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| "The Dairyman's Number One Choice in Newspapers" | |||
| Serving Texas, New Mexico, Oklahoma, Arizona & Kansas | |||
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| "The Dairyman's Number One Choice in Newspapers" | |||
| Serving Texas, New Mexico, Oklahoma, Arizona & Kansas | |||
| VOLUME XIII, NO. 7 |
JULY 2004 |
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Milk Agency to Aid
Diaries in Waco Suit |
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| Milk Agency to Aid Diaries in Waco Suit | |
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Although final approval has yet to be announced, the Greater Southwest
Milk Marketing Agency board of directors has made a decision to give
financial assistance to the 14 dairies currently being sued by The City of
Waco. Board TAD Executive Director John Cowan said TAD has been working with the milk marketing agency on the lawsuit issue for the past few months. Although some of the dairies are looking at options that may include negotiations with Waco, Cowan said TAD and the milk marketing agency plan to continue in their efforts to defend the suit. “Waco is trying to break the spirit of our dairy industry and financially ruin our dairies. This tactic by Waco may force the dairies to look at other options but we feel we must protect our animal agriculture industry.” TAD’s law firm of Akin, Gump, Strauss, Hauer and Feld, LLP has provided legal research on the lawsuit that has been shared with the 14 dairymen’s individual attorneys. THE SUIT The City of Waco sued eight (8) dairies in the North Bosque River Watershed on April 29, 2004, alleging continued violations of the federal Clean Water Act and other claims of action. An amended lawsuit, adding 6 more dairies in the watershed, was filed on May 27, 2004. SEVEN CAUSES The seven causes listed for the suit include: 1.) CERCULA (Comprehensive Environmental Response, Compensation and Liability Act), a federal cause; 2.) Clean Water Act, a federal cause; 3.) Cost Recovery and Contribution under the Texas Solid Waste Disposal Act (TSWDA; 4.) Negligence; 5.) Negligence per se; 6.) Trespass; 7.) Claims for injunctive relief and civil penalties under the Texas Water Code. *The first and third causes of action are for cost recovery and contribution under CERCLA and the Texas Solid Waste Disposal Act. The second and seventh causes of action are for enforcement of federal Clean Water Act and the state Water Code. WACO ALLEGES The City of Waco alleges damages by the 14 Bosque River dairies to their drinking water supply reservoir at Lake Waco. They claim Lake Waco has been adversely affected by an increase of nutrients, specifically phosphorus, resulting in excessive algae growth. They contend the excessive algae growth has caused taste and odor problems with their drinking water and they have incurred and will continue to incur substantial treatment costs in responding to the taste and odor problems. *Relief requested by the City of Waco seeks cost recovery and contribution for costs incurred by the city to address taste and odor problems in the lake. MISUSE OF CERCLA STATUTES According to an analysis of the suit presented in the form of a “white paper” outlines preliminary arguments by dairy defense attorneys. The analysis says Texas agriculture could be in trouble if CERCLA and the Clean Water Act are construed by the court as plead by Waco. The defense attorneys contend that Waco’s claims for cost recovery and contribution under the CERCLA (sometimes known as Superfund) and the Texas Solid Waste Disposal Act (TSWDA), the state's counterpart to Superfund, represent an unprecedented use of these statutes to address common and recognized agricultural practices that are not limited to the dairy industry. FEDERAL & STATE WATER QUALITY STATUTES Waco also alleges permit violations and unauthorized discharges against the dairies under federal and state water quality statutes. Defense attorneys say the use of these statutes by an entity, located over 100 miles downstream, raises similar unprecedented threats to Texas agriculture and represents a usurpation of the state’s (Texas Commission on Environmental Quality-TCEQ) role in water quality management. WACO ALLEGES PHOSPHORUS IS HAZARDOUS Waco claims the phosphorus originating from the dairies is a hazardous substance under these federal and state statutes. Defense attorneys say the potential impact on Texas Agriculture should not be evaluated in the context of the individual dairies’ water quality permit violations alleged by Waco, but instead, it is the subversion of the intent of the federal and state hazardous substance response statutes that threaten agriculture. If Waco should succeed in the application of federal and state Superfund and water quality statutes in this litigation, a precedent will be set, which will be a model for similar actions against agricultural operations in the state. Normal and accepted agricultural practices would be