Posted on Sunday, May 6th, 2007
By GAVIN OFF
Columbia Daily Tribune
Lessons in Leniency
In the 'spirit of compromise', state environmental regulators routinely reduce pollution penalties assessed against large animal farms.
JEFFERSON CITY - For years, the Missouri Department of Natural Resources has levied civil penalties against large water-polluting animal farms, only to later reduce the penalties to about a quarter of the original amount, records show.
Although department officials say the downward adjustments to the civil penalties are all part of the negotiating process, critics call them handouts to industrial agriculture and slaps on the wrist to some Missouri polluters.
Examples of the consistent reductions in penalties are contained in more than 4,000 pages of department documents made available through Missouri's Open Meetings and Records Law. The records show the department often made the reductions in "the spirit of compromise."
The record of penalty cuts provides a sample to help measure DNR's regulatory performance at a time when some state legislators want to increase the agency's role in governing concentrated animal feeding operations, known as CAFOs. These are large-scale farms housing thousands of animals.
The state Senate recently considered a controversial bill that would have nullified local health ordinances governing CAFOs and would have essentially made DNR the sole regulatory authority over those operations. The bill died in the face of opposition from farmers, environmentalists and county officials.
Some opponents said the state regulatory agency could not protect local residents from the potential of air, land and water pollution from the large agricultural operations. A special interim legislative committee will study the large animal operations over the summer.
One place for the committee to start its work is an examination of CAFO violation records.
Since 2000, DNR's central office in Jefferson City has compiled more than 20 violations of state permits and the Missouri Clean Water Law by 12 animal farms. The records reviewed in Jefferson City represent only a sample of CAFO violation reports. Other violations are recorded in regional offices.
Of the records reviewed in Jefferson City, one case is still under investigation. Another case has been settled between the agency and the CAFO without negotiating a civil penalty. DNR never issued a penalty for a third animal farm because the CAFO immediately corrected the problem, reports showed.
But for nine farms, the department slashed the civil penalties it once deemed appropriate. Some penalties were reduced several times - all by thousands of dollars.
DNR records show the department reduced the nine civil penalties from a total of $167,000 to $45,000. Farms also paid for damages and the state's investigative costs when such costs arose. In agreeing to the settlements, the animal farms' owners admitted no wrongdoing.
Problems cited in the documents include spilling hog waste into rivers, spraying manure onto public roads, operating without state permits, failing to turn in annual water-monitoring reports and leaving a "pool of dead animal juices" at a farm composter.
"In the last two years, the DNR is really a joke out here in the countryside," said Rhonda Perry, program director for the Missouri Rural Crisis Center. "I don't think anybody out here trusts the DNR to do their job."
DNR's responsibility is to protect Missouri's environment. Among its many duties, the agency enforces regulations and permits dealing with CAFOs.
Doyle Childers, department director, said DNR negotiates penalties with CAFO operators after department officials impose the penalties and farmers present the state with mitigating evidence. Such evidence, he said, shows farms could not entirely control the situation.
For example, a pump might have malfunctioned, sending hog waste into a nearby creek, or torrential rains might have washed chicken litter onto a neighboring property.
Childers said the negotiations and the resulting reductions are a "standard practice."
He said the bottom line is teaching CAFO operators to correct their violations, prevent future mishaps and help them become more environmentally friendly businesses. If the department could do that with limited penalties, so be it, Childers said.
"One of the things I would want to look at is what are the circumstances of the violations," Childers said. "Is it something that couldn't be quickly repaired? Are they trying to resolve it?"
Childers said department officials weigh additional factors, including a farm's violation history. The department tends to go easier on first-time offenders, he said, and treats repeated offenders "much less friendly."
DNR records might suggest otherwise.
Murphy Family Farms' Bellamy Pyramid operation consists of three hog farms near Nevada in Vernon County in southwest Missouri. In November 2005, the farms housed about 23,000 hogs.
A farm irrigation pipe broke in August 2003, spilling about 5,000 gallons of hog waste onto the property, according to a settlement agreement among Murphy Family Farms, the attorney general's office and DNR.
Less than two months later, a 1,000-gallon spill happened at the same spot.
"The above listed violations are significant because they have an adverse impact on the quality and beneficial uses of the receiving stream, an unnamed tributary of Walnut Creek," wrote Ed Galbraith, director of DNR's Water Protection Program, in a letter to Murphy Family Farms.
Then, in July 2004, another irrigation pipe ruptured, this time sending about 20,000 gallons of hog waste into a neighbor's pond and the tributary, the records said. The spill flooded the pond with 294,000 gallons of a waste/rainwater mix.
