost on the manufacturer, the poultry producer, Perdue. So their position has always been, "Hey, as long as you don't tell us we've got any responsibility for that chicken waste, we're fine."

How does Big Chicken get away with that? ...

I don't know. I simply don't know. I was outraged by it, and I made that point time and again. I think that that hold is being broken a little bit. What Perdue will tell you is, "I could raise chickens in Kentucky just as easy as I can raise them in Maryland or Delaware, so if you guys say I've got a responsibility for this chicken waste, then I'm going to go somewhere else." That's the threat that is always there, and it is verbalized, and the opponents of regulation use it. My colleagues in the Legislature use that argument: "We're going to lose our chickens." And that, by the way, is an argument that's been going on against pollution control for as long as I've been in the business, which is 42 years. ...

Aren't there provisions of the Clean Water Act that address concentrated animal feeding operations, which are the big offenders in terms of farm runoff pollution, whether they're chickens, hogs or cattle?

... There are regulations. Concentrated animal feeding operation regulations are an outgrowth of a provision that requires major point sources of pollution to be controlled. CAFO, as they're called, are not referred to in the law. I am not a student of those regulations. I don't know how adequate they are, but my suspicion would be that they are just marginally useful, because when we wrote the Clean Air and the Clean Water Act, we took cost out of the equation. We said you had to clean up; you had to achieve these standards, irrespective of how much it was going to cost you. And every administrator from [the first EPA administrator] Bill Ruckelshaus to the most recent one has said: "Oh, well, you've got to balance these costs. You've got to take off the sharp edge of these laws." And they have, and in so doing, they sacrificed a lot of environmental protection.

posted april 21, 2009

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