2014.5 DEP CBRAP Analysis by Conservation Pennsylvania (2)

8/12/2019 2014.5 DEP CBRAP Analysis by Conservation Pennsylvania (2)

1/10

An Investigation of DEP Inspections

at Farming Operations:A Continued Lack of Enforcement of

Existing Laws and Regulations

Conservation Pennsylvania

Kimberly L. Snell-Zarcone, Esquire

2707 Yale Avenue

Camp Hill, PA 17011


2/10

Executive Summary

Conservation Pennsylvanias investigation of information reported to EPA under the CBRAP

grant clearly demonstrates that DEP inspections of farming operations were not thorough and

did not lead to the enforcement of legal and regulatory requirements related to manure

management and erosion and sedimentation.

Key Findings

45% of the inspections completed were at CAFOs, which are already required to be

inspected under the NPDES program

Only 52% of the inspections were done at small, non-CAO farms

DEP reported 3 administrative file reviews as inspections

Farmers were present at 71% of the inspections, but documents related to nutrient

management practices were not reviewed 58% of the time and documents related to Ag

E&S were not reviewed 60% of the time

Inspectors rarely contacted the landowner regarding Ag E&S documents if a tenantfarmer was unable to provide those plans

There was a vast difference between the compliance rate documented at farming

operations in DEP inspection reports (60% compliance) and that determined by

Conservation Pennsylvania (only 13% compliance)

DEP is routinely overlooking documentation violations

Conservation Pennsylvania found that 57% of the farms had a documentation related

violation and 25% of farms had a water quality related violation

DEP is overlooking requirements that manure storage facilities be structurally sound,

water-tight, and prevent pollution discharges

DEP is missing an opportunity to collect needed information about the installation andmaintenance best management practices at farming operations

Recommendations

DEP should focus on inspecting non-CAO farming operations under the CBRAP grant

Only thorough boots on the ground inspections should be reported by DEP as

inspections

DEP should announce inspections which will allow farmers to make themselves and

written documents available to DEP inspectors

DEP should sample water quality upstream and downstream of a farming operation

during an inspection to scientifically ensure that water quality is not being adversely

impacted

DEP should vigorously enforce all regulatory requirements, including documentation

requirements, and utilize all available compliance tools

DEP should enforce all regulations related to preserving the structural integrity of a

manure storage facility

DEP should enforce all regulations developed to prevent the discharge of manure to

surface waters and groundwater of the Commonwealth

EPA should ensure that DEP inspections are consistent and thorough


3/10

Pennsylvanias Department of Environmental Protection (DEP) participates in the Chesapeake

Bay Regulatory and Accountability Program (CBRAP) with the federal Environmental

Protection Agency (EPA). CBRAP is intended to aid the states and the District of Columbia in

implementing and expanding their States regulatory, accountability and enforcement capabilities,

in support of reducing nitrogen, phosphorus and sediment loads delivered to the Bay. Under1

this program, DEP receives millions of dollars in grant funding to achieve the goals of thePennsylvania Watershed Implementation Plan (WIP) and related two-year Milestones.

DEP acknowledged within the WIPs that the practices of small farming operations have been

often-overlooked and their pollution impact has not been completely recognized. In order to

achieve nutrient and sediment reductions within the Agricultural Sector, DEP chose to focus

much of its attention toward the regulatory compliance of small farming operations including, but

not limited to, compliance with the Manure Management Planning requirements, Agricultural

Erosion and Sedimentation (Ag E&S) requirements, and Animal Heavy Use Areas (AHUA)

requirements. DEP correctly recognized that the only way to ensure that smaller farming

operations came into compliance with these regulations that had existed for decades was to putboots on the ground.

DEP committed to a five pronged outreach, compliance, and enforcement effort in its Agricultural

Water Quality Initiative as part of the Pennsylvania Chesapeake Watershed Implementation Plan

(Phase 1). One prong of this Initiative was a basin-wide component to achieve agricultural2

compliance with state regulatory requirements. DEP committed to achieving this goal by3

adding four new staff positions that would:

provide regional compliance and inspection actions for Pennsylvanias

CAFO . . . and agriculture regulatory programs. These positions willsupport increased field presence for additional inspections of non-CAFO

agricultural operations. These positions would also support increased

compliance activities under Chapter 102 Erosion & Sediment Control

regulations, [and] Chapter 91.36 relating to manure management. . . .4

Within the Phase I WIP, DEP committed to taking a strong enforcement stance at agricultural

operations that it inspected. DEP stated that inspection staff will consider any and all

compliance tools available including NOVs, field orders, compliance orders, CO&As, and

requiring permit. This approach, to apply any and all compliance tools available, is consistent

