Yakima Dairy Lawsuits: Years in the Making?

It’s a drum we’ve been beating for nearly 10 years.  Activists and regulators have been transparent in regard to their intentions as it relates to agriculture.

To be clear, we are 100% in favor of proper environmental stewardship – but when you are involved in regulatory negotiations and/or battling activists with pre-determined conclusions – it’s not about stewardship.  It is Game On, and the stakes are very high.

In our August 2013 newsletter, we shared with you the title of the EPA Bulletin “Criminal Enforcement Alert, EPA Targets Clean Water Act Crimes – Illegal Pollution by Animal Confinement Operations Punished by Fines and Incarceration.”

In August 2012, we quoted Gene Baur, president and co-founder of Farm Sanctuary who said of livestock farms “…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.”

In 2010 and 2011, we reported that according to the EPA, number two of the six “Enforcement Initiatives” is, “Preventing Animal Waste from Contaminating Surface and Ground Waters.”

As far back as 2006, we reported that, “According to a report in Environmental Compliance Alert (November 13, 2006), the Environmental Protection Agency (EPA) will target Animal Feeding Operations for National Pollutant Discharge Elimination System (NPDES) permit enforcement.”

So the article in the January 2014 Hoards Dairyman, “Why the Yakima lawsuits matter to every producer,” shouldn’t be too surprising.  If you haven’t read this article, you should.

According to Hoards, “EPA…bullied 11 Yakima dairies to let it do water quality tests for nitrates.  In 2012, five were singled out and given an awful choice: sign a consent decree to install monitoring wells and collect samples for eight years to determine if there is a water quality problem, how bad it is and where it’s coming from…or try to convince the 9th Circuit Court that EPA doesn’t have the authority to make such demands.”

Then as Hoard’s reports, “EPA was now more or less out of the picture. But in 2013, two environmental activist groups filed individual lawsuits against the five dairies for nitrogen pollution of groundwater, alleging violation of the federal Resource Conservation and Recovery Act (RCRA) that regulates solid and hazardous waste disposal, including nuclear waste.”

Should RCRA apply to agriculture?  According to the activists’ attorney it should because, “…these people are killing America.”

The Hoard’s article provides more details, including information that might raise some questions about efficacy of the EPA data.

If you are faced with legal action, either from a regulator or from activists, DO NOT go it alone – get good legal and technical counsel.  We can help with the latter.  For more information, contact senior environmental advisor, Jeffrey Bolin, M.S., CHMM.  You can reach Jeff at 248-932-0228, ext 125.


Effective Use of the Absurd

Reductio ad absurdum, or argument to absurdity is the platform on which many activist groups effectively market their message. For example, This manufacturing company discharged a toxic substance in the groundwater, therefore, all manufacturing companies are “big polluters,” so help our cause to close all manufacturing plants.

Animal Rights Activists have used the same approach with success. They find the examples of “bad actors” in farming point and to them and say…farmers at “factory farms” abuse animals, therefore, all large farms are bad, so help our cause to close all factory farms.

It’s unfortunate that groups like People for the Ethical Treatment of Animals (PETA) can find even one example, let alone several regarding animal abuse to further their mission.  Animal abuse is not justifiable…period.  I’ve yet to talk to a farmer or non-farmer who would say otherwise.  But abuse happens, and PETA is more than happy to make effective use of these examples.  They have an impressive PR machine and plenty of money (total revenue in 2012 reported at $31,014,236) to further their effort.  And, with social media at their disposal, their Reductio ad absurdum arguments travel around the world before farming groups have a chance to catch their breath.

PETA’s most recent video is “Factory Farming in 60-Seconds Flat.”  This 60-second video is disturbing, and, if you are PETA, it’s effective in suggesting the absurd:  that is, all large-scale farming abuses animals; won’t you help us stop it?

At the end of this video PETA states, “If you buy milk, eggs, meat, you’re supporting this. Now that you know, what will you do? And who will you share this with?”  Reductio ad absurdum, used very effectively!

On the environmental front, keep a very watchful eye on the Total Maximum Daily Load issue.  It has been in the news in two prominent cases recently and could have a very significant impact on farming.  To see a commentary on one of the Midwest TMDL issues, see this article by attorney Gary Baise.

Are you up against a tough environmental regulatory issue now?  Are you facing unreasonable requests by regulators?  If you don’t think your current environmental consultants are acting in your best interest, we can help.  Ask senior environmental advisor, Jeffrey Bolin, M.S., CHMM about a Peer Review.  You can reach Jeff at 248-932-0228 ext 125.

SPCC Update and Environmental Enforcement Concerns

By now you are likely aware that the Spill Prevention Control and Countermeasure Plan (SPCC) rules (for agriculture) went into full effect…pretty much.  While the rules were final in May 2013, essentially the enforcement was delayed until after September 23rd.

