Cal-Maine, EPA reach settlement in Clean Water Act case

Cal-Maine Foods has reached an agreement with the U.S. Environmental Protection Agency (EPA) and Justice Department’s Environment and Natural Resources Division that resolves alleged Clean Water Act violations at Cal-Maine’s egg production facility in Edwards, Mississippi.
Under the settlement, Cal-Maine will bring the facility into compliance with its state-issued water discharge permit, significantly reduce nutrient pollution discharges, and improve environmental data collection and reporting practices. The company will also pay a $475,000 penalty to be split evenly between the federal and Mississippi governments.
The settlement, announced by the EPA on April 13, resolves alleged violations of Cal-Maine’s Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit at its Edwards facility, a concentrated animal feeding operation that houses more than 2 million chickens.
Cal-Maine Foods, according to the EPA announcement, discharged pollutants from the production area into a tributary of a nearby creek without permit authorization, and applied wastewater on fields at the facility during winter months when land application was prohibited. Cal-Maine was also accused of committing water sampling, record keeping and reporting violations.
Under the settlement, Cal-Maine is already developing and implementing: procedures for its egg production and land application areas to achieve compliance with its NPDES permit, an employee training policy, and improved record keeping and reporting practices. The procedures were submitted to, and reviewed and approved by EPA and Mississippi officials over the course of settlement negotiations. Cal-Maine has begun implementing these procedures and must comply with all the terms of the settlement by April 30, 2016.

Court favors EPA in farmer privacy lawsuit

A federal district court in Minnesota on January 27 dismissed a lawsuit seeking to block the Environmental Protection Agency (EPA) from releasing the personal information -- such as a person’s name, home address, GPS location and telephone number -- of livestock and poultry farmers and ranchers in response to Freedom of Information Act (FOIA) requests.
The court concluded that no federally permitted livestock or poultry farmer is injured by such disclosure because the Clean Water Act mandates disclosure of information concerning permit issuance. For livestock and poultry farmers without a Clean Water Act permit, the court concluded that so long as the farmer’s personal information can be found somewhere on the Internet, EPA’s distribution of that same information does not result in any injury to the farmer. The court noted that a farmer with a public Facebook page used to promote the farm, or whose information could be found via search engine or any state regulatory website in any form, has no right to sue to stop the federal government from compiling and distributing that information.
“Farmers, ranchers and citizens in general should be concerned about the court’s disregard for individual privacy,” said Bob Stallman, president of the American Farm Bureau Federation (AFBF). “This court seems to believe that the Internet age has eliminated the individual’s interest in controlling the distribution of his or her personal information. We strongly disagree.”
The plaintiffs in the case, the National Pork Producers Council (NPPC) and AFBF have 60 days to appeal the decision.
Prior to the suit, EPA had already released personal information of farmers and ranchers from 29 states. AFBF filed suit to block further disclosures regarding farmers and ranchers in Minnesota, California, Idaho, Nevada, Oklahoma and Washington.

Poultry groups voice opposition to waters of US rule

The U.S. Poultry & Egg Association, National Chicken Council and National Turkey Federation filed comments with the U.S. Environmental Protection Agency (EPA) regarding the proposed rule developed by the EPA and the U.S. Army Corps of Engineers’ (Corps) to define “Waters of the United States” under the Clean Water Act (CWA). Like many other potentially affected parties, the three organizations note that the rule extends the authority and jurisdiction of the CWA and will confound practical implementation, and should be withdrawn.
The comments address the proposed rule dated April 21, 2014, wherein the agencies state the proposed rule would “enhance protection of the nation’s public health and aquatic resources, and increase CWA program predictability and consistency by increasing clarity as to the scope of ‘waters of the United States’ protected under the Act.” EPA and the Corps are claiming that areas where water is present, as infrequently as once every few years, should be subject to CWA permit requirements, because the water could potentially be connected to navigable water.
“While the processes and inter-relationships identified in the Report provide mechanisms to establish potential chemical, biological and physical ties between waters, the idea of a universally applicable mechanism for every water or drainage feature that exists on the landscape lacks any degree of scientific robustness. Given the financial and potential criminal liabilities associated with violating the CWA, the connectivity of an area to a navigable water is best established on a case-by-case basis. This vague concept of connectivity cannot be applied universally to all areas and navigable waters, thereby defeating the agencies’ stated purpose of avoiding case-by-case determinations for waters of the U.S,” the groups said.
The groups further remarked, “The proposed rule would assert jurisdictional authority over countless dry creeks, ditches, swales and low spots that are wet because it rains or a farmer has installed practices to sustain the viability of his operation. Even worse, the proposed rule attempts to claim authority over remote “wetlands” and/or drainage features solely because they are near an ephemeral drainage feature or ditch that are now defined as a water of the U.S. subject to CWA jurisdiction. Such unnecessary expansion of CWA jurisdiction significantly burdens poultry and egg production operations without any meaningful public health or environmental benefits.”

