[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
SUPERFUND LAWS AND ANIMAL AGRICULTURE
=======================================================================
HEARING
before the
SUBCOMMITTEE ON
SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS
of the
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
----------
NOVEMBER 16, 2005
----------
Serial No. 109-72
----------
Printed for the use of the Committee on Energy and Commerce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
SUPERFUND LAWS AND ANIMAL AGRICULTURE
SUPERFUND LAWS AND ANIMAL AGRICULTURE
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS
of the
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
NOVEMBER 16, 2005
__________
Serial No. 109-72
__________
Printed for the use of the Committee on Energy and Commerce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
U.S. GOVERNMENT PRINTING OFFICE
27-001 WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
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__________
COMMITTEE ON ENERGY AND COMMERCE
JOE BARTON, Texas, Chairman
RALPH M. HALL, Texas JOHN D. DINGELL, Michigan
MICHAEL BILIRAKIS, Florida Ranking Member
Vice Chairman HENRY A. WAXMAN, California
FRED UPTON, Michigan EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida RICK BOUCHER, Virginia
PAUL E. GILLMOR, Ohio EDOLPHUS TOWNS, New York
NATHAN DEAL, Georgia FRANK PALLONE, Jr., New Jersey
ED WHITFIELD, Kentucky SHERROD BROWN, Ohio
CHARLIE NORWOOD, Georgia BART GORDON, Tennessee
BARBARA CUBIN, Wyoming BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois ANNA G. ESHOO, California
HEATHER WILSON, New Mexico BART STUPAK, Michigan
JOHN B. SHADEGG, Arizona ELIOT L. ENGEL, New York
CHARLES W. ``CHIP'' PICKERING, ALBERT R. WYNN, Maryland
Mississippi, Vice Chairman GENE GREEN, Texas
VITO FOSSELLA, New York TED STRICKLAND, Ohio
ROY BLUNT, Missouri DIANA DeGETTE, Colorado
STEVE BUYER, Indiana LOIS CAPPS, California
GEORGE RADANOVICH, California MIKE DOYLE, Pennsylvania
CHARLES F. BASS, New Hampshire TOM ALLEN, Maine
JOSEPH R. PITTS, Pennsylvania JIM DAVIS, Florida
MARY BONO, California JAN SCHAKOWSKY, Illinois
GREG WALDEN, Oregon HILDA L. SOLIS, California
LEE TERRY, Nebraska CHARLES A. GONZALEZ, Texas
MIKE FERGUSON, New Jersey JAY INSLEE, Washington
MIKE ROGERS, Michigan TAMMY BALDWIN, Wisconsin
C.L. ``BUTCH'' OTTER, Idaho MIKE ROSS, Arkansas
SUE MYRICK, North Carolina
JOHN SULLIVAN, Oklahoma
TIM MURPHY, Pennsylvania
MICHAEL C. BURGESS, Texas
MARSHA BLACKBURN, Tennessee
Bud Albright, Staff Director
David Cavicke, Deputy Staff Director and General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
Subcommittee on Environment and Hazardous Materials
PAUL E. GILLMOR, Ohio, Chairman
RALPH M. HALL, Texas HILDA L. SOLIS, California
NATHAN DEAL, Georgia Ranking Member
HEATHER WILSON, New Mexico FRANK PALLONE, Jr., New Jersey
JOHN B. SHADEGG, Arizona BART STUPAK, Michigan
VITO FOSSELLA, New York ALBERT R. WYNN, Maryland
CHARLES F. BASS, New Hampshire LOIS CAPPS, California
JOSEPH R. PITTS, Pennsylvania MIKE DOYLE, Pennsylvania
MARY BONO, California TOM ALLEN, Maine
LEE TERRY, Nebraska JAN SCHAKOWSKY, Illinois
MIKE ROGERS, Michigan JAY INSLEE, Washington
C.L. ``BUTCH'' OTTER, Idaho GENE GREEN, Texas
SUE MYRICK North Carolina CHARLES A. GONZALEZ, Texas
JOHN SULLIVAN, Oklahoma TAMMMY BALDWIN, Wisconsin
TIM MURPHY, Pennsylvania JOHN D. DINGELL, Michigan,
JOE BARTON, Texas, (Ex Officio)
(Ex Officio)
C O N T E N T S
----------
Page
Testimony of:
Breen, Barry, Deputy Assistant Administrator, Office of Solid
Waste and Emergency Response, Environmental Protection
Agency..................................................... 16
Burch, Kelly Hunter, Chief of Environmental Protection Unit
and Assistant Attorney General, Office of the Oklahoma
Attorney General........................................... 29
Connery, Robert T., Partner, Holland and Hart, on behalf of
National Cattlemen's Beef Association...................... 99
Kouplen, Steven, President, Oklahoma Farm Bureau............. 74
Lawrence, Robert S., Associate Dean for Professional Practice
and Programs, and Edith Schoenrich, Professor of Preventive
Medicine, Johns Hopkins Bloomberg School of Public Health
Policy..................................................... 120
Merkel, Michele M., Senior Counsel, Environmental Integrity
Project.................................................... 128
Starkey, John, Vice President, Environmental Programs, U.S.
Poultry and Egg Association................................ 107
Stem, Wiley, III, Assistant City Manager, City of Waco....... 66
Weaver, Leon D., Managing Member, Bridgewater Dairy, Managing
Partner, Bridgewater Farming, on behalf of Continental
Dairy Products, Inc., and Select Milk Producers, Inc....... 113
Additional Material Submitted for the Record
Breen, Barry:
Written response to questions from Hon. Paul E. Gillmor...... 143
Written response to questions from Hon. Heather Wilson....... 150
Written response to questions from Hon. John Sullivan........ 152
Written response to questions from Hon. Charles F. Bass...... 153
Written response to questions from Hon. Ralph M. Hall........ 154
Written response to questions from Hon. John D. Dingell and
Hon. Hilda L. Solis........................................ 155
Burch, Kelly Hunter:
Written response to questions from Hon. Paul E. Gillmor...... 184
Written response to questions from Hon. John Sullivan........ 193
Written response to questions from Hon. Charles F. Bass...... 198
Written response to questions from Hon. John D. Dingell and
Hon. Hilda L. Solis........................................ 200
Updated and additional information on Arkansas' Nutrient
Management Regulations......................................... 206
Connery, Robert T.:
Written response to questions from Hon. Paul E. Gillmor...... 208
Written response to questions from Hon. Heather Wilson....... 222
Written response to questions from Hon. Charles F. Bass...... 230
Written response to questions from Hon. John D. Dingell and
Hon. Hilda L. Solis........................................ 231
Kouplen, Steven:
Written response to questions from Hon. Paul E. Gillmor...... 236
Written response to questions from Hon. John Sullivan........ 240
Written response to questions from Hon. Charles F. Bass...... 241
Written response to questions from Hon. John D. Dingell and
Hon. Hilda L. Solis........................................ 242
Lawrence, Robert S.:
Written response to questions from Hon. Paul E. Gillmor...... 247
Written response to questions from Hon. Heather Wilson....... 249
Written response to questions from Hon. Ralph M. Hall........ 250
Written response to questions from Hon. John D. Dingell and
Hon. Hilda L. Solis........................................ 254
Merkel, Michele M.:
Written response to questions from Hon. Paul E. Gillmor...... 257
Written response to questions from Hon. Charles F. Bass...... 260
Written response to questions from Hon. Ralph M. Hall........ 262
Written response to questions from Hon. John D. Dingell and
Hon. Hilda L. Solis........................................ 265
Starkey, John:
Written response to questions from Hon. Paul E. Gillmor...... 269
Written response to questions from Hon. John D. Dingell and
Hon. Hilda L. Solis........................................ 274
Written response to questions from Hon. Charles F. Bass...... 278
Stem, Wiley:
Written response to questions from Hon. Paul E. Gillmor...... 280
Written response to questions from Hon. Ralph M. Hall........ 288
Weaver, Leon D.:
Written response to questions from Hon. Paul E. Gillmor...... 294
Written response to questions from Hon. Charles F. Bass...... 298
Written response to questions from Hon. John D. Dingell and
Hon. Hilda L. Solis........................................ 300
City of Tulsa v. Tyson Foods, Inc. and court orders.............. 302
SUPERFUND LAWS AND ANIMAL AGRICULTURE
----------
WEDNESDAY, NOVEMBER 16, 2005
House of Representatives,
Committee on Energy and Commerce,
Subcommittee on Environment
and Hazardous Materials,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:13 p.m., at
2322 Rayburn House Office Building, Hon. Paul Gillmor
(chairman) presiding.
Members present: Representatives Gillmor, Hall, Deal,
Wilson, Bass, Otter, Sullivan, Murphy, Barton (ex officio),
Solis, Pallone, Stupak, Inslee, Baldwin, and Dingell (ex
officio).
Also present: Representative Osborne.
Staff present: Tom Hassenboehler, majority counsel; Jerry
Couri, policy coordinator; Peter Kielty, legislative clerk;
Dick Frandsen, minority senior counsel; and Lorie Schmidt,
minority counsel.
Mr. Gillmor. The Committee will come to order. And, first,
I would like to apologize for starting the committee late,
which I hate to do, but I am also on the Financial Services
Committee and we are dealing with a regulatory relief bill, a
mark-up, today, and they had an amendment in which I was
involved. And so we had to dispose of that first and that is
done, so we should be okay. I would like to request unanimous
consent for Congressman Tom Osborne, who is not a member of the
committee, to sit on the dais for this hearing to observe. Is
there objection? Chair hearing none, it is awarded.
In his first message to Congress on December 8, 1801, the
noted farmer, philosopher, and American statesman, and was
President Thomas Jefferson, called agriculture one of the four
pillars of our prosperity. And today's hearing goes to the
heart of Jefferson's comments. We are focusing on an issue that
is increasingly drawing farmers out of their barns and fields
and into courtrooms based on a new theory of liability, of
obligation, and recovery under Superfund, and the Superfund
Amendments and Reauthorization Act of 1986. Specifically, the
notion is whether the manure and flatulence of their livestock
constitute Superfund-caliber pollutants or contaminants, and
whether their production is legally defined release under the
Law. And on top of that, if it is, should the U.S. Government
be using Superfund Law to monitor this activity on farms. As I
understand it, some of these questions are currently being
litigated in our courts in Oklahoma and in Texas, and, in fact,
there has been a slight up-check in the number of notices
announcing the intent to sue livestock manufacturers under this
theory of recovery.
Now, I grew up in rural Ohio and I grew up around farms,
and I certainly have the greatest respect for the hours and
hard work that America's farmers put in, In fact, many of my
family has been involved in farming, and some of my cousins are
still actively engaged in farming. I think people sometimes
forget that milk and beef do not just appear at the grocery
store or the corner restaurant, and they sometimes forget that
it has to come from a farmer somewhere. And U.S. producers are
the envy of the world with the way that they ensure the safest,
the least costly, and the most abundant food supply in the
world.
But I also know that production agriculture is no longer
just a world of small family farms of times gone by. Consumer
demands, market pressures, have forced major consolidations in
agriculture, including the creation of many very large farms--
in fact, in some areas, becoming more the norm than the
exception. Which brings me to the focus and the point of this
hearing: do livestock farms become Superfund sites by virtue of
the biological processes of their animals, and are these
processes already adequately regulated.
Now, I think there are some people who may want to have
this hearing veer off in certain areas--other areas, but I want
to make it clear, even though we may be talking about chickens,
this hearing has absolutely, flatly nothing to do with avian
flu or any other kinds of disease. This is an environmental and
emissions hearing. But I do want people to consider another
point: if you support using organic farming practices instead
of the ones that are driven by chemicals--which, in fact, are
currently exempt from Superfund liability, would you want the
same Superfund reporting and liability issues to attach
themselves to manure in our organic farm fields in the same way
that they are now causing problems for some livestock producers
around the country? And while I am certainly willing to see
some help extended to farmers for manure, I don't believe that
the industry should automatically get a blanket pass from
Superfund. The Law is so focused on contaminants and their
levels of concentration, not on industries, and no agricultural
producers who has activities levels equal to or greater than a
large industrial facility should be given an exemption simply
by virtue of the identity of the work.
Now, I also want to thank our witnesses on this panel and
the next panel for being here today. Particularly, I want to
thank, on the next panel, my constituent Leon Weaver from
Williams County for being here and giving us his wisdom on this
issue. Also, I want to mention that the subcommittee is acutely
aware of interest by farm groups and environmental issues that
are, in fact, under the jurisdiction of the House Energy and
Commerce Committee, and we hope the farm groups will not be
reluctant to engage our Committee in considering legislative
action on this items, and with the reauthorization of the Farm
Bill in the offing, we especially hope that we can have a
collaborative rather than a confrontational position fostered
as we move forward.
And now I yield 5 minutes to the gentlelady from
California, Ranking Member Solis.
Ms. Solis. Mr. Chairman, if I could, I would like to
recognize our ranking member on the Energy and Commerce
Committee, and that is Congressman Dingell.
Mr. Dingell. Mr. Chairman, the gentlewoman is most
gracious. I will wait my turn. Thank you.
Ms. Solis. Thank you. Thank you, Mr. Chairman, and good
afternoon to the witnesses and to those in attendance. I
appreciate this hearing being held today on the Superfund Laws
and Animal Agriculture. I want to also thank those witnesses
that have come far to testify today.
As a result of recent lawsuits, we are having this hearing
to discuss environmental and public health impacts of proposals
that would change our Superfund laws as they apply to the
agricultural industry. Over the years, the livestock and
agriculture industry has changed dramatically. Large livestock
farms have steadily been replacing smaller family run farms.
CAFOs are large super-sized factory farms that raise livestock,
cattle, hogs or chickens in large numbers, in up to hundreds of
thousands, often in crowded warehouses and like spaces. Because
of patchwork regulation over these facilities, it is uncertain
how many actually exist in my State of California. However, we
do know that there are about 1.3 million cows.
California is the No. 1 milk producer of the Nation,
producing 1 of every 5 gallons of milk consumed in the United
States. California's Center Valley is home to approximately
1,600 of the State's 2,400 dairies. Its 891,000 cows create as
much waste as 21 million people, over 60 percent of
California's population. And as a result, California's Central
Valley is suffering severe surface and groundwater pollution
from dairies. Pollution in the Central Valley affects much of
the rest of the State because its rivers provide drinking water
for cities nearby and as far south as Los Angeles. More than
10,000 square miles of aquifers in California are polluted with
nitrates, and cow waste is a major source of pollution.
While the production of animal waste is natural, manure and
other components of animal waste can pose substantial risk to
the health and safety of the American public and the
environment. Industrial farms, as we know, generate 500 million
gallons of manure waste each year. This is three times the
amount of waste the human population of the U.S. Nitrogen and
phosphorous are the primary pollutants associated with animal
waste. There are over 150 pathogens in livestock manure,
including E. coli and salmonella, which can result in
infections of the skin, ears, eyes, nose, and throat. We know
animal waste submits toxic odors, gasses such as sulfide and
ammonia, and animal waste contaminates surface water and
groundwater. 29 States have linked ground water contamination
to CAFOs.
Pollutants in animal waste also affect human beings. A
variety of health problems faced by neighbors of huge
industrial farms have been linked to the vast amounts of
concentrated animal waste. People living near factory farms say
their sickness rolls in the wind. Odor and gasses from factory
farms are making people sick and destroying property values. It
brings headaches that do not go away, and trips to the
emergency room for children whose lungs suddenly close up.
Large poultry industry farms have been linked with the spread
of the bird flu. The bird flu in Indonesia originated in large
commercial poultry farms. This is something we need to monitor
in factory farms in this country.
And in North Carolina, recent studies have found that hog
farms in recent years that are concentrated in the eastern
North Carolina, a relatively poor region of the State with a
large rural African American population. This has led to a
growing concern that the environmental health impacts of
factory farms are disproportionately borne by poor, low-income,
and minority communities.
For these reasons, I am very concerned about the efforts to
exempt CAFOs from the Superfund and the Emergency Planning and
the Community Right-to-Know Act. Under Superfund and the
Community Right-to-Know Act, livestock operations are required
to notify Federal, state, and local agencies of releases of 100
pounds per day of ammonia and hydrogen-sulfide. Ammonia and
hydrogen-sulfide are two toxic substances routinely released by
large livestock operations. This reporting requirement provides
local, state, and Federal agencies with critical information
about potentially dangerous releases that affect our
communities.
States who respond to the release of hazardous substances
have a mechanism under Superfund to recover their response
costs. Attempts to exempt livestock operators from CERCLA and
EPCRA will undermine current legal authority to protect our
communities. I urge my colleagues not to weaken and waive, or
roll back, Federal public health and environmental protections.
And I look forward to hearing from our witnesses today. Yield
back the balance.
Mr. Gillmor. Gentlelady yields back. The gentleman from
Texas, Mr. Hall.
Mr. Hall. Mr. Chairman, I also thank you for holding the
hearing on this very important issue. It is an issue that
absolutely threatens the United States agricultural industry.
It is--agriculture, as all of us know, is an industry that is
currently regulated by the Clean Water Act, the Clean Air Act,
and State laws. It is important that we not place another
unnecessary burden on this group by subjecting them to
regulation and reporting requirements under a law that was
never, never, ever intended to address their industry.
Today, along with Representative Roy Blunt and numerous
other colleagues from both sides of the aisle, we are
introducing legislation that would clarify Congressional
intent, and what that intent was when we passed Superfund laws.
Chairman Dingell and several others were here at that time. I
certainly was here when those laws were passed, and we know
that this legislation that we are introducing today will define
manure and ensures that the agricultural industry will not be
subjected to regulation under Superfund laws, namely the
Comprehensive Environmental Response Compensation and Liability
Act of 1980, and/or the Emergency Planning and Community Right-
to-Know Act. It does not change current law, and does not
compromise the Clean Air Act and Clean Water Act which regulate
agriculture.
It is my hope that in holding a hearing on this issue, we
will be able to develop an equitable compromise to protect
agriculture. This hearing gives us an opportunity to hear from
experts in the industry about the threats to the agricultural
industry in this regard, and suggestions for clarification of
the intent of the law. It will also give us an opportunity to
have the proper entity from Congress protect the people.
Mr. Chairman, I thank you again for scheduling this
hearing, and I thank our panelists for being here today, and I
thank you very much, sir, Mr. Breen.
Mr. Gillmor. The gentleman from Michigan, the distinguished
ranking member.
Mr. Dingell. Mr. Chairman, you are most kind. I commend you
and I thank you for holding this hearing. Mr. Chairman, there
have been efforts recently to circumvent the expertise and
jurisdiction of this Committee and of this distinguished
subcommittee. And through inserting language in the Agriculture
Appropriations Conference Report, which raised the issue of
exempting large consecrated animal feed operations, or CAFOs as
they are called, from the Superfund statute and the Emergency
Planning and Community Right-to-Know Act (EPCRA), it is
important that we get the accurate facts before the
subcommittee before the Congress about these two statutes and
the issues that they present to family farms as opposed to
large industrialized CAFOs.
I chaired the Conference Committee in 1986 that authorized
the Superfund program and the Superfund amendments and
Reauthorization Act of 1986, and I do not recall any discussion
or attempt or intent to exempt manure from the definition of
hazardous substances or pollutants or contaminants. Nor does
the Conference Report discuss a manure exemption from the
definition of hazardous substances. I would note that petroleum
and natural gas are excluded in the definition of hazardous
substances in those statutes. Congress knew how to create
exclusions, and it is erroneous to say that the Congress
intended to do so for manure. The statute does not include--
rather, it does not exclude the normal application of
fertilizer from the Superfund definition of release.
There is also legislative history stating the term normal
field application means the act of putting fertilizer on crop
or cropland and does not mean any dumping, spilling, or
emitting, whether accidental or intentional, in any other
place, or significantly greater concentrations or amounts than
are beneficial to crops. The determination of what is normal
appears to be a fact-specific decision based on the
circumstances of the application, and I think it is something
into which we could well go at this particular time.
Further, there is a defense to liability if the release is
federally permitted release, such as permitted release under
the Clean Water Act. Congress thus created a number of specific
defenses to liability for agricultural operations in the
Superfund statute. On a broader level, we can find only three
cases where the response authorities of Superfund have
attempted to be used with respect to agricultural operations.
In two cases, the matters involved city governments--Waco,
Texas, and Tulsa, Oklahoma--which brought actions to protect
drinking water supplies from phosphorous pollutions related to
dairy and poultry operations. The third case is an action by
the State of Oklahoma for recovery of costs and natural
resource damages in the Illinois River Watershed alleging
injury and destruction of fish, wildlife, bio to groundwater
and drinking water supplies from improper poultry waste
disposal practices. We should also recognize that there is no
citizen suit provision to enforce the response authorities'
natural resource damages or injunctive relief authorities of
the statute. In addition, no civil penalties can be assessed
since the core provisions of Superfund are remedial, not
regulatory, in statute.
There is, however, one reporting requirement in Section 103
of Superfund, and a similar reporting requirement in EPCRA, for
releases of hazardous and extremely hazardous substances above
reportable quantities established by EPA. Here, again, we can
find only a handful of cases for failure to report releases of
ammonia or hydrogen-sulfide above the reportable quantity of
100 pounds a day. I would note that some definition of this
might be in order, and we might very well make inquiry into
that matter in this particular hearing. I would note that the
statute authorizes civil penalties, but no civil penalties were
assessed for the Superfund or EPCRA reporting violations in
these cases.
I am interested in whether the reportable quantity limits
would have a burdensome effect on family farms. What is the
size of herd or flock that would likely trigger the reporting
requirements for ammonia and hydrogen-sulfide as I mentioned
earlier? Is EPA, which has administrative authority to adjust
them, considering guidance to family farms to lessen anxieties
that may have been created, or is EPA already considering
adjustments to the reportable quantity limit? I look forward to
hearing from them on this point.
Finally, Mr. Chairman, although you did not want this
hearing to explore this issue, this Committee, which has
jurisdiction over public health, should examine the impact, if
any, of large industrial-sized poultry CAFOs and the proximity
of poultry CAFOs to industrial-sized hog farms on the spread of
infectious diseases, including avian flu.
Mr. Chairman, I thank you, and I look forward to the
testimony of the witnesses.
Mr. Gillmor. Thank you. The gentlelady from New Mexico, Ms.
Wilson.
Ms. Wilson. Thank you, Mr. Chairman. I came early because I
was looking forward to a few laughs from Ralph Hall's opening
statement, and I was amazed that he was so restrained, my
colleague from Texas.
The livestock industry is a very important part of----
Mr. Gillmor. Do you want him to start again?
Ms. Wilson. The livestock industry is a very important part
of New Mexico's economy, and there are nearly 200 dairy farms
in New Mexico. Most folks are surprised that New Mexico is such
a dairy state. I think we just recently passed Texas as the No.
8 dairy producer in the Nation. Those dairies employ about
3,000 people in our State, and they have--and we have the
largest average herd size in the Nation, between 1,600 and
1,700 average size of a herd. And the interesting thing is that
not one of them is corporate-owned. They are all owned by
families, many of them several generations.
It is about a $1.6 billion industry in New Mexico, and
there are about almost 200 concentrated animal feeding
operations in my State as well. These cattle operations and
dairy farms are already regulated, both federally and by our
State. And, in fact, in New Mexico, the State regulation seems
to be pretty good. The dairy farmers and the cattlemen from my
State are not asking to be exempt from regulation. They are
just asking Congress to clarify that a dairy farm is not a
Superfund. There is a significant difference, and it wasn't
intended to apply to animal agriculture.
I think we also have the potential where, unless we act, we
are going to have judges and courts deciding--or trying to
decide--what it was that the Congress intended when we passed
the Superfund law, and we should just be clear up front, rather
than having our dairy farmers and cattle operators fighting in
court over what we thought we meant a whole long time ago. So
rather than spending--have our folks spend a whole lot of money
with litigation costs, we should just clarify this, and
continue to regulate these operations under the Clean Water
Act, the Clean Air Act, and State laws to protect the
environment, not try to deal with the problem by redefining a
set of statutes--the Superfund--that really wasn't intended for
this purpose.
And I thank the Chairman for holding this hearing today,
and I look forward to working with him. Thank you, Mr.
Chairman.
Mr. Gillmor. Thank you. The gentleman from New Jersey,
Senator Pallone.
Mr. Pallone. What did you just say? Senator Pallone--oh,
please.
Mr. Gillmor. Mr. Pallone Mr. Pallone. God, the abuse. That
is all right. Thank you, Mr. Chairman. I am glad that you
called this hearing so we can publicly discuss an issue that,
so far, has been the subject of under-the-radar attempts to
undermine critical environmental protections. It is important
that we examine how CERCLA and EPCRA may apply to large
industrial agricultural operations. I come from a State where
we know well the consequences of toxic pollution. New Jersey
has the dubious distinction of being home to more Superfund
sites than any other State, and my constituents health
continues to be threatened by serious contamination.
It is my understanding that many of these mega-farms more
closely resemble industrial operations than family farms, and
can often create industrial levels of pollution. And that is
why I don't take lightly any efforts to change CERCLA or EPCRA,
two laws that are critical for protecting our citizens' health.
EPCRA ensures that the public has access to information about
large releases of toxic chemicals, and it is always
disconcerting to hear of attempts to hide this sort of
information from the public. CERCLA, for its part established a
principle that polluters, not taxpayers, should pay to clean up
our Nation's most seriously contaminated sites. In instances
where vast quantities of manure have contaminated waterways and
caused taxpayers to pay for expensive cleanups, I think there
is a legitimate interest to consider pursuing reimbursement
from the polluters.
It is also important to point out that CERCLA does not
allow for incessant citizen lawsuits or impose undue regulatory
burdens on farms. Citizens can only sue to recover cleanup
costs, and only if the response action was done in accordance
with the EPA's national contingency plan. Injunctive relief is
only available to the President, and natural resource damage
suits are only available to State or Federal trustees.
I look forward to hearing from the witnesses further about
this issue. But since we have brought up the topic of
Superfund, I would like to take this opportunity to suggest to
the Chairman that there is another pressing, and related topic,
in which I think we should at least hold a hearing. Reports
from the EPA Inspector General, and others, have found a
serious shortfall in funding for mediation of existing orphaned
Superfund sites across the country. Our subcommittee should
examine the current funding situation for the program, where
the funding shortfalls have slowed down or prevented cleanup of
specific sites, and whether Congress needs to reinstate the
Superfund taxes to ensure that polluters, not taxpayers, pay
for the cost of cleaning up our Nation's worst toxic sites.
And this issue hits close to home for me. A site in my
district, Imperial Oil, is currently waiting more than $17
million from the EPA so that remediation work can begin. Given
the EPA's inability to adequately fund work at other sites in
my district, I am skeptical that Imperial Oil, and many others
like it in New Jersey, will be cleaned up in a timely fashion.
Mr. Chairman, I look forward to working with you on this,
and other issues before the subcommittee. Thank you.
Mr. Gillmor. Thank you. And the Chair recognizes the
Chairman of the Full Committee, Mr. Barton.
Chairman Barton. Thank you, Chairman Gillmor, for holding
this hearing on the application of Superfund laws to animal,
agriculture, and farming operations.
Today, your subcommittee begins the first Congressional
look into whether these laws are the proper means for further
environmental regulation of the agricultural community, and if
so, how they should apply. I know there is a very heartfelt
conviction on this issue, and we are going to hear from
witnesses with their concerns on both sides of the issue.
I understand that Superfund laws and the reporting have
rarely--their reporting have rarely, if ever, been enforced
against our farmers and ranchers in this country. I know that I
have not thought of the farms and ranches in my Congressional
District and in Texas as Superfund sites. Smelly, maybe, but
not Superfund sites. That today's agriculture producer faces a
different world than the one which existed when the Superfund
first became a Federal law. I know that in order to remain
competitive, agriculture has begun to consolidate, just like so
many other United States industries. Despite these pressures,
the work of American farmers and ranchers continues. They
produce the food we eat and the clothes we wear. I am not going
to endorse anything that erodes the U.S. farm and ranch
community ability to provide the safest, most affordable, and
most abundant food supply and fiber supply in the world. I want
rural America to be more than just a good place to live. I
still want it to be a good place to raise a family and make a
living.
I also share a concern with many of my colleagues on this
Committee about what happens when the courts begin to write
public policy instead of the legislature, whether it be at the
State level or the Federal level. It is our job, as Congress,
to write the law, not a court somewhere. Since this Superfund
application issue seems to take so many farmers, or beginning
to take so many farmers out of their fields and put them in
courtrooms, I think we as a Congress have an obligation to take
the issue up. That is why we are here today. If we need to
legislate and clarify exactly what a Superfund site is, then we
need to get the facts first, and that is why we are here.
If this Committee decides to move forward on legislation, I
want to know what the facts are. Recognizing all the places
that this Committee's jurisdiction impacts America, and
specifically farms and ranches, especially when a new farm bill
is on the rise, and I hope that after today's hearing, we can
work on a bipartisan basis to decide if legislation is needed,
and what that legislation is, and then move forward.
With that, Mr. Chairman, I yield back the balance of my
time.
[The prepared statement of Hon. Joe Barton follows:]
Prepared Statement of Hon. Joe Barton, Chairman, Committee on Energy
and Commerce
Thank you, Chairman Gillmor, for holding this hearing on the
application of Superfund laws to animal agriculture and farming
operations. Today, this subcommittee begins the first congressional
look into whether these laws are the proper means for further
environmental regulation of the agricultural community, and how they
should apply. I know there is very heartfelt conviction on this issue
and we will hear from witnesses with their concerns on both sides.
I understand that Superfund laws and the reporting have rarely been
enforced against farmers. I know that I've not thought of the farms and
ranches in my congressional district as Superfund sites. Smelly maybe,
but not Superfund sites.
It is a fact, however, that where I see the cradle of civilization
and the producers of America's food and fiber, some just see toxic
waste and a reason to sue.
Today's agricultural producer faces a different world than the one
which existed when Superfund first became law. I know that in order to
remain competitive, agriculture has begun to consolidate, just like so
many other U.S. industries. Despite the pressures, the work of American
farmers and ranchers continues to produce the food we eat and the
clothes we wear. I will not endorse anything that erodes U.S.
producers' ability to provide the safest, least costly, and most
abundant food supply in the world.
I want rural America to be more than just a good place to live. I
want it to be a good place to make a living.
I also share a concern with many of my colleagues on this Committee
about what happens when the Courts begin to write public policy. That's
our job.
Since this Superfund application issue seems to take so many
farmers out of their fields and put them into courtrooms, we have an
obligation to take it up. That's why we are here today.
Now, regardless of my own sentiments, I am committed to a fair and
open process as our Committee moves forward. Recognizing all the places
our jurisdiction impacts farms and rural America, especially with a new
farm bill on the horizon, I hope that we can work effectively with the
farmers and ranchers s to solve this puzzle.
With that I yield back the balance of my time.
Mr. Gillmor. I thank the Chairman, and we recognize the
gentleman from Michigan, Mr. Stupak.
Mr. Stupak. Thank you, Mr. Chairman, for holding today's
hearing, and welcome to our witnesses.
I look forward to today's hearing and an open discussion
regarding animal feeding operations, or AFOs, as--and whether
they should be exempt from certain environmental laws. There
are questions that need to be answered, and while I don't
expect we will find all the answers today, I think this hearing
is important so we can explore any potential environmental and
public health risk that AFOs, and in particular CAFOs--the
industrial-sized livestock farms--may pose to the workers and
the surrounding communities.
Animal feeding operations produce over 500 million tons of
manure annually, and introduce substantial amounts of waste
into the environment. The waste is associated with several
pollutants including pathogens, antibiotics and arsenic, that
pose serious public health and environmental risks. These
contaminants can be harmful when they find their way into our
surface water and groundwater, and also when significant
amounts are emitted into the air that we breathe.
I come from the great State of Michigan, and my
Congressional District in northern Michigan is surrounded by
the Great Lakes on three sides, so clean water is very
important to the residents of my State as the Great Lakes are
our source of drinking water, recreation, fishing, and through
tourism, an integral part of our State's economy.
We have a number of CAFOs located in Michigan. If you take
a look at this map here of lower Michigan, you all see that
CAFOs noted, and in looking at the corresponding stars which
indicate the beaches that have very high level of E. coli
pollution. E. coli is a pathogen contained in CAFOs' generated
waste. The map shows connection between CAFOs and the pollution
on our beaches. Waste from CAFOs run into creeks, rivers,
making its way to the shores of our lakes where we experience
contamination and numerous beach closings.
Numerous studies have been performed regarding the effect
of CAFO-generated waste on the public health, including the
workers and the people who reside near these CAFOs. These
studies have shown that many CAFO workers experience high rates
of respiratory problems and other health ailments, and those
residing near these locations have experienced similar adverse
health effects. The American Public Health Association,
Michigan State Medical Society, and the Canadian Medical
Association have called for a moratorium on new CAFOs until
sufficient additional scientific data on public health risk has
been collected.
We should be holding industry accountable for the pollution
they emit. The CERCLA and EPCRA reporting requirements seem
like a common sense approach so that we know where, when, and
how much hazardous substances are released that could be
dangerous to the public. And until the scientific data from the
Consent Decree that the EPA and 2,700 farming companies have
entered into is finished, I think it is premature to exempt the
agriculture industry from such laws. We don't exempt the
factories or manufacturing plants in Detroit. The residents of
Detroit and the residents of rural Michigan deserve the same
public safeguards.
The Great Lakes area drinking water--the Great Lakes area
drinking, water source for over 30 million Americans, their
health and their future is not something to be taken lightly. I
have concerns about exemptions for certain industry from
environmental laws that could have long-standing negative
impacts on a natural resource that cannot be replaced. I look
forward to hearing from our witnesses, and thank you for the
time, Mr. Chairman.
