Monday, December 12, 2016

EPA nominee would rein in agency
Republished from Composting News, December 2016

By Ken McEntee
December 7, 2016
Many critics of the U.S. EPA have charged that the agency is “out of control,” with 
overzealous regulations. Oklahoma Attorney General Scott Pruitt is one of them, and starting next year, pending congressional approval, Pruitt will be in charge of the agency.
President-elect Donald J. Trump this month announced his intention to nominate Pruitt to serve as the administrator of the EPA.
“The American people are tired of seeing billions of dollars drained from our economy due to unnecessary EPA regulations, and I intend to run this agency in a way that fosters both responsible protection of the environment and freedom for American businesses,” Pruitt said.
Trump said Pruitt, who he called an expert in constitutional law and one of the country’s top attorneys general, brings a deep understanding of the impact of regulations on both the environment and the economy making him an excellent choice to lead the EPA.
“My administration strongly believes in environmental protection, and Scott Pruitt will be a powerful advocate for that mission while promoting jobs, safety and opportunity,” Trump said. “For too long, the Environmental Protection Agency has spent taxpayer dollars on an out-of-control anti-energy agenda that has destroyed millions of jobs, while also undermining our incredible farmers and many other businesses and industries at every turn. As my EPA administrator, Pruitt will reverse this trend and restore the EPA’s essential mission of keeping our air and our water clean and safe.”

Trump said Pruitt will be deeply involved in the implementation of his energy plan, “which will move America toward energy independence, create millions of new jobs and protect clean air and water.”
He said he and Pruitt agree that the new administration must rescind all job-destroying executive actions and eliminate all barriers to responsible energy production. This will create at least a half million jobs each year and produce $30 billion in higher wages, Trump said.
As new EPA regulations on clean water and air during the Obama administration have drawn fire from farmers, businesses, state officials and others around the country, Pruitt has been at the forefront of the opposition. He established Oklahoma’s first “federalism unit” to combat unwarranted regulation and overreach by the federal government and has said that states should have the sovereignty to make many regulatory decisions for their own markets.
In September Pruitt participated in oral arguments in federal appeals court in West Virginia v. EPA, in which West Virginia and other states filed suit to stay the Obama administration’s Clean Power Plan. The Obama administration said the aim of the plan is to reduce greenhouse gas emissions.
“This has been a historic and consequential day as 27 states joined together to ensure the precious balance of power is preserved,” Pruitt said during a press conference after the oral arguments. “This administration continues to treat states as mere vessels of federal will, abusing and disrespecting the vertical separation of powers defined by our Constitution. That is why attorneys general, senators and congressmen from across the country have joined together today to maintain rule of law and checks and balances in this very process. I am committed to ensuring the ultimate payer in this matter is not overlooked – the consumers.”
Last year, Oklahoma passed a law that protects the state from unlawful EPA overreach.
“The EPA’s so-called ‘lean Power Plan is the federal government placing the proverbial gun to the head of the state of Oklahoma to make the state bow to the pressure of an unlawful EPA rule,” Pruitt said at the time. “Senate Bill 676 is a bulwark against the overreach of the EPA. This is an important step to the state of Oklahoma’s ability to defend its interests against the unlawful actions of the EPA. No state should be forced to comply with this unlawful rule, and SB 676 is a common-sense approach that ensures decisions about Oklahoma’s power generation are made by state officials and not bureaucrats in Washington.”
In June 2015, in Michigan vs. EPA – a case in which the state of Oklahoma also was a plaintiff - the U.S. Supreme Court ruled 5-4 that the EPA unreasonably interpreted the Clean Air Act when it decided to set limits on the emissions of mercury and other pollutants from power plants without first considering the costs to utilities and others before doing so.
“Thanks to our victory, the EPA can no longer ignore the substantial costs its rulemaking can heap on industry, and eventually ratepayers,” Pruitt said. “The EPA routinely ignores statutes and congressional directive in order to pick winners and losers in the energy arena.”
Also in 2015, Pruitt was among the state officials who filed lawsuits against EPA over the agency’s Waters of the United States (WOTUS) rule, implemented under the federal Clean Water Act.
“I and many other local, state and national leaders across the country made clear to the EPA our concerns and opposition to redefining the Waters of the U.S.,” he said. “However, the EPA’s brazen effort to stifle private property rights has left Oklahoma with few options to deter the harm that its rule will do.”
Pruitt called WOTUS an “egregious power grab by the EPA and an attempt to reach beyond the scope granted to it by Congress. This rule renders the smallest of streams and farm ponds subject to EPA jurisdiction. This means that the first stop for property owners is the EPA, which may deem the property owners’ waters subject to the EPA’s unpredictable and costly regulatory regime. It would be a terrible blow to the private property rights of Americans.”
WOTUS is now in limbo and virtually certain to be rescinded under the Trump administration.
Speaking to Composting News last month (See Composting News, November 2016), Robert LaGasse, executive director of the Mulch and Soil Council, a trade association that represents soil and mulch producers, said he hopes the Trump administration will “take a stronger look at EPA and correct some of the errors that it has made recently.”
That includes WOTUS, which LaGasse has said “presents a big problem for anybody who wants to make changes to their property.”
Jay Lehr, science director for the Heartland Institute, a Chicago-based research organization, and one of the architects of the EPA who has since become a critic of the agency, praised Trump’s nomination.
“This is a great day for the environment, the American people and the economy – which will soon no longer be crippled by totally insane regulations, including the idea that humans exhale a pollutant with their every breath,” said Lehr, who has proposed the elimination of the EPA in favor of putting environmental protection under the control of state agencies. “There would be many people on my list for great EPA administrators but none would be any higher on it than Scott Pruitt. We have not had a knowledgeable individual at the helm of EPA for more years than I am willing to say. For well over a decade, we have had a combination of incompetence and anti-capitalists at the helm who knew nothing of environmental science and more importantly they did not care. As long as they could place road blocks in the way of progress with no validity whatsoever as to improved environmental protection, they felt they were doing their job.”
Fellow Oklahoman and U.S. Sen. Jim Inhofe, chairman of the U.S. Senate Environment and Public Works (EPW) committee, also praised Pruitt as a “leader and a partner on environmental issues for many years.”
“Pruitt has fought back against unconstitutional and overzealous environmental regulations like Waters of the U.S. and the Clean Power Plan,” Inhofe said. “He has proven that being a good steward of the environment does not mean burdening tax payers and businesses with red tape. In his appearances before the Environment and Public Works committee, Pruitt has demonstrated that he is an expert on environmental laws and a champion of states’ roles in implementing those laws.”
Across the aisle, Pruitt’s nomination wasn’t greeted as enthusiastically.
“I cannot support Scott Pruitt, a denier of climate science, to lead the EPA,” said U.S. Senator Brian Schatz (D-Hawaii). “Climate change is real, urgent and caused by humans. It is a scientifically proven fact that any EPA administrator should accept. The EPA has the enormous responsibility of protecting our environment and keeping Americans safe and healthy. Its administrator should share those goals, but Scott Pruitt’s record has shown us that he does not.  While the EPA is tasked with protecting our people and our environment from the impacts of climate change, he denies the science behind it.  And while the agency has worked to keep our air and water clean and safe, Scott Pruitt has worked to undermine the very rules that protect those resources. The health of our planet and our people is too important to leave in the hands of someone who does not believe in scientific facts or the basic mission of the EPA.”
According to House Minority Leader Nancy Pelosi (D-Calif.), “For the sake of the air we breathe, the water we drink and the planet we will leave our children, the head of the EPA cannot be a stenographer for the lobbyists of polluters and big oil. Pruitt has brazenly used his office as a vehicle for the agenda of big polluters and climate deniers in the courts – and he could do immense damage as the Administrator of the EPA.”
Speaking to Composting News last month, Lehr opined that despite Trump’s open skepticism about global warming, he doesn’t anticipate a sudden reversal in Washington policy regarding climate change.
“So far I haven’t read a single word that makes me believe we are going to back up at all on climate change,” he said. “There is no question that Trump feels that it is a hoax, and it is the biggest hoax ever perpetrated on society, and I think he will stick with that. But I think it will take some time to slowly wind it down reasonably. Over a period of time, the more than $5 billion a year of research money that goes to support the climate models at the academic levels will dry up.”