1Jim Edward, Chesapeake Bay Regulatory and Accountability Program Grants, Chesapeake Bay

Program, (published online March 23, 2010)

, accessed 9

April 2014.2Pennsylvania Department of Environmental Protection, Pennsylvania Chesapeake Watershed

Implementation Plan (January 11, 2011), pp. 92-105. See also Pennsylvania Department of Environmental

Protection, Pennsylvania Chesapeake Watershed Implementation Plan (March 20, 2012), pp. 26-35.3PA Phase I WIP, pp. 97-105.4PA Phase I WIP, p. 100.
http://www.google.com/url?q=http%3A%2F%2Farchive.chesapeakebay.net%2Fpubs%2Fcalendar%2F45645_03-23-10_Presentation_6_10619.pdf&sa=D&sntz=1&usg=AFQjCNF2swuq9sRTxHAaRQWdIFiHYCCELQ


4/10

with existing compliance and enforcement procedures. DEP stated that these inspectors5

would complete 450 agricultural inspections annually and initiate 100 compliance actions per

year.6

In order to help implement the above commitments, EPA granted DEP with $1,549,634 over five

years. DEP reported that it conducted 233 agricultural inspections, which led to 1167

compliance actions, from July 1, 2012 through December 21, 2012. DEP noted that this8

included 102 Notice of Violations, four Consent Orders Assessed, and six Consent Assessment

of Civil Penalties. DEP also reported that their efforts resulted in $51,874 in fines or penalties.9 10

While these numbers clearly put DEP on track for meeting the deliverables of the CBRAP grant

for 2012, Conservation Pennsylvania was interested in learning if the inspections were thorough,

lead to the collection of information about best management practices that DEP said it was

missing, and promoted the enforcement of regulatory requirements related to manure

management and erosion and sedimentation. Conservation Pennsylvania requested copies of

the inspection reports for the Southcentral Regional Office that had been included in thereporting to EPA under the CBRAP grant for the period from July 1, 2012 through December 21,

2012. In short, this is a subset of the information reported to EPA and detailed above.

Conservation Pennsylvania was interested in the Southcentral Regional Office because this

region includes the largest number of agricultural operations and their staff is familiar with

completing these types of inspections and enforcement actions. Conservation Pennsylvania

also asked for information that was at least a year old so that any enforcement actions would

have likely come to a conclusion. DEP employees Steve Taglang and Aaron Ward were both

very helpful in securing the documents needed to complete this investigation.

DEP initially indicated that 81 inspections were completed at 67 farms. DEP providedConservation Pennsylvania with 70 inspection reports or accounts of inspections for 60 of those

farms and stated that it was unable to find documentation for the other 11 inspections at the

remaining seven farms. For purposes of this report, Conservation Pennsylvania is only

considering the data from the 60 farms for which data was reported.

Conservation Pennsylvania was struck that so many of the inspections completed by DEP under

the CBRAP grant were at concentrated animal feeding operations (CAFOs). Twenty-seven of

the 60 inspections (45%) were completed at CAFOs, which are permitted under the National

5

PA Phase I WIP, p. 101.6PA Phase I WIP, p. 100. See also PA Phase II WIP, pp. 31-32 and Pennsylvania Department of

Environmental Protection, January 1, 2012 - December 31, 2013 Pennsylvania Programmatic Two-Year

Milestones (January 9, 2012) , p. 2.7Pennsylvania Department of Environmental Protection, Chesapeake Bay Regulatory and Accountability

Program Grant June 1, 2010-June 30, 2016: Revised Semi Annual Report (July 1, 2012-December 31, 2012),

pp. 23-28.8CBRAP Grant 1: Revised Semi Annual Report (July 1, 2012-December 31, 2012), p. 25.9CBRAP Grant 1: Revised Semi Annual Report (July 1, 2012-December 31, 2012), p. 25.10CBRAP Grant 1: Revised Semi Annual Report (July 1, 2012-December 31, 2012), p. 25.


5/10

Pollutant Discharge Elimination System (NPDES) and already required to be inspected. While

it is important to maintain compliance at all farming operations, DEP had consistently stated that

small farming operations that were heretofore uninspected would be the focus for compliance

efforts. Thus, Conservation Pennsylvania was shocked that only slightly more than half of the

inspections, 31 (52%), were done at small, non-concentrated animal operation (non-CAO)

farms. In fact, this number may have also been artificially inflated because DEP conducted atargeted watershed assessment in the Soft Run watershed that was included in the information

reported to EPA. If one does not include the farming operations from Mifflin County, the location

of the Soft Run watershed, then a whopping 68% of the inspections were completed at CAFOs

and a paltry 26% of the inspections were completed at non-CAOs. Conservation Pennsylvania

recommends that DEP focus on inspecting non-CAO farming operations under its CBRAP grant

deliverables.