Mr. Gillmor. The gentleman from New Hampshire, Mr. Bass.
Mr. Bass. Thank you, Mr. Chairman. And I will just
paraphrase my opening statement and submit it to the record. I
want to thank you, all the witnesses, for being here today. I
think it is imperative that, regardless of whether we are
talking about an industrial plant, agricultural operation, or a
small family farm, we have to be sure that these farms are
being operated in an environmentally friendly manner and
complying with Clean Air, Clean Water, and under other
environmental regulations.
I guess the real issue here today is to here opinions on
whether recent cases brought against large livestock operations
are because the farms are not performing best practices or are
they being brought to court under frivolous claims or
inappropriate application of current environmental laws. I hope
that the subcommittee can ensure that normal farm practices, as
a definition, is not incorrectly manipulated and turned against
farmers doing all they can do to comply with environmental
laws. And many of them, I might note, work closely with the
resource--Natural Resource Conversation Service and other
agencies to find best practices. I was amazed to discover that
my home State of New Hampshire, I have over 40,000 livestock,
over 6,000 poultry, and over 6 million tons of--excuse me, not
tons, 6 million pounds of manure a day. And I thought
agriculture had all moved out to the Midwest, but it hasn't. It
is not a small amount, and it is a critical issue in my neck of
the woods, and most notably over in Vermont, we share a common
river, the Connecticut River.
So I think this is an interesting hearing, Mr. Chairman,
and I will look forward to hearing from our witnesses. And I
yield back.
[The prepared statement of Hon. Charles Bass follows:]
Prepared Statement of Hon. Charles Bass, a Representative in Congress
from the State of New Hampshire
Thank you Chairman Gilmore.
I would like to first thank all of the witnesses for being here
today. It is imperative that regardless of the type of facility--an
industrial plant or a farm--we must ensure that it is being operated in
an environmentally-friendly manner and is complying with the Clear Air
Act, the Clean Water Act, and other environmental regulations.
Some may want to argue that this hearing today is the first attempt
to exempt farmers from environmental laws and no longer hold them
responsible for their emissions. I would have to disagree and I doubt
anyone would want to see Congress give agricultural businesses an
outright exemption from performing best practices to protect our air,
water, and land. Many farmers are proud of their conservations efforts,
especially since it does not serve the farmer well to contaminate his
land to the point it will no longer be as productive.
The real issue today is to hear opinions on whether the recent
cases brought against large livestock operations are because the farms
are not performing best practices or are they being brought to court
under frivolous claims or inappropriate application of CERCLA and other
environmental laws. It is important for this Subcommittee to ensure
that the description of "normal farm practices" is not incorrectly
manipulated and turned against farmers doing all that is possible to
comply with environmental laws--many of whom work closely with Natural
Resources Conservation Service and other federal agencies to find the
best practices to protect their farmland and our watersheds.
Many of my fellow colleagues have large livestock operations in
their district with farmers who are fearful that they will be put out
of business due to expensive court cost. My State of New Hampshire does
not have these types of large operations, but similar concerns do
extend to the New England small family farm. New Hampshire has 152
licensed dairy herds that produce about 330 million pounds of milk per
year. In my district, there are 5,900 poultry, 4,037 cattle, 36,761
dairy cows, and several hundred other types of livestock. I am sure
many of my colleagues here would assert these are definitely small
operations and that my whole district could make up one of their
facilities. However, the same issues from both the side of environment
concerns and agricultural businesses still play out in New Hampshire.
In one of our witness's testimony, he will state that up to 115 pounds
of manure is produced per day by a dairy cow. So from my calculations,
the cattle and dairy cows in my district are releasing over 6 millions
pound per a day--not a small amount of waste and definitely a critical
issue that needs to be addressed in how the waste is handled and its
affect on watersheds and air quality. On the other hand, many of my
farmers are nervous that the small farmer may eventually be unfairly
brought to court or that egregious laws will be applied to them making
it impossible for them to stay in operation- destroying a very integral
part of my State. A particular concern is a potential clash between
agriculture and residential development. All over my state we are
seeing housing developments being built on old farmland--sometimes
right up to an existing farm. It is not unrealistic for the farmer to
be worried that the residential community next to his farm may complain
about groundwater and clean air issues even though the farmer is
working diligently to comply with emission regulations. Some of these
farms have been in existence since the 1600s and would be put out of
business by costly court fees on top of the large expense of running
their farm as an environmentally-friendly operation.
Therefore, this hearing is important to the entire agriculture
industry whether it is a large corporate farm with a thousand head of
dairy cows at one facility or the small family farm with a few hundred
head of dairy cows. We need to ensure that the farmers that are
performing best practices are not burden with an inappropriate
application of Superfund laws, but yet ensuring that there is a
mechanism in place to go after agriculture operations that are not
complying with regulations. It is also important as Congress we ensure
that the mechanisms to help the farmer to comply with environmental
regulations continue in the 2007 Farm Bill--such as Environmental
Quality Incentives Program. Without these types of technical
assistance, small farmers in particular will be at a disadvantage in
continuing to ensure they are in compliance with federal, state, and
local environmental regulations.
I'd like to thank the witnesses for being here and I look forward
to their testimony.
Mr. Gillmor. Gentleman yields back. The gentlelady from
Wisconsin, Ms. Baldwin.
Ms. Baldwin. Thank you, Mr. Chairman. I am sure that it is
no surprise when I say that agriculture has been the lifeblood
of my home State of Wisconsin's economy for well over a
century. Today, Wisconsin's farms and agricultural businesses
generate more than $51.5 billion in annual economic activity,
and provide jobs for more than 420,000 people.
While agriculture has remained a vital component of
Wisconsin's economy, the very nature of farming has changed
drastically in every State over the last few decades. Small
family farms that had been the bedrock of rural communities
have increasingly been replaced or consolidated into large
corporate farms, often growing large enough to be classified as
concentrated animal feeding organizations, or CAFOs. It is
estimated that 54 percent of U.S. livestock are now
concentrated on 5 percent of livestock farms, with a typical
CAFO raising thousands of animals in confined areas.
The growing--the growth of CAFOs is of concern to me.
According to the Department of Agriculture, these mega-farms
are already generating an estimated 575 billion pounds of
animal manure every year. This amount of waste could pose
serious threats to our environment and the public's health.
Manure can contain harmful byproducts, such as heavy metals,
antibiotics, pathogen bacteria, a number of toxic gasses, and
over 400 separate volatile compounds. In Wisconsin, 59 manure
spills have been reported over the last year, 12 of which
contaminated private wells, and 12 more that killed fish in
local streams.
In 2004, a Kewaunee County family fell seriously ill when a
CAFO near their home irresponsibly spread liquid manure on
frozen and snow-covered ground, which led to a massive manure
runoff and eventual contamination of their drinking water
supply. The most dramatic fish kill in Wisconsin occurred in
early spring of 2005 when liquid manure spread over frozen
ground ran off into the west branch of the Sugar River and
killed a significant number of brown trout. Dane County,
through which the Sugar River runs, had spent more than $1
million over several years restoring this once-prized trout
stream before this spill.
I certainly have concerns about CAFOs impact on our
environment and the public's health, however I also realize
that our domestic food supply depends on a vibrant agricultural
sector. I look forward to hearing from out witnesses today
address the question of how we balance these interests. But, I
must say that I have strong concerns about any effort to exempt
CAFOs from the Superfund laws and the Emergency Planning and
the Community Right-to-Know Act. I believe this would be a
mistake. And, Mr. Chairman, I yield back the balance of my
time.
Mr. Gillmor. I thank the gentlelady. The gentleman from
Idaho, Mr. Otter.
Mr. Otter. Thank you, Mr. Chairman. Mr. Chairman, I am
going to submit my remarks for the record and yield back my
time.
Mr. Gillmor. I thank the gentleman. Gentleman from
Washington, Mr. Inslee.
Mr. Inslee. Thank you, Mr. Chairman. Just one brief
comment: I hope we might have some discussion about digesters
and use of this material for energy as part of our discussion.
Thank you.
Mr. Gillmor. Gentleman from Oklahoma, Mr. Sullivan?
Mr. Sullivan. Thank you, Mr. Chairman. I appreciate you
calling this hearing today to address the issue of Superfund
laws and animal agricultural waste. This issue is of critical
importance to my State of Oklahoma, and particularly
northeastern Oklahoma. I would like to welcome two of our
witnesses, Ms. Kelly Hunter Burch, Chief of the Environmental
Protection Unit and Assistant Attorney General of Oklahoma, and
Mr. Steve Kouplen, President of the Oklahoma Farm Bureau. I
know that both of you have divergent positions on this issue,
and I appreciate you being here to offer your views on how to
address interstate agricultural waste, and specifically your
views on the historical and current application of CERCLA to
poultry waste.
As a Congressional Representative for the 1st Congressional
District of Oklahoma, I represent the city of Tulsa, Oklahoma.
In 2003, the city of Tulsa reached a settlement with Tyson
Foods, and other poultry defendants, regarding excessive
poultry waste in the Eucha and Spavinaw Watershed. This
watershed is the principle source of water for the residents of
Tulsa. The settlement is slowly producing results. The amount
of poultry waste being applied to the land and the watershed
has been cut by two-thirds, and the odor and taste of the water
has improved, but the process is still ongoing and it will take
years to know if the settlement has been successful.
Unfortunately, politics and political pressures have muddied
the waters on all sides of that issue. We need to get back on
track toward dialog, and all parties need to come together to
set principles for managing agricultural waste.
While I have concerns about CERCLA litigation, few can
state that the excess poultry waste is not having a negative
effect on Oklahoma's scenic waterways. The Oklahoma Attorney
General has stated that the phosphorous from poultry waste from
the Illinois River Watershed is equivalent to the waste that
would be generated by 10.7 million people, a pollution greater
than the State of Arkansas, Kansas, and Oklahoma combined. This
is a problem. It is true that Oklahoma's scenic waterways are
suffering from excess out-of-state poultry waste, and that this
waste is negatively impacting the quality of life of
Oklahomans.
The subcommittee has an opportunity today to ask several
questions and look at the potential economic impact of these
lawsuits. Currently, 508 Oklahoma poultry farms are located in
the Illinois River Watershed, and they would be negatively
impacted if animal manure is found by the courts to be a
hazardous waste under CERCLA. If CERCLA is amended to exclude
animal manure, we also need to look at what resource will the
State and municipalities have to respond to environmental
demands resulting from excess agricultural waste in the scenic
waterways and the drinking water supply, and whether mechanisms
under the Clean Water Act sufficiently address these
environmental concerns.
I look forward to the hearing, hearing the testimony from
our panel of witnesses, and I yield back the balance of my
time. Thank you.
[The prepared statement of Hon. John Sullivan follows:]
Prepared Statement of Hon. John Sullivan, a Representative in Congress
from the State of Oklahoma
Mr. Chairman, I appreciate you calling this hearing today to
address the issue of Superfund laws and Animal Agriculture waste. This
issue is of critical importance to my state of Oklahoma, particularly
Northeastern Oklahoma.
I would like to welcome two of our witnesses, Ms. Kelly Hunter
Burch, Chief of the Environmental Protection Unit and Assistant
Attorney General of Oklahoma, and Mr. Steven Kouplen President of the
Oklahoma Farm Bureau. I know that both of you have divergent positions
on this issue and I appreciate you being here to offer your views on
how to address interstate agriculture waste and specifically your views
on the historical and current application of CERCLA to poultry waste.
As the Congressional Representative for the First District of
Oklahoma, I represent the City of Tulsa Oklahoma. In 2003, the city of
Tulsa reached a settlement with Tyson Foods and other poultry
defendants regarding excess poultry waste in the Eucha and Spavinaw
watershed. This watershed is the principal source of water for the
residents of Tulsa. The settlement is slowly producing results. The
amount of poultry waste being applied to land in the watershed has been
cut by two-thirds, and the odor and taste of the water has improved.
But the process is still ongoing and it will take years to know if the
settlement has been successful.
Unfortunately, politics and political pressures have muddled the
waters on all sides of this issue. We need to get back on track towards
dialogue and all parties need to come together to set principles for
managing agriculture waste.
While I have concerns about CERCLA litigation, few can state that
excess poultry waste is not having a negative effect on Oklahoma's
scenic waterways. The Oklahoma Attorney General has stated that the
phosphorus from poultry waste from the Illinois River watershed is
equivalent to the waste that would be generated by 10.7 million people,
a population greater than the states of Arkansas, Kansas and Oklahoma
combined. This is a problem. It is true that Oklahoma's scenic
waterways are suffering from excess out of state poultry waste, and
that this waste is negatively impacting the quality of life of
Oklahomans.
The Subcommittee has an opportunity today to ask several questions
and look at the potential economic impact of these lawsuits. Currently,
508 Oklahoma poultry farms are located in the Illinois River watershed,
and they would be negatively impacted if animal manure is found by the
courts to be a hazardous waste under CERCLA. If CERCLA is amended to
exclude animal manure, we also need to look at what recourse will
states and municipalities have to respond to environmental damage
resulting from excess agricultural waste in scenic waterways and in
drinking water supplies, and whether mechanisms under the Clean Water
Act sufficiently address these environmental concerns.
I look forward to hearing the testimony from our panel of witnesses
and I yield back the balance of the time.
Mr. Gillmor. Gentleman yields back. The gentleman from
Georgia, Mr. Deal.
Mr. Deal. Thank you, Mr. Chairman. Everybody comes to this
hearing today with a point-of-view, I am sure, and we are
looking forward to the point-of-view of the witnesses, and I
welcome all of you here. My point-of-view is that my State of
Georgia, for the 21st consecutive year at the end of 2004, was
the No. 1 producer of broilers in this country. My County and
my city of Gainesville, Georgia, calls itself the poultry
capital of the world. We have about 1.3 billion broilers
produced in my State every year. Now, most of those are being
produced on small family farms. Although the industry itself is
integrated, the poultry houses and the land on which they are
located are generally owned by small individual farm units, and
the impact of legislation or extension of legislation such as
extending Superfund liability to them, could have a disastrous
effect.
I think all of us are concerned about the issue of
pollution. I think the agriculture industry has been more than
responsive in that area. Not only do we have the protections of
the total maximum daily load that they are complying with, we
also have, of course, the provisions of the Clean Water Act
that they are complying with along with State rules and
regulations and laws that regulate them as well. So I believe
that it is important that we get the facts and we get them
correct. I am also pleased that--to be an original co-sponsor
of the legislation that Mr. Hall referred to earlier, which
hopefully will be a legislative clarification of the previous
intents of Congress.
But, I do look forward to this hearing, and I thank the
witnesses, and I yield back my time.
Mr. Gillmor. Gentleman yields back. The gentleman from
Pennsylvania, Mr. Murphy.
Mr. Murphy. Mr. Chairman, I will submit my comments to the
record, but I do want to say on behalf of the many poultry
farmers in Pennsylvania, and dairy farmers, I want to thank you
for having this hearing.
Mr. Gillmor. Thank you very much. The bells you heard go
off indicate that we have two votes, and we have 15 minutes
from the first bell to vote. I want to ask you, Mr. Breen, if
possible, I would like to get your testimony in, and you have
been through this so many times, I am sure you can do it in 5
minutes.
Mr. Breen. Five minutes?
Mr. Gillmor. Thank you very much.
STATEMENT OF BARRY BREEN, DEPUTY ASSISTANT ADMINISTRATOR,
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL
PROTECTION AGENCY
Mr. Breen. You are welcome. Good afternoon. My name is
Barry Breen, and I am the Deputy--thank you. I appreciate it.
I am Deputy Assistant Administrator for EPA's Office of
Solid Waste and Emergency Response. Thank you for inviting me
to appear today to discuss the application of CERCLA and the
Emergency Planning and Community Right-to-Know Act, EPCRA, on
animal agricultural operations. I will summarize my testimony
and ask that the entire written statement be submitted for the
record.
Mr. Gillmor. Without objection.
Mr. Breen. What I have to report to you today is a status
report on our work-in-progress. There are some things we know,
and some things we don't know. We are working to find out some
of the things we don't know. These are particularly true in the
area of science and practical applications and implications,
but we are mindful that this is an important issue, we need to
move expeditiously.
As background, CERCLA requires that any person in charge of
a facility notify the National Response Center, the NRC, as
soon as he or she has knowledge of the release of a hazardous
substance from that facility at quantities equal to or greater
than the reportable quantities, the RQs. Similarly, EPCRA
requires that local emergency planning committees be notified,
and that the State emergency response commissions likely to be
affected of extremely hazardous substances also be notified.
Neither CERCLA nor EPCRA limit the industry or commercial
sectors that need to report. Any facility releasing more than
an RQ must report. CERCLA and EPCRA release reporting
requirements provide useful information for State and local
planning committees and serve the public and the EPA in
identifying facilities that release reportable quantities of
hazardous substances. CERCLA and EPCRA authorize and
enforcement for failure to report releases of hazardous
substances that equal or exceed their RQs. However, with one
exception that I know of where EPA and the Justice Department
intervened in an already on-going private party Clean Water Act
case, EPA has never relied on these authorities as the primary
reason to take action against an animal feeding operation
facility owner or operator, and in no case has any response
been taken that I know of on an animal feeding operation
related to releases of hazardous substances from manure. EPA
has not targeted agricultural operations for CERCLA or EPCRA
reporting actions, and as far as I know, we have no plans to do
so.
What EPA has done is develop voluntary enforcement
agreements with animal feeding operations. Under the AFO Air
Compliance Agreement, respondents pay a penalty to resolve
potential civil liabilities and to fund an extensive national
AFO air monitoring study. This study will specifically address
some of the science that we need, the data, and the emission
estimating methodology needs that the National Academy of
Sciences has reported that we need.
Approximately 2,700 proposed agreements have been submitted
to EPA, covering more than 6,000 pork, poultry, and dairy
farms. Last week, on November 9, EPA submitted the first set--
approximately 20--of these agreements to the Environmental
Appeals Board for approval. We are keenly aware that several
recent court decisions have generated concern. However, EPA was
not a party to that litigation, and we do not have positions on
many of the issues in the litigation. We have received the
National Chicken Council, National Turkey Federation, and U.S.
Poultry and Egg Association petition for exemption from EPCRA
and CERCLA. We are currently reviewing the petition and will
soon make the petition available for public comment through a
docket. A Federal register notice will announce the
availability of the petition, along with a specific request for
public comment.
I would like to reiterate that the notification provisions
of CERCLA and EPCRA allow the Federal Government and State
governments to evaluate and appropriately respond to releases
of hazardous substances. EPCRA specifically allows the public
to participate through community involvement and the Community
Right-to-Know provisions. EPA appreciates that there remain a
number of issues of interest to the agricultural community, and
that there is also significant Congressional and public
interest in the outcome as well. We are actively working to
resolve these issues, consistent with the mission of the EPA.
That concludes my remarks, Mr. Chairman, and, at your
convenience, I will be happy to respond to any questions.
[The prepared statement of Barry Breen follows:]
Prepared Statement of Barry Breen, Deputy Assistant Administrator,
Office of Solid Waste and Emergency Response, U.S. Environmental
Protection Agency
Mr. Chairman and members of the Subcommittee, I am Barry Breen,
Deputy Assistant Administrator for the Office of Solid Waste and
Emergency Response at EPA. Thank you for inviting me to appear today to
discuss environmental issues involving animal agricultural operations.
My testimony will address issues regarding the application of the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) and the Emergency Planning and Community Right-To-Know Act
(EPCRA) to animal agricultural operations; or sometimes called animal
feeding operations (AFOs).
background
The Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) section 103(a) requires that any person in
charge of a facility notify the National Response Center (NRC), as soon
as he has knowledge, of the release of a hazardous substance from that
facility in quantities equal to or greater than those determined under
section 102(b) of CERCLA. Those quantities are called the Reportable
Quantities or RQs. Similarly, EPCRA section 304 requires that the local
emergency planning committee (LEPC) for any area likely to be affected,
and the State emergency response commission (SERC) of any State likely
to be affected by the release of an extremely hazardous substance
listed under EPCRA Section 302 also be notified. Neither CERCLA nor
EPCRA limit the industry or commercial sectors that need to report;
therefore any facility releasing more than an RQ must report. With
respect to AFOs, the CERCLA hazardous and EPCRA extremely hazardous
substance most likely to trigger an RQ are (1) ammonia at 100 pounds
per 24 hours, and (2) hydrogen sulfide also at 100 pounds per 24 hours.
Ammonia is most often used at a farm as fertilizer and thus, is stored
in tanks and can be released. However, at AFOs, another likely release
source of these hazardous substances is the agricultural waste that is
either stored or placed on the facility.
The National Contingency Plan (NCP) at 40 CFR 300.125, sets forth
the requirements for notification and communications with the National
Response Center (NRC). The NRC is located at the United States Coast
Guard Headquarters and is the continuously manned national
communications center for handling activities that may require an
emergency response action. The NRC acts as the single point of contact
for all pollution incident reporting. Notices of releases are made to
the NRC by telephone and are immediately relayed to the appropriate
predetermined federal on-scene coordinator (OSC). The telephone report
is distributed to any interested National Response Team member agency
or federal entity that has established a written agreement or
understanding with the NRC. The NRC also evaluates incoming information
and immediately advises the Federal Emergency Management Agency (FEMA)
of a potential major disaster situation.
As noted above, the purpose of the release reporting is to alert
appropriate first responders and to keep state and local entities
informed. However, not all chemical releases reported to the NRC are
necessarily ``emergencies.'' In addition, there are times when an
industrial facility will release a hazardous or extremely hazardous
substance at quantities above the RQ but for a longer duration than
what might be judged to be in an emergency situation. In such a case,
CERCLA section 103(f)(2) provides for exemptions from notice and
penalty provisions for continuous releases of hazardous substances.
Releases may be reported less frequently than otherwise would be
required, if they are ``continuous'' and ``stable in quantity and
rate,'' and if notification has been given under section 103(a) ``for a
period sufficient to establish the continuity, quantity, and
regularity'' of the release. Hazardous substance releases that are
continuous and stable in quantity and rate may be reported under a
reporting scheme set forth in 40 CFR 302.8--Continuous releases. The
basic structure for continuous release reporting requires the owner or
operator of the facility to make an initial telephone call to the NRC
stating that he intends to submit a continuous release report. That
initial call is followed by a written report, within 30 days, to the
appropriate EPA Regional office where the release is occurring. Each
year on the anniversary of that report, the facility owner or operator
must review the release report to determine if changes have occurred in
any of the previously submitted information. For example, the rate of
release, source, composition, contact information, or facility
ownership may have changed since the previous report. If so, then the
facility owner or operator must provide a follow-up notification report
within 30 days of the anniversary that updates the information
submitted in the original notification. The continuous release reports
should also be submitted to the appropriate SERC and LEPC to satisfy
the EPCRA section 304(c) notification requirements.
Section 109 of CERCLA and section 325 of SARA Title III authorizes
EPA to assess civil penalties for failure to report releases of
hazardous substances that equal or exceed their RQs. Section 103(b) of
CERCLA, as amended, authorizes EPA to seek criminal penalties for
failure to report releases of hazardous substances and for submitting
false or misleading information in a notification made pursuant to
CERCLA section 103. Except for the case described below where the
Government settled with the nation's second largest pork producer,
Premium Standard Farms, Inc. (PSF), and Continental Grain Company, Inc.
when it intervened in a private party CWA case, EPA has never relied on
these authorities as the primary reason to take action against an AFO
facility owner or operator and in no case has any response been taken
on an AFO related to releases of hazardous substances from manure.
Several recent court decisions have generated concern among some in
the animal agricultural operations industry about the CERCLA and EPCRA
notification and reporting requirements. However, EPA was not a party
to the litigation. Further, EPA does not have positions on many of the
issues in the litigation. The heightened attention has prompted the
National Chicken Council, National Turkey Federation and U.S. Poultry &
Egg Association to submit a petition for exemption from EPCRA and
CERCLA reporting requirements for ammonia emissions from poultry
operations. The Agency is currently reviewing this petition and will
soon make this petition available for public comment through its
docket. A Federal Register notice will announce the availability of the
petition along with a specific request for public comment.
epa program implementation
Under CERCLA, the U.S. Environmental Protection Agency, must be
notified when there was a release of a hazardous substance into the
environment. CERCLA defines what those hazardous substances are by
referring to several other environmental statutes but it also gives the
Agency the authority to designate additional hazardous substances which
when released into the environment may present substantial danger to
the public health or welfare or the environment. The Agency was also
required by CERCLA section 102(a) to promulgate regulations
establishing the quantity of any hazardous substance that if released
shall be reported pursuant to CERCLA section 103(a). Every year, the
NRC receives thousands of reports of releases of hazardous substances.
Section 300.130 of the NCP sets forth the requirements to determine
whether to initiate a response. In the past, federal response has been
limited to the release of ammonia or hydrogen sulfide to air from
animal agricultural operations from chemicals stored on-site in tanks.
EPA is examining whether changes should be made to reduce the burden on
the industry. The CERCLA and EPCRA release reporting requirements
provide useful information for State and local planning committees and
serve the public and the Agency in identifying facilities that release
reportable quantities of hazardous substances.
To date, there has only been a single matter in which EPA has
issued a finding of violation (FOV) against a farm for violations of
CERCLA 103 and EPCRA 304, although the FOV primarily focused on CWA
section 301 and CAA section 110 violations. In that case, the
Government settled with the nation's second largest pork producer,
Premium Standard Farms, Inc. (PSF), and Continental Grain Company, Inc.
The settlement resolved alleged violations of the Clean Water Act
(CWA), CAA, CERCLA and EPCRA that occurred at a number of the
companies' factory farms in northwest Missouri. It is important to note
that the Government intervened in a private party CWA case and the
government did not initiate the action.
After an NAS study found that that scientifically sound and
practical protocols for measuring air emissions from AFOs needed to be
developed, EPA concluded that the better course was developing the AFO
Agreement, followed by emissions estimating methodology. EPA may use
CERCLA authority to respond to certain catastrophic releases of
hazardous substances or wastes such as from a lagoon failure near a
public waterway.
afo agreement
In late 2001, discussions began between EPA and representatives
from the AFO industry on the concept of a voluntary enforcement
agreement that would ensure compliance with federal laws pertaining to
air emissions. In December of 2001, EPA and the U.S. Department of
Agriculture also asked the National Academy of Sciences (NAS) to review
and evaluate the scientific basis for estimating emissions of various
air pollutants from AFOs. The NAS issued a final report in February,
2003 concluding that scientifically sound and practical protocols for
measuring air emissions from AFOs needed to be developed. The NAS also
found that existing methodologies for estimating air emissions from
AFOs are generally inadequate because of the limited data and site
specific factors on which they are based. In response to the 2003 NAS
report, EPA began revising the conceptual enforcement agreement to
specifically address the data and emission-estimating methodology
needs, thus beginning to address the needs cited by the NAS, and
determining AFO regulatory responsibility under the CAA, CERCLA, and
EPCRA. Over the next two years, EPA sought input and comment on drafts
of the enforcement agreement from many groups, including state
officials, representatives from the agricultural industry,
environmental organizations, and local citizen groups.
On January 31, 2005, EPA published a notice in the Federal Register
offering animal agricultural operations an opportunity to sign a
voluntary Consent Agreement and Final Order. The deadline to sign the
proposed Agreement was August 12, 2005. Approximately 2,700 proposed
Agreements have been submitted to EPA, covering over 6,000 pork,
poultry, and dairy farms. In its January 31, 2005 notice, EPA also
requested public comment on the proposed Air Compliance Agreement, and
received over 600 unique comments.
Under the AFO Air Compliance Agreements, Respondents pay a penalty
to resolve potential civil liability and participate in funding an
extensive, national AFO air monitoring study by contributing up to
$2,500 per farm into an EPA-approved monitoring program. The civil
penalties range from $200 to $1000 per farm covered, depending on the
size of the farm, with an absolute penalty cap of $100,000 per
Respondent regardless of how many farms are covered.
The monitoring study will lead to the development of methodologies
for estimating emissions from AFOs and will allow Respondents to
determine and comply with their regulatory responsibilities under the
CAA, CERCLA, and EPCRA. Once applicable emission-estimating
methodologies have been published by EPA, the liability release in the
proposed Agreement is contingent on the Respondent certifying that it
is in compliance with all relevant requirements of the CAA, CERCLA, and
EPCRA. In return, Respondents receive a release and covenant not to sue
for the specific violations identified by applying the relevant
emissions-estimating methodologies as long as the participating animal
agricultural operations comply with all of their obligations under the
Agreement.
The AFO Air Compliance Agreement is an important part of EPA's
strategy to address air emissions from AFOs. In addition to resolving
the compliance status of AFOs under the relevant statutes, it will
provide critical data that will allow EPA to quantify emissions coming
from AFOs and, if necessary, to identify appropriate regulatory and
nonregulatory responses for controlling those emissions.
On November 9, 2005, EPA submitted the first set of AFO Air
Compliance Agreements to the Environmental Appeals Board for approval.
We anticipate that the Board will consider the submitted Agreements
within the next several months. Assuming Board approval, EPA has made a
determination that there is adequate participation and representation
to warrant proceeding with the national air monitoring study for egg-
layer and swine AFOs. We are still processing and reviewing Agreements
from the other animal sectors and have not made a decision yet of
adequate participation and representation for dairy and meat-bird AFOs,
but expect to do so soon.
conclusion
In conclusion, I would like to emphasize that the notification
provisions under CERCLA and EPCRA allow for the Federal government to
evaluate and appropriately respond to releases of hazardous substances.
EPCRA specifically, allows the public to participate through its
community involvement and community right-to-know provisions. EPA
appreciates that there remain a number of issues of interest by the
agricultural community yet to be addressed by the Agency and that there
is also significant Congressional and public interest in the outcome as
well. Let me assure you that EPA is actively working to resolve these
issues consistent with the mission of the U.S. Environmental Protection
Agency to be protective of human health and the environment.
Mr. Gillmor. Thank you very much for your testimony. At
this point, I think we will go into recess so that the members
may vote, and as soon as the votes are over, we will come back
and we will begin with a round of questions of Mr. Breen, and
then we will go to the second panel. And to those on the second
panel who haven't testified before, I want to guarantee you we
will not subject you to another round of opening statements. We
will go straight to testimony and questions.
Stand in recess.
[Brief recess.]
Mr. Deal [presiding]. I will call the hearing back to
order. Chairman Gillmor has a mark-up going in another
Committee and requested that I preside in his absence, so he
will be back before the next panel, I hope.
Mr. Breen, I will--excuse me. I will begin the questioning,
and we will not have long questioning if we don't have some
more members show up here.
First of all, with regard to this issue, if we don't
consider that any of the so-called Superfund-type legislation
applies, isn't it true that you still have fairly substantial
regulation that would apply to these large agricultural
operations?
Mr. Breen. Mr. Chairman, I believe that is true, although
Air and Water is a little beyond my regular ken so I couldn't
talk about that in detail.
Mr. Deal. Right. But you are, of course, familiar with the
general requirements of total maximum daily load requirements,
et cetera, that if violations of the permits that are granted
are violated, that certain recourses could be had, both civil
and criminal consequences, I believe?
Mr. Breen. Yes. Violations of a permit can often lead to a
civil enforcement. Criminal probably involves a certain mental
state of mind that I am less able to detail.
Mr. Deal. With regard to the agreements that you alluded to
in your opening statement, would you repeat for me how many of
those agreements have actually been entered into?
Mr. Breen. Yes. We have 2,700 companies that have submitted
agreements, signed up for the agreements, representing somewhat
over 6,000 separate farms.
Mr. Deal. And is the primary purpose of that to simply
collect data and information? Is that the primary purpose of
it? I know it does grant some immunity as a part of the
agreement, but you are primarily trying to gather some data, is
that correct?
Mr. Breen. That is right, Mr. Chairman. For a certain
period of time, there is certain covenants not enforced during
that period of time, but the benefit for the public is at least
as much to get the scientific studies going that will take
about 2 years to complete. But we hope to get data much faster
than to have to wait the full 2 years to get the data.
Mr. Deal. I recall conversations that I had with the
poultry industry, which is the primary industry as I indicated
in my opening statement in my Congressional District. I believe
that there was some reluctance on the part of some within that
industry, but I think that the National Chicken Council agreed
that they would fund a study with the protocols that you had
suggested, that they would self-fund a study to achieve that
same kind of information. Am I correct?
Mr. Breen. I just can't confirm or disagree with that. I
just don't know.
Mr. Deal. But if they were to do that and apply the same
protocols and reporting information, that would be helpful, I
suppose, in this information-gathering stage?
Mr. Breen. Yes. The science from any source would be
helpful.
Mr. Deal. All right. I believe that will be all for me.
And, Ms. Solis, I will recognize you.
Ms. Solis. Thank you, Mr. Chairman. Mr. Breen, it appears
to me that there is significant confusion and misinformation on
this topic regarding the responsibilities and authorities of
the Superfund's implementation, and I would like to ask you
some questions. And because I don't have a lot of time, if you
could give me a simple yes or no. So the first question I have
is is it correct that the natural resource damage actions under
Section 107 of Superfund can only be brought by Federal,
tribal, or State Natural Resource trustees?
Mr. Breen. I will do my best to give you a yes and no as
best it can be honest and fair. Section 107F provides that
liability for natural resource damages is to state, Federal,
and tribal governments. I am not aware of any successful
citizen suit that has expanded that provision.
Ms. Solis. Okay. Second question is is a citizen suit
action available under Superfund for natural resource damages?
Mr. Breen. I am not aware of any successful action in that
regard.
Ms. Solis. So you are not clear on that at this time, okay.
Is it correct that the injunctive relief and imminent and
substantial endangerment authority under Section 106 can only
be exercised by the President and not citizen suits under
Superfund?
