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April 17, 2014

Horse Tracks as Concentrated Animal Feeding Operations?

As expanded gambling brings renewed interest and attention to horse racing, tracks need to be sure to not make a bad bet on environmental compliance.

Many tracks now must have or put in place management, containment and disposal plans to comply with the U.S. Environmental Protection Agency’s (EPA) extensive rules and regulations – or be exposed to substantial civil fines.

On August 22nd 2012, the EPA and the U.S. Department of Justice announced that Sterling Suffolk Racecourse – located in Boston, MA – must pay a civil penalty of $1.25 million resulting from Clean Water Act violations. The Racecourse will also allocate more than $3 million to prevent future violations of polluted water runoff.

Because 500 or more horses are stabled at the facility for at least 45 days of the year, Suffolk Downs was classified as a large Concentrated Animal Feeding Operation (CAFO) according to EPA standards. The U.S. and Ohio EPAs recently updated the National Pollutant Discharge Elimination System (NPDES) regulations and requirements for CAFOs to control spills and runoff of nutrients and other pollutants from these operations.

While a horse track may not have traditionally been thought of as a “large CAFO,” the Sterling Suffolk Racecourse case should alert other track managers to the dangers of being labeled as a CAFO without realizing the increased permitting requirements that accompany such a classification.

The heightened permitting process includes, but is certainly not limited to, identifying wastewater discharges to surface waters from the point source facility and setting requirements designed to protect water quality – such as discharge limits, management practices and recordkeeping requirements.

Horse tracks attempting to comply with CAFO standards have increased infrastructure challenges because the tracks and facilities themselves are not generally agricultural in nature – they don’t have the same avenues for disposal and discharge that a large farm or classic animal feeding operation would traditionally have on site or in a surrounding rural area.

Additionally, horse tracks of less than 500 horses should remain vigilant of particular discharge and runoff procedures as they could be labeled a “medium CAFO” – a classification that maintains its own set of regulations and permitting processes. A “medium CAFO” is any feeding facility that maintains 150 to 499 horses.

To avoid massive civil penalties and possible shutdowns, a track with any number of horses should consult experts on all federal and state EPA classifications in order to determine their permitting and planning requirements.          

© 2013 Dinsmore & Shohl LLP. All rights reserved.

About the Author

Partner

Kevin P. Braig is a Partner in the Environmental Practice Group and Litigation Department. Kevin’s practice focuses on business litigation with emphasis on cases involving environmental issues of solid and hazardous waste, water, sludge, air, agriculture, and alternative energy. Kevin has experience representing clients in the agriculture, solid waste, manufacturing, automotive, banking and financial services, construction, insurance, internet and e-commerce, real estate, retail, technology, transportation, and utilities industries. 

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About the Author

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Leveraging a thorough understanding of gaming and equine law with extensive experience representing international and domestic clients and a lifetime in the industry, Laura takes a practical, measured approach to find resolutions for her clients. She also has substantial experience acting as lender’s counsel on equine and commercial secured lending matters.

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Andrew Polesovsky is a member of the Litigation Department.

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