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Summary of Hearings on Clean Air Issues (10-1-08)

  • September 24, 2008: House Committee on Energy and Commerce, Subcommittee on Environment and Hazardous Materials hearing on “Hazardous Substance Releases and Reporting under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA).”
  • September 23, 2008: Senate Committee on Environment and Public Works
    hearing on “Regulation of Greenhouse Gases under the Clean Air Act”
  • July 29, 2008: Senate Committee on Environment and Public Works, Subcommittee on Clean Air and the Nuclear Safety hearing on “EPA’s Clean Air Interstate Rule (CAIR): Recent Court Decision and its Implications”


 House Committee on Energy and Commerce Subcommittee on Environment and Hazardous Materials hearing on “Hazardous Substance Releases and Reporting under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA).”
September 24, 2008

Susan P. Bodine, Assistant Administrator, Office of Solid Waste and Emergency Response, Environmental Protection Agency (EPA)
Mark Johnson, Senior Environmental Health Scientist, Agency for Toxic Substances and Disease Registry (ATSDR) – Region 5
Mark E. Rey, Under Secretary for Natural Resources and Environment, U.S. Department of Agriculture
Anu Mittal, Director, Natural Resources and Environment, U.S. Government Accountability Office

Committee Members Present
Chairman Gene Green (D-TX)
Ranking Member John B. Shadegg (R-AZ)
Hilda L. Solis (D-CA)
John Barrow (D-GA)
G. K. Butterfield (D-NC)
Nathan Deal (R-GA)

The purpose of this hearing was to discuss the Environmental Protection Agency’s (EPA) proposal that all farms be exempt from Superfund reporting requirements for hazardous air emissions. The U.S. Government Accountability Office (GAO) released a report (GAO-08-944) today that questions this proposal. Animal waste emits gases such as ammonia and hydrogen sulfide and, in concentrated amounts, poses a potential threat to human health. Of particular concern are large commercial farms, referred to as Concentrated Animal Feeding Operations (CAFOs), which raise animals in confined situations.

In his opening remarks, Chairman Gene Green (D-TX) told the committee that “the focus of our hearing is not intended to portray large agricultural producers or CAFOs in a negative way.” Indeed, the Chairman applauded these industries for “very successfully providing our nation with a great food supply.” However, Green believes it is necessary to discuss whether CAFOs “should meet the same hazardous release reporting obligation as facilities in other sectors of the economy.” Ranking Member John B. Shadegg (R-AZ) warned that the high prices of products like eggs and milk are already hurting the American people and that further regulations could hike prices even higher.

Before the panelists gave their testimony, Congresswoman Hilda L. Solis (D-CA) reported that more than 29 states have linked groundwater pollution to CAFO emissions. Low income and underrepresented communities bear the brunt of the resulting health impacts. Monitoring and reporting procedures, she explained, will aid public health officials in reacting to problems. Solis called the blanket exemption proposed by the EPA “irresponsible and ineffective.” Congressman John Barrow (D-GA) suggested that a distinction be made between “mom and pop” farms and large commercial farms. Congressman G. K. Butterfield (D-NC) also opposed the full scale exemption of CAFOs, but accused the GAO report of employing scare tactics. He pointed out that pork producers in North Carolina are very responsible and already comply with state regulations that are the most rigorous in the nation.

Anu Mittal, Director of Natural Resources and Environment summarized the GAO report in her testimony. It is estimated that a single CAFO can produce as much as 1.6 million tons of manure per year, more than the human waste produced by the entire city of Philadelphia during the same period of time. The GAO recommends that the “EPA complete its inventory of permitted CAFOs, reassess the air emissions monitoring study, and establish a strategy and timetable for developing a process-based model for measuring CAFO air emissions.”

In her testimony, Susan Bodine, Assistant Administrator in the Office of Solid Waste and Emergency Response at the EPA, stressed that the proposed exemption only applies to the release of hazardous substances to the air from animal waste at farms. She explained that the EPA’s rationale for the proposed rule is based on the belief that such a release, even if reported, is unlikely to trigger a response by any government agency. Bodine pointed out that the “EPA has never initiated a response to any National Response Center (NRC) notifications of ammonia, hydrogen sulfide, or any other hazardous substances released to the air where animal waste at farms is the source of that release.” The EPA is currently in the process of reviewing comments received during the 90-day public comment period that followed the release of the exemption proposal on December 28, 2007.

