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Re: Fwd: E-M:/ Sierra Club gives Notice on 4 Livestock Facto
Enviro-Mich message from firstname.lastname@example.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.
FROM AARON ISHERWOOD, Sierra Club staff attorney, in response to Tom
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.
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