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.

Three Agricultural-Related Predictions for 2013

Baseball icon Charles Dillon “Casey” Stengel once said, “Never make predictions, especially about the future.”  While it’s difficult to argue with such wisdom, I’m going to go out on a limb and make a few predictions as it relates to agricultural-related issues in 2013.

Prediction One: Expect that modern agriculture will continue to be judged based on emotion and sensation over rational and (established) science, at least in the public forum.  The most recent agricultural target has been Genetically Modified Organisms (GMOs).  And one of the most recent and egregious examples of pandering to the emotional debate was on the popular Dr. Oz Show.

Dr. Mehmet Oz, in discussing (what is becoming) the highly emotional issue of GMOs, invited Mr. Jeffery Smith to be a guest on his program where GMO’s were discussed.  Who is Jeffery Smith?  According to a blistering letter from Dr. Bruce Chassy, Professor Emeritus, Department of Food Science & Nutrition, University of Illinois, to the Producer of the Dr. Oz Show, he is not exactly an “expert.”  Dr. Chassy states in the letter that, “Mr. Smith has no accredited or formal education in any health, nutrition, or other related science fields.  Research into Mr. Smith’s credentials reveals that his only professional experience prior to taking up his crusade against biotechnology is as a ballroom dance teacher, yogic flying instructor and political candidate for the Maharishi cult’s natural law party.”

Guests such as Mr. Smith probably make for much better ratings than say a plant geneticists such as Dr. Pamela Ronald (UC Davis) who said, “There is broad scientific consensus that genetically engineered crops currently on the market are safe to eat.”  And nutritionist Dr. Ruth Kava’s who said “The fact is that GE products have been safely consumed by just about every American for more than 16 years…”

The food production debate is very significant, though not well understood by the (well fed) general public in developed nations. Science and reason must lead the way – we can’t afford to “get this wrong.”

Nevertheless, sensationalism sells.  Look for more attacks on modern agriculture.

Prediction Two:  Drought conditions may cause a closer look at water management and conservation.  The drought of 2012 put increased pressure on farmers; some crops were a total loss.  Will we come out of this current dry pattern in the spring, or is this part of a longer-term pattern?  This is a prediction best left for meteorologists.  But we saw firsthand the impact of the drought as we assisted a crop farmer earlier this year in assessing the impact of his groundwater withdrawal on the local aquifer.  Solutions to reduced groundwater supply are not always easy, but ignoring the fact that an aquifer is stressed can lead to dire consequences.

Prediction Three:  Environmental enforcement may get aggressive.  The Environmental Protection Agency recently announced that, “In FY 2012, EPA enforcement actions required companies to pay over $200 million in civil penalties (administrative and judicial) – an all time record amount.”  The same report states that EPA criminal prosecutions resulted in $44 million in criminal fines and restitution, and EPA enforcement actions required companies to “invest” more than $9 billion in actions & equipment to control pollution.

The EPA has made it clear that enforcing environmental laws is one of their top priorities. In their FY 2011-2015 Strategic Plan, Goal 5 is Enforcing Environmental Laws.  The EPA states, “Vigorous enforcement supports EPA’s ambitious goals to protect human health and the environment.”

Consider this enforcement climate in light of the May 2013 deadline for Spill Prevention Control and Countermeasure Plans for agriculture.  If you are not certain of your compliance status, we would again encourage you to use the on line tool developed by National Milk Producers Federation and USDA.  Even if you are not a dairy producer, you can use this tool to evaluate the applicability of the SPCC rules to your farm.

All of this said…like economists and weather forecasters – I make no guarantees on my predictions.

I wish you a joyous Holiday Season with friends and family and a prosperous 2013.

Alan Hahn

ahahn@dragun.com

 

 

Environmental Enforcement – What Can We Expect?

As we await the Environmental Protection Agency’s (EPA) annual enforcement action summary (typically in November or December), we might gain some insight on the FY 2012 results by looking at some current enforcement action, as well as, last year’s enforcement results.

For FY 2011 EPA Compliance and Enforcement was very busy, including $168 million in assessed penalties, an additional $25 million in “additional investments” for supplemental environmental projects (SEPs), and 89.5 years of incarceration for “environmental criminals.”  According to the EPA, “enforcement actions required companies to invest an estimated $19 billion in actions & equipment to control pollution (injunctive relief) – an EPA record (their emphasis).

One recent environmental enforcement story seems to indicate this trend will continue.  In the publication, “Environmental Compliance Alert,” their headline story was about a glassware factory’s Clean Air Act (CAA) violation.  The CAA violation cost the company in excess of $10 million!

Interestingly, the actual violation (failure to apply for a preconstruction permit to limit NOx and PM emissions) dates back to 1999.  As you can imagine, all of this triggered “protracted enforcement negotiations with the EPA, the US Justice Department, and New Jersey’s attorney general.”

So where has all this enforcement been taking place?  The EPA has developed an interesting interactive map that provides detailed information about the civil enforcement actions taken by the EPA, criminal cases prosecuted by the EPA, and cases in which the EPA provided “significant support to cases prosecuted under state criminal laws.”