Mark Johnson, Senior Environmental Health Scientist at the Agency for Toxic Substances and Disease Registry (ATSDR) – Region 5, testified about the health concerns associated with the gases such as hydrogen sulfide and ammonia that are emitted from animal waste. He told the committee that “some residents who live in areas surrounding CAFOs report odors, respiratory symptoms, and neurological effects.” In particular, Johnson focused on a case at the Excel Dairy near Thief River Falls, Minnesota. This dairy farm has a capacity for over 1,500 animals and on multiple occasions ATSDR monitors detected hydrogen sulfide concentrations that exceed the ATSDR acute minimum risk level of 70 ppb.

Mark Rey, Under Secretary for Natural Resources and Environment at the U.S. Department of Agriculture, insisted that the Excel Dairy case is the only one of its kind to date and that it was the result of extenuating circumstances. Rey claimed that the dangerously high levels of hydrogen sulfide measured at the Excel Dairy were related to the mixing of old and new manure after a period of closure.

Rey also testified that the September 4, 2008 draft of the GAO’s report “suffers from many inaccuracies, including erroneous assumptions, faulty information, and uncited references.” His complaints about the report include that it “was conducted over too short a time period” and that it “did not adequately involve agriculture and air quality experts at USDA.” Rey promised the committee that “the vast majority of CAFOs are very well run from an environmental standpoint.” He advocates voluntary, incentive-based programs instead of expanded regulatory requirements to ensure improved water and air quality.


 Senate Committee on Environment and Public Works
Hearing on “Regulation of Greenhouse Gases under the Clean Air Act”

September 23, 2008

Panel I
Robert Meyers, Principal Deputy Assistant Administrator, Office of Air and Radiation, U.S. Environmental Protection Agency (EPA)

Panel II
The Honorable Mary Nichols, Chairwoman, California Air Resources Board
Jason Burnett, Former Associate Deputy Administrator, U.S. EPA
David Bookbinder, Chief Climate Counsel, Sierra Club
Bill Kovacs, Vice President, Environment, Technology and Regulatory Affairs, U.S. Chamber of Commerce
Marlo Lewis, Senior Fellow, Competitive Enterprise Institute

Committee Members Present
Chairwoman Barbara Boxer (D-CA)
Ranking Member James Inhofe (R-OK)
George Voinovich (R-OH)
Amy Klobuchar (D-MN)
Sheldon Whitehouse (D-RI)
Christopher Bond (R-MO)
Larry Craig (R-ID)
Benjamin Cardin (D-MD)

The purpose of this hearing was to discuss the value of regulating greenhouse gases under the Clean Air Act. After the hearing, the committee will prepare a report for the new president describing the Clean Air Act’s potential role in combating global warming. Chairwoman Barbara Boxer (D-CA) called for “a comprehensive new law to reduce global warming emissions,” but recognized that “in the meantime” we should take advantage of the opportunities for regulation offered by the Clean Air Act. She warned that “every moment we wait to address global warming makes it harder to do what is necessary to avert consequences that would be devastating for our nation and for the world.” Ranking Member James Inhofe (R-OK) told the committee he hopes today’s hearing will make clear the “dire implications” of regulating carbon dioxide under the Clean Air Act.

Other committee members offered opening remarks before the panelists began their testimony. The back and forth of contradicting views made it clear that there exists a strong partisan divide over this controversial issue. Senator Amy Klobuchar (D-MN) chastised the Environmental Protection Agency (EPA) and the Bush Administration for dragging their feet in addressing global warming, calling their inaction “appalling” and “offensive.” She expressed anger that “politics is more important than public health.” Senator George Voinovich (R-OH) insisted that the Clean Air Act was not designed to address climate change and that using it to regulate greenhouse gas emissions would bring the economy “to a grinding halt.” He maintained that greenhouse gases have still not been shown to be a “reasonable threat to public health.” Senator Benjamin Cardin (D-MD) countered that there are clearly health risks associated with greenhouse gases and there is scientific evidence that shows that our actions are contributing to global warming. Senator Larry Craig (R-ID) blamed high diesel prices on new low-sulfur standards and used this as an example of how emissions regulations stress the economy. Senator Christopher Bond (R-MO) reiterated that proposed regulations such at the Lieberman-Warner bill (S.3036) would “destroy our economy” by subjecting a million entities including schools, hospitals, and small businesses to unrealistic standards.

