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Industry escapes government regulation

In October 1996, Mark Scott and Barb Taylor toured the Potomac Valley to look at poultry farms.

The pair, deputy director and water resources chief for the state Division of Environmental Protection, saw hundreds of new chicken houses, each containing 20,000 or 30,000 birds. Uncovered piles of chicken manure were all over. Some were just yards away from streams.

"There was a lot of chicken manure around," said Hardy County veterinarian Margaret Janes, one of two environmentalists who escorted Scott and Taylor.

"They said they didn't know all this was going on," Janes recalled in August. "They were surprised. They seemed generally concerned."

More than 300 new chicken houses have sprouted up along the South Branch of the Potomac River since WLR Foods doubled the capacity of its Moorefield processing plant in 1993.

Most of the farmers who built new poultry houses didn't take recommended steps to keep chicken manure from running off storage piles and fields into streams, according to the U.S. Department of Agriculture. The farmers didn't build sheds to protect manure piles from rain. They didn't develop plans to carefully calculate the amount of manure spread on their fields.

Janes and Pam Moe-Merritt of the West Virginia Rivers Coalition thought what the DEP officials saw convinced them the agency should do something. They thought DEP would start citing poultry farmers who pollute the river.

"As we discussed, some type of enforcement action is going to be absolutely necessary in order to preserve and protect this five-county area," Janes wrote in a Jan. 2 letter to Taylor.

"It is commonly said that we need a carrot-and-stick approach to get people to do the right thing," she wrote in a similar letter to then-DEP Director Eli McCoy on Feb. 18. "In the Potomac Headwaters, the "stick" portion of that equation has been missing."

A week later, Moe-Merritt and Janes received a reply. It was a two-page Feb. 24, 1997, note they now call their "Dear John" letter.

"Enforcement of water-quality problems from agricultural operations has traditionally been handled by interagency investigations, technical assistance to landowners, and financial support through cost-sharing programs when available," Taylor wrote.

"Rarely has DEP found it necessary to use its criminal and/or civil enforcement authorities to resolve an agricultural water quality problem," Taylor wrote.

"Given the accelerated efforts under way in the Potomac Headwaters, DEP has decided it would not be especially productive at this time to 'nudge' those efforts with enforcement actions," Taylor wrote.

In West Virginia, state government has never tried to regulate poultry farmers.

Before the poultry boom began nearly a decade ago, the state did not do things it could have to keep chicken farmers from polluting. Since then, the state has not done other things it could have done to clean up the problem faster.

No permits required

The DEP, for example, has never required a poultry farmer to obtain a permit that would require measures that limit the amount of chicken manure that runs off his farm into streams.

Farmers can build their chicken houses as close to streams as they want. They don't have to carefully calculate and apply the right amount of manure to crops. They don't have to store their chicken manure under sheds that keep rain from washing the waste into streams.

Under the 1972 Clean Water Act, signed into law by President Nixon, most businesses that pollute rivers and streams must get permits that limit that pollution.

Traditionally, farmers are exempt from this requirement. Runoff from farms, like runoff from logging jobs or parking lots, is considered non-point-source pollution. Because it doesn't come out of a pipe, it's hard to trace. Government officials steer clear of trying to regulate it.

Larger farms that produce lots of pollution, though, can be regulated.

Federal law allows DEP to require a poultry farm to get a permit if it contains a certain number of birds within a certain amount of space. Under state regulations, DEP can also require a poultry farm to get a permit "upon determining that it is a significant contributor of pollution to the waters of the state."

DEP has never tried to use either method to require a poultry farm to get a permit, agency officials say.

Instead, DEP relies on a good-faith effort by poultry farmers to follow recommended "best management practices" to limit manure runoff.

"Private discussions between Farm Bureau and Dr. Eli McCoy then director of the DEP found the DEP is willing to allow the poultry industry to voluntarily follow the guidelines under close monitoring," the West Virginia Farm Bureau News reported in April 1995.

"McCoy expressed confidence in voluntarism based on a similar success in the timber industry," the group reported.

McCoy left DEP in May 1997. He is now a consultant with the Charleston firm Potesta & Associates. One of his major clients is Hester Industries, a poultry processing company with a plant in Moorefield.

