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dhlcLAWMAKERS DROP PROVISION THAT MAY HAVE THREATENED EPA CAFO PACT
7 November 2005
Superfund Report
Vol. 19, No. 23
Copyright (c) 2005 Inside Washington Publishers. All Rights Reserved. Also available in print and online as part of www.InsideEPA.com.
Lawmakers have rejected a controversial amendment to the agriculture spending bill, which EPA alleged would have jeopardized a pending enforcement agreement with animal feeding operations by exempting the industry from cleanup and reporting requirements under Superfund law.
A conference committee on the bill decided Oct. 26 not to include the amendment sponsored by Sen. Larry Craig (R-ID) after it prompted concerns from EPA, Democrats and environmental groups.
Craig's amendment said EPA should not classify manure as a hazardous substance under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), also known as the Superfund law. The Senate portion of the conference committee passed the amendment Oct. 25, but House members decided during a closed-door meeting the following day not to include it. Relevant documents are available on InsideEPA.com. See page 2 for details.
The amendment's failure appears to clear the way for EPA to finalize the enforcement agreement, which would allow thousands of participating companies temporary exemptions from clean air and Superfund requirements.
A House Appropriations Committee spokesman says lawmakers dropped the amendment out of fear that senators would raise a procedural objection on the floor, since Craig offered the language in conference committee when it was not in the original House and Senate bills.
"It would have created a procedural problem in the Senate, which would have jeopardized the whole bill," the source says.
The amendment would have exempted large animal feedlots from liability for Superfund cleanups, and also from reporting emissions of ammonia and hydrogen sulfide under CERCLA and the Emergency Planning & Community Right-to-Know Act (EPCRA).
Craig told Inside Washington Publishers in an Oct. 25 interview that the language "is consistent with current law," because some allege that Superfund was never intended to apply to agriculture. "Instead of allowing the trial bar to create new law . . . I'm saying no. Let's stay with the old law," he said.
Craig said he was able to offer the language because he had gotten "no push-back."
But EPA raised alarms that the provision would interfere with a controversial enforcement pact known as the Air Compliance Agreement (ACA) that would allow participating companies many of these same environmental exemptions. An analysis of the bill by EPA's congressional affairs office, which was obtained by Inside Washington Publishers, raises concerns that the language would remove much of the incentive for companies to participate in that agreement.
"A primary motivation for participation in the ACA is the covenant not to sue for CERCLA and EPCRA violations. If there is no threat of liability, there is reduced incentive to participate," the EPA analysis says.
An EPA spokesman says the agency provided the analysis at the request of Senate committee staff, and says the agency fulfills these requests as a routine matter. The analysis is not considered an official agency position.
The enforcement agreement would allow participating companies temporary exemptions from CERCLA and EPCRA reporting requirements, and also exemptions from Clean Air Act enforcement. In exchange, participants would fund a comprehensive air monitoring study that would assess emissions from agriculture as a guide to future enforcement.
Thousands of participants signed up for the agreement last summer, but it will not be final until EPA obtains approval from its Environmental Appeals Board. Passage of Craig's language "may prompt requests by many to withdraw" from the agreement, EPA says.
The agency adds that the language "could be viewed to favor those who did not sign up for the ACA, while placing at a disadvantage those who 'stepped up to the plate' to voluntarily pay for the costs of the air emissions study."
An industry source says it "would make sense" that the language might reduce incentives to participate in the agreement because many small companies signed on for its protection against Superfund enforcement. Only large facilities are likely to be affected by the Clean Air Act exemptions because the thresholds for air violations are fairly high.
Environmentalists oppose EPA's air enforcement agreement, but also raise concerns that the Craig language would block citizen suits against agriculture companies for alleged reporting violations. The language could also override existing lawsuits against animal feedlot companies based on Superfund law, including a complaint that Oklahoma Attorney General Drew Edmondson (D) filed in June against 14 poultry companies.
