Surprise Inspections, Activists Getting Active, and Litigation – What’s a Farmer to Do?

If you are a livestock producer in the United States, it’s time to sit up and take notice.  The Environmental Protection Agency (EPA) is using very confident language in their intent to conduct “surprise” inspections, activists are getting…active, and a recent lawsuit has the potential for an ugly precedent.

Surprise Inspections:

An article in the Midwest Producer provides details about the EPA’s intent to visit livestock agriculture facilities this spring.

According to this article, Cheryl Burdett from the U.S. EPA Water Division stated, “We are going to knock on your door and you aren’t going to know we are coming…We like to go out during wet weather.  A lot of farmers say we came out during the worst conditions.  It is planned…we want to see your facility under the worst conditions.”

Which facilities will the EPA inspect?  According to Burdett, the agency will look at several factors when deciding which producers may receive a knock on the door.  The EPA will consider aerial photographs, size of the operation, and proximity of the operation to nearby waterways.  Burdett also points out that inspections may be a result of citizen complaints.  Don’t overlook that last comment – citizen complaints are key drivers in regulatory inspections, and community relations with citizens is no small part of livestock agricultures’ business.

Activists Activity:

If you recall, in our February 20^th blog, we mentioned that the EPA was seeking comments on their national enforcement initiatives.  One of the six current initiatives is discharges from Concentrated Animal Feeding Operations (CAFOs).  The EPA posed the question in a Federal Register Notice, should these enforcement initiatives remain the same?

Some activists are providing their comments to the EPA’s Federal Register notice.   The Mississippi River Collaboration’s comments included

…Given agencies have focused on inspecting large CAFOs, there is now a great need for inspections to be done of smaller operations to determine whether they are discharging without NPDES permits (emphasis added).

We urge the EPA to maintain “Preventing Animal Waste from Contaminating Surface and Ground Water” as a national enforcement priority.  Over the last several years, our states have benefited greatly from EPA flyovers and inspections that have resulted in enforcement actions.

It is imperative that EPA turn more of its attention to regulating agricultural pollution to the full extent allowed by the federal Clean Water Act.  CAFOs are one of the most poorly regulated point source sectors in our states.

Stay tuned on the EPA’s final word on their updated environmental enforcement initiatives.

Legal Battles:

But not everyone is focused just on the Clean Water Act enforcement at livestock agriculture.  In Washington State, a dairy producer, Cow Palace LLC, is being sued by Community Association for Restoration of the Environment and Center for Food Safety, Inc.

This legal action uses The Comprehensive Environmental Response Compensation and Liability Act (CERCLA aka Superfund), the Emergency Planning and Community Right to Know Act (EPCRA) and the Resource Conservation and Recovery Act (RCRA).

The lawsuit claims the dairy violated RCRA by “open dumping” and violated mandatory notification and reporting under EPCRA and CERCLA.

The use of RCRA is of particular interest as the federal regulations for RCRA specifically state the following exemption, “The raising of animals including animal manure” (40 CFR 261.4 (b) (2) (ii)).

The complaint seeks mandatory injunctive relief requiring Cow Palace to abate and remediate and will seek the maximum civil penalties under the law requiring the dairy to pay attorneys fees and expert witness fees.

All of this said, there are at least a few thoughts that come to mind.

First, if you are not ahead of the regulatory curve, get there now.  From these stories and all other appearances, enforcement at livestock agriculture is happening and will continue to happen, perhaps with more vigor.

Second, in the instance of the Cow Palace Dairy, the complaint is suggesting that the producer had knowledge of their requirements under CERCLA and EPCRA as they point to industry group websites that educate the producers on specific reporting requirements.

Third, in consideration of the first two thoughts, make sure you have your SPCC plan completed and implemented.  If you don’t know if your plan is complete and implemented or don’t know if you need a plan – figure it out, today.

Finally, the livestock industry absolutely needs to be about being good environmental stewards, but more than that, it’s time to have a compliance plan and/or to consider how a Best Management Practices document might assist in wide spread compliance as opposed to the alternative.   Remember, compliance isn’t just about a release or potential release – it’s administrative.

