Washington Insider-- Friday

By DTN's Washington Insider

Here's a quick monitor of Washington farm and trade policy issues from DTN's well-placed observer.

House Moves Swiftly to Slow New Federal Regulations

House Republicans this week approved legislation that would require federal agencies to adopt the least costly method of implementing laws passed by Congress and require agencies to weigh the indirect costs and benefits of their rules on jobs and economic growth. The bill also would create more opportunities for parties to challenge agency rulemakings in the courts.

More such bills are expected as part of the GOP's efforts to curb rulemaking by the executive branch, efforts that have a greater chance of success now that Republicans control both the House and Senate. However, a significant hurdle remains in the person of President Obama and his vow to veto bills that threaten White House administrative authority.

Another solution to Republicans' problems with federal rules might be to write laws with a higher level of detail, spelling out exactly what Congress wants the executive to do. For example, a new provision of the Clean Water Act might prohibit the Environmental Protection Agency from regulating nitrates in water to a level below 8 milligrams per liter, regardless of what the science says.

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Democrats to Take Another Stab at Simplifying Federal Food Safety Efforts

Sen. Dick Durbin, D-Ill., and Rep. Rosa DeLauro, D-Conn., plan to reintroduce a new version of legislation that would mandate a step that many food safety advocates have recommended for years: creating a single food safety agency that would consolidate the activities currently conducted by 15 federal departments, agencies and commissions.

Durbin and DeLauro introduced variations of the Safe Food Act in the past. Previous versions have consolidated the food safety operations of USDA, the Food and Drug Administration and the National Oceanic and Atmospheric Administration, which oversees seafood inspections.

The latest effort is not likely to have any greater success than have past proposals. Everyone may want safer food, but each of the federal agencies currently involved in this area will fight to keep its regulatory authorities and the federal budget that goes with those authorities. In addition, each of the federal agencies has a long-term relationship with the companies and industries it regulates, whether those are meatpackers, produce importers or commercial fishermen. The political campaign to maintain the status quo likely will trump food safety reformation efforts, regardless of their merits.

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Washington Insider: Defining Dairy Contamination

In a somewhat surprising decision, the U.S. District Court for the Eastern District of Washington ruled earlier this month that evidence that residential wells downhill from a dairy farm are contaminated with nitrates exceeding federal limits is sufficient to establish an imminent and substantial endangerment under federal hazardous waste law.

The case involves the Cow Palace Dairy, a large concentrated animal feeding operation located in the Lower Yakima Valley in Granger, Wash. The dairy generates "massive amounts of manure" from its operation, the court said.

Two nonprofit corporations, Community Association for Restoration of the Environment and the Center for Food Safety, filed the Resource Conservation Recovery Act action on behalf of their organizations and individual members, seeking an order that the dairy, among other conditions, immediately line its lagoons and provide drinking water to residents within a three-mile radius downhill from the dairy.

While the court has not yet made a final ruling in the case, it did deny a summary judgment motion filed by Cow Palace and related entities. In a key finding that may lead to additional litigation depending on how the overall case is resolved, the court said that federal RCR Act doesn't require a showing of actual harm, only that contamination "may" pose an imminent and substantial endangerment.

At the same time, the court not only rejected the Cow Palace argument for a summary judgment but concluded: "alarmingly, defendant Cow Palace's briefing seems to suggest that this court wait to act until a young infant in the area is first diagnosed with methemoglobinemia, a health effect that occurs at the lowest dose of nitrate consumption."

In denying the dairy's motion, the court found sufficient evidence that the dairy's manure management, storage and application practices may cause or contribute to an imminent and substantial endangerment to public health and the environment. "There is no dispute that the groundwater at or near Cow Palace Dairy is contaminated," the court said.

Specifically, the court noted that many of the nitrate concentrations exceeded the maximum contaminant level, 10 milligrams per liter, as established by the Environmental Protection Agency. "Further, proof of actual or immediate harm is not necessary," the court said with regard to its rejection of the motion for summary judgment.

Having found that residential wells downhill from the dairy exceed the EPA's maximum contaminant level, the court said, even if the dairy is already working on reducing the health effects on nearby residents of the nitrate-contaminated water through an agreement with the agency, "the risk still remains to these residents, as well as to those beyond this limited one-mile downgradient zone."

This appears to be an example of a dairy operation that convinces at least one court that it is neglecting local health and environmental concerns and possibly violating federal law. While the interpretation of "substantial endangerment" may continue to be controversial, there are growing examples of communities pushing back on agricultural operations that threaten drinking water or environmental quality.

There also are examples where producers are working closely with small communities to avoid even the appearance of such threats. While the political pressure has grown, especially among rural residents, to pull back at least some environmental rules, counter-pressures for cleaner, safer drinking water for both rural and urban consumers have grown, too, and can be expected to move increasingly to courts which have been more sympathetic than politicians to their concerns, Washington Insider believes.

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(GH/CZ)

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