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Livestock Industry Finds Friends in EPA

Documents detail lobbyists' impact on air-quality plan 

ANDREW MARTIN / Chicago Tribune 16may04

WASHINGTON—When Environmental Protection Agency officials addressed the National Pork Producers Council last year about a proposed farm-pollution monitoring program, they brought along a slide show to explain and promote the new rules.

Although the audience had no way of knowing it, the slide show was prepared not just by EPA staff but largely by the meat industry, which backed the new rules over the objections of environmentalists.

Internal EPA documents show that the proposed program to monitor air pollution at livestock farms—a contentious topic in rural America—was largely conceived and heavily influenced by lobbyists for the livestock industry. The program is to be officially unveiled in coming months.

The documents also show a relationship between some EPA officials and industry lobbyists that was so close that one EPA official working on farm issues quit in frustration, and state and local government representatives walked out of negotiations.

"To save you some time, I've taken the liberty of drafting a few PowerPoint slides that you might use in that presentation," livestock industry lobbyist John Thorne [see bio below] wrote in a Feb. 15, 2003, e-mail to then-EPA attorney Timothy Jones.

In an e-mail on Feb. 18, 2003, Thorne sent a second set of slides to be used by EPA Associate Administrator Karen Flournoy that concludes, "The public will benefit from all of this."

Other documents show that Jones incorporated some of Thorne's slides into his presentation, while Flournoy used essentially the whole thing.

The e-mail messages are contained in hundreds of pages of documents obtained by the Sierra Club under the Freedom of Information Act and provided to the Tribune.

Some of the messages show regulators and the regulated essentially working hand in hand. For instance, in a Feb. 19, 2003, e-mail, Randy Waite of the EPA's Office of Air Quality Planning and Standards praised Thorne's slides and offered strategic suggestions to help the industry make its case.

"With good information, we can solve problems," Waite wrote. "With no information, we leave the door open to outside scare tactics."

Critics of the Bush administration contend that this is just the latest example of the Bush EPA becoming overly close with industry.

EPA officials do not dispute their close working relationship with the meat industry. But they maintain they have jointly created the first-ever program to monitor air pollution from farms, paid for by the livestock industry.

"It's true that we've been talking to the industry," said Bob Kaplan, the EPA's director of special litigation and projects. "But we've also been talking to environmental groups and anyone else who wants to say anything to us."

Plan offers protection

Still, critics call the air emissions program a sweetheart deal that indefinitely delays cleanup of noxious emissions from large-scale farms and disregards neighbors who live downwind.

Under the proposed deal, farms that sign up for a two-year monitoring program will be exempt from federal air pollution enforcement during that time. Past violations of federal air pollution laws also would be forgiven.

Industry officials hope the program also would shield participating farms from lawsuits brought by states and citizen groups.

In exchange, the farms would contribute up to $3,500 to cover the cost of the program. Only about 30 farms would be selected for monitoring, documents show.

The idea is that after two years, the EPA would have sufficient data to establish permanent air emissions standards.

The EPA is preparing the program at a time when the stench and noxious gases from large-scale livestock farms, often called "factory farms," are tearing apart some rural communities and prompting lawsuits by neighbors and environmental groups.

The furor has been fueled by rapid consolidation in the livestock industry that has vastly reduced the number of farms but greatly increased the size of those that remain. Some of the largest pig farms, for instance, have more than 100,000 hogs.

While the primary complaint is foul odors, some neighbors and scientists maintain that gases such as ammonia and hydrogen sulfide—emitted from manure—from livestock farms have caused health problems similar to those caused by industrial emissions.

To environmental groups, the monitoring plan, as proposed, is simply amnesty for polluters.

Everyone let `off the hook'

"They let everyone off the hook," said Barclay Rogers, an attorney with the Sierra Club. "Everyone who signs up gets protection. It's a `get out of jail free' card."

Asked about the slide show prepared by Thorne and presented by EPA officials, Rogers said: "That is being co-opted to the greatest extent the government can be. They are putting words in their mouth."

The EPA's Waite countered that the slides summarized talks he had with Thorne and that he edited them for accuracy.

Eric Schaeffer, a former EPA enforcement official who now is director of the Environmental Integrity Project, a Washington-based watchdog group, said the agreement was simply a stalling tactic by the livestock industry.

"Industry lobbyists in Washington understand they can't defeat emission controls outright, especially where the public's health is at stake," Schaeffer said. "But they understand that time is money, so their strategy is to postpone the day of reckoning."

