[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
HAZARDOUS SUBSTANCE RELEASES AND REPORTING UNDER THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980
(CERCLA) AND THE EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT OF
1986 (EPCRA)
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
September 24, 2008
__________
Serial No. 110-151
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
-----
U.S. GOVERNMENT PRINTING OFFICE
46-863 PDF WASHINGTON : 2008
----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
COMMITTEE ON ENERGY AND COMMERCE
JOHN D. DINGELL, Michigan, Chairman
HENRY A. WAXMAN, California JOE BARTON, Texas
EDWARD J. MARKEY, Massachusetts Ranking Member
RICK BOUCHER, Virginia RALPH M. HALL, Texas
EDOLPHUS TOWNS, New York FRED UPTON, Michigan
FRANK PALLONE, Jr., New Jersey CLIFF STEARNS, Florida
BART GORDON, Tennessee NATHAN DEAL, Georgia
BOBBY L. RUSH, Illinois ED WHITFIELD, Kentucky
ANNA G. ESHOO, California BARBARA CUBIN, Wyoming
BART STUPAK, Michigan JOHN SHIMKUS, Illinois
ELIOT L. ENGEL, New York HEATHER WILSON, New Mexico
ALBERT R. WYNN, Maryland JOHN B. SHADEGG, Arizona
GENE GREEN, Texas CHARLES W. ``CHIP'' PICKERING,
DIANA DeGETTE, Colorado Mississippi
Vice Chairman VITO FOSSELLA, New York
LOIS CAPPS, California ROY BLUNT, Missouri
MIKE DOYLE, Pennsylvania STEVE BUYER, Indiana
JANE HARMAN, California GEORGE RADANOVICH, California
TOM ALLEN, Maine JOSEPH R. PITTS, Pennsylvania
JAN SCHAKOWSKY, Illinois MARY BONO, California
HILDA L. SOLIS, California GREG WALDEN, Oregon
CHARLES A. GONZALEZ, Texas LEE TERRY, Nebraska
JAY INSLEE, Washington MIKE FERGUSON, New Jersey
TAMMY BALDWIN, Wisconsin MIKE ROGERS, Michigan
MIKE ROSS, Arkansas SUE WILKINS MYRICK, North Carolina
DARLENE HOOLEY, Oregon JOHN SULLIVAN, Oklahoma
ANTHONY D. WEINER, New York TIM MURPHY, Pennsylvania
JIM MATHESON, Utah MICHAEL C. BURGESS, Texas
G.K. BUTTERFIELD, North Carolina MARSHA BLACKBURN, Tennessee
CHARLIE MELANCON, Louisiana
JOHN BARROW, Georgia
BARON P. HILL, Indiana
______
Professional Staff
Dennis B. Fitzgibbons, Chief of Staff
Gregg A. Rothschild, Chief Counsel
Sharon E. Davis, Chief Clerk
David Cavicke, Minority Staff Director
(ii)
Subcommittee on Environment and Hazardous Materials
ALBERT R. WYNN, Maryland, Chairman
FRANK PALLONE, Jr., New Jersey JOHN B. SHADEGG, Arizona
BART STUPAK, Michigan Ranking Member
LOIS CAPPS, California CLIFF STEARNS, Florida
TOM ALLEN, Maine NATHAN DEAL, Georgia
HILDA L. SOLIS, California JOHN SHIMKUS, Illinois
Vice Chairman HEATHER WILSON, New Mexico
TAMMY BALDWIN, Wisconsin VITO FOSELLA, New York
G.K. BUTTERFIELD, North Carolina GEORGE RADANOVICH, California
JOHN BARROW, Georgia JOSEPH R. PITTS, Pennsylvania
BARON P. HILL, Indiana LEE TERRY, Nebraska
DIANA DeGETTE, Colorado MIKE ROGERS, Michigan
ANTHONY D. WEINER, New York JOHN SULLIVAN, Oklahoma
HENRY A. WAXMAN, California TIM MURPHY, Pennsylvania
GENE GREEN, Texas JOE BARTON, Texas (ex officio)
JAN SCHAKOWSKY, Illinois
JOHN D. DINGELL, Michigan (ex
officio)
------
Professional Staff
Richard Frandsen, Chief Counsel
Caroline Ahearn, Counsel
Rachel Bleshman, Legislative Clerk
Gerald Couri, Minority Counsel
C O N T E N T S
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Page
Hon. Gene Green, a Representative in Congress from the State of
Texas, opening statement....................................... 1
Hon. John B. Shadegg, a Representative in Congress from the State
of Arizona, opening statement.................................. 3
Hon. John Barrow, a Representative in Congress from the State of
Georgia, opening statement..................................... 4
Hon. Nathan Deal, a Representative in Congress from the State of
Georgia, prepared statement \1\................................ 5
Hon. Hilda L. Solis, a Representative in Congress from the State
of California, opening statement............................... 5
Hon. G.K Butterfield, a Representative in Congress from the State
of North Carolina, opening statement........................... 7
Hon. John D. Dingell, a Representative in Congress from the State
of Michigan, opening statement................................. 219