EPA won’t appeal Alt Clean Water Act ruling

The Environmental Protection Agency (EPA) has decided not to appeal a federal ruling that sided against the EPA and favored West Virginia poultry farmer Lois Alt. The federal court in October 2013 ruled that the EPA had no legal right to force Alt to obtain water pollution permits for litter, dust and feathers that may wash away and that runoff is not in violation of the Clean Water Act.
 “Although EPA thinks that the district court decision is wrong, we also think that it is time to stop spending resources on litigation about this CAFO [concentrated animal feeding operation]. EPA is not going to appeal this decision; our resources are better spent remedying more serious, ongoing pollution across the country,” Cynthia Giles, assistant administrator for the EPA, wrote in a blog. “A smart and strategic enforcement program requires us to make choices about where to spend our time for the biggest benefit to the public. We stand firm on this commitment to protect public health and the environment.”
The dispute between Alt and the EPA dates back to 2011, when the agency threatened to fine Alt if she didn't seek a permit for her farm. The order said Alt would have to pay $37,500 in fines each time stormwater came into contact with dust, feathers or small amounts of manure outside of her poultry houses.
Alt responded by filing her own legal challenge to the agency in June 2012. The EPA eventually withdrew the fines, but with the help of the American Farm Bureau Federation (AFBF) and the West Virginia Farm Bureau, Alt kept her case alive.
AFBF, while pleased that the EPA wouldn’t appeal the ruling, said it was confident that Alt would have prevailed if the agency had pressed on.
“By dropping its appeal, EPA presumably hopes to avoid a loss in the appellate court. EPA appears to be saying it will continue to enforce its position against other farmers, even though it’s not willing to defend that position in court,” said Ellen Steen, AFBF general counsel.
AFBF President Bob Stallman added: “For most of us, standing firm doesn’t mean walking away just because you are afraid you won’t like the outcome. EPA might call that smart and strategic, but I call it cynical and cowardly. Lois Alt should be proud of her environmental stewardship and her courage in standing up to EPA. She won an important court victory that will benefit many others, and we are proud to have supported her efforts.”

Pork producers seek Clean Water Act notice and comment period

A group of agricultural organizations, led by the National Pork Producers Council and the American Farm Bureau Federation, said an interpretive rule that accompanies a proposed Clean Water Act (CWA) regulation is a legislative rule that must go through notice and comment rulemaking.
In comments submitted July 7 to the U.S. Army Corps of Engineers, the U.S. Department of Agriculture and the U.S. Environmental Protection Agency, more than 90 organizations said the interpretive rule “binds farmers and ranchers with new, specific legal obligations under the CWA. It modifies existing regulations interpreting the statutory term ‘normal farming, ranching and silviculture.’”
The interpretive rule would exempt 56 agricultural activities from a proposed rule that would expand the jurisdiction and authority of EPA and the Corps of Engineers over certain waters. Currently, based on several U.S. Supreme Court decisions, that includes “navigable” waters and waters with a significant hydrologic connection to navigable waters. The proposed regulation would redefine “waters of the United States” to include, among other water bodies, intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation.
The groups said they are concerned that the interpretive rule, as written, will be construed by the agencies to require compliance with USDA Natural Resources Conservation Service (NRCS) conservation practice standards if a covered activity is within a water of the United States – which the agencies will determine – and that a practice that fails to comply with the standards will be viewed as resulting in a discharge to a water of the United States, which requires a CWA permit.
The practical effect of the interpretive rule, said the groups, is to require compliance with NRCS standards when undertaking any normal farming, silviculture or ranching activity that federal officials consider to be located in a water of the United States.
NPPC previously requested that EPA and the Corps of Engineers withdraw the interpretive rule.