questioned and potentially shut down for fear of litigation. Inadvertent and expected releases of substances common to agriculture would become fodder for lawsuits by downwind and downstream third parties. Defense attorneys point out that agriculture generates nutrients which potentially may contribute to aquatic vegetative growth. Ammonia and phosphorus compounds are common to agriculture and are necessary for plant and animal life. ELEMENTAL PHOSPHORUS UNDER CERCLA Waco alleges that runoff and other discharges from the dairy operations constitute a release of hazardous substances and that the nutrient, phosphorus, is a hazardous substance. CERCLA regulations identify phosphorus as a hazardous substance, but with a specific Chemical Abstract Registry Number, 7723140, which relates to a recognized hazardous and toxic substance, commonly, referred to as elemental phosphorus, red phosphorus or black phosphorus and used in fireworks, artillery shells, smoke bombs and pesticides. This chemical is a reactive solid, which is highly combustible. Its fumes are extremely poisonous, and when it comes in contact with skin will cause severe burns or intense inflammation. Defense attorneys point out elemental phosphorus does occur free in nature, but is created through manufacturing processes that extract the chemical from other compounds. According to legislative history, a fair reading of CERCLA demonstrates that the Act was passed to address serious threats to human health and the environment from synthetic, man-made chemicals, chemical contamination, and the results of modern chemical technology. Defense attorneys point out CERCLA does not contain references to an intention to clean up manure or urea, or their by-products, from normal agricultural operation. ORTHOPHOSPHATE UNDER CERCLA The nutrient, orthophosphate, originates from natural processes in agricultural operations. The past investigations and studies of the North Bosque Watershed have identified orthophosphate as the nutrient that allegedly originates from dairy operations and associated land-application fields which contributes to excessive vegetative growth in the watershed. Further, orthophosphate is a different chemical substance than the elemental phosphorus listed as a hazardous substance under federal regulations. Orthophosphate has a different CASE No, "14265442". Also, CERCLA exempts from the definition of "release" the "normal application of fertilizer". The attorneys point out the land-application of manure and wastewaters from dairies constitutes accepted practices for fertilizing agricultural fields. Orthophosphate is a recognized and well-used fertilizer. Agricultural operations in the North Bosque River Watershed purchase commercial sources of orthophosphate fertilizers to improve productivity. WHAT WACO MUST PROVE With respect to releases into Lake Waco, defense attorneys say the city will need to show that the individual dairies released phosphorus into the lake. Waco may not be able to prove that the releases from each of the dairies are traceable to Lake Waco over 100 miles away. The individual dairies may be located on tributaries of the North Bosque, which have hydrologic characteristics that minimize the likelihood of orthophosphate contributions to Lake Waco (e.g. soil conservation retention structures). Also, recent water quality assessment data from the TCEQ indicate that the lower stretch of the North Bosque River, immediately above Lake Waco, is fully supporting the water quality standard's general criteria relating to nutrients and excessive vegetations. Waco must also prove that the dairies arranged for disposal of a hazardous substance into Lake Waco. Waco alleges the runoff and other discharges into the watershed of Lake Waco meet that burden. Defense attorneys argue the management of wastewaters and manure by the dairies does not constitute such arrangement for the disposal into the lake over 100 miles away. The dairies engaged in accepted agricultural practices for the management and use of manure and wastewaters. Regarding Superfund claims, and although Waco has incurred costs, the city must prove that these costs are response costs under CERCLA. The dairies will need to show that the treatment of Lake Waco water for taste and odor problems due to algae growth does not constitute response costs under CERCLA, which are directed at measures taken only to remedy hazardous substance contamination in the environment. As with the North Bosque River, recent TCEQ water quality assessment data indicates that Lake Waco meets all water quality standards for drinking water supplies. WATER QUALITY ENFORCEMENT CLAIMS Waco’s water quality enforcement claims are also threatening to Texas Agriculture. If Waco is determined to have standing to bring actions against dischargers located more than 100 miles upstream, no agricultural operations would be safe from similar actions. Dairy attorneys say the TCEQ has undertaken significant compliance actions in the North Bosque River Watershed. Waco’s attempt to bring these enforcement actions, which second-guesses similar actions by the TCEQ, represents clear and unnecessary interference with the state's water quality management program. |
