Several dairies have received subpoenas in a federal criminal investigation into discharges of manure-contaminated waste water into tributaries of the Santa Ana River, dairy industry officials and the Santa Ana Regional Water Control Board said Tuesday.

“The subpoenas came as a total surprise,” said David Albers, a lawyer for the Ontario-based Milk Producers Council. Albers said the U.S. Attorney's Office, acting on behalf of the U.S. Environmental Protection Agency, has demanded 10 years worth of documents related to discharge permits, pond construction and other water-related issues.

However, Albers said it appears that the EPA investigation is concentrating on dairies that had wastewater discharges during the El Nino winter storms of 1997-1998.

Nathan DeBoom, the Milk Producers Council's environmental specialist, said the council knows of three members who have been contacted. However, Bob Feenstra, general manager of the Milk Producers Council, said he understands that as many as 11 dairymen may eventually be subpoenaed.

Albers said all documents will be reviewed by a federal grand jury in Orange County.

Kurt Berchtold, assistant executive director of the Santa Ana Regional Water Quality Control Board, said one of his staff members who inspects dairies also was called to testify today before the Grand Jury.

Assistant U.S. Attorney Richard Cutler confirmed that his name is on subpoenas. But Cutler and Mike Burnett, the assistant special agent in charge of the EPA's criminal investigation division in the Los Angeles area office, said policy prevents them from confirming or denying an investigation.

Cutler said if there were an investigation into dairies, the probe would focus on violations of the federal Clean Water Act, and any criminal charges would be subject to a five year statute of limitations. In such a case, he said, intentional violations would be prosecuted as felonies and instances of negligence would be prosecuted as misdemeanors. Dairy producers have been sentenced to jail time under the Clean Water Act for both felonies and misdemeanors.

Feenstra sharply criticized the EPA's actions. “There was no effort by the EPA enforcement officers or their lawyers to contact the Milk Producers Council about their concerns,” he said.
Feenstra also said that unlike the Santa Ana Regional Water Control Board, the EPA “has no history of the area” and does not appreciate the increase in storm runoff that has flowed onto dairies as a result of nearby development. He also said that since the last El Nino winter, Riverside County embarked on major flood control improvements.

The Santa Ana Regional Quality Control Board enforces regulations to protect the Santa Ana River watershed, but the EPA has an overlapping responsibility.

Nonetheless, the EPA's action regarding the dairies is unusual, Berchtold said. “We don't very often see federal investigators or prosecutors taking action on facilities we regulate,” he said. But he also said his agency doesn't mind having some help, as the board has only six inspectors to monitor 300 dairies.

The Press-Enterprise (Riverside, Calif.)