Coalition notifies swine producer of intent to file Clean Water Act suit

A coalition of community, environmental and animal welfare organizations sent a notice of intent to sue Illinois-based The Maschhoffs over alleged repeated discharges of hog manure to waterways from one of its Iowa farms. Iowa Citizens for Community Improvement and the Humane Society of the United States intend to file suit alleging violations of the federal Clean Water Act unless the facility obtains a Clean Water Act permit and the company can guarantee that its almost 7,500-head sow facility will not discharge any further pollution into Iowa's waterways.
Iowa CCI is represented by The Environmental Integrity Project, and the Humane Society of the United States is represented by David Sykes of David E. Sykes, P.C. in Fairfield, Iowa, and lawyers with the HSUS' animal protection litigation section. The groups will file suit in January.
The sow facility, located in Van Buren County, Iowa near the Des Moines River, is one of the largest factory farms in Iowa, and annually produces more than 11 million gallons of manure that it spreads on less than 600 acres of surrounding land.
The coalition alleges violations at the farm took place earlier in 2013, as well as in 2011 and in 2007.

Chesapeake water quality ruling appealed by ag groups

Some agriculture trade groups are appealing a September 13 federal court decision which upheld the Environmental Protection Agency (EPA)'s Total Maximum Daily Load (TMDL) for the Chesapeake Bay. The ruling was initially challenged in 2011, when ag organizations attempted to block federal and state limits designed to improve the health of the bay through tighter regulations on agricultural treatment, but U.S. District Court Judge Sylvia Rambo ruled that the EPA was within its authority to set and enforce standards to reduce nitrogen, phosphorus and sediment that drain from rivers into the bay.
National Corn Growers Association (NCGA) President Martin Barbre on October 8 released the following statement after filing a notice to appeal the ruling: "NCGA feels it is in the best interest of farmers to appeal the district court's decision which upheld the TMDL for the Chesapeake Bay. Our organization understands and supports the need to protect water quality, but we don't support a wrongfully decided case when it has a profoundly negative impact on agricultural production and innovation.
"We continue to believe the policies and science behind Chesapeake Bay TMDL are wrong, and that it goes beyond the scope of Clean Water Act authority. We hope the Third Circuit Court of Appeals will reconsider these arguments and ultimately provide state and local jurisdiction more flexibility to work with agriculture in meeting water quality goals."
Bob Stallman, American Farm Bureau Federation (AFBF) president, added that the September ruling has dangerous implications for farmers and other who live not only in the Chesapeake Bay area, but also nationwide.
"This case isn't about whether or not to protect the Chesapeake Bay - we all share that goal," said Stallman. "This case is about whether EPA can dictate where farming will be allowed, where homes can be built, and where businesses can be established. By taking over decisions like that, EPA has turned the whole concept of cooperative federalism out the barn door."
The American Farm Bureau Federation filed the initial suit in 2011. They were joined at the time by the NCCA, National Chicken Council, U.S. Poultry & Egg Association, National Turkey Federation, the Fertilizer Institute, and the National Pork Producers Council, but not all of those groups have announced if they are joining AFBF and the NCGA in the appeal.