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| Commissioners Unanimously Approve CAFO Rules | |
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In what has been a long time coming, state commissioners for the Texas Commission on Environmental Quality (TCEQ) unanimously approved revised Concentrated Animal Feeding Operation (CAFO) rules on Wed., June 23, in Austin. CAFO rules have been the subject of major disagreements existing between City of Waco officials and dairy producers located in the North Bosque River watershed for nearly 10 years. The revised CAFO rules that meet federal law and state legislation were put together by City of Waco official, producers and livestock organizations, and several state and federal agencies. The input from these groups was an effort to come up with guidelines agreeable to all parties concerned. Although the TCEQ’s role is to regulate CAFO rules, the City of Waco, currently suing 14 upstream dairies alleging violation of the federal Clean Water Act and other actions, has made it clear of its intentions to pursue its own efforts to clean up the North Bosque River watershed. One of the major changes in the revision for dairies in the Bosque River watershed is a requirement to obtain an individual permit. Mandated by the 77th legislative session, HB 2912 requires all new and expanding CAFOs in major sole source impairment zones to obtain an individual permit and prohibits the TCEQ from adaptation of general permits for any dairy CAFO located in major sole source impairment zones. An individual permit allows for a hearing before an administrative law judge should the application be protested. Another major changes in the rules that specifically concerns dairy producers in the Bosque River watershed includes a 25-year, 10-day rainfall event regarding storage capacity in dairy lagoons. The “margin of safety” will now require lagoons to hold a 11.8 inch rainfall, although that could vary somewhat depending on the amount of rainfall in a particular location. The previous rule that provided for a 7.3 inch rainfall was characterized by Waco as a “rainfall loophole.” Producers, who never agreed to the near-12 inch rainfall revision are still not certain as to how this rule ended up in the final rules. Other revisions include additional record keeping for CAFOs such as daily monitoring of liquid in lagoons in the Bosque River watershed, daily inspections of irrigation nutrient systems, and daily inspections of leaks in water lines from holding ponds and water troughs. One change of great benefit to Bosque River watershed dairies is the rule that allows for additional application fields from third parties that does not require the third party to be part of the dairyman’s permit. As long as the requirements for phosophorus are met, this will open up more available land for producers to haul their nutrients to instead of having to haul of the county. |
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| Fund Raisers Renew Faith in People and Community | |
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Just about the time you start to question your faith in people and wonder if they really know what's going on in Erath County's dairy industry, suddenly the wind shifts and there's a rally for support that sends spirits soaring sky-high. This is evidenced by the success of the many fundraisers during the month of June to raise money for the Dairymen's Legal Defense Fund. With 14 dairies currently being sued by the City of Waco, it appears that people from all entities have begun to realize the severity of the lawsuits and the threat to the area's economic wealth, including the Stephenville Chamber of Commerce who signed a resolution last month to support area dairies. KCUB radio station, co-owned by Harry Bradberry and J.D. Evans, has been donating live broadcasts from area businesses that have agreed to host hamburger luncheons in an effort to gain the public's attention about the dairymen's fight to preserve area dairies. On Wed., June 23, the largest fundraiser thus far was held at Erath County Dairy Sales (ECDS) during their special heifer sale. One-half percent of the commission plus 100% of the yardage received from the special sale was donated. The sale donations along with T-shirt sales, a hamburger luncheon and dessert bar, private donations and a silent auction succeeded in bringing in approximately $55,000. Gore's of Comanche was the largest donor, contributing $7,500 in cash. The event managed to capture the attention of several area folks who showed up to offer their support and concern for the dairymen's plight.
"It's very important that we help these dairies," said Kenneth Harvick,
of Gore's. "Even though we're located in Comanche, these dairies being
sued in Erath County affects all of us."