Mr. Breen. Section 106 Injunctive Relief is only available
to the Federal Government.
Ms. Solis. And can a city or an individual with a citizen
suit force the President to list a site on the National
Priorities List?
Mr. Breen. No, that is a discretionary function.
Ms. Solis. Okay. And is it also correct that the Superfund
definition of release excludes the normal application of
fertilizer?
Mr. Breen. I will want to double-check, but I believe you
are right.
Ms. Solis. Yes. And manure qualifies as a fertilizer, is
that correct?
Mr. Breen. I don't know that we have a clear statement on
that.
Ms. Solis. And so will you get back to us to clarify that?
Mr. Breen. One of the things we are doing is to try to look
for ways that we need to be clearer in this area of
considerable confusion, as you have said, and whether we can be
clearer in that way in a way that is helpful--and there are
several other ways we might be clearer--is something we are
looking into.
Ms. Solis. Okay. Then my next question is if manure--
therefore manure would not be a release under the statute if it
was normally applied?
Mr. Breen. Again, I expect that all those words have--
freighted with meaning in particular factual circumstances, so
I think we would need to see what each of those things mean on
a certain set of facts each time.
Ms. Solis. Okay. And have any companies in the farm
community asked EPA and the Administration to issue guidance to
further explain how the term ``normal application of
fertilizer'' should be interpreted for the purpose of Superfund
statute?
Mr. Breen. We have received requests for clarification.
Whether that clarification request goes to that specific issue,
I am just not personally familiar at the moment.
Ms. Solis. Can you submit that information to our
Committee?
Mr. Breen. Yes.
Ms. Solis. Okay. And then also, Mr. Breen, is it correct
that 2,700 companies representing the various agricultural
sectors who have signed the Air Compliance Consent Agreement
have agreed to report releases of hazardous substances such as
ammonia and hydrogen-sulfide over reportable quantities under
Section 103 of Superfund and under the Emergency Planning and
Community Right-to-Know Act once the proper methodology and
procedures are determined and EPA promulgates the rules?
Mr. Breen. My understanding is that once the situation is
clarified by some of the facts we hope to gather through the
scientific study, that then entities that entered into a--would
have 120 days to start reporting, if applicable.
Ms. Solis. And then, last, are there any regulatory
consequences after someone files a report stating releases of
ammonia over 100 pounds a day?
Mr. Breen. No regulatory consequences in the CERCLA area. I
couldn't speak to whether there are in any other--any other
State law, for example.
Ms. Solis. Okay. I yield back the balance of my time.
Mr. Deal. I thank the gentlelady. Mr. Sullivan?
Mr. Sullivan. Thank you, Mr. Chairman. Thank you, Mr.
Breen, for being here. And I have been in Congress about 4
years and the first meeting I had was with Christine Todd
Whitman in my office right after I got sworn in, and we have a
huge issue in my State about the poultry issue and other
pollutants that get in the water affecting Tulsa, which is 82
percent of my Congressional District, and it has been very
frustrating, I hate to say, with all due respect, dealing with
the EPA. They are very effective at saying nothing and doing
nothing, I think.
Even some of the comments, I am sure, were written for you.
It said here, ``several recent court''--this is a good
example--``several recent court decisions have generated
concern among some of the animal agriculture operations
industry about CERCLA and EPCRA notification and reporting
requirements. However, EPA was not party to the litigation.
Further, EPA does not have positions on many of the issues in
the litigation.'' And we have a hard time--you know, with
Arkansas and Oklahoma working and we always try to--EPA will
come down, say, you know, they put on a show, and--but they
don't--nothing happens. They say, we want you guys to work it
out, and it has been difficult. We have had some breakthroughs
in some of the negotiations, but could you please detail for me
EPA's actions to encourage settlement in mediation--you know,
we don't need lawsuits. We can do it through that way--of water
quality issues between Oklahoma and Arkansas and the poultry
industry? Is there a role that you have?
Mr. Breen. Thank you.
Mr. Sullivan. Because I want to tell you one other thing,
too. In my district, I have home builders who have a silt
fence, might fall over from a kid riding their bike over it in
a neighborhood they are building, and the Region 6 people will
come up and fine them. If someone spills some paint out there,
they get fined. I mean, stuff like that happens, but no one is
addressing this, and I just wanted to know what you have to
say.
Mr. Breen. First of all, let me apologize on behalf of the
Agency for the frustration that you feel. Certainly that would
never be our intent, and I apologize.
One of the things we are trying to do in this area is look
for common ground, and one area of common ground might be to
work with States in the near-term to look for ways to make the
reporting obligations less burdensome. I don't want to
overcompensate in either direction, and I recognize--we all
do--that States and local governments have an important role in
this. And so one thing I hope that the Agency will do in the
very term will be to reach out to states and local governments
and find out how much need they have for this information, and
what uses they put to it, and whether there are ways that we
can use reports that are already submitted to State governments
to do double job, that they can satisfy CERCLA and EPCRA
obligations in addition to whatever State law obligations they
serve.
That kind of sort of search for ways that are win-win for
everybody is something I think is useful in a first step, but I
don't know how far it will take us, and we would be happy to
report back to you and others once we have gotten a certain way
down that road as to how much we can accomplish.
Mr. Sullivan. Well, if we have two parties, Oklahoma and
Arkansas, wanting to work together with the poultry industry,
they are kind of--they want to come together. It is very
difficult because there are divergent views and it is tough and
there is a lot at stake, what--I mean, can you come in and be
some kind of--I guess I envision that you can, since you are
the EPA of the Federal Government, come in and kind of corral
everybody, kind of get them together to work. Is that not what
the EPA would do? Is that not a role of a Federal agency to do
that----
Mr. Breen. Thank you.
Mr. Sullivan. [continuing] in the United States?
Mr. Breen. Thank you. I want to be careful that we would
only do so in a situation where we would add more light than
heat, and not rile things up more just by being there. I am not
aware in that particular situation that parties have asked us
to join in in that way and mutually agreed that that would be
helpful. Often it is a neutral that people that would seek, not
a Federal agency.
Mr. Sullivan. If I as a Congressman asked, and other
members of my delegation asked, would that be appropriate to
have you come in and help these parties figure something out
without a lawsuit?
Mr. Breen. Congressman, naturally, your asking would be
very important, but how we would react, I would have to take
back and think through what the people closest to that issue.
Mr. Sullivan. You said in this statement that you submitted
that you have--the EPA, where it says here in your testimony,
you state that ``the EPA does not have positions on many of the
issues involved in the litigation between the animal
agriculture industry, states and the municipalities.'' What
issues in the litigation, if any, does the EPA have a position
on? It says many.
Mr. Breen. Right.
Mr. Sullivan. There may be some.
Mr. Breen. Thank you. I actually haven't read all the
briefs and all the complaints, so I can't tell you what issues
are raised that we have already dealt with and briefed on
behalf of the United States. I have not gone through and
catalogued in that way.
Mr. Sullivan. Would you think the EPA would state a
position on something in it?
Mr. Breen. I am not sure----
Mr. Sullivan. Doesn't any----
Mr. Breen. [continuing] that we would naturally wander into
other litigation and state positions unless it had been
something that we already had a position on because of some
litigation we had been part of.
Mr. Sullivan. Also, one more question, does the EPA have
any plans to clarify what livestock producers' obligations are,
if any, under CERCLA?
Mr. Breen. Yes, we do hope to make some progress in that
area, starting with getting some burdens reduced as much as we
can and then seeing if further clarification will be helpful
beyond that.
Mr. Sullivan. Okay. Thank you, Mr. Chairman.
Mr. Deal. Thank you. Mr. Stupak?
Mr. Stupak. Thank you, and thank you, Mr. Breen. Are the
reporting requirements and response requirements under CERCLA
and EPCRA overly burdensome for the large CAFOs?
Mr. Breen. I suppose you would have to ask them that.
Mr. Stupak. Well, I am looking on page 3 of your testimony,
you talked about Tyson's Foods, the world's largest meat
producer, enjoyed $26.4 billion in sales, and realized $1.9
billion in gross profits in 2004. Smithfield Foods, the
Nation's largest hog producer, generated $9.3 billion in sales,
and $227 million net income. And it goes on, it says, ``revenue
and profits continue to grow each year.'' So I guess I am
taking it from your testimony it is not overly burdensome then.
Mr. Breen. Actually, you may be reading somebody else's
testimony.
Mr. Deal. It is testimony from the second panel, one of the
witnesses----
Mr. Stupak. Somebody gave me the wrong testimony, so I
can't attribute it to you. Sorry.
Mr. Breen. I wish I were that smart.
Mr. Stupak. I was giving you all the credit. Let me ask you
this one then, in January 2003, the GAO Report on Livestock/
Agriculture used 11,500 as the estimated number of confined
animal feeding operations in this country. How many are
required to have a Clean Water National Pollutant Discharge
Elimination System permit and how many have actually been
permitted, do you know?
Mr. Breen. Let me get you that answer for the record, sir.
I don't know off the top of my head.
Mr. Stupak. Okay. Let me ask you this one then. If a
discharge from an agriculture operation into surface water has
a Clean Water Act permit, would it be exempt from CERCLA
Section 103 and EPCRA Section 104 Notification Requirements?
Mr. Breen. This is the federally permitted release----
Mr. Stupak. Right.
Mr. Breen. [continuing] exemption? Although I am familiar
with the exemption, I have not tracked back whether it tracks
to both the reporting or the response. Either or both, I don't
know.
Mr. Stupak. Okay. I am looking at your document here. This
is the EPA Questions/Answers to Release Notification
Requirements and Reportable Quantity Adjustments.
Mr. Breen. Okay.
Mr. Stupak. Okay. And I am looking on page 28, number 56.
What is the scope of the federally permitted release exemption
and such as Section 101-10 defines federally permitted release
in terms of releases per minute, honoring a number of other
environmental statutes, releases they are federally permitted
or exempt, not only from CERCLA 103 and EPCRA Section 103
Notification Requirements, but from CERCLA liability as well.
Mr. Breen. Thank you.
Mr. Stupak. That answers that question then, right?
Mr. Breen. If it is in our fact sheet, I am sure it is
right.
Mr. Stupak. Okay. Let me ask this question: some of the
highest fugitive air emissions for ammonia reported in 2003 EPA
Toxic Release Inventory were from poultry operations in Ohio.
How many reports for ammonia in EPCRA has the EPA received in
the last 2 years from family farms and how many from COFAs?
Mr. Breen. Okay. I can help a little on that, although I
don't know if I can nail it down quite the way you framed it.
We get--we being the National Response Center, the NRC, which
is actually staffed by the Coast Guard--gets approximately
32,000 to 34,000 incidents reported per year of all types, and
that is over the last 5 years. I haven't seen 2005 data. That
is 2000 through 2004. Of that 32,000 to 34,000, about 11,800 to
13,000 per year are from fixed sources. So lots are from
railroads, you know, pipelines, things that wouldn't really be
a part of the universe we are thinking of here. Of that 11,800
to 13,000, a little over 1,000 per year--1,041--are from
ammonia, and an average of 556 are from hydrogen-sulfide. And
there is a split in there between episodic and continuous
releases that I can get--go down, drill down further on that if
you would like.
We asked one of our best folks to go back for 1904 and look
at which of those were confirmed from animal feeding
operations. For 2004 on the ammonia side, of the 1,041 ammonia
reports received from fixed sources, we were able to confirm
that 45 were from animal feeding operations, six episodic, and
six continuous. On the hydrogen-sulfide side, of the average of
556 per year, in 2004, 25 were confirmed from animal feeding
operations, none episodic, and 25, all 25, were from continuous
releases. But, I ought to caution you two things in using these
numbers.
First, we don't know what is unreported, we only know what
is reported. And, second, it is not always clear from a
preliminary review of the report whether we are able to confirm
that the source is an animal feeding operation or not.
Sometimes it is something like--or call in, I smell something
in the air, and by looking at that, it is not clear where it
came from. But I was able to tell you where we were able to
confirm it, based on a preliminary review.
Mr. Stupak. Well, in these reports in the animal feeding
lots there, has there been any regulatory consequences after
they report? I mean, you have these reports coming in. Are
there any regulatory consequences then?
Mr. Breen. Well, one thing I would like to help find out
for you is what State governments needs for is in this
information area. I don't have that information available at
the moment.
Mr. Stupak. Okay. So I'm looking here at your 2003 report,
onsite, offsite. When I take a look at it on the fugitive air
emissions number 8, number 10, number 20, and then they are
ranked by the amount of emissions. The top three of 20 are from
Ohio, and it looks like poultry producers in that State. Does
that sound correct?
Mr. Breen. You are looking at the Toxic Release Inventory?
Mr. Stupak. Yes.
Mr. Breen. Actually, that is a separate provision. The
Emergency Planning and Community Right-to-Know Act splits----
Mr. Stupak. Correct.
Mr. Breen. [continuing] fairly neatly into two halves, and
what I have been talking about up until now was the Emergency
Planning half rather than the Community Right-to-Know half. I
don't have an ability to second-guess the numbers on the Toxic
Release Inventory.
Mr. Stupak. Thank you.
Mr. Deal. We have two members who are close by. As Mr.
Dingell is outside, we will recognize him next for questions.
Mr. Dingell. Mr. Chairman----
Mr. Deal. You are recognized, Mr. Dingell.
Mr. Dingell. [continuing] thank you for your patience. Mr.
Breen, I, first of all, will be submitting a letter to you
asking a number of questions on this legislation that have not
been included in your testimony or, I think, in the testimony
of other witnesses. Mr. Chairman, I ask unanimous consent that
that letter and the response that Mr. Breen sends on behalf of
EPA be inserted in the record.
Mr. Deal. Without objection.
Mr. Dingell. Mr. Breen, referring to premium standard
farms, they had 900,000 hogs under confinement, and they make
application of 750 million gallons of animal waste to the
surrounding acreage annually. Is it--does this have a potential
for risk to the human health?
Mr. Breen. First, Mr. Dingell----
Mr. Dingell. Just yes or no.
Mr. Breen. I am not sure I can fairly answer----
Mr. Dingell. It does or it doesn't?
Mr. Breen. [continuing] it with yes or no, sir.
Mr. Dingell. You are going to tell me that it is perfectly
safe?
Mr. Breen. No.
Mr. Dingell. Are you going to tell me it is not safe?
Mr. Breen. What I wanted to do was make sure we had our
numbers down right.
Mr. Dingell. All right. 900,000 hogs I got, 750 million
gallons of annual waste.
Mr. Breen. The figures I have are 2 million hogs a year----
Mr. Dingell. Two million hogs.
Mr. Breen. [continuing] at a dozen facilities.
Mr. Dingell. I apologize to you. And how much waste?
Mr. Breen. I don't have that figure.
Mr. Dingell. Now----
Mr. Breen. But not 2 million at one facility, sir. Two
million at about a dozen facilities.
Mr. Dingell. Okay. Now, I have been out in Colorado where
they have Montfort, you have heard of it?
Mr. Breen. Sorry?
Mr. Dingell. Montfort, M-o-n-t-f-o-r-t. You can smell it
for 30 miles up and down the front range. It is a huge cattle
feed lot operation. Now, this--I found this in the EPA Fact
Sheet in the Premium Farm Standard case. It says as follows,
``Significant human health and environmental risks are
generally associated with large-scale concentrated animal
feeding operations (CAFOs). Improper handling of manure from
feedlots, lagoons, and improper land application can result in
excessive nutrients (nitrogen and phosphorous); pathogens
(fecal coliform); and other pollutants in the water. This
pollution can kill fish, cause excessive algae growth,
contaminate drinking water. In addition, pollution--emissions
of air pollutants from very large CAFOs may result in
significant health effects for nearby residents.'' Do you agree
with that?
Mr. Breen. I did not bring that fact sheet with me. I did
bring the Agency's----
Mr. Dingell. But do you agree with it?
Mr. Breen. --Toxic Substances and Disease Registry Fact
Sheets with me.
Mr. Dingell. Do you agree with it?
Mr. Breen. I would have to have it in front of me, sir, and
be able to carefully read it.
Mr. Dingell. Sir, I'm reading out of the EPA Fact Sheet.
Mr. Breen. I will let it stand for what----
Mr. Dingell. Maybe----
Mr. Breen. [continuing] it says.
Mr. Dingell. Maybe you have differences with EPA on matters
involving health. Am I correct on that? All right. Now, 2
million hogs, how much--they would produce fecal matter or
animal waste in amounts that would approximately equal that of
a city of what size?
Mr. Breen. I would have to get you that number for the
record.
Mr. Dingell. Would it be a hick town or would it be a major
metropolitan area?
Mr. Breen. I will find out.
Mr. Dingell. All right. Now, I have got a bunch of small
farmers. I want to protect them. They have animal feeding
operations that--and I want to try and figure out what amount
of hogs, or size of herd or flock, would trigger the reporting
requirements for ammonia and hydrogen-sulfide of 100 pounds per
day.
Mr. Breen. Actually, that is one of the things we don't
know, and we hope that the science will help develop from our
Consent Agreement.
Mr. Dingell. Now, have you--has the Administration provided
any guidance to small farmers that have animal feeding
operations?
Mr. Breen. We haven't provided sufficient guidance. I think
we can do better.
Mr. Dingell. When will you get around to that?
Mr. Breen. We are going to start by finding out what State
and local governments need, and looking for areas we can make
the burden less in reporting and see how far that takes us and
go from there.
Mr. Dingell. Well, maybe you can help me with this
question. Do you believe any small farm operations, as opposed
to industrial-sized CAFOs, would actually trigger the reporting
requirements for ammonia and hydrogen-sulfide?
Mr. Breen. I am going to just have to let each set of facts
stand on its own. What is small? What is large? I just couldn't
answer.
Mr. Dingell. Is there anybody in the room that you could
turn to who might help you with that?
Mr. Breen. I don't think so. I think a lot would depend on
facts that we don't have.
Mr. Dingell. Well, Mr. Chairman, I am going to yield you
back 8 seconds.
Mr. Deal. I thank the gentleman for his generosity. Mr.
Gillmor was expected back but is not here, so Mr. Breen, thank
you so much for your testimony and appearance here today, and I
will call the second panel to the table, if they would come
forward. Mr. Hall, did you want to question Mr. Breen?
Mr. Hall. No.
Mr. Deal. Okay. Thank you. Thank you, ladies and gentlemen,
for being here. I will introduce the panel, a very
distinguished group, I might add. And thank you all for your
time in being here. Ms. Kelly Hunter Burch, who is the
Assistant Attorney General of the State of Oklahoma; Mr. Wiley
Stem III, Assistant City Manager of the city of Waco, Texas;
Mr. Steven Kouplen, President of the Oklahoma Farm Bureau, and
here on behalf, I believe, of the American Farm Bureau
Federation; Mr. Robert T. Connery, who is a partner in Holland
and Hart, and also is appearing here on behalf of the National
Cattlemen's Beef Association; Mr. John Starkey, who is Vice
President of Environmental Programs of U.S. Poultry and Egg
Association; and Dr. Leon D. Weaver, Managing Member of
Bridgeport Dairy, and is appearing on behalf of Continental
Dairy Products, Incorporated, and Select Milk Producers,
Incorporated; Dr. Robert Lawrence, Associate Dean for
Professional Practice and Programs at Johns Hopkins Bloomberg
School of Public Health; and Ms. Michele Merkel, Senior Counsel
of the Environmental Integrity Project.
And, ladies and gentlemen, each of you will be recognized
for 5 minutes. Your statements that are prepared in advance are
already a part of our records, so recognizing that 5 minutes is
not a very long time to talk, I would ask if you would try to
summarize that. Ms. Burch, we will start with you.
STATEMENTS OF KELLY HUNTER BURCH, CHIEF OF ENVIRONMENTAL
PROTECTION UNIT AND ASSISTANT ATTORNEY GENERAL, OFFICE OF THE
OKLAHOMA ATTORNEY GENERAL; WILEY STERN III, ASSISTANT CITY
MANAGER, CITY OF WACO; STEVEN KOUPLEN, PRESIDENT, OKLAHOMA FARM
BUREAU; ROBERT T. CONNERY, PARTNER, HOLLAND AND HART, ON BEHALF
OF NATIONAL CATTLEMEN'S BEEF ASSOCIATION; JOHN STARKEY, VICE
PRESIDENT, ENVIRONMENTAL PROGRAMS, U.S. POULTRY AND EGG
ASSOCIATION; LEON D. WEAVER, MANAGING MEMBER, BRIDGEWATER
DAIRY, MANAGING PARTNER, BRIDGEWATER FARMING, ON BEHALF OF
CONTINENTAL DAIRY PRODUCTS, INC., AND SELECT MILK PRODUCERS,
INC.; ROBERT S. LAWRENCE, ASSOCIATE DEAN FOR PROFESSIONAL
PRACTICE AND PROGRAMS, AND EDITH SCHOENRICH, PROFESSOR OF
PREVENTIVE MEDICINE, JOHNS HOPKINS BLOOMBERG SCHOOL OF PUBLIC
HEALTH POLICY; AND MICHELE M. MERKEL, SENIOR COUNSEL,
ENVIRONMENTAL INTEGRITY PROJECT
Ms. Burch. Thank you. Thank you for allowing me to be here
with you today. The issue that I think--are of great importance
to the State of Oklahoma, we are currently dealing with
widespread pollution caused by the improper waste disposal
practices of industrial-scale poultry operations. The impacts
of these practices are seen across roughly the eastern third of
our State.
One of the areas most impacted by the release of hazardous
substances is the Illinois River and Lake Tenkiller Watershed.
This watershed also happens to be one of the most highly valued
and protected watersheds in the State. The Illinois River
Watershed has historically been noted for its great beauty, its
clear high-quality water, and its ecological diversity. Early
travelers to the area called it one of the prettiest rivers on
the continent. The State has designated the Illinois River and
its tributaries as State scenic rivers, and Lake Tenkiller has
been referred to as the Emerald Jewel in Oklahoma's Crown of
Lakes. As a result, tourism has been a major part of the
region's economy, and the watershed serves as a valuable source
of drinking water for 22 public water supplies.
This watershed is divided almost equally between Arkansas
and Oklahoma. The Arkansas side is the center of Arkansas'
poultry industry, which ranks second in broiler production in
the United States. As of 2002, confined poultry feeding
operations in the Illinois River Watershed were estimated to
produce an amount of phosphorous equivalent to the waste of
10.7 million people. This waste, in addition to phosphorous,
includes nitrogen, arsenic, zinc, copper, hormones,
antibiotics, and a myriad of pathogens. Phosphorous, arsenic,
zinc and copper are designated hazardous substances under
CERCLA.
This waste is typically improperly stored and disposed of
on lands within the watersheds, far in excess of any legitimate
crop need or the capacity of the soil to retain them. The
constituents of the waste have been released into the surface
water, the groundwater, and the sediments of the Illinois
River. The result has been widespread and well-recognized
pollution of an entire watershed.
The State first began negotiations to put an end to these
practices with the poultry industry in November of 2001. In the
years that followed, the State worked hard to avoid litigation,
and employed every conceivable method for resolution, from
informal negotiations with the assistance of EPA Region 6 and
the Arkansas Attorney General, to formal mediation with a
formal Federal--with a former Federal judge. All of these
efforts failed to bring resolution.
In June of this year, the State was forced to file
litigation against responsible companies in Federal court. The
litigation was filed under Section 107 of CERCLA as well as
other State and Federal laws. The case was filed on behalf of
the State of Oklahoma and the Oklahoma Secretary of
Environment. The goal of the litigation is to stop the improper
disposal and clean up the watershed.
It is also important to note that the litigation is
directed at the responsible companies, and it is not directed
at any individual farmers upon who the companies often place
the burden of waste disposal. As you can imagine, Oklahoma is
strongly opposed to the proposal to exempt releases of
hazardous substances by the poultry industry from CERCLA.
CERCLA is a long-standing, important Federal law that provides
a mechanism for states to protect their citizens and their
environment from the dangers of hazardous substances.
Make no mistake, such an exemption is asking--would be a
substantial change in the Law. There is no animal agriculture
industry exemption in CERCLA, nor is such an exemption
justified. It is important to understand that the pollution
caused by industrial animal agriculture is well-documented,
serious, and of a Nation-wide scope. In fact, the EPA has
reported that the agriculture sector is the leading contributor
of pollutants to the Nation's lake and rivers.
The animal--the industrial animal feeding operations are
not the family farm. We are talking about a multi-billion
dollar industry that produces an enormous volume of waste. In
2003, it was estimated that animal feeding operations generated
more than 500 million tons of waste. Approximately three times
more raw waste than is generated by humans. The overwhelming
majority of these operations are not regulated under the Clean
Water Act, and they are not adequately regulated in Arkansas.
In addition, the hazardous substances found in poultry
waste are not naturally occurring. There in the waste is the
direct result of the industry's addition of phosphorous,
arsenic, copper and zinc to poultry feed. While CERCLA exempts
the normal application of fertilizer, it does not exempt
widespread surface disposal, nor the resulting releases of
hazardous substances.
In conclusion, the release of hazardous substances from the
poultry industry's waste disposal practices is a serious
problem across the United States. CERCLA provides an important
mechanism for the states to respond to the problem and hold the
companies responsible rather than using taxpayer funds to clean
up the industry's pollution. The poultry industry should be
subject to the same laws that apply to other industries in the
country. Hazardous substance disposal and the resulting
pollution should not be condoned by the creation of an
exemption for the industry in Federal law. Thank you again for
the opportunity to present our views on this issue to you.
[The prepared statement of Kelly Hunter Burch follows:]
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Mr. Gillmor. Thank you, Ms. Burch. And before I go to Mr.
Stem, I want to thank Congressman Deal for so expeditiously
handling the hearing while I had to be at another mark-up. Mr.
Stem.
STATEMENT OF WILEY STEM III
Mr. Stem. Thank you, Mr. Chairman and members of the
committee. I wanted to let you all know that I have worked for
the city of Waco for 29 years and mostly in the Public Works
area. I also wanted to tell you that since 1961, my family has
owned and operated a cow/calf operation in Falls County, Texas,
and for the past 20 years, I have been a member of the Farm
Bureau.
Lake Waco represents the public drinking water supply of
the city of Waco, and a significant source of drinking water
for many surrounding communities, approximately 150,000
citizens. There is no viable alternative to this water source.
Over the last 20 years, Lake Waco water has become impacted due
to the flow of phosphorous from the North Bosque River into
Lake Waco, which is directly attributable to the discharge of
phosphorous from waste application fields on dairy CAFOs.
The EPA and the Texas Commission on Environment Quality
have identified the North Bosque River as impaired. In July of
2004, the TCEQ issued a report stating that 90 percent of the
controllable phosphorous in the North Bosque River comes from
concentrated animal feeding operations, or CAFOs. The Texas
Institute for Applied Environmental Research, located in the
heart of dairy country in Stevenville, Texas, has been studying
this issue for the past decade, and has concluded that 35
percent of the phosphorous in Lake Waco comes from dairy CAFO
waste application fields. They also concluded that without
substantial reducing, runoff of phosphorous from the dairy
fields, the overloading of phosphorous in Lake Waco cannot be
resolved. Scientific studies have shown that excess phosphorous
floating in Lake Waco causes algae blooms, and those blooms
cause taste and odor problems with water in our lake. It is
unquestioned that the dairy CAFOs have, and will continue to
be, the major source of overloading Lake Waco, causing taste
and odor problems with the water from the lake.
I think it would be helpful to go over some statistics
regarding the waste generated by dairy cows in the North Bosque
Watershed. A dairy cow generates up to 150 pounds of waste a
day. Considering that there are over 50,000 permitted head of
dairy cow in the watershed, the amount of waste produced each
day would exceed 5,750,000 pounds, which is 2,875 tons of waste
each day. A single dairy cow may produce as much as 40 pounds
of phosphorous per year, or more, which means permitted cows in
our watershed would produce as much as 2 million pounds of
phosphorous each year.
Over the last 10 years, the city has worked with every
stakeholder group to find a resolution to the issue. Our
community is very sensitive to the agriculture industry, as it
is such an important part of our economy. Being unable to get
rules and standards for the dairy CAFOs that would give us some
reasonable assurance that Lake Waco would be protected, and
being unable to get the dairy industry to accept any
responsibility or make any meaningful operational changes, we
noticed 15 dairies in the watershed of our intent to sue under
the Clean Water Act and CERCLA.
We gave them a 60-day notice and invited them to discuss
resolution with us. One of the 15 dairies contacted us. We did
not sue that dairy and are still in discussions with that
dairy. The other dairies didn't contact us, so we filed suit
against those 14 dairies. Over the course of the next year, we
settled with eight of the dairies in a manner that allowed them
to continue profitable operation while agreeing to changes that
will protect our lake.
As part of that lawsuit, the City included claims under
CERCLA. Now there is an effort to amend CERCLA to exclude
animal manure. I believe that such an amendment is unnecessary.
However, the city of Waco would support language that would
clarify protection for the family farm. We would not support
language that would provide protection for CAFOs.
To summarize, all credible scientists who have studied this
problem have concluded that the dairy CAFOs are the latest
single controllable source of phosphorous and pollution in the
Lake Waco Watershed. In light of that fact, why should a law be
passed that gives the dairy CAFOs an automatic pass and
prevents them from having any accountability for their failure
to properly handle their waste. Why should the taxpaying
citizens of Waco have to bear all the costs of the waste being
put into the lake when the dairies could buy grain, do some
relatively simple modifications in their waste disposal
practices, substantially minimize further pollution of our
lake.
In the face of the dairy CAFOs refusal to change their
practices to prevent damage or to be held accountable in any
way for the damage they have already caused, CERCLA is an
appropriate remedy and a necessary statute. Thank you.
[The prepared statement of Wiley Stem III follows:]
Prepared Statement of Wiley Stem III, Assistant City Manager, City of
Waco, Texas
I. INTRODUCTION
My name is Wiley Stem. I have been an employee of the City of Waco
for the past 29 years. Over that time I have worked as a management
analyst, assistant director of public works, water/wastewater
supervisor, and director of water distribution and wastewater
divisions. In 1999 I assumed a position as Assistant City Manager,
which is the position I currently hold. As Assistant City Manager my
responsibilities and duties include overseeing several different
departments within our local government, including water utilities,
environmental services, general services, public works, human resources
and parks and recreation.
I received a Bachelor of Business Administration degree from Baylor
University in 1976. I am a member of the International City Management
Association (ICMA), the Texas City Management Association (TCMA),
American Water Works Association (AWWA), and Water Environment
Federation, and for the past twenty years I have been a member of the
Texas Farm Bureau. I currently serve on the Brazos G Regional Water
Planning Group and am chair of the Waco Metropolitan Area Regional
Sewerage System. I have also served on the United Way board. On a
personal note, my family has had a farm in Falls County since 1961, and
we continue to have a cow/calf operation there.
I want to thank the Subcommittee on Environment and Hazardous
Materials for allowing me to testify regarding proposed amendments to
CERCLA that would exclude animal manure and anything in it from the
list of hazardous substances covered by the statute.
II. HISTORY AND CHARACTERISTICS OF LAKE WACO
Lake Waco is located in the southeastern portion of the Bosque
River Watershed, Brazos River Basin, entirely within McLennan County,
Texas, and on the northwestern edge of the Waco city limits. In or
about 1928, construction of a dam to impound Lake Waco began and was
completed around 1930.
Lake Waco is fed by the North Bosque, the Middle Bosque, and the
South Bosque rivers, and by Hog Creek. The contributing watershed to
Lake Waco is approximately 1,652 square miles with about 1,260 square
miles in the North Bosque River watershed. The North Bosque River and
its tributaries flow downstream and terminate in Lake Waco, which means
that pollutants dissolved and entrained in the waters of the North
Bosque are carried into, and ultimately deposited in, Lake
Waco.1
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\1\ Two maps of the North Bosque River Watershed and Lake Waco are
attached as ``Exhibit A''
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In or about 1958, the City of Waco, with the assistance and support
of the U.S. Army Corp of Engineers, began construction of a second
larger dam on Lake Waco to provide additional flood control and
drinking water. That project was completed in or about 1965.
III. USES OF AND IMPORTANCE OF LAKE WACO
Lake Waco represents the public drinking water supply for the City
of Waco and a significant source of drinking water for many surrounding
communities approximately 150,000 citizens.
Additionally, Lake Waco is used for a wide variety of recreational
activities, including fishing, boating, swimming, and water skiing.
Lake Waco shores also provide recreational activities and amenities in
the form of parks, picnic areas, boat docks and camping facilities.
Lake Waco is also put to a variety of other municipal purposes,
including irrigation and conservation.
A clean and reliable source of drinking water is indispensable to
the health and welfare of the citizens of Waco and is also essential to
the existence and growth of business and industry in Waco. A
substantial supply of clean water is also critical to the City's
ability to maintain and attract industrial enterprises.
Lake Waco is the regional water supply. There is no viable
alternative to the Lake as the regional water supply, and that will
continue to be the case into the foreseeable future.
IV. THE EFFECT OF DAIRY WASTE
In the later half of the 1980's, large industrial dairy operators
began moving into counties in the North Bosque River watershed. This
influx of dairy operators into the watershed coincided with a massive
increase in the amount of nutrients, and specifically phosphorus, which
were being released into the North Bosque River and ultimately
deposited into Lake Waco. The waste from these dairies is the single
most important cause of the environmental problems that are occurring
in the North Bosque River watershed and Lake Waco.
A. Dairies Produce Huge Amounts of Waste
A dairy cow generates up to 115 pounds of manure per day or more.
