By Todd J. Janzen, Partner, Plews Shadley Racher & Braun LLP
The Department of Justice issued a press release earlier this week:
WASHINGTON - Freedman Farms Inc. was sentenced today in federal court to five years probation and ordered to pay $1.5 million in fines, restitution and community service payments for violating the Clean Water Act when they discharged hog waste into a stream that leads to the Waccamaw River, announced the Department of Justice's Environment and Natural Resources Division and the U.S. Attorney's Office for the Eastern District of North Carolina.
William B. Freedman, president of Freedman Farms, was sentenced to six months in prison to be followed by six months of home confinement.Freedman Farms was sentenced to pay a $500,000 criminal fine and $925,000 in restitution. The judge will hold a status conference in 30 days to determine the scope of restitution to compensate for or repair lost or injured resources that resulted from these violations. In addition, a community service payment of $75,000 will be paid directly to the Southern Environmental Enforcement Network (SEEN), one of four U.S. regional environmental enforcement associations established to train environmental enforcement professionals. SEEN is to use the funds for funding environmental projects designed to preserve and restore waters in the Eastern District of North Carolina.
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As an outsider, I certainly do not know all of the facts surrounding this case, and therefore cannot comment as to culpability of Freedman Farms or the correctness of the result. Still, a seven figure fine against a farm for violating the Clean Water Act is remarkable--the highest of which I have ever heard. What's troubling about the press release is the indictment of all CAFOs, as if they are ready to pollute--but for the EPA's keeping them in check:
"Concentrated Animal Feeding Operations (CAFOs), like Freedman Farms, are an EPA enforcement priority because manure, if not properly controlled, can contaminate both surface waters and ground waters that may be used as drinking water sources and harm fish and other aquatic species," said Maureen O'Mara, Special Agent-in-Charge of EPA's criminal enforcement office in Atlanta. "In this case, hog wastes flowed through sensitive wetlands, posing a risk to water and wildlife. Today's sentences send a clear message to CAFO's and their owners that if you disregard the law, you will be prosecuted."
Most people would be surprised to learn that CAFO operators--at least those I work with--actually know the law better than most smaller, unregulated livestock farms. They do not need the EPA to make an example out of another farm to make them follow the law.
Todd J. Janzen, a partner at Plews Shadley Racher & Braun LLP, represents buyers and sellers of commercial and industrial properties and other business assets in transactional, regulatory compliance and business litigation matters. Todd also assists landowners with cost recovery and environmental clean up efforts. He has a vibrant agricultural law practice and is a founding member and past chair of the Indiana State Bar Association's Agricultural Law Section. Todd serves as the General Counsel to the Indiana Professional Dairy Producers, an organization representing more than 200 dairy farmers in Indiana, and is a frequent author and speaker on agricultural law and commercial real estate topics.
Read more at Janzen Ag Law Blog by Todd Janzen.
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