Of the 70 inspections completed at the 60 farming operations, most consisted of boots on the

ground inspections. However, Conservation Pennsylvania was concerned that DEP reported

three inspections under the CBRAP grant deliverables that were merely administrative filereviews by Department staff. Clearly the intent of EPA in funding inspection staff was to get as

many people as possible out in the field communicating with the farming community about their

legal and regulatory requirements. It is disingenuous for DEP staff to count administrative field

reviews completed to verify information discussed at a boots on the ground inspections as

additional inspections. While this practice doesnt seem to be the norm, these administrative

inspections comprised 4% of the inspections reported under the CBRAP grant and could, over

the long term, account for a large number of inspections that arent actually completed.

Conservation Pennsylvania recommends that DEP should not report administrative file reviews

as inspections under the CBRAP grant deliverables.

Conservation Pennsylvania was interested in evaluating how many of the farm inspections were

announced and whether this had any impact on: 1) the farmers participation in the inspection,

and 2) the ability of inspectors to review documents critical to determining compliance with

manure management and Ag E&S requirements. Conservation Pennsylvania determined that

inspections were announced in 34% of the cases that were evaluated. Even given the high11

number of unannounced inspections, farmers were present at the inspection or talked with the

inspector 71% of the time. When CAFOs, whose inspections are always announced, are

removed from the results, farmers still communicated with the inspector during the inspection

63% of the time.

While DEP inspectors were still able to gain access to farmers when inspections were

unannounced, they clearly were not able to adequately review documents that would have

helped determine whether the farmer and/or land owner were in compliance with manure

management and Ag E&S requirements. Documents related to nutrient management practices

11 Inspections were unannounced in 50% of the cases that were evaluated. Conservation Pennsylvania was

unable to determine whether the inspection was announced or not in 16% of the cases evaluated.


6/10

were not reviewed at 58% of the farming operations. Similarly, documents related to Ag E&S12

were not reviewed at 60% of the farms. Ag E&S documents are not only required for the13

farmer. The landowner also has a regulatory requirement to have and to implement such

planning documents and the best management practices identified within the plans.14

Conservation Pennsylvania noted that rarely, if ever, did the inspector contact the landowner

about Ag E&S documents if a tenant farmer was unable to provide those plans. In one instancewhere an animal operation was renting land for the concentrated animal feeding operation and

did not have management control of any associated farmland, the inspector did not demonstrate

that any efforts were made to contact the landowner and investigate nutrient management or Ag

E&S practices. Inspectors can only get a full picture for what is happening at the farming15

operation when they are in communication with the farm owner and operator. For this reason,

Conservation Pennsylvania recommends announcing inspections to allow farmers to make

themselves, and particularly written documentation, more available to DEP inspectors. True

compliance can only be determined when inspectors are given access to the farm, the farmer,

required planning documents, and required record keeping documents.

The most important, and interesting, information from the inspection reports was what DEP

determined and held to be a violation and what it didnt. DEP found violations at 40% of the

farms inspected. Only one inspection report noted a violation resulting in a monetary penalty.

Some may think that these finding are great, and a sign that small farming operations really are

in compliance with manure management and Ag E&S requirements. Unfortunately, that is not

the case. Conservation Pennsylvanias review of the inspection reports reveals violations at a

staggering 72% of the farms. Additionally, there was insufficient information to determine

violations at another 15% of farms. This means that, in reality, only 13% of the farms were in

compliance, not the 60% found to be without violation by DEP.

Conservation Pennsylvania found that 57% of the farms had a violation related to documentation

and 25% of the farms had a water quality violation. The figures related to documentation may, in

fact, be much higher as Conservation Pennsylvania was unable to determine compliance with

documentation requirements at 25% of the farms from the inspection reports.

The next logical questions become why is DEP overlooking so many violations and for which

violations is DEP failing to act and initiate compliance actions. DEP has stated at a number of

public meetings that the Agency is focusing on water quality violations and not prosecuting

documentation violations unless they are coupled with water quality violations. Interestingly,16

12 Nutrient management planning documents were reviewed at 32% of the farms. Conservation Pennsylvania

was unable to determine whether nutrient management documents were reviewed at 10% of the farms.13Ag E&S documents were reviewed at 27% of the farms. Conservation Pennsylvania was unable to

determine whether Ag E&S documents were reviewed at 13% of the farms.1425 Pa. Code 102.4(a)(3).15Department of Environmental Protection, NPDES Compliance Inspection Report, Heckenluber Poultry

Farm (September 4, 2012), p. 3.16See Andrea Blosser, Targeted Agricultural Compliance Pilot Project, Pennsylvania Department of

Environmental Protection,(published online February 20, 2013)


7/10


8/10

ready and willing to draft nutrient management and Ag E&S plans for farming operations.

