Meat Packers Set for Legal Fight Over Water Pollution Standards

Proposed EPA standards to control slaughterhouse effluent aim to cut pollution in the Chesapeake Bay and other waterways, but meat and poultry producers will argue during public hearings this month that the planned rules are too costly.

Slaughterhouse owners will “rush” Environmental Protection Agency officials with data showing the cost of compliance at public hearings scheduled for Jan. 24 and 31, said Ethan Ware, partner at Williams Mullen in Columbia, S.C., who represents food industry clients.

The EPA’s proposed effluent guidelines, announced in December, would revise wastewater discharge standards for meat and poultry slaughterhouses to cut nitrogen and phosphorus pollution into waters of the US, or WOTUS, under the Clean Water Act.

The proposal, if finalized, is legally vulnerable because of the technology it would require slaughterhouses to use to prevent water pollution, Ware said, and because meat producers say they were excluded from a legal settlement between the EPA and environmental groups that set the timeline for the standards’ development.

The settlement with 10 environmental groups, including the Waterkeeper Alliance and the Center for Biological Diversity, forced the EPA to revise the current effluent guidelines and set new standards for meat and poultry producers. The case is Cape Fear River Watch v. EPA.

The EPA was already in the process of updating the effluent standards, which were last revised in 2004, when it reached the settlement last year in the US District Court for the District of Columbia. Under the consent decree, the agency agreed to propose the new standards by December 2023 and finalize them by the end of August 2025.

The rule will be open to a 60-day public comment period in the coming weeks when it appears in the Federal Register, according to the EPA.

Starving Fish of Oxygen

Meat processing plants are among the country’s largest sources of nitrogen and phosphorus pollution in waterways, which can contribute to an excess of nutrients in surface water, kill fish as they’re starved of oxygen, cause harmful algal blooms, and pollute drinking water, according to the EPA.

The Chesapeake Bay and the Great Lakes are among the water bodies that receive the most slaughterhouse effluent, according to EPA rulemaking documents.

The proposed guidelines aim to cut the pollution by 100 million pounds annually, mainly from meat processors that slaughter at least 50 million pounds of meat or 100 million pounds of poultry annually. They also establish pre-treatment standards for oil and grease and other pollutants. The rules would apply to about 850 of the 5,000 meat and poultry producers nationwide.

“I think the agency’s proposal to apply the new limits to the largest processors to ensure diversity and availability of small processors within the food supply chain reflects a good all-of-government policy,” said Anna Wildeman, counsel at Troutman Pepper Hamilton Sanders LLP and a former official in the EPA’s Office of Water during the Trump administration.

Reliance on Litigants’ Research

In establishing the need for the standards, the EPA in technical documents associated with the rulemaking cited research conducted by the Environmental Integrity Project, which represented environmental group plaintiffs in the Cape Fear River Watch litigation leading to the settlement.

Ninety-eight meat processing facilities nationwide violated the Clean Water Act for excessive pollution between 2016 and 2018, the EPA said, citing the research conducted by the Environmental Integrity Project, which didn’t respond to requests for comment.

One-third of those meat processors had ten or more violations, totaling 1,142 individual CWA violations for exceeding pollution limits in that period, the EPA said.

Citing the Environmental Integrity Project’s findings, the EPA said an especially egregious example is a Tyson Fresh Meats plant in Nebraska that releases up to 3,084 lbs of nitrogen per day into the Missouri River—a level equal to the waste of 132,000 people, the agency said. Tyson declined to comment.

Kevin Minoli, former EPA principal deputy general counsel in the Obama and early Trump administrations, said it’s not unusual for the agency to rely on a litigant’s research, but its use in this case stands out because EIP’s report is self-published and not peer-reviewed.

“EPA cites to the report more than twenty times,” Minoli said. “To the extent those conclusions became the basis for EPA’s regulatory decision, it would create a valid question as to whether the agency should have relied on this particular report in the way that it did.”

The EPA uses the best available science, agency spokesman Remmington Belford said. The Environmental Integrity Project’s report was one of many documents that EPA identified in a literature search to characterize environmental impacts from meat and poultry processors, according to Belford.

Alexis Andiman, a senior attorney for Earthjustice who co-represented the environmental group plaintiffs in the Cape Fear River Watch litigation, said Jan. 4 that the groups are still reviewing the proposed guidelines.

“Our position now is that it’s really important for EPA to update the standards,” because phosphorus and nitrogen can render water unsafe for drinking and compound pollution from cattle feedlots and other operations that are often located nearby, she said.

Andiman denied that the groups Earthjustice represented had a hand in writing the EPA’s guidelines.

The groups sued “to push the agency to come out with regulations, but it’s required to do that under the Clean Water Act, and we certainly didn’t write them,” Andiman said.

Costly Compliance

Meat producers say complying with the proposed standards will be onerous.

“We are particularly concerned with how some of our smaller members will be able to comply,” said Sarah Little, spokeswoman for the North American Meat Institute, a trade group.

The EPA’s preferred option for the guidelines would require slaughterhouses to use the agency’s “best available technology economically achievable” standard to control toxic discharges from meat processing plants into waterways.

Producers oppose that standard because the costs could drive some meat processors to close and others to raise prices, Ware said.

Installing the best available technology means “to spend whatever cost is necessary to meet the effluent limits regardless of the benefits to water quality,” Ware said. “So you have a scenario where the costs being spent are being driven by whatever is possible in engineering, not what is best for the environment.”

EPA also didn’t consult meat and poultry producers before the proposed rules were announced, putting meat processors at a disadvantage over environmental groups that settled with the agency, Ware said.

“EPA has exercised the sue-and-settle option,” in which environmental groups file a friendly lawsuit and the agency negotiates a settlement in order to develop strict regulations on industry, he said.

“We did not see the proposed rule until just in the last 60 days,” he said. “You’re asking the industry to substantially comment on something EPA and environmental groups have been working on for a year.”