Friday, November 25, 2016

Composting human remains: May God rest your soil

By Ken McEntee, Owner

Republished from Composting News

Thirteen years ago, Composting News republished Pushing Up Daisies, compost pioneer Malcolm Beck’s essay about human body composting.
“In nature, all plants and animal bodies are disassembled, consumed, and returned to the

Earth by the decomposing microbes, which maintains soil fertility,” Beck wrote. “Wouldn't this also be a more respectful way to handle our deceased?”
Now, the Seattle-based Urban Death Project, is developing a new model of death care that it says “honors both our loved ones and the planet earth.” At the heart of this model is a composting system – called recomposition - that transforms human remains into soil.
“It occurred to me that I didn’t want the last thing I did on this planet to be polluting,” said Katrina Spade, founder and executive director of the project.
Spade has never heard of Beck, the founder and former owner of Garden-ville, a San Antonio-based compost producer. But she shares his view that traditional methods of cremation and burial are undesirable to the body and to the environment.
“The funeral industry gouges families,” she said. “They have to make them feel like they need a fancy coffin so they can make money. It is horrible.”
The Urban Death Project is working with Washington State University to develop a prototype composting facility using animal carcasses
“As far as I know we are the first to do a project like this,” Spade said.
Spade’s interest in composting human remains developed while she was in graduate school for architecture.
“I had an interest in decomposition that goes beyond the average architecture student,” she said. “I grew up in New Hampshire and we always raised and composted our own animals, so I developed a good knowledge of composing and permaculture design.”
She also became interested in the funeral industry.
“Today’s funerals don’t support the grieving as well as they could, and I also found out through research that cremation and convention burial pollute and are wasteful in different ways. We need to create new spaces in our cities where we can do death better, and incorporating the technology of livestock composting made sense.”
In the recomposition process, the deceased body would be lowered down into a tall composting bay with a small footprint, where it would be composted with a bulking agent like wood chips. Aeration would be provided by ports in the side of the structure.
“It’s based on livestock composting principles, but we actually invented our own process,” Spade said. “We took the aerated windrow concept and turned it on its side so that it is vertically designed. The reason it is vertical is because it is meant to be for the city, so we need to minimize land use, so the obvious thing to do is to go up. The system we designed is vertically stacked, which I don’t think has ever been done before because there really hasn’t been a need for it. Most composting is done in rural spaces, where there is land.”
Gradually, the body move downward through the bay as it decomposed. The end product would be about a yard of compost, including the composted bulking materials.
“We think the process will take four to six weeks, but we really don’t know until we build the prototype,” she said. “This is not like cremation where you give the ashes of the body to the family. This is a corrective system in the end. The bodies are put in and composted individually, but when we get to the second stage there will be a mixing and curing and finishing of the compost, because at that point we are no longer human. Families will be encouraged to take some of that compost, but it won’t just be from a single body at that point.”
Spade expects that about six bodies could be moving down through the bay at the same time, each of which would be in a different stage of decomposition. The bays would be modularly designed, so a site could have one or more.
Last winter, Spade and Lynne Carpenter-Boggs, a soil scientist at Washington State worked with Western Carolina University to determine the most efficient way of composting human bodies. Donated bodies were placed in beds of wood chips, To vary the conditions, alfalfa pellets and water were later added to one of the bodies.
Human composting, Spade said is not legal in any state in the U.S.
“Our legal team thinks that if we really want to we could probably do it now in Colorado,” she said. “How we care for deceased bodies is a state by state decision. Most states are the same generally, with three options: bury, cremate or donate to science. In Washington we are working on a strategy to bring it to the legislature to offer another option for consumers.”
The Urban Death Project, a non-profit organization is now seeking donations toward building a prototype. The current fundraising campaign seeks $20,000 by the end of November. The overall cost of the prototype is expected to be around $75,000, with a final project cost of around $300,000.
“Once we make money we can start to involve Washington State,” she said. “Once we have a prototype, which will only take a couple months to build, we can run a pilot program. We have to have a successful pilot program before we can take it to the legislature. Hopefully we can take this to the legislature within a year and a half to two years.”
Spade said she took her idea to Carpenter-Boggs after learning of Washington State’s work in composting livestock moralities.
“We will start by insuring that the system works by using some human sized animals, then maybe we will find some human donors,” she said. “We’re already getting inquiries about this.”
Ultimately, she said, the process would include on-site memorial services.
“By composting the body, the laws of nature are not violated and the cycles of life will be completed,” Beck wrote.
Through the end of November, donations to the project can be made at