What can the regulated community expect in 2013 and beyond?  We’ll not speculate but, it is our hope that the nation’s top environmental agency will focus on true environmental protection and not aim at breaking enforcement records.

Finally, considering the potential “enforcement climate” and in the spirit of capitalism and shameless self-promotion, we’ll remind you that we get it.  Our job is to use our knowledge of science, engineering, and regulations to find solutions, which includes saving you money.  We’re not bashful in our defense of science and reason, including how we helped our client avoid spending $5 million in environmental remediation.  We will also say, in no uncertain terms, that our solution provided better environmental protection than would have been afforded had the $5 million been spent.  This, in our mind, is environmental consulting.

As 2013 unfolds, we’ll keep an eye on the environmental enforcement trends, and we will keep you informed on our observations.

In the meantime, we wish everyone a happy, restful, and joy-filled Holiday Season.

The Environmental Implications of The Election of 2012

How the election results will impact you and your business is at this point, speculation.  But, as we know, political elections always have a direct impact on future environmental policies.  As it relates to environmental issues faced by business owners, senior managers, legal counsel and others, the weeks following an election are a time of cautious consideration.

One indication of future environmental policy might be found in some of the “environmental influencers”; those environmental groups that have supported the President.  To this end, here are a few post-election comments by environmental groups.

From Sierra Club Executive Director, Michael Brune:  “We did it. Despite the hundreds of millions of dollars the fossil fuel industry dumped into this election to elect Mitt Romney, we proved that corporations are, in fact, not people. There was only one candidate in this race who doubled down on our nation’s clean energy economy. There was only one candidate who consistently fought to hold oil and coal companies accountable and only one candidate who stood up for landmark protections to keep toxins out of our air and water. And there was only one candidate who took historic steps to mitigate the climate crisis.  Because of those positions, President Obama faced an unprecedented assault from deep-pocketed oil and coal execs who inundated the airwaves with millions of dollars in attack ads.

From Environmental Defense Fund President, Fred Krupp: “Congratulations to President Obama on his re-election…As the President declared last night, ‘we want our children to live in an America … that isn’t threatened by the destructive power of a warming planet.’

Exit polls confirm that for millions of American voters, Hurricane Sandy and climate change were decisive factors in this election. As the historic storm just reminded us, we have no time to waste; we must get serious about climate solutions in order to protect our loved ones and communities from terrible impacts — extreme weather disasters, droughts, heat waves, and other dangerous consequences of global warming. Especially in the wake of Sandy, which demonstrated that doing nothing about climate change is much costlier than taking action, this issue clearly should be a top priority for our leaders in government.”

From Friends of the Earth President, Erich Pica: “Congratulations to President Obama on his re-election and thanks for his acknowledgement in his acceptance speech of the ‘destructive power of a warming planet.’ It is ironic that the outcome of a campaign so marked by the climate silence of both candidates would be definitively influenced by Superstorm Sandy, but history will show that the winds of Hurricane Sandy blew President Obama back into office.

Swift and strong climate action is necessary to mitigate the worst impacts of climate change and adapt to the new reality of rising seas and melting ice, superstorms and crippling drought. President Obama should use his mandate to:

1. Repudiate the “all of the above” energy strategy and host a high-level climate change summit of national leaders including business leaders, cabinet officials, and local politicians. The goal of the summit is to agree on a national plan for short-term and long-term courses of action to deal with greenhouse gas emissions from every sector of the economy and to deal with the impacts of climate change.
2.  Reduce emissions from the electricity sector by implementing robust regulations on existing power plants using current Environmental Protection Agency authority under the Clean Air Act, by making sure that new regulations preclude the construction of any new coal plants in this country, and by putting a price on carbon.
3.  Reject the Keystone XL pipeline and other infrastructure projects that would bring tar sands oil and other dirty fuels such as liquid fuel to market through the United States and to move us away from our dependence on dirty oil.

If President Obama seizes this moment and leads the way, Friends of the Earth’s members and activists will be there to support and amplify his actions.”

Also from Friends of the Earth: “Tell President Obama to support a Robin Hood Tax on Wall Street” which is a “micro-tax levied on financial transactions — would generate hundreds of billions of dollars in much-needed revenue for health, education and environmental programs.”

How much influence will these groups have on future policies?  Will there be gridlock? How much will Executive Orders be used? Your guess is as good as ours.  However, with the current appetite for more regulation and more restrictions, we cannot imagine that the future will provide a more lenient regulatory climate.  In fact, Dr. Gilbert Ross (American Council on Science and Health President) has expressed concerns for “an accelerated stringent and oppressive regulatory environment.”

What the near term and long term political and regulatory future may hold is not within our control.  However, we will remain committed to sound scientific solutions and helping you save time and money on soil, groundwater and environmental compliance issues.

As always, your comments are welcome.

Proposed Consent Decree Has a Big Price Tag

On October 25, 2012, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Western District of Michigan in the lawsuit entitled United States v. Kellogg USA, Inc., et al., Civil Action No. 1:12-cv-01164.