In response to the Republicans’ comments, Boxer remarked that every piece of legislation passed by the Committee on Environment and Public Works has been discouraged by “voices of doom and gloom,” yet they have been successful. She reminded the audience that the Clean Air Act requires any pollutant affecting air quality to be regulated.

Robert Meyers, Principal Deputy Assistant Administrator of the Office of Air and Radiation at the Environmental Protection Agency (EPA), gave testimony about the EPA’s Advance Notice of Proposed Rulemaking (ANPR). The ANPR was issued in July, 2008, by EPA Administrator Stephen Johnson in response to the Supreme Court’s decision in Massachusetts v. EPA and addresses the potential for regulation of greenhouse gases under the Clean Air Act. The ANPR supports Administrator Johnson’s views that the Clean Air Act would be “ineffective at reducing greenhouse gases” with a “potentially damaging effect on jobs and the U.S. economy.” The EPA invites public comment on the ANPR through November 28, 2008. Meyers pointed out that the Bush administration has dedicated almost $45 million in resources and over 60 federal programs to address climate issues.

Inhofe asked Meyers to explain how imposing regulations such as those prescribed by the Lieberman-Warner bill would affect global emissions. Meyers responded that his analysis of the bill showed that without a concerted international effort, global emissions would rise. At Voinovich’s request, Meyers confirmed that the Clean Air Act provides no flexibility to ensure domestic firms remain competitive in the international market. Boxer interjected that the bottom line for the economy is that “if people can’t breathe, they can’t work.”

Meyers came under the most scrutiny from Senator Sheldon Whitehouse (D-RI) for his involvement with the EPA’s decision not to grant California a waiver allowing for the regulation of carbon dioxide emissions from automobiles. Although Meyers went to great lengths to avoid directly answering Whitehouse’s questions about the issue, he did eventually confirm that, to his knowledge, no individual or entity of the EPA had advised Administrator Johnson not to grant California the waiver before Johnson met with officials from the Bush Administration.

In the second panel Mary Nichols (Chair of the California Air Resources Board), Jason Burnett (Former Associate Deputy Administrator of the EPA), and David Bookbinder (Chief Climate Counsel of the Sierra Club) all testified that the Clean Air Act should be used to regulate greenhouse gas emissions. Nichols described the Act as “proven to be an extraordinarily effective and flexible tool to protect the health and prosperity of our nation.” All three panelists recognized that the Clean Air Act might not be as effective as new legislation targeted at greenhouse gas emissions, but encouraged the EPA to take advantage of the Act’s opportunities for immediate regulation. Burnett explained that the April 2007 Massachusetts v. EPA Supreme Court decision “shifted the debate from whether we regulate greenhouse gases to how we do so.” Bookbinder presented evidence that the Bush Administration and EPA has determined that greenhouse gases endanger public health even though they refuse to admit it in public. The panelists all implored the EPA to take immediate action.

Bill Kovacs (Vice President of Environment, Technology and Regulatory Affairs at the U.S. Chamber of Commerce) and Marlo Lewis (Senior Fellow at the Competitive Enterprise Institute) opposed using the Clean Air Act to address greenhouse gas emission. Lewis described the Act as a “flawed, unsuitable, and potentially destructive instrument for reducing greenhouse gases.” Kovacs agreed, predicting “chaos” were it to be used to regulate greenhouse gases. He assured the committee that the Chamber supports EPA’s decision to issue the Advance Notice of Proposed Rulemaking (ANPR).

Lewis insisted that application of the New Source Review/Prevention of Significant Deterioration (NSR/PSD) and National Ambient Air Quality Standards (NAAQS) programs of Section 202 of the Clean Air Act would result in “massive, economy-chilling regulation.” Bookbinder had argued earlier that worries about PSD and NAAQS are unfounded because there is “no one who wants to enforce them.” Lewis responded that “anyone who doesn’t like development in their backyard” will use the Clean Air Act as an excuse for lawsuits.

Boxer asked Nichols to describe the economic effects she expects to see in California as a result of implementing regulations on greenhouse gas emission. Nichols reported that economic modeling has predicted an increase in the growth and number of jobs. The state also expects to save money on health care because improvements in air quality will mean a healthier public.

Boxer asked the panel if they thought the EPA was resorting to scare tactics in the Advance Notice of Proposed Rulemaking (ANPR). Bookbinder agreed absolutely whereas Lewis said it was “silly to deny this risk.”