One last final comment.  It’s worth restating; we are entirely in favor of environmental protection through good environmental management.  What we are not in favor of, nor do we encourage, is complying with unreasonable orders or demands from regulators that have no basis in science or regulatory justification.

As always, if you have questions or need assistance addressing an environmental issue, big or small, contact our office at 248-932-0228.

Will the EPA Remain Focused on CAFOs?

Should the Environmental Protection Agency (EPA) continue to make Concentrated Animal Feeding Operations (CAFOs) a top priority as it relates to environmental enforcement action?  That is one of the questions posed by the EPA in their January 28, 2013 Federal Register notice.

The current national enforcement initiatives (FY 2011-2013) by the EPA include 1) Municipal Infrastructure, 2) Mineral Processing, 3) New Source Review (air emissions from specific sources), 4) Air Toxics, 5) Energy Extraction, and 6) Concentrated Animal Feeding Operations, specifically, addressing animal waste discharges from large animal feeding operations.

The January 28^th notice in the Federal Register is soliciting comments on what the agency’s new enforcement initiatives (FY 2014-2016) should be.  EPA states, “The public is invited to comment on extending the current six national enforcement initiatives for the 2014-2016 cycle” (emphasis added).

For several years, the EPA has stated they are serious about enforcement at CAFOs.   On EPA’s webpage, Preventing Animal Waste from Contaminating Surface and Ground Water, the EPA provides evidence that they are more than just talk about inspection and enforcement.

Source: EPA (http://www.epa.gov/compliance/data/planning/initiatives/2011cafo.html)

As seen in the graphic provided by the EPA, cumulative inspections by the agency at CAFOs shows that large farms continued to be a priority for the agency.

Perhaps in an effort to emphasize the gravity of their focus, the EPA offers some examples of CAFO enforcement on their website.  These include a Beef Feedlot ($145,000 fine) and a racecourse classified as a CAFO for horses ($1.25 million in violations, $3 million in improvements, and $742,000 for supplemental environmental projects).

If you would like to know if there has been any enforcement action in your area, you can find this on the same webpage.  The EPA offers an interactive map of Large CAFOs and EPA CAFO Inspections and Enforcement Actions.

Do you think the EPA should continue to focus on CAFOs for enforcement?  If you would like to have your voice heard on this matter, you need to weigh in by February 27, 2013 (the end of the comment period).

Finally, as a reminder, the deadline for agriculture to comply with another environmental regulatory deadline is quickly approaching.  The deadline for development and implementation of a Spill Prevention Control and Countermeasure (SPCC) Plan is just about 3 months away.   Not sure if the SPCC applies to you?  Use this SPCC Quick Guide, or go to the National Milk Producers Federation website and use their SPCC on line tools.

If you have any questions or require assistance on an environmental issue, contact our office at 248-932-0228.

The Drought of 2012…and Preparing for the Drought of 2013?

No one knows better than farmers how unpredictable weather can be. Weather predictions, like economic predictions, are notoriously unreliable. That said, according to several reports, the drought of 2012 seems to be overstaying its welcome into 2013.

In fact, more than 60% of the contiguous United States remains in a drought as we begin 2013. And according to Fred Gesser, senior agricultural meteorologist for Planalytics, Inc., “There is a 70% probability for last year’s drought to linger into 2013.”

The impact of the current drought is being felt now. According to a report in Drovers, a small farming town in Oklahoma (Wapanucka) lost water supply completely when the spring-fed wells in the community ran dry.

The dry weather is potentially a very serious issue as farmers look toward the growing season, and as they look to maintain water needs for livestock.

With this as a backdrop, I asked Dr. Michael Sklash, our senior hydrogeologist, a few questions relating to groundwater supply and agriculture. Mike has worked on groundwater supply issues for agriculture around the world, including crop and livestock farmers in the Midwestern United States.

Is there a way to evaluate whether my aquifer is currently stressed?

