EPA vs. Other Feds: Whom Do You Believe?

(Gary Baise columns show the impact of federal regulation on our agricultural economy. Federal government over-reach in one state can happen in Virginia. He lives in Virginia.)

EPA issued a 307-page report this past September which claims four Washington State dairies produce "…a considerable amount of nitrogenous organic waste." (Manure to you and me.)
The report generated a proposed EPA Administrative Order on Consent for the dairies to sign. EPA claims it has samples from residential drinking wells located in the area of the farms and has determined that nitrate from the manure "…poses an acute health concern…."

EPA claims manure "…is likely to enter an underground source of drinking water and that it may present an eminent and substantial endangerment to the health of persons and that appropriate state and local authorities have not acted to protect the health of such persons…."

The Safe Drinking Water Act is EPA's authority to take these extraordinary actions against dairy farmers. Generally public health and safety issues are left to the states and localities…not EPA.

This dispute arises in Yakima County, Washington. Environmental groups issued notices to sue the dairies and EPA, ever vigilant, did the study, entitled Relation Between Nitrate in Water Wells and Potential Sources in the Lower Yakima Valley, Washington.

EPA demands the dairies "expeditiously reduce risk to human health by providing a permanent, safe alternative water supply to residents using private drinking water wells…."

Dairies must also take action dictated by EPA to control all potential sources of nitrogen at the dairies, establish monitoring wells, number and placement to be determined by EPA, and ensure effective manure management - again to be determined by EPA - and have a public relations campaign which assures the public the dairy facility is acting to protect drinking water. Thus, EPA takes over running the dairies!

If Yakima dairy operators do not abide by the proposed consent order EPA says it will exercise any of its authorities under civil, criminal, statutory, regulatory, or common law authority to enforce the provisions of the order. In fact, by signing the order, EPA takes the position that it can take any action beyond the consent order if EPA determines such action is warranted against the dairy farmers. (The consent order is worth reading because it demonstrates EPA's intention to prosecute and persecute those engaged in agriculture.)

The Natural Resources Conservation Service of USDA (NRCS) and the Washington State Dairy Federation believe the facts are different than those portrayed by EPA.

EPA never sought the assistance of NRCS, it merely communicated with Washington State and local authorities and indicated that neither Washington State nor the local authorities would be taking any steps to deal with the dairymen.
NRCS, in a letter dated December 7, 2012, said of EPA's study "[the] study does not accurately represent the likely discharge rate occurring from dairy waste storage ponds identified in the report." NRCS continues saying EPA's "…results and findings are erroneous and unreliable."

NRCS urges EPA to take "immediate" steps to review its findings and then suggests a number of steps EPA should undertake to determine if ground water is being polluted by dairy manure from the Yakima dairies. NRCS also points out what EPA staff does not seem to know, and that is organic and synthetic fertilizers might be used on crop acres, and of course the application of fertilizers on farm land "…has a higher chance of impacting groundwater quality" than waste storage ponds and dairies!

NRCS criticism of EPA states that the reviewer is "…highly skeptical of [EPA conclusions] based on their testing methods, procedures, and interpretations of these recorded throughout the report. The report is filled with considerable errors and calculations and interpretations that "…cannot be scientifically defended to arrive at the stated conclusions."

NRCS comments suggest EPA does not know what it is doing and is dangerous. This is sad, given what appears to have been millions of taxpayer dollars spent by EPA to go after four dairy farmers in Washington State.

NRCS suggests that if proper work was done by EPA, it is likely to be concluded, given the soils in the area, that the dairies and their waste storage ponds are not a likely source of nitrates in the groundwater in the Yakima area.
One more fact regarding EPA's ignorance of agriculture.

The Washington State Dairy Federation on November 28, 2012, submitted comments to EPA's Region X regarding EPA's assertion that dairies are likely causes of water testing positive for tetracycline. A minor fact overlooked by EPA is that in 2011 alone, there were 70,000 combined acres of apple and pear trees in Yakima and Benton Counties where tetracycline was used to control Fireblight in both apples and pears and multiple applications were undertaken for just this one year.
Whom do you believe? EPA or NRCS? Maybe Congress should examine which agency is telling the truth?

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About Gary Baise:
Gary H. Baise is an Illinois farmer and trial attorney at the law firm Olsson Frank Weeda Terman Bode Matz PC. Specializing in ag and environmental issues, he also serves as outside General Counsel for the U.S. Grains Council, Agricultural Retailers Association, National Association of Wheat Growers, and National Sorghum Producers.

1 Responses »

  1. Compost the manure. There, problem solved. Being that the aroma, from the EPA grows ever more pungent, let them know that IF they outlaw manure, it will put their entire agency at risk of being....well....composted.