Conservation Pennsylvania recommends that DEP should require farming operations that do not

have proper planning documents to secure them in an expedited manner, utilizing private

planners if necessary. DEPs efforts in the targeted watersheds shows that private planners are

able to complete the required nutrient management and Ag E&S plans for a number of facilities

in a short time frame. This expectation of compliance with planning requirements should be thenorm and universally implemented throughout Pennsylvania.

Conservation Pennsylvania was particularly struck by another inspection in which DEP did not

identify a violation for failure to maintain quarterly self-inspection reports and seemed to condone

illegal activity for falsifying records. The quarterly self-inspection reports record the results of

weekly inspections of manure storage facilities, and note the quantity of manure exported or land

applied. The records and documents section of the inspection report contains a note by the

inspector that the permittee was unaware that, as a general permittee, quarterly self-inspection

reports [were] to be completed. The inspection report states that the [p]ermittee intends to20

complete quarterly self-inspection reports back to September 1, 2011. Thus, it appears that21

the farmer intends to complete approximately ten months of inspection reports after the fact and

without actual information about dates of inspections, the level of freeboard, and the quantity of

manure transported or land applied. This would be in direct violation of the NPDES General

Permit Part B, II, B which states, [a]ny person who . . . knowingly makes false statements,

representations, or certification in any record or other document submitted or required to be

maintained under this permit (including monitoring reports or reports of compliance or

noncompliance) is subject to a fine and/or imprisonment as set forth in 18 P.S. 4904, 40 CFR.

122.41(j)(5) and (k)(2) and 40 CFR part 19. Similarly, inspection reports indicate the failure of

at least five other farms to complete and maintain self-inspection documents. The inspection

reports also noted that two farming operations failed to submit annual reports to DEP as requiredby their NPDES permits. DEP did not issue violations for any of these failures to maintain

required records or documents. Conservation Pennsylvania recommends that DEP enforce all

records and documentation requirements, particularly for permitted facilities, and assess fines

and penalties for falsification of documentation.

While DEP is clearly overlooking documentation violations, particularly outside the watershed

which was involved in the targeted enforcement project, the Department is also over looking a

number of other types of violations. Many of the issues overlooked by DEP inspectors involved

manure storage facilities. Regulations require manure storage facilities to be structurally sound,

water-tight, and prevent pollution discharges. The most egregious violation of this standard22

was at a farming operation where the inspection report noted that several trees and other types

20Department of Environmental Protection, NPDES Compliance Inspection Report, Gobblers Knob Farm

(July 24, 2012), p. 4.21Gobblers Knob Farm Inspection Report, p. 1.2225 Pa. Code 91.36(a).


9/10


10/10

including planning requirements, and initiate compliance actions in all situations where manure

management and Ag E&S requirements are not being followed.

A third purpose of Conservation Pennsylvanias investigation was to determine if inspections

were leading to the collection of missing information about best management practices at

farming operations. It is obvious that information about best management practices is not beingcollected on general inspections reports during inspections of non-NPDES farming operations.

The general inspection reports do not include information about a standard set of management

practices, such as manure storage facilities, conservation tillage, or the use of cover crops.

Additionally, the reports do not answer questions about standard planning requirements for

manure management and Ag E&S. These reports relied upon the inspector to write a narrative,

which generally only included information about whether the inspection was announced or not,

whether the inspector spoke with the farmer or not, and whether there were any planning needs

at the farming operation. In short, DEP is missing a huge opportunity to collect information about

smaller farming operations because of the vast differences between inspection reports and the

data collected on NPDES and non-NPDES inspections. Synergistically, DEP is missing theopportunity to build rapport and provide outreach to the regulated community about best

management practices.

Conservation Pennsylvania ultimately recommends that EPA engage DEP in a conversation

about how inspections at farming operations can be better utilized to achieve multiple goals. It is

clear that DEP is going through motions to complete inspections of farming operations, but that

these inspections may not be resulting in compliance with commitments made in the

Pennsylvania WIPs, two-year milestones, or regulatory requirements. DEP should commit to

improving its inspection protocols immediately or the opportunity will pass for achieving

Chesapeake Bay improvement goals. EPA, as the holder of the purse strings, has the power tomake sure that these inspection improvements happen particularly as future CBRAP grants are

negotiated between EPA and DEP.

2014.5 DEP CBRAP Analysis by Conservation Pennsylvania (2)

Documents

Transcript of 2014.5 DEP CBRAP Analysis by Conservation Pennsylvania (2)