Hon. Joe Barton, a Representative in Congress from the State of
Texas, opening statement....................................... 220
Hon. Bart Stupak, a Representative in Congress from the State of
Michigan, opening statement.................................... 221
Witnesses
Susan P. Bodine, Assistant Administrator, Office of Solid Waste
and Emergency Response, Environmental Protection Agency........ 10
Prepared statement........................................... 12
Submitted questions \2\......................................
Mark Johnson, Senior Environmental Health Scientist, Agency for
Toxic Substances and Disease Registry--Region 5................ 23
Prepared statement........................................... 24
Answers to submitted questions............................... 217
Mark E. Rey, Under Secretary for Natural Resources and the
Environment, U.S. Department of Agriculture.................... 36
Prepared statement........................................... 37
Submitted questions \3\......................................
Anu Mittal, Director, Natural Resources and Environment, U.S.
Government Accountability Office............................... 42
Prepared statement........................................... 45
Answers to submitted questions............................... 209
Submitted Material
Committee letter, dated March 18, 2008, to Environmental
Protection Agency.............................................. 92
EPA response................................................. 108
Comments, dated March 27, 2008, by National Association of SARA
Title III Program Officials.................................... 119
Memorandum, dated January 28, 2008, from Congressional Research
Service........................................................ 137
Government Accountability Office Response to United States
Department of Agriculture comments............................. 140
USDA comments................................................ 166
Follow-up letters:
Ms. Bodine................................................... 181
Mr. Johnson.................................................. 196
Mr. Rey...................................................... 203
Ms. Mittal................................................... 207
----------
\1\ Mr. Deal did not submit a prepared statement for the record
in time for printing.
\2\ Assistant Administrator Bodine did not answer submitted
questions for the record.
\3\ Under Secretary Rey did not answer submitted questions for
the record.
HAZARDOUS SUBSTANCE RELEASES AND REPORTING UNDER THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980
(CERCLA) AND THE EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT OF
1986 (EPCRA)
----------
WEDNESDAY, SEPTEMBER 24, 2008
House of Representatives,
Subcommittee on Environment and Hazardous
Materials,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:34 a.m., in
room 2123 of the Rayburn House Office Building, Hon. Gene Green
(chairman) presiding.
Members present: Representatives Green, Solis, Butterfield,
Barrow, DeGette, Shadegg, Hall, Deal, Radanovich, and Sullivan.
Staff present: Richard A. Frandsen, Caroline Ahearn, Karrin
Hoesling, Rachel Bleshman, Drew Wallace, Jerry Couri, and
Garrett Golding.
OPENING STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Green. Good morning. I call this meeting to order.
Today we have a hearing on Hazardous Substance Releases and
Reporting under the Comprehensive Environmental Response,
Compensation, and Liability Act, commonly known as the
Superfund, and the Emergency Planning and Community Right-to-
Know Act, also known as EPCRA. For the purposes of making
opening statements, the chair and the ranking members of
subcommittee and full committee will each be recognized for 5
minutes, and all other members of the subcommittee will be
recognized for 3 minutes. Members may waive their right for an
opening statement, and we will instead add 3 minutes to their
time for questions for the first round of questions. Since we
have one panel, we will have the opportunity to ask two rounds
of questions.
