Kingsley man wins EPA court case

(Sentinel photo by Marcene Heeren) Lowell and Judy Vos fly the United States and Iowa flags at their farm west of Kingsley. The couple challenged penalties levied by the Environmental Protection Agency, a move that led to a federal court battle last year. The judge dismissed the suit this summer, citing a lack of evidence and saying the EPA's position lacked fairness. [Click to enlarge]

Lowell Vos believes in playing fair.

The rural Kingsley man also believes in standing up for his rights, even when the odds are against him.

Vos waged a David versus Goliath battle last year when he refused to pay a fine levied on him by Environmental Protection Agency (EPA).

His problems began in January of 2007. That's when he received notice that manure from his cattle yard was supposedly running off into Elliot Creek, a charge he knew was unfounded.

"I told my wife 'This isn't right. I did everything right,'" he explained.

He was one of four Iowa cattle producers who received notices from the EPA they were being fined for not having obtained a National Pollution Discharge Elimination System (NPDES) permit.

EPA officials claimed the men had not installed runoff controls by the what EPA claimed was the end date for the Iowa Plan, a five-year Iowa Department of Natural Resources (IDNR) amnesty program.

EPA intended to fine each man $68,000.

The others eventually paid the fines, but Vos wouldn't budge -- even when EPA lowered the fine to $41,000.

IDNR officials had never taken water samples of the creek to support their charges against Vos.

Instead, they relied on a computer model and the fact that there were "flowpaths" from the feedlot that drained into an adjacent cornfield.

Judy Vos said she doesn't always agree with her husband on issues but she was 100 percent behind him in fighting the EPA charge.

"Our feedlot was the cleanest feedlot I've ever seen," she explained.

When Vos steadfastly refused to pay the fine, EPA filed suit in federal court. They upped the penalty to $157,000, the maximum amount allowed by law.

EPA then contracted with a computer modeling expert to conduct more computer modeling with programs that are normally used to design soil and water conservation and runoff control systems. EPA used models generated by the planning programs in an attempt to show that discharges had occurred.

Vos challenged EPA's approach, arguing there had been no discharges and that samples or visual evidence was needed.

Responding to charges that Vos had not complied with the Iowa Plan, Vos said he had followed the rules.

The engineering plans for Vos' feedlot were completed and a construction permit had been filed in December 2005. Vos applied for a NPDES permit that same month, but he did not receive the permit from the IDNR until a year later in December 2006.

Vos maintained that delays in the construction of the facility were beyond his control and that he was covered by an amnesty plan granted by the IDNR and approved by EPA.

A six-day hearing was held in Des Moines in September 2008. EPA's computer modeling expert testified how she used data, including general rainfall, to show that Vos' feedlot discharged manure into the creek on 45 specific dates from 2002 through 2006.

Vos' expert witness challenged the modeling evidence, showing critical mistakes in EPA's computer model. Under questioning by Vos' attorney, Eldon McAfee, EPA's witness admitted there were flaws in her report.

Witnesses testified that Vos and his son, Mike, regularly scraped the yards to reduce the chance of runoff. Testimony also showed that Vos had attempted to meet the Iowa Plan deadline.

After the six-day hearing EPA withdrew the first count in its claim -- unauthorized discharges. EPA continued with the second claim, contending that Vos had failed to obtain the NPDES permit.

On June 8 Vos learned U.S. Administrative Law Judge William B. Moran, had dismissed the case.

Moran concluded EPA had not established that Vos discharged pollutants into the stream.

Moran wrote that Vos maintained a clean feedlot, the lot was not adjacent to Elliot Creek, and the berms present had some effect in reducing flow from the feedlot.

Because EPA had not presented evidence that Vos discharged waste into the creek, the second count also was dismissed.

In his ruling, Moran said the EPA's position on the amnesty plan lacked fairness.

"This is because the agency attempted to have it both ways, being fully aware of the plan, yet silent about any reservations it may have entertained about it, and all the while still holding the option to play its hand by bringing a complaint against an Iowa feedlot owner participating in it," Moran wrote.

EPA officials opted to not appeal Moran's decision, so the matter is closed.

Vos escaped the $157,000 fine but not the attorney fees. Now he has filed suit in an attempt to recoup the money he spent to defend himself. If he loses that fight, he still has no regrets.

"What's right is right," he explained. "The DNR and the EPA, they're not going to go away. But they have to play fair with their rules and not intimidate people."