By Paul W. Jackson-Michigan Farm News
EPA labels milk environmental hazard
Since milk contains animal fat, the Environmental Protection Agency lumps it in with petroleum oil and seeks to regulate it as if it is a hazardous substance. Farm Bureau officials call that a government overreach and are working to enact a stalled exemption proposal from the EPA.
Looking for a way to optimize unintended consequences? Politicize them.
Looking for a way to get farmers politicized? Read on. Rules put forth by the Environmental Protection Agency (EPA) under the presumably infallible Clean Water Act have the potential to harm every farmer who has significant fuel storage on the farm. But dairy farmers should pay particular attention, since the EPA apparently intends to classify milk as a hazard to the waters of the United States and add tremendous compliance costs and regulatory burdens.
"This is beyond the original intent of the law," said Andy Kok, legal counsel with Michigan Farm Bureau. "If we had examples of dairy bulk tanks leaking and producing fish kills, we might understand it. But this is just one more example of a well-intentioned law that EPA regulators will go beyond to churn out a rule absent the balance of common sense."
Tied to the Clean Water Act is a separate program called the Oil Spill Prevention, Control and Countermeasure Program. Its goal, according to the EPA, is to "prevent oil spills into waters of the United States and adjoining shorelines.... A key element of this program calls for farmers ... to have an oil spill prevention plan, called an SPCC plan."
Sounds reasonable on the surface, Kok said, and at first glance it also seems reasonable to assume that farmers won't really be affected much, since a farm cannot be under the rule's thumb unless it does three things: It must store, transfer or use oil; it must have the capacity to store more than 1,320 gallons of oil in aboveground tanks or 42,000 gallons in below-ground tanks, and it must "reasonably be expected to discharge oil to waters of the U.S."
Those are very specific criteria, and most Michigan farmers would think they're exempt. But milk, according to the EPA, is considered oil, and therefore dairy farmers can much more easily reach the 1,320 gallon criteria.
Why is milk considered oil?
"Milk typically contains a percentage of animal fat, which is a non-petroleum oil," the EPA rule says. "Thus, containers storing milk are subject to the SPCC rule when they meet the applicability criteria..."
When we apply some general assumptions to the rules, things get sticky even for small farmers. If a farm has no fuel storage tanks to add into the equation, and if a milk bulk tank can be regulated beginning at the capacity to hold 1,320 gallons; and if we assume a 70 pound-per day per cow production average at roughly 8 pounds per gallon, or 8.75 gallons per cow per day, that means a farmer milking 150 cows could be regulated yet again, this time under the SPCC if milk is picked up every day. For every-other-day pickup, cut the regulated herd size to 75 cows.
That's a pretty significant overreach by the government, Kok said, particularly since the act that created the SPCC is very obviously intended to deal with petroleum-based oil spills.
Further muddying the issue, said Paul Schlegel, director of public policy with the American Farm Bureau Federation, is that EPA has few answers either.
"We tried to tell the EPA three or four years ago that farms are not a problem and to rope us into the rule is senseless," he said. "EPA's position is that farms are not exempt by law, and that they in effect were making more flexibility for the fact that farms have different circumstances, but they also contend they have no ability to write farmers out completely."
With that as a caveat, the EPA proposed an exemption for farmers under the SPCC. But that was in the waning days of the Bush Administration, and when the Obama Administration took over, Schlegel said, EPA pulled back the rule in keeping with Obama's promise to reexamine every Bush policy.
"The Obama Administration pulled back the rule in January of 2009, then reissued it in November, and to large degree it was the same rule," Schlegel said.
If the Obama EPA was willing to give famers a break on the oil spill rule, it has shown no effort to do it. In fact, farmers are expected to be in compliance under the law this November, although there has been talk of extending the compliance date.
Farmers - many whom are not in compliance but are already required to be - have no assistance available and no department personnel to help them comply, said Allen Krizek, MSU Extension liaison with the Michigan Department of Agriculture. He's also involved with the state's Water Stewardship Program.
Without enforcement or guidance, complying is even more complicated than the rule, if that's possible. If a farm's cumulative storage capacity of oil - that includes diesel fuel tanks, oil storage containers and milk bulk tanks - is less than 10,000 gallons and there has never been a spill, the owner can self-certify by filling out a 20-page EPA "template." If those conditions do not apply, the farm response plan must be certified by a professional engineer. Kok said a quick call revealed one engineer whose SPCC preparation fee begins at $2,500.
Hopefully, the issue will become a little easier to handle, since the National Milk Producers Federation is preparing its own 20-page template specifically for dairymen. But what are farmers to do in the meantime? Hold tight at this point and take measures to get the EPA to move forward with the exemption it originally proposed.
"There has been talk of an exemption, but I'm not sure if it will go through," said Dr. Barb Carr, SPCC coordinator with the EPA's Region 5 office. If it does not, she said, farmers are expected to be in compliance with the rules by Nov. 10, and they will be held to that deadline. But only the rules that were added in 2002 apply, not the rules that were included in the original 1973 rule.
The bottom line is that farmers are not exempt, she said, noting that she will be happy to speak to farmers, and they should not be afraid of talking to her.
"They can call me anonymously," she said. "I'm not going to use their call to start an enforcement action. I just want them to have the right information and be sure they understand. A lot of this is just common sense, and I'll spend three hours with them if I need to."
Carr's direct office number is (312) 886-7187.
Farmers also can get more information and guidance on the Web at http://www.epa.gov\oilspill, although Schlegel said it's not all that easy.
"The links provided on the EPA Web site don't answer our questions," Schlegel said. "So at this point, we just need to get the word out that this is coming, and hope farmer response is enough to get the exemption moving."
There is no question, Schlegel said, that if the government goes ahead with the rule, federal jurisdiction over farms will "spread exponentially." And that, farmers fear, is more than an unintended consequence.
It's also unnecessary, Kok said.
"If a farmer spreads milk on his fields or drives his tractor through the milk house into the bulk tank and it spills into surface water, that's an illegal discharge," he said. "The farmer will have to clean it up. It's already a covered issue."
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