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 20th 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.

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