Sklash: Have any of your wells run dry at any time? Has the water level in your well fallen significantly? Have you had to lower your pump intake? Have there been any changes in water quality? These are all potential indications of a stressed aquifer.

Assuming worst case scenario (a continuing drought), are there any proactive measures I can take?

Sklash: Beyond looking at the specific crop types and depending on your needs (watering crops or water for livestock), you can consider the following:
• Horizontal wells
• Deeper wells
• Capture storm water and snow melt (in a retention pond)
• Optimize irrigation
• Focus your irrigation
• Cultivate to minimize surface runoff

How should I respond when asked if my agricultural water use is negatively impacting private wells?

Sklash: This isn’t always a simple cause-effect relationship, for example:
• The wells may be in different aquifers.
• The private wells may be shallow enough to be affected directly by less rainfall recharge. Water tables typically fluctuate by a few feet in many areas in the Midwest. A drought will only make the typical annual low levels lower.
• The wells may be too far apart to have a cause-effect relationship.
• There may be other water users causing the problem.

Finally, if you are considering siting a new agricultural operation, a water supply evaluation should be a high-priority consideration early in your decision making process.

As we write this newsletter (in late January), but for a recent unseasonable storm in the eastern half of the United States, the conditions are still very dry. While we all hope for a break in the precipitation pattern, consider some of the suggestions provided above to ease the impact of the ongoing drought.

If you have questions specific to groundwater or groundwater supply, please contact Mike Sklash (msklash@dragun.com) at 248-932-0228.

Bad for the Environment. Bad for Animals. Bad for our Health…Really?

Remember when farmers used to be respected? The very word farmer would conjure up images of Grant Wood’s American Gothic or any of a number of Norman Rockwell images depicting life on the farm.

Not anymore. According to pop culture and perhaps even a generation of consumers, “factory farms” are nothing more than cesspools of pollution that cause fish kills, abuse animals, and destroy communities. Farmers are pawns in a world run by corporate giants as they plant mutagenic GMOs that will surely advance an Armageddon like end to life as we know it. And if dairy is bad for you then meat is pure poison.

Here’s the problem. Both the Norman Rockwell image and the current pop culture image are wrong. They don’t exist. One exists in memories shaped by an image on canvas, the other exists in the minds of some consumers shaped by misinformation.

But if you hold this (misperceived) pop culture image, of course you would view the farmer as a villain. And now celebrities are on the anti-meat, anti-large farm bandwagon. Like it or not, they are influencers. Recently, Factory Farming Awareness Coalition posted a video on their website for Meatless Mondays that includes implicit and explicit endorsements from Oprah, President Clinton, and Jessica Simpson. Again, like it or not, these celebrity endorsements are credibility builders.

And of a more immediate environmental regulatory concern, is the August 30^th statement by the EPA that they will continue to use flyovers to monitor livestock farms in Iowa. For those who view farmers as environmental villains, this is welcome news.

Producers and processors of our food are not villains nor are they some static image on a canvas. They feed us, and they do so in a manner that is more efficient than in any time in history. Research substantiates this. Two examples are Dr. Jude Capper’s “Comparing the environmental impact in 1944 to 1997” and Dr. Frank Mitloehner’s “The Truth About Sustainability – Debunking “Livestock’s Long Shadow”.

Unfortunately, far too many people (in my opinion), are misinformed, don’t know how to ask critical questions, and are easily persuaded with little evidence. Nevertheless, there is a battle being waged against much of modernity including modern agriculture.

As for the Dragun Corporation, we continue to provide sound scientific input to the agricultural community on matters of environmental science, hydrogeology, geology, and engineering practices. Granted, this is not nearly as sexy as a celebrity endorsement…but a celebrity endorsement is not what you need when you are facing technical or legal challenges.

As always, your questions and comments are welcome.

Alan Hahn

ahahn@dragun.com

HLN: “Factory farms bad for the environment?”