Tuesday, November 22, 2016

WOTUS, EPA could be casualties of Trump administration

By Ken McEntee, Owner

Republished from Composting News, November, 2016.

The court-halted Clean Water Rule defining the “Waters of the United States” (WOTUS), and even the U.S. EPA itself could come to an end under the administration of President-Elect Donald Trump, according to experts who keep a close eye on environmental regulations.
In the wake of Trump’s election, Composting News asked several experts about what they think the next four years have in store for WOTUS and environmental regulations in general. They included:
* Jay Lehr, one of the architects of the EPA who has since become a critic of the agency. Lehr, science director for the Heartland Institute, a Chicago-based research organization, published a proposal two years ago to eliminate the federal EPA and secure environmental protection under the control of state agencies. Lehr said he is confident that at least portions of his plan will be adopted under the Trump administration.
* H. Reed Hopper, principal attorney with the Pacific Legal Foundation (PLF), the Sacramento, Calif.-based public interest legal organization that has represented plaintiffs in property rights, civil rights and other cases against governments, including a lawsuit opposing WOTUS. Hopper said he expects WOTUS to be overturned, but doesn’t expect EPA to be eliminated or substantially reduced in scope.
* Robert LaGasse, executive director of the Mulch and Soil Council, a trade association that represents soil and mulch producers. LaGasse said he is optimistic that Trump’s planned infrastructure improvements will make transportation more efficient, and that an improved economy will boost demand for soil and mulch products.
* Frank Franciosi, executive director of the U.S. Composting Council, the trade association that represents compost producers.
Lehr, who was the nation’s first Ph.D. in groundwater hydrology and was among the first advocates for the creation of the EPA almost 50 years ago, said he is confident that the agency will be dismantled under the Trump administration. His plan calls for a gradual dismantling of EPA over a five-year period.
“People are emailing me all over the place,” he said. “They think it can be done.”
Lehr believes that state control over environmental regulations will be improve the environment.
“100 percent of the work of the nation’s environmental protection is done by the 50 state agencies,” Lehr said. “The federal government does nothing. The EPA has 10,000 useless employees, and all they do is look over the shoulders of the 50 states that do all of the work. Anybody in any business knows that you don’t do your best work when you know some idiot is looking over your shoulder. The only time in recent memory that EPA actually got involved and got their hands dirty on the ground is when they sent several people to deal with a situation at a mining operation in Colorado (Gold King Mine, August 2015). They screwed it up and they contaminated the Animas River. EPA’s response was ‘we’re sorry.’ Anybody else would have been in jail.”
Lehr said he would retain EPA’s Office of Research and Development and reduce the agency’s budget from $8.2 billion to $2 billion.
“In two years since I introduced it, there hasn’t been a single person who has challenged me with regard to the logic of the plan,” Lehr said. “The EPA is made up of 14 separate offices, most of which are administrative. Only four of them actually deal directly with the environment. The Office of Research and Development is the only thing I would leave in the budget.”
Lehr believes WOTUS is dead on arrival of the new administration.
“The plan was to take over every drop of water in the United States,” he said. “Literally if there is a puddle on your farm and a bird lands in the puddle, the government would control that puddle. It’s dead. There is zero chance that it will go through.”
Despite Trump’s open skepticism about global warming, Lehr doesn’t anticipate a sudden reversal in Washington policy regarding climate change.
“So far I haven’t read a single word that makes me believe we are going to back up at all on climate change,” he said. “There is no question that Trump feels that it is a hoax, and it is the biggest hoax ever perpetrated on society, and I think he will stick with that. But I think it will take some time to slowly wind it down reasonably. Over a period of time, the more than $5 billion a year of research money that goes to support the climate models at the academic levels will dry up. The maximum of Trump’s backing off will be to assign a new committee of non-hoaxters to study the issue and come out with directives, the bottom line which will be that the climate is always changing, let’s keep our eye on it, let’s make sure that we are prepared for whatever happens.”
Despite reports that former Goldman Sachs investment banker Steven Mnuchin – the national finance chairman for Trump’s campaign – is a top contender for secretary of the treasurer, Lehr doesn’t anticipate a resurgence in carbon credits and carbon exchanges. Goldman Sachs was once a leading proponent of a Cap and Trade system through which it hoped to be the largest player in a carbon credit exchange that President Barack Obama once estimated to be a $646 billion business over seven years. Another major player in carbon trading was Generation Investment Management, founded by former Vice President Al Gore, with three former Goldman Sachs bankers.
“Carbon credits have never gotten off the ground,” Lehr said. “I think the money that has been wasted on carbon credits and carbon exchanges is going to be reduced.”
He believes tax incentives, including incentives for food waste processing technologies and green fuel production, will be eliminated under the Trump administration.
“I’ve always thought that turning food waste into fuel was a great idea,” he said. But it can never compete with fossil fuel. We don’t have 100 or 200 years of shale gas and oil in this country. We have 1,000 years. These (alternative) fuels are going to be a niche market. I don’t want to see them go out of business but  I don’t want to give them any tax breaks either. I can predict for sure than in the next four years we’re going to see a dramatic reduction in tax breaks on energy and a lot of things that have been around a long time.”
Lehr believes Trump’s cabinet will “make life better for every single industry. The people who read your magazine are going to positively influenced. If they live on tax breaks or they live on regulations that make their competitors lives more difficult, then they may not benefit. But in the long haul businesses will benefit by an economic boom.”
