[House Hearing, 109 Congress]
[From the U.S. Government Printing 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
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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

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                                                                   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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
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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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