As printed in the Federal Register, “In a Complaint filed…under the Clean Air Act (Act), the United States seeks injunctive relief and civil penalties regarding the Prevention of Significant Deterioration (PSD) and Title V provisions of the Act, and PSD provisions of the Michigan State Implementation Plan, for violations at Kellogg’s cereal and snack food manufacturing plants located in Battle Creek, Michigan and Grand Rapids, Michigan. The proposed Consent Decree requires Kellogg to reduce its Volatile Organic Compound permit levels at both facilities, perform a mitigation project (costing more than $435,000) to replace a cooling and dehumidifying system that uses the refrigerant R-22 with a chilled water system that does not use R-22, and pay a $500,000 civil penalty.”

See Federal Register Notice http://www.gpo.gov/fdsys/pkg/FR-2012-11-01/html/2012-26833.htm

See our Environmental Minute discussing Environmental Compliance & Enforcement 2012.

US Chamber Critical of EPA’s Perchlorate Decision

Critics of the Environmental Protection Agency (EPA) often point to the EPA’s lack of scientific evidence or poor interpretation of data when new regulatory standards are being developed. Currently, the EPA is in the process of evaluating the chemical perchlorate that “will likely specify an enforceable Maximum Contaminant Level (MCL) and monitoring and reporting requirements for public water systems.”  With this pending regulation of perchlorate, critics are again suggesting that EPA is not using a robust scientific process.

In fact, the United States Chamber of Commerce is urging the EPA to withdraw their decision to regulate perchlorate.  In their letter to the EPA, the Chamber of Commerce stated that the agency “improperly relied upon data that was not objective.”

Perchlorate is ubiquitous in the environment and according to the EPA perchloate, “…is both a naturally occurring and man-made chemical that is used to produce rocket fuel, fireworks, flares, and explosives.  Perchlorate can also be present in bleach and in some fertilizers.”

In their September 2012, 14-page letter to the EPA, the Chamber concludes that the “…dataset is outdated, inaccurate, unreliable and very significantly biased (to the high side).  As a result, the data set does not qualify as objective data…it should not have formed the basis for the perchlorate regulatory determination.”

 More information about the regulation of perchlorate can be found at the EPA’s website.

What new Primary Drinking Water Standards may be developed as a result of the decision to regulate perchlorate, and how this will impact the regulated community, remains to be seen.

$12.5 Million FIFRA Fine

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is not one of those environmental acts/regulations that “rolls off your tongue” with ease.

Unfortunately, Scotts Miracle-Gro has become all too familiar with FIFRA after the September 7, 2012 sentencing in federal district court in Columbus, Ohio.

According to a report from the Environmental Protection Agency (EPA), “Scotts pleaded guilty in February 2012 to illegally applying insecticides to its wild bird food products that are toxic to birds, falsifying pesticide registration documents, distributing pesticides with misleading and unapproved labels, and distributing unregistered pesticides.”

Some environmental compliance tips can be found in our Environmental Minute, “Environmental Compliance & Enforcement 2012.”

To read more about the FIFRA fine click here http://yosemite.epa.gov/opa/admpress.nsf/0/38045218FAA33ABE85257A72006BEF1C

The Politics of the Environment

It’s all about getting along, living green, and saving the planet. This is the naïve view of many of the young college graduates whose only exposure to the environmental consulting world is the college campus and an internship with a local environmental group.

In reality, the environmental business is extremely political, tends toward the “ugly,” and can devastate individuals and companies.

Case in point is the video that surfaced earlier this year, where the (now former) EPA Region 6 Administrator drew an analogy between Roman crucifixion and EPA enforcement action. Here is an excerpt from this now infamous video.

“It’s kind of like how the Romans used to conquer little villages in the Mediterranean. They’d go into a little Turkish town somewhere, they’d find the first five guys they saw and they would crucify them. And then you know that town was really easy to manage for the next few years. And so you make examples out of people who are in this case not compliant with the law and you hit them as hard as you can and make examples of them.”

While there has been plenty of backpedaling, apologies, explanations, and at least one resignation, this comment or perhaps more appropriately, this attitude or ideology, reflects a part of the real environmental challenge faced by businesses.

Is this attitude shared by every regulator? Clearly not – but when companies are facing site closures, remediation, or compliance issues, especially those involving enforcement, they cannot afford to have a naïve viewpoint or to simply follow the orders or dictates of a regulator. To do so, could mean no end to the regulator’s “requests.”

Taking a tough stance and using good science to back our position is something we have done consistently since we began, nearly 25 years ago. In fact, a paper mill company we worked for many years ago set the tone for how we approach projects on behalf of our clients. The “no action” we were able to negotiate was critical for our client. A recent update by the EPA further vindicates the science we used to design our approach.

As for getting along, living green, and saving the planet – if it’s backed by science, logic, and reason, we’re right there. However, we’ll have to descent on the approach of crucifixion as a means of enforcement.

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.