But Kaplan, the EPA's director of special litigation and projects, said the agency is "between a rock and a hard place" because the current laws and protocols for measuring pollution are difficult to apply to farms. The main point of the monitoring program, he said, is to establish emissions standards with which farms would have to comply.

"We are trying to do this in a faster, more judicious way," he said.

Jones, the then-EPA lawyer who received one of Thorne's e-mail messages and now works for Tyson Foods, declined to comment. Neither Flournoy nor Thorne returned calls seeking comment.

Richard Schwartz, a lobbyist for a consortium of livestock companies called the Ag Air Group, said the livestock industry did not have too much influence on the process, adding the most recent draft is much tougher on farms than the original proposal.

"Essentially the idea of the industry paying to do a study to determine its own emissions is absolutely unique," Schwartz said. "It's tremendously advantageous to the agency."

To date, the EPA's focus when it comes to factory farms has mostly been water pollution. During the Clinton administration, the EPA pursued its first air pollution cases, against Premium Standard Farms in Missouri and Buckeye Egg Farm in Ohio.

In December 2001, a month after Premium Standard Farms was ordered to install a wastewater treatment facility, the meat industry came to the EPA to pitch the idea for a two-tiered "safe harbor" agreement.

Under that proposal, the EPA would have imposed a moratorium on enforcing the Clean Air Act and other air pollution laws as long as the large livestock farms signed up for a program to monitor emissions. Smaller farms would be exempt from regulation altogether.

EPA officials initially rejected the idea.

"We felt that what they were trying to do was keep us from enforcing the law," said Sylvia Lowrance, who at the time was the deputy administrator for enforcement.

But Lowrance said the tone in EPA enforcement changed in the course the Bush administration took toward not supporting enforcement of environmental laws. Lowrance said she was told that her office could not pursue any more air pollution cases against farms unless senior political appointees in the EPA approved it.

"That's unprecedented in EPA," said Lowrance, who left the agency in 2002.

Michele Merkel, who worked in EPA enforcement, said she also quit in 2002 because she believed the livestock industry had too much influence on federal oversight of farms.

The meat industry's "safe harbor" proposal picked up steam within the EPA in 2002.

"Based on what we've learned so far, my feeling is the EPA still wants to move forward with this and probably will," Schwartz wrote to fellow lobbyist Thorne on March 15, 2002.

Two organizations representing state and local officials—the State and Territorial Air Pollution Program Administrators and the Association of Local Air Pollution Control Officials—were invited to participate in meetings of the EPA and industry officials that summer. But by the end of the year, the organizations walked out.

"It appeared to us that the EPA staff was giving in far too much to the industry, and the direction was coming from somewhere in the administration to seal the deal," said Bill Becker, executive director of both organizations.

By the time EPA officials were invited to address the National Pork Producers Council—in meetings in Kansas City, Mo., and Washington, D.C., in early 2003—the livestock industry had provided a "consent agreement and final order" that included legal language for the monitoring program.

Signs of partnership

In some of the documents, government officials sound as though they consider themselves essentially partners with industry representatives—arrayed against, for example, citizens who want to file lawsuits.

In one e-mail, Waite of the EPA's Office of Air Quality Planning and Standards wrote, "We need to start getting across the idea that farms are going to continue to be vulnerable to citizen suits and this data will go a long way in helping us, in partnership, to find solutions to some of those issues, making them less vulnerable in the long run."

In an interview, Waite said protection from lawsuits is crucial to get farmers to participate in the program.

"There's got to be something in it for both sides," he said.

source: http://www.chicagotribune.com/news/nationworld/chi-0405160316may16,1,700355,print.story?coll=chi-newsnationworld-hed 16may04

John Thorne Bio / Crowell & Moring website

Washington • p 202.508.8962 • f 202.628.5116 • jthorne@crowell.com

Since founding Capitolink in 1993, John has advised clients on both political and technical aspects of a wide range of legislative and regulatory issues related to agriculture and the environment. He is broadly engaged with EPA, USDA and Congress on legislative and regulatory issues relating to air and water policy, such as pesticide and nutrient policy; development of aquatic criteria, water quality standards, and Total Maximum Daily Load (TMDL) regulations for agricultural products and byproducts; proposed CAFO regulations for pork, beef, poultry and dairy operations; development of meat and poultry processing effluent limitation guidelines (ELGs); and the interface between Clean Air Act, Clean Water Act, Endangered Species Act, and Safe Drinking Water Act. He also represents agricultural clients on tariff and appropriations legislation.

