Permitting a Pattern of Pollution
Washington Post Staff Writer
Monday, August 2, 1999; Page A1
Second of three articles
The letter from the City of Salisbury to Perdue Farms Inc. began, "NOTICE OF VIOLATION." Once again, the company's slaughterhouse had piped too much pollution into the city's waste water treatment plant.
Stop the violations, the city warned, "or further enforcement action will be pursued." But Perdue's offenses continued. And, despite those tough words written nearly two years ago, the city has never sought a penny in fines from the company, the largest poultry producer on the chicken-dense peninsula of Delaware, Maryland and Virginia. From February 1995 through April 1999, Perdue exceeded environmental limits at least 157 times, sometimes dumping double or triple the pollution it should have into the Salisbury, Md., treatment system, according to records obtained by The Washington Post.
Every violation exposed the city treasury to costly penalties. If the Salisbury plant couldn't strip enough pollution from Perdue's waste water before it splashed into the Wicomico River and toward the Chesapeake Bay, the city was vulnerable to fines from Maryland, which monitors Salisbury's discharges. Despite the risk, Salisbury -- Perdue's home base -- never followed through on its threats.
Given the years of recurring violations, the Salisbury case stands out -- but it is not the only example of the lenience regulators show the peninsula's chicken business. The industry benefits from generous interpretations of what constitutes a transgression and rules that don't sufficiently limit environmental threats, The Post found.
During the last five years, Virginia and Delaware have tolerated substantial spills from slaughterhouses operated by Allen Family Foods, Townsends and Perdue, without fining them or going to court to compel plant improvements. Maryland has been the dump site for millions of gallons of slaughterhouse waste that Perdue trucks in from its plants in Delaware, because Delaware limits disposal while Maryland doesn't.
The Chesapeake and coastal bays are shared resources, but the laws and regulations meant to protect them lack a unified vision, spawning loopholes, imbalances and outright conflicts in how Delaware, Maryland and Virginia regulate chicken waste. From statehouse to statehouse, officials can't agree on how sternly to treat the chicken farms and slaughterhouses that are some of its largest business forces.
The EPA specifically chastised state regulators for allowing slaughterhouses to release unlimited amounts of nitrogen. A basic nutrient in the natural food chain, nitrogen resides in every kind of chicken waste, from feathers to manure. When too much reaches water, it overstimulates algae, which rob water life of oxygen. Some scientists link excessive nitrogen and phosphorus to outbreaks of the toxic microbe Pfiesteria piscicida, which two summers ago led Maryland to close several rivers as a health hazard.
In 1987, the bay states pledged to work together to reduce nitrogen and phosphorus entering the Chesapeake by 40 percent before the year 2000. Though the states expect to meet the phosphorus target, they have already conceded defeat on the nitrogen goal -- because of the nitrogen coursing out of waste water treatment plants. Chicken processing amounts to only a small slice of all discharges from waste water treatment plants, but they do contribute to the problem.
"There needs to be greater attention to the total nutrient problem," said W. Michael McCabe, the ranking EPA official in the mid-Atlantic. "The total cumulative effect is certainly serious."
Water quality data collected by the EPA shows marked increases in phosphorus in many areas directly downstream from chicken plants over the last two decades as production has expanded, a Post analysis found.
The peninsula's 12 slaughterhouses slice the necks of 2 million chickens a day and use more than 12 million gallons of water to wash away everything from feathers to fat. Waste water is treated before it is discharged, but it's never completely clean: Permits spell out how much pollution the plants may spill before they are guilty of a violation and vulnerable to fines of as much as $27,500 a day.
"It's a license to pollute," said George Chmael, Maryland executive director of the Chesapeake Bay Foundation, which has sued the EPA to compel it to ratchet down water pollution to levels streams can naturally absorb. "There's insufficient consideration of the impact on the water."
State enforcement officials largely rely on the chicken companies to disclose when they break the rules. Like other industrial facilities, the plants are expected to report violations and are subject to only occasional surprise inspections. Since 1994, for example, Delaware inspectors have run unannounced inspections about once every two months at three Delaware slaughterhouses -- 117 inspections over five years, with no fines. None found a problem warranting a penalty, Delaware officials said.
But the EPA internal report found that a third of the chicken plants it inspected violated rules on how they tested and kept records of their discharges. "Sampling and analysis problems suggest that an even greater percentage of noncompliance than is being reported might be occurring," the report said.
Environmentalists contend state watchdogs have been too forgiving, trading clean water for the jobs generated by a Delmarva chicken industry with annual sales of $1.6 billion. "It sends a message that violating the law and forcing the taxpayer to bear the burden of private industry's pollution is acceptable," said William C. Baker, president of the Chesapeake Bay Foundation. "That's a very bad message."