If we look only at the fourteen dairies that either were or presently
are involved in a lawsuit with the City of Waco, the permitted cows
from those diaries would account for in excess of 1,600,000 pounds of
manure per day. Considering that there are over 70 dairies in the North
Bosque River watershed that have over 50,000 permitted head of dairy
cattle, the amount of manure produced each day would be in excess of
5,750,000 pounds, or 2,875 tons of manure every day. In addition to the
solid waste generated by the dairy cows, the cows produce large amounts
of liquid waste.
In addition to the milking cows and the waste they produce, some
dairies maintain additional cows on their dairy which are not milked on
a daily basis. Those ``dry cows'', as they are called, can add another
7 to 15 percent to the overall size of the cow population on the dairy,
and the amount of waste produced by those dairies.
Best management practices indicate that to properly dispose of
waste, a dairy operator should maintain 1.5 to 3 acres of land per
dairy cow. For example, a 2,000 cow dairy ought to have 3,000 to 6,000
acres of land to properly dispose of waste produced by their cows. The
concentration of cows at dairies in the North Bosque River watershed is
often far greater than that. In many instances, dairies in this region
maintain less than \1/4\ to \1/5\ an acre per cow. One of the dairies
in the lawsuit brought by the City of Waco has 396 permitted acres of
waste application fields on which to dispose of the waste from 2,000
cows, and is seeking a permit amendment to increase herd size to 3,000
cows, without increasing the number of acres of permitted waste
application fields. Another dairy involved in the City of Waco lawsuit
is seeking to increase it's permitted number of cows to 2,500, despite
the fact that the dairy in question only has 83 acres of permitted
waste application fields.
The solid and liquid cow waste contains many pathogens and
bacteria. Significantly, the huge amounts of solid and liquid waste
generated by the dairy cows contain very high concentrations of
phosphorus. A single dairy cow may produce as much as 40 pounds of
phosphorus per year or more, which means permitted cows in our
watershed would produce as much as 2,000,000 pounds of phosphorus each
year.
B. Dairies in the North Bosque River Watershed Have Failed To Properly
Handle Liquid and Solid Waste
The phosphorus being released by these dairies is a pollutant and
is poisonous. Both CERCLA and the Clean Water Act recognize phosphorus
as a hazardous substance.
Because of the enormous amounts of waste generated on a daily basis
by dairies, it is critical that the dairy operators dispose of such
waste properly and in a way which ensures that the waste does not reach
the water supply. Many of the dairies in the North Bosque River
watershed have failed to properly manage and dispose of the waste from
their large commercial dairy operations. Two photographs are attached
as ``Exhibit B'', which show a dairy in the watershed where waste has
been over-applied on a waste application field, and that waste is
running directly into a tributary of the North Bosque River. Their
continued failure to do so has resulted in the pollution of Lake Waco
and substantial damage and injury to the citizens of central Texas who
rely on Lake Waco.
Liquid waste from cows and slurry resulting from washwater being
combined with solid waste from cows is collected in ``lagoons'' located
on the dairies. Because the lagoons are comprised of liquid waste, as
well as some substantial percentage of solid waste, the contents of
those lagoons is very high in phosphorus and other hazardous
substances. Those lagoons are supposed to be specially and properly
lined to ensure that the liquid waste is contained and does not leach
into the ground and into the groundwaters and water supplies. Many of
the dairies in this region have failed to construct and maintain their
lagoons in a way which prevents leaching.
Dairy operators are supposed to control the levels of the lagoons
to ensure that they do not overflow during rain and other events. Those
overflows, which are referred to as unauthorized discharges, are to be
prevented because, when they do occur, the waste runs, in an
uncontrolled manner, onto and over the land, off of the dairies and
into the groundwaters and surface water supplies. Again, the large
industrial dairies in the North Bosque River watershed have failed to
control the levels of their lagoons and have improperly maintained
their lagoons. These failures and omissions have resulted in wastewater
running out of the lagoons and into the watershed. This runoff occurs
not only in significant rains, but also at times when there is no or
relatively small rainfall events. Such occurrences are in violation of
these dairies' permits and in violation of state and federal law.
On those frequent occasions when the dairies have attempted to
reduce the volume of materials in their lagoons by spreading it on
their fields, they have frequently done so in a manner which results in
contents of the lagoons entering the creeks, the watershed and the Lake
Waco water supply.
These large industrial dairies also generate and have to dispose of
enormous amounts of phosphorus-containing dry manure. With their
permitted cows, the fourteen dairies that were or are defendants in the
City of Waco's lawsuit alone would generate in excess of 800 tons of
solid cow waste per day, which has to be disposed of on-site or is
stored in piles while waiting to be transported off-site.
The dairies routinely store large amounts of solid waste on their
property in waste storage areas. The waste in the waste storage areas
will be disposed on-site or transported off-site. The phosphorus in
such manure waste is present at levels which are far greater than those
present in normal agricultural operations. Several times a year, there
are heavy rains which turn portions of this stored waste into liquid
manure that runs off of dairy waste application fields and into the
watershed which supplies Lake Waco.
As a result of the conduct of some large industrial dairies in the
North Bosque River watershed, large amounts of manure-laden waste make
its way into the North Bosque River. This has dramatic detrimental
effects on Lake Waco.
Dairies also dispose of some of the waste they generate by
spreading it on waste application fields on their facilities. Because
the land they possess is so relatively small in comparison to the
number of cows they have confined in their pens, many of the dairies
long ago exceeded the natural capacity of the soils and vegetation on
their facilities to absorb the phosphorus or for the soil to otherwise
assimilate the phosphorus.
Fields containing phosphorus at levels in excess of 60 to 80 parts
per million (ppm) exceed the amount of phosphorus needed for optimal
growth for any type of plant. At levels of 200 ppm and higher, not only
is there far more phosphorus than can be used by plants, but there is
also a very high risk that the phosphorus will run off of the fields
and into the water supply at concentrations detrimental to the water
supply. Once soil phosphorus reaches levels in excess of 200 ppm, the
time required for the phosphorus levels to decline is considerable;
that process can take years or even decades. Thus, the risk of runoff
from fields with phosphorus levels in excess of 200 ppm is considerable
and extended.
Many of the dairies in the North Bosque River watershed have
greatly over applied waste to their waste application fields and have
thereby caused those fields to reach soil phosphorus levels that exceed
200 ppm. In fact, over the past five years over 50 dairies in the
watershed have applied so much waste that one or more of their fields
have exceeded 200 ppm according to annual soil samples taken by the
Texas Commission on Environmental Quality (``TCEQ''). During that same
five year period, there have been over 200 individual waste application
fields on dairies in the watershed exceeding 200 ppm according to those
same TCEQ samples. At the same time, these dairies have failed to
properly maintain their waste application fields, and therefore the
risk of runoff is even greater. These dairy CAFOs have crossed the line
from beneficial use to waste disposal, and that disposal is adversely
affecting our drinking water.
Any application of manure and waste products containing phosphorus
to a waste application field in excess of 80 ppm is not for
agricultural purposes; instead, it is simply for the disposal of waste.
Even the TCEQ has concluded that when a field gets to 200 ppm there is
a significant risk of runoff from that field during rainfall events
into the streams and rivers in the watershed.
Large industrial dairies in the watershed have permits issued to
them by the State of Texas which require them to conduct their
operations in accordance with various laws, rules and regulations. Many
of those dairies have operated their dairies and maintained their land
in such a way as to have consistently and egregiously violated the
applicable laws and regulations, and they continue to do so.
Discharges by dairies into the North Bosque Watershed have caused
the quality of the water in Lake Waco to deteriorate. The manure-laden
waste entering the watershed from the large industrial dairies along
the North Bosque River pollutes and fouls Lake Waco. Among the problems
such pollution creates, is that the phosphorous contained in such waste
causes the growth of algae, which generates substantial taste and odor
problems with the water in Lake Waco.
V. TASTE AND ODOR PROBLEMS
Prior to the late 1980's the City of Waco experienced taste and
odor problems with the water from Lake Waco only on a sporadic and
episodic basis. Those sporadic and episodic taste and odor problems in
the water were resolved without the City of Waco having to resort to
special water treatment methods.
In or about the late 1980's, large industrial dairy operators began
moving into Erath County and into the North Bosque River watershed.
A. The Development of Taste and Odor Problems in Lake Waco
In about 1988 there were very notable increases in the levels of
algae in Lake Waco. The mass and volume of algae increased to levels
which had never before occurred in Lake Waco. There was and is a direct
correlation between the increased levels of phosphorus in Lake Waco
resulting from dairy waste runoff, increased levels of algae in the
Lake and the taste and odor problems with the water in Lake Waco. As
the algae level in the lake increased, so did the taste and odor
problems with the water. The problems became so bad and so greatly
affected the quality of the water that the City began using a different
and additional treatment process in order to make the water acceptable
for human consumption.
From about 1988 to December of 1996, the frequency and severity of
the taste and odor problems with the water in Lake Waco continued to
increase dramatically. There was a corresponding increase in the
efforts and expense required of the City to reduce such taste and odor
problems to an acceptable level. During that timeframe, those efforts
increased in both frequency and degree.
In about December of 1996, the City of Waco experienced a
tremendous algae bloom and a severe episode of taste and odor problems
in the water in Lake Waco. Since that time the City of Waco has had to
continually employ treatment methods it would not otherwise use. Those
treatment methods involve adding a substance to the water whose sole
purpose is to reduce the substantial taste and odor problems of the
water from Lake Waco. Unfortunately, the City's increasing efforts are
also becoming increasingly less effective while at the same time
becoming increasingly more expensive.
The City treats the taste and odor problems by putting additives
into the water. The City is putting those additives into the water
continually and at very high levels. Despite the high levels at which
the additives are being put into the water, those additives are
becoming much less effective at improving the taste and odor of water
out of Lake Waco, and, over time, such problems with the City's water
source have continued to increase. Additionally, the City is reaching
the upper limit of the level at which those additives can be put into
the water, because, at very high levels, those additives cause adverse
side effects by producing undesirable chemical byproducts and by
adversely affecting other aspects of the treatment process.
The water quality of Lake Waco is substantially impaired. The taste
and odor problems with the water in Lake Waco are the result of the
overabundance of blue-green algae, which is caused by the high
concentrations of phosphorus coming into Lake Waco from the high
phosphorus level waste application fields and the overloaded lagoons on
the dairies in the North Bosque watershed.
The City of Waco has incurred substantial costs as a result of the
inappropriate waste management practices of large industrial dairies in
the watershed. Since 1995, the City of Waco has spent close to $3.5
million to address taste and odor problems in Lake Waco. Those
expenditures are in excess of those which would have otherwise been
made for water treatment. Ongoing remedies for treatment of taste and
odor problems which are caused by excessive phosphorus from dairies
currently consume more than half (as much as 55 percent) of the City of
Waco's chemical water treatment budget. Prior to 1996, that figure was
about 10 percent.
Even though the City has been and continues to be very aggressive
and diligent in its efforts to treat the taste and odor problems in
Lake Waco's water in an efficient and effective manner, its current
treatment methods are only able to remove approximately 70 percent of
the substance which causes the offending tastes and odors. Although
greatly reduced, the remaining 30 percent is still at a level which
causes the water from Lake Waco to be quite offensive in taste and
smell to the average person. Further, because the City is currently
unable to sufficiently reduce such taste and odor problems and because
of concerns about this problem increasing in the future, the City has
found it necessary to add additional, advanced water treatment
equipment and facilities to its two existing water treatment plants.
Projected costs of the new water treatment equipment and facilities to
deal with the taste and odor problems exceed $80 million dollars. The
equipment and facilities necessary to treat the taste and odor problems
will do nothing to improve the quality of water in Lake Waco other than
hopefully eliminate the taste and odor problems caused by the
phosphorus from the dairies. It is clearly unfair for our citizens to
bear the costs of cleaning up someone else's waste.
Phosphorus and the resulting taste and odor problems are just one
of the problems which have developed with the water in Lake Waco as a
result of pollution from the dairies. Runoff and pollution from the
dairies have resulted in pathogens and pollutants, in addition to
phosphorus, entering and imperiling the water of the North Bosque River
and Lake Waco. The pathogens, which are borne in the cow manure and
which enter Lake Waco, have created concern about the health of the
citizens and the safety of the water to the citizens who fish, swim,
ski and engage in other water activities in Lake Waco. If this
pollution is allowed to continue unabated, there is the potential for
substantial risk to the health and welfare of the users and consumers
of Lake Waco water.
B. Phosphorus Released from Dairy Cow Waste is the Single Most
Significant Cause of Taste and Odor Problems in Lake Waco
Segments of the North Bosque River upstream from Lake Waco have
been placed on the national list of impaired waters after it was
determined by both the TCEQ and the Environmental Protection Agency
(``EPA'') that these waters were severely impaired due to high
concentrations of nutrients, principally phosphorus. This data has been
confirmed through many scientific and peer-reviewed studies.
Two Total Maximum Daily Loads (TMDLs) for soluble reactive
phosphorus in the North Bosque River were adopted by the TCEQ and
approved by EPA in 2001. TCEQ approved a plan to implement these TMDLs.
The TMDLs are designed to reduce the amount of phosphorus in the North
Bosque River.
TCEQ reported in its July 2004 Status Report 2 on
implementing the TMDLs that approximately 90% of the controllable
phosphorus entering the North Bosque River originates from concentrated
animal feeding operations (CAFOs) located in the watershed.
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\2\ Attached as ``Exhibit C''
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The Texas Institute for Applied Environmental Research (TIAER) at
Tarleton State University in Stephenville, which performed much of the
study supporting the TMDLs, has concluded that approximately 35-44% of
the phosphorus in Lake Waco comes from dairy waste application
fields.3 This is more remarkable given that those fields
comprise only approximately 2% of the land use in the watershed.
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\3\ Attached as ``Exhibit D''
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TIAER studies have concluded that high concentrations of phosphorus
in Lake Waco cannot be corrected without substantially reducing runoff
of phosphorus from the dairy waste application fields. Dairies in the
North Bosque River watershed have caused and continue to cause
pollution to Lake Waco through their wrongful discharge of waste and
other pollutants into the North Bosque River watershed.
The continued pollution caused by these large industrial dairies
will result in future costs and expenses to investigate and treat the
problem until a final remedy is developed and implemented. If this
problem is not quickly addressed and the polluting conduct not abated,
the current water supply may be irreparably damaged.
VI. THE CITY OF WACO HAS ENGAGED IN CONSIDERABLE EFFORTS TO PROTECT
WATER QUALITY IN LAKE WACO
For the better part of the last decade, the City of Waco has been
involved in several different efforts to resolve the impact of
phosphorus loading in Lake Waco. The City of Waco has met with
stakeholder groups, which included the Bosque River Advisory Committee,
TIAER, the Texas Association of Dairymen, the Bosque River Authority,
and the TCEQ, to try and find a meaningful and effective solution to
the problems in the North Bosque River watershed.
After eight years of attempting to resolve these issues by meeting
and negotiating with dairy operators in the watershed, the City of Waco
was unable to achieve any meaningful solution to the problem. In fact,
the City of Waco was unable to get any of the dairies to even admit
that they were contributing to the problem, despite the fact that every
known public or private study that has examined these issues has
concluded that the dairies are the most significant cause of the
overloading of phosphorus into Lake Waco.
As a result of the dairies unwillingness to resolve these issues,
the City of Waco sent out letters to fifteen different dairies in the
watershed notifying those dairies that a suit would be filed by the
City of Waco against those dairies unless those dairies contacted the
City of Waco within 60 days and sought to resolve the issue. Only one
dairy responded to this letter, and the City has worked with that dairy
to resolve the issues and has not sued that dairy.
After these extensive efforts to resolve these issues failed to
result in any meaningful agreements to improve water quality, the City
of Waco brought suit against fourteen large industrial dairies in the
North Bosque River watershed, based on the poor TCEQ regulatory
compliance records of those dairies. This lawsuit is brought under both
the federal Clean Water Act and the federal Superfund statute (CERCLA)
and its goal is primarily to bring about improvements and modifications
of waste handling practices of the concentrated animal feeding
operations (``CAFOs'') in the watershed. CAFOs are large industrial
agricultural operations that confine large numbers of animals in a
manner that vegetation cannot be sustained in the confinement areas.
Dairies are considered CAFOs if they confine more 200 mature dairy
cows.
Since the filing of the lawsuit against the fourteen dairies by the
City of Waco as a last resort effort to try and clean up Lake Waco
there have been numerous opportunities for citizens to come to Waco
City Council meetings during the public comment agenda items and
express their opposition to the continued prosecution of this lawsuit.
There have been no complaints by the citizens of Waco about this suit.
In addition, the local newspaper, the Waco Tribune-Herald, has afforded
the opportunity for dairy representatives to write guest columns
criticizing the lawsuit as an unnecessary waste of City funds, but we
are not aware of any letters to the editor by Waco citizens complaining
of the lawsuit. When a governmental body such as the City of Waco can
take such action and receive no criticism from its citizens, this is a
very strong indication that the citizens of Waco, who are the ones who
have to drink and smell the water from Lake Waco, support the City's
actions on this matter. In addition, the editorial board of the Waco
Tribune-Herald has on numerous occasions indicated that the lawsuit is
justified in view of the problems being caused by the dairies and the
importance of Lake Waco as the drinking supply for 150,000 local
citizens.4
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\4\ See examples of editorials attached as ``Exhibit E''
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The City's lawsuit to date has been highly effective. The City has
settled with eight of the fourteen original dairy defendants. Under the
settlements, the dairies have agreed to certain changes in their
management practices which the City believes will let them continue
agricultural operations and at the same time protect the river and the
lake. None of the dairies that have settled with the City of Waco have
paid money to settle the lawsuit. In one case, an insurance company for
one of the dairies paid a cash settlement on behalf of that dairy,
practically all of which the City of Waco then returned to the dairy
operator in exchange for a conservation easement prohibiting the over
polluted land on that dairy from ever again being used as a CAFO, but
allowing it to be used for other agricultural purposes. The lawsuit is
still pending in the United States District Court for the Western
District of Texas--Waco Division, before Judge Walter Smith, against
the six CAFOs that have not settled with the City. The lawsuit is set
for trial in May 2006.
In this lawsuit, the defendant dairies have contended that
phosphorus in dairy manure and liquid waste is not a ``hazardous
substance'' under CERCLA. This same argument was made by the poultry
industry in response to a lawsuit filed by the City of Tulsa and the
United States District judge in Oklahoma ruled that the phosphorus in
manure, under the mixture rule, is a hazardous substance.5
The defendant dairies also sought dismissal of the City of Waco's
lawsuit under rule 12(b), Federal Rules of Civil Procedure, arguing
that the phosphorus in dairy cattle manure is not a hazardous substance
under CERCLA, but Judge Smith denied the dairies' motion to dismiss and
referenced the ``mixture rule'' as did the District Court in Oklahoma.
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\5\ City of Tulsa v. Tyson Foods, Inc., 258 F.Supp.2d 1263 (N.D.
Okla. 2003)
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VII. PROPOSED AMENDMENTS TO CERCLA
Having lost twice in court in attempts to argue that large
quantities of phosphorus are not a hazardous substance under CERCLA,
these large industrial polluters are attempting to get Congress to
amend CERCLA to exempt ``manure'' from the definition of ``hazardous
substance'', and mischaracterize the proposed amendment as one needed
to ``protect family farms'' and the agricultural industry in general.
This exemption would go far beyond just an effort to protect family
farms or the agricultural industry in general but would instead exempt
CAFOs, which are large industrial operations, or any other industry
that pollutes with manure, from liability under CERCLA. If the
amendment becomes effective, as it has been proposed, in all
probability the dairies who remain defendants in the City of Waco
lawsuit will argue that the Court must dismiss the City's pending
CERCLA claims. Further, the amendment will allow all other dairies in
the watershed of Lake Waco to pollute free and clear of potential
liability under CERCLA for the consequences of their actions.
An amendment could easily be drafted to exempt routine agricultural
operations that produce manure, but that would not exempt large
industrial CAFOs. However, such an amendment is not necessary to
protect family farms, or even the agricultural industry in general.
CERCLA already includes an exemption from liability for the ``normal
application of fertilizer.'' 6 When a family farm or a any
agricultural operation applies manure to its fields in an amount
necessary to support crops, that farm is not liable under CERCLA
because of the already existing exemption in CERCLA for the normal
application of fertilizer. It is only when manure is applied in amounts
that exceed what is necessary to support crops that there is potential
CERCLA liability. For example, some of the dairies involved in the City
of Waco lawsuit have waste application fields that exceed 800 ppm of
phosphorus when anything over 80 ppm is well beyond the amount
necessary to facilitate the growing of corpse. The law as it currently
exists strikes a balance by allowing lawsuits to be brought against
those large industrial CAFOs that are not fertilizing their fields but
are instead dumping waste on their fields and adversely impacting the
environment by doing so, but still protects normal agricultural
operators when applying manure or fertilizer to grow crops.
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\6\ 42 U.S.C. 9601(22).
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In addition, the requirement under the current law that anyone
suing for response costs under CERCLA must prove that their response
action complies with the National Contingency Plan further protects
agricultural operations, and even to some extent large industrial
operations, from CERCLA lawsuits by disgruntled neighbors or from
frivolous claims. It is only entities like cities, counties, or states
that can reasonably show that they have completed the necessary studies
and analysis', considered other available remedies, elected reasonable
cost alternatives, and taken the other steps necessary to comply with
the national contingency plan.
As further evidence that the proposed amendment to CERCLA is not
needed to prevent a rash of litigation against family farms or other
agricultural interests, the City of Waco, in researching for and
preparing its lawsuit against these dairies, is aware of only a few
lawsuits filed against large industrial agricultural operations under
CERCLA and is not aware of any suit filed against family farms or other
routine agricultural operations that are not already regulated as
CAFOs. The fact that only a few lawsuits have been filed nationally,
which only involve large commercial operations as defendants, is
certainly not an indication that family farming or normal agricultural
operations are being burdened with litigation costs or otherwise being
threatened by CERCLA as it is presently written.
CAFOs are a recognized source of potential pollution of the
environment (by reason of their disposal of manure) and, for that
reason, like other industries whose operations are a substantial risk
of pollution, they cannot operate without a Federal or state issued
permit. For the same reasons CAFOs are subject to permit requirements,
whereas routine agricultural operations are not, CAFOs should also be
subject to liability under CERCLA even though an exemption of routine
agricultural disposal of manure would be appropriate.
The City of Waco is not opposed to an amendment that would
specifically exempt manure produced by traditional family farms or
other routine agricultural operations from liability under CERCLA, even
though such an amendment is not needed for the reasons above discussed.
However, the City is opposed to the amendment, as it has been proposed,
because it is so broad that it would exempt from liability large
industrial CAFOs that spread manure for disposal purposes rather than
in a manner intended for beneficial agricultural use.
CERCLA is critical to ensuring a satisfactory outcome to not only
the City of Waco's lawsuit against dairies in the North Bosque River
watershed, but to ensuring that any municipality or other governmental
entity will be successful in protecting it's citizens drinking water
from the harmful over-application of phosphorus containing waste to
waste application fields. It is true that the City of Waco could pursue
its lawsuit under the Clean Water Act, but that piece of legislation
does not afford the broad range of remedies that are available under
CERCLA. Specifically, that statute does not allow for private recovery
and thus does not afford the City of Waco an avenue to recover for its
response costs. As can be seen from the City of Waco settlements with
eight dairies, often just exposure to liability for response costs will
cause industrial polluters, like the dairies in our watershed, to adopt
better and more environmentally sound waste management practices.
CERCLA lawsuits do not always result in monetary awards, sometimes they
result in corrective action to clean up the environment. It is also not
unreasonable or unfair for large industrial agricultural operations,
like the dairies in our watershed, to be liable for the response costs
that they actually cause others to incur in accordance with the
National Contingency Plan, which is designed to ensure a proper and
quality response to pollution. Put simply, without liability under
CERCLA for the over-application of manure it will be nearly impossible
for municipalities like Waco or other governmental entities to get
effective and meaningful relief against large industrial operations
that pollute our nations waters by adding large quantities of
phosphorus and other nutrients to valuable water supplies.
VIII. CONCLUSION
Based on the foregoing discussion, and because of all of the
harmful effects that will result if large commercial dairies in the
watershed are allowed to continue to over-apply manure without any risk
of incurring liability under CERCLA, we ask that the members of this
Subcommittee and of the United States House of Representatives oppose
any amendment to CERCLA that would exclude manure from the definition
of hazardous substance. Thank you for your time and your thoughtful
consideration of this testimony.
Mr. Gillmor. Thank you. Mr. Steven Kouplen?
STATEMENT OF STEVEN KOUPLEN
Mr. Kouplen. Thank you, Mr. Chairman. My name is Steven
Kouplen. I am President of the Oklahoma Farm Bureau and a
member of the American Farm Bureau--it is a pleasure to be here
with you, Mr. Chairman. My name is Steve Kouplen. I am
President of the Oklahoma Farm Bureau and a member of the
American Farm Bureau Board of Directors. I am a cow/calf
producer and run approximately 250 cows in the town of Beggs,
which is in Okmulgee County, just south of Tulsa.
Quite frankly, I and my colleagues in the industry are
greatly concerned at the prospect that animal manure could be
regulated as a hazardous waste. Farm Bureau firmly believes
that Congress never intended that animal manure be considered a
hazardous waste and regulated under CERCLA, yet some people are
attempting to get the courts to do something Congress never
did. There are other members of the panel that will speak to
that issue, but I would like to reinforce our hope that
Congress will provide policy direction on this important
matter. We ask that you affirm what we believe has been the
consistent intent that animal manure is not a hazardous
substance under Superfund.
Animal manure has been safely used as a fertilizer and soil
amendment by many cultures over the world for centuries. Where
would the organic agriculture industry be without it? However,
in recent years, we have seen litigation challenged to the use
of animal manure as a fertilizer by claiming contamination and
damaged natural resources. There are three lawsuits where
CERCLA claims have been made or are being made.
The first case, the city of Tulsa versus Tyson Foods,
involved poultry companies with growers in the Lake Eucha
Watershed. Lake Eucha is a drinking water source for the city
of Tulsa. In that case, the U.S. District Court for the
Northern District of Oklahoma stated in 2003 that ``phosphate
is found in all living cells, is safe, and is vital to life
processes.'' Yet the court then said that because phosphate is
comprised of dangerous elemental phosphorous, phosphate in
animal waste is a hazardous substance under CERCLA. How can
phosphate be both life-giving on one hand and listed as a
hazardous substance on the other? We disagree with the Tulsa
court's ruling as a matter of science and a matter of law.
Fortunately, the ruling was later vacated under a settlement
agreement and cannot be cited as a legal precedent.
In the second case, the city of Waco versus Dennis
Schouten, litigation was brought by the Texas city against 14
individual dairies in the Lake Waco Watershed. The city of Waco
was alleging that the phosphorous in cow manure is a hazardous
substance. The Federal judge in the case has not dismissed the
issue. The Waco case is currently in its discovery phase and is
expected to go to trial next year.
In this connection, I would direct the subcommittee's
attention to an amicus brief in this case just last month by
the Texas Department of Agriculture. It articulates in a
thoughtful, straight-forward manner, what exactly why the law
and the science dictate another conclusion. And I have copies I
would like to submit for the record, Mr. Chairman.
Mr. Gillmor. Without objection.
[The information referred to follows:]
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Mr. Kouplen. In my home State of Oklahoma, our Attorney
General has filed a lawsuit, the State of Oklahoma versus Tyson
Foods, asserting claims under CERCLA and the Federal Solid
Waste Disposal Act, alleging natural resource damages in the
Illinois River Watershed is the result of improper application
of poultry litter as fertilizer within the watershed. This case
is proceeding.
Obviously, these developments are very troubling to farmers
and ranchers. If normal animal manure is found, either in the
proceeding Waco or Oklahoma case, to be a hazardous substance
under CERCLA, then virtually every farm operation in the
country could be potentially exposed to liabilities and
penalties under the Act. We do not believe Congress ever
intended such an outcome.
To be more to the point, if the court decides in favor of
the Oklahoma Attorney General, does that mean the entire
Illinois River Watershed is a Superfund site? What about my
small cow/calf operation? If cow manure is a hazardous
substance, am I going to need a special permit and an
incinerator to dispose of it? Would I need to utilize special
hazardous waste transports to send it to an incinerator? If the
phosphates in cow manure and chicken litter are hazardous, what
about the phosphates used by people on their lawns? Could every
green lawn in this country be considered a Superfund site? What
about the natural levels of phosphates found in nature? What
about the animals that excrete the phosphates? Would they be
considered producers of hazardous substances? On this issue,
the science and common sense are in agreement, the life-giving
phosphates in manure are not now, nor have they ever been,
equivalent to the benzenes and PCBs that CERCLA has been
addressing for the last 25 years.
It is disturbing to look at the impact of this litigation.
In the Waco case, of the original 14 dairies, only five are
left in the case. The others, with one exception, have settled
with the city. Although the terms of those settlements are
confidential, it is believed that the defendants either stopped
operation of their dairies or agreed to the regulatory controls
sought by the city. The city has been successful because of the
difficulties these small businessmen have in engaging in a
legal battle against an entity with almost unlimited resources
to litigate.
The State of Oklahoma now put farmers and ranchers in a
similar situation. Our Attorney General signed a contingency
contract with the same law firm that handled the multi-state
tobacco settlement a few years ago. Some of the same local law
firms in Oklahoma experienced a financial windfall from the
tobacco settlement, including the firm of the former State
Attorney General, that reportedly received $30 million in the
tobacco settlement claim have signed onto the contingency
contract.
The Illinois River Watershed contains a little more than 1
million acres, and in his lawsuit under the CERCLA claim, the
Attorney General is demanding damages for the cost to restore,
replace, or acquire the equivalent of natural resources, the
compensable value of lost services resulting from the injury to
natural resources and the reasonable cost of assessing injury
to natural resources and the resulting damages in the
watershed. The contingency contract signed between the Attorney
General and three outside firms entitles them to one-third of
all the proceeds.
The domestic livestock industry would be driven out of this
country, and the grain industry would be crippled, and farm
families and communities would be devastated if animal manure
is considered a hazardous waste. Our Attorney General has
insisted he can extract damages from the poultry companies
without harming the growers----
Mr. Gillmor. Let me ask you to try to wrap it up.
Mr. Kouplen. Yes, okay.
Mr. Gillmor. We try to stay to under 5 minutes.
Mr. Kouplen. In brief, or in closing, let me say that the
Oklahoma Farm Bureau, the American Farm Bureau Federation,
believe that it is a hazardous road or a dangerous path to go
down to have animal manure considered hazardous waste, and we
certainly hope that Congress will set a direction to see that
this does not happen.
[The prepared statement of Steven Kouplen follows:]
Prepared Statement of Steven Kouplen, President, Oklahoma Farm Bureau
on Behalf of The American Farm Bureau Federation
Mr. Chairman and members of the subcommittee, my name is Steve
Kouplen. I am president of the Oklahoma Farm Bureau (OFB) and a member
of the board of directors of the American Farm Bureau Federation
(AFBF), which represents the majority of the beef, hog and poultry
producers in the country. Oklahoma Farm Bureau is the largest
agriculture organization in our state with more than 162,000 member
families. I appreciate the opportunity to address you today on a
critical issue to the livestock industry.
I am a cattle rancher from Beggs in Okmulgee County in the eastern
part of Oklahoma. I am a cow/calf producer running approximately 250
cows. Quite frankly, I and my colleagues in the industry are greatly
concerned at the prospect that animal manure could be regulated as a
hazardous waste. Farm Bureau firmly believes that Congress never
intended that animal manure be considered a hazardous waste and
regulated under the Comprehensive Environmental Response, Compensation
and Liability Act or CERCLA. Yet some people are attempting to get the
courts to do something Congress never did. There are other members of
the panel that will speak to that issue, but I would like to reinforce
our hope that Congress will provide policy direction on this important
matter. We ask that you affirm what we believe has been the consistent
intent that animal manure is not a hazardous substance under Superfund.
Animal manure has been safely used as a fertilizer and soil
amendment by many cultures all over the world for centuries. Where
would the organic agriculture industry be without it? However, in
recent years, we have seen litigation challenge the use of animal
manure as a fertilizer by claiming contamination and damage to natural
resources.
There are three lawsuits where CERCLA claims have been made or are
being made. The first case, the City of Tulsa versus Tyson Foods, et.
al., involved poultry companies with growers in the Lake Eucha
watershed. Lake Eucha is a drinking water source for the city of Tulsa.
In that case, the U.S. District Court for the Northern District of
Oklahoma stated in 2003 that ``phosphate is found in all living cells,
is safe and is vital to life processes.'' Yet the court then said that
because phosphate is comprised of dangerous elemental phosphorus,
phosphate in animal waste is a hazardous substance under CERCLA. How
can phosphate be both life giving on one hand and listed as a hazardous
substance on the other? We disagree with the Tulsa court's ruling as a
matter of science and a matter of law. Fortunately, the ruling was
later vacated under a settlement agreement and cannot be cited as a
legal precedent.
In the second case, the city of Waco versus Dennis Schouten, et.
al., litigation was brought by the Texas city against 14 individual
dairies in the Lake Waco watershed. The city of Waco is alleging that
the phosphorus in cow manure is a hazardous substance. The federal
judge in the case has not dismissed the issue. The Waco case is
currently in the discovery phase and is expected to go to trial next
year. In this connection, I would direct the subcommittee's attention
to an amicus brief filed in this case just last month by the Texas
Department of Agriculture. It articulates in a thoughtful,
straightforward manner exactly why the law and the science dictate
another conclusion.
In my own home state of Oklahoma, our attorney general has filed a
lawsuit, the State of Oklahoma versus Tyson Foods, et. al., asserting
claims under CERCLA and the federal Solid Waste Disposal Act, alleging
natural resources damages in the Illinois River watershed as a result
of the improper application of poultry litter as fertilizer within the
watershed. This case is proceeding.
