My good friend Rep. Shelley Moore Capito, R-W.Va., always gets a lot of mileage at the West Virginia Coal Association Symposium when she reminds the industry how her father, former Gov. Arch Moore,  used to call the Gazette “The Morning Sick Call.”

In today’s version of the story, Rep. Capito was sharing with the coal industry an op-ed column from today’s Charleston Daily Mail that detailed how the U.S. Environmental Protection Agency was wrongly cracking down on dairy farmers.

But after reading the column and looking into the matter a little bit, I am left wondering if perhaps Rep. Capito needs to seek out more accurate sources of information than the Daily Mail’s editorial page …

The commentary in question was written by Thomas Sowell, a syndicated columnist who is a senior fellow at the Hoover Institution at Stanford University.  The Daily Mail headlined it, “The EPA will tackle the threat of spilt milk,” and here’s a link to the full text of the piece.

Here’s what it says:

Despite the old saying, “Don’t cry over spilled milk,” the Environmental Protection Agency is doing just that.

We all understand why the Environmental Protection Agency was given the power to issue regulations to guard against oil spills, such as that of the Exxon Valdez in Alaska or the more recent BP oil spill in the Gulf of Mexico. But not everyone understands that any power given to any bureaucracy for any purpose can be stretched far beyond that purpose.

In a classic example of this process, the EPA has decided that, since milk contains oil, it has the authority to force farmers to comply with new regulations to file “emergency management” plans to show how they will cope with spilled milk, how farmers will train “first responders” and build “containment facilities” if there is a flood of spilled milk.

Sowell opines:

Since there is no free lunch, all of this is going to cost the farmers both money and time that could be going into farming– and is likely to end up costing consumers higher prices for farm products.

It is going to cost the taxpayers money as well, since the EPA is going to have to hire people to inspect farms, inspect farmers’ reports and prosecute farmers who don’t jump through all the right hoops in the right order. All of this will be “creating jobs,” even if the tax money removed from the private sector correspondingly reduces the jobs that can be created there.

Does anyone seriously believe that any farmer is going to spill enough milk to compare with the Exxon Valdez oil spill or the BP oil spill?

Do you envision people fleeing their homes, as a flood of milk comes pouring down the mountainside, threatening to wipe out the village below?

It doesn’t matter. Once the words are in the law, it makes no difference what the realities are. The bureaucracy has every incentive to stretch the meaning of those words, in order to expand its empire.

OK, now if ever there was a friendly audience for this, it’s the folks who gathered for the Coal Association symposium.  They all got a good laugh when Rep. Capito summarized the commentary and told them:

Now, you all can feel the pain of the dairy industry.

But there’s just one problem … Sowell got the facts all wrong. What EPA is really doing is working to finalize a rule that would exempt milk producers from having to file spill prevention and control plans.

As EPA deputy press secretary Betsaida Alcantara explained to me this morning:

EPA has already proposed to exclude milk storage tanks from the spill prevention regulatory program. Moreover, EPA already has stayed any compliance requirements for milk storage tanks pending the agency’s final action on the proposed permanent exclusion. It is widely known that EPA will take final action on the proposed permanent exclusion this spring.

Don’t want to take an EPA spokesperson’s word for it?

OK, here’s the January 2009 Federal Register notice in which EPA announced its proposal.

This whole thing came up two years earlier, when EPA was working on some amendments to the rules that implement the federal oil spill prevention law. Various types of farms were being required to submit plans for preventing and responding to any spills from large oil tanks that they used at their operations.

And yes, it seems that milk contains animal fats that fit a legal definition of “oil” that could fall within the EPA’s regulations. But when the industry raised this concern, and argued that milk shouldn’t be considered in this context and that dairies and milk processors shouldn’t have to submit spill prevention plans for their milk storage tanks and piping, EPA agreed in January 2009 proposed the exemption. Apparently, milk producers are already required to comply with tank construction and protection guidelines set up by another law, the Pasteurized Milk Ordinance. EPA agreed with industry that as long as companies comply with that, it’s sufficient.

One bit of a problem, though, was that the proposal was published on Jan. 15, 2009, less than a week before George W. Bush left the White House and the Obama administration took over. As most new presidents do, Obama halted all rulemaking so his own appointees could look things over and decide which direction they wanted to go. Elections do have consequences, after all.

And so far, this particular ruled hasn’t been finalized. But EPA officials have said they’re going to do so, they’ve delayed any need for milk producers to submit any plans until the exemption is finalized, and the industry seems fairly satisfied with the whole situation.

So where did Sowell’s commentary come from? I don’t know. But if you do a Google News search for something like “EPA and Milk” you can see that this story is circulating pretty widely. It’s not surprising it got favorable treatment from The Wall Street Journal, which headlined its piece “Land of Milk and Regulation,” and said:

President Obama says he wants to purge regulations that are “just plain dumb,” like his humorous State of the Union bit about salmon. So perhaps he should review a new rule that is supposed to prevent oil spills akin to the Gulf Coast disaster—at the nation’s dairy farms.

The Jan. 27, 2011, Journal piece continued:

Two weeks ago, the Environmental Protection Agency finalized a rule that subjects dairy producers to the Spill Prevention, Control and Countermeasure program, which was created in 1970 to prevent oil discharges in navigable waters or near shorelines.

Naturally, it usually applies to oil and natural gas outfits. But the EPA has discovered that milk contains “a percentage of animal fat, which is a non-petroleum oil,” as the agency put it in the Federal Register.

In other words, the EPA thinks the next blowout may happen in rural Vermont or Wisconsin. Other dangerous pollution risks that somehow haven’t made it onto the EPA docket include leaks from maple sugar taps and the vapors at Badger State breweries.

The EPA rule requires farms—as well as places that make cheese, butter, yogurt, ice cream and the like—to prepare and implement an emergency management plan in the event of a milk catastrophe. Among dozens of requirements, farmers must train first responders in cleanup protocol and build “containment facilities” such as dikes or berms to mitigate offshore dairy slicks.

But the EPA did no such thing. The agency does have a rule that went into effect on Jan. 14, 2011, regarding the Spill Prevention, Control and Countermeasure program. But what that rule did was delay the potential compliance date for milk producers to give EPA officials enough time to finalize the exemption that was proposed at industry’s request. As the Federal Register notice said:

Today’s action delays the compliance date by which facilities must address milk and milk product containers, associated piping and appurtenances that may be impacted by a final rule exempting these containers.

Don’t believe me? Don’t believe EPA?

Fair enough. Check in with the National Milk Producers Federation, an industry trade association.  Back in August 2010, that organization thanked EPA for its plans to exempt milk producers from the rules.

Just to make sure, I checked in with a fellow named Jamie Jonker, who is vice president for science and regulatory affairs with the milk producers’ group.  He indicated no problems with EPA’s plans thus far, and said he couldn’t figure out where the Wall Street Journal got its information:

I think there’s just a little bit of … well, I’ll leave it to the Wall Street Journal for how they got to that. Maybe it was a little bit of something in the editing process.