Without objection, all members have two legislative days to
submit opening statements for the record instead of the usual
five, since hopefully we may not be in session five more days.
The chair now recognizes himself for an opening statement.
I would like to welcome our witnesses on today's panel and
thank you for coming. Hazardous releases and reporting
requirements are important areas of our jurisdiction, and any
significant issues that arise under the Superfund program are
high priority for this subcommittee. I would like to start by
sharing a recent story that illustrates the importance of
government action to prevent and respond to hazardous releases.
On Monday, I toured Baytown, Texas, one of the hardest hit
areas of Hurricane Ike. It is actually in our congressional
district. The storm surge of about 10 feet went up Galveston
Bay into the Sanderson River, causing serious destruction.
Hurricane Ike likely caused hazardous releases. One constituent
showed me where contaminated flood water damaged his property.
While I was there, the constituents called Baytown's local
hazmat crew to come and dispose of a barrel of some unknown
substance or unknown product that floated ashore in his
neighborhood. And it was just a plastic barrel that is commonly
used in our industry.
This experience made me very concerned about Superfund
sites that may have been impacted by Hurricane Ike. All members
of the subcommittee should be concerned that the EPA Superfund
database lists only 100 sites in this country where human
exposure to toxic substances is not under control.
In my own backyard, there is a new Superfund site that
should be added to the list of the uncontrolled human
exposures. The storm surge from Hurricane Ike may have made
uncontrolled human exposures even worse at this particular
site. In East Harris County, an old paper mill dump subsided
into the Sanderson River many years ago and was recently
discovered and listed on the Superfund National Priorities
List.
The EPA site status summary states sediment water tissue
samples show elevated levels of dioxins. The fish consumption
advisory from the Texas Department of Health is in place, and
despite the advisory, residents are continuing to consume fish
and crabs from the river, and even Galveston Bay, the upper
reaches of Galveston Bay. While EPA has not made a final
determination, the information definitely indicates an
uncontrolled human exposure.
I am deeply concerned that these dioxins could have been
spread to an even wider area by the storm surge from Hurricane
Ike. The Sanderson River drains into Galveston Bay, which
produces more seafood than any other estuary except the
Chesapeake.
Like the Sanderson River, new fish advisory warnings about
health risks have gone into effect in Galveston Bay. EPA should
act swiftly in all sites with uncontrolled human exposure,
especially if that are at risk of disturbance. If potentially
responsible parties move slowly, EPA should use its own
resources to take prompt action and seek recovery in court as
provided by the law.
If our subcommittee finds a lack of resources contributing
to the uncontrolled human exposure and slowdown in cleanup, I
will support the reinstatement of the Superfund fee for the
trust fund. Reinstatement could be revenue neutral and
different from the previous structure, but Superfund sites must
be cleaned up nationwide.
The focus of today's hearing is EPA's controversial
proposed rule to provide a highly unusual exemption from
Superfund reporting requirements for air emissions, from animal
waste at all farms. The law requires all facilities to report
all air releases and hazardous chemicals above certain
reportable quantities. In my view, the concern with this
proposed exemption is not that your average farm or ranch
should file reports based on animal waste. The controversy
arises when the exemption applies to all large animal waste
facilities or concentrated animal feeding operations, known as
CAFOs.
The agriculture sector has been very successful at
providing our nation with a great food supply and at low prices
by taking advantage of the economy's scale CAFOs just like
other economic sectors. CAFOs store very large amounts of
animal waste in concentrated facilities, which does not occur
naturally or at most farms. Due to their size and
concentration, studies show that these facilities emit large
amounts of hazardous ammonia, hydrogen sulfide and as a result,
some Federal public health professionals believe individuals
living near or working in CAFOs may face health concerns
including chronic respiratory, neurological, and other
problems.
In one recent incident, hydrogen sulfide releases from a
dairy caused the evacuation of several nearby families. The law
requires reporting because emergency response removal and
hazardous release controls depend upon accurate information in
order to protect public health and the environment.