Obviously, these developments are very troubling to farmers and
ranchers. If normal animal manure is found, either in proceeding Waco
or Oklahoma case, to be a hazardous substance under CERCLA, then
virtually every farm operation in the country could be potentially
exposed to liabilities and penalties under the act. We do not believe
Congress ever intended such an outcome.
To be more to the point, if the court decides in favor of the
Oklahoma attorney general, does that mean the entire Illinois River
watershed is a Superfund site? What about my small cow/calf operation?
If cow manure is hazardous substance, am I going to need a special
permit and an incinerator to dispose of it? Would I need to utilize
special hazardous waste transports to send it to the incinerator? If
the phosphates in cow manure and chicken litter are hazardous, what
about the phosphates used by people on their lawns? Could every green
lawn in this county be considered a Superfund site? What about the
natural levels of phosphates found in nature? What about the animals
that excrete the phosphates? Would they be considered producers of
hazardous substance? On this issue, the science and common sense are in
agreement. The life-giving phosphates in manure are not now, nor have
they ever been, equivalent to the benzenes and PCBs that CERCLA has
been addressing for the last 25 years.
It is disturbing to look at the impact of this litigation. In the
Waco case, of the original 14 dairies, only five are left in the case.
The others, with one exception, have settled with the city. Although
the terms of those settlements are confidential, it is believed that
the defendants either stopped operation of their dairies or agreed to
the regulatory control sought by the city. The city has been successful
because of the insuperable difficulties these small businessmen have in
engaging in a legal battle against an entity with almost unlimited
resources to litigate.
The state of Oklahoma has now put farmers and ranchers in a similar
situation. Our attorney general signed a contingency contract with the
same law firm that handled the multi-state tobacco settlement a few
years ago. Some of the same local law firms in Oklahoma that
experienced a financial windfall from the tobacco settlement, including
the firm of a former state attorney general that reportedly received
$30 million dollars in the tobacco settlement, have signed on to the
contingency contract.
The Illinois River watershed contains a little over one million
acres. In his lawsuit under the CERCLA claim, the attorney general is
demanding damages for the cost to restore, replace or acquire the
equivalent of natural resources, the compensable value of lost services
resulting from the injury to natural resources and the reasonable cost
of assessing injury to the natural resources and the resulting damages
in the watershed. A contingency contract signed between the attorney
general and three outside law firms entitles the three firms to 33--
percent of any monetary damages received in the suit by judgment or
settlement and 33-- percent of the value of any injunctive relief
obtained. Those damages, however, are just for one watershed. The
attorney general has threatened legal action in other eastern Oklahoma
watersheds. If the attorney general is successful in this lawsuit, it
could create an avalanche of copycat litigation across the nation. The
domestic livestock industry would be driven from this country, the
grain industry would be crippled and farm families and communities
would be devastated.
Our attorney general has insisted he can extract damages from the
poultry companies without harming the growers and the industry. What he
doesn't understand is that poultry companies and poultry growers depend
on one another. If the companies determine they must relocate to stay
in business, the growers will be left with empty barns and millions of
dollars in mortgages they cannot pay.
Our attorney general has said several times in public meetings that
it is appropriate for consumers to pay a few more cents for chicken so
that the poultry companies can pass through those extra cents for
environmental clean-up. That is a short-sighted view, and it shows very
little appreciation for the world market economy in which we all
compete. This CERCLA litigation has those of us involved in livestock
production worried about our future economic viability.
If you look past the sensationalism, you can see that there are
already mechanisms in place to address environmental concerns. Those
mechanisms can work--when they are properly funded, when they are given
the time to work and when they are not ignored by those engaged in a
litigious frenzy.
The state of Oklahoma has required animal waste management plans
for poultry feeding operations since Jan. 1, 1999, or June 1, 1998, if
the poultry feeding operation was in a ``threatened'' watershed. The
plans are based on a phosphorus index adopted by our state USDA Natural
Resources Conservation Service. The state of Arkansas requires that
producers must have their nutrient management plans implemented by Jan.
1, 2006; it should be noted that many poultry companies required their
growers to have nutrient management plans before the state of Arkansas
made it mandatory.
States can address issues of shared concern through interstate
compacts, as pointed out by Arkansas Attorney General Mike Bebee in the
petition he filed before the U.S. Supreme Court earlier this month. In
fact, in the ``Statement of Joint Principles and Action,'' signed by
representatives of Arkansas and Oklahoma in December 2003, the states
agreed to work together in a partnership, acting through their
environmental agencies, with the Arkansas-Oklahoma Arkansas River
Compact Commission toward the goal of producing a watershed plan,
meaning a Clean Water Act 319 plan. To my knowledge, the state of
Oklahoma has not pursued a joint watershed plan, although watershed
groups are organizing in Arkansas. However, the state of Arkansas has
followed through with its commitment to pass regulations for nutrient
management, per the 2003 agreement.
The poultry companies have made offers to move so-called excess
litter out of certain watersheds in Oklahoma, but those offers have
been rejected by our attorney general.
There are a couple of issues that have been overlooked in the
Oklahoma litigation. The first issue is that no administrative actions
have been brought against the poultry growers and the companies by the
state regulating agency or by EPA. To my knowledge, the poultry growers
in the Illinois River watershed have not violated the Oklahoma poultry
feeding operation statutes. Oklahoma's poultry operators, as most
producers across the nation, understand that they must comply with the
Clean Water Act and its regulations. They understand that they are
liable for discharges not properly permitted under the Clean Water Act.
The second issue that has been overlooked in the Oklahoma
litigation is the fact that the poultry growers own their litter. If
the growers lose the use of their litter, they will be economically
damaged. You might wonder why the Oklahoma attorney general didn't file
CERCLA claims against the poultry growers in the Illinois River
watershed. Perhaps it's because it would be politically unpopular to
sue farmers. Also, poultry growers don't have the deep pockets that can
be so attractive to law firms working on a contingency basis.
Speaking for those of us involved in livestock production, we need
Congress to act. We are not asking to be excused from meeting our
environmental responsibilities under the Clean Water Act or any other
applicable federal law or regulation--we are meeting them. We are
simply asking Congress to clarify what some of us felt was quite clear
from the beginning--animal manure is not considered a hazardous waste
under CERCLA. We believe Congress never intended for animal manure to
be regulated under CERCLA. Congress needs to reaffirm this now. We need
some common sense that will protect us from those who would litigate us
out of business. Thank you for attention. I would be happy to answer
any questions.
Mr. Gillmor. Thank you very much. Next, the Chair would
like to recognize Robert Connery if the Chair can find him
behind the pile of paper. Mr. Connery.
STATEMENT OF ROBERT CONNERY
Mr. Connery. Thank you, Mr. Chairman. And I would like to
supplement my written testimony that has been accepted to the
record with a letter to the chairman and ranking member on
behalf of some 20-some agricultural organizations stating their
position on the legislation that has been introduced by
Representative Hall, if it could be----
Mr. Gillmor. That's a letter to me and Ms. Solis. Without
objection?
Mr. Connery. Thank you.
Mr. Gillmor. So hearing none, so ordered.
[The information referred to follows:]
November 16, 2005
The Honorable Paul E. Gillmor
Chairman
Subcommittee on Environment and Hazardous Materials
Committee on Energy and Commerce
2125 Rayburn House Office Building
Washington, DC 20515
The Honorable Hilda L. Solis
Ranking Member
Subcommittee on Environment and Hazardous Materials
Committee on Energy and Commerce
2125 Rayburn House Office Building
Washington, DC 20515
Dear Mr. Chairman and Madam Ranking Member: Over the past couple of
years, some state and local authorities have sought to extend
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) of 1980 and Emergency Planning and Community Right-To-Know Act
(EPCRA) of 1986 liability to our nation's livestock and poultry
operations for emissions or discharges from manure produced in those
operations. We do not believe such an interpretation is supported
either by the science or legislative history. Because of these
challenges, however, Congress must confirm that it never intended to
regulate manure under CERCLA or EPCRA. Without such clarification,
every livestock or poultry operation; or agricultural field or organic
farming operation on which manure or manure compost is spread for
fertilizer in this country could be subject to comprehensive and highly
regulated cleanup under Superfund law.
CERCLA was created to provide for cleanup of the worst industrial
chemical toxic waste dumps and spills such as Love Canal and Times
Beach. To this end, Congress created the Superfund to tax industries
that create or utilize substances (such as petrochemicals, inorganic
raw chemicals and petroleum oil) used to make all hazardous products
and waste. Manure is clearly not among these materials. When enacted,
the fee was levied on these chemicals when ``sold'' or ``used'' by a
``manufacturer, producer or importer'' which again do not apply to
livestock or poultry operations. In addition, the definition of
``release'' under CERCLA specifically exempts ``the normal application
of fertilizer''. Because manure is beneficially recycled as a
fertilizer, it fits squarely within this exemption.
EPCRA was adopted in the wake of the 1984 Union Carbide disaster in
Bhopal, India to force reporting of releases of hazardous chemicals and
to enable emergency response from governmental authorities when
appropriate. In EPCRA, Congress specifically exempted ``Any substance
to the extent that it is used in routine agricultural operations or is
fertilizer held for sale by a retailer to the ultimate customer' from
the definition of hazardous chemical. Again, because manure is used as
a fertilizer, it fits squarely within this exemption.
Recently, municipal and state governments filed suit against
livestock and poultry operations claiming Superfund liability in Texas
and Oklahoma, arguing that manure is hazardous. If these two cases are
successful, the effect will essentially be the outlawing of the use of
manure-based fertilizer in this country. Livestock and poultry owners
and operators, and perhaps financial lenders, simply will not be
willing to accept CERCLA and EPCRA liability for manure.
The animal agriculture industry has been regulated appropriately
for years under the Clean Water Act, Clean Air Act, and various state
laws to protect the environment. They have never been regulated under
Superfund or EPCRA. It is unfair to require that even if animal
agriculture does everything it can to protect the environment under the
Clean Water Act, Clean Air Act and state laws, it may still be held
liable under CERCLA or EPCRA.
Livestock and poultry operators do not operate Superfund sites, and
manure is not a Superfund waste. Fields on which manure is spread are
not Superfund sites either.
We urge Congress to confirm that it never intended to regulate
manure under Superfund by supporting the attached legislation
introduced by Representatives Ralph Hall and Roy Blunt specifically
excluding manure from such regulation. Also attached is a section-by-
section analysis of the legislation.
Sincerely,
National Cattlemen's Beef Association; Texas Association of
Dairymen; Council of Northeast Farmer Cooperatives; Continental
Dairy Products, Inc.; National Council of Farmer Cooperatives;
Dairy Producers of New Mexico; National Turkey Federation; Select
Milk Producers, Inc.; National Chicken Council; Allied Federated
Co-ops, Inc.; National Pork Producers Council; Idaho Dairymen's
Association; American Farm Bureau Federation; California Dairies,
Inc.; Dairy Farmers of America; Utah Dairymen's Association; United
Egg Producers; Missouri Dairy Association; National Milk Producers
Federation; Agri-Mark, Inc.; St. Albans Cooperative Creamery;
Dairylea Cooperative, Inc.; Oregon Dairy Farmers Association;
Upstate Farms Cooperative, Inc.; and the Washington State Dairy
Federation.
Mr. Connery. I represent the National Cattlemen's Beef
Association, and I am not going to pretend to know everything
about everything that has been discussed here. But, what I have
over there on that TV monitor is a picture of a cattle feeding
operation. That cattle feeding operation is the very largest in
this country. It has 150,000 cattle.
Cattle feeding operations feed cattle that are generally
raised elsewhere. What you see there is manure in those lots,
and you see in the background a sprinkler keeping the dust
down. This kind of operation does not have what is referred to
as a lagoon. They have surface runoff, and surface runoff into
those ponds can have trace amounts of manure--in them. The two
pollutants that you have focused on that have been subject of
all the concern and discussion that I know about are ammonia
and hydrogen-sulfide. Those two pollutants come from this kind
of operation. Certainly ammonia does.
The ammonia comes from the--a little bit of potty talk
here--the defecation, urination, the deposit of manure, and the
key--the issue before you is whether or not Superfund regulates
or should regulate manure. Manure doesn't have ammonia in it.
Manure doesn't have hydrogen-sulfide in it. It is the bacterial
decomposition of that, as well as nitrogen in soils. As you may
know, half the national inventory of ammonia comes from soils
and bio-mass. So you--we are talking about pollution, if you
will, that is produced by natural and biological processes. The
issue you are talking about is whether to subject this to
Superfund, whether to attack Superfund liability to manure. And
that has enormous implications.
Attaching Superfund liability means that there will be
joint and several--strict liability, retroactive liability,
maybe imposed by order, as to which there is no judicial
review, and troubled damages It is the heaviest artillery of
the--in the arsenal, and was intended only for the most serious
cases where the Clean Air Act and the Clean Water Act and the
Resource Conservation Recovery Act, and the Toxic Substance
Control Act, and FEFRA, and all the other laws that apply were
inadequate and nothing else would work. When all of those had
failed, then you were supposed to apply Superfund because
nothing else was going to do the job. Well, I submit to you
that this is not Hooker Chemical. This is not Love Canal. This
is not Times Beach. And that the application of laws of that
magnitude without a showing that there is a serious problem
from this--certainly, the one I know about, the kind of cattle
operation. I think it is a serious issue and that you need to
address it.
Now, these cattlemen asked me whether or not these laws
applied to them. They didn't ask me to come here and simply
say--tell them it doesn't apply. Well, I looked at it. I spent
months looking at it, reading every hearing, every Legislative
Committee report, every law, every--all the--everything I could
find. And all it talked about on the Superfund was synthetic,
man-made, manufactured, produced chemicals. It never talked
about natural or biological processes or this kind of waste. As
you heard, EPA has never done that. Only very recently have
people thought about it and suits been brought over whether or
not it applies. Well, I looked at it and it talks about
facilities that release hazardous substances into the
environment. Well, those don't comfortably or clearly fit
defecation, urination, breakdown of manure. I don't think they
clearly do.
So you look at the legislative history and you find that--
does it mention agriculture at all? Could they have intended it
to apply to animal waste? Could they have intended it to apply
to cattle operations without even mentioning it? Without even
providing for the financing of it? They tax petroleum and
chemicals and they talked about chemical feed stocks. They
thought about taxing ammonia, but they said ammonia will not be
taxed when it is used for agricultural purposes or as a
nutrient. So they thought about it. And in every case where
they thought about it, they did not apply it.
The thing that I want to mention that it has mentioned that
there is no exemption for it, I think there is an exemption. I
don't think it was intended to apply to begin with, but there
is an exemption from response action for naturally occurring
releases and--here, this is from the Senate history--such as
``diseases or contamination resulting from animal waste, e.g.
beaver excrement''--I don't know why they gave that example--
``are excluded from the Response Program. Naturally occurring
substances''--there is more to that. It is complicated. I don't
have time to g into it. But that exemption is in there, and it
is said in the legislative history that it doesn't apply to
animal waste, that it does apply--the exemption applies. So
that--the normal application of fertilizer, the natural
application of pesticides, that--to say that manure is covered,
I think, is a stretch if you fairly look at the intention of
the legislation.
The second thing I want to cover has to do with the----
Mr. Gillmor. You need to wrap up. You are going over the
time limit.
Mr. Connery. I am sorry, my apologies. What I have in front
of me, the second topic I had wanted to address, was simply the
adequacy of existing law to deal with this, which is what you
really need to show the inadequacy of it before you apply. This
green volume is the Pollution Prevention Program for one CAFO
in Texas. This is what is required now for every CAFO that
discharges what it is not allowed to discharged now--water and
into the waters of the United States. These will become
nutrient management plans that every significant discharger
will have to have.
Which, the other things in front of me are the State laws
that apply to CAFOs. I would contend, and would be happy to
discuss with you, the adequacy of those laws to do the job for
manure. Thank you.
[The prepared statement of Robert T. Connery follows:]
Prepared Statement of Robert T. Connery on Behalf of the National
Cattlemen's Beef Association
Honorable Ladies & Gentlemen of the Subcommittee, my name is Robert
T. Connery, appearing on behalf of the National Cattlemen's Beef
Association (``NCBA'') to discuss the application of the existing
Superfund Laws to manure from cattle operations, and the need, in view
of pending and threatened litigation, to clarify that those laws do not
apply to manure from cattle operations. In particular, this testimony
will address:
The lack of any demonstrated need to cover manure from cattle
operations as a ``hazardous substance'' under the Superfund
laws.
The adequacy of existing environmental laws other than the Superfund
laws to adequately regulate and control any potential adverse
effects from manure from cattle operations.
The purpose of Superfund laws, fairly construed, to control
synthetic, man-made, manufactured and produced chemicals, and
hazardous wastes from modern chemical technology, not
naturally-occurring substances such as manure from cattle
operations.
As a matter of sound legislative policy and common sense, (1) the
rejection of Superfund's application to manure and (2) the
reasonable requirement for a substantial showing to Congress of
a severe toxic or hazardous problem from manure from cattle
operations and other forms of animal agriculture before
imposing the most coercive, burdensome and inequitable of the
nation's environmental laws on America's cattle ranching and
feeding operations.
i. background
Livestock and other animal agricultural operators face growing
concerns about potential CERCLA and EPCRA liability for emissions or
discharges from manure produced in their operations. Congress, we
respectfully submit, should clarify that it never intended to regulate
manure under CERCLA or EPCRA. The ``hazardous substances'' that present
issues regarding CERCLA and EPCRA applicability to livestock operations
are ammonia and hydrogen sulfide.
``Cattle Operations'' include operations that raise and feed cattle
in open pastures and in open-air cattle feed lots. Grazing of cattle in
open pastures is usually in fenced areas, and most feeding operations
take place in fenced pens. Precipitation runoff from pastures and
cattle feedlot surfaces is usually contained in runoff retention ponds.
The precipitation runoff retention ponds that are part of Cattle
Operations may, as described below, contain minor amounts of manure and
urea from runoff, and as a result may produce some ammonia and hydrogen
sulfide. These ponds are not waste lagoons, nor are they waste
treatment facilities. The precipitation runoff retention ponds at
Cattle Operations may contain small amounts of sulfur from the trace
amounts of urea and manure reaching them as a result of precipitation
runoff from pens. This sulfur originates in the soils and plants,
grains and other feedstuffs, and in some cases, supplements, on which
the cattle are fed. The sulfur in the ponds may produce some amounts of
hydrogen sulfide by virtue of anaerobic decomposition. However,
precipitation runoff retention ponds at Cattle Operations are designed
to be aerobic, not anaerobic. Thus little, if any, hydrogen sulfide is
expected to be generated from these ponds.
The natural breakdown of nitrogen in grass and other feeds
(primarily corn, but also including wheat, sorghum, and other grains
and foods) during digestion by cattle results in some ammonia in
flatulence, belching and exhalation. In addition, the bacterial
decomposition of manure and urea excreted by cattle in pastures and
feed pens produces ammonia over the weeks and months after it is
excreted.
NCBA's exhaustive review of the statutes themselves, their
legislative history, and their interpretation by EPA and the courts
over the course of more than 20 years, discovered no mention or
indication that substances resulting from flatulence, belching,
exhalation, or excretion of urine or manure or their bacterial
decomposition, or substances resulting from runoff that encounters and
carries relatively small amounts of manure or urea into precipitation
runoff retention ponds are covered by CERCLA or EPCRA. The terms of the
statutes themselves, which cover ``facilities'' that ``release''
``hazardous substances'' into the environment (discussed below) do not
clearly or comfortably cover the biological and natural processes that
result in ammonia and hydrogen sulfide at Cattle Operations. It is not
a matter of broad or narrow reading of the terms of the statute, but
whether those terms cover the biological and natural processes
responsible for generation of ammonia and hydrogen sulfide at Cattle
Operations at all. Such coverage is, NCBA believes, ambiguous at best,
while the exception for ``naturally occurring substances,'' 42 U.S.C.A.
9604(a)(3)(A) (discussed below) does seem to cover those processes.
ii. purpose and intent of cercla
CERCLA was passed in the wake of Love Canal for the purpose of
dealing with the ``legacy of hazardous substances and wastes which pose
a serious threat to human health and the environment.'' S. Rep. No. 99-
73, at 12 (1985), and ``to clean the worst abandoned hazardous waster
[sic] sites in the country . . .'' H.R.Rep. No. 99-253, Part 5, at 2
(1985). The legislative history contains a litany of references to
``synthetic,'' ``man-made'' chemicals, ``chemical contamination,'' and
the results of ``modern chemical technology'' as the problems CERCLA
intended to address. S. Rep. No. 96-848 at 2-6, 12 (1980); S.Rep. No.
99-11 at 1-2 (1985); S. Rep. No. 99-73, at 12 (1985); H.R. Rep. No. 99-
253, part 5, at 2 (1985). It contains no reference to an intention to
clean up manure or urea, or their byproducts, from cattle or any other
animal agricultural operations.
In addition to clean-up of hazardous waste sites such as Love
Canal, the Senate committee stated that the legislation was intended to
cover ``spills and other releases of dangerous chemicals which can have
an equally devastating effect on the environment and human health.'' S.
Rep. No. 96-848, at 5 (1980) and commented that such releases have
resulted in the ``loss of livestock and food products to contaminated
drinking water and feed . . .'' Id. It also noted that Superfund ``may
be used to compensate an agricultural producer . . . for loss''
resulting from such releases of hazardous substances'' id. at 78, and
that such losses included injury to ``livestock'' id. at 79. Livestock
operations were viewed as needing protection, not as a source against
which others might need protection.
Congress also indicated the scope of the activities it intended to
cover in the provisions it made for funding the ``Superfund'' to pay
for cleanup. The tax it imposed focused on ``the type of industries and
practices that have caused the problems that are addressed by
Superfund;'' Congress chose to impose the tax ``on the relatively few
basic building blocks used to make all hazardous products and wastes.''
H.R. Rep. No. 99-253, Part 1, at 141 (1985); S. Rep. No. 96-848, at 19
(1980). These building blocks, or chemical ``feedstocks,'' are
comprised of petrochemicals, inorganic raw materials, and petroleum oil
because ``virtually all hazardous wastes and substances are generated
from these [substances].'' See id. at 20; see also S. Rep. No. 99-73,
at 3 (1985) (``The taxable chemical feedstocks generally are
intrinsically hazardous or create hazardous products or wastes when
used.''); H.R. Rep. No. 99-253, Part 1, at 141 (1985). (``[T]he
problems addressed by CERCLA are byproducts of productions processes
that use these raw materials.''). Manure, urea, and their byproducts,
are clearly not among these materials.
The taxation provisions of CERCLA also indicate that substances
like ammonia, when used for agricultural purposes, are not covered
within the scope of CERCLA. Specifically, ``nitric acid, sulfuric acid,
ammonia, and methane used to produce ammonia, when used to produce or
manufacture fertilizer, . . . [or] when used as a nutrient in animal
feed,'' are exempted from taxation. S. Rep. No. 99-11, at 69 (1985);
see also S. Rep. No. 99-73, at 9 (1985). The exemption is based largely
on the premise that ``taxation of these compounds when used to
supplement animal feed constitutes a burden on both the animal feed
industry and the American agricultural sector which appears to be
unnecessary.'' Id. Like taxation, regulation of the agricultural sector
in the form of reporting requirements for the release of ammonia or
hydrogen sulfide from livestock manure and urea would constitute an
``unnecessary burden'' on Cattle Operations.
iii. relevant exemptions from cercla.
In EPCRA, Congress, recognizing that ``CERCLA response authorities
are extremely broad . . .'' excluded from the scope of the federal
response authority the release or threat of release ``of a naturally
occurring substance in its unaltered form, or altered solely through
naturally occurring processes or phenomena, from a location where it is
naturally found.'' 42 U.S.C. 104(a)(3)(A); and see also S. Rep. No.
99-11, at 16 (1985). The Senate committee report clarified this
exception from EPA's response authority, noting that naturally
occurring releases, such as ``diseases or contamination resulting from
animal waste (e.g. beaver excrement),'' are excluded from the response
program. S. Rep. No. 99-11, at 16 (1985). Thus naturally occurring
animal waste, such as urine, urea and manure, in its unaltered form, or
altered solely through naturally occurring process or phenomena, are
excluded from EPA's response authority.
The flatulence, urine, urea, and manure, and the releases that
result from them at dry, open-air Cattle Operations fall, we believe,
within the purpose and terms of this exemption from EPA's response
authority. Flatulence and the excretion of manure and urine from cattle
are surely naturally occurring, and the location of that excretion is
surely ``where it is naturally found,'' i.e. wherever the cattle happen
to be, whether in a feed pen or a pasture. The manure and urine are
unaltered. The precipitation and surface runoff affecting them are
naturally occurring processes. The only change in the location of these
animal wastes occurs when they are periodically removed from the cattle
pens and recycled through composting and/or application to croplands.
That movement does not materially affect the bacterial decomposition of
the manure or urea, which occurs independent of its removal,
transportation, sometimes composting, and application to croplands as
fertilizer. The ``normal application of fertilizer'' is separately
excluded from the definition of CERCLA ``releases''. 42 U.S.C.A. 101
(22).
Some might argue that livestock are not ``naturally'' contained
within fenced pens or in the large numbers involved in modern Cattle
Operations. However, this ignores that the CERCLA exemption is directed
at whether the substance is naturally occurring, not at the context or
circumstances in which the substance might be released.
For reasons that apply with equal force to livestock operations,
EPA has exempted from release reporting under CERCLA several substances
that are not considered to present risks that warrant regulation under
CERCLA. The agency has found reporting of such releases not to be
consistent with the purposes of CERCLA release reporting:
``This purpose, as the Agency has previously stated on numerous
occasions, is to require ``notification of releases so that the
appropriate federal personnel can evaluate the need for a
federal response action and undertake any necessary response
(removal or remedial action) in a timely fashion.'' [citation
omitted] . . . Thus if the Agency determines that the federal
government would never, or would only rarely, take a response
action as a consequence of the harm posed by the release or
because of the infeasibility of a federal response, a basis for
an exemption from the section 103 reporting requirements may
exist.''
54 Fed. Reg. 22524, 22528.
Based on this interpretation, EPA exempted release of ``naturally
occurring radionuclides from large, generally undisturbed land
holdings, such as golf courses and parks, along with those activities
that involve the disturbance of large areas of land, such as farming or
building construction.'' Id.
With respect to disturbance of large areas of land, such as farming
that caused releases of ``reportable quantities'' of radionuclides, EPA
concluded that those ``activities rarely would pose a hazard to the
public health or welfare or the environment because releases would be
dispersed widely in the environment at levels not much (if at all)
above natural background. Id.
In the same rulemaking EPA exempted ``the dumping of coal and coal
ash, as well as radionuclide releases to all media from coal and coal
ash piles, at utility and industrial facilities with coal-fired
boilers.'' Id. EPA explained that it did so because ``the Agency
believes that the submission of individual reports from each industrial
and utility facility with coal and coal ash piles may not be consistent
with the purposes of the section 103 reporting requirement.'' Id. at
22529. (Emphasis added). It found that the concentration levels emitted
from these piles
``will always be emitted continuously at low levels spread over
large areas' [and] ``never will be emitted at a high rate or in
an unusually large amount as the result of a sudden episodic
release . . . Perhaps more importantly, however, a response
action (i.e., removal or remedial action) under CERCLA does not
appear to be the most appropriate federal regulatory response
to radiation releases that are (1) similar in amount and
concentration across an entire sector of industry; (2) pose
acceptable exposure risks; and (3) disperse quickly in the
environment such that a response is not necessary to cleanup
the accumulation of what has already been released.''
Id.
On March 19, 1998, EPA broadened these exemptions from release
reporting requirements for radionuclides for land disturbance ``to
include land disturbance incidental to extraction activities at all
mines except limited categories with elevated radionuclide
concentrations. 63 Fed. Reg. 13460, 13462, col. 2. It stated its
authority to do so as follows:
CERCLA sections 102(a), 103, and 115 together provide EPA with
authority to grant administrative reporting exemptions. Such
exemptions may be granted for releases of hazardous substances
that pose little or no risk or to which a Federal response is
infeasible or inappropriate. Requiring reports of such releases
would serve little or no useful purpose and could, instead,
impose a significant burden on the Federal response system and
on the persons responsible for notifying the Federal government
of the release. Through such reporting exemptions, therefore,
the Federal response system is able to more efficiently
implement CERCLA and EPCRA and more effectively focus on
reports of releases that are more likely to pose a significant
hazard to human health and the environment.
63 Fed. Reg. 13460 (Mar. 19, 1998).
EPA's interpretation of the scope of the naturally occurring
substance exemption, and its authority to broaden it to cover other
activities where response action is inappropriate, infeasible and
unnecessary, have evident application and relevance to Cattle
Operations. As noted above, manure is the kind of naturally-occurring
substance Congress intended to exempt from CERCLA. And like
radionuclides from golf courses, real estate development or mining, and
utility coal piles, CERCLA response actions would be neither
appropriate nor practical respecting emissions related to manure.
The references to agriculture in the legislative history refer to
Cattle Operations as a resource to be protected and compensated for
loss rather than as operations which are a source of hazardous wastes
to be regulated. To the extent there is mention or explicit treatment
of agricultural activities or livestock, it is to exempt activities
such as the ``normal application of fertilizer,'' 42 U.S.C.
9601(22)(D), and the reporting of ``the application of a pesticide
produce registered under Federal Insecticide, Fungicide, and
Rodenticide Act,'' 42 U.S.C. 9603(e). Normal agricultural activities
were not intended to be covered under CERCLA. The legislative history
of the fertilizer application exemption reflects Congressional
awareness that chemical fertilizers did contain hazardous substances,
but exempted them in normal use in agriculture. If it were the intent
of Congress to make manure subject to CERCLA while it is located at
livestock feeding operations, it would be anomalous for Congress to
have exempted the CERCLA-regulated manure when it is located on
croplands and used for fertilizer.
iv. congress should consider the adequacy of existing environmental
laws before applying the extraordinary remedies of superfund laws.
Cattle and other animal agriculture operations are subject to a
vast array of federal, state and local environmental laws and authority
to deal with every conceivable environmental problem presented by them.
They include the Clean Air Act, the Clean Water Act, the Resource
Conservation and Recovery Act, the Toxic Substances Control Act, FIFRA,
soil conservation, dust and odor control, as well as nuisance laws,
apply broadly throughout the country to provide environmental
protection from every conceivable aspect of cattle and animal
agricultural operations. For example, under the Clean Water Act, all
concentrated feeding operations (CAFOs) are required to obtain an NPDES
permit if they discharge to waters of the United States. Discharges to
water from beef cattle CAFOs are prohibited, with a limited exception
for overflow from properly designed and constructed retention ponds
during extraordinary rainfall events. CAFOs must comply with best
management practices for land application of manure and prepare
nutrient management plans. 40 C.F.R. Sections 122.21, 122.23, 122.42,
Part 412. There has been no indication that environmental laws such as
these are inadequate.
The Superfund Laws, by contrast, were adopted for the most serious
and drastic environmental problems where all other environmental laws
had proved inadequate, and extraordinary remedies were called for.
Superfund provides strict (no showing of wrongdoing, fault, or
negligence), joint and several (an insignificant contribution [one-
quarter of one percent]) can make any contributor liable for the entire
clean-up), retroactive (exposure exists for activities that were legal
at the time) liability, that may be imposed by unilateral order from
EPA that is not subject to judicial review and carries treble damages
for failure to comply. Could Congress have intended to impose such
liability on the hundreds of cattle operations across America's
heartland without even mentioning them? Of course not. In fact, in
every instance where possible application of Superfund laws to biologic
and natural process was discussed, Congress was clear to exclude those
processes. That has not been enough to prevent litigation over applying
the Superfund Laws to manure from animal agriculture, and decisions
that they apply. We hope Congress will determine that such operations
do not warrant the drastic and coercive remedies of Superfund and
clarify that in an amendment excluding manure from animal agriculture
as a CERCLA hazardous substance.
v. common sense and legislative policy and justification.
NCBA submits that a mere common sense consideration of the natural
and biologic processes involved with cattle raising and feeding, and
the recycling of the manure that results, are not and should not be
within the purview of the Superfund Laws. Those laws were intended to
apply when all else failed. All else has not failed in the regulation
of cattle operations. Congress, we suggest, should require more than
unproven assertions and suggestions prior to imposing the
extraordinary, coercive remedies of CERCLA on farming, ranching and
cattle feeding. There should, we strongly suggest, be a very
substantial showing of a national problem of toxic and hazardous
proportions in order to justify the imposition of government's most
drastic powers on its tens of thousands of cattle operations.
vi. conclusion
In conclusion, NCBA believes that the Superfund laws, when read
fairly and in accordance with their purposes and consistent with the
other provisions of the statute, were not intended to apply to manure
from Cattle Operations However, even if the Superfund laws were
intended to apply to cattle and other animal agriculture operations in
some cases, NCBA believes that ammonia and hydrogen sulfide from Cattle
Operations either fall within the naturally-occurring substances
exemption from EPA's response authority, or fit the criteria under
which EPA has exempted other activities from release reporting
requirement because response action is not appropriate or feasible,
such as releases of reportable quantities of radionuclides from mines,
farming and land disturbance or releases from the dumping of coal and
coal ash at facilities with coal-fired boilers. Releases of these
substances from manure at livestock operations are not like the
chemical releases that CERCLA was intended to address and do not
present the type of health risks that warrant CERCLA cleanups. Even if
manure emissions did present a significant risk, a CERCLA response
action would not be a feasible or practical method of mitigating the
risk.
We thank the Subcommittee for its consideration of NCBA's comments
and position.
