Oct 2, 2014
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RSS By: Jim Dickrell, Dairy Today

Jim Dickrell is the editor of Dairy Today and is based in Monticello, Minn.

Know Your Rights When EPA Shows Up

Jun 16, 2014

Even with a court-issued warrant, you still have Fourth Amendment rights

The Environmental Protection Agency is stepping up surveillance and inspections of dairy farms for potential water discharge violations.

EPA has already done flyovers of dairy facilities in Michigan, Iowa and Wisconsin, and has followed up with document requests of numerous dairies, says David Crass, an attorney with Michael, Best and Friedrich, LLP, based in Madison, Wis. and Washington, D.C.

Farms will have to comply with those document requests under penalty of perjury, he says. And EPA is now in the process of following up on those document requests and making surprise, on-farm inspections. EPA is targeting those inspections to occur after large precipitation events that tax a farm’s runoff control measures, he says.

But this is still America and you still have Fourth Amendment constitutional rights from unlawful search and seizure, says Crass. "If the inspectors have a court-issued warrant, you will have to deal with them. But call your lawyer immediately," he says.

Make sure your employees direct EPA staff to your farm office upon their arrival, and have them wait there until you or someone you authorize can meet them. "Only your authorized farm personnel should engage these inspectors in discussions or bring them on a tour of your facilities," Crass says.

If the inspectors do not have a court-issued warrant, they are on your property as your guest, he says. "Unless they have a judicially-issue inspection warrant, a facility owner or operator can deny them access to the facility," he says. "You can offer to reschedule at a time that is more convenient for you if you are away from the farm or are otherwise scheduled on other matters."

"Inspectors don’t like that, but unless they have an inspection warrant issued by the court, you have the right to tell them to reschedule," says Crass.

In addition to rescheduling to a time that you are actually available, this will give you time to do your own facility inspection, and address any areas on the farm that need attention. Of particular focus by EPA during these inspections are manure storage, feed storage and leachate areas, calf hutch areas, outdoor lots and clean water diversions. "Make sure these areas are not resulting in any discharge to waters of the US," he says.

When the inspectors do arrive for the scheduled appointment, ask them specifically what they want to see. Crass says it is important to define the scope of the inspection up front. It must be limited to areas that could result in a discharge of contaminants to surface waters, which is the limits of EPA’s Clean Water Act jurisdiction. Define this scope up front and then keep the inspection limited to that scope.

"For bio-security reasons, inspectors don’t need to go inside barns, for example," says Crass. You have legitimate bio-security reasons to keep them out since you don’t know where they last were and what they might have come into contact with.

Always have two people from your operation accompany the inspectors so you have two witnesses to the inspection. "Take pictures of everything that they take pictures of and take samples where-ever they take samples," Crass says. That will create duplicates of everything inspectors have so you have your own verification should issues arise. Crass also emphasizes the importance of reviewing for accuracy and correcting the record after EPA issues a written report of the inspection.

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