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.”
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.”
By Ken McEntee
Composting News
For the third time in about three years, the U.S. Composting Council has terminated its executive director. The council’s board of directors, on July 29, announced that it was “bidding farewell” to Lori Scozzafava, who had been hired as executive director 14 months earlier, in May 2013. The decision to let Scozzafava go actually had been made sometime during the previous week, sources said.
Lorrie Loder, president of the USCC, indicated that the board could hire an association management company instead of an individual executive director to manage the organization.
Loder, senior director of technical services at Synagro, said the board has been disappointed with the Washington lobbying efforts of past executive directors. She said the board is seeking a leader who “has connections in order to help facilitate some of the missions of the industry and our membership.”
Asked whether that is an area in which previous executive directors have fallen short, Loder said, “There were various reasons, but that is probably quite a bit of it. We moved our office to where we were close to Washington D.C. in the hope that we would have more legs on the ground on Capitol Hill.”
Asked whether there are any specific issues that require a better lobbying effort, Loder said, “Yes. It was the persistent herbicide issue and some of those yard waste bans and really the movement to recover organics from the waste stream. And then building healthy soils by putting compost back instead of shoving all of this great stuff in a landfill.”
The July 29 press release, in which Scozzafava’s departure was announced, was headlined, “USCC undertakes restructuring to prepare for surge of organics composting efforts.” Scozzafava’s termination was announced in the manner of an afterthought in the fifth paragraph of the press release: “With the restructuring process, the USCC board of directors bids farewell to Lori Scozzafava, who is moving on to other career opportunities, as executive director. The transition team is integrating the executive director search into the restructuring process.”
According to the announcement, “In a move set to position the U.S. Composting Council to continue its quarter-century as the foremost authority on composting, the USCC's board of directors announced a restructuring effort to prepare the organization for rapid growth. The vigorous restructuring process is being led by a transition team developing growth plans that are targeted toward sustainable diversified growth in a dynamic, growing organics industry.”
In just the past year, USCC said, the number of states taking legislative and administrative actions, such as food scraps diversion, requirements for compost in public and private projects, has multiplied.
"This will require states to quickly grow their public and private organics composting infrastructure, and the USCC is the best resource to help guide that," Loder said in the announcement.
As a result, USCC said, the organization is shifting more and more resources towards development of educational programs and outreach to membership.
Scozzafava's departure follows the April 2013 termination of Michael Virga, who had been in the position of executive director for 19 months, starting in September 2011. Before Virga, Stu Buckner served in the role for about nine years, from 2002 until the summer of 2011. Buckner had been under contract as executive director through the end of 2011. Earlier that year, the board told Buckner that it planned to conduct a search for an executive director, but invited him to re-apply for his job.
When Virga was hired, Frank Franciosi, then president of USCC, said the appointment was in line with USCC’s aim to heighten its role as an advocate for the industry to impact policy areas such as agriculture, energy and climate change. Franciosi said USCC membership had been surveyed two years earlier about the direction they wanted the organization to take.
The survey suggested that members wanted a stronger effort to lobby for industry issues and a stronger market development effort, he said.
Shortly after Virga took the position, the council moved its headquarters from New York to Bethesda, Md.
In April 2013, the board announced Virga’s departure and the hiring of Scozzafava, who had previously been deputy director of the Solid Waste Association of North America (SWANA).
The board, at the time, declined to confirm whether Virga was fired or quit. Loder described the parting as “a mutual agreement.” Loder, at that time, described Scozzafava as “a perfect fit” for the council, citing her 25 years of experience in the solid waste management industry.
Now, as the council looks for a new leader for the fourth time since 2011, Loder said she has no concerns about the stability of the organization.
“Not at all,” she said. “The organization is very stable financially. We’ve got a strong membership and a strong involvement by our board. There are no concerns about that. Can we find a one size fits all executive director? No. And that’s what this succession planning committee is going to bring to the board.”
When it was suggested that from a member’s standpoint, USCC members can’t be blamed for being uneasy about the volatility in the leadership position, Loder replied, “I have actually spoken a couple members and one of them said to me that Abe Lincoln went through a few people, too, to find the right person,” a reference to Lincoln’s appointment of Ulysses S. Grant as commander of the Union armies.
The succession planning committee, she said, will make a recommendation to the board regarding a replacement for Scozzafava. The committee, she said, is made of past board presidents and several other board members. No timetable has been set for a decision, Loder said.
“Whether it will be a position or we look to go a different route with a management company, it’s really up to the succession planning committee,” she said. “The sooner the better of course, but we want to make sure this is the change we make to take us into the future for a longer term and not have to make a change again for a while. I am willing to let them take their time to make the right recommendation.”
The ideal leader, she said, would be “somebody that has knowledge of the composting industry, knowledge of the issues and has connections in order to help facilitate some of the missions of the industry and our membership.”
Established in 1990, the USCC has nearly 1,000 members in the U.S., Canada, and other countries. In its most recent tax filing, for the fiscal year ending March 31, 2013, the council reported revenue of just more than $1 million and expenses of about $1.16 million, with assets totaling $788,000. During that year, Virga earned about $155,000.
The council’s revenue was derived from several sources, as follows:
Conference Revenue $408,000
Membership Dues $284,000
Seal of Testing Assurance $136,500
Training $62,700
Publication sales 11,100
Other $6,800
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