Suit against poultry grower spurs legal issues study

In response to a lawsuit that was filed against a Maryland poultry producer for alleged Clean Water Act Violations, a group of academics is working to find out what legal resources Maryland farmers may want. Over the next several months, the group will be conducting surveys and holding public meetings in hopes to form a plan to give farmers more legal options.
The need for the study to help farmers with legal matters, which has received $250,000 in funding for a one-year period, was prompted by the 2010 lawsuit filed by the Waterkeeper Alliance against Maryland poultry farmers Alan and Kristen Hudson, who raised birds for Perdue Farms. The lawsuit was eventually dismissed in December 2012.
The study will be a collaborative effort among the Francis King Carey School of Law, the University of Maryland agriculture school, the Maryland Easter Shore agriculture school, and the university's extension service.
The study's outcome is still in question, but several options such as an agricultural law clinic, attorneys offering lower fees for farmers, or more legal training for university extension agents are in consideration.
The study has the moral support of the Maryland Farm Bureau, as well as Maryland Sen. Richard Colburn, the Daily Times of Salisbury reported.
"In the case of the Hudsons, had there been an ag law clinic, they would've been able to get in touch with them and perhaps that would have met their needs," Maryland Farm Bureau President Pat Langenfelder told the Times. 

Perdue wins Clean Water Act lawsuit

Perdue Farms Inc. and the company's contract grower Hudson Farm in Berlin, Md., did not pollute the nearby Chesapeake Bay and Pocomoke River, or violate the Clean Water Act, according to a federal judge. The decision closes a three-year lawsuit filed on March 1, 2010, by Waterkeeper Alliance Inc.
The civil suit was filed against Hudson Farm based on a pile of material on the property that was assumed to be chicken manure, but was instead municipal sewage sludge from Ocean City, Md., that was used to fertilize crops. The Maryland Department of the Environment inspected the farm, confirmed the pile was biosolids, asked the Hudsons to move the pile and the Hudsons complied. Lawyers for the Waterkeeper Alliance then argued manure leaving the poultry houses from ventilation fans and foot traffic polluted a ditch along the farm which leads to the Pocomoke River.

"We feel like this was a lawsuit against all of us, and we are pleased that Judge Nickerson ruled that the Waterkeeper Alliance had not met the standard of preponderance of evidence in its argument," said National Chicken Council President Mike Brown. 

EPA withdraws order against poultry farmer

The Environmental Protection Agency has withdrawn its order against West Virginia poultry grower Lois Alt which had stated the farmer must obtain a Clean Water Act discharge permit for stormwater runoff from her farmyard or face up to $37,500 in penalties per day. The order withdrawal comes after the U.S. District Court for the Northern District of West Virginia ruled in October that the American Farm Bureau Federation and West Virginia Farm Bureau had the right to join the lawsuit Alt filed in response to the order.
In withdrawing its order, the agency cited new management practices identified during a May 2012 re-inspection of the farm. However, the inspection report also states that dust, feathers and small amounts of manure were still observed on the ground at the farm, which was the basis of the agency's original order, according to American Farm Bureau Federation General Counsel Ellen Steen. “The EPA still has not backed away from its position that any amount of pollutant on the ground at a livestock or poultry farm requires a Clean Water Act permit,” said Steen. “The more likely reason for the EPA’s withdrawal is that it does not want to defend its position in court.”
The Environmental protection Agency's November 2011 order said Alt would have to pay $37,500 in fines each time stormwater came into contact with dust, feathers or small amounts of manure on the ground outside of her poultry houses as a result of normal poultry farming operations. The agency also listed separate fines of $37,500 per day if Alt failed to apply for a National Pollutant Discharge Elimination System permit. Alt responded by filing her own legal challenge to the agency order in June 2012.

House of Raeford convicted of violating Clean Water Act

North Carolina poultry processor House of Raeford Farms has been found guilty on 10 counts of violating the Clean Water Act, according to a federal jury.
The company was found not guilty on four other counts, and Plant Manager Gregory Steenblock was acquitted of all 14 charges brought against him.

