Milk Exemption Again in Focus and Another Study Supports Modern Agriculture

November 10, 2010, is the deadline for development and implementation of Spill Prevention Control and Countermeasure (SPCC) Plans, a provision under the Clean Water Act (CWA). For those who store between 1,320 gallons and 10,000 gallons of regulated substances (with no single container more than 5,000 gallons) you are allowed to self-certify your SPCC Plan, provided you meet specified conditions. For those who store more than 10,000 gallons of regulated substances (or a single container of more than 5,000 gallons) you are required to have a Professional Engineer certify your plan.

As we have previously mentioned, despite a January 15, 2009, proposed exemption, milk is considered a regulated substance under the SPCC rule and; therefore, must be considered as part of the spill plan…currently.

Regulation of milk under the SPCC rule appears to be headed for modification. According to Environmental Protection Agency (EPA) Assistant Administrator, Mathy Stanislaus, “EPA is moving forward to take final action on that (January 15, 2009) proposed rulemaking as expeditiously as possible and we hope to have that process completed by early 2011.” This would suggest that, at a minimum, some modification to the reporting deadline is forthcoming.

This recent EPA action has come after a letter was sent to the EPA from the National Milk Producers Federation (NMPF). NMPF Vice President for Scientific and Regulatory affairs Dr. Jamie Jonker, said, “Milk should not fit in the same category as oil and fuels.” Perhaps the EPA will agree. What specific “action” the EPA will take remains to be seen. Stay in touch with your co-op and other trade groups to see how these changes may affect you.

Reducing Greenhouse Gases and limiting agriculture’s “footprint” has been accomplished thanks to modern agricultural practices. This is part of the conclusion from research that appeared in Proceedings of the National Academy of Sciences of the United States. The authors state, “We find that while emissions from factors such as fertilizer production and application have increased, the net effect of higher yields has avoided emissions of up to 161 gigatons of carbon (GtC) (590 GtCO2e) since 1961.” They also said, “Our analysis indicates that investment in yield improvements compares favorably with other commonly proposed mitigation strategies. Further yield improvements should therefore be prominent among efforts to reduce future GHG emissions.”

This study and others, such as the study that appeared in Journal of Animal Science (see our June 3, 2009 ezine), provide evidence to refute some of the ad homonym arguments against modern agricultural practices.

If you have any questions regarding environmental compliance issues or need assistance, contact Matthew Schroeder, P.E. ( or Christopher Paré ( at 248.932.0228.

Watertown Daily Times:

SPCC Information for Farmers (EPA):

Proceedings of the National Academy of Sciences of the United States:

Certificates of Approval in Ontario

Certificates of Approval (C of A) are not new; they actually date back to the 1970s and 1980s. But now C of A is in the lexicon of all environmental professionals in Ontario. Perhaps the turning point came in 1993 with the passage of the Environmental Bill of Rights when residents became more engaged in the environmental process.

Regardless of the history, the reality is that C of A are not the exception, they are the rule.  Essentially, if you discharge (or will discharge), emit, or dispose to the environment, you will likely need a permit or C of A to do so.  And because there is more general awareness and there is more participation by stakeholders in the process, there can be more delays and more chance for litigation.

To avoid putting you or your company in an unenviable position with the regulators and with the community, consider these points:

• If you are going to discharge, you will likely need a C of A
• If you alter your process or equipment, your C of A must reflect this
• Document compliance with the terms of the C of A
• If you take more than 50,000 litres/day of water, you may need a permit to take water (Water Taking & Transfer Regulation)
• A “comprehensive” C of A may be an appropriate choice, but you need to demonstrate ongoing compliance
• To minimize delays in obtaining a C of A, plan ahead and make sure your application is complete

Like almost all environmental issues, there are both technical and legal issues for businesses to consider. To this end, it is always a good idea to have capable technical and legal representation – they are distinct.

If you have any questions or require assistance with an environmental issue, please contact Clifford Lawton ( or Christopher Paré, P.Geo. ( at 519.979.7300

Will “Clean Sites” in Ontario Now Require Soil Remediation?