EPA plans to exempt all CAFOs from reporting any hazardous
substance emission before EPA finishes a multi-year, multi-
state, state-of-the-art study, to determine emissions from
CAFOs. Today we are releasing a GAO report which questions
EPA's proposed rule based on EPA's lack of the needed data for
the study. I am highly skeptical of EPA's proposal to exempt
CAFOs from Superfund and the EPCRA reporting for similar
reasons.
Putting the lack of data aside, I also am skeptical of the
EPA's authority for a blanket exemption like this where
Congress did not provide one. These exemptions are so rare that
the courts have apparently never considered the question. The
focus of our hearing is not intended to portray large
agricultures producers or CAFOs in a negative way. Instead, our
focus is whether CAFOs with large concentrated waste facilities
should meet the same hazardous reporting obligations as
facilities in other sectors of the economy.
With that, I will gladly yield 5 minutes to our ranking
member, Congressman Shadegg.
OPENING STATEMENT OF HON. JOHN B. SHADEGG, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Shadegg. Thank you, Mr. Chairman, and thank you for
holding today's hearing. Today we are discussing the role of
concentrated animal feeding operations under the Comprehensive
Environmental Response Compensation and Liability Act, CERCLA,
and the Emergency Planning and Community Right-to-Know, EPCRA.
We are also discussing Superfund sites more generally.
While these topics are expansive and likely deserve
separate hearings, I look forward to the testimony of our
witnesses and to being further educated on the topic.
According to 1997 census of agriculture, there are 1.2
million farms. Of these farms, 238,000 are defined as feeding
operations. Of those 238,000 animal feeding operations, less
than five percent are classified as concentrated animal feeding
operations. However, concentrated animal feeding operations
raised more than 40 percent of U.S. livestock.
As we all know, food prices have skyrocketed within the
past few years. Between June 2005 and June 2008, the prices for
eggs have increased 68.6 percent. Prices for whole milk have
increased 20.9 percent, and prices for chickens have increased
9.9 percent. And these prices affect the poorest 20 percent of
Americans the most, those who can barely pay their grocery
bills and who struggle to get by each month.
In this context, we must carefully consider additional
regulations on our agricultural industry that may increase
costs for the consumers to be sure they are warranted. I would
like to clarify that we are not here today discussing the
removal of air quality standards, and we are not discussing
allowing farms to emit more pollutants. We are not discussing
the removal of clean air protections.
What we are discussing is a proposed exemption from
reporting requirements. I think it is also important to add
that we are not addressing the reporting of emissions into the
water but rather into the air, and we are discussing clean air
protections, not the issues regarding clean water.
As I understand it, the reporting requirements are mainly
used for emergency response. However, we will hear from some
other witnesses there are logistical questions about how you
would appropriately respond to increased flatulence from
livestock. Furthermore, as we will hear from EPA, the agency
has never had to initiate a response from any notifications
regarding hazardous substance released to the air where animal
waste at farms was the source of that release.
We must carefully examine the logic and policy implications
of reporting and regulating--let me suggest--the natural bowel
movements of all livestock. While it is important that we
safeguard the quality of our air and that we focus our efforts
in the most effective and logical areas. More generally, I am
interested in the status of our Superfund program, and I would
like assurances that our Superfund sites, including these
sites, are being addressed with due diligence and with careful
attention to both the cost of implementing the program and the
burden proposed on the industry. I look forward to hearing the
testimony of our witnesses on these subjects.
Thank you, Mr. Chairman. I yield back.
Mr. Green. Thank you. Next for an opening statement is
Congressman Barrow.
OPENING STATEMENT OF HON. JOHN BARROW, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF GEORGIA
Mr. Barrow. Thank you, Mr. Chairman, and thank you for
calling this hearing. This whole subject is particularly
important to me because, believe it or not, I am the only
member of the House of Representatives who serves on both the
Agriculture Committee on the one hand and the Committee on
Energy and Commerce on the other. For all 435, I am the only
one who serves on both those committees. And I worked hard
trying to secure election to those two committees because they
each deal with the same subject, and oftentimes they don't talk
to each other.