Ask any marketing professional, and they will tell you that as it relates to non-profits, developing a public awareness campaign is a necessary part of selling your group. This awareness, as the reasoning goes, helps your stakeholders understand not only who you are and what you do…but why they should care.  This increased awareness and personal connection to you and your life is essential for achieving their cause and raising money. 

For those opposed to livestock agriculture, the battle has been uphill…but they have made significant progress.  And as it relates to public awareness and communicating “why you should care” – they have the attention of major media outlets.

For example, Jane Velez-Mitchell (HLN) recently spoke to Gene Baur, president and co-founder of Farm Sanctuary.  In the interview, Mr. Baur discusses his “findings” in his book, Farm Sanctuary: Changing Hearts and Minds About Animals and Food.

In speaking about livestock farming and presumably about large livestock farms in particular, Mr. Baur says, “…it’s bad for animals, it’s bad for people, it’s an industry that needs to be stopped…it’s (manure) getting into our waterways and destroying our environment.”

So, there you have it, in these brief excerpts, Mr. Baur is telling the stakeholders (i.e., consumers) why they should care; if you care about animals, if you care about people, and if you care about the environment, join our cause.

Yes – the recent environmental regulatory wins (duty to apply and the NPDES proposed rule withdrawal) are significant – but this battle for the hearts and minds of all consumers is one that continues regardless of the current regulatory rulings. 

To see the brief interview (“Factory farms bad for the environment?”) on HLN click here http://bit.ly/P3lzfW

If you have questions or need help with an environmental issue, contact Matthew Schroeder, P.E. (mschroeder@dragun.com), Christopher Paré (cpare@dragun.com), or Amy Owen, EIT (aowen@dragun.com) at 248-932-0228.

The (CAFO) NPDES Proposed Rule is withdrawn…“at this time”

It was interesting news, at least for those of us who find ag-environmental issues interesting.  The “it” in this case, was the decision by The United States Environmental Protection Agency (EPA) to withdraw the proposed rule to require reporting of specific information from Concentrated Animal Feeding Operations (CAFOs) (Signed by EPA Administrator Jackson on July 13, 2012).

This proposed reporting rule, under the National Pollutant Discharge Elimination System (NPDES), was very unpopular in the agricultural community but was lauded by environmental groups. The proposed rule would have required medium and large CAFOs to report information to the EPA such as CAFO location, owner contact information, NPDES permit information, type and number of animals, and descriptions of land available for manure application. 

As you can imagine, the withdrawal of this rule generated some comments amongst the environmental groups.  Speaking to the rule’s withdrawal, Food and Water Watch Executive Director, Wenonah Hauter said, “The Environmental Protection Agency announced last week that it is abandoning its plan to gather even the most basic information from the over 20,000 highly polluting and largely unregulated factory farms in the United States. This move by the EPA is a dereliction of duty.”

While this recent development might be good news for CAFO owners and operators, it should be considered in context and with a dose of reality.

Keep in mind that the EPA is still doing CAFO flyovers in EPA Region 7 and trying to enforce Clean Air Act discharges under the Clean Water Act (see article by attorney Gary Baise). And there is still a pending deadline for preparation of Spill Prevention Control and Countermeasure Plans. 

The language in this most recent rule withdrawal was even a bit “fuzzy.”  For example, in this relatively short, 12-page announcement, much of it filled with standard boiler plate language, I counted three times the EPA used the phrase “at this time,” as in, “The EPA believes, at this time, it is more appropriate to obtain CAFO information by working with federal, state, and local partners instead of requiring CAFO information to be submitted pursuant to this rule” (emphasis added).  One could suppose this means there will be another time when the EPA may “believe” differently, but this is purely conjecture.

This much is not conjecture; if you are a CAFO owner/operator, you simply cannot afford to take environmental regulations lightly.  Continue to remain compliant with the environmental rules and regulations and keep a vigilant eye on developing regulations.

If you have questions or need assistance with an environmental issue, contact Matthew Schroeder, P.E. (mschroeder@dragun.com), Christopher Paré (cpare@dragun.com), or Amy Owen, P.E. (aowen@dragun.com) at 248-932-0228.