Whitehouse closed the hearing by asking the panel about the cost of inaction. Burnett replied that doing nothing now means we will have to do more later. He recommended that we at least start pursuing low-cost opportunities. By not acting now, Burnett warned, we risk not being able to adapt fast enough in the future. Nichols cited Great Britain’s Stern Commission as an official economic study of the consequences of inaction. However, Lewis staunchly maintained that he does not support Lieberman-Warner-type legislation and it does not seem likely the two parties will arrive at a compromise anytime soon.

A link to witness testimony can be found here.


Senate Committee on Environment and Public Works, Subcommittee on Clean Air and the Nuclear Safety hearing on “EPA’s Clean Air Interstate Rule (CAIR): Recent Court Decision and its Implications”
July 29, 2008

The subcommittee met to discuss next steps after the U.S. Circuit Court of Appeals for the District of Columbia Circuit vacated the Environmental Protection Agency’s Clean Air Interstate Rule (CAIR) on July 11th.  The rule would have reduced atmospheric emissions of sulfur dioxide (SO2) and nitrogen oxides (NOx) from 28 eastern states in part by establishing a cap and trade program on the pollutants emitted from power plants.   

Chairman Thomas Carper (D-DE) opened the hearing declaring his disappointment that no comprehensive emissions legislation exists. He hoped the District Court ruling might offer a silver lining of opportunity by hastening congressional action. “I am not going to wait another 8 years to do what should have been done 8 years ago,” he explained.

Carper regarded his bill the Clean Air Planning Act (CAPA) as a reasonable solution, but remained flexible. His main goal, he said, was to pass any legislation that could offer a more “comprehensive and meaningful” plan than the Administration’s proposed Clear Skies measure.  It would need to involve stricter emissions standards and faster timelines. It would also require regulating mercury and carbon dioxide in addition to sulfur dioxide and nitrogen oxides, a proposal known as a 4-pollutant strategy. And unlike the vacated CAIR rule, the legislation would need to be national rather than targeting the Northeast alone. Without a national strategy, Carper concluded polluters would just move from state to state. Senator Hillary Clinton (D-NY) agreed. The problem, she said, is “not (so much) partisan as it is geographic and philosophical.”

Senator George Voinovich (R-OH) and Senator James Inhofe (R-OK) regretted Congress’s inability to pass the Administration’s proposed Clear Skies Act. As a result of Congress’s inaction, Voinovich stated, “We are now in a period of uncertainty…the environmental policy of the United States has been decided by the courts.”

The EPA CAIR rule was a “rare moment in Washington” where an overwhelming majority supported the rule, Senator Joseph Lieberman (I-CT) recalled.  Lieberman felt if other means could not be found to fix the rule quickly, Congress was obligated to act. Otherwise, he said, “a lot of hard work by a lot of people may well have been thrown out the window.”

In his testimony, Mr. McLean, of the EPA, called CAIR “EPA’s most significant action to protect public health and the environment since the passage of the 1990 Clean Air Amendments.” Its intention, he continued, was to build upon the success of similar EPA regulations to provide states with a common level of upwind control. It was also the “lynchpin” of EPA’s attempt to mitigate air quality hazards.

The ruling made compliance with the National Ambient Air Quality Standards (NAAQS) questionable, McLean declared. CAIR would have moderated the quantity of pollutants transported across state boundaries making compliance more manageable. Emission budgets under the rule would have reduced SO2 and NOx to more than 70 percent and 60 percent below their 2003 levels, respectively. McLean mentioned that many companies had moved toward early adoption of the standards and were investing in the necessary technology. However, with the Court’s decision, early investments for the allowances within the cap and trade program plummeted, causing a significant decline in SO2 and NOx allowance prices and trading activity. Not only was the decision a large loss to early adopters, and public health, but McLean felt the ruling left the future of cap and trade regulations in EPA policy in jeopardy.

As to next steps, McLean did not specifically outline the opinion of the EPA, but stated, there were three basic options, a legal route, a regulatory route and legislative options. In regard to the legal route, the EPA, he mentioned, had submitted a request for an appeal and would know the Court’s decision by August 25. As for the other two methods, he said he could not be very specific. “The administration is working on this as well so I am trying not to preclude what they are trying to consider.”

During the question and answer period, Lieberman mentioned Connecticut receives so much transmitted pollution that “if Connecticut shut down the whole state they could not even meet the EPA standard.” McLean agreed that many areas had air pollution coming from outside sources and that among CAIR’s benefits was the certainty of emission reductions from those outside sources. The senators showed unanimous support for the benefits of CAIR, and expressed that although a legislative fix might be needed, it would be difficult and a regulatory fix now was better than nothing at all. McLean conceded the same, but reminded the committee that a long-term legislative solution would offer more certainty and improve investment.