Mr. Gillmor. Thank you very much, Mr. Connery. Now we will
go to John Starkey.
STATEMENT OF JOHN STARKEY
Mr. Starkey. Thank you, Mr. Chairman. My name is John
Starkey. I am Vice President, Environmental Programs, at U.S.
Poultry and Egg, and I am making this presentation today on
behalf of National Chicken Council, National Turkey Federation.
I thank you for the opportunity to present testimony outlining
the environmental practices of our Nation's approximately
35,000 broiler and turkey growers, their impact on air and
water media, the regulation of these farms under media specific
laws such as Clean Air Act, and the confusion and problems
caused by the attempts of some to apply the CERCLA/EPCRA
requirements to these facilities' norms.
Broiler and turkey production in this country is almost
exclusively a family owned, family operated small farm
enterprise. We conducted a survey in 2001 where we focused on
farm size and litter management techniques at those farms, and
found that--and the data is actually in the--in my written
testimony--but found that the growers were already using
litter, in 2001, at an agronomically and environmentally sound
rate.
For the poultry grower, there are five tiers of regulation
or oversight that they have to look at to make--to ensure they
have the agronomic use of litter. The first tier is a Federal
tier, the CAFO permit. A discharger would require such a
permit. The Second tier, as Mr. Connery just alluded to, is an
extensive network of State regulations. The third tier, based
on what is surprising, integrates us today in your contract
require that the grower have a nutrient management plan. The
fourth tier is the bank also requires--the lending institution
for the facility also requires that you have a developed and
implemented nutrient management plan to ensure the continuation
of your loan. And then finally, in watersheds with a water
quality impairment, EPA has provided those states under the
Clean Water Act a total maximum daily load program, which will
holistically address the contributors to a specific water
quality problem.
Recently, of course, CERCRA and EPCRA has been utilized in
the alleged release of phosphorous and litter in a particular
watershed, which was the sole cause of water pollution
concerns. Those conflict with the facts. In virtually any State
that you want to look at, there is commercial fertilizer is
eight times greater than in all the litter in that state, and
about five times more phosphorous in commercial fertilizer than
in poultry litter in major poultry states.
And I am not trying to condemn or attack agricultural
fertilizer users, but I am trying to expose a fallacy and
ultimately the failure of attacking only one nutrient source in
addressing these watershed nutrient issues, rather than using
the TMDL Program that Congress provided in the Clean Water Act.
On the Clean Air Act's side, there has been allegations as
well that we are not complying with the Clean Air Act, or the
reporting requirements of CERPRA and EPCRA. Quite equivocally,
I can say broiler and turkey farms are not violating Clean Air
Act permitting requirements or standards.
The natural breakdown of organic nitrogen, again, as was
alluded to a moment ago, in poultry litter, can create ammonia.
But, right now, the facts are that given the uncertainty of the
available data, the day-to-day variation on a farm, you start
off with a bird that doesn't weigh anything. You end up with a
bird that weighs five pounds. You have an awful lot of
variability: temperature, ventilation, a whole lot of things.
It is impossible for a farmer to know, or a grower to know, on
a specific day, did or did not, he go over 100 pounds of
ammonia.
Now, if a farmer does know, then he has to control ammonia
in the house, because broilers and turkeys are more sensitive
to ammonia than humans are. And so we have an extensive
ventilation system that would exhaust the house, and in doing
so, the ammonia levels that are there should--and, actually, if
you use one of the EPA models for modeling air pollution
releases, a release of 100 pounds per day, our reporting
threshold, would result in the concentration of about 1 part
per million of ammonia 100 feet away from the house, and the
occupational standard for 8-hour exposure standard for ammonia
is 50 parts per million.
I guess, just kind of to wrap up, if--you know, so, if you
look at that level, 50 parts per million is the occupational
standard, one part per million is going to be the actual
concentration 100 feet away from the houses. There is not going
to be a response from the Emergency Response Center to that
type of release, and also it is well below--obviously, well
below the human health standards that are established for
ammonia. So we ask the--we ask you to support the legislation
introduced by Congressman Hall. Thank you.
[The prepared statement of John E. Starkey follows:]
Prepared Statement of John E. Starkey, Vice President-Environmental
Programs, U.S. Poultry and Egg Association on Behalf of the National
Chicken Council, National Turkey Federation, and U.S. Poultry and Egg
Association
Good afternoon. My name is John Starkey, and I serve as Vice
President--Environmental Programs for the U.S. Poultry & Egg
Association (USPOULTRY). I am making this presentation on behalf of the
National Chicken Council (NCC) and the National Turkey Federation
(NTF). It is an honor to have this opportunity to present this
testimony outlining the environmental practices, procedures,
regulations and impact of our nation's approximately 35,000 broiler and
turkey growers.
By way of introduction, USPOULTRY is a trade organization dedicated
to three tenets--research, education and communication. For example,
USPOULTRY was a founding member and partner with EPA, USDA and TVA in
the Poultry Water Quality Consortium. We sponsor the International
Poultry Exposition each year, the world's largest poultry and egg trade
show with approximately 20,000 attendees. We provide numerous industry-
wide training classes in industry-specific terms for poultry wastewater
treatment facility operators, and HAACP, a program to further enhance
food safety. We offer seminars on virtually every aspect of poultry
production and processing, including an annual environmental management
seminar. We award grants for approximately $1 million/year in poultry
related research. These grants have included almost $2 million in
environmental research related to poultry production and processing in
recent years; much of this research is being used today as the basis of
enhanced nutrient management efforts such as the inclusion of phytase
to poultry feeds to enhance phosphorus utilization. We sponsor the
Family Farm Environmental Excellence Award and the Clean Water Award,
awards designed to recognize exemplary environmental stewardship at
poultry farms and at processing facilities, respectively. Our
membership consists of integrators, processors, producers and allied
industries in all poultry (broiler, duck, layers, turkeys) species.
USPOULTRY works very closely with our industry's Washington-based
commodity trade organizations, National Chicken Council and the
National Turkey Federation, to ensure the research, education and
technology needs of our industry are met.
The National Chicken Council is a nonprofit member organization
representing companies that produce and process over 95 percent of the
broiler/fryer chickens marketed in the United States. NCC promotes the
production, marketing and consumption of safe, wholesome and nutritious
chicken products both domestically and internationally. NCC serves as
an advocate on behalf of its members with regard to the development and
implementation of federal and state programs and regulations that
affect the chicken industry.
The National Turkey Federation is the national advocate for all
segments of the turkey industry. NTF provides services and conducts
activities which increase demand for its members' products by
protecting and enhancing their ability to profitably provide wholesome,
high-quality, nutritious products.
Today, I am going to address some of the environmental practices at
broiler and turkey farms and their impact on air and water media; the
regulation of these farms under media specific laws such as the Clean
Air Act and Clean Water Act, and the confusion and problems caused by
the recent application of CERCLA/EPCRA requirements, heretofore
reserved for industrial facilities, to farms, despite exceptions in
each law to various aspects of normal agricultural operations.
Broiler and turkey production at the farm level in the United
States consists of, almost exclusively, family-owned and family-
operated relatively small farms. We conducted, in concert with NCC and
NTF, a survey of poultry growers in 2001, which focused on farm size
and litter management techniques. Litter, at a poultry farm, is the
combination of bedding material--such as rice hulls or pine shavings--
and bird manure. Over 16,000 growers (or almost half of all U.S.
poultry growers) participated in the survey, giving us a very robust
data set from which to view our industry's nutrient management
techniques. The survey indicated that average poultry farm size was as
follows:
Table I
Typical Poultry Farm Size
------------------------------------------------------------------------
# of poultry
Average houses # of birds
------------------------------------------------------------------------
Broiler....................... 157 3.21 63,799
Turkey........................ 226 3.05 27,004
------------------------------------------------------------------------
Given the relatively smaller acreage of poultry farms makes it
clear that the cash income these families derive from growing poultry
is vital to the survival of these farms. Indeed, poultry producers have
thrived in rural areas of the country that were not competitive in
traditional row crop farming, and have brought a steady, reliable
source of farm income dollars to these areas. When combined with the
investment of processors in feed mills, hatcheries, and processing
plants--typically with more than 1,000 jobs per plant--poultry
production has been an economic anchor to many rural areas from
Pennsylvania to Texas, from Minnesota to Florida and along the West
Coast.
Commercial broilers and turkeys are raised in well-lit, well-
ventilated comfortable ``houses''--typically 40 feet long x 400 to 500
feet long, with an eave height of about 13 feet. They have free
movement to readily available water and feed in the house, and
temperature is carefully controlled for bird comfort. The floor of the
houses are covered with 8 inches or so of an absorbent bedding material
such as pine shavings or rice hulls which also provide a comfortable,
and sanitary, environment for the bird. Bird manure is absorbed into
the litter. Periodically, the litter is removed from the house and most
commonly used as a natural organic fertilizer. We need to be clear
broiler and turkey litter is not a waste by definition, because it is a
commodity that is bought and sold or traded every day in this country.
Since it is dry, it can efficiently be transported considerable
distances--truckloads of north Georgia litter, for example, are sold to
south Georgia row crop farms as an organic fertilizer.
As a fertilizer, litter will provide nutrients to crops and pasture
to enhance productivity. But it offers some very unique advantages in
providing these nutrients. First, the natural forms of nitrogen and
phosphorus in litter have been shown to be less likely to ``runoff'' in
storm water than the inorganic nutrients available in commercial
fertilizer. Litter also provides soils organic matter to improve soil
tilth and structure, thereby reducing erosion and compaction and
enhancing a soil's resistance to drought. The salt build-up noted with
long term used of commercial fertilizer is not only avoided but is
actually counter-acted by the use of litter, restoring soils to their
former productivity. Poultry litter contains many micronutrients so
essential to maximizing crop production; its use also reduces how much
natural gas this country must consume to produce commercial fertilizer.
Like any nutrient source, it must be managed properly. However, applied
at agronomic rates it is clearly environmentally superior to the use of
commercial fertilizer.
Poultry growers are using litter in an agronomically and
environmentally sound manner. In our 2001 survey, we also learned how
much litter growers were utilizing on their own crops and pastures,
versus how much they sold, traded or otherwise used. Growers also
supplied information on the crops or forage they produced on their
farms. From this data, we calculated an overall nutrient application
rate for poultry growers, as well as the average nutrient uptake rate
for the crops raised. Those results are provided in Figure I.
This data indicates that as early as 2001, the industry had shifted
from a nitrogen based application rate to phosphorus based rate. This
is significant because, historically, litter had been applied to fields
closer to its nitrogen uptake rate, which led to a slow build-up of
relatively insoluble phosphorus in the soils. Indeed, a grower going
into an NRCS office in the late 1990's for a nutrient management plan
would have received a nitrogen based plan. The slow build-up of
phosphorus that resulted from such a plan was viewed as environmentally
benign given the unlikelihood it would run off; farmers were simply
``banking'' phosphorus on their soils against the day they no longer
raised poultry and would have to purchase commercial fertilizer. Since
phosphorus is commonly the most expensive nutrient in fertilizer, the
farmer was avoiding that future expense. However, in the last decade,
and in particular in areas where there is a substantial conversion of
farm land to other uses--concerns were raised regarding the levels of
phosphorus accumulating in soils. The ag departments of many
universities, and USDA Extension Service and other USDA offices, and
the growers and the processors worked together to develop and implement
nutrient management plans to address the conversion to phosphorus based
plans--and indeed, the results from the 2001 survey confirmed those
actions have been successful.
For the poultry grower, there are four tiers of regulation and/or
oversight they are subject to ensure agronomic use of litter. The first
tier, of course, is the federal tier under the CAFO NPDES permits. Any
poultry grower with a discharge is required to have an NPDES permit,
including the preparation and implementation of a nutrient management
plan. The second tier is state regulation to ensure agronomic
application rates. Many states have instituted permits or nutrient
management requirements for poultry producers. Examples include (but
not necessarily limited to) Alabama, Delaware, Indiana, Kentucky,
Maryland, Minnesota, Missouri, Ohio, Pennsylvania, Texas and Virginia.
Generally speaking, these programs emphasize development and
implementation of nutrient management programs, and focus more heavily
on larger growers--125,000 birds or more for broilers, 65,000 birds or
more for turkeys.
The third tier is the processor--or integrator. Today's production
contracts include language requiring the grower utilize litter in an
agronomically sound manner, and to obtain and follow a nutrient
management plan prepared with the help of experts such as NRCS, or
extension service or similarly qualified personnel.
Note, the integrator stipulation applies to all growers--even those
who would be too small to be subject to a federal or state permit. This
holistic approach to nutrient management planning is intended to ensure
the continued use of an excellent organic fertilizer indefinitely; and
produce environmental benefits vis-a-vis the use of commercial
fertilizer. Today, close to 100% of all broiler and turkey growers--not
just defined CAFO's--have nutrient management plans in place.
In watersheds with a water quality impairment, a fourth level of
regulation is available to EPA and the states under the Clean Water Act
to ensure reduction of loads in the watershed so water quality goals
can be achieved. Through the Total Maximum Daily Load--or TMDL--
program, all inputs are evaluated, and the necessary steps to allow
achievement of water quality goals are apportioned amongst all
contributors to pollutant loads--point source and non-point source
alike.
There are some areas of the country where there are nutrient-water
quality issues, and where poultry farms are located. Poultry
producers--the small family farms whose families have often lived in
the regions for generations--recognize the value of improved water
quality. They have been willing to adopt additional best management
practices in order to further reduce any environmental impact from the
operations. Poultry farmers are no different from other farmers in that
they realize their livelihood is based upon the land and water, and
want to preserve the value of their communities in general, and their
farms in particular, for future generations.
In some situations recently, however, CERCLA/EPCRA have been
utilized to allege the release of phosphate in animal manure results in
the release of elemental phosphorus regulated by these statutes. This
causes almost exclusive emphasis on reduction of poultry-related
nutrients, to the exclusion of other sources of these nutrients. This
is an egregious error, and in the end, the water quality issue may be
made worse by only addressing poultry nutrients, rather than the whole
universe of potential contributors to nutrients in streams as was
intended under the TMDL program under the Clean Water Act. In Figure 2,
I have provided comparison of nutrients available in poultry litter in
Georgia and Virginia compared to the nutrients available in commercial
fertilizer.
The results for these states are pretty typical of what you would
see for any poultry state: there is 7-10 times more nitrogen and 4-6
times more phosphorus available from commercial fertilizer sold in the
state than in all the poultry litter generated. And, remember, poultry
litter is already subject to up to four tiers of regulation or
oversight, including the TMDL program. For example, a nutrient
management plan at a poultry farm will require a buffer zone--usually
35 feet to 100 feet--around a drainage channel on an agricultural
field. With commercial fertilizers, there is no such oversight or
regulation, theoretically the fertilizer spreader truck could drive
right through the drainage area to avoid the lost time of diverting
around it.
Even where properly applied, nutrients in commercial fertilizers
are generally more soluble than in litter, i.e., more prone to runoff.
Yet, when litter is solely targeted as the source of nutrients, and
subject to an even higher level of regulatory scrutiny, many may choose
to forego the ``hassle'' factor and switch to commercial fertilizers.
Often these are non-poultry farmers who have previously bought litter
for their nutrient needs. Not only does this reduce poultry farmer
income, and cause more consumption of natural gas for commercial
fertilizer production, it also causes nutrients that are, pound for
pound, more likely to runoff in a storm event to be placed in the
watershed, exacerbating the nutrient problem, rather than solving it.
I am not trying to point a finger at agricultural commercial
fertilizer users. Whether commercial fertilizer or poultry litter,
supplying nutrients to crops is a cost for the farmer. A farmer must be
efficient in order to compete and remain a viable operation, so I
believe farmers as a whole judiciously use either source of nutrients.
Further, with nitrogen in multiple forms all around us and phosphorus
being the sixth most common element on earth--there is no lack of
nutrient sources completely outside agriculture, from septic tanks to
sewage plants, from fallen leaves to homeowners desperately trying to
win ``yard of the month.'' The point here is not to blame others, but
rather expose the fallacy, and ultimately the failure, of attacking
only one nutrient source--a comparatively minor one that is already
subject to regulation and oversight--in addressing these watershed
nutrient issues. Utilizing CERCLA/EPCRA to increase requirements
despite the agricultural exemptions Congress wrote into these laws, on
to the agronomic use of litter will stigmatize its usage, and increase
the use of--and pollution from--commercial fertilizers. Congress
provided the TMDL program under the Clean Water Act to holistically
solve these type of watershed wide water quality issues. Where the
CERCLA/EPCRA enforcement focuses solely on phosphorus from animal
agriculture--a significantly smaller piece of nutrient loading--the
TMDL easily accommodates, and allows EPA and the states to address all
sources of nutrients, be it agricultural or urban, from a specific
source or from multiple soil sources.
In recent years, also, there have been several enforcement actions
alleging an animal agriculture facility was not in compliance with
permitting aspects of the Clean Air Act, or release reporting
requirements of CERCLA and EPCRA. Unequivocally, broiler and turkey
farms are not violating Clean Air Act standards, or Clean Air Act
permitting requirements. The fact is that the levels of VOC's,
particulate matter and PM10, etc. in broiler and turkey exhaust air are
significantly below the permitting thresholds in the Clean Air Act.
Certainly, standards change and evolve over time, and it is conceivable
that at some point, for some pollutant, a broiler or turkey farm will
be subject to Clean Air Act requirements. We will vigorously
participate in the process of proposed changes to these standards,
basing our presentations on sound scientific principles. And, of
course, we recognize the obligation to comply with the potential
regulatory revisions. But today; we are fully in compliance, and any
allegation that broiler or turkey houses are avoiding or not complying
with Clean Air Act rules and regulations is simply false and without
basis.
The natural breakdown of organic nitrogen deposited by poultry in
litter in a broiler or turkey house can create ammonia. This has led to
enforcement action under CERCLA and EPCRA against a few broiler farms
alleging they have exceeded release of the 100 lb/day reportable
quantity for ammonia, and should have notified the National Response
Center and others concerning this release.
For a moment, consider the family farmer trying to determine
whether or not the broiler or turkey farm has exceeded a CERCLA/EPCRA
release threshold. Assume the farmer has assembled the appropriate
sections of the Code of Federal Regulations, the National Academy of
Science report questioning the accuracy and applicability of emissions
estimates in previous studies, the court opinions from the Denver and
Kentucky courts concerning the release of ammonia from animal housing,
EPA CERCLA/EPCRA report guidance documents and recent studies listing
emission rates for various other farms, who may or may not follow some
of the same production practices.
The first thing the farmer will notice is that the published
emission rates vary by almost two orders of magnitude. So the farmer
must decide which to use--the highest, the lowest, the average, the one
with the most similar production practices, or perhaps the most similar
climate, or bird size? On the heels of that decision, the farmer must
decide if the release standard is applicable ``per house'' or per farm.
Twenty-five years of regulatory history and published EPA guidance says
it should be quantified per house, yet two recent court cases might
suggest to the farmer he should aggregate the release. The farmer then
decides to call the environmental manager at the processor's poultry
plant and ask whether the release should be calculated per house or per
farm. The environmental manager does not know either, but the processor
had requested--almost two years ago--clarification from EPA on this
exact subject, and had not yet received a response.
The farmer returns to trying to determine an emission rate. The
studies available on broilers and turkeys show that the release of
ammonia increased as the birds got bigger. But, on a day to day basis,
many other factors came into play--the type of bedding material, the
number of flocks previously raised on the litter, the temperature in
the house, the moisture level in the house, the use of litter
treatments, and many other variables rarely described--let alone
quantified in these research reports.
There are other questions the farmer could ask like: ``Won't some
of the ammonia be converted to an aerosol ammonia hydroxide prior to
release, given house conditions are ideal for this to occur.'' And if
so, what percent will be converted, for this is an important issue as
the RQ for ammonia hydroxide is 1000 lb/day--10 times greater than the
anhydrous ammonia RQ. Yet, not a single study before the farmer
addresses this fundamental question.
Ultimately, the studies conducted under the Air Consent Agreement--
which the broiler industry is participating in--may provide the farmer
with some of the answers necessary to determine if the farm is subject
to release reporting requirements.
But at some point, the farmer has to wonder: ``Why am I having to
do this?'' CERCLA and EPCRA are intended to advise emergency response
personnel and the public about threats to human health and the
environment. The entire farm family goes into each and every one of
their broiler or turkey houses everyday, and have for years, and they
are as healthy as can be. The farmer knows it is vital to keep the
house properly ventilated, and has invested substantial amount of
capital in ensuring this. The farmer knows that ammonia levels in the
house should average 10 ppm or less. While certainly there may be short
term increases in ammonia concentration above 10 ppm depending on the
computer controlled ventilation system program, the farmer knows the
houses should not reach the NIOSH 8-hour ammonia occupational standard
for ammonia of 50 ppm. Poultry is more sensitive to ammonia than
humans, and reaching that type of ammonia plateau would affect the
growth performance of the bird. And a decrease in performance leads to
a decrease in pay, so the farmer is very motivated to manage ammonia
levels.
The ventilation system moves large quantities of air through the
houses--at 5 mph when the birds are biggest and temperature warmest
(and hence, release of ammonia is greatest). This leads to a rapid
dilution of ammonia in the exhaust, and the wind speed also enhances
dispersion outside the house. In fact, the release of 50 lb/day from a
house--or about what the highest level most studies suggest would come
from one house--would result in a concentration of only 0.5 ppm ammonia
100 feet from the exhaust fan according to the EPA SCREEN3 model. This
is far below any suggested health standard or occupation standard for
exposure to ammonia.
And so again, the farmer asks ``Why must I do this, with all the
uncertainty about how to properly account for and measure ammonia
release?'' Because even if the farmer does so, and calculates on a
given day that reporting is required, there will be no emergency
response, and there will be no impact on human health, starting first
with the farmer's family.
We ask you to support the legislation introduced by Congressman
Ralph Hall to re-affirm it was not the intent of Congress to require
the farmer to report release information that does not impact emergency
response or human health.
Mr. Gillmor. Thank you very much. Dr. Leon Weaver.
STATEMENT OF LEON D. WEAVER
Mr. Weaver. Thank you, Mr. Chairman. My name is Leon
Weaver. I am a dairy farmer and a veterinarian. And I have been
involved in dairy veterinary medicine and dairy management
consulting and dairy production for over 30 years. Before I
became a full-time dairyman 7 years ago, I served on the
faculty and was director of the University of California's
Veterinary Medicine Teaching and Research Center at the
University of California, Davis.
Today, my testimony is given on behalf of my dairy farm,
Bridgewater Dairy, the dairy cooperative that we are a member
of, Continental Dairy Products, and a sister cooperative,
Select Milk Producers. I am also on the board of directors of
the Ohio Dairy Producers, and while this hearing was not a
subject of our discussion, I am familiar with the views and
attitudes of many Ohio dairy producers and unaware of any who
have views at variance of what I am going to express today.
Bridgewater Dairy milks 4,000 cows, and our farming
company, Bridgewater Farming, raises crops on over 2,800 acres
of land. In that respect, we are a large farming operation, but
I want to share with you that we are a family farm. Our farm
and our dairy is owned by my wife and my son and myself, and a
partner and his wife who are also dairymen, and we alone are
the management team, hands-on, day-to-day, it is our money at
risk.
Dairy farming is a very capital-intensive business. Cows
today can cost over $2,000 each. Land can cost $2,000-5,000 an
acre. So it is easy to see that even a small farm, much smaller
than mine, can soon have millions of dollars in capital at
risk. That is what I want to share with you about my concern
for these requirements that we are discussing today.
The uncertainty that is introduced into my environment has
awesome consequences for a family farm like ours. We are all
interested in the science, and we are all interested in the
environment, and, fortunate for us as dairy producers, we
recognize that good stewardship and good care of our animals
and our land and environment, are essential to running a
profitable enterprise. We simply can't have healthy cows and
high productivity and profits if we are not taking care of the
environment. We survive because the health of our animals and
the quality of the feed and water that we produce are essential
to the productivity of our cows.
To that end, many of us go far beyond what is required by
the Law. Members of our coop and other dairymen that we know
are installing things like methane digesters for alternative
energy production and the treatment of manure. We establish
buffer zones to protect repairian areas and waterways. For
example, a manure digester for my dairy would cost over $5
million. Several of our coop members have installed those, and
we are making plans--not finalized--to install one ourselves.
Not required by Law, but to be responsible to the environment
and the cattle that we raise.
I want to mention as an aside when I described our farm
being a family farm, that Continental Dairy Products membership
is about 25 dairymen, are all of a similar size of us, and
every single one of them is a family farm just like I described
our Bridgewater Dairy. And Select Dairy Producers, which is
much larger in Southwestern United States, they are all family
farms, they are husbands and wives and children. And I am going
to come back to that later.
As has been stated, the issue is whether we should be
subject and our manure should be subject to EPCRA and CERCLA
regulation. I think we have to be careful and watch out for
some unintended consequences. The first thing that has been
stated is that there are no civil suits available. Well, indeed
there are civil suits available under the Failure to Report
Act, and that can cost as much as $27,000 per day. $27,000 per
day is $750,000 a month. What lender would want to loan me
money with that potential liability?
The second intended consequence--several people have
mentioned how much manure large livestock, and how much
phosphorous a large livestock operation might produce. Another
way to say what has already been said is that the manure from
one cow produces the amount of phosphorous necessary to grow
corn on one acre of land per year. At Bridgewater Dairy, we
distribute our manure over more acres than we have cows, just
like the 20 or 30 or 50 or 100 cow dairy that you might have I
your mind's eye. We are required by the regulatory authorities
that we function under to show that we plan for the nutrient
requirements for our crop, that we document the soil content--
the mineral contents of the soil, and that we not put more
fertilizer, organic or inorganic, on our fields than that crop
requires. And those records are reviewed not less than twice a
year by my regulatory authority. What neighbor of mine would
appreciate using manure, a renewable resource, for fertilizer
if he or she might come under the EPCRA/CERCLA reporting
requirements? An unintended consequence--one unintended
consequence is to make less land-space available to concentrate
the application of manure in smaller areas.
When I grew up on a farm in Pennsylvania and was active in
4-H and FFA, I was told that if I got a good education and I
worked hard and I adopted the best management practice and
technology available, that agriculture could be a sustainable
enterprise for me and the next generation. I have done those
things, and I have been successful in enabling my generation to
farm when we are one child out of six. And I believe that if
the requirements that are being proposed were to be enacted
today, that for my son, and certainly my grandson, to continue
in animal production would probably require him to move to
another continent for no other reason than the risk the lenders
will not be willing to take. Thank you.
[The prepared statement of Leon D. Weaver follows:]
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Mr. Gillmor. Thank you, Dr. Weaver. Dr. Robert Lawrence.
STATEMENT OF ROBERT S. LAWRENCE
Mr. Lawrence. Thank you, Mr. Chairman and members of the
committee. It is a privilege to be here today. I come from a
public health background after doing 25 years of clinical work
as a general internist, and the public health perspective is
one of harm reduction. In the School of Public Health, we often
talk about the fact that our genes cock the gun and environment
pulls the trigger. What you are dealing with our issues related
to how can we continue to protect the environment so that our
genes do not unintendedly create disease because of
consequences of concentration.
There has been a lot of discussion so far about the fact
that there are a lot of natural products in manure. What is
unnatural is the enormous the concentration that occurs with
CAFOs. There are four basic public health issues that you
should be considering as you contemplate whether or not to
alter the EPCRA rule.
First, current methods of industrial animal production harm
the environment and threaten the health of the public. CAFOs
introduce huge amounts of waste into the environment, as you
have already heard. By one measure, about 1.4 billion tons of
waste, equal to about five tons of animal waste per person. So
Congressman Dingell's question earlier about a two million hog
facility would be equivalent to about a 10 million--excuse me,
a 2,000 hog facility would be about a 10,000 population town
with no modern sewage treatment or modern sanitation
facilities.
Second point, industrial animal production results in the
release of high levels of gasses, odors, nutrients, pathogens
and antibiotic-resistant bacteria into air, water, and soil. In
swine CAFOs, there have been identified more than 160 compounds
in three categories in airborne emissions. These include gasses
and vapors, bio-aerosols, and non-biologic aerosols. The gasses
of primary concern are ammonia, hydrogen-sulfide, carbon
monoxide, and methane. The presence of bacterial and protozoan
pathogens in groundwater intended for drinking water can cause
mild to severe bouts of gastroenteritis depending on the immune
system and the age of the affected individual. Contracting
antibiotic-resistant bacterial infections can pose additional
treatment challenges. Manure that is spread in excess of the
lands absorptive capacity leads to excess nitrogen and
phosphorous in the soil, nitrification of surface waters, algae
overgrowth including some such as Fisteria facida that produce
compounds toxic to fish and to humans.
Third, our current waste management practices in CAFOs
threaten the environment. We have about 287 million dry tons of
waste produced each year, more than 270 million dry tons of
which is applied to land without any prior treatment except for
drying. In contrast, the population of almost 300 million
people in the U.S. produces about 6.9 million dry tons of
treated waste in municipal treatment facilities, and about 3.6
million dry tons of that is applied to land as sewage sludge.
The results of this over-application of so much animal waste
are that an estimated 48,000 of the 300,000 miles of impaired
U.S. rivers and streams are directly attributable to animal
feeding operations. There are high levels of estrogens that--in
the effluent from some animal feeding operations. Arsenicals
used in poultry production for growth promotion and for
controlling intestinal parasites lead to2 million pounds, or
2,000 tons of arsenic being introduced into the environment
each year from U.S. poultry operations alone. And we all know
that arsenic is a proven carcinogen. 25 million pounds of
antibiotics are used in U.S. food animal production in sub-
therapeutic doses in an experiment to produce antibiotic
resistance. The 3 million pounds of antibiotics used to treat
human disease are increasingly under assault because of the
crossover of these antibiotic-resistant genes. And about 1.3
million households in the U.S. now have water supplies with
nitrate levels above the maximum contaminant level of 10
milligrams per liter.
And finally, fourth, the feed ingredients used in
industrial animal production are undermining the antibiotics
used in human medicine. Resistant strains of bacteria that
develop in CAFO animals undermines the usefulness of these same
antibiotics for treating human infection. The antibiotics are
added to animal feed, so animal feed increasingly contains a
number of things that are not natural organic materials, also
includes scrapings from iron foundries, which has cadmium and
lead and other heavy metals, all of which can get into the food
chain and harm the human population. According to the Union of
Concerned Scientists, more than 70 percent of all antibiotics
produced in the U.S. now are used in animal production.
We have, with these enormous threats to the health of the
public, this is not the time to relax expectations and
standards for the regulatory attention that CAFOs need in order
to protect the safety of the American people. In 2003, the
American Public Health Association, representing 80,000 public
health professionals, felt there was sufficient documented
harmful effects of CAFOs to warrant passage of a resolution
calling for a moratorium on the building of new CAFOs until
additional data can be gathered and policies implemented to
protect public health. The evidence continues to build since
then that these are dangerous and harmful operations to the
health of people living in and around the CAFOs.
Thank you, Mr. Chairman.
[The prepared statement of Robert S. Lawrence follows:]
Prepared Statement of Robert S. Lawrence, Edyth Schoenrich Professor of
Preventive Medicine, Professor of Health Policy and Environmental
Health Sciences, Director, Center for a Livable Future, Johns Hopkins
Bloomberg School of Public Health
INTRODUCTION
Over the past 50 years, food animal production in the US has
undergone a transformation. First developed in the poultry industry
during the 1930s and 1940s, the industrial procedures of growing and
processing large numbers of animals in heavy concentration has been
adopted by the beef cattle, hog, dairy and some other industries. In
today's industrial animal production (IAP) system, most animals grow to
market weight in facilities know as concentrated animal feeding
operations (CAFOs). The US EPA criteria for CAFO designation are
species-specific and indicate the minimum numbers of animals per
operation. CAFOs now dominate US livestock and poultry production. To
illustrate this trend toward greater concentration of production,
consider that in 1966, 57 million hogs were raised on one million US
farms. In 2001 approximately the same number of hogs was raised on
80,000 farms (more than half were raised in just 5,000 facilities). The
total production of hogs is now about 100 million per year. (USDA
National Agriculture Statistics Service and US Census of Agriculture)
Today, animal production in the US is dominated by vertically
integrated industries managing production from genetics of the breeding
stock to finished products ready to be cooked for the table. High
throughput is achieved through intensive operations under confined
conditions that harm the environment and threaten public health in many
ways. These factors led the American Public Health Association in 2003
to adopt a resolution calling for a moratorium on the building of new
CAFOs until additional data can be gathered and policies implemented to
protect public health. (APHA, 2004)
1. current methods of industrial animal production (iap) and cafos harm
the environment and threaten the public's health.
Harm to the Environment
CAFOs generate and introduce huge amounts of waste to the
environment. As of 1997, animal production in the US created
approximately 1.4 billion tons of waste. This amount is the equivalent
to about 5 tons of animal waste for each person in the country
(Horrigan, 2002). Another way to look at this problem is to consider
that since a hog produces about four times as much solid waste as an
average person, a typical CAFO raising 10,000 hogs is equivalent to a
small city of 40,000 people with no sewage treatment or modern
sanitation facilities.
CAFOs generally produce more waste than can be utilized as
fertilizer on nearby fields, and transportation costs prohibit shipping
the waste to more distant croplands. These wastes are difficult to
store because of the sheer volume produced and the expense associated
with transporting. Storage cesspits for hog waste or poultry waste
piles leak and pollute groundwater and streams. Waste from storage pits
that is land applied can pollute the air, surface water, and shallow
aquifers (Wing, 2002). The amount of phosphorus and nitrogen in the
waste usually exceeds what crops can utilize or the soil can retain.