While that date has come and gone, the Senate and House have each passed different version of proposals with SPCC exemption language.  To our knowledge, that is as far as the exemption discussions have reached.

SPCC rules aside, a June 28, 2013, Ohio Court of Appeals ruling from a spill on a farm is a reminder about the cost of spills.

According to the court documents:

On the night of February 13, 2008, the Jefferson Township Fire Department received a call reporting an odor of fuel oil and a visible “sheen” on a local waterway, Swisher Creek. The department responded to the call and followed the leak back from the creek to a machine shop on defendant’s property where two 250-gallon fuel oil tanks were being stored behind the building. Jefferson Township Fire Chief Dale S. Ingram was able to ascertain the source of the leak through stains in the snow and observed that the suspect tank was rusted through and completely drained. Ingram contacted defendant and learned the empty tank was filled a few days before with 250 gallons of fuel oil…

What resulted was a nearly $16,000 cleanup (which is relatively minor in the grand scheme of environmental cleanups).  You can read the ruling here.

With the aforementioned in mind…

  1. Whether you do or don’t need an SPCC, make sure you know the conditions of your storage tanks and maintain them properly.
  2. If you do need an SPCC, don’t wait for enforcement.  Fines, regardless of whether or not you have had any leaks, can get real ugly real fast, and be more expensive than if you have a release.
  3. Don’t get lulled into complacency.  Big fines are not just for smoke stack industries anymore.  Consider the EPA’s enforcement action under the Clean Air Act against Safeway Grocery Stores…they were tagged with a settlement in excess of $4 million!
  4. Finally, don’t forget EPA’s recent “Criminal Enforcement Alert” directed at agriculture.

Are you up against a tough environmental regulatory issue now?  Are you facing unreasonable requests by regulators?  If you don’t think your current environmental consultants are acting in your best interest, we can help.  Ask senior environmental advisor Jeffrey Bolin, M.S., CHMM about a Peer Review.

The Ecology of Food

Eco Eating:  Chipotle has never been unambiguous about their “green” views of agriculture or their commitment to humane treatment of animals.  As they state on their website, “food with integrity is our commitment to finding the very best ingredients raised with respect for the animals, the environment and the farmers.”

They have developed some clever marketing campaigns that clearly play to their demographics.  But does their most recent video cross this line and do they risk backlash, or is it just another well developed ad campaign that will play very well to their audience?  The video and, of course, the application for your handheld device or notebook is called “The Scarecrow.”  This short animation, which includes an almost macabre version of “Pure Imagination” from Willy Wonka, cynically portrays large farming as dark and foreboding.  Here is link to the video, which has had more than 5,000,000 hits.

Food Wastage:  Eco-friendly restaurants such as Chipotle and, in fact, all consumers of food (i.e., everyone) may be interested in a September 11, 2013, report from the United Nations Environmental Programme/Food and Agriculture Organization, “Food Wastage Footprint: Impacts on Natural Resources.”  This report on food wastage (“food loss” and “food waste”) states, “The waste of a staggering 1.3 billion tonnes of food per year is not only causing major economic losses, but also wreaking significant harm on the natural resources that humanity relies upon to feed itself.”  This report points to wastage hot spots in Asia, Europe, and Latin America.  It also points to consumers as key contributors to food waste.  As I pointed out in an article in our local newspaper, the producers of food have made impressive gains in productivity and reducing their environmental footprint; consumers need to do their part too.

As always, if you need assistance on an environmental issue, negotiating a permit, technical support on litigation, or you are at odds with overly “enthusiastic” environmental activists, we can help.  For more information, contact our senior environmental scientist, Jeffrey Bolin at 248-932-0228.

EPA Issues Criminal Enforcement Alert

“Criminal Enforcement Alert, EPA Targets Clean Water Act Crimes – Illegal Pollution by Animal Confinement Operations Punished by Fines and Incarceration”… that is the title of the July bulletin from the Environmental Protection Agency (EPA).

What is the intent of this alert?  According to the EPA, “The intent of this EPA Criminal Enforcement Alert is to increase public awareness of the consequences of knowing or negligent CWA (Clean Water Act) violations by animal confinement operations.”

The EPA points out in this bulletin that criminal enforcement is reserved for the most serious violations of environmental law.  I think it’s safe to say that most of those in the environmental compliance community support going after the bad actors – in any industry.  The “devil in the details” of this, of course, is differentiating bad actors from overzealous enforcement.

With this said, make sure you understand where the potential pollutants on your farm are located and manage this risk proactively.  And if you are the target of EPA enforcement, make sure you are well represented by trusted legal and environmental counsel – both should be knowledgeable and skilled in addressing such matters.

If you have questions, need assistance, or would like to discuss a peer review, please feel free to contact our senior environmental scientist, Jeffrey Bolin at 248-932-0228.