But suggestions that companies routinely pollute bring angry words from Charles C. "Chick" Allen III, president of Delaware-based Allen Family Foods. He says chicken has been unfairly targeted by environmentalists as a cheap way to produce fear, while other sources of pollution -- septic tanks and fertilizers washing off suburban lawns -- are ignored.
The poultry industry has written huge checks to limit its pollution, Allen adds. His company recently spent $3.5 million on a sophisticated water treatment plant at its Cordova, Md., slaughterhouse -- a plant it was compelled to build to meet state pollution limits.
"This is not your mom and pop, backyard, throw the feathers in the woods and the crap in the water kind of business," Allen said. "It's an industry."
Growing demand for chicken and for varied cuts requires more birds and more processing. Added steps take more water, taxing a plant's ability to stay within pollution limits. At the same time, tougher food safety standards from the U.S. Department of Agriculture compel slaughterhouses to use even more water to clean birds.
"We're really like a dog chasing its tail," Allen said. "We've got one branch of the federal government saying, 'Use less water,' and another branch saying, 'Use more.' "
Controls Differ With Each State
The federal Clean Water Act gives the EPA responsibility for limiting pollution from slaughterhouses and other industrial plants, but the agency delegates its authority to state regulators.
In Delaware, Maryland and Virginia, plants that discharge directly to water have permits from state environmental agencies. Those that pipe to public plants -- such as Perdue in Salisbury -- need a permit from the county or city that operates the system.
Permits typically are renewed every five years, with the state laying out standards it contends are needed to protect water, and companies free to challenge the proposed limits. Sometimes, public hearings are held before the state sets final details.
In theory, the permits work the same from city to city, and state to state. In reality, each state has its own regulatory culture.
"In Delaware, there's a philosophy to try to work out problems with the offending party," said McCabe, the regional EPA chief. "In Virginia, it's an anti-regulatory attitude, but I think that's changing. . . . If there were more of a pattern of swift and certain justice, there would be, I think, fewer violations."
Under then-Maryland Governor William Donald Schaefer (D), who held office from 1987 to 1994, companies sometimes fended off action by appealing directly to him. "They'd portray [the department] as being anti-business," said J.L. Hearn, director of the state Water Management Administration. "He'd send us the message that he expected us to work this out below the noise level."
"The poultry industry is a very important industry on the Eastern Shore," Schaefer said in a recent interview. "Mr. Perdue and those other poultry executives are great leaders. I didn't go after him with hammer and tongs, but we'd work with him to find a solution. . . . I'd call up our guys and say, 'They think we're being a little heavy-handed. What can we do?' "
Under Gov. Parris N. Glendening (D), Maryland has taken on the poultry industry, bringing enforcement actions against Allen, Tyson and Perdue plants over the last three years. Glendening chose Jane Nishida, who formerly headed the Chesapeake Bay Foundation's Maryland office, to run the Department of the Environment. The change created "a much greater opportunity for the agency to present its case," Hearn said.
But the tougher posture also reflects a push from federal authorities, and their worries that -- until the Pfiesteria outbreaks -- Maryland was slow to acknowledge big chicken's impact.
In 1997, Maryland and the EPA clashed over whether the state should fine a slaughterhouse operated by Hudson Foods Inc., a company since purchased by Tyson. Hudson regularly discharged too much ammonia, chlorine and phosphorus at its Berlin plant, while it was building better facilities. Maryland authorities said the company was making a good-faith effort, but the EPA accused Hudson of stalling. The federal agency stepped in and collected $6 million from the company, the largest water pollution settlement in state history.
Although the EPA's aggressive stance provoked Maryland to act, it changed little at the Delaware Department of Natural Resources and Environmental Control, where inspectors bristle at being referred to as "enforcement officers," favoring instead "compliance assistance."
"When you're rigid and strict with your enforcement posture, you lose the ability to communicate with the company," said Joseph Mulrooney, Delaware's environmental compliance supervisor. "They become too fearful to tell you anything."
Six quarters in a row, Delaware has found no chronic water pollution violations -- a record Mulrooney credits to trust between regulators and industry. "We can play hardball or softball," Mulrooney said. "I don't care, as long as we get compliance."
But ask Mulrooney if current permits protect water and he sighs. "We're overloading the hell out of the system."
Growth Outpacing Policies
Over the last four decades, Delmarva's chicken industry has doubled and doubled again. Although the individual gallon of waste water leaving chicken slaughterhouses is, in most cases, cleaner than a decade ago, some plants now move so much more meat that their total pollution has climbed, according to discharge records filed with state environmental agencies.
Regulators have traditionally focused on reducing the toxic effects of pollutants by limiting concentrations in each gallon of waste water, without paying attention to the total pollutant load entering a body of water. With that approach, each gallon could be benign, yet the cumulative effect can be harmful, as particles build up at the bottoms of streams.