Environmental Managers’ Insight on Enforcement at Farms

“SPCC Requirements for Farms: Enforcement Outlook.”  This headline caught my eye recently as this story showed up in Business & Legal Resources’ Publication: The Environmental Manager’s Compliance Advisor (Compliance Advisor). This is a publication geared toward the more typical “smokestack” industry, so I was interested in their take on the Spill Prevention Control and Countermeasure (SPCC) issue for agriculture.

(Note: For a more detailed discussion on the May 10, 2013 deadline for SPCC for certain farms, see our May 5, 2011 and August 5, 2011 blog entries).

In the Compliance Advisor newsletter, they pose the following question, “Should small farmers in remote rural areas expect inspectors to be knocking on their doors and writing them up while they are in the middle of their 2013 spring planting?”

To answer this, the authors of the newsletter juxtapose the federal 1998 Underground Storage Tank (UST) deadline to the approaching deadline for agriculture. Specifically, they provide that the 1998 federal enforcement for USTs considered the following:

•  Known problem facilities (e.g., abandoned sites)
• Sites that were consistently out of compliance
• Facilities near sensitive populations or sensitive resources

How might this translate to farms? The federal and state regulators might take a similar tact; for example, the regulators might consider the following approach:

•  Assess farms that should have had their SPCC plan completed and implemented prior to August 16, 2002
• Focus on farms that had previous Clean Water Act violations
• Focus on farms near sensitive watersheds or water supplies

What the enforcement action might actually look like is anyone’s guess, but as we have continued to suggest, be proactive and have your plans and permits in place well in advance of any regulatory deadline.

If you have questions or need assistance with your SPCC plan, contact Matthew Schroeder, P.E. (mschroeder@dragun.com), Christopher Paré (cpare@dragun.com), or Amy Owen, EIT (aowen@dragun.com) at 248-932-0228.

Look…up in the sky…it’s…the EPA!

The concerns about the Environmental Protection Agency (EPA) using aerial surveillance to inspect Concentrated Animal Feeding Operations (CAFOs) in EPA Region 7 has farmers, the farming community, and some politicians very concerned.

Nebraska Senator, Mike Johanns, sent a letter to the EPA in May expressing his concerns about the flyover inspections and on June 11, 2012, the Senator received an official response from the Agency.

Here are some highlights in the five-page question and answer format response to Senator Johanns:

• EPA enforcement action at CAFOs (in Nebraska and Iowa) where aerial images were collected: 53
• “The flights are used as a screening tool to focus the on ground inspections on those operations likely to be polluting surface waters and threatening public health or the environment.”
• “EPA Region 7’s process for identifying where it will fly involves looking at areas that contain high concentrations of large and medium sized animal feeding operations and/or watersheds where the state has identified impaired rivers and streams.”
• “Flights to assess animal feeding operations in Region 7 did not begin until March 2010.”
• Future plans for aerial inspections: “Two additional flights in Nebraska and two in Iowa.” And “EPA Region 7 plans on continuing to use the flights beyond FFY 2012.”
• “As Agency records, these images are subject to the Freedom of Information Act.”
• “EPA Region 7 has collected images that include residential buildings.” (Responding to the question, do the images collected ever include residential buildings?)

This action seems very consistent with the EPA’s goals under this administration. For example, as we previously pointed out (see March 10, 2010 ezine), the EPA announced their “National Enforcement Initiatives for Fiscal Years 2011–2013.”  The second initiative listed by the EPA is “Preventing Animal Waste from Contaminating Surface and Ground Waters.”

Many people are very concerned about the EPA’s action in Region 7.  In fact, Senator Johanns is concerned enough that he introduced an amendment to the Farm Bill that would ban EPA flyovers.

In any event, livestock owners and operators should make sure their permits and plans are up-to-date and fully implemented…and…keep a watchful eye on the sky.

