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RE: E-M:/ Sierra Club CAFO Lawsuits--Wazzzup??

in your response to anne, you say "most of the alleged violations (manure run off) were the direct result of excessive rains" . . . could you tell me what criteria are used to distinguish "excessive rains" from rainfall that is not excessive

craig k harris
department of sociology
center for integrated plant systems
michigan state university
429b berkey hall
east lansing  michigan  48824-1111
tel:  517-355-5048
fax:  517-432-2856

-----Original Message-----
From: Kenneth Vermeulen [mailto:VERMEUKW@wnj.com]
Sent: Wednesday 4 October 2000 13:59
To: enviro-mich@great-lakes.net; anne.woiwode@sfsierra.sierraclub.org
Subject: Re: E-M:/ Sierra Club CAFO Lawsuits--Wazzzup??

Dear Anne,
As the attorney for Bradford Dairy Farms, let me provide a few additional facts.  The reason the Consent Judgment did not "require" Bradford Farms to apply for a permit, is that we had already voluntarily done so at the time the Complaint was filed.  That application is currently being reviewed by MDEQ.  I must tell you, however, that it was a challenge to complete an application for a "discharge permit," when then entire process is designed to prevent any discharges whatsoever.
Although I understand Sierra Club's position on the permitting matter, I think you owe it to the public, and other recipients of your messages to provide all of the relevant facts, including that MDEQ's position on this matter is not without sound basis. 
As you know, MDEQ takes the position (which I happed to agree with) that although the Clean Water Act does define CAFOs as "point sources," that is not the end of the inquiry.  Unless a "point source" actually has a discharge, it is not clear at all that any law (state or federal) requires that a permit be issued.  In fact, it seems illogical to issue "permit to discharge" when what is really intended is a prohibition against discharges.  MDEQ's position is that farms may not discharge, period, and that any discharge is a violation of law.  Frankly, in Bradford's case, most of the alleged violations (manure run off) were the direct result of excessive rains.  As you should know, under federal law, any discharge resulting from such excessive rains would NOT be a violation if the Bradfords had an NPDES permit.  According to MDEQ, however, in the absence of a permit these alleged discharges can result in significant civil penalties.
While I do not agree with MDEQ's strict enforcement position in this respect (it seems to me that extraordinary Acts of God should not subject a family farm such as the Bradford's to civil penalties) you should be careful in suggesting that an NPDES permit would be more protective of the environment than Michigan's current program.  That is simply not true.  As someone once said, "Be careful what you ask for. . . you may get it."
Your readers might also be interested to know that the Bradfords have been evaluating a variety of methods for reducing the environmental impact of their farming operations for the past several years, long before the MDEQ's recent enforcement action.  In fact, but for the MDEQ's enforcement action, and the Sierra Club's threat of litigation, those measures would probably already be in place.  Now that the MDEQ enforcement action has been resolved, the Bradfords are again focused on implementing these measures, which should be completed by next spring.  Hopefully even the Sierra Club can understand that a family run farm does not have the resources to both defend enforcement actions brought both by the government and special interest groups, and implement expensive, but not legally required (even under federal law) waste handling measures that their competitors are not implementing.  I would ask the Sierra Club to support the Bradfords' efforts in implementing state-of-the-art manure management practices, rather than dragging them into a fight which is clearly between the Sierra Club, U.S. EPA and the MDEQ.
Lastly, please refrain from characterizing the Bradford Farm as an "enormous concentrated animal feeding facility" or a "giant corporate-owned livestock factory."  Anyone who has ever visited the Bradford Farm would know that those statements are completely false and slanderous.  In fact, in the absence of the discharges alleged by MDEQ, it is undisputed that the Bradford Farm is not nearly large enough to be defined as a CAFO.  As I understand your interpretation, however, once a farm has had a manure run off incident (even if resulting from a flood) then no matter how many animals the farm has, it is a CAFO.  The Bradford Farm is family owned and operated, with a long standing reputation as a responsible member of the Sparta community.  The president of the company is Mrs. Linda Bradford, who took over for her husband, who died in 1996.  She is in the process of transitioning this  responsibility to her son, Jason.  While I admire the Sierra Club's concern for the environment, that is no excuse for mis-characterizing this classic American family farm as "no friend to Michigan's families" as it did in one of its previous press releases.   My guess is, that if you talked with Jason and Mrs. Bradford's neighbors, you would understand just how untrue your statements are.
I look forward to discussing this matter with you in greater detail, if you would like.
Kenneth W. Vermeulen
Warner Norcross & Judd LLP
Phone: 616-752-2166
Fax: 616-222-2166
e-mail:  kvermeulen@wnj.com

>>> <anne.woiwode@sfsierra.sierraclub.org> 10/03/00 08:05PM >>>
Enviro-Mich message from anne.woiwode@sfsierra.sierraclub.org

Dear Tom: A major oversight in the DEQ "enforcement" action is that
it failed to require, as required under both State law and Federal
law, that these facilities seek and obtain NPDES permits from the
State of Michigan. The DEQ continues its game of ignoring the
bottomline issue -- your failure to enforce to both Michigan law and
the Clean Water Act.

Nice try, but DEQ has still failed to do the job.

For the uninitiated, this action by the DEQ appears to be an effort simply
to preempt the Sierra Club's notice of intent to sue against these two
concentrated animal feeding operations (CAFOs). The state continues its
defiance of the plain face of both Michigan and US regulations and law
regarding water quality, most especially the requirement to bring these
enormous concentrated animal feeding facilities under permits.