As you may be aware, there have been several changes to the environmental regulations in Ontario. One of these changes (O.Reg. 511) revises sampling and laboratory protocol for Volatile Organic Compounds (VOC) analysis in soil or sediment. On the surface this seems like a “technical detail,” that means little to the regulated community in Ontario; however, this change can have a dramatic affect on the detection of VOCs.

On July 1, 2011, the new protocol specified in O.Reg. 511 will require soil or sediment samples collected with zero headspace (including “encore” sample devices) be received at the testing laboratory within 48 hours. Additionally, the laboratory must extract or freeze the samples on the day of receipt. The laboratory must extract frozen or field preserved samples within 14 days of sampling. The purpose of using the new method is to reduce VOC loss from sample collection to analysis.

From a logistics standpoint, remote locations where overnight shipping is limited or unavailable, there needs to be consideration given to field preservation techniques. The approved field preservation includes the use of aqueous sodium bisulphate or methanol techniques to preserve the soil or sediment samples (United States Environmental Protection Agency Method 5035A).

What to Expect
Several US states have used the Method 5035A technique since the late 1990s and have observed (where VOCs were present) that VOC concentrations increase by up to two orders of magnitude than previously detected. Obviously, this may affect soil remediation requirements; sites that once were “clean” may require some additional remediation.

You may want to consider how this could affect you and your company if you are involved in environmental site assessments, site closures, transactions, etc… It may also affect your strategy of when you may want to conduct your investigation and what it might mean if you are assessing property after July 1, 2011.

If you have any questions or require assistance with site investigation and/or remediation, please contact Clifford Lawton ( or Christopher Paré ( at 519.979.7300

Environmental Regulatory Focus on CAFOs

The Environmental Protection Agency (EPA) recently announced a settlement agreement with Waterkeepers Alliance, the Sierra Club, and the Natural Resources Defense Council (NRDC v. EPA, 5th Cir., No. 08-61093, 5/25/10).  Among other things, the settlement will require Concentrated Animal Feeding Operations (CAFOs) to submit information to the EPA about their operations, including the name and address of the owner/operator; location of facility; type of facility; number and type of animals; size of facility; type and capacity of manure storage; quantity of manure, process wastewater and litter generated annually by the CAFO; whether manure/wastewater is land-applied; whether the CAFO employs and implements nutrient management plan/practices; quantity of manure transferred off-site; and whether the facility has a National Pollutant Discharge Elimination System (NPDES) permit.  This information will be made public by the EPA. 

The requirement to submit information will apply to all CAFOs, not only to those that are now required to have NPDES permits under the Clean Water Act (CWA). This information will be required every five years.

Unrelated to this settlement agreement, The EPA recently took enforcement actions against six cattle feedlots in Iowa, Kansas, and Nebraska for violations of the CWA.  The fines ranged from $10,800 to $20,000.  Karl Brooks, administrator for EPA Region VI said, “EPA will continue to use civil enforcement, including penalties when appropriate, to halt illegal practices that pose risks to human health and water quality, threaten aquatic life and habitat, and impair the use and enjoyment of waterways.”

As we reported in our March 3, 2010, ezine, among the EPA’s top six priorities for 2011-2013 are “Preventing Animal Waste from Contaminating Surface and Ground Waters.”  It would appear, based on some of the recent developments, the EPA is committed to taking action on these priorities.

Finally, in light of the above, keep in mind the November 10, 2010, deadline for development and implementation of Spill Prevention Control and Countermeasure Plans (SPCC), which is a provision under the CWA.  If you are self-certifying your SPCC plan, it is critical that you also implement the provisions of the plan.  If you require a Professional Engineer to certify your plan, you should plan on having your site inspection no later than the end of September 2010. Dairy farmers should note that storage of milk is considered a regulated substance under the SPCC and therefore must be considered as part of the spill plan.


Beef Magazine:

SPCC Information for Farmers (EPA):