LaGasse has the same hopes for a booming economy and a better business climate spurred by rolling back regulatory obstacles. He also hopes to see an end to tax credits and subsidies that favor some industries over others.
“They create inequities in the marketplace and support technologies that aren’t marketable or can’t survive in a free market,” LaGasse said.
Specifically, he says, subsidizing biomass energy diverts wood from mulch producers.
“Government subsidies - whether they are U.S. based or whether they are by foreign markets like the U.K., which subsidizes the import of millions of tons of wood pellets - take materials out of the historic wood fiber marketplace and redirect them. Instead of depending on a heavily subsidized foreign market we need to develop our own markets. America first is not a bad idea. If we spend our money here at home and improve our infrastructure and make the marketplace a stable place to do business, how is that bad?”
LaGasse hopes the Trump administration will “take a stronger look at EPA and correct some of the errors that it has made recently.”
That includes WOTUS, which LaGasse has said “presents a big problem for anybody who wants to make changes to their property.”
“We’re in the hopeful phases that they will be rolled back,” he said. “I think people have voted for the premise of returning regulatory agencies to being more regulators and less advocates. If (Trump) curtails some of the overreaching regulation like WOTUS, more development can proceed. Housing can expand. More jobs let more people afford housing, which creates more demand for our products.”
Hopper, lead attorney in the first lawsuit filed against the Obama administration to block implementation of WOTUS, said he is hopeful that the rule will be rolled back, along with climate change regulations.
“Trump has publicly stated his view that the WOTUS rule is unconstitutional, so it is likely he will pull the rule at some point,” Hopper said. “But it is equally likely the Justice Department will continue to defend the rule up until Trump takes office. The most likely outcome is that the new president will allow the Sixth Circuit (U.S. Court of Appeals) to decide the case, which almost certainly will go against the government given the Sixth Circuit’s nationwide injunction which held the rule was likely invalid statutorily and constitutionally. When that happens, Trump can pull the rule and refuse to defend it in the Supreme Court.”
Meanwhile, Hopper said he hopes Trump will roll back climate and carbon regulations, although he expects that it would take months before any changes are seen.
“I think Trump is serious about scaling back regulation, especially environmental and immigration regulations,” Hopper said. “In some cases, he may do so through an executive order, perhaps within his first 100 days.  In other cases, he may have to allow the agency to issue a new rule that withdraws or supersedes the existing rule. This could take a couple years. There is a lot of inertia in some of these agencies like EPA and it will take awhile for the new administration to move its agenda down the line.”
Unlike Lehr, Hopper doesn’t foresee the elimination or reduction of the size of EPA.
“Even curtailing the agency seems unlikely,” he said. “So much of what the agency does is the result of entrenched, unelected bureaucrats overstepping their enforcement power. I don’t see that changing no matter who is in charge at the top. Even small-government types seem to change their attitude when they get to Washington and start working in these immense agencies like EPA. I fear the most we can hope for, at least in the near future, is to hold the line on EPA or simply slow its growth.”
Hopper said Trump’s lasting legacy may turn on who he appoints to the Supreme Court.
“This more than anything will make or break our country,” he said. “If Trump appoints some like-minded individual to replace Justice Scalia, at least the current balance of power on the court will remain with ongoing protections for landowners, state’s rights, and individual liberty. If, perchance, he gets to replace someone else on the bench, like Justice Ginsburg, that could provide a safeguard against big government for decades, if not generations.”
Franciosi said he wants to wait until Trump takes office before making any projections as so whether the new president will be a friend or foe to the composting business.
“We don’t even know who the EPA (administrator) is going to be, so it’s too early to say,” he said. “I can tell you that the people in the EPA who are working in resource management have been extremely cooperative and they and the USDA want to see the food scraps problem taken care of from a number of levels. From the standpoint of permitting, everything is done at the state level, so I don’t see any impact there. There are some bills in the Senate on food recovery. Those bills have proposed language on infrastructure funding. It seems to me that the new administration is big on infrastructure and big on jobs, and if you look at composting compared to other waste disposal options it creates more jobs than landfilling and incineration. The Institute of Local Self Reliance has done some studies on that. So the message we need to get out is that we are a better option when it comes to building infrastructure and creating jobs.”
Franciosi said he is a “firm believer” in climate change, in contrast to Trump’s view of climate change as a hoax.
“But what we do as an industry benefits the environmental tremendously, not only from a greenhouse gas standpoint, but also when you look at all of the eco- system benefits composting provides, like water saving, less pesticide, less fertilizer, better healthy soil. Those all relate economically as well as environmentally. We have been through this before with prior administrations.”
Franciosi said the Trump administration isn’t likely to support green energy, which could impact USCC members who are involved in food to biogas projects. He said, however, that most green fuel incentives are offered at the state level.
Franciosi said that from the standpoint of federal regulations, the only area that directly impacts composters is in biosolids composting.
“It’s the states that are overseeing the regulations that allow composting facilities to operate, and many of them in are in the process of reviewing their regulations,” he said. “We’re here to help them. We have templates for composting legislation, and if any changes are going to be made, they should be science based, not based on hearsay.”