The report said the three violations lasted a total of six days.
Under the Clean Water Law, the state could fine farms as much as $10,000 a day for each violation, or in this case $60,000.
DNR said the spills' potential harm was "moderate" and assessed the damage at $30,000.
In a letter from the department's compliance and enforcement section, however, DNR later cut the assessment, saying a $25,000 penalty "is appropriate for this matter."
Later, the department reduced the penalty again.
After negotiations - at which time CAFO operators said the spills had no environmental effect and the farm had spent more than $500,000 to prevent future spills - Murphy Family Farms and DNR settled on a $6,000 civil penalty.
The settlement measured 24 percent of the original penalty of $25,000 and 10 percent of the maximum allowed under Missouri law.
Civil penalties are supposed to act as a deterrent against future violations. Environmentalists and residents said reducing the penalties merely perpetuates violations.
"It's like getting charged with a $100 speeding ticket, and they drop it down to $1," said Melody Torrey, a Unionville resident who lives next to a hog farm. "Would that make you stop speeding?"
Childers, a former state lawmaker whom Gov. Matt Blunt appointed to head DNR in 2005, said the cuts in penalty amounts are a balancing act. Childers has said in the past that while enforcing the state's environmental laws, he also wants to help develop Missouri's economic development potential.
If CAFO operators contain a waste spill to the farm, Childers said, DNR would likely reduce the civil penalty. DNR is more demanding of CAFOs whose violations severely affect neighboring properties, he added.
Records show civil penalties are reduced even when they harm state waters or affect neighbors.
As of last year, the Simpson-Zeysing Farm in Caldwell County in northwest Missouri was home to 9,000 nursery hogs. The animal farm sits just off an unnamed tributary to Kettle Creek.
In April 2005, the farm was cited for polluting state waters, this time after hog waste - spread on the land as fertilizer - washed into the tributary. The discharge killed 4,117 fish and polluted 4.5 miles of stream for at least three days, records show.
DNR cited the farm for five violations.
"Although this is the only incident of record, it is particularly egregious because it included a fish kill, and it appears Mr. Simpson was negligent with maintaining best management practices during wastewater application," wrote Mary Ann Redden, a DNR environmental specialist, in the July 2005 report.
After the CAFO owner, Byron Simpson, said he could not afford to pay the civil penalty, DNR cut its initial $12,000 penalty to $4,000.
In the final settlement agreement, DNR cut the penalty to $2,000. The owner also paid for damages and DNR's investigation, which totaled $3,429.
In all, the department cut the civil penalty by 83 percent.
Terry Spence, a Unionville cattleman who has fought CAFOs for the last 12 years, said such reductions show Missouri is a CAFO-friendly state.
"They know up front that they're not going to get harmed," Spence said of CAFOs that break state laws. "It's just going to be a little slap on the hand."
Similar reductions unfolded for nearly all of the 12 farms that were issued violation notices and recorded in the department's Jefferson City office.
Fletcher Hog Farm, near Sweet Springs in Saline County: According to an August 2002 settlement agreement, hog waste discharged into an unnamed tributary of Jordan Creek, killing 3,817 fish. The department assessed the penalty at $28,000 but because of the size of the farm, levied only a $12,000 penalty. DNR cut the penalty to $2,500, the settlement agreement said.
Forkner Farms in Vernon County in southwest Missouri: According to an August 2003 notice, hog waste discharged into Douglas Branch. In a report the next year, the department declined to issue a civil penalty because the CAFO immediately corrected the problem.
Delbert Fry Farm in Morgan County: According to an April 2002 letter from Fry, the department sought a $20,000 penalty after Fry discharged hog waste into an unnamed tributary of Flat Creek. DNR cut the civil penalty in half but also said it could be cut down to $2,000, provided that the farmer complied with specific conditions.
Tompkins Livestock Farms in Miller County: According to a July 2004 report, the department assessed an $8,000 penalty against the farm for discharging hog waste into an unnamed tributary of South Moreau Creek. DNR cut the penalty to $2,000, the settlement agreement said.
Climax II Hog Farm near Ashley in Pike County: According to a July 2004 letter, the department sought a $60,000 civil penalty against the farm for discharging hog waste into parts of the Cuivre River. DNR cut the penalty to $20,000.
Glen Scott Poultry in Barry County in southern Missouri: According to a DNR report last May, the department sought a $10,000 civil penalty against the farm for operating without a valid permit and failing to turn in annual water-monitoring reports for seven straight years. DNR cut the entire penalty and sought only a $300 permit fee, a department letter said.
