Minnesota's Feedlot Enforcement Program
Peter Sandberg The Minnesota Pollution Control Agency (MPCA) has been aggressive in enforcing the rules, which protect waters of the state from feedlot pollution. Our goal is to promote compliance without resorting to formal enforcement action. MPCA and county staffs work with noncompliant facilities, providing technical assistance and education in best management practices to correct problems. This approach works in the vast majority of cases. However, when an operator is unwilling to make necessary changes, we employ several different enforcement tools. The emphasis of MPCA enforcement actions is one of returning the facility to compliance as soon as possible through an escalating series of enforcement steps. While the use of escalating steps is preferred, MPCA has the discretion to use any enforcement tool at its disposal to address the violations, even if the tool is used out of sequence. In addition to compelling compliance with environmental protection rules, our objectives in pursuing enforcement include creating a deterrent to noncompliance for others, and elimination of the economic benefit of defer-red compliance. Most enforcement actions are the subject of a press release, which names the violator, the nature of the violation and the penalty paid. We believe the publicity has promoted a tremendous increase in voluntary compliance. Criminal Enforcement The enforcement strategy has evolved as our staff has grown, In 1992, the single full-time enforcement person faced an overwhelming task. There were an estimated 45,000 feedlots in the state, and there had been minimal compliance tracking and enforcement since the regulations were adopted in 1978. So MPCA developed a strategy to make the best use of other available tools. The Minnesota Department of natural Resources (DNR) has conservation officers station in almost every county. They are licensed peace officers, part of whose charge is protecting the natural resources of the state. MPCA began a partnership with DNR, using the conservation officers to conduct investigations of feedlot complaints, and when appropriate, presenting them to the county attorney with jurisdiction for criminal prosecution. We targeted for criminal enforcement only the most serious violations, considering the following factors:
This strategy resulted in the prosecution of nearly 20 criminal cases for feedlot pollution violations in Minnesota County courts from 1992 through 1995 - most of them in Blue Earth county. The cases fell primarily into types of factual situations; those involving a point source, such as a tile line, channel, pipe, or other manmade conveyance through which manure was knowingly allowed to discharge to waters of the state, and situations involving intentional pumping or dumping into waters of the state. No cases went to trial, every defendant plead guilty to Misdemeanor, Gross Misdemeanor or Felony counts. Fines ranged from $250 to $9,000. In some cases, where it could be documented that the violator had some financial gain from the action, the criminal plea was followed with a civil settlement containing additional penalties (up to $18,000). These cases were well publicized. In 1995 the MPCA feedlot program staffing level was increased significantly by the legislature. We now have 7 staff who perform some enforcement, including 6 staff in our regional offices. This has allowed us to expand our toolbox to make much more uses of various unilateral and negotiated civil actions as an alternative to criminal prosecutions. We've been able to address a wider range of violations, which are serious, but don't meet the criteria for a criminal prosecution. In 1996-1997 MPCA completed 10 criminal cases, over 60 "formal" civil enforcement actions and over one hundred "informal" enforcement actions. Formal actions include Notices of Violation, Administrative Penalty Orders, Stipulation Agreements, and Civil Litigation. Informal Enforcement, Formal enforcement actions are time consuming, requiring extensive documentation, internal review and occasionally negotiations with the violator. We do not have adequate staff levels to address all violations with "formal" actions. Therefore MPCA places a great emphasis on "informal" enforcement actions; tools that encourage and seek voluntary return to compliance. When a potential pollution hazard or a violation is discovered, MPCA will usually contact the owner/operator by phone or in person to explain the problem, and how it might be corrected. If the operator corrects the problem in a timely manner, there is frequently no further action by MPCA. Occasionally a letter documenting the violation and setting a date for return to compliance is sent. These informal verbal and written communications are used to resolve the majority of violations, which we identify. No systematic tracking of these actions is done but we estimate that as many as two hundred feedlots have had some type of informal enforcement in the last two years, usually for minor or potential problems. Notice of Violation (NOV) The NOV is MPCA's lowest level of formal enforcement action. It describes the alleged violations, cites the statutes rules or permit conditions which have been violated and outlines a schedule for corrective action. The NOV usually requires a written response from the feedlot owner within 20 days. It can be used a tool to gather more information about the violations or the facility, or to give the operator a chance to explain an incident. NOVs are generally issued when informal actions fail to resolve less serious problems, or occasionally when a matter has been resolved but we want formal documentation of the violation on record so that more serious action might be taken if there is a recurrence. Administrative Penalty Order (APO) An APO identifies the violations, which have been committed, requires that they be corrected and imposes a monetary penalty of up to $10,000, which may be partly or entirely forgiven if the corrective action is satisfactorily completed. Typical situations resulting in issuance of an APO are discharges of manure which are negligent, but do not meet the criteria for a criminal case, or when there has been a knowing violation of rules, but no environmental harm, such as construction without a permit. Stipulation Agreement A Stipulation Agreement is an agreement entered into between the MPCA and the feedlot operator, which establishes a schedule to return to compliance, and assesses a penalty for past violations. It is essentially an administrative out of court settlement between MPCA and the regulated party. There is no limit on the amount of the penalty, and some of the penalty amount may go into a Supplemental Environmental Project—an environmental beneficial project that provides no direct benefit to the violator. The compliance schedule typically has interim dates for completing different portions of the project which are subject to stipulated penalties if not met. Stipulation Agreements are typically used when a penalty greater than $10,000 is warranted, such as when there are multiple or repeated violations, or the when the corrective action is likely to take several months or longer. Civil Litigation In cases where administrative tools are unsuccessful in resolving violations MPCA may ask the Attorney General to initiate litigation on their behalf. The State of Minnesota serves a summons and complaint on the owner/operator of the feedlot and proceeds through the litigation process. Usually MPCA follows a dual track of litigation and negotiation. If the negotiations are successful, the court incorporates the agreement into a Consent Decree, which is similar to a Stipulation Agreement, but enforceable. Where are the Violations? A review of the formal actions completed by MPCA over the last 2 years shows that compliance problems are distributed fairly evenly among the feedlot universe with respect to size and type of livestock. Formal actions have been pursued against facilities with fewer than 10 animal units, and facilities with 10,000 animal units. Although not reflected on the attached table, violations are not concentrated in a particular age or type of facility. There have been problems at older facilities and at those constructed in the last few years. Total confinement setups have storage and application violations as well as open lots. MPCA Feedlot Enforcement - Completed Actions
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