House of Raeford allowed employees to send untreated wastewater, contaminated with blood, grease and other body parts from slaughtered turkeys, directly into the city of Raeford's wastewater treatment plant for 16 months, according to the Department of Justice. “Publicly owned wastewater treatment plants must be protected from companies that cut corners by discharging wastewater illegally,” said Maureen O’Mara, a special agent with the Environmental Protection Agency.
House of Raeford said it maintains that wastewater going into the sewer was effectively treated by the city's treatment plant. “The government repeatedly admitted during the trial that none of the materials it claimed went into the City of Raeford’s sewer system ever reached the environment,” said the company. “House of Raeford completed a $1.4 million upgrade to its wastewater pre-treatment system in September 2006 that solved the issues that led to the trial.”
House of Raeford faces a maximum fine of $500,000. Sentencing has been scheduled for Nov. 28.

North Carolina egg farm challenges clean-water regulations

North Carolina egg farm Rose Acre Farms is challenging the state's authority to regulate its air emissions under federal clean-water laws, prompting changes in proposed environmental regulations moving through North Carolina's Senate.
A declaration that airborne discharges from industrial or agricultural operations can’t be considered waste discharges into water is part of the Regulatory Reform Act of 2012, SB810, which is currently going through rewrites in the state's government. Rose Acre has also sued over the issue, after inspectors said they found ammonia in the waterways near the company and contended that the emissions are from the farm's ventilation system.

Animal feed industry group concerned over new EPA proposal

The Idaho Cattle Association expressed concern over a new Environmental Protection Agency proposal that would some require animal feeding facilities to disclose certain information to the federal government.
According to a prepared statement by the association, section 308 of the Clean Water Act would require concentrated animal feeding operations to provide owner contact information, geographic coordinates of the operation’s location, number and type of livestock, and total land acreage, to be placed in a database accessible through the Environmental Protection Agency's website. Noncompliant feed facilities would be subject to fines up to $37,500 per day, according to the association. These requirements would “go far beyond the authority of the EPA, and in doing so, put our nation’s food supply in grave danger,” said Idaho Cattle Association representatives. 

US poultry groups concerned over proposed pollutant reporting rule

U.S. poultry industry groups recently submitted comments expressing concerns with the U.S. Environmental Protection Agency's proposed National Pollutant Discharge Elimination System Concentrated Animal Feeding Operation Reporting Rule, which would require owners and operators of concentrated animal feeding operations to submit certain demographic information to the EPA.
According to the poultry industry groups' comments, the requirements of the rule, proposed on October 21, 2011, include providing detailed location information and farm demographics for nearly every family farm engaged in the production of commercial poultry and egg products in the U.S. The EPA says providing such information will help determine if a violation of the Clean Water Act has occurred.
“We’re convinced the authority the EPA claims under Section 308 of the Clean Water Act to collect information from non-discharging [concentrated animal feeding operations] oversteps what Congress intended when the law was written,” said Mike Brown, president of the National Chicken Council. According to the groups, making this kind of information readily available to the public puts the safety of the food chain at risk for acts of bioterrorism and increases the concern for the safety and privacy of family farmers who often live at the same location.
“We are pleased the EPA recognizes the benefit of developing programs that can assist poultry and egg producers with further tools to extend their stewardship efforts," said National Turkey Federation president Joel Brandenberger. "We urge the EPA to follow this course rather than initiate an information collection exercise that will do nothing to enhance water quality.” 

EPA notifies West Virginia poultry farmers to cease discharging pollutants

The U.S. Environmental Protection Agency has notified four poultry farmers in West Virginia to cease discharging pollutants from farms to waterways and obtain the necessary permits that are required by the Clean Water Act.
The EPA issued the orders following June inspections of five chicken and turkey operations in West Virginia. The inspections found that four of the five operations were concentrated animal feeding operations as defined by the Clean Water Act and that they had neither applied for nor obtained the required discharge permits. The fifth grower had already applied for the permit. Also, at four of the facilities inspected, man-made ditches draining stormwater away from the poultry houses and sheds containing manure and compost allowed pollutants to discharge to waterways during rain events.
The EPA and national and state poultry industry associations are in discussions on developing a program to educate growers on water quality and compliance issues. “Based on our experience, educating farmers on the requirements of the Clean Water Act goes a long way in helping them to protect and improve local water quality and increase compliance,” said EPA Regional Administrator Shawn M. Garvin. “We’ve had good results from working closely with integrators and trade associations, making sure farmers know how they can best reduce runoff and meet their regulatory responsibilities.”