A coalition of environmental groups sent an Oct. 25 letter to House and Senate conferees urging that they oppose the "contentious last-minute proposal," charging it "poses undue risk to the environment and communities."
House Energy & Commerce Committee Ranking Member John Dingell (D-MI) also sent a letter to House members objecting to the proposal, and charging that large poultry farms may lead to the spread of disease.
"There are emerging concerns being raised about large, concentrated poultry animal feeding operations and the spread of Avian flu. The bird flu epidemic in Indonesia reportedly originated in large commercial poultry farms . . . this legislative rider is bad process and bad policy," Dingell wrote.
EPA also notes in its analysis that it is considering a petition that the poultry industry submitted in August to allow for administrative exemptions from CERCLA and EPCRA reporting requirements. The agency is weighing several options, "ranging from creating a streamlined, Web-based reporting system to promulgating a regulatory exemption from CERCLA reporting requirements for animal feeding operations," the agency says.
Why is this important? Many farming activities are exempted from environmental laws; in some ways, farming is like the last frontier of environmental regulation. Since agriculture has been becoming more concentrated, confined animal feeding operations (CAFOs, rhymes with pesos) are becoming more common. CAFOs are defined as point sources under the clean water act, but often have discharges due to things like breaks in the protection around their manure lagoons or even from rainfall causing the lagoon to overflow. And there are nuisance odors and undoubtedly air quality impacts. And what of the classification of manure as a hazardous substance under CERCLA? It would open the door to getting polluted sites on the list eligible for government funding for cleanup. However, since the industry tax which supported Superfund expired about a decade ago and to my knowledge has not been reauthorized, Superfund is pretty much broke anyway, so it's not as if it would lead to an increase in clean-ups (imho, of course). I think what they (CAFOs) are more worried about is that this opens the door to manure being a hazardous substance for other agencies (OSHA, EPA) it would mean all sorts of more regulations. Side point I need to look up later because I don't know: does OSHA cover agribusiness?
Other reading:
On CAFOs, from the Sierra Club
History of this law by CAFOs for CAFOs here. (And there's a charming little brief on marking your open sewage lagoon from the same people over here.)
7 November 2005
Superfund Report
Vol. 19, No. 23
Copyright (c) 2005 Inside Washington Publishers. All Rights Reserved. Also available in print and online as part of www.InsideEPA.com.
Lawmakers have rejected a controversial amendment to the agriculture spending bill, which EPA alleged would have jeopardized a pending enforcement agreement with animal feeding operations by exempting the industry from cleanup and reporting requirements under Superfund law.
A conference committee on the bill decided Oct. 26 not to include the amendment sponsored by Sen. Larry Craig (R-ID) after it prompted concerns from EPA, Democrats and environmental groups.
Craig's amendment said EPA should not classify manure as a hazardous substance under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), also known as the Superfund law. The Senate portion of the conference committee passed the amendment Oct. 25, but House members decided during a closed-door meeting the following day not to include it. Relevant documents are available on InsideEPA.com. See page 2 for details.
The amendment's failure appears to clear the way for EPA to finalize the enforcement agreement, which would allow thousands of participating companies temporary exemptions from clean air and Superfund requirements.
A House Appropriations Committee spokesman says lawmakers dropped the amendment out of fear that senators would raise a procedural objection on the floor, since Craig offered the language in conference committee when it was not in the original House and Senate bills.
"It would have created a procedural problem in the Senate, which would have jeopardized the whole bill," the source says.
The amendment would have exempted large animal feedlots from liability for Superfund cleanups, and also from reporting emissions of ammonia and hydrogen sulfide under CERCLA and the Emergency Planning & Community Right-to-Know Act (EPCRA).
Craig told Inside Washington Publishers in an Oct. 25 interview that the language "is consistent with current law," because some allege that Superfund was never intended to apply to agriculture. "Instead of allowing the trial bar to create new law . . . I'm saying no. Let's stay with the old law," he said.
Craig said he was able to offer the language because he had gotten "no push-back."
