Second CAFO Environmental Regulatory Exemption Headed for Change?

The focus on CAFOs (Concentrated Animal Feeding Operations) has not dimmed this year.  Recall that in our June 6^th update, we mentioned the May 2010 settlement agreement between the Environmental Protection Agency (EPA) and Waterkeepers Alliance, the Sierra Club, and the Natural Resources Defense Council (NRDC v. EPA, 5th Cir., No. 08-61093, 5/25/10).  This settlement will affect CAFOs across the United States.  In this same June 6^th update, we mentioned that the EPA had taken enforcement action against six cattle feedlots in Iowa, Kansas, and Nebraska for violations of the Clean Water Act.

Earlier this year in our March 10^th update, we pointed to the EPA’s National Enforcement Initiatives for Fiscal Years 2011–2013.  This initiative includes “Preventing Animal Waste from Contaminating Surface and Ground Waters.” 

Since our last update, there have been more actions relating to CAFOs including an Ohio CAFO owner pleading guilty to negligently causing a discharge into a local creek.  Also, on July 9, 2010, EPA Region 5 reported that they ordered a CAFO in Illinois to pay $40,000 for failing to comply with the Clean Water Act.

And more recently, an attempt to eliminate another major environmental regulatory exemption is making news.  The CERCLA (Comprehensive Environmental Response Compensation and Liability Act) exemption and limited EPCRA (Emergency Planning and Community Right to Know Act) applicability was previously resolved in 2008 (see our December 17, 2008 ezine).  Environmental groups (Waterkeeper Alliance, Sierra Club, the Humane Society of the United States, et al.) do not agree with the exemptions and want a previously filed lawsuit to proceed to resolve the dispute over the CERCLA exemption.  The EPA has been attempting to resolve the concerns out of court and on July 7^th filed to seek “voluntary remand” of the ruling, but the environmental groups say the EPA has had plenty of time and wants the lawsuit to proceed.  According to a blog post (see “Ag Law” link below) “EPA will ask a federal appeals court to remand its litigated rule exempting concentrated animal feeding operations (CAFOs) from reporting most hazardous air emissions under Superfund and right-to-know laws so it can revise the rule…”  Whether settled in or out of court, it appears that there will be changes in the CERCLA and EPCRA reporting requirements as it relates to CAFOs.

Certainly, there are divergent viewpoints when it comes to modern livestock agriculture.  At a minimum, there appears to more challenges ahead for those involved in livestock agriculture.  These and other actions suggest that a more proactive approach, such as an Environmental Management System, may be part of the solution for livestock agriculture. 

If you have any questions or need assistance with an environmental issues contact Matthew Schroeder, P.E. (mschroeder@dragun.com) or Christopher Paré (cpare@dragun.com) at 248.932.0228.

America’s Animal Factories http://www.nrdc.org/water/pollution/factor/exec.asp

Ag Law Blog Posting http://www.aglaw.blogspot.com/

TCE in Groundwater

As most environmental scientists know, trichloroethylene (TCE) is used in vapor degreasing of metal parts (among other uses).  And because it was so widely used, TCE is one of the most common environmental contaminants and is often a “driver” in environmental remediation projects.

Recently I was discussing this with one of my colleagues, Dr. Michael Sklash.  I asked Mike what are some things people may not know about TCE.   His comments were interesting (at least to me) and I convinced him to write a white paper about it.  You can access this white paper below.

http://tinyurl.com/23p4mcu

Will the BP Oil Spill Impact Environmental Enforcement?

Prior to April 20, 2010, those who work in the environmental and legal communities were among the small circle of people familiar with environmental permitting and planning.  The explosion and fire on the BP-licensed Transocean drilling rig Deepwater Horizon, located in the Gulf of Mexico, changed this in a dramatic fashion.  Eleven people died, seventeen were injured, and the leak continues to exact its toll on the environment and surrounding communities.

What has come into focus as this story has been covered in the media is the unfortunate reality that environmental permitting and planning is far too often not taken seriously by both the facilities and the regulators.  Some of the more surprising oversights noted in the BP plan were references to emergency contacts that were deceased or retired.  The plans even included steps for protecting sensitive biological resources such as walruses and sea lions, which don’t live in the Gulf of Mexico.  Environmental permits and plans are important, but when they are viewed as a “checkmark” they may not be properly prioritized.    

Following this rather public incident, the regulated community should be on their collective toes relative to not only the fulfillment of appropriate and current environmental permits and plans, but the implementation of these plans. The pressure may not just come from state and federal regulators, but other stakeholders, shareholders, local communities, and even activist groups.

Many of the current requirements for oil storage and use were instituted during the last public environmental “disaster” involving oil, the Exxon Valdez spill.  With the extensive media coverage and scrutiny that the BP issue is receiving, it will not be surprising to see new legislation applied to chemical storage.  The fines and penalties for non-compliance with the planning and permitting requirements for chemical storage facilities may seem substantial.  But, when horrific accidents such as the Deepwater Horizon incident occur, fines and penalties may be the least of the concerns.

Although your environmental management issues may not be the same magnitude as BP, here are ten questions to consider for your permits and plans: 

1. Are your permits and plans up-to-date and have you checked them recently?
2. Are your permits and plans “implemented?”
3. Do you know all of the permits and plans that are necessary for your facility? For example Stormwater Pollution Prevention Plan, Risk Management Plan, Spill Prevention Control and Countermeasure Plan, RCRA Contingency Plan, Emergency Response Plan.
4. Does your general housekeeping appear orderly?  If not, you may attract attention that could lead to a regulatory inspection.
5. Are drums properly stored and sealed?
6. Are AST and UST registrations and records up-to-date?
7. Are lockout/tagout requirements in place?
8. Is your confined space entry training program current?
9. Are your employees trained in proper response methods?
10. Is emergency response equipment functional?

If you have questions or concerns about environmental compliance, contact Matthew Schroeder, P.E. (mschroeder@dragun.com) or Jeff Bolin, CHMM (jbolin@dragun.com) at 248.932.0228.

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