Dear Chairman Walden, Ranking Member Pallone, Chairman Shimkus and Ranking Member Tonko,
The undersigned XX public interest groups, public health experts, concerned and impacted communities, write to voice firm opposition to the discussion draft of the “Farm Regulatory Certainty Act.” This proposal is an unacceptable attack on access to the courts for rural communities harmed by toxic waste.
In America, we don’t pick and choose who has access to our courts yet this proposal carves out rural communities from critical federal protections. Access to the courts provides the ability for individuals to vindicate their constitutional right to “petition the Government for a redress of grievances.” Congress long ago recognized the federal government needs average citizens to be partners in enforcing America’s laws, including civil rights laws, voting rights laws, environmental laws, and others. Citizen suit provisions, included in the Resource Conservation and Recovery Act (RCRA)—our federal solid and hazardous waste law—allow individuals from across the political and economic spectrum to enforce our laws, ensure government accountability, and prevent abuse. For nearly four decades, RCRA has protected human health and the environment from toxic waste pollution that fouls our drinking water, rivers, streams, air and soil when there is no other legal recourse.
The “Farm Regulatory Certainty Act” provides the agricultural industry with an unprecedented legal shield against responsibility when they contaminate the public’s air, land and water, by curtailing the right to sue agricultural polluters that store or dispose of waste in a way that imminently and substantially endangers human health or the environment. It accomplishes this by creating a special provision for the agricultural industry that prohibits the filing of a citizen suit against an operation if an “administrative proceeding,” civil action or criminal case is ongoing, without ensuring that the government’s action will alleviate the harm.
A state agency, for example, could issue a notice of violation, letter, or order (without penalties), or even simply have a meeting, directing a polluter to take an action. In the presence of any such administrative act, which often involves negligible effort by a state agency and may never result in protection, a citizen suit to require compliance or cleanup can never go forward. Additionally, the civil and criminal case liability shield in this proposal would bar citizen suits without requiring that the government’s legal action actually addresses the endangerment through an ongoing cleanup, as is currently required under RCRA.
This proposal is unnecessary. RCRA already contains numerous protections against frivolous, duplicative or unnecessary litigation, which have worked effectively for decades, and citizen suits under RCRA are already prohibited when EPA or the State are engaged in diligent prosecution that actually addresses the endangerment.
Agricultural operations, particularly Concentrated Animal Feeding Operations (CAFOs), are a substantial, unaddressed source of pollution across the country. For example, waterways in all 50 states are impacted by nutrient pollution – that is enormous amounts of nitrogen and phosphorus discharged to water that cause toxic algal blooms, create dead zones depleted of oxygen and life, shut down fisheries, cause fish kills, render drinking water unsafe, cause illness and death, and keep people from fishing, swimming and boating.
This alarming proposal will harm rural Americans, who are disproportionately reliant on private well water and also most likely to be located near large industrial agricultural facilities. There is currently no requirement for state or federal monitoring of private well water quality, even when residents lack the resources to perform regular monitoring themselves. One of the most severe problems associated with the mismanagement of agricultural waste is the presence of nitrate in drinking water aquifers, which cannot be seen, smelled, or tasted in drinking water. Nitrate is associated most seriously with harm to infants in the form of “blue baby syndrome,” and is associated with higher levels of miscarriage, birth defects, and certain kinds of cancer. Nitrate is particularly dangerous for young children because boiling water to use for formula feeding, which parents are told to do, can actually increase the levels ingested and the danger to the child.
People in rural communities do not usually want to resort to slow, difficult, and costly litigation, they turn first to their state and local governments or EPA to ask for help. However, when those processes fail, communities need recourse and a RCRA claim is often the only way for these rural communities to protect their only source of clean drinking and domestic water.
Specifically, CAFO waste generation, storage and disposal have endangered human health and the environment by contaminating groundwater aquifers, releasing pathogenic bacteria into drinking water and recreational waters, increasing the risk of antibiotic resistance, disposing of heavy metals from feed on lands that can build up and be released into watersheds:
•In the state of Washington, 60% of the population relies on groundwater for their drinking water supply, but several areas of the state with high concentrations of CAFOs have been found to have high levels of toxic nitrates in drinking water. Excessive waste application to land is common at CAFOs is common, and is estimated to contribute 66% of the nitrate contamination in the Sumas-Blaine aquifer and 58% of the nitrate contamination in the Lower Yakima Valley, which hosts the largest concentration of CAFOs in the state.
•In New York, in 2015 alone, there were over 40 documented cases of water contamination caused by CAFO waste. In March of 2017, one of the largest facilities in the state was responsible for two manure spills in the span of one week — one of the spills entered Cayuga Lake prompting the New York Department of Environmental Conservation to warn people against using or drinking water from the lake.
•In North Carolina, more than 6,500 swine, poultry and cattle CAFOs have contributed to pollution of air and water across the state, disproportionately impacting minority and low-income communities. Scientific studies have documented numerous health impacts from living near CAFOs in North Carolina, such as asthma and other respiratory disorders, exposure to antibiotic-resistant bacteria such as methicillin-resistant staphylococcus aureus (MRSA), drinking water contaminated with nitrates, and emissions of hazardous gasses causing coughing, nausea, headaches, burning eyes and psychological effects.
•In Ohio, uncontrolled pollution from CAFOs are a significant source helping to fuel the massive toxic algal blooms in Lake Erie, which in 2014 forced the shutdown of Toledo’s water supply. Grand Lake St. Marys, the sole source of drinking water for town of Celina, is so polluted with toxic algae due to agricultural pollution that the Ohio Health Department has issued an advisory to avoid all contact with the lake. In 2015, a woman was hospitalized after coming into contact with the water while recreating.
The right of communities to protect their health and environment must be protected. We urge you to oppose the Farm Regulatory Certainty Act, as well as all similar bills that weaken federal protections from toxic waste and prevent public access to justice.