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Re: Fwd: E-M:/ Sierra Club gives Notice on 4 Livestock Facto

Enviro-Mich message from anne.woiwode@sfsierra.sierraclub.org

To:  Tom Rohrer, Chief, MDEQ SWQD Enforcement Unit
From: Anne Woiwode, Sierra Club


Thank you for your e-mail summarizing the enforcement actions taken by the 
Michigan Department of Environmental Quality (MDEQ) against the four 
concentrated animal feeding operations (CAFOs) that will be receiving the 
Sierra Club's "notice-of-intent-to-sue" letters.  I shared your response 
with our attorney, Aaron Isherwood, and provide his response below.  I also 
appreciate that you have copied your message to Enviro-Mich to officials of 
the DEQ and MDA who clearly have authority over concentrated animal feeding 
operations (CAFOs) so that they can be included in this discussion as well. 

Anne Woiwode

FROM AARON ISHERWOOD, Sierra Club staff attorney, in response to Tom 
Rohrer's memo:

The Sierra Club is fully aware of the enforcement actions taken by the 
MDEQ. Sierra Club activists and attorneys conducted an extensive 
investigation of the MDEQ files before we decided to send the notice 
letters.  Unfortunately, we have concluded that the MDEQ actions are not 
adequate to protect Michigan's waters from CAFO pollution or to prevent 
future discharges from the four facilities receiving the notice letters.  
It is precisely for this reason that we decided to send the notice letters.

Our principal concerns about the MDEQ enforcement actions are as follows:

1.  The MDEQ has not required any of the four CAFOs to apply for a National 
Pollutant Discharge Elimination System (NPDES) permit.

As I'm sure you know, CAFOs that discharge to the nation's waterways are 
required under both state and federal law to obtain NPDES permits.  Such 
permits help to ensure that the facilities are held to appropriately 
stringent standards of environmentally responsible operation.  For example, 
the effluent limitations guidelines for CAFOs promulgated by the U.S. 
Environmental Protection Agency prohibit permitted CAFOs with over 1,000 
animal units from discharging any pollutants to waters of the United States 
except in limited circumstances during a catastrophic or chronic storm 
event.  NPDES permits also help to ensure that any pollution problems are 
reported promptly to government officials, who can then take appropriate 
enforcement action.  Additionally, the permitting process affords various 
opportunities for public participation.  These are but a few of the 
benefits the public receives from requiring CAFOs to obtain NPDES permits 
for their operations.

2.  The MDEQ enforcement actions have not been effective in preventing 
unlawful discharges from the four facilities receiving the notice letters.

While we recognize that the MDEQ has required the four facilities to take 
some corrective measures to improve their waste management systems, 
unfortunately these measures have not been effective in eliminating 
discharges from the facilities to the state's waterways.  This is evidenced 
by the fact that Bruinsma, Walnutdale and River Ridge have continued to 
discharge unlawfully notwithstanding prior enforcement by the MDEQ.  (As 
you noted, the MDEQ's enforcement proceeding against Bradford is ongoing; 
we are concerned that the possible settlement you mention, like those 
reached with the other three facilities, will not be effective in 
preventing future discharges from this facility.)

3.  The payments which the MDEQ has required Bruinsma, Walnutdale and River 
Ridge to make as part of the MDEQ's settlements with those facilities are 
too small to have any real deterrent effect.

The Sierra Club feels that the payments made under the settlements you 
mention amount to little more than a slap on the wrist.  While we certainly 
do not seek to put the four facilities out of business, the Club does 
believe that penalties must be substantial enough to deter would-be 
violators.  The United States Supreme Court recently recognized the 
importance of the deterrent effect of civil penalties imposed under the 
Clean Water Act.  See Friends of the Earth v. Laidlaw Environmental 
Services (January 12, 2000). 

The small payment required under the August 1999 Administrative Consent 
Order with Bruinsma (ACO), which you mentioned in your e-mail, illustrates 
our concern.  Under the ACO, Bruinma was required to make a payment of 
$3,000 "as partial compensation for the estimated cost of investigation and 
compliance and enforcement activities" incurred by the state.  Such a 
payment cannot be accurately characterized as a "penalty."  First, under 
the federal Clean Water Act, the amount of an administrative penalty should 
reflect, among other factors, the "economic benefit or savings (if any) 
resulting from the violation."  33 U.S.C. 1319(g)(3).  Requiring a violator 
to partially compensate the state for its investigation and enforcement 
costs does not take into account the economic benefit reaped by the 
violator from failing to make the necessary investment in its waste 
management facilities to ensure that they will be effective in preventing 
discharges.  Second, under both state and federal law, a penalty of up to 
$25,000 may be assessed for each violation.  Given that the ACO covered 
four separate unlawful discharges, the Sierra Club believes that a $3,000 
payment was far too low to have any real deterrent effect on Bruinsma. 

The Sierra Club understands that the MDEQ staff have limited resources, and 
I wish to emphasize that we view our actions as supplementing, rather than 
supplanting, the actions taken by the MDEQ.  We do want to work with the 
MDEQ as partners in protecting Michigan's environmental resources, and we 
would welcome the MDEQ's intervention as a plaintiff in any lawsuits the 
Club files to address Michigan's pollution problems.  While the Club stands 
by its criticism in the press release of MDEQ's enforcement actions against 
the four facilities receiving the notice letters, we look forward to 
working with MDEQ staff in a cooperative manner to solve one of the most 
problematic pollution problems facing the state.


Aaron Isherwood
Staff Attorney
Sierra Club

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