Surface water can become contaminated and lead to algal blooms,
eutrophication (Osterberg, 2004, APHA, 2004) and serious public health
risks of pathogenic micro-organisms (Wing, 2000, Hamscher, 2003).
The experiences of large swine-producing states, such as North
Carolina and Iowa, have shown that deep CAFO cesspits can leak and
overflow into ground waters and nearby surface waters. A report
produced by the Iowa State University Extension, in collaboration with
the Iowa Department of Natural Resources, noted that from 1992-1998, 86
uncontrolled discharges into surface waters were reported, with 20
discharges associated with formed cesspits (Lorimor, 1999). These
discharges, along with runoff from areas where manure is land applied,
can contaminate both ground waters and surface waters with pathogenic
microbes and nutrients that can cause human illnesses.
Threats to the Public's Health
In addition to the environmental impacts mentioned above, CAFO-
generated wastes create many public health risks. (Wing, 2000, APHA
2004) A key issue is that animal feeds used in CAFOs may also include
animal wastes, animal tissues and animal by-products, and other
additives that can contaminate human food or the environment. Many feed
ingredients used in CAFOs pass through the animal directly into manure,
including heavy metals such as arsenic, antibiotics, nitrogen and
phosphorus (Arai, 2003; Lasky, 2004; Silbergeld, 2004).
CAFO-generated wastes also contain pathogens that can cause disease
in humans, including Salmonella, Campylobacter, and Cryptosporidium,
and can pollute drinking water with nitrates in concentrations
potentially fatal to infants. The presence of excessive nitrates in
drinking water has been associated with blue-baby syndrome or
methemoglobinemia, a cause of both illness and death in infants (Fan,
1996; Johnson, 1990). Some studies also suggest that the development of
blue-baby syndrome is more likely when the nitrate-containing water
supply is also contaminated with bacteria--a situation that may be
expected when groundwater is contaminated with animal feces (Cole,
2000; Fan, 1996). In addition, animal studies and some human studies
suggest that developmental defects in the central nervous system, as
well as miscarriages, also may occur as a result of exposures to
excessive levels of nitrates (Fan, 1996; Kramer, 1996).
Organic dust, bacterial endotoxins and manure-generated compounds
such as ammonia and hydrogen sulfide are also found in CAFO-generated
wastes (Schiffman, 2001). Many of the exposures to pollutants from
CAFOs are intensified for employees and the people living in
neighboring communities. Air polluted with ammonia, hydrogen sulfide,
and dust from CAFOs is harming the health of both workers and residents
living downwind from these operations.
Several published studies have documented a range of contaminants,
microbial agents and health effects in workers exposed to swine (Wing,
2000; Hamscher, 2003; Chapin, 2005; Cole, 2000; Merchant, 2005). These
studies provide the groundwork for an increasing body of research to
evaluate possible community health effects. Similar to the way second-
hand smoke affects not only the smoker but also impacts the health of
those nearby, industrial animal production procedures can impact the
health of not only workers, but also their families and community
members.
Numerous studies describing the adverse respiratory effects
occurring among swine CAFO workers and producers have been published in
the U.S., Sweden, Canada, the Netherlands and Denmark (Donham, 1989;
Holness, 1987; Zejda, 1993; Von Essen, 1998). Results of these
investigations concur that approximately 50% of swine workers
experience one or more of the following health outcomes: bronchitis,
toxic organic dust syndrome (TODS), hyper-reactive airway disease,
chronic mucous membrane irritation, occupational asthma, and hydrogen
sulfide intoxication. These studies also have shown increased risks of
exposure to bacterial and viral infectious agents among swine workers
and producers compared to other agricultural cohorts (Thomas, 1994), as
well as higher incidences of antibiotic-resistant bacterial infections
(Saida, 1981; Nijsten, 1994).
Adverse health outcomes experienced among neighbors of large-scale
animal production facilities have been reported in three published,
peer-reviewed epidemiological studies. One study evaluated the effect
of swine odors on mood in 44 people living near a swine facility
(Schiffman, 1995). The results of the study indicated that people
living near the swine facility had significantly more depression,
tension, anger, fatigue and confusion than control subjects who did not
live near a swine facility. In another study, the mental and physical
health of 18 people living near a large-scale swine facility was
evaluated (Thu, 1997). The results of this study suggested that people
living near the facility had significantly elevated rates of physical
symptoms that were consistent with symptoms reported in occupational
studies of swine workers. A third study compared physical symptoms and
quality of life among 155 individuals from 3 different rural
communities (Wing, 2000). The community living within 2 miles of a
large-scale swine facility reported significantly greater frequency of
headaches, runny nose, sore throat, coughing, burning eyes, and
diarrhea. Although no published studies have investigated the effects
of large-scale poultry operations on the health of nearby neighbors, it
is likely that similar health effects could be observed since swine and
poultry facilities emit many of the same airborne contaminants.
People living near CAFOs experience serious impacts to water
quality such as contaminated wells. (Flora, 2002; Stull, 2004).
Community residents living near CAFOs and children of CAFO operators
are also exposed to pollutants. A University of Iowa study found that
people living near large-scale hog facilities reported higher incidence
of head aches, respiratory problem, eye irritation, nausea, weakness,
and chest tightness (Thu, 1997). Children of CAFO operators in Iowa
have higher rates of asthma than do other farm children (Merchant,
2005). Several studies have also documented increased rates of physical
and mental illness among people living near CAFOs (Wing, 2000).
Should Avian Flu take hold among the poultry CAFOs in the U.S. that
currently produce about 8 billion chickens, turkeys, and ducks per year
for human consumption, the workers involved in feeding, watering,
catching, transporting, processing, and cleaning the barns for the next
batch of 25-30 thousand birds would likely be at significant risk for
bird-to-human movement of the H5N1 virus.
The need for greater public health scrutiny of IAP animal feed
composition is well illustrated by the cases of bovine spongiform
encephalopathy (BSE or mad cow disease). Animal feed that includes BSE-
contaminated tissue (i.e., brain, spinal cord, etc.) is a prime way for
the disease to spread. Chicken litter (feces, feathers, spilled feed)
is still used in cattle feed, and the controls for monitoring the
inclusion of ``downer'' cattle and slaughterhouse offal in poultry feed
are inadequate to assure that prions (the abnormally folded proteins
responsible for BSE) don't enter the feed supply for poultry and,
subsequently, the poultry litter used for cattle feed.
2. industrial animal production results in the release of high levels
of gases, odors, nutrients, pathogens and antibiotic resistant bacteria
into the air, water, and soil.
Air
More than 160 compounds have been identified in airborne emissions
from swine CAFOs (Spoelstra, 1980). These compounds can be grouped into
3 categories: gases and vapors; bioaerosols; and non-biologic aerosols
(Cole, 2000; Donham, 1977; Olsen, 1996; Pickrell, 1991).
The gases associated with CAFOs of primary concern to public health
are ammonia, hydrogen sulfide, carbon monoxide and methane. The main
sources of these gases include poultry and swine facilities, windrows
of stored poultry litter, cesspits adjacent to swine barns, and land-
applied poultry litter and swine wastes. At high concentrations,
ammonia and hydrogen sulfide adversely affect the respiratory system,
and cause eye and skin irritation. The swine-related bioaerosols of
concern to public health are endotoxins. Endotoxins are fragments of
gram-negative bacteria that are generally present in high
concentrations at a swine production facility. When endotoxins are
inhaled, chronic respiratory symptoms such as coughing and wheezing,
pulmonary impairment, and fever can result (Douwes, 1997).
Bioaerosols present in and around CAFOs include (but are not
limited to) bacteria, antibiotic-resistant bacteria and endotoxins.
Recent studies have shown that 98% of airborne bacteria present in
large-scale swine and poultry operations are resistant to multiple
antibiotics that are used in both animal production and human medicine
(Chapin, 2005; McCarthy, in preparation).
Water
The presence of bacterial and protozoan pathogens in ground water
intended for drinking water can cause mild to severe bouts of
gastroenteritis, depending on the immune status and age of the affected
individual. Contracting antibiotic-resistant bacterial infections can
pose serious challenges in treatment. Studies published in the New
England Journal of Medicine have shown an association between the use
of antibiotics in animal production operations and antibiotic-resistant
bacterial infections in humans (Molbak, 1999; Smith, 1999). Other
studies of poultry, poultry farmers and poultry slaughterers have
documented the spread of antibiotic-resistant Enterococcus sp. and
Escherichia coli from poultry to humans (van den Bogaard, 2001; van den
Bogaard, 2002).
In 1998, the Centers for Disease Control and Prevention, the U.S.
government's lead agency for protecting the safety and health of
Americans, conducted a pilot investigation of the microbial and
chemical constituents of water and other environmental media affected
by poultry litter around large poultry operations (Karpati, 1998).
Results from this study indicated that ground water and/or surface
waters near large-scale poultry operations were contaminated with the
following:
Nutrients, including nitrite, nitrate, ammonia and Kjeldahl nitrogen
Solutes, including chloride, barium and copper
Pesticides, including atrazine, methoxychlor, alachlor, metolachlor
and cyanazine
Antibiotic residues, including tetracyclines and fluoroquinolones
Bacterial pathogens, including, Escherichia coli, Salmonella sp., and
Enterococcus sp.
Antibiotic-resistant Escherichia coli, Salmonella sp., and
Enterococcus sp.
The CDC also investigated the microbial and chemical constituents
of ground and surface water near a swine CAFO (Campagnolo, 1998). This
study revealed that ground water and surface waters near the swine CAFO
were contaminated with the following:
Nutrients, including phosphate, nitrate and nitrite
Common ions, including arsenic
Trace elements
Antibiotics
Parasitic oocysts of Cryptosporidium parvum
Bacteria, including E. coli, Enterococcus, and Salmonella, all
demonstrated antibiotic-resistance to antibiotics that are
commonly used as feed additives in swine production. Most of
these antibiotics are also used in human medicine to treat
clinical disease.
Soil
Manure land application in excess of the land's absorptive capacity
also can lead to excess nitrogen and phosphorus in soil, eutrophication
of surface waters and algae overgrowth--including some algae that
produce compounds that are toxic to fish and humans.
3. current waste management practices in industrial animal production
threaten the environment and public health.
Before industrial methods were adopted in animal agriculture, the
amount of waste produced by small numbers of animals on family farms
was applied to pasture and cropland in amounts that maintained the
balance of soil fertility. Coupled with crop rotation and open
pasturing of animals most farms were able to maintain an ecologic
balance. With the emergence of CAFOs and the associated production in
concentrated areas of huge quantities of untreated solid and liquid
wastes, the ecologic balance was upset. Current animal production in
the U.S. yields 287 million dry tons of waste, more than 270 million
dry tons of which is applied to land without any prior treatment.
In contrast, the population of almost 300 million people in the
U.S. produces about 6.9 million dry tons of treated waste in municipal
treatment facilities, 3.6 million dry tons of which is applied to land
as sewage sludge.
Impacts from waste: Rivers and streams
An estimated 48,000 of the 300,000 impaired U.S. river and stream
miles are due to animal feeding operations (USEPA, 2003)
High levels of estrogens are in effluent from animal feeding
operations
Drugs used in CAFOs end up in waste
Arsenicals used in poultry production for growth promotion and for
controlling intestinal parasites lead to 2 million pounds or
2,000 tons of arsenic being introduced into the environment
each year from U.S. poultry operations alone.
25 million pounds of antibiotics are used in U.S. food animal
production in sub-therapeutic doses. About 75% of these
antibiotics are excreted into CAFO wastes.
Impacts from waste: Drinking Water
1.3 million households have water supplies with nitrate levels above
the maximum contaminant level of 10 mg/L. (USEPA, 2002)
In many states, it is legal for CAFO storage cesspits (or what are
referred to as ``lagoons'') to leak millions of gallons of liquid
waste, (Simpkins, 2002; Huffman, 1995; Schulte, 1998). Moreover, CAFO
cesspits overflow or breech (Mallin, 2000; Wing, 2002). It is also
important to note that these cesspits are often located on floodplains,
extend below the water table or are sited over alluvial aquifers
(valuable drinking water sources but vulnerable microbial
contamination) (Simpkins, 2002).
4. feed ingredients used in industrial animal production are
undermining the effectiveness of antibiotics in medical care.
Antibiotics are used extensively at sub-therapeutic levels in
CAFOs. The antibiotics are added to animal feeds in addition to arsenic
and other metal compounds for growth promotion purposes (Barza, 2002;
Sommers, 2002; Momplaisir, 2001). According to the Union of Concerned
Scientists, more than 70% of all antibiotics produced in the U.S. are
used in animal production. It is estimated that 23 million pounds of
antibiotics are used annually in U.S. animal production, as compared to
3 million pounds of antibiotics prescribed for humans. (Mellon, 2002).
Most of these medicines are either identical to or very similar to
human medicines. There is strong scientific evidence that the
antibiotics used in CAFOs contributes to antibiotic resistance
transmitted to bacterial pathogens that affect human disease. (Barza,
2002; WHO, 2001). Resistant strains of bacteria that develop in CAFO
animals undermine the usefulness of antibiotics in treating humans
(Mellon, 2001).
The World Health Organization recognizes that resistant strains of
human pathogens have been identified in animal production facilities
and has recommended putting an end to the non-therapeutic use of
antibiotics in animal husbandry, (WHO, 1997). The American Public
Health Association adopted Resolution 2004-13, ``Helping Preserve
Antibiotic Effectiveness by Stimulating Demand for Meats Produced
Without Excessive Antibiotics'' thereby recognizing the threat to
public health posed by non-therapeutic use of antibiotics in CAFOs
(APHA, 2004).
All uses of antibiotics inevitably lead to the selection of
resistance organisms. In human medicine this problem is approached by
selective use of antibiotics for confirmed bacterial infections,
encouraging patients to complete the full course of treatment to
eradicate the infection, and to educate patients and doctors alike that
over-prescribing of antibiotics for such things as viral upper
respiratory infections contributes to the emergence of antibiotic-
resistant organisms. Antibiotic resistant bacteria, especially in
hospital-acquired infections, are an increasingly serious clinical
problem. The same classes of drugs are used in food animal production
as in clinical medicine.
How is antibiotic use in industrial animal production related to
human health?
Animals are given antibiotics in their feed throughout their life
Antibiotic resistant bacteria are selected out in the gut of the
animal
Antibiotic resistant bacteria in animal waste ends up on the meat
and in the environment. Human exposure to antibiotic resistant bacteria
then occurs from ingesting contaminated foods, breathing air containing
bacteria, and drinking contaminated water.
CDC recognizes that virtually all important bacterial pathogens in
the U.S. are becoming resistant to currently available antibiotics. In
1998, the National Academy of Sciences estimated that antibiotic
resistant bacteria costs the US $4--5 billion each year in
hospitalizations for protracted infections, loss of work, and premature
death or disability.
Total Burden of Foodborne Illnesses (CDC, Emerging Infectious
Diseases, 1999)
Illnesses: 76,000,000
Hospitalizations: 323,000
Deaths: 5,200
A global problem needs global leadership: bacteria without borders
Drug resistant salmonella, originating in Japanese fish farms,
reached US in 3 years
Bacteria move by wind from Africa to the US
Wild birds carry bacterial and viral diseases across oceans
Antibiotic resistance genes are picked up and transferred among
bacterial populations, from non-pathogenic to pathogenic
strains
The rate of spread of these antibiotic resistant genes and
organisms is a function of how many hosts (people or food animals) are
exposed to sub-therapeutic doses of antibiotics.
Summary
The public health threat of CAFOs reflects the multiple exposure
routes through air, water, and soil of harmful gases, pollutants such
as sulfur dioxide and nitrates, and pathogenic micro-organisms.
Gases, odors and nutrients are problematic but are not the only
public health concern.
Antibiotic resistant bacteria are a major public health threat.
These real and urgent public health issues associated with CAFOs
warrant strengthening rather than lowering the standards regarding air
and water quality.
To date, no swine producing state has been able to control
adequately manure waste and airborne emissions from swine CAFOs, such
that potential environmental health problems and public health problems
among neighboring landowners are eliminated.
Given the current situation and the efforts by large producers to
introduce CAFOs to new areas of the U.S., now is not the time to be
reducing the regulatory attention that CAFOs receive.
The documented harmful health effects of CAFOs motivated the
American Public Health Association in 2003 to adopt a resolution
calling for a moratorium on the building of new CAFOs until additional
data can be gathered and policies implemented to protect public health.
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Mr. Gillmor. Thank you very much, Dr. Lawrence. You heard
the bells again. That means we are going to have another series
of votes. But I want to be sure we get the panel concluded, so
let me go to Ms. Merkel.
STATEMENT OF MICHELE M. MERKEL
Ms. Merkel. Okay. Thank you, Mr. Chairman and members of
the subcommittee for the opportunity to testify today. My name
is Michele Merkel, and I am senior counsel of the Environmental
Integrity Project, which is a non-profit organization that
advocates for the effective enforcement of environmental laws.
I am testifying today on behalf of 19 other organizations and
individuals who are concerned about recent Congressional
interest in exempting all hazardous releases associated with
manure from the notification and reporting requirements under
CERCLA and EPCRA.
We ask you to continue to require reporting under these
statutes from large agricultural operations that release
hazardous substances at levels that may jeopardize public
health. In addition, we ask you to maintain authority under
CERCLA to require livestock operations to clean up their un-
permitted releases of hazardous waste. Without these statutes,
the government is left powerless to protect critical natural
resources like public drinking water supplies, and the public
is unwittingly exposed to potentially dangerous quantities of
hazardous pollutants.
As we have heard today, the face of animal agriculture has
changed dramatically in recent years. The traditional practices
of the independent farmer have yielded to an industrial
paradigm that rests on economies of scale. The new system more
closely represents manufacturing than it does farming. Now we
have thousands, or even millions, of animals confined in
buildings, and these mega-facilities can produce thousands of
tons of waste every year, and are capable of releasing
significant, even dangerous quantities, of toxic gasses to
nearby communities.
For example, Threemile Canyon Farms in Boardman, Oregon,
recently reported that its 52,300-head dairy cow operation
emits 15,500 pounds of ammonia per day. This is 5,675,000
pounds per year. That is 75,000 pounds more than the Nation's
No. 1 manufacturing source of ammonia air pollution.
Unless properly regulated, corporate agriculture presents
serious threats to human health. As Dr. Lawrence just
mentioned, the risks to public health is so great that the
American Public Health Association, the Michigan State Medical
Society, the Canadian Medical Association, as well as local
boards of health, have all called for a moratorium on new
construction of concentrated animal feeding operations.
CERCLA and EPCRA provide an essential safety net for
protecting water supplies and protecting the air that we
breathe. The reporting requirements under these statutes
provide local, State and Federal agencies with critical
information about potentially dangerous releases of hazardous
substances that could affect communities. And if a reported
release demands a response, the government may act to respond
to that release. And if the government acts, it may recoup the
cost of its action. CERCLA upholds the principle that
polluters, not the public, should bare the cost and
responsibility for remedying the harmful conditions that they
create.
Now, we have heard industry representatives today assert
that livestock operations should be exempt for a number of
reasons. First, we often hear that the environmental community
wants to use these laws to shut down agriculture, and that
citizen suit litigation threatens to impose high penalties in
natural resources danger. But this could--nothing could be
further from the truth. There have only been a couple of
citizen suits ever brought against CAFOs that have had CERCLA
and EPCRA claims. These suits were brought by rural residents,
including family farmers, against some of the largest
operations in the country. In both Sierra Club cases, the
industry did not pay a single penny in penalties. Furthermore,
natural resource damages may only be recovered by a designated
Federal, State or tribal trustee.
Another myth that we hear is that livestock operations are
already over-regulated by Federal Law. First, CERCLA and EPCRA
require the reporting of only non-federally permitted releases.
If an operation's emissions are authorized by a permit under
another Federal statute, they do not have to report these
emissions. And releases that are federally permitted, are
exempt not only from the notification requirements, but from
CERCLA liability as well. However, health threats and pollution
from factory farms has been poorly controlled by other Federal
laws. States have never issued a single Clean Air Act permit to
an operation to date, and although the Clean Water Act has
required large livestock operations to obtain permits for more
than 30 years, non-compliance has been widespread.
In 2001, EPA estimated that at least 13,000 operations were
required to have Clean Water Act permits, but EPA and States
had issued just 2,520 permits.
Industry also asserts that Congress never intended to apply
CERCLA and EPCRA requirements to animal agriculture. However,
they cite no authority for this claim. If Congress had intended
such a result, it could have and would have excluded animal
production facilities from the reporting requirements. Instead,
they chose only to exempt the normal application of fertilizer,
and provide an exemption for regulated substances used in
routine agricultural operations. No one has tried to take these
exemptions away. What industry has a problem with is that
Federal courts have declined to apply these exemptions to
corporate agriculture. But this is only happening in cases
where the specific facts of the case have shown that the
operation over-applied its waste to fields or vented dangerous
quantities of hazardous pollutants from buildings.
Finally, industry argues that releases of hazardous
substances from animal production facilities like ammonia and
hydrogen-sulfide, should be exempt because these are naturally
occurring. But there is nothing natural about amassing millions
of animals in buildings and flushing their waste into pits that
can be several football fields big, nor is there anything
natural about over-applying the animal waste to crops that
can't use the nutrients. This exemption is meant to apply only
to releases of background levels of chemicals, or releases that
occur naturally without any human interference, not to
hazardous substances that are added to the environment and
disposed of during the improper storage and handling of waste.
I am here today not because environmentalists or family
farmers want to shut down agriculture. Rather, this is about
holding all industries accountable for pollution that threatens
public health and the environment, whether you are a
manufacturing plant, a chemical plant, or an industrial
agricultural operation. There is no compelling reason to exempt
livestock facilities from these statutes, particularly when
Congress has already put exemptions in place to cover those
operations that farm responsibly. Like everyone else, rural
residents have a right to know what toxins are being dumped
into their air and water.
In closing, before you consider any amendments to current
law, we request that you hold field hearings so that citizens
who are affected by pollution from these large operations have
an opportunity to testify as well. Thank you.
[The prepared statement of Michele M. Merkel follows:]
Prepared Statement of Michele M. Merkel, Senior Counsel, Environmental
Integrity Project
Thank you Mr. Chairman and Members of the Subcommittee for the
opportunity to testify today. My name is Michele Merkel, and I am
senior counsel of the Environmental Integrity Project (EIP), a
nonprofit organization that advocates for effective enforcement of
environmental laws. I am testifying this morning on behalf of EIP,
Center on Race, Poverty & the Environment, Clean Water Action Alliance
of Minnesota, Conservation Council of North Carolina, Family Farms for
the Future, Idaho Conservation League, Illinois Stewardship Alliance,
Institute for Agriculture and Trade Policy, Iowa Citizens for Community
Improvement, Iowa Environmental Council, Izaak Walton League of
America, Land Stewardship Project, Natural Resources Defense Council,
Northwest Environmental Defense Center, Savannah Riverkeeper, Inc.,
Sierra Club, Southern Environmental Law Center, Sustainable Agriculture
Coalition, Waterkeeper Alliance, Melody Torrey on behalf of Missouri
Stream Team #714, Rolf Christen, and Robert E. Rutkowski.
We are concerned about recent Congressional interest in exempting
all hazardous releases associated with manure, including ammonia and
hydrogen sulfide, from the notification and reporting requirements
under the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) and the Emergency Reporting and Community Right
to Know Act (EPCRA). We urge you to continue to require hazardous
release reporting under these statutes from large agricultural
operations that release ammonia or other hazardous substances at levels
that may jeopardize public health. In addition, we urge you to maintain
authority under CERCLA to require livestock operations to clean up
their unpermitted releases of hazardous waste to the environment.
Without these statutes, the government is powerless to protect critical
natural resources like public drinking water supplies, and the public
is unwittingly exposed to potentially dangerous quantities of hazardous
pollutants.
STRUCTURE OF THE LIVESTOCK INDUSTRY
The Animal Feeding Operation (AFO) industry is a multi-billion
dollar business. Most AFOs do not resemble the livestock farms of years
past. Instead, many AFOs are industrialized operations that confine
thousands of animals at a single location, often generating the waste
equivalent of a small city.1 Unlike traditional livestock
farms where the animals grazed on pastureland, AFOs confine thousands,
or even millions, of the animals in closed buildings for most of their
lives, where they are fed a regimented diet in a closely controlled
indoor environment.2
In the swine industry, for example, large confinement operations
dominate production.3 Hog AFOs typically confine
approximately 5,000 hogs at any given time in totally closed
buildings.4 Such large AFOs are highly specialized
operations which do not resemble traditional farming. They are more
akin to manufacturing processes, in which the operator closely
regulates the animals' environment, food source, and water
supply.5
Animal production is also becoming consolidated in the hands of a
few giant agribusinesses. In the broiler industry, for example,
production has shifted away from small family farms to industrial
production facilities controlled by large agribusinesses. Between 1982
and 1992, roughly 20% of broiler operations across the country shut
down, yet the number of chickens raised increased considerably.
Industrial-sized operations have replaced the traditional small
producers that went out of business.6
Over 90% of all chickens are raised under a contractual
relationship with ``integrated'' production and processing companies.
Under this arrangement, the agribusiness ``integrator'' contracts with
a ``grower'' to produce chickens for slaughter by the integrator. The
integrator owns the chickens throughout the production process and
supplies the bulk of the necessary inputs including feed and
medication. The integrator also monitors the production operation and
provides growers with detailed instructions regarding the day-to-day
activities at the site.7
Consolidation and agribusiness control is not limited to the
broiler industry. The trend in hog production is also toward fewer,
larger confinement operations. In the last decade alone, the number of
hog operations nationwide plummeted 50% while domestic hog production
increased considerably. As with the broiler industry, the smaller,
family-run hog farms have given way to large industrial-scale AFOs,
where many of the hogs are raised under contract with an integrator.
The dairy industry is becoming consolidated as well. Since 1998, over
40% of all dairies have vanished, but the number of larger operations
has increased.8
The AFO industry is big business. The poultry industry alone
generated over $21 billion in on-farm revenue in 1997, with much of the
production coming from corporate producers operating large
AFOs.9 Similarly, the swine industry generates roughly $10
billion per year at the production level; revenue from consumer sales
often exceeds $20 billion.10 Large agribusinesses realize
the lion's share of the profits. For instance, Tyson Foods, the world's
largest meat producer, enjoyed $26.4 billion in sales and realized $1.9
billion in gross profits in 2004.11 Smithfield Foods, the
nation's largest hog producer, generated $9.3 billion in sales and $227
million in net income in the same year.12 Revenues and
profits continue to grow each year.
The face of animal agriculture has changed dramatically in recent
years. The traditional practices of the independent farmer have yielded
to an industrial paradigm that rests on economies of scale and
externalization of pollution control costs. Large-scale ``factory
farms'' are rapidly taking over the meat industry, and production
practices that involve animals grazing on pasture are quickly
disappearing. A new system of animal agriculture has taken hold, one
that more closely resembles manufacturing than it does farming. Unless
properly regulated, this new form of agriculture has the potential to
do unthinkable damage to the environment.
ENVIRONMENTAL AND HUMAN HEALTH IMPACTS OF AFO POLLUTION
Animal feeding operations present enormous threats to the
environment. These operations produce about 500 million tons of manure
annually or three times more waste than humans generate each year in
the United States.13 The pollutants associated with AFO
waste include: (1) nutrients such as nitrogen and phosphorous; (2)
organic matter; (3) solids, including the manure itself and other
elements mixed in with it such as spilled feed, bedding and litter
materials, hair, feathers and corpses; (4) pathogens; (5) salts; (6)
trace elements such as arsenic; (7) volatile compounds such as carbon
dioxide, methane, hydrogen sulfide, and ammonia; (8) antibiotics; and
(9) pesticides and hormones.14
These pollutants often impair water quality in the nation's rivers
and lakes when manure overflows from storage ``lagoons'' or when
pollutants released to the air redeposit on waterways. For example, in
1995, approximately 25 million gallons of manure were discharged from a
single hog AFO in North Carolina.15 Similarly, discharges of
thousands of gallons of animal waste have been reported in Iowa,
Illinois, Minnesota, Missouri, Ohio and New York.16 These
discharges wreak havoc on the receiving waters, often killing hundreds
of thousands of fish per event.
Perhaps the most common way that pollutants reach surface waters or
leach into groundwater is through improper land application. AFOs
frequently overapply animal waste to nearby fields, where it mixes with
rainwater and runs off into rivers and lakes. The nutrient-rich runoff
alters the chemical composition of receiving waters, and triggers a
surge in algae and other aquatic vegetative growth. This vegetative
growth can choke out fish and other marine life, and lead to increased
treatment requirements for drinking water supplies. According to the
EPA, ``over-enrichment of waters by nutrients (nitrogen and
phosphorous) is the biggest overall source of impairment of the
nation's rivers and streams, lakes and reservoirs, and estuaries.''
17
This contamination poses serious risks to human health. Manure-
related microbes in water can cause severe gastrointestinal disease,
complications and even death.18 In May 2000 in Walkerton,
Ontario, an estimated 2,321 people became ill and seven died after
drinking water from a municipal well contaminated with E.coli and
Camplyobacter from runoff resulting from manure spread onto fields by a
nearby livestock operation.19 Manure can also carry arsenic
and other toxic metal compounds, as well as antibiotics, into water
contributing to antibiotic resistance.20 Finally, pollution
from animal confinements can cause nitrate contamination of drinking
water supplies, which can result in significant human health problems
including methemoglobinemia in infants (``blue baby syndrome''),
spontaneous abortions and increased incidence of stomach and esophageal
cancers.21
AFO air emissions also cause significant health problems in workers
and in nearby residents. AFOs emit significant amounts of particulate
matter (fecal matter, feed materials, skin cells, bioaerosols, etc.),
ammonia, hydrogen sulfide, sulfur dioxide, volatile organic compounds,
and other harmful contaminants into the air.22 Adverse human
health effects associated with air pollution from AFOs are manifold and
may include respiratory diseases (asthma, hypersensitivity pneumonitis,
industrial bronchitis), cardiovascular events (sudden death associated
with particulate air pollution), and neuropsychiatric conditions (due
to odor as well as delayed effects of toxic inhalations.).23
Other problems include increased headaches, sore throats, excessive
coughing, diarrhea, burning eyes, and reduced quality of life for
nearby residents.24 AFO air pollution is especially
problematic, because neighboring communities are exposed on a near
constant basis.25
Ammonia is a human toxin that EPA lists alongside arsenic, cyanide,
and benzene as a hazardous substance under CERCLA. 40. C.F.R. 302.4.
The livestock sector produces roughly 73% of all ammonia emissions
nationwide.26 Some of the largest facilities produce
staggering quantities of ammonia gas--comparable to pollution from the
nation's largest manufacturing plants.27 For example,
Threemile Canyon Farms in Boardman, Oregon, reported that its 52,300
dairy cow operation emits 15,500 pounds of ammonia per day, more than
5,675,000 pounds per year.28 That is 75,000 pounds more than
the nation's number one manufacturing source of ammonia air pollution
(CF Industries of Donaldson, Louisiana).29 Buckeye Egg
Farm's facility in Croton, Ohio reported ammonia emissions of over
4,300 pounds per day--43 times the reporting threshold under CERCLA and
EPCRA.30
Human exposure to ammonia triggers respiratory problems, causes
nasal and eye irritation, and in extreme circumstances, is
fatal.31 AFOs expose downwind neighbors are exposed to
elevated ammonia levels, as well as other pollutants. For example, the
Missouri Department of Health and Senior Services documented ambient
ammonia levels downwind of a swine operation ranging from 153 to 875
ppb. The EPA submitted comments on the Missouri study, comparing the
ambient ammonia levels to recommended exposure limits and noted that
``the conclusion could be drawn that a public health hazard did exist
at the time the . . . data was acquired.'' 32
Ammonia also contributes to the development of fine particulate
matter. Fine particulate matter causes significant health problems,
including aggravated asthma, difficult or painful breathing, chronic
bronchitis, decreased lung function, and premature death.33
Fine particulate matter has been linked to increased hospital emissions
and emergency room visits for people with heart and lung disease, and
decreased work and school attendance.34
In addition to ammonia, EPA also lists hydrogen sulfide as a
hazardous pollutant under CERCLA. High-level exposures of hydrogen
sulfide, an asphyxiate, can cause loss of consciousness, coma and
death. At least 19 AFO workers have died from sudden hydrogen sulfide
exposure during liquid manure agitation. 35 Epidemiological
studies of communities exposed to hydrogen sulfide reported symptoms
such as asthma, chronic bronchitis, shortness of breath, eye
irritation, nausea, headaches and loss of sleep.36
These risks to public health led the American Public Health
Association to call for a moratorium on new concentrated animal feeding
operations ``until scientific data on the attendant risks to public
health have been collected and uncertainties resolved.'' 37
The Michigan State Medical Society, the Canadian Medical Association,
as well as local boards of health, have also called for moratoria on
new concentrated animal feeding operation construction.38
EPCRA AND CERCLA REQUIREMENTS
CERCLA has two main policy objectives. First, Congress intended to
give the federal government the necessary tools for a prompt and
effective response to problems of national magnitude resulting from
hazardous waste disposal.39 Second, Congress intended that
the polluters bear the costs and responsibility for remedying the
harmful conditions that they created.40
Specifically, section 103 of CERCLA provides that any person in
charge of a facility from which a hazardous substance has been released
in a reportable quantity (RQ) must immediately notify the National
Response Center (``NRC'').41 For example, releases of
ammonia and hydrogen sulfide that exceed 100 pounds per day must be
reported under section 103.42 Section 103(f)(2) of CERCLA
further provides for relaxed reporting requirements for substances that
are classified as a continuous release.43 If a reported
release demands a response, the government may act, pursuant to section
104, to respond to that release.44 And if the government
acts, it may recoup the costs of the recovery action under CERCLA
section 107.45
In addition to the reporting requirements under CERCLA, owners and
operators of facilities must also provide immediate notice of the
release of an extremely hazardous substance under EPCRA. Section 304(a)
requires an owner or operator of a facility to report the release of an
extremely hazardous substance to designated state and local officials,
if ``such release requires notification of section 103(a) of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980.'' 46 The EPCRA emergency reporting requirements,
therefore, track the CERCLA requirements and ensure that federal, state
and local authorities are notified of potentially dangerous chemical
releases.