Wednesday, June 29, 2016

Judge blocks green waste compost for organic growing

By Ken McEntee

Composting News

The ability to use of green waste compost to grow certified organic crops is in limbo after a federal judge vacated USDA guidance that allows compost that might contain pesticide residuals.
The Western Growers Association (WGA) called the ruling “short-sighted and potentially market-devastating.”
Following this month’s ruling by Judge Jacqueline Scott Corley, of the U.S. District Court, Northern California District, Guidance Document NOP 5016 will be vacated effective August 22. That will exclude green waste compost – mainly grass clippings - from being used in organic growing unless it is proven not to be contaminated by residual pesticides. The court sent the matter sent to the USDA, which administers the National Organic Program (NOP), for further action, providing a tight two-month window.
USDA created the problem in 2011 when it adopted NOP 5016 without putting the guidance document through the proper public review process as mandated by the federal Administrative Procedures Act (APA). That was the basis of a lawsuit filed last year by the Oakland, Calif.-based Center for Environmental Health (CEH) and two other environmental groups against USDA. The plaintiffs asked the court to vacate NOP 5016, which they dubbed the “Contaminated Compost Decision,” due to the APA violations. CEH said the allowance for compost that might contain pesticide residuals would compromise the integrity of the organics program.
"We applaud the court's decision to protect the integrity of the organic program," said Caroline Cox, research director for CEH. "We will continue to watchdog the USDA to insure that the program meets consumers' expectations for meaningful organic standards."
The Organic Trade Association (OTA), which represents more than 8,500 organic growers, processors and other businesses, said the court decision may disrupt the organic industry.
“OTA is concerned that prematurely removing this guidance for all organic operations will create serious disruptions to the organic industry, especially for organic producers who have been following the NOP’s regulations on the application of organic compost,” said Maggie McNeal, OTA’s director of media relations. “The lifting of this longstanding policy will also cause a significant disruption to certified organic manufacturers, handlers, and processors. Packaged organic food products must be made of certified organic ingredients obtained from certified organic farms. If the certification of the farms that produce these ingredients is voided, or even under challenge, certified organic manufacturers will be limited in their ability to obtain and use these ingredients.”
WGA, a trade association whose members farm about 185,000 certified organic acres and use an estimated one million tons of compost every year, argued prior to Corley’s ruling that vacating NOP 5016 would necessitate expensive pesticide testing on compost made from grass clippings before it could be used for certified organic production.
Such testing requirements would cause “extraordinary cost increases that may render organic production economically infeasible,” according to Hank Giclas, senior vice president, strategic planning, science & technology for WGA. The association provided input to the court as an amicus to show that the sudden withdrawal of the guidance would harm organic agriculture, composting operations and consumers in California.
“We asked the court to simply allow USDA to fix any procedural problem to the guidance without doing away with these important rules that codify well-established organic practices,” said Dennis Nuxoll, vice president of federal government affairs for WGA. “Now, starting in August, California organic farmers – who have followed USDA’s lead in good faith – won’t know the rules of the road.”
He said WGA is concerned that certified organic farmers will no longer enjoy the protections of NOP Guidance 5016 if their organic compost contains incidental residues of prohibited substances that they did not cause – opening them up to potential lawsuits.
“Furthermore, we recognize that no analytical testing currently exists to confirm the absence of all disallowed chemical substances, and the cost of trying to conduct such testing would be prohibitive and could render organic production economically unfeasible,” Nuxoll said.
Frank Franciosi, executive director of the U.S. Composting Council (USCC), said the council’s Legislative & Environmental Affairs Committee was looking into the matter and should have a response in early- to mid-July.
“It is very expensive to test for residuals of pesticides in compost, but the big thing is who is going to set the limits, if there are going to be any,” Franciosi said. “It is pretty impossible in today’s environment to have materials that are void of any kind of manmade substance.”
The suit was filed in April 2015 against USDA, USDA’s Agricultural Marketing Service and the NOP. Plaintiffs said NOP 5016 changed the existing rules for the use of compost in organic production and should have gone through an appropriate process of public notice and comment before it was implemented.
The issue originated in 2009, when the California Department of Food Control and Agriculture (CDFA) found residue of NOP-prohibited pesticide bifenthrin in samples of three different commercial green waste compost products made by Grover Environmental Products, Feather River Organics and Nortech Waste LLC. Bifenthrin is used to control fire ants and other inspects and is applied to lawns through a variety of brand name products. CDFA advised organic producers and accredited certifying agents that the three affected composts were banned for use in organic crop production.
NOP said it then addressed the issue nationally by sending a draft policy on pesticide residues in compost to accredited organic certifying agents and received six comments, all of which “urged the NOP to take an alternative approach” to the CDFA decision. Following that, USDA issued NOP 5016, which applied an “unavoidable residual contamination” exception to compost.
The lawsuit was filed five years later.
OTA said it will participate in any upcoming comment process to ensure that the needs of organic operations are heard.
“But we remain concerned that removing the compost guidance prematurely will throw the market into disarray,” OTA said. “With no guidance, there could be inconsistency – which is not desired by certified organic operations or consumers.”

Tuesday, May 24, 2016

Federal court to hear 'contaminated compost' case

By Ken McEntee

Composting News

May 20, 2016
A hearing has been reset to May 26 on a federal case that may determine whether compost made from grass clippings must be tested for pesticides before being used in certified organic production.
Such testing requirements would cause “extraordinary cost increases that may render organic production economically infeasible,” according to Hank Giclas, senior vice president, strategic planning, science & technology for Western Growers Association (WGA).
Western Growers, a trade association whose members farm about 185,000 certified organic acres and use an estimated one million tons of compost every year, this month was granted amicus status by a federal judge in support of defendants USDA and its National Organics Program (NOP) in a federal lawsuit relating to their allowable use of potentially pesticide contaminated compost for certified organic food.
Federal Judge Jacqueline Scott Corley, of the U.S. District Court, Northern California District, also was considering amicus requests from the Organic Trade Association (OTA) and the California Certified Organic Farmers (CCOF) to join the case in support of the federal agencies.
The case involves NOP’s issuance, in April 2010, of guidance for Allowance of Green Waste in Organic Production Systems (Document NOP 5016). The guidance allows, for certified organic production, the use of green waste compost that may contain residue from synthetic pesticides applied to lawns. The three plaintiffs in the suit are asking the court to prevent the federal agencies from allowing such compost to be acceptable for organic production. Their primary argument is that NOP 5016 was put into effect without first undergoing proper public hearing procedures.

