WASHINGTON – Raising new questions about the Bush Administration’s commitment to holding polluters accountable, Governmental Affairs Committee Ranking Member Joe Lieberman, D-Conn., Thursday expressed dismay with an Environmental Protection Agency plan not to pursue Clean Air enforcement actions against concentrated animal feeding operations.
In a letter to Acting EPA Administrator Marianne Lamont Horinko, Lieberman sought information about reported negotiations between the EPA and large-scale chicken, hog, and cow feeding operators that have not only been conducted in secret, but appear to have resulted in a deal that lets polluters off the hook in exchange for information the EPA already has the right to collect.
The secret negotiations, Lieberman wrote, “raise serious questions about the depth of the Environmental Protection Agency’s commitment to putting our citizens’ health above the interests of polluters. Under a draft agreement… EPA would give up its authority to bring enforcement actions for past, ongoing, and future violations of the Clean Air Act… in exchange for perplexingly little.”
Reportedly, the EPA would refrain from suing violators of the Clean Air Act and the Comprehensive Environmental Response, Compensation, and Liability Act if the feeding operations pay $500 in penalties and $2,500 to establish an emissions monitoring program.
Emissions from these concentrated animal feeding operations include hydrogen sulfide, ammonia, and methane gases – all toxic in high concentrations.
“EPA’s unwillingness to exercise its authority to address even the most serious emissions problems is a disservice to the American public and has serious consequences for the public,” Lieberman wrote.
Current law permits EPA to gather emissions data from large-scale animal feeding operations. During the Clinton Administration, EPA issued orders to require testing at a handful of operations. The Bush Administration has failed to require compliance.
EPA’s proposed amnesty period is indefinite, according to the news stories. And it appears very few feeding operations would be monitored if, as some have asserted, testing one facility costs $200,000 in a program funded by contributions of $2,500 from each participating operation.
Following is text of the letter:
October 2, 2003
The Honorable Marianne Lamont Horinko
Environmental Protection Agency
c/o Office of Congressional and Intergovernmental Relations
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460
Dear Administrator Horinko:
Recent news reports regarding the latest development in the behind-closed-doors negotiations with concentrated animal feeding operations (CAFO’s) raise serious questions about the depth of the Environmental Protection Agency’s (EPA) commitment to putting our citizens’ health above the interests of polluters. Under a draft agreement leaked to the press, EPA would give up its authority to bring enforcement actions for past, ongoing and future violations of the Clean Air Act until the agency develops methodologies for estimating emissions in exchange for perplexingly little: a program by which emissions would be monitored at a limited number of CAFO’s. EPA’s willingness to reach this agreement is baffling; existing law already authorizes EPA to require CAFO’s to give it the data, thereby raising the core question of why, if EPA already has the authority to require CAFO’s to give it data, EPA would possibly continue to consider an agreement to give up its enforcement authority in exchange for a monitoring program.
Emissions from CAFO’s can include hydrogen sulfide, ammonia and methane gases– all substances which are toxic in high concentrations. Reportedly, EPA is pursuing an agreement in which it would agree not to sue huge animal factories for violations of the Clean Air Act or the Comprehensive Environmental Response, Compensation, and Liability Act in exchange for each company’s agreement to pay a $500 penalty and a $2,500 contribution to an “AFO partnership” for the establishment of an emissions monitoring program. Only after an indefinite time period — during which data regarding average emissions would be collected by monitors selected by the industry from CAFO’s selected by the industry (subject to EPA approval) — would EPA be free to begin enforcement actions. Reportedly, there is no guarantee that pollution controls will be installed anywhere in the country. Furthermore, if, as some industry sources have asserted, testing at a CAFO can cost as much as $200,000, it appears that few CAFO’s will be monitored in a program funded by contributions of $2,500 from each participating CAFO.
These reports reflect a pattern of the agency’s continuing unwillingness to take enforcement action to address problems created by emissions from CAFO’s. During the previous administration, EPA issued orders to require testing at a handful of large CAFO’s, but EPA has failed to take followup action to require compliance with these orders and to issue orders to require testing at additional sites. Instead, as reported in the spring and again last week, it has embarked on amnesty negotiations, negotiations which the agency has sought to protect from public scrutiny by tactics such as failing to respond to a Freedom of Information Act request regarding the nature and substance of the discussions. Furthermore, although the draft agreement purportedly would not interfere with a state’s right to enforce compliance with state laws, individuals living in states lacking effective programs – or which, like Utah, have enacted laws to preclude residents from bringing nuisance suits against a CAFO – will be forced to bear the health costs of the practices with little hope of correction of the problem.
EPA’s unwillingness to exercise its authority to address even the most serious emissions problems is a disservice to the American public and has serious consequences for the public. Accordingly, I would appreciate your responses to the following questions:
(1) What is the current status of the negotiations with concentrated animal feeding operations? What are the next steps?
(2) In light of EPA’s authority to require collection of data, explain why EPA would give up its authority to enforce the law against concentrated animal feeding operations for any period of time.
(3) One news report states: “The amnesty would last the duration of the air-monitoring program, which is not specified in the document but which officials said would be about two years.” (Lee, The New York Times, September 23, 2003). If there is a limit to the length of the program, why is it not contained in the language of the draft agreement?
(4) Why has EPA failed to take action to enforce existing orders to require emissions testing?
(5) What action will you now take to advise the public on a continuing basis of the nature and substance of your discussions with the industry?
(6) If EPA approves the amnesty agreement, is there anything to preclude additional industrial sectors from asking for and also receiving amnesty from enforcement of the environmental laws?
I look forward to receiving a prompt response to this inquiry. In addition, I request that this letter be included in the record of any ongoing proceeding which may be the subject of the proposed agreement.
Joseph I. Lieberman