John and the Capitolink staff have been instrumental in organizing and conducting several unique environmental policy development projects, including in 1998 The National Environmental Dialogue for Pork Production; in 1999 The Source Water Protection Initiative with the pesticide and drinking water supply community, in 2000 an XL project between U.S. EPA, states and The United Egg Producers, and in 2001 the Animal Waste Risk Management Project with USDA and America's Clean Water Foundation designed to quantitatively characterize the financial and environmental risks associated with livestock and poultry production.

Prior to his work in Washington, D.C. politics, John was a scientist and research manager in agribusiness. In 1973, he was named Director of Research for the Jacklin Seed Company (now part of Simplot), where he was responsible for germplasm development and research. From 1976 to 1980, he conducted research on soybeans and other crops at the Connecticut Agricultural Experiment Station. In 1980, he joined DuPont's life sciences effort as scientist and Group Leader, where he provided leadership in a number of research program areas and published extensively in the scientific literature.

source: http://www.crowell.com/content/Expertise/Capitolink/OurTeam36/thorne.html 16may04

Agricultural Air Emissions / Commentary / Crowell & Moring website

Ammonia and hydrogen sulfide are common byproducts of animal agriculture, although too few monitoring studies have been conducted to know just how much is emitted and under what conditions. Until recently EPA and state regulators have dealt with the presence of these compounds through nuisance statutes and wastewater regulation. In 1999 EPA's Office of Enforcement and Compliance Assurance (OECA) became interested in using the enforcement authority of the Comprehensive Environmental Response, Compensation and Liability Act's (CERCLA) reporting requirement to expand their regulatory actions against animal agriculture and to speed technology and management upgrades in CAFO operations to reduce odor and pollutant emissions, such as the use of biofilters and synthetic covers for lagoons.

OECA notified two large hog producer/packer companies of their intent to bring legal action and fines for past failure to report air emissions, required them to report ongoing air pollutant emissions and signaled its intention to bring enforcement actions against CAFOs in general for CERCLA emissions reporting violations, past and present. EPA pointed to citizen complaints about CAFO odor/air quality concerns, and viewed the CERCLA emissions reporting violations as a means to bring air enforcement actions against large CAFOs that may have had water quality problems also. Section 103 of CERCLA requires the person in charge of a facility to notify immediately ("as soon as he has knowledge") the National Response Center (NRC) of any release of a hazardous substance equal to or greater than its reportable quantity (RQ). The RQs for ammonia and hydrogen sulfide are 100 pounds per day; CERCLA authorizes EPA to enforce the emission reporting requirements.

Only preliminary studies have been made of ammonia and hydrogen sulfide emissions from livestock lagoons, barns and manure storage facilities, so EPA lacks definitive data on emissions factors and impacts of variables such as measurement procedures, location, climate and management practices. Furthermore, most livestock, dairy and poultry operations have never monitored their air emissions, and had not been advised by EPA that they might be required to report such emissions. Lacking approved measurement methods, producers today would have to estimate emissions, with no knowledge of how these data may be used in the future.

In 1999 Capitolink organized a coalition of agricultural and agribusiness organizations to approach OECA and other EPA offices. The group argued against the enforcement initiative, pointing out the dearth of definitive data and emissions factors upon which to base CERCLA reporting, and the lack of EPA communications and guidance to agriculture. EPA's Office of Air, Water and Solid Waste, USDA's Natural Resources Conservation Service, and members of Congress effectively urged OECA to suspend enforcement activities until effective measurement methods were developed, definitive data collected, and agricultural organizations alerted.

In response to the consent decree in NRDC et al v Browner (D.D.C. Civ. No. 89-2980, January 31, 1992 as modified), EPA committed for CAFOs to propose and promulgate the feedlots effluent guidelines for swine and poultry by December 1999 and December 2001, respectively and for beef cattle and dairy by December 2000 and December 2002, respectively. Concurrent changes to the NPDES regulations are also necessary. EPA received a one year extension to the swine and poultry rules, which were proposed on December 15, 2000 on the same schedule as the beef and dairy rules. As part of the extension, OAR agreed to complete (a) an investigation into the air pollutants that are emitted from CAFOs, (b) an evaluation of technologies and legal authorities available to address harmful emissions, and (c) a plan for addressing emissions that have a deleterious impact on air and water quality.

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source: http://www.crowell.com/content/Expertise/Capitolink/OurCommentary/AgAirEmissions/Emissions.htm 16may04

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