EPA Flyover Question and Answers http://media.graytvinc.com/documents/Overflight.Q-A.6-11-2012.pdf

EPA Letter to Senator Johanns: http://media.graytvinc.com/documents/Senator+Johanns.pdf

The Clean Air Act, Greenhouse Gas Emissions, and a Watchful Eye

The Environmental Protection Agency (EPA) has released documents and is requesting comments on the draft air emissions estimating methodologies developed as part of the January 2005, “voluntary” Air Compliance Agreement with the animal feeding operations industry. This agreement resulted in the two year National Air Emissions Monitoring Study (NAEMS).

As focus is on the June 11, 2012 deadline for submitting comments to the EPA and how the emission factors from this study will impact agriculture, don’t take your eye off the Greenhouse Gas (GHG) emissions issue.  Let me explain why.

Last month we mentioned an article published in “Counterpunch.”   This article states that “factory farming” is the major source of Greenhouse Gas (GHGs) emission.  Setting aside Counterpunch’s admittedly less than mainstream views, we also mentioned a recent study by National Aeronautics and Space Administration (NASA).  In this research, NASA presented the results of their study on GHGs and suggested that “Control of methane emissions from livestock, mainly through farm-scale anaerobic digestion of manure from cattle and pigs,” is one key method to slow the pace of global warming.

Also, recall also that in our February 2011 issue we mentioned a Federal Register Notice regarding the USDA’s intent to find methods that will help farmers, ranchers, and forest land owners to assess their greenhouse gas (GHG) footprint.  And don’t forget the lengthy internationally funded study “Livestock’s Long Shadow” sponsored by the Food and Agriculture Organization of the United Nations (2006). This 300-page report said among other things that the world’s livestock sector has a significant impact on the environment leading to climate change, air pollution, land, soil and water degradation, and reduction in biodiversity.

Make no mistake, there are several organizations that are interested in quantifying GHGs from farms, and others that are interested in reducing GHGs from farms.

Most regulations, and particularly, environmental regulations, have a significant political component to them. The very fact that GHGs are being regulated under the Clean Air Act (CAA) is politically and emotionally charged. One of the reasons this is controversial is the very nature of the CAA permitting process, which can be a regulatory monstrosity. 

The regulatory burden under the CAA grew significantly when the 1990 CAA Amendments (CAAA) were passed.  This is when Title V of the CAAA was introduced.  For “Major Sources” of emissions, Title V was (and is) a headache.  Obtaining and maintaining a Title V permit is no small undertaking, and the record keeping requirements are significant.

But Title V only applies to Major Sources of air pollution – so most companies were spared from this.

But now you can be a Major Source, not because you have hazardous air pollutants, but based on your GHG emissions alone. While the threshold is still fairly high (100,000 tons per year (tpy) Carbon Dioxide Equivalent (CO2e)), there is no guarantee that number will remain at 100,000 tpy.

So what are the GHG emissions from agriculture (GHG emissions were not part of the NAEMS)?  As stated previously, it is the focus of several studies. According to the EPA’s 2012 Draft U.S. Greenhouse Gas Inventory Report, nation-wide aggregate emission of the two major GHGs from agriculture (methane and nitrous oxide) are estimated at 444,000,000 metric tpy of CO2e.

Does all this suggest that agriculture can expect future GHG regulation?  At a minimum it’s worth keeping one eye on the emission standards being developed from completion of the NAEMS and another eye on the GHG issue.

NOTE: We want to again point out that as it relates to regulating GHGs from livestock agriculture, Part 98, Subpart JJ addresses Manure Management. The EPA is not currently implementing Subpart JJ due to a Congressional restriction.

Science vs. Scare

“The battle to feed all of humanity is over. In the 1970s hundreds of millions of people will starve to death in spite of any crash programs embarked upon now. At this late date nothing can prevent a substantial increase in the world death rate.”  Paul Ehrlich, in his 1968 book, “The Population Bomb”

Modern science and agriculture have proved Malthusian predictions of mass starvation wrong.

The ingenuity of men and women has served us well, let’s not allow junk science and scare mongers to thwart the advancements in agriculture.