The case

The suit was filed in April 2015 by plaintiffs Center for Environmental Health (CEH), of Oakland, Calif., Center for Food Safety (CFS), of San Francisco and Beyond Pesticides, of Washington, D.C. against defendants USDA, USDA’s Agricultural Marketing Service and USDA’s National Organic Program.
The plaintiffs say USDA improperly issued NOP 5016, which they call the “Contaminated Compost Decision,” as a guidance document without providing public notice or comment opportunities. They say that since the document changed the rules for the use of compost in organic production, it constitutes a legislative rule, not simply guidance, and is subject to the federal government’s Administrative Procedure Act (APA), which mandates public notice and comment.
NOP regulations support the use of composted plant and animal materials to maintain or improve soil organic matter. The regulations specify that organic producers must “manage plant and animal materials to maintain or improve soil organic matter content in a manner that does not contribute to the contamination of crops, soil or water by plant nutrients, pathogenic organisms, heavy metals or residues of prohibited substances.”
The organic standards prohibit the use of synthetic chemicals, but allow for exceptions that are specified on a “National List” of allowed and prohibited substances. To be added to the National List, a synthetic substance must get agency approval after a review process to determine human or environmental harm and whether wholly natural substitutes are available.
Recognizing that trace amounts of synthetic chemicals may be present on farms, NOP regulations contain exceptions for unavoidable residual environmental contamination (UREC) in organic products. The exception, plaintiffs say, is intended for agricultural inputs generated on farms where farmers are unable to control contamination already in the soil and air and should not apply to compost made from grass clipping contaminated with synthetic pesticides.


In 2009, the California Department of Food Control and Agriculture (CDFA) found residue of NOP-prohibited pesticide bifenthrin in samples of three different commercial green waste compost products made by Grover Environmental Products, Feather River Organics and Nortech Waste LLC. Bifenthrin is used to control fire ants and other inspects and is applied to lawns through a variety of brand name products. CDFA advised organic producers and accredited certifying agents that the three affected composts were banned for use in organic crop production.
NOP said it then addressed the issue nationally by sending a draft policy on pesticide residues in compost to accredited organic certifying agents and received six comments, all of which “urged the NOP to take an alternative approach” to the CDFA decision.
In December 2009 and February 2010, CCOF – one of the parties now seeking amicus status in the lawsuit – tested soil and crop samples where affected compost had been applied at the rate of five to six tons per acre and did not detect bifenthrin samples above a detection limit 0.01 parts per million. Following that, NOP issued NOP 5016, which applied the “unavoidable residual contamination” exception to compost.
“The NOP standards are process based and do not mandate zero tolerance for synthetic pesticide residues in inputs, such as compost,” the guidance document says. “Compost that is produced from the approved feedstocks…is acceptable for use in organic production provided that any residual pesticide levels do not contribute to the contamination of crops, soil or water.”
Plaintiffs in the lawsuit, which was filed five years later, said, “For the first time, the Contaminated-Compost decision allowed organic producers to use contaminated materials such as commercial food waste and lawn trimmings treated with synthetic pesticides as compost for their crops as long as the producers do not either directly apply synthetic pesticides or contribute to the contamination of crops, soil or water…The Contaminated-Compost decision did not define or explain how it would measure the contamination of crops, soil or water.”
The plaintiffs argue that bifenthrin, for example, is not an unavoidable environmental contaminant as allowed by NOP rules prior to NOP 5106, but rather a substance intentionally applied to grass that becomes a feedstock for compost.
“The Contaminated-Compost decision changed the legal status of bifenthrin and other pesticides that are prohibited for use in organic production but are now being allowed in green waste used in organic production,” the suit says. “Prior to the Contaminated-Compost decision, the National Organic Program banned producers from using contaminated compost materials in organic agriculture. But the Contaminated Compost decision renounced that ban, tolerating the use of contaminated compost materials and thus undermining organic standards.”

Dismissal denied

In September, the court denied USDA’s motion to dismiss the suit. The motion to dismiss was based on USDA’s insistence that public notice was not necessary before issuance of a “guidance document.” The plaintiffs argue that because NOP 5016 creates a change of policy, rather than just guidance.
“Defendants have not shown that as a matter of law NOP 5016 is merely a guidance policy for which no notice and comment is required,” the court ruled.
New parties
With just two weeks remaining before a scheduled hearing on summary judgment in the case, the plaintiffs objected to Western Growers’ last minute request to support USDA and NOP under amicus status. The court, however, granted amicus status early this month, said it would also consider last minute amicus status requested by OTA and CCOF. Corley also rescheduled the hearing on summary judgement – motions filed by each side to rule in their favor without further moving forward in the case – from May 12 to May 26.
Western Growers said its members – farmers in California, Arizona and Colorado – grow, pack and ship almost half of all U.S. produce, and produce a third of all fresh organic produce in the U.S. Yet, the association explained its last minute interest in the case because it became aware of the case and its implications for certified organic farmers in March.”
Western Farmers, however, said it wants to appear only to explain the implications should the court rule in favor of the plaintiffs.
Those implications, Giclas wrote, could include residue testing of all compost before it could be used for organic production.
“To improve soil organic matter content in a manner that does not contribute to contamination of soil, crops or water resources, our members use significant amounts of manufactured compost that is generally obtained from an OMRI (Organic Materials Review Institute) recognized commercial source,” Giclas wrote. “We are not aware of available substitutes for prepared compost for certified organic operations. The unavailability of compost unless proved to be analytically free of all known substances that are not allowed by the federal organic regulations will have a dramatic and negative impact on the soil on organic farms. It will likely impact adversely the soil fertility, soil tilth, biological activity and crop nutrients.”