Stephenville's new mayor Rusty Jergins was represented by Stephenville City Councilman Ed Horton. Horton said he was also representing his position on the council and his business, Tanglewood Pharmacy. "The people who put the fundraiser together did an excellent job. The auction included various items from area businesses that showed a lot of community support. As a community, we need to help these dairies and adopt a "can-do attitude" instead of the "shut-down" attitude that Waco has. Other area businesses who have held fundraisers are: Bramlett Implement on Fri., May 28, succeeded in raising $2,143, followed by Bruner Motors on Sat., May 29, that matched $1200 worth of donations, making a total of $2400. Stephenville New Holland raised $830, Dowell Hardware raised $180, and Stephenville Cattle Company, donating $1 per every packer cow sold at their regular Monday & Wednesday sales, has raised approximately $500, so far. Donations were also collected at DairyFest on Sat., June 19 and t-shirts were sold to raise money. The Dairymen's Legal Defense Fund, managed by Cheatham and Lansford, CPAs, reports at present the amount in the fund is $22,655 from private donations and businesses. Some of the larger donations from businesses include: Gorman Milling, Co., $5,000; Andy's Tires, $2,000; Bovine Supply, $1200. Following are those that gave $1,000: Saginaw Flakes, ABF Packing Co., Bottlinger Grain, DFA, Bayer Motors, and Jerry Vieth. |
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DAIRY EDITORIAL |
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To concerned citizens and business owners of the Central Texas area. As many of you have become aware---the dairy industry in this area has been taking a lot of abuse by the City of Waco. They claim the dairy industry is responsible for the poor quality of water in Lake Waco. Much of this is being driven by the algae blooms, like so many of the smaller lakes have when the weather starts warming up and the oxygen in the water starts diminishing. There is no science behind the allegations, just personal gain by the mayor who apparently wants to be known as the "Water Mayor" and has singled out a single industry as the sole source of their problems. Never mind such facts, for instance, that Waco had their own spill a few weeks ago during the recent rains but paid it little attention. I find it ironic that the city of Dallas was complaining of the same things with their lakes last year, but have no dairies to blame for their problems. We, as an industry, face up to the fact that we have a responsibility to be good stewards of our water supply. The Texas Association of Dairymen (TAD) had been in discussions with the city of Waco for some time and felt that we had made a lot of progress in addressing the issues. We would much prefer to work together with our neighbors so that we might come to a resolution that would be good for all concerned. There was an environmental commission set up in early 90's paid for by our tax dollars to study the effects of the dairy industry on the Bosque River. From that study there was no evidence or data that suggested that the dairy industry was solely responsible for the problems that Lake Waco has, but rather a collection of things that could be worked on by many of us, including the City of Waco. A few months ago, in a move that caught all of us by surprise, the City of Waco decided to sue 8 of our dairy neighbors in Erath County. Since that time, 6 more have been added to the list. Why is it important that the citizens of Comanche County get involved? Even though dairies in Comanche County are not named in any of the suits at this time, I feel it is just a matter of time if the city of Waco is successful in running some of the dairies out of Erath County, until other cities along the Leon watershed could use this as an example in the courts. Again there has been no science to prove Erath County dairies are the problem in the Bosque River shed. This could set a precedence that could be utilized in the courts for the whole U.S. and other industries as well. We must not allow them to win in this arena. We have an agency set up by our state government, the Texas Commission on Environmental Quality (TCEQ), to control and police these issues, and I feel that they are doing a very adequate job in overseeing our state's environment. Indeed our regulations governing our CAFO permits have become more and more rigid with each passing year. Gore's has been in the dairy and feed business for almost 60 years, and even though we sold our cows in 2003, we are still very dependent on the dairy industry with our feed business for our livelihood. When something like this comes along we have to stand together in the small rural towns, or be run over by the larger cities that have forgotten or never knew where a gallon of milk really comes from. Most rural communities have done a good job establishing Economic Development Boards for the purpose of bringing in new businesses, or assisting existing businesses in small rural towns. Here are a few facts of interest that was compiled through an Economic Impact study at Tarleton State University (TSU). Based on the study that was done on Erath County industry we can make certain assumptions that I feel would relate to Comanche County dairy industry. The industry supports 653 jobs and an additional 1297 non-dairy jobs for a total of 1957 jobs in the county. The production of milk in the industry is shifting toward the larger (>700 cows /farm) production units. The risk here is that the larger the dairy, the more opportunity for one of our neighboring counties out west to lure these dairies to their area, as has been the case over the last few years. Between Comanche and Erath counties, more than 100 dairies have been lost over the last 10 years, for one reason or another. From the economic study it was estimated that the exodus of a 1000 cow dairy implies a total loss of $5.6 million in output, 61 dairy and dairy-related jobs and $113,328 in potential county taxes per year. We have to fight to keep these small businesses in our area. We do not want them to leave our area because they are tired of fighting with the city of Waco on issues that can very easily be handled through our state's environmental agency. There are several fundraisers going on in the area at this time to assist the dairymen who have been named in this lawsuit, knowing that if we don't stop it now it is just a matter of time until others will follow. Erath County Dairy Sales recently had a special heifer sale and silent auction June 23, at 1:00 pm for the purpose of raising funds. At that function, Gore Bros., Inc. aided the Dairymen's Legal Defense Fund with a $7,500 cash donation. If you are a business, that enjoys living, and raising a family in a small town as we do please assist us in our endeavors. If you are a citizen, we just appreciate your continued support. Dairymen in other areas will tell you that they are envious of the local support that we get from our community. If you would like to contribute in any manner you can make a contribution to the "Dairymen's Legal Defense Fund " and forward it to Cheatham & Lansford, CPA, P.O. Box 936, Stephenville, Tx. 76401. Please direct any questions concerning the Fund to: Cheatham & Lansford, phone no. 254-965-3163 Sincerely Kenneth Harvick |
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