The permit governing Allen's slaughterhouse in Harbeson, Del., limits how much phosphorus may be contained in any given liter of water it sends into Beaverdam Creek. The plant routinely meets that limit, having exceeded pollution standards only twice since 1995, according to state files. Yet, over the last four years, the total pounds of phosphorus the slaughterhouse discharged has climbed by more than 27 percent, as its water use rose from about 640,000 gallons a day to more than 800,000 gallons.
Like most plants, Allen has no total nitrogen limit. Of the seven peninsula slaughterhouses that empty directly to a waterway, six have the right to release as much nitrogen as they want. The EPA internal report specifically called on states to close this gap.
Five of the seven Delmarva plants now must cap total phosphorus discharges, which are easier to control. Plants can usually cut phosphorus by adding chemicals to their processes. Limiting nitrogen often requires building better treatment plants.
Although Delaware and Maryland now say they intend to limit nitrogen as permits are renewed, Virginia has no such plans. "We're trying to do things voluntarily," said Dennis H. Treacy, Virginia's Director of Environmental Quality. "And it's working."
But when Virginia biologists visited Parker Creek -- which receives discharge from Perdue's slaughterhouse in Accomac -- in 1993, they reported: "Algae abound and the water stinks. Something here is not as it should be." The plant, the largest on the peninsula, sends more than 2.3 million gallons of water a day into the creek and "determines the water quality," a 1995 state memo noted.
When Perdue's permit came up for renewal that year, two dozen citizens demanded a public hearing. Dale and Sylvia Milliner, of Parksley, complained to the state that Parker Creek "has an offensive odor," and "leaves a greasy reddish stain on our boats."
Perdue voluntarily agreed to cap phosphorus. It also agreed to measure and log how much nitrogen it sends into the creek, though it is not required to restrict those discharges. The company also agreed to upgrade its plant.
The deal satisfied the state. Today, phosphorus discharges are less than a sixth of what they were three years ago. "It's crystal clear water," said Jim Parsons, a Perdue environmental manager at Accomac.
But as Perdue's water use climbed sharply from 1997 to 1998, nitrogen levels ballooned, increasing by nearly a third. Brown foam still builds up near the plant's discharge pipe, a telltale sign of too much nitrogen.
Tyson's slaughterhouse in Temperanceville stands alone as the largest source of pollution among all of the peninsula's poultry plants. Its nitrogen discharges more than tripled from 1991 to 1997, as production grew. Phosphorus discharges swelled fourteen-fold from 1985 to 1997. The plant empties into Sandy Bottom Branch, a river that feeds Pocomoke Sound, scene of Pfiesteria outbreaks.
An EPA study last summer singled out the plant as a conspicuous polluter that dominates water quality on Virginia's Eastern shore: "Clearly, the greatest potential for Total Nitrogen reductions on the Eastern Shore rests with the Tyson Foods facility." Yet, Virginia has never forced Tyson to limit nitrogen or phosphorus discharges, a position that enrages regulators in Maryland, which shares the Pocomoke Sound.
In November 1997, Hearn, Maryland's director of water management, complained to the EPA that Virginia allows Tyson to dump the equivalent of "manure from half a million chickens in the Pocomoke Sound each day." He urged the agency to force Virginia to set limits.
Maryland's complaint prompted debate among Virginia officials, according to internal computer messages obtained under a Freedom of Information Act request. "If EPA asks us, we probably should not suggest anything about permit limits. There is an initiative underway which prescribes VOLUNTARY nutrient reduction," wrote Harry E. Gregori, then director of special programs for Virginia, to a supervisor in December 1997.
Under then-Gov. George Allen, "the basic philosophy was, 'Let's work with business,' " Gregori explained recently. Allen, now a Richmond lawyer and U.S. Senate candidate, confirmed Gregori's characterization. "We like to use persuasion. It's a positive approach to it, as opposed to a dictatorial approach."
The EPA took more than nine months to respond to Maryland's complaint. Tyson was in the process of improving its Temperanceville plant, the EPA said in August 1998, and the agency said it would discuss "appropriate nutrient permit limits" with Virginia when Tyson's permit came up for renewal in 1999.
"So, two years after I raised the issue, they're going to discuss appropriate limits?" Hearn scoffed. "That seems like a very generous time frame."
Virginia officials say they have no plans to limit nitrogen in Tyson's renewal, which is now being negotiated, though a phosphorus limit likely will be imposed. Cooperation over confrontation still holds sway under Gov. James S. Gilmore III (R), said Treacy, the state environmental quality director.
"The idea here is to have the companies make all best efforts," Treacy said.