Mr. Snyder, speaking in the second panel, related, “CAIR did not provide sufficient and timely reductions from the power sector to fully protect public health.” However, he acknowledged the amount of emission reduction the rule would have provided.  Snyder urged legislative action not just to restore what has been lost but to “take this opportunity to expedite and strengthen the air quality benefits of CAIR.” As to the inability of states to meet their NAAQS goals, he urged Congress not to “extend the deadlines or weaken the standards (of NAAQS), which would do nothing to protect public health.” He advocated for state action to ease compliance. New York, he said, was filing petitions under the Clean Air Act to seek recourse for out of state pollutants that were leading to the nonattainment of EPA standards in New York, calling on other states to do the same.
Mr. Svenson was concerned the court ruling would create a “myriad of uncoordinated regulatory compliance mandates that will lead to higher costs to consumers and to power companies such as PSEG.”  By contrast, he felt, the emissions trading process of CAIR “permitted sources to use the most economically efficient methods to reduce emissions or meet their requirement by obtaining allowances.” Svenson believed a multi-pollutant approach would save even more money, by enabling businesses to organize their planning and investments for compliance all at once. Yet while he urged Congress to “re-start the legislative discussion and pass multi-pollutant legislation quickly”, he recognized the benefit of CAIR in that it was “positioned to be enacted much more quickly than a multi-pollutant legislative effort.”

Mr. Spence said his company had invested $1.5 billion in anti-pollution upgrades and technology, which he claimed were “driven (to a large extent) by our expectations about the market price of sulfur dioxide and nitrogen oxide allowances under the existing acid rain program and under CAIR,”. Spence believed the vacated ruling makes the year round operation of the newly acquired technology “financially untenable.” And at the same time he felt his company would be hard pressed to comply with NAAQS. The only solution to the “upheaval that occurs in the absence of clear federal direction on environmental policy” he concluded, is for “Congress to act promptly and narrowly to amend the Clean Air Act to authorize and codify CAIR.”

Mr. Korleski agreeing with Mr. Spence recommended “a surgical laser-like, amendment to section 110” of the Clean Air Act (the section which gives EPA jurisdiction over pollutants within a state but not a region). Korleski believed changing the statutory language to clarify EPA’s ability to enact regional solutions would eliminate the case for further litigation.  On a local scale, in his state of Ohio, Mr. Korleski stated his intention to “lock-in the controls already planned or in place pursuant to CAIR.”

Mr. Walke believed the EPA “worked backwards” in creating CAIR, modifying many of the specifications of the Administration’s stalled Clear Skies Legislation into regulatory code. Walke discussed at length his discomfort with a number of the provisions in the Clear Skies legislation and indicated his belief that they constrained the rights of downwind states, pushed back clean air deadlines by over a decade and weakened EPA and state enforcement mechanisms. However, in agreement with the other witnesses, he did applaud the health and environmental benefits of the EPA rule. He noted, the EPA had estimated the monetary equivalent of health related benefits under the CAIR rule, might have exceeded $100 billion by 2015.  “Data provide even greater urgency to reduce emissions more sharply and more quickly than CAIR accomplished, since the health benefits- and benefits-to-cost rationale – are so overwhelming,” said Walke.

Witnesses used time in the question and answer period to stress the urgency of action. Walke mentioned that many plants in anticipation of the CAIR rule had acquired the technology for cleaner emissions, but currently lacked  incentives to implement the technologies. All witnesses agreed, action required at a minimum a continuation of the standards in CAIR especially in light of the health benefits, reduction in premature deaths, declines in asthma cases, visibility benefits, fairness to early adopters, ability to comply with NAAQS and the establishment of a consistent policy. Voinovich reiterated that the cost-benefit ratio of CAIR was attractive; however he was skeptical as to Congress’ ability to pass legislation to resolve the matter and reinstate the program in a timely fashion.

To view the U.S. Circuit Court of Appeals ruling click here.
To view witness testimony click here.


Sources: Hearing testimony, Environment and Energy Daily.

Contributed by Jill Luchner (2008 AAPG/AGI Summer Intern) and Merilie Reynolds (AAPG/AGI Fall 2008 Intern).

Please send any comments or requests for information to AGI Government Affairs Program.

Last updated on October 1, 2008

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