A little common sense

Months after her "Dear John" letter, Taylor said that Merritt and Janes misunderstood if they thought DEP planned to go after poultry farmers. The agency simply considered that option, Taylor said.

"When we talked about it here, we didn't see a clear-cut case that was there for that kind of activity," Taylor said.

Sure, Taylor said, a U.S. Geological Survey found high levels of fecal coliform bacteria in the Potomac Valley. The highest levels were downstream from large collections of poultry houses and cattle feedlots. Poultry production has tripled in the last 10 years, while cattle production has remained the same. A little common sense suggests poultry is at least part of the problem.

But, Taylor said, "As a regulatory agency, we can't use common sense as an approach. We have to use scientific data. We have to approach our actions based on technical data.

"There are some actions out there I've seen by poultry farmers that are not conducive to good water quality," Taylor said in September. "But to out and out say that poultry is a major source, I'm not ready to do that without more data."

Last year, DEP took its own water samples in the Potomac Valley. In June, top agency officials explained that their study, to be published later this year, would show water quality problems detailed by the USGS weren't that bad after all.

"Of course, there are hot spots, but the problems appear to be fairly localized," said Mike Arcuri, a DEP environmental resources specialist supervisor.

Actually, DEP records show the agency found 35 samples out of 115, or nearly a third, exceeded state limits for fecal coliform bacteria.

Asked last month about those numbers, Arcuri said, "In our view, having a third of the samples over the standard is not good. I wouldn't say it's extremely bad. If you're just a little bit over the standard, well, you had to set a number somewhere."

"There are fecal coliform issues over there," Taylor said later. "We have never said there are not."

Taylor said another DEP report, to be published later this month, might blame agriculture for some pollution problems in the Potomac Valley. But the report, now in draft form, will not narrow the focus on poultry, and it will tag agriculture in only one stream, the South Fork.

In late 1996, however, DEP blamed agriculture for fecal coliform violations in six Potomac Valley streams. The agency added these streams - the South Fork, the North Fork, the South Branch, Lunice Creek, Mill Creek and Anderson Run - to a list of polluted streams federal law requires states to publish.

The Farm Bureau complained. Group lobbyist Steve Hannah said that available data suggested, but did not prove, that farms caused the pollution.

DEP rewrote its list. Now, it says the streams are polluted, but that the source is "undetermined."

"Everybody wants to be careful," Arcuri said. "Because if you make a claim, you have to back it up."

Federal pressure

Eli McCoy says that before he left DEP, the time wasn't right for the agency to cite poultry farmers. Federal money was pouring in to help farmers clean up their act voluntarily.

"There were new efforts in place that we never had before," McCoy recalled in August. "We were willing to give that a fair try."

Taylor said the time may come when DEP needs to take action.

After sign-up periods for cost-sharing programs are over, she said, DEP will have a better idea which poultry farmers aren't willing to clean up on their own.

Those farmers, she said, could eventually be cited and forced to stop polluting.

"Obviously, there is going to be a point in the not-to-distant future when we know who is not signing up," Taylor said in June. "I think we'll have some idea who the problems are and we'll have a better idea by the end of summer."

To date, DEP hasn't taken any action. But federal regulators may soon force the state's hand.

Officials from the U.S. Environmental Protection Agency have met several times over the last few months with DEP officials to discuss the state's handling of the poultry industry.

Both agencies hesitate to discuss their plans in any detail.

But an agenda for a Sept. 19 meeting, obtained under the state Freedom of Information Act, shows they are discussing a "Proposed WV field strategy" for the industry. The agenda referred to identifying "bad actors," a "DEP regulatory role," and "EPA support of this role and EPA role."

Taylor said last week, "We are working on a clarification and an overall strategy. We're clarifying what things are being done in the Potomac watershed and clarifying our enforcement role in that process."

Carol Amend, head of enforcement for the water division of EPA Region III in Philadelphia, said EPA officials in Washington have instructed her office to make the poultry issue a bigger priority.

"This is sort of the beginning of discussions," Amend said in late September. "We're trying to understand ... and talk about all the tools we have to address the issue."

Mike Zeto, head of environmental enforcement for DEP, said, "Where it's headed, I really don't know for sure. But it will all probably come to light in the very near future."

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