The right-to know provisions of CERCLA and EPCRA not only empower
government but also citizens. Information about chemical releases
enables citizens to hold companies and local governments accountable in
terms of how toxic chemicals are managed. Transparency also often spurs
companies to focus on their chemical management practices since they
are being measured and made public. In addition, the data serves as a
rough indicator of environmental progress over time.
ANIMAL PRODUCTION OPERATIONS SHOULD NOT BE EXEMPTED FROM EPCRA/CERCLA
The AFO industry argues that Congress never intended to apply
CERCLA and EPCRA requirements to animal agriculture. However, they cite
to no authority for this claim. If Congress had intended such a result,
it could have excluded animal production facilities, like hog or
poultry facilities, from the reporting requirements of
CERCLA.47 Instead, Congress only chose to exempt ``the
normal application of fertilizer'' from the CERCLA definition of
release,48 and provided an exemption under EPCRA for
reporting releases when the regulated substance ``is used in routine
agricultural operations or is a fertilizer held for sale by a retailer
to the ultimate consumer.'' 49
Both of these exemptions were considered by a federal district
court in Kentucky which held that neither of the exemptions should
apply to Tyson's poultry production operations. Tyson did not qualify
for the routine agricultural use exemption, because it did not store
ammonia in the chicken houses for agricultural use, nor did it use the
ammonia in an agricultural operation.50 Rather, it used
exhaust fans and vents to release the ammonia to the environment so
that it would not kill the chickens. Tyson did not qualify for the
normal application of fertilizer exemption, because they were not
applying ammonia to farm fields as fertilizer when they vented it into
the atmosphere.51
A federal court in Texas also considered the normal application of
fertilizer exemption. The court ruled that the exemption does not apply
if Plaintiffs prove that the Defendants improperly stored and
maintained large amounts of waste on their property, causing hazardous
releases of phosphorous and other pollutants to nearby sources of
drinking water.52
Industry representatives also argue that the CERCLA exclusion for
``naturally occurring substances'' should apply to livestock
operations. Section 104(a)(3)(A) of CERCLA prohibits the President
[through EPA] from ordering a remedial or response action ``in response
to a release or threat of release . . . of a naturally occurring
substance in its unaltered form, or altered solely through naturally
occurring processes or phenomena, from a location where it is naturally
found . . .'' Industry argues that CERCLA should not apply to farming
operations because ``[s]ubstances, such as orthophosphate, ammonia and
hydrogen sulfide, occur naturally in the environment in the same forms
as they occur as byproducts of biological processes on farming
operations.'' However, releases of hazardous substances from
agribusinesses would not qualify for the exemption, because they occur
as a result of activities associated with milk or meat
production.53 For example, as discussed below, in both of
the response actions taken to date, the governments' actions were not
based on releases of naturally occurring phosphorous or orthophosphate
undisturbed by human activity. Rather, the governments sought to remove
hazardous substances that were added to the environment and disposed of
by the operations during the improper storage and handling of waste.
cercla/epcra fill important gaps in permitting statutes
CERCLA and EPCRA require the reporting of only non-federally
permitted releases. Therefore, if a AFO's emissions are authorized by a
permit under another federal statute, they do not have to report these
emissions. Releases that are federally permitted are exempt not only
from CERCLA and EPCRA notification requirements but from CERCLA
liability as well.54
Although EPA and the States have permitted some AFOs under other
federal statutes, CERCLA is still necessary to fill critical gaps. For
example, under pressure from citizens and EPA, the California
legislature overturned an exemption for agricultural operations and
recently became the first state to require large animal operations to
apply for Clean Air Act permits.55 Although the Clean Water
Act has required large livestock operations to obtain permits for more
than 30 years, noncompliance has been widespread. In 2001, EPA
estimated that at least 13,000 concentrated animal feeding operations
were required to have Clean Water Act permits, but EPA and States had
issued just 2,520 permits.56
Even if a facility were to have a federal permit, the permit would
not necessarily address all of the releases of hazardous chemicals. A
Clean Water Act permit, for example, would not address releases of
hazardous chemicals to the air and, conversely, a Clean Air Act permit
would not address releases of hazardous chemicals to water.
Furthermore, not all statutes regulate the same chemicals. For example,
the Clean Air Act does not regulate ammonia or hydrogen sulfide as
hazardous air pollutants. Although CERCLA's list of hazardous
substances were first identified under other statutes, including the
Clean Water Act, the Clean Air Act and the Resource Conservation and
Recovery Act, CERCLA authorizes the Administrator of EPA to add to this
list ``substances [like ammonia and hydrogen sulfide] which, when
released to the environment may present a substantial danger to public
health or welfare or the environment . . .'' 57 Thus, EPCRA
and CERCLA are necessary complements to federal permitting statutes to
address hazardous pollutants that would not otherwise be regulated.
CERCLA/EPCRA CASES AGAINST AGRIBUSINESSES, NOT FAMILY FARMS
There have only been a handful of cases filed against AFOs for
violations of CERCLA and EPCRA. In most of the cases, the defendants
have been large corporate agribusinesses, not family farmers, and the
releases of hazardous chemicals have been significant. Courts have
consistently held that CERCLA and EPCRA reporting requirements apply to
agricultural operations if releases of regulated hazardous substances
meet regulatory thresholds.
Premium Standard Farms--In November 2001, the United States and
Citizens Legal Environmental Action Network, Inc. settled a case
against Premium Standard Farms, Inc. (PSF), the nation's second largest
pork producer and Continental Grain Company. PSF's and Continental's
operations in Missouri consist of more than 1,000 hog barns, 163 animal
waste lagoons and 1.25 million hogs, primarily located on 21 large-
scale farms in five counties. The settlement resolved numerous claims
of violations under the CWA,58 CAA,59 CERCLA and
EPCRA.60
PSF exposed downwind neighbors to elevated ammonia levels, as well
as other pollutants.61 Recent measurements taken pursuant to
the settlement agreement reveal that PSF releases 3 million pounds of
ammonia annually from the cluster of barns and lagoons at its Somerset
facility.62 These emissions make PSF the fifth largest
industrial emitter of ammonia in the United States. This data does not
include the ammonia gases released when liquid manure is sprayed on the
company's nearby fields.
Seaboard Corporation--On January 7, 2003, the Sierra Club reached
partial settlement of a lawsuit against the Seaboard Corporation,
concerning pollution at one of the largest hog factories in North
America. The settlement resolved all claims, except for Sierra Club's
CERCLA and EPCRA claims.--CERCLA requires a person to report releases
of a hazardous substance from a ``facility.'' In an effort to avoid
regulation, Seaboard argued that each pit and building should be
counted separately. An appellate court found Seaboard's arguments
"unconvincing." The Court held that the entire 25,000-head hog
operation was a single "facility" and that Seaboard must report the
combined emissions from all its waste pits and confinement
buildings.63 Seaboard estimates that the total average daily
emissions of ammonia are from its Dorman Sow Facility is 192 pounds per
day, almost double the 100 pound per day reporting threshold under
CERCLA.
Tyson Foods, Inc.--On January 26, 2005, the Sierra Club entered
into a settlement agreement with Tyson Foods. Tyson is the number one
poultry producer in the nation, and each of its four facilities that
were involved in the case could confine approximately 600,000 chickens
at one time. Under the decree, Tyson agreed to study and report on
emissions from its chicken operations and mitigate ammonia emissions
that have been plaguing rural residents for years. The settlement came
in the wake of a court decision in 2003, when a federal judge ruled
that the term ``facility'' should be interpreted broadly, including
facilities operated together for a single purpose at one site, and that
the whole farm site is the proper regulated entity for purposes of the
CERCLA and EPCRA reporting requirements.64
City of Tulsa--The City of Tulsa filed suit against some of the
largest poultry producers in the nation including Tyson, Simmons and
Cargill.65 The City alleged that the Defendants' growers
polluted Lakes Eucha and Spavinaw, from which Tulsa draws its water
supply, by applying excess litter to land application areas. As of
September 1, 2002, just one of the Defendant's growers produced
approximately 40,715,200 birds and an estimated 39,859 tons of litter
in the affected watershed.66 The City's complaint included
claims for cost recovery and contribution under CERCLA. A federal court
ruled that phosphorous contained in the poultry litter in the form of
phosphate is a hazardous substance under CERCLA.67
City of Waco--In 2004, the City of Waco filed suit against fourteen
commercial dairies for failure to properly manage and dispose of waste.
The complaint alleges that hazardous pollution from these dairies
contaminated Lake Waco, which is the sole source of drinking water for
the City of Waco and a significant source of drinking water for
surrounding communities.68 The City's complaint includes
claims for cost recovery and contribution costs under CERCLA. The Court
denied the dairies' Motion to Dismiss and held, among other things,
that the type of phosphorous that was released by the dairies was a
hazardous substance under CERCLA.69 The Court also held that
the normal application of fertilizer exemption would not apply if
Plaintiffs could prove that the releases of hazardous substances were
caused by the dairies' improper handling of animal waste.70
State of Oklahoma--On June 18, 2005, the Oklahoma Attorney
General's Office filed a lawsuit against some of the nation's largest
producers of chickens, turkeys and eggs for water pollution in the
Illinois River watershed caused by the improper dumping and storage of
poultry waste.71 The watershed contains elevated levels of a
number of pollutants found in poultry waste. For example, the
phosphorous from the poultry waste dumped into the Illinois River
watershed is equivalent to the waste that would be generated by 10.7
million people, a population greater than the states of Arkansas,
Kansas and Oklahoma combined.72 The watershed also serves as
the source of drinking water for 22 public water supplies in eastern
Oklahoma.73
The Attorney General's complaint alleges violations of state and
federal nuisance laws, trespass, as well as other violations of state
environmental regulations. The State also seeks to recover the costs
that it has had to incur, and will incur, to respond to the pollution.
These costs include ``the costs of monitoring, assessing and evaluating
water quality, wildlife and biota in the [Illinois River Watershed].''
74 The State also seeks to recover Natural Resource Damages
for the injury to, destruction of, and loss of natural
resources.75
CITIZENS CANNOT RECOVER NATURAL RESOURCES DAMAGES OR PENALTIES UNDER
THE RESPONSE SECTIONS OF CERCLA
Industry representatives have incorrectly asserted that citizen
suits threaten to impose natural resource damage liability under
CERCLA.76 In fact, natural resource damages may only be
recovered by a designated federal, state or tribal
trustee.77
Industry has also raised alarms about high penalties from citizen
suits and cases brought by municipal and state governments. Again,
there is no rational basis for this assertion. Tyson and Seaboard did
not pay a single penny in their cases brought by Sierra Club for
failure to report their hazardous air emissions under CERCLA and EPCRA.
Furthermore, penalties are unavailable under CERCLA for removal or
remedial actions, regardless of whether they are initiated by
government or by a private party.78
Finally, citizens are even limited in their cost recovery actions.
A private party must prove as part of its prima facie case that the
cleanup activities for which it incurred response costs were consistent
with the National Contingency Plan.79
EXEMPTING AGRIBUSINESSES FROM EPCRA/CERLA REQUIREMENTS WOULD PREVENT
EPA FROM GATHERING CRITICAL DATA
The National Academy of Sciences (NAS) issued a report in 2003 in
which it expressed concern over AFO air pollution and criticized EPA
and USDA for not devoting the necessary technical or financial
resources to estimate air emissions and to develop mitigation
technologies.80 In response to NAS concerns, EPA negotiated
an Air Compliance Agreement with industry that establishes an emissions
monitoring program.81 2,700 participants have signed up for
this agreement.82 The stated purpose of the Agreement is to
ensure that AFOs comply with applicable environmental requirements--
including CERCLA and EPCRA requirements--and to gather scientific data
that the Agency needs to make informed regulatory and policy
determinations. Exempting AFOs from CERCLA/EPCRA liability will not
only remove incentives for facilities to participate in the monitoring
study, but will also prevent government and citizens from having access
to critical information about potentially dangerous releases that could
affect communities.
CONCLUSION
CERCLA and EPCRA provide an essential safety net for protecting
water supplies and for protecting the air that we breathe. There is no
compelling reason to exempt livestock facilities from these statutes
when communities have been exposed to potentially dangerous quantities
of hazardous pollutants from some large operations. Before you consider
any amendments to current law, we urge you to hold field hearings so
that citizens who are affected by pollution from livestock operations
have an opportunity to testify.
End Notes
1 EPA, Environmental Assessment of Proposed Revisions to
the National Pollutant Discharge Elimination System Regulation and the
Effluent Guidelines for Concentrated Animal Feeding Operations, EPA--
821-B-01-001 at 2-2 (2001) (``Environmental Assessment''), http://
epa.gov/ost/guide/cafo/envir.html.
2 EPA, Development Document for the Final Revisions to
the National Pollutant Discharge Elimination System Regulation and the
Effluent Guidelines for Concentrated Animal Feeding Operations, EPA--
821-R-03-001 at 4-3 (2002) (``Development Document''), http://
cfpub2.epa.gov/npdes/afo/cafodocs.cfm.
3 Development Document at 4-3.
4 Development Document at 4-3.
5 Development Document at 4-13.
6 See Development Document at 4-37.
7 See Development Document at 4-36; see also 70 Fed.
Reg. 4960.
8 See generally Development Document.
9 Development Document at 4-35.
10 Development Document at 4-2.
11 Tyson, Annual Report 2004, http://media.corporate-
ir.net/media--files/irol/65/65476/reports/ar04.pdf.
12 Smithfield, Annual Report 2004, http://
www.rkconline.net/AR/SmithfieldAR2004/.
13 USEPA, National Pollutant Discharge Elimination
System Permit Regulation and Effluent Limitation Guidelines and
Standards for Concentrated Animal Feeding Operations (CAFOs), 68 Fed.
Reg. 7176, 7180 (2003) [hereinafter USEPA, CAFO Final Rule].
14 Preamble to USEPA, CAFO Final Rule at 7181.
15 Environmental Assessment at 2-17.
16 Id. at 2-18; see also The New York Times, How to
Poison a River, (Aug. 19, 2005) (commenting on a 3 million gallon spill
from a 3,000 head dairy in New York)
17 USEPA and USDA, Clean Water Action Plan: Restoring
and Protecting America's Waters at 56 (Feb. 1998).
18 David Wallinga, M.D., Institute for Agriculture and
Trade Policy, Concentrated Animal Feeding Operations: Health Risks from
Water Pollution (Aug, 2004).
19 Id.
20 Id.; see e.g., Chapin et al., Airborne Multidrug-
Resistant Bacteria Isolated from a Concentrated Swine Feeding
Operation, 113 Environmental Health Perspectives 137 (2005).
21 EPA, CAFO Final Rule, at 7238. See also, U.S.
Environmental Protection Agency, Office of Children's Health
Protection, Drinking Water Contaminants--America's Children and the
Environment: A First View of Available Measures, http://
yosemite.epa.gov/ochp/ochpweb.nsf/content/drinking-water-contam.htm;
Centers for Disease Control and Prevention, Spontaneous Abortions
Possibly Related to Ingestion of Nitrate-Contaminated Well Water-La
Grange County, Indiana 1991-1994, Morbidity and Mortality Weekly,
Report 45 (26) (1996), at 569-571 (linking high nitrate levels in
Indiana well water near confinement operations to spontaneous abortions
in humans), http://www.cdc.gov/mmwr/preview/mmwrhtml/0042839.htm.
22 Iowa State University and The University of Iowa
Study Group, Iowa Concentrated Animal Feeding Operations, Air Quality
Study, Final Report (2002) (``Iowa Air Quality Study''), http//
www.publichealth.uiowa.edu/ehsrc/CAFOstudy.htm.
23 Iowa Air Quality Study at 122; see also Minnesota
Planning Agency Environmental Quality Board, Final Animal Agriculture
Generic Environmental Impact Statement (2002), (``Minnesota EIS for
Animal Agriculture''), http://www.eqb.state.mn.us/geis/ for information
concerning health impacts of particular AFO air pollutants.
24 S. Wing & S. Wolf, Intensive Livestock Operations,
Health, and Quality of Life Among Eastern North Carolina Residents, 108
Envtl. Health Persp. 223-38 (2000); see also K. Thu et al., A Control
Study of the Physical and Mental Health of Residents Living Near a
Large-Scale Swine Operation, 3 J. Agric. Safety & Health 1, 13-26
(1997).
25 Iowa Air Quality Study at 122.
26 EPA, Ammonia Emission Factors from Swine Finishing
Operations, http://www.epa.gov/ttn/chief/conference/ei10/ammonia/
harris.pdf.
27 EPA, National Emission Inventory--Ammonia Emissions
from Animal Husbandry Operations, Draft Report, http://www.epa.gov/ttn/
chief/ap42/ch09/related/nh3inventorydraft--jan2004.pdf.
28 Letter from Tom Lindley on behalf of Threemile Canyon
Farms to EPA Region X, April 18, 2005.
29 U.S. EPA, Toxics Release Inventory, 2003. Search
performed at: .
30 U.S. Department of Justice, Ohio's Largest Egg
Producer Agrees to Dramatic Air Pollution Reductions from Three Giant
Facilities, http://www.usdoj/opa/pr/2004/February/04--enrd--105.htm.
31 Schiffman, S.S., et al., Health Effects of Aerial
Emissions from Animal Production and Waste Management Systems, http://
www.cals.ncsu.edu/waste--mgt/natlcenter/summary.pdf.
32 Memo from Mario Jorquera to Scott Clardy (December 2,
2002).
33 EPA, Health and Environmental Impact of PM, http://
www.epa.gov/air/urbanair/pm/hlthl.html.
34 EPA, Chief Causes for Concern, http://www.epa.gov/
air/urbanair/pm/chf.html.
35 Iowa State University and The University of Iowa
Study Group, Iowa Concentrated Animal Feeding Operations Air Quality
Study (February 2002), at 132.
36 United States Public Health Service (1964).
37 American Public Health Association, Precautionary
Moratorium on New Concentrated Animal Feed Operations, 2003-7, http://
www.alpha.org/legislative/policy/2003/2003-007.pdf.
38 Id.
39 U.S. v. Reilly Tar & Chemical Corp., 546 F. Supp.
1100, 1112 (D. Minn. 1982); see also Walls v. Waste Resource Corp., 823
F. 2d 977, 980 (6th Cir. 1987); Dedham Water Co. v. Cumberland Farms
Dairy, Inc. 805 F.2d 1074, 1081 (1st Cir. 1986).
40 Id.
41 42 U.S.C. 9603(a).
42 42 U.S.C. 9603; 40 C.F.R. 302.4.
43 42 U.S.C. 9603(f).
44 42 U.S.C. 9604(a).
45 42 U.S.C. 9607(a)(4)(A).
46 42 U.S.C. 11004(a); 40 C.F.R. 355.40(b)(1).
47 Sierra Club v. Tyson Foods, et al, 299 F. Supp. 2d
693, 706 (W.D.Ky. 2003).
48 42 U.S.C. 9601(22)(D).
49 42 U.S.C. 11021(e)(5).
50 Sierra Club v. Tyson Foods, et al, 299 F. Supp. 2d
693, 714 (W.D.Ky. 2003).
51 Id.
52 City of Waco v. Dennis Schouten, et. al., No. W-04-
CA-118, slip op. at 9 (W.D. Tx. 2005).
53 See, e.g., U.S. v. Iron Mountain Mines, et.al., 987
F. Supp. 1244 (E.D. Cal. 1997). (exemption held not apply to releases
of metals altered by mining); U.S. v W.R. Grace and Co.-Conn., 280 F.
Supp. 2d 1149 (D. Mont. 2003) (exemption held not to apply to releases
of asbestos and asbestos-contaminated vermiculite that was a by-product
of vermiculite processing).
54 USEPA, Office of Solid Waste and Emergency Response,
Questions and Answers on Release Notification Requirements and
Reportable Quantity Adjustments, EPA/540/R-94/005 (Jan. 1995).
55 Congressional Research Service, Air Quality Issues
and Animal Agriculture: A Primer (June 10, 2005).
56 USEPA, National Pollutant Discharge Elimination
System Permit Regulation and Effluent Limitation Guidelines and
Standards for Concentrated Animal Feeding Operations, Proposed Rule
(CAFOs), 66 Fed. Reg. 2960, 2968 (2001) [hereinafter USEPA, CAFO
Proposed Rule].
57 42 U.S.C. 9602 (a).
58 Department of Justice, News Release, Nation's Second
Largest Hog Producer Reaches Settlement with U.S. and Citizen's Group
(Nov. 20, 2001), http://yosemite.epa.gov/opa/admpress.nsf/
bf92f4e7d755207d8525701c005e38d7/
db8bd3f214a2406d85256b0a0079a7ee!OpenDocument.
59 Id., see also EPA, Notice of Violation issued to
Premium Standard Farms (April 2000); EPA, Clarification of Notice of
Violation (September 2000).
60 Id., see also EPA, Finding of Violation issued to
Premium Standard Farms (May 2000).
61 Memo from Mario Jorquera to Scott Clardy (December 2,
2002).
62 Premium Standard Farms, Air Emissions Monitoring
Completion Report (Nov. 17, 2004).
63 Sierra Club v. Seaboard Farms, 387 F. 3d 167 (10th
Cir. 2004).
64 Sierra Club v. Tyson Foods, et al, 299 F. Supp. 2d
693 (W.D.Ky. 2003).
65 City of Tulsa v. Tyson Food Inc., et. al., 258 F.
Supp. 2d 1263 (N.D. Okla. 2003).
66 Id. at1272.
67 Id. at 1285. Although the Court's ruling was vacated
as part of a settlement agreement, the Court's reasoning may still be
persuasive to other Courts.
68 City of Waco v. Dennis Schouten et. al., Civil Action
No. W-04-CA-118 (W.D. Texas), First Amended Complaint (May 27, 2004).
69 City of Waco v. Dennis Schouten et. al., Civil Action
No. W-04-CA-118 (W.D. Texas), Memorandum Opinion and Order at 8 (March
29, 2005).
70 Id. at 9.
71 State of Oklahoma v. Tysons Foods, Inc. et.al., Civil
Action No. 05CV0329 JOE-SAJ (N.D. Okla.), Complaint (June 18, 2005).
72 Oklahoma Attorney General's Office, News Release, AG
Sues Poultry Industry for Polluting Oklahoma Waters (June 13, 2005).
73 Id.
74 Complaint at 76.
75 Complaint at 89.
76 Southern Association of State Departments of
Agriculture, Clarifying CERCLA and EPCRA Do Not Apply to Animal
Agriculture.
77 42 U.S.C. 9607 (f)(1).
78 See 42 U.S.C. 9607.
79 42 U.S.C. 9607 (a)(4)(B).
80 National Academy of Sciences, Air Emissions from
Animal Feeding Operations: Current Knowledge, Future Needs (2003).
81 USEPA, Animal Feeding Operations Consent Agreement
and Final Order; Notice 70 Fed. Reg. 4958 (Jan. 31, 2005).
82 USEPA, Proposed Amendment to Section 118 of Superfund
Amendments (Oct. 2005) (Not Official Agency Position--Technical
Assistance Only).
Mr. Gillmor. Thank you very much, Ms. Merkel. We have 7
minutes until we are over there--supposed to be other there to
vote. Let me ask both of the panel and to the members up here
and the alternative. We are going to be gone a little while
because there are three votes. I want to ascertain one thing
from the members, one thing from the panelists. From the
members, I want to know if you are actually going to come back
and ask questions, and do you want me to ask the panel to wait.
Second, I would like to ask the panelists if members have
questions to submit to you in writing at a later date, would
you be willing to respond in that manner? And everyone
indicates in the affirmative. And I know, for example, Mr.
Kouplen has a 7 p.m. plane, so we won't see you regardless, I
presume. But do the members want to submit in writing, or----
Ms. Solis. But I do want to bring something up before we
go.
Mr. Gillmor. All right. I think Ms. Solis has one thing she
does want to bring up, if you would do that----
Ms. Solis. Yes.
Mr. Gillmor. [continuing] and then we can go.
Ms. Solis. Yeah. And I apologize, but I, you know, want
to--I have empathy for many of you who have come out here, and
I know that we are looking at some very important issues here.
Small farming versus large industrial farms, and I would just
say that we definitely need to have--it would be great to have
some field hearings. I think that would be quite interesting. I
am very concerned about what is going on in my own State of
California in the Central Valley. But, I would like to ask the
Chairman, since we have already agreed to put an amicus brief
in the Waco case into the record, I would request unanimous
consent that all other pleadings and orders of the court be
placed in the record for the Waco case and the State of
Oklahoma case, and ask for unanimous consent to the District
Court Order dated March 14, 2003, in the Tulsa case also be
placed into the record.
Mr. Gillmor. All right. Let me ascertain, what is the
volume that you are talking about? You know, we routinely let
short things in, which I did, and your staff complained.
Ms. Solis. Is there a----
Mr. Gillmor. And I am not going to get into a situation
where we are entering large volumes of material, so I want to
know what it is specifically you are asking for.
Mr. Frandsen. The Court Orders and the complaints that were
filed?
Mr. Gillmor. How big are they? How long?
Mr. Frandsen. They are not that big. I mean, we have got
them over here if you want to see them.
Mr. Gillmor. Let me see them. But, you know, I am trying to
be open as I can, but I don't want to get back in this tit for
tat about all this stuff we are going to be----
Ms. Solis. Does it look----
Mr. Gillmor. [continuing] bearing in the record.
Mr. Dingell. Mr. Chairman, with all respect, this is the
first time I can recall this kind of situation occurring where
the Chair said that Chair didn't want an adequate record.
Mr. Gillmor. It is not a matter of an adequate record, Mr.
Dingell. It is a matter of cluttering up the record. So, to me,
it is a matter of the issue of the volume of stuff, and all the
stuff is already probably in the record, including what Mr.
Kouplen submitted, so I will not make an objection this time.
But I sure will state for the benefit of my colleagues that I
am not going to permit huge volumes to be put into the record
on a----
Mr. Dingell. Mr. Chairman, would you----
Mr. Gillmor. [continuing] regular basis.
Mr. Dingell. [continuing] yield to me?
Mr. Gillmor. I would be happy to yield.
Mr. Dingell. It certainly is not my purpose to inflict that
kind of situation that on the Chair, and it certainly is not my
purpose to lard the record with a lot of useless information,
but other members do have a concern on this and I would hope
the Chair would be kind to the members in the way Chair
approaches these questions because from time to time, I like to
put stuff in the record too, and I--it comforts me when I can
read it and see it was there.
Mr. Gillmor. Well, we normally do let materials in, and
that would be the intent, but it is a matter of, I think,
simply of good judgment on both sides.
Mr. Dingell. If the Chair would yield further, I just hope
that the Chair would be kind to us on this. This is very
important.
Mr. Gillmor. We certainly have an objective here, so, yes,
Mr. Sullivan?
Mr. Sullivan. Thank you, Mr. Chairman, and I appreciate
everyone for being here today. I will submit some questions, in
particular to Mr. Kouplen and the Assistant Attorney General
Ms. Hunter Burch, but I do want to state that this is very
important, the Arkansas-Oklahoma situation. It is at a crisis
and we want to make sure that we can work this out. I would
like to see us do it without a lawsuit. I would like to see us
do it where we can bring all parties together and get this
done. I mean, there are problems, and we got to make sure that
the watersheds are protected. And I hope that we can come
together and get this resolved. I mean, it has been a long time
coming, and I think we can get it done. We just need to start
working, and I wish the EPA would be stronger in what they do,
trying to get everybody together, but they obviously won't do
that. And so I just want to make sure that we can get together.
I will give you guys both questions and put it in the record
and ask you to respond in writing. And I hope you make your
plane.
Mr. Gillmor. Mr. Dingell?
Mr. Dingell. Mr. Chairman, I just wanted to ask just a
couple of questions. I would like to have the permission of the
Chair to submit questions to the panel members.
Mr. Gillmor. Sure.
Mr. Dingell. And for inclusion--and that the response be
included in the record. Mr. Kouplen, I have listened to your
comments with a great deal of interest. I have got a lot of
small farms in my district and I want to protect them. But, by
the same token, I don't feel that I have a particular need to
support or to help these massive industrial farms to compete
with my people, and to dispose of their waste in a way which
constitutes a hazard. My question to you is you raise, you say,
250 cattle? Is that right?
Mr. Kouplen. That is right, sir.
Mr. Dingell. Now, 250, are you under threat of any sort
from the proposals that we are discussing with regard to either
Oklahoma or Texas?
Mr. Kouplen. Not currently.
Mr. Dingell. Not currently. Why do you say not currently?
That you mean you just not under any threat for those things,
and is there anything that makes you apprehensive that you will
be?
Mr. Kouplen. It is my fear, Congressman, that if, you know,
animal manure gets classified as hazardous waste--and I know
that there is a big concern here from everyone about the size
of operations--but it is my concern that if that ever gets----
Mr. Dingell. Let us go into it. You use your animal waste
for fertilizer, right?
Mr. Kouplen. No, sir.
Mr. Dingell. No? What do you use it for?
Mr. Kouplen. My cattle, I have about 2,500 acres----
Mr. Dingell. Okay.
Mr. Kouplen. [continuing] and I do not feed them----
Mr. Dingell. So essentially fertilizer?
Mr. Kouplen. [continuing] in a feedlot. No, sir.
Mr. Dingell. You apply it.
Mr. Kouplen. No.
Mr. Dingell. You don't? What do you do with it?
Mr. Kouplen. It just falls where it falls.
Mr. Dingell. Oh, so you just raise your cattle. It is a
free range.
Mr. Kouplen. I do not fall under the CEFLAC regulations.
Mr. Dingell. So I was just trying to figure out--so you
really have, at this particular time, no great concern about
your situation, because I have got--as I repeat, I have a bunch
of small farmers up there, I want to protect. But, again, I
don't want to take care of Montfort, and I don't want to take
care of those good-hearted folks that caused so much trouble at
Lake Waco, nor do I want to take particular concern about those
wonderful folks that caused trouble in Oklahoma. They seem to
be doing just fine, and, quite honestly, they are producing for
a lot less than my people are producing. They are running some
of them out of business, and they are polluting the waters. And
I wonder, what are we going to do about that? Is it--where is--
are you here to advocate for the family farmer, or are you here
to advocate for Montfort or for some of the big folks? Which--
--
Mr. Kouplen. Well, look, I don't think any of us----
Mr. Dingell. [continuing] side of this gate do you fall?
Mr. Kouplen. [continuing] in this room can deny that the
dynamics of agriculture is changing. The dynamics of all
industry in this country is changing, and----
Mr. Dingell. I----
Mr. Kouplen. industries are getting bigger and bigger, and
you have to--the economies of scale aren't what they used to
be, and you have got to be--to be quite honest, a 250 cow/
calf----
Mr. Dingell. Well, just----
Mr. Kouplen. [continuing] herd is just big enough to
survive.
Mr. Dingell. Just to help me understand, are you talking
here for the small farmer or are you talking here for the guy
that has the great big huge corporate farm?
Mr. Kouplen. Well, a lot of the large farms are family
farms.
Mr. Dingell. Well, at what point do you get to be a farm
that should be protected, and at what point are you a farm that
you shouldn't be protected?
Mr. Kouplen. Well, there are----
Mr. Dingell. How many animals?
Mr. Kouplen. There are----
Mr. Dingell. How many tons of waste? What kinds of
agriculture practices?
Mr. Kouplen. At certain numbers of livestock, you reach the
limit where you become CAFOs, and every operation, whether it
is a family operation or otherwise, once they meet those
limits, they are already being regulated.
Mr. Dingell. Mr. Chairman, I am using the time of the
Committee. I thank you for your courtesy to me.
Mr. Gillmor. Thank you, Mr. Dingell. Mr. Deal had----
Mr. Deal. I would like to----
Mr. Gillmor. [continuing] a question and then we will
recess.
Mr. Deal. I would like to briefly follow up that line of
thought because it is all tied together. Mr. Stem, you said you
had a cow/calf operation. I am sort of like Dr. Weaver. I grew
up in FFA and 4H, et cetera. Cow/calf operation, to me, means
that you sell the calf to somebody else.
Mr. Stem. Yes, sir.
Mr. Deal. And I assume Mr. Kouplen does the same thing.
Mr. Stem. Yes, sir.
Mr. Deal. Do you retain ownership in that feed out
operation of your calves, or do you just simply sell the calf
and they go to somebody else to feed them out?
Mr. Stem. We take them to the auction.
Mr. Deal. And, so therefore, what you produce will wind up
in a CAPO more than likely, is that right?
Mr. Stem. Yes, sir, it could.
Mr. Deal. Do you think you ought to be assessed so much per
head for any costs that are associated with these regulations
that people are trying to impose on the people who buy your
cattle?
Mr. Stem. Well, I believe that if the--whatever it is, beef
cattle feed lot, whatever, if it is causing others to have
cost, they wouldn't have otherwise. Yes, sir, I do.
Mr. Deal. Well, that is a good volunteer right there to
start with. I will end with that one. Thank you, Mr. Chairman.
Mr. Gillmor. Thank you very much, Nathan, and I thank the
panel for your patience in a long day.
[Whereupon, at 5:15 p.m., the subcommittee was adjourned.]
[Additional material submitted for the record follows:]
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