Cleaning up Illegal Pharming on Rural Properties

Today's Indianapolis Star ran a story about the continuing problem of methamphetamine ("meth") manufacturing in rural America: "Cleaning up the mess left by meth labs a profitable niche."  The Star's article focused not on the problem of meth use, but on the chemical residue left behind when meth labs are discovered in rural homes.

Inside a Crawfordsville rental property, the tenants liked to cook.
But what they were cooking got them busted last month, Indiana State Police say. In the kitchen, police found everything it took to make meth.. . .
Methamphetamine labs are more than just dangerous and illegal. They leave a mess -- an environmental hazard that, according to state law, must be cleaned up.

When meth is "cooked," such amateur chemistry often results in explosions and fires, leaving behind a toxic mess of chemicals:

At the Crawfordsville home . . . [a]ccording to the police report, there was a lithium/ammonia reaction, flammable solvents, water reactive metal (lithium), hydrochloric acid gas generator and corrosive acid.

The Indiana Department of Environmental Management ("IDEM") and county health departments require that the chemical constituents left behind be remediated before occupants are allowed back into the building. According to the Star, "it takes a special process, certification and inspectors who scour the property in full-gear Hazmat suits and respirators to do the dirty work."  This can be expensive, $10,000 or more.

Tonya Bond, an attorney at our law firm, has helped a number of landowners confronting five-figure meth cleanups on their rural rental properties.  She instructs clients to file their cleanup claims with their insurers.  Often, insurers will deny these claims because they involve "criminal activity" or "pollution,"  but that is not the end of the matter:

Tonya Bond

Though there is no Indiana coverage law interpreting meth cleanups under insurance policies, other jurisdictions have found that the damages from meth manufacturing are caused by “smoke” and “vandalism”—both covered perils under standard property policies. Indiana courts also would likely find that meth manufacturing is “criminal mischief,” another commonly covered peril.

Coverage for drug manufacturing, however, does not stop with first-party property coverage. Where cleanups are required by the government, these are standard environmental liability claims, and coverage is also available under the liability coverage in most policies.

There a number of legal lessons here.  First, if you own rental property, know your tenants.  Second, make sure your rental property is insured for the casualties like those described in the Star article.  Third, if you are dealing with an expensive state-mandated cleanup, engaging a knowledgeable attorney can make a big difference.

IDEM's "Good Character" Disclosure Receives its First Legal Challenge

The Indiana Department of Environmental Management's (IDEM) "good character" regulations require Confined Feeding Operations (CFO) and CAFOs to disclose past violations of environmental laws when applying for an operating permit. IDEM's Commissioner has the authority, based upon the disclosed information in the application, to decide whether to grant or deny the permit. Though well-intentioned, the good character law is fraught with legal problems because it allows one person at a state agency to make a judgment call as to whether or not a farmer should receive a permit to operate. A recent case, New Fashion Pork v. Commissioner of IDEM, exposed just how difficult it is for IDEM to apply the "good character" law fairly. Josh Trenary, general counsel for Indiana Pork, explained the facts behind this case:

Beginning in 2010, New Fashion Pork, LLP (NFP) used Mike Veenhuizen from Livestock Engineering Solutions to complete and submit three applications for expansion at two different NFP production sites. NFP had an agreed order with IDEM on record in regard to a spill from 2009. Because of this violation, NFP checked “yes” in the box indicating that the company had a violation of state environmental law. However, further down the form, NFP did not check yes in the box indicating that the violation presented a “substantial endangerment to human health or the environment.” 

NFP and Dr. Veenhuizen considered it inappropriate to check “yes” to indicate the violation was substantial because based on the facts of the situation, the spill did not present a substantial endangerment. However, any spill, regardless of how minor, was considered substantial by IDEM merely by virtue of the fact that it was something greater than a paperwork violation.

IDEM denied the permit and NFP appealed to the Office of Environmental Adjudication (OEA). The issue before the OEA was whether NFP should have checked “yes” in the question that asked about whether it had caused a “a substantial endangerment to human health or the environment.”  Before the OEA, NFP presented evidence that the prior environmental spill was a "minor" violation, and thus did not present a substantial endangerment to health or the environment.  Without any contradictory evidence from IDEM, the OEA judge had no choice but to side with NFP.

What does this mean?

IDEM is going to have to rethink how it reviews good character disclosures. It cannot just deny a CFO or CAFO permit because someone checks “yes,” indicating that there has been a prior environmental violation. IDEM will have to do a more detailed analysis, determine whether there had been a "substantial" negative impact on the environment, and whether that means this farmer should be denied a permit to operate.

To read more about New Fashion Pork, see the Indiana Lawyer's article:  Disclosing Environmental Violations.   To learn more about IDEM's CFO/CAFO regulations, click here.

EPA Aerial Surveillance Under Fire

Brownfield Ag News recently reported that the U.S. Environmental Protection Agency (EPA) had come under scrutiny for conducting aerial surveillance over Midwestern concentrated animal feeding operations (CAFOs). The practice is used by Region 7 (Nebraska, Iowa, Missouri and Kansas).  I do not know whether other regions, such as Region 5 (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin) also engage in such activities.

In the Brownfield article, Josh Svaty of EPA defended the use of "fly-overs," as cost-effective, saying: “It’s a very efficient use of taxpayer dollars and it’s also a good way to look at a lot of CAFOs and AFOs all at once."

The problem with this statement is that the EPA has delegated to the states the right to permit CAFOs and enforce the Clean Water Act.  The EPA does not need to inspect every CAFO by air, ground, or otherwise.  It gave Indiana, Illinois, Nebraska, etc., the right and obligation to do these inspections. 

Read the entire Brownfield article here: EPA CAFO Overflights Receive Scrutiny.

At a seminar a couple years ago, I saw photos taken by EPA inspectors during these flights.  The pictures did paint a clear picture of feedlot run-off into creeks and streams.  Still, I was left with a disturbing feeling that these overflights are wrong.  It is one thing for an inspector to show up on a farm, meet the operator, and receive a farm tour.  It is an entirely different type of inspection that occurs by air, without the farmer's knowledge or opportunity to explain matters.  Aerial surveillance is also overinclusive in that it includes a clear view of a farmer's home, backyard, swimming pool, etc.

But more than anything, aerial surveillance violates privacy.  The US Constitution does not contain an express "Right of Privacy," but the Supreme Court has numerous times interpreted The Fourth Amendment as protecting one's home from unreasonable government surveillance.  The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

My guess is that most people have no idea that the EPA condones aerial flyovers.  If, upon learning this you are troubled, you are not alone.   

Why Sound the Alarm for Resistance to Bt Corn?

Why do those against genetically modified foods (GMOs) sound the alarm whenever some research shows that a pest has developed resistance to the genetic modification?  I have often had this thought when reading about "dangers" of glyphosate-resistant weeds appearing in corn, soybean, or sorghum fields.  This same thought emerged while recently reading The Salt, NPR's food blog, in an article about the corn rootworm's resistance to "Herculex" trait in biotech (Bt) seed corn:  "Insect Experts Issue 'Urgent' Warning on Using Biotech Seeds":

For America's agricultural biotech companies, the corn rootworm is threatening to turn into their worst nightmare.