The Regulation of Large Livestock Agriculture – The Activists’ Opinions

A well-balanced scientific and legal discussion to help better understand environmental regulations at Concentrated Animal Feeding Operations (CAFOs), origins of eutrophication, and understanding potential causes of aquatic dead zones…is not what you will find in this 22-minute discussion.

If you would like to see a discussion by those who are opposed to large livestock operations (at least as they are currently regulated), this may be worth your 22 minutes.  This discussion is hosted by Huff Post Live includes Jon Devine, Senior Attorney at National Resource Defense Counsel; Robert Lawrence, Center for a Livable Future (Johns Hopkins); Mary Ellen Kustin, Legislative Analyst, Environmental Working Group; and Matt Rota, Director of Gulf Restoration Network.

Lest there be any misgivings about this discussion, the title is, “You’re Drinking Poop.”

Water Shortages: Another Unrealized Environmental Disaster?

The drought in 2012 pushed some water supplies to dangerously-low levels and reminded us all of how deeply dependent our economy, and certainly agriculture, is on an abundance of water.

The recent drought gave rise to an increased focus on water supply, including the United Nations declaring 2013 the “International Year of Water Cooperation.”  Additionally, recent articles have surfaced that discuss future forecast of water supplies and growing populations.  Looking beyond the recent wet weather (rain and snow) that has covered much of America’s heartland, what are some of the water supply prognostications? In a word; fatalistic.

According to some sources, water is becoming an endangered resource.  The United States State Department said, “The need for fresh water will exceed the supply by 40 percent by the year 2030.”

In a March 22, 2013, article in the Washington Post, author Steve Traction writes, “The indisputable fact is that water scarcity is rapidly becoming a significant factor in the way of life in the U.S…the problem will become critical in just a decade or two…the range of effects may include…long-term restrictions on home and community water usage; significant declines in agricultural outputs as well as meat and dairy produce that require huge amounts of water for irrigation and sustenance of livestock; shortages of just about every product made using water-dependent manufacturing processes…and disruptions or complete shutdown of several critical sources of hydroelectric power.”

The author also points to dwindling water levels in Lake Mead, as well as depletion of the massive Ogallala Aquifer, which (conservatively) takes thousands of years to recharge.

More bad news on the water front:  The Christian Science Monitor (referencing a report in the journal Science) reported two years ago that that the snowpack along the Rocky Mountains is as low as it has been in the past 800 years.  But the population and demands are far greater now than they were in the 1300s and 1400s…including irrigation and power generation needs.

Water demands are growing, supplies are stressed, and our way of life is in jeopardy…

This is not the first time we have heard horrific environmental predictions.  Henry Fairfield Osborn wrote “Our Plundered Planet” in 1948 in the same year William Vogt wrote “Road to Survival.”  Both of these books issued warnings of dwindling resources, famines & over population, and an inevitable fall in the standard of living.

In 1980, there was a famous bet between ecologist and doomsayer Paul Ehrlich and economist Julian Simon.  Simon offered to let anyone pick any natural resources and a future date – according to Simon, the increased population would not cause scarcity and increased prices, rather prices would fall.  Paul Ehrlich, who famously wrote “The Population Bomb” in 1968 has long warned of dwindling resources and mass famine, took Simon up on the bet.  Ehrlich picked five metals (chrome, copper, nickel, tin, and tungsten).  The future date was 1990.  Simon was right; Ehrlich paid, but he continued to forecast more ecological doom (see John Tierney, New York Times, 1990 “Betting on the Planet”).

While bad news certainly grabs headlines, business decisions need to have a more rational approach.

As it relates to water supply, all the news isn’t bad.  In a recent book, The Big Thirst: The Secret Life and Turbulent Future of Water, Charles Fishman looks at the global water issue.  Interestingly, Fishman explains that Americans use less water today than we did in 1980, not just in per-capita terms, but also in absolute terms.  Fishman notes water use in the United States peaked in 1980 at 440 billion gallons per day.  Twenty-five years later we are using less than 410 billion gallons a day even though our population increased by 70 million people.  (See “The Big Thirst.”)

Water conservation practices and new drought resistant crops have helped us get the most out of the planet’s fixed amount of water.

The past predictions of environmental/ecological doom were wrong, because, as with other environmental threats, it’s science, ingenuity, and creative minds that find solutions, while naysayers look for the next disaster.

So, should agriculture be concerned about water supply?  Yes, we cannot afford to ignore any environmental threat.  But focus on the facts and solutions rather than hysteria.  As Julian Simon said, “There’s nothing wrong with worrying about new problems, we need problems so we can come up with solutions that leave us better off than if they’d never come up in the first place.”

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.

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 28th 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.

EPA Inspections

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.