Diamond T Farm, Miller County: According to DNR letters in March 2006 and June, the department cut a civil penalty from $12,000 to $1,500. The CAFO had discharged hog waste into an unnamed tributary of Blythes Creek.
Niebruegge Farm, Cooper County: According to a DNR report last May, the department and the farm agreed to a $3,500 civil penalty after two animal waste discharges. Under state law, the penalty could have reached $10,000 a day for each violation.
Kip Cullers Poultry in Barry County: According to an August DNR report, the department, 'in the spirit of compromise,' cut a civil penalty from $8,000 to $1,000. The CAFO was operating without a valid permit and had failed to turn in annual water-monitoring reports for six straight years.
The list of reductions surprised even those who already had little confidence in DNR. "They really are pretty shocking," said Perry, of the Rural Crisis Center. "I think it's totally clear that companies believe it pays to be a polluter because it's just a cost of doing business."
Childers stood by DNR but said the department's system of starting with a large demand for a civil penalty and then negotiating the settlement downward could change.
Although he said the mere threat of a hefty penalty could scare some CAFOs into compliance, Childers said if the department is settling for fractions of the initial penalty, "you've probably started out too high for negotiating purposes."
"In fact, there's been discussion about whether we're starting out too high with that, if you ought to have a more realistic number and less flexibility." Childers said. "That's been an internal discussion."
Kevin Mohammadi, compliance and enforcement chief of DNR's Water Pollution Control Branch - which oversees the Clean Water Law and Missouri Clean Water Commission regulations - said he was unaware of such discussions.
He's also against the idea.
"You really can't" start lower, Mohammadi said. "We use an administrative penalty template that is in the regulation. We use that to determine the amount of the penalty."
Mohammadi said DNR's settlement agreements are adequate and that he couldn't recall any case in which the department didn't offer to negotiate a civil penalty.
"That doesn't mean you let them all go easy," said Charles Speer, a Kansas City attorney who represents people who have filed complaints against CAFOs.
Speer has tried dozens of CAFO cases, including more than 200 current nuisance odor cases against hog producer Premium Standard Farms. He said DNR has failed to keep CAFO pollution in check.
A former DNR employee also questioned the department's ability to regulate CAFOs.
The department is simply understaffed and underfunded, said Jim Vaughn, 61, of Dexter. Vaughn spent more than 20 years as a DNR geologist, inspecting more than 2,000 hog lagoons and wastewater sites statewide. He retired in 2002.
Too often, DNR officials failed to inspect how CAFO lagoons were built, Vaughn said. They left that to engineering firms and corporate representatives.
"If enforcement is too lax - the fines, in other words - there"s probably not much incentive for them to pay attention to the DNR," Vaughn said. "Until CAFO companies and owners of other major livestock operations become highly responsible for environmental quality, you simply have to have people out there looking over their shoulder."
But given the numbers, that could be difficult.
The department now employs 14 water-quality inspectors. Missouri is home to 511 CAFOs.
DNR inspects the larger CAFOs sometimes once a year. Smaller CAFOs monitor themselves, a DNR official said.
"I think the counties have decided to take the matter into their own hands because they feel the state has failed them," Speer said.
Some 20 Missouri counties have zoning and health ordinances governing everything from CAFO livestock odor to setbacks between CAFOs and neighbors' homes. The bill considered earlier this session in the state Senate would have nullified those ordinances and would have turned most regulatory authority over CAFOs to DNR.
Supporters said the change would provide uniformity of enforcement. Opponents said it would weaken local health protections.
Sen. Chris Koster, R-Harrisonville, sponsored the bill, saying that if regulations varied from county to county, it could drive farmers out of state to locations where laws are unified and more lenient.
Koster said he quickly became aware of the rift between rural Missourians and DNR. Now he's calling for legislative action.
"Policymakers in Jefferson City need to take note of that frustration and ensure that the civil enforcement duties of the Department of Natural Resources are active and effective in their environmental role," Koster said.
Koster said he supports a legislative committee review of DNR's effectiveness. But even if there's a legislative review, residents and environmentalists could still bear some of the burden of policing large-scale animal farms.
Some DNR notices stem from local residents reporting the problem.
For example, an anonymous call prompted a March 2004 inspection of Tompkins Livestock Farms, records showed.
The inspector's attention turned to a nearby creek, which "contained brown and black colored water and smelled of hog manure."
The hog waste polluted more than two miles of a local stream, a DNR report said.
But the department cut the penalty by 75 percent, suggesting to some that the state had folded to industrial animal farms.
"They need to fine them the full amount, instead of a piddling amount," said Torrey, the resident of Unionville. "In my opinion, it's saying Missouri is easy."
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