Thursday, May 5, 2016

Seattle food waste rule violates privacy, court rules

By Ken McEntee
Composting News

Snooping through residents’ garbage to find violations of Seattle’s food waste disposal ban violates residents’ rights to privacy, as protected by the Washington state constitution, a King County Superior Court judge ruled this month. Judge Beth M. Andrus granted summary judgement to plaintiffs in Bonesteel v. City of Seattle and issued an injunction against enforcement of unconstitutional portions of the city’s food waste disposal ban.

The ruling does not mean that Seattle’s ban on the disposal food waste and compostable paper in residential garbage itself is unlawful, and the plaintiffs did not challenge the city’s right to ban food waste from trash collections.

“The ruling that the city’s ban on recyclables and food waste in the trash is lawful helps Seattle meet its recycling goals,” said Andy Ryan, media relations coordinator for Seattle Public Utilities (SPU). “The ruling requires that we ensure the way trash is collected maintains our customers’ privacy. We will study the ruling and determine what changes we need to make in the program and the city ordinance.”
Bonesteel v. City of Seattle is a civil rights lawsuit filed in July 2015 on behalf of a number of Seattle residents who say their rights were violated by the inspection provisions of the food waste ordinance.

“Today’s ruling is a victory for common sense and constitutional rights,” said Ethan Blevins, staff attorney for the Pacific Legal Foundation (PLF), a non-profit public interest legal organization that represented the residents at no charge. “A clear message has been sent to Seattle public officials: Recycling and other environmental initiatives can’t be pursued in a way that treats people’s freedoms as disposable. Seattle can’t place its composting goals over the privacy rights of its residents. By authorizing garbage collectors to pry through people’s garbage without a warrant, the city has promoted a policy of massive and persistent snooping. That’s not just wrong as a matter of policy, as the judge has correctly ruled, it is wrong as a matter of law.”

At issue was Seattle Ordinance No. 124582, which prohibits residents from throwing food and compostable paper in the trash. The food waste ban requires garbage collectors to monitor the contents of garbage cans through visual inspection and to report residents to Seattle Public Utilities when significant amounts of a can’s contents (more than 10 percent) are made up of recyclables or food waste.  The law applies to single-family homes, apartments and commercial properties.

As invoked by the lawsuit, PLF said, the ordinance violates the right to privacy.  Article I, section 7, of the Washington Constitution provides that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.”  The provision offers more expansive protection than the Fourth Amendment to the U.S. Constitution. Washington courts “jealously guard” the right to privacy, holding that people have a reasonable expectation that the contents of their garbage cans will remain private, and that the government may not search rubbish bins without a warrant, PLF said.

SPU inspectors or contractors inspected residents’ trash containers to visually determine whether they exceeded 10 percent food waste. If they did, a sticker indicating the violation was placed on the container and a $1 fine was levied. Seattle contracts with Waste Management and Recology/CleanScapes to collect trash. Compostables are collected by Lenz Enterprises and PacificClean of Washington.

According to the suit, collectors tagged about 500 trash cans per week when the program started in early 2015. The rate of tagged cans dropped to about 40 per week by late 2015.

Ryan said the city is “pleased that the court’s ruling recognizes the city's ability to regulate what goes into trash cans to address conservation and safety needs. Plain view monitoring for dangerous items is vital to protecting worker and public safety. This was the most important issue at stake in this case.”

Also see Seattle sued for trashing privacy rights.

Wednesday, October 21, 2015

New federal water rule blocked by court

 By Ken McEntee

As many observers expected, the Obama administration’s new “Clean Water Rule” that redefines the “Waters of the United States” (WOTUS) has been stayed in federal court. This month, the Sixth U.S. Circuit Court of Appeals issued a nationwide stay of the new rule, blocking its implementation while numerous court challenges across the country are sorted out and tried.

“The Sixth Circuit stayed the rule across the country to maintain the status quo while it determines if the court has jurisdiction to hear the challenge on its merits or whether the federal district courts should hear the cases first,” according to the Pacific Legal Foundation (PLF), which sued the administration on behalf of a group of landowners, farmers and cattlemen to invalidate WOTUS.

WOTUS, which was developed by the U.S. EPA and the Army Corps of Engineers, was issued on June 29 and immediately was challenged in 10 different suits involving more than 30 states and scores of private parties.

The stay was hardly a surprise. In July, Jay Lehr, science director for the Heartland Institute, a Chicago-based research organization, told Composting News that a barrage of lawsuits, injunctions and acts of Congress was likely to block the new regulations from going into effect.

“I think this will be in the courts for years,” said Lehr, the nation’s first Ph.D. in groundwater hydrology who was among the first advocates for the creation of the EPA almost 50 years ago. “With all of the various filers from multiple states and organizations, I can’t imagine that they will have trouble finding judges at the right levels who will place injunctions against the carrying out of this law.”

H. Reed Hopper, principal attorney for PLF, said that whichever court ultimately decides the fate of the new rule, the Sixth Circuit’s stay decision is noteworthy in its conclusion that the rule appears to be invalid on its face because:

  • It is arguably inconsistent with Supreme Court decisions limiting the scope of the Clean Water Act, including PLF’s 2006 case of Rapanos v. United States;
  • It was apparently issued without adequate public review and comment; and
  • It may undermine the Clean Water Act’s goal of recognizing the primary role of the states in protecting local land and water use.

“As PLF argues in our challenge to the sweeping rule, the Obama administration’s new rule represents an unprecedented expansion of federal power that could bring virtually all the nation’s water and much of the land under command-and-control direction from Washington, D.C.,” Hopper said. “Its vast expansion of the Clean Water Act jurisdiction violates both the terms of the act and the constitution’s limits on federal authority. Under its vague and limitless terms, the only waters that are clearly not subject to federal regulatory power are a few that are expressly excluded, including artificial reflective pools, ornamental waters and some ground water.”

As reported in the August issue of Composting News, Robert LaGasse, executive director of the Mulch and Soil Council, expressed reservations about WOTUS, saying that the rule “presents a big problem for anybody who wants to make changes to their property.”