Why are permits important? Below, taken from an analysis prepared for
Sierra Club, are the most important reasons:

* Permits incorporate federal standards for CAFO pollution control. NPDES
permits incorporate pollution limits based on the most effective technology
available to control pollution in a particular industry. Having
specifically studied the pollution associated with CAFOs and available
technology, the federal Environmental Protection Agency has issued
regulations setting the limit for large CAFOs at zero discharge. Permits
thus ensure that facilities are held to appropriately stringent standards
of environmentally responsible operation. In addition to pollution limits,
permits also include other important conditions, such as the duty to
operate and maintain the facility and treatment equipment and to minimize
or prevent violations that are likely to affect the environment or human

* Permitted facilities are subject to greater oversight by state and
federal regulators. State or federal authorities may immediately enforce
permit violations, and if they fail to take appropriate action, private
citizens can bring an enforcement action. By contrast, a facility without
a permit is only subject to enforcement if violations come to the attention
of government regulators through citizen complaints or otherwise.

* Permits require extensive monitoring and reporting. The permit
specifies the type, location, and frequency of sampling that the facility
must conduct. In the event of a discharge, the facility must report the
discharge to government regulators by submitting a "Discharge Monitoring
Report." Discharge Monitoring Reports can be an essential way for
government and citizens to become aware of pollution problems at a
particular facility.

* Permits help ensure continued oversight. The holder of an NPDES permit
has a duty to report any planned changes to the facility or transfers of
ownership. The permit also gives the permitting authority the right to
enter and inspect the facility, take samples, and have access to its
records. These provisions greatly assist the permitting agency in its
enforcement efforts.

* The permitting process affords opportunities for public participation.
Before a permitting authority issues a final permit, it releases to the
public a draft permit and information about the facility. A public comment
period follows, allowing interested citizens to submit comments on the
draft and request a public hearing. If the permitting authority decides to
schedule a hearing, the public may also submit statements and data in this
forum. Through this process, the public has a chance to inform the
permitting authority of its concerns, which can then be accounted for in
the final permit.

There are MANY good reasons for the DEQ to catch up with the rest of the
nation and require permits on facilities that are CAFOs, aside from
following the law.

Anne Woiwode, Sierra Club

Mr./Ms. Druid:

While I don't know what the Sierra Club is doing, I am pleased to report
the fol lowing (DEQ Press Release):

October 3, 2000
Contact: Ken Silfven
(517) 241-7397

The Department of Environmental Quality, in cooperation with the Michigan
Depart ment of Attorney General, has filed civil lawsuits against two West
Michigan agr icultural producers for violating state water-quality laws.

Judgments have been entered with the 30th District Court in Ingham County
to cor rect the problems and resolve the legal violations.

Lawsuits were filed on Sept. 22 charging Bradford Dairy Farms Inc., a Kent
Count y dairy producer; and River Ridge Farms Inc., a cattle and crop
production opera tion in Coopersville, with illegally discharging manure
and other wastes into st ate waters. The state alleges that the discharges
occurred due to improper manur e management practices at both farms.

"It does not pay to pollute in Michigan," DEQ Director Russell Harding
said. "Ag ricultural producers as a group are committed to operating in an
environmentallyresponsible manner. But we will move swiftly to protect our
state's resources when problems arise. I applaud the professionalism of the
DEQ's Surface Water Qual ity Division enforcement unit and the Department
of Attorney General in handlingthese cases."

Both defendants have agreed to settle the lawsuits by entry of a
court-monitoredconsent judgment that requires them to improve manure
and disposal practices, and pay civil penalties for the violations.

Bradford Dairy Farms, which operates five separate facilities in and around
Spar ta, has agreed to develop and implement improved manure handling,
storage and ap plication practices at its operations. This will be done by
preparing a comprehe nsive manure management plan for its operations in
accordance with standards est ablished by the state and federal departments
of Agriculture.

Bradford also agreed to pay $20,000 in penalties and to partially reimburse
the DEQ for $4,000 of the agency's costs for conducting compliance and
enforcement a ctions.
River Ridge Farms Inc. also is required to implement a comprehensive
nutrient ma nagement plan for all of its animal feeding operations that
will prevent any fut ure unlawful discharges to the waters of the state.

River Ridge Farms has further agreed to pay a total penalty of $25,000 for
past illegal discharges. Of this amount, $15,000 will be paid to the state
and $10,00 0 will be donated as a supplemental environmental project to
Grand Valley State University for water research projects in the Deer Creek
watershed. River Ridge also will reimburse the DEQ $6,000 to settle the
agency's claims for compliance and enforcement costs.

Since 1992, the DEQ's Surface Water Quality Division enforcement team has settle
d 12 administrative actions and two litigated cases against agricultural produce
rs who have violated Part 31 of Michigan's Natural Resources and Environmental P
rotection Act. There currently are three additional pending judicial actions
andseveral administrative actions under way.

The collective settlements have resulted in more than $100,000 in civil penaltie
s being paid to the state, about $45,000 in administrative cost reimbursement, a
nd over $20,000 in natural resource damage restitution. Cash donations also
weremade as part of some settlements to local environmental groups to improve
water quality in the local watershed. These supplemental environmental projects
provid e direct benefits to the impacted resource.

More important than penalty dollars, these settlements have resulted in more tha
n $500,000 in expenditures for corrective actions to prevent future illegal disc
harges to Michigan waters.

Revised October 3, 2000 by Deb Miller

The HTML version of this press release can be found at our web site at:




Thomas K. Rohrer, Chief
Enforcement Unit
Michigan Department of Environmental Quality
P.O. Box 30273
Lansing, MI 48909-7773
(517) 335-4101
(517) 373-2040 - fax

e-mail = rohrert@state.mi.us

"Protecting and enhancing the quality of Michigan's surface waters"

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