But EPA raised alarms that the provision would interfere with a controversial enforcement pact known as the Air Compliance Agreement (ACA) that would allow participating companies many of these same environmental exemptions. An analysis of the bill by EPA's congressional affairs office, which was obtained by Inside Washington Publishers, raises concerns that the language would remove much of the incentive for companies to participate in that agreement.
"A primary motivation for participation in the ACA is the covenant not to sue for CERCLA and EPCRA violations. If there is no threat of liability, there is reduced incentive to participate," the EPA analysis says.
An EPA spokesman says the agency provided the analysis at the request of Senate committee staff, and says the agency fulfills these requests as a routine matter. The analysis is not considered an official agency position.
The enforcement agreement would allow participating companies temporary exemptions from CERCLA and EPCRA reporting requirements, and also exemptions from Clean Air Act enforcement. In exchange, participants would fund a comprehensive air monitoring study that would assess emissions from agriculture as a guide to future enforcement.
Thousands of participants signed up for the agreement last summer, but it will not be final until EPA obtains approval from its Environmental Appeals Board. Passage of Craig's language "may prompt requests by many to withdraw" from the agreement, EPA says.
The agency adds that the language "could be viewed to favor those who did not sign up for the ACA, while placing at a disadvantage those who 'stepped up to the plate' to voluntarily pay for the costs of the air emissions study."
An industry source says it "would make sense" that the language might reduce incentives to participate in the agreement because many small companies signed on for its protection against Superfund enforcement. Only large facilities are likely to be affected by the Clean Air Act exemptions because the thresholds for air violations are fairly high.
Environmentalists oppose EPA's air enforcement agreement, but also raise concerns that the Craig language would block citizen suits against agriculture companies for alleged reporting violations. The language could also override existing lawsuits against animal feedlot companies based on Superfund law, including a complaint that Oklahoma Attorney General Drew Edmondson (D) filed in June against 14 poultry companies.
A coalition of environmental groups sent an Oct. 25 letter to House and Senate conferees urging that they oppose the "contentious last-minute proposal," charging it "poses undue risk to the environment and communities."
House Energy & Commerce Committee Ranking Member John Dingell (D-MI) also sent a letter to House members objecting to the proposal, and charging that large poultry farms may lead to the spread of disease.
"There are emerging concerns being raised about large, concentrated poultry animal feeding operations and the spread of Avian flu. The bird flu epidemic in Indonesia reportedly originated in large commercial poultry farms . . . this legislative rider is bad process and bad policy," Dingell wrote.
EPA also notes in its analysis that it is considering a petition that the poultry industry submitted in August to allow for administrative exemptions from CERCLA and EPCRA reporting requirements. The agency is weighing several options, "ranging from creating a streamlined, Web-based reporting system to promulgating a regulatory exemption from CERCLA reporting requirements for animal feeding operations," the agency says.
Why is this important? Many farming activities are exempted from environmental laws; in some ways, farming is like the last frontier of environmental regulation. Since agriculture has been becoming more concentrated, confined animal feeding operations (CAFOs, rhymes with pesos) are becoming more common. CAFOs are defined as point sources under the clean water act, but often have discharges due to things like breaks in the protection around their manure lagoons or even from rainfall causing the lagoon to overflow. And there are nuisance odors and undoubtedly air quality impacts. And what of the classification of manure as a hazardous substance under CERCLA? It would open the door to getting polluted sites on the list eligible for government funding for cleanup. However, since the industry tax which supported Superfund expired about a decade ago and to my knowledge has not been reauthorized, Superfund is pretty much broke anyway, so it's not as if it would lead to an increase in clean-ups (imho, of course). I think what they (CAFOs) are more worried about is that this opens the door to manure being a hazardous substance for other agencies (OSHA, EPA) it would mean all sorts of more regulations. Side point I need to look up later because I don't know: does OSHA cover agribusiness?
Other reading:
On CAFOs, from the Sierra Club
History of this law by CAFOs for CAFOs here. (And there's a charming little brief on marking your open sewage lagoon from the same people over here.)
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