"The rules are so vague that you might get one answer from one regulator and a completely different answer from another regulator,” LaGasse said.

The U.S. Composting Council, on the other hand, isn’t concerned about the new rule, according to Cary Oshins, director of education for the organization.

“I don’t think this will make much of a difference for compost sites,” Oshins said.

Opponents like Hopper, however, said the rule, if enacted, would impact everybody.

“Property owners around the country will be faced with the prospect of being micro-managed by federal bureaucrats,” Hopper said. “This turns our federal system on its head. Under our constitutional framework, the states and localities are charged with the primary role in land use regulation and local water-quality protection. The new rule usurps the authority and responsibility of the states, and empowers bureaucrats in Washington D.C. to act as zoning and land use czars for the entire nation.”

Plastic company cannot claim biodegradability, FTC rules

By Ken McEntee

The Federal Trade Commission (FTC) has ruled biodegradability claims by a plastics additive manufacturer to be deceptive. The attorney for Painesville, Ohio-based ECM BioFilms said ECM will appeal the decision to the U.S. Court of Appeals for the Sixth Circuit.

“It is a disastrous decision that should be held as unconstitutional under the First Amendment,” said Jonathan Emord, of Washington D.C.-based Emord & Associates. “It is an egregious instance of abuse of agency discretion.”

Emord said FTC’s order against ECM reversed the decision of its own administrative law judge and contradicted the testimony of its own scientific experts.”

In January 2015, FTC’s Chief Administrative Law Judge D. Michael Chappell ruled that ECM’s claim that its plastics additive, ECM MasterBatch Pellets, causes plastics to biodegrade was supported by competent and reliable scientific evidence and rejected FTC’s challenge to that claim. Chappell also rejected FTC’s argument that the term “biodegradable” implies that a product will completely biodegrade into elements found in nature within one year after customary disposal — a position articulated in the FTC’s Green Guides industry guidance.

Along with reversing the ALJ decision, FTC changed the one-year rule in its Green Guides to says that products must be proven to break down into natural elements within five years of disposal to claim biodegradability.

ECM advertised the additive causes plastics to be biodegradable, that plastics treated with MasterBatch Pellets are “biodegradable in a landfill” and that plastic products made with ECM additives “biodegrade in nine months to five years.”

Emord said the latter claim had been since withdrawn.

FTC in October 2013, filed an administrative complaint alleging that ECM’s claims were false or unsubstantiated. After about three months of hearings, the commission officially issued its opinion and final order against ECM on October 19. The order basically tells ECM to stop making claims of biodegradability.

“In its opinion, written by Commissioner Terrell McSweeny, the commission affirmed (Chappell’s) initial decision that ECM made deceptive claims that plastics treated with ECM’s additive would completely biodegrade in a landfill within nine months to five years, and that scientific tests supported this claim,” FTC announced. “The commission also upheld the ALJ’s finding that ECM encouraged its customers – companies that manufacture plastics – to pass on the deceptive claims to their customers and end-users.”

FTC said that based on its own examination of the evidence, it also found that ECM made implied claims that plastic products treated with ECM’s additive will biodegrade in a reasonably short period of time, or within five years, and that these claims were false and unsubstantiated. This reversed the ALJ’s finding that the commission did not prove that ECM’s environmental marketing conveyed such implied claims. In its ruling FTC considered ECM’s customers’ inability to “readily judge for themselves the truth or falsity of ECM’s claims.”

The FTC vote to approve the Opinion and Final Order was 4-0, with Commissioner Maureen Ohlhausen dissenting in part and issuing a separate statement. In her statement, Ohlhausen agreed with the ALJ that FTC failed to prove that ECM’s unqualified “biodegradable” claim caused reasonable consumers to believe that treated products would biodegrade in a reasonably short time period.

“This is a momentous decision in the sense that is will transform the industry,” Emord told Composting News. “It promulgates a new rule amending the FTC Green Guide to say that plastic has to biodegrade into elements in nature within five years of customary disposal or you can’t call it biodegradable. The problem is that is not scientific. First of all, materials don’t ordinarily break down into elements - they break down into compounds. Any substance from a piece of wood to banana to a piece of paper breaks into compounds, not elements, which means that there is nothing that can qualify for the term ‘biodegradable.’”

Emord said the five-year rule for a substance breaking down into elements is “nutty.”

“Intrinsically biodegradable substances cannot be predicted to biodegrade within any set time period,” he said. “It depends on ambient environmental conditions and the relative presence of biota. Under the new FTC rule, a product that completely biodegrades five years and one minute after disposal is not lawfully labeled ‘biodegradable’ but one that completely biodegrades just one minute before is.”

Emord said more than 20 gas evolution tests done by ECM and companies that purchased the additive confirmed intrinsic biodegradability.

“Those are generally accepted tests and FTC rejected those tests and articulated what it would accept as biodegradable in broad terms,” Emord said. “There is no testing methodology to prove what they will accept. Nothing is going to completely break down, even if it is intrinsically biodegradable, within five years by any reliable measure.”

Emord said Mort Barlaz, of North Carolina State University, “who is recognized as one of, if not the top expert in the world on biodegradation of plastics in the world,” testified to the commission that the ECM additive made plastics intrinsically biodegradable.

“The method of testing was even affirmed as valid by FTC's own testifying expert, Dr. Thabet Tolaymat, a representative of the U.S. EPA,” Emord said. The judge agreed, in very tedious detail, that we showed proof of biodegradability, and that FTC did not prove otherwise. Without a reasoned explanation for departure from the science, the FTC adopted instead an arbitrary five-year cut off as the standard for allowing biodegradable claims. This is a very strange process where the prosecutor is also the judge. The commission simply rejected all of the evidence that convinced the ALJ of our case, and didn’t have to explain why.”

According to ECM, plastics treated with its additive has been tested and proved as biodegradable and safe for the environment by using the following ASTM test methods D5209, D5338 and 5511.

A complete history of the case against ECM can be found in FTC Docket No. 9358, at