National Pollutant Discharge Elimination System permits not required when applying pesticides

The National Corn Growers Association has commended the U.S. House of Representatives' passage of the Reducing Regulatory Burdens Act of 2011 (H.R. 872), which states that National Pollutant Discharge Elimination System permits are not required when applying pesticides according to their Environmental Protection Agency-approved label.
For most of the past four decades, water quality concerns from pesticide applications were addressed within the registration process under the Federal Insecticide, Fungicide and Rodenticide Act, rather than a Clean Water Act permitting program. H.R. 872 amends both the Clean Water Act and FIFRA in order to restore the previous regulatory framework.
“NCGA greatly appreciates the support of Republicans and Democrats in the House to pass this legislation in less than a month since its introduction,” said NCGA President Bart Schott. “We strongly endorse this legislation and are pleased to see Congress understands how significantly farmers could be impacted by burdensome NPDES permits for pesticides.”
The bill must now be approved by the Senate

TFI expresses opposition to US Senate water bill

The Fertilizer Institute (TFI) is urging the U.S. Senate to oppose the Chesapeake Clean Water and Ecosystem Restoration Act (S. 1816).
The bill, according to TFI, would fundamentally change aspects of the Clean Water Act and set water policy precedents that will impact watersheds throughout the United States. "S. 1816 would set a major legislative precedent in federal environmental law, taking the authority and control granted to states and local governments under the Clean Water Act and turning it over to [the Environmental Protection Agency] — a step never before taken in the 38-year history of the law."
TFI has joined with other agriculture organizations to send a joint letter to the members of the Senate detailing their concerns.

Poultry group opposes Chesapeake Bay legislation

Delmarva Poultry Industry, a trade association representing poultry industry members in the Chesapeake Bay region, has come out against bay restoration bills sponsored by U.S. Sen. Ben Cardin and U.S. Rep. Elijah Cummings of Maryland.
In a memo to its members, the association wrote that the bills create an unlevel playing field for Chesapeake farmers by subjecting them to greater regulation than farmers in other parts of the United States. It added that “the bills will hamper innovative solutions in areas such as nutrient trading, farm adaptive management, and overall water quality restoration.”
The association argued that the legislation is unnecessary because the Clean Water Act provides a sufficient legal framework for reaching the U.S. Environmental Protection Agency’s clean water goals for the Chesapeake Bay.

UEP comments on EPA greenhouse gas rule

Dr. Tom Hebert, environmental consultant to the United Egg Producers (UEP), recently reported on the status of the EPA Greenhouse Gas Reporting Rule.
Reports are scheduled for 2011, but in the case of livestock and poultry operations, only methane or nitrous oxide releases musts be declared. According to calculations performed by Hebert, the 723,600 hen limit is academic since there is no complex in the U.S. which could conceivably exceed the 25,000 metric ton reporting threshold (dry manure).
UEP is currently in communication with EPA to develop a detailed table converting methane and nitrous oxide into carbon dioxide equivalents that form the basis of the 25,000 metric ton greenhouse gas limit. Calculations may have to be developed for large operations using anaerobic lagoons to ensure they conform.
Hebert also commented on the Clean Water Act and the new CWA enforcement plan. According to Lisa Jackson, EPA Administrator, “where facilities with large numbers of animals are discharging without a permit or in violation of their permits, they can cause significant pollution problems of concern to communities.”
According to Herbert, CAFOs must register and should be in compliance with respect to storage and spreading of manure.

Maryland poultry farmers to see tougher pollution standards

Stricter pollution regulations for Maryland poultry farmers may be implemented within five to 10 years, according to reports.
EPA Senior Adviser, Chuck Fox, said the regulations, tougher than those in other areas, could be enforced in the Chesapeake Bay watershed region. He attributed the tighter pollution controls to the Clean Water Act and its protection of the watershed.
Maryland Gov. Martin O'Malley opposes higher pollution standards that would put Maryland farmers at a competitive disadvantage with farmers in other states.