Lax Enforcement of Limits
Even when companies exceed pollution limits and receive notices of violation, regulators rarely follow through with fines.
Early one Saturday last August, a waste water storage lagoon filled at Allen's slaughterhouse in Harbeson, Del. Solids slipped into Beaverdam Creek along with the regular discharge -- 185,000 gallons of excessively polluted water over four hours.
No one performed tests the state requires to determine the spill's effects, Allen explained, because no one was on duty. The company promised to begin monitoring round-the-clock. Delaware authorities levied no fine.
EPA officials and environmentalists say such lenience encourages companies to gamble with the law. "What's the incentive to play by the rules if there's no penalty?" said Jacqueline D. Savitz, executive director of Coast Alliance, an environmental advocacy group.
Chicken companies and some regulators argue that circumstances often justify skipping penalties. Allen didn't know its lagoon was full until the problem set in, said the company president. Then, he began planning for a new lagoon -- an $850,000 project.
"If you had to write the check, you'd look at it differently," Allen said.
In October 1997, lagoon walls at Townsends' slaughterhouse in Millsboro, Del., washed out, sending 300,000 gallons of waste water and 9,000 pounds of solids into Swan Creek.
"It was an accident," said Townsends President Jeffrey M. Swain. "Nothing more, nothing less." Delaware officials concurred: No fines.
In the winter of 1994, rains hammered Perdue's slaughterhouse in Accomac, Va., swamping its treatment system. Perdue shifted waste water to a lagoon, but it didn't hold. On March 3, some 200,000 gallons washed into Parker Creek. Three weeks later, 8.1 million gallons spilled over four days, along with 1,348 pounds of solids, according to a letter from Perdue to the Virginia Department of Environmental Quality.
In both cases, the water was far dirtier than Perdue's permit allowed, the company acknowledged. But Debra L. Thompson, a state environmental engineer, argued against penalties, seeing the spills as "acts of God."
Erin Fitzsimmons, an environmental law professor at Salisbury State University, said Virginia should have fined Perdue. "When you look at examples individually, it might not seem like such a big deal," she said. "But when you look at them as a whole . . . you have quite a stress on the resource."
Jim Burk, manager of the Selbyville, Del., waste water treatment plant, says only fines signal that pollution won't be tolerated. The city cleans water sent from Mountaire's slaughterhouse. When Mountaire exceeded limits in October and November, 1998, the city fined it $22,000. When it happened again in January, the fine was $16,000.
"We enforce whenever there's a violation," Burk said. "If there's no oomph there, then what's [the company] going to do?"
Hundreds of Violations, No Fines
Over and over again, Salisbury has forgiven Perdue's violations in sending along overly dirty water.
"I really can't walk in here as a tyrant and each time we have one violation, we fine them," said Ronald J. Gillenardo, assistant superintendent at the Salisbury water treatment plant. Perdue's violations never reached the level of "significant noncompliance," Gillenardo explained. To reach that status, a company must fail to meet standards two-thirds of the time -- or one-third, if the results are sufficiently extreme.
More than 1.3 million gallons of water clear the debris of 220,000 chickens processed each day in Perdue's Salisbury slaughterhouse. Perdue is the city plant's single largest user, delivering more than a third of the water the city treats, according to state documents.
Perdue's water never tipped Salisbury into breaking its own state pollution limits, so the slaughterhouse water quality is moot, city officials reasoned. "We have the ability to treat what they send," Gillenardo said.
According to an EPA analysis, the city plant has significantly increased the pollution it sends into the Wicomico River, a waterway troubled by shortages of oxygen. Total nitrogen discharges doubled from 1995 to 1997 -- a period in which Perdue violated its permit 63 times.
Parsons, the Perdue environmental coordinator, said company supervisors did not quickly fix the problem because lower-level employees failed to alert them. "It certainly looks ugly," Parsons said. "This is very embarrassing." Parsons said he has since added equipment and fixed plumbing as a remedy, but the violations continue, with 36 offenses between December 1998 and April of this year, according to city records.
Salisbury Mayor Barrie P. Tilghman said she is "very comfortable" with how city plant officials responded, referring further questions to a lawyer who represents the city, Paul D. Wilber.
In a written statement, Wilber said, "The quality of the Perdue effluent has improved significantly." He cited a graph showing Perdue's average pollution output dropping sharply from January to March. But the same graph showed Perdue exceeding its limits at least twice in March.
The more pollution a city plant treats, the greater the cost. Thus, when Salisbury officials decline to fine Perdue they are handing local taxpayers some of the costs of treating the company's waste.
But city officials calculate the price of stricter enforcement differently. "If you didn't have the industries," Gillenardo said, "you wouldn't have the tax base anyhow."
Database editor Sarah Cohen contributed to this report.