And I thought somebody in this shop ought to be following
the conversations in both that have something to do with the
folks back home, because farmers back home and the folks who
are producing food, they don't care and they don't understand
jurisdictional differences. They don't care whether the
regulations coming at them is coming from the E and C Committee
or coming from the Ag Committee. They don't know or care about
that, but if it affects them back home, they want to make sure
somebody up in Washington is looking out for their interests
and trying to follow the ball on both sides of the committee
jurisdictional divide.
This is what I understand about what we are going to talk
about today, and the sense that I have is that something is in
the air that we ought to just drop a reporting requirement
either because it hasn't been tried or because it was tried and
found wanting. And there is some uncertainty about which of
these two it is.
The idea that we should drop a reporting requirement
because we have never responded to one in the past and probably
won't respond to any one in the future seems to me to be sort
of a backwards way of looking at this. What I would like the
witnesses to address is whether there is a need for a
monitoring requirement. And if so, how that should be allocated
or imposed based on mom-and-pop operators on the one hand or
big old CAFOs on the other. Should we distinguish between those
when it comes to monitoring?
And if there should be a monitoring requirement, should
there be a reporting requirement? And again we should try to
draw a common sense distinction between small operators that
are de minimis in terms of the impact they have on the
environment, and big operators that might be a legitimate
subcommittee concern. That is what I want to have addressed
today, and if you all can do that, it will help us carry on
this conversation and also help me mediate between the concerns
of the folks back home as their concerns are being addressed by
both Energy and Commerce Committee folks on the one hand and
Agriculture Committee folks on the other.
With that, Mr. Chairman, I yield back. Thank you.
Mr. Green. Thank you. Our next opening statement is
Congressman Deal.
Mr. Deal. Thank you, Mr. Chairman. I will submit my opening
statement for the record and add to my time for questions.
Mr. Green. Thank you. Now our chair is pleased to recognize
our vice chair of the subcommittee, Congresswoman Solis.
OPENING STATEMENT OF HON. HILDA L. SOLIS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Ms. Solis. Thank you, Mr. Chairman, for having a hearing
today. I want to also welcome our witnesses that are here.
According to the GAO, some large farms can produce more raw
waste than the human population of a large U.S. city. As an
example, a very large hog farm with as many as 800,000 hogs
generates more than one and a half times the sanitary waste
produced by 1.5 million residents of Philadelphia, Pennsylvania
in one year.
This manure waste can pose significant risk to public
health and to the environment. More than 29 states have linked
groundwater contamination to CAFOs. Waste also emits toxic
gases, such as hydrogen sulfide and ammonia, and contains more
than 150 pathogens such as E. coli and salmonella. A variety of
health problems faced by neighbors of huge, industrial farms
has been linked to the vast amounts of concentrated animal
waste.
In 2004, EPA scientists reported that acute respiratory
irritation and effects of the central nervous system could be
caused in a downwind population subjected to hydrogen sulfide
emissions from wastewater lagoons. In North Carolina, hog farms
in recent years have been concentrated in eastern North
Carolina, a relatively poor region in the state with a large
rural African-American population. This has led to a growing
concern that the environmental and health impacts of factory
farms, large ones, are disproportionately born by poor, low-
income, and minority communities.
Just this summer, releases from the Excel Dairy in
Minnesota forced the evacuation of residents near the dairy
from their homes as emissions were deemed a public health
hazard. I am concerned about EPA's proposal to exempt CAFOs
from reporting requirements included in the Superfund and the
Emergency Planning and Community Right-to-Know Act.
Without reporting requirements, first responders and health
providers will be without critical information. The national
association, which represents members and staff of state
emergency response commissions, wrote that the EPA's proposal,
and I quote, ``endangers responders and the public by denying
them information they would use to protect themselves from
hazardous releases.''
I am also concerned by the findings that will be presented
today by the GAO. The GAO found that EPA lacks the information
it needs to effectively regulate CAFOs and has yet to assess
the extent to which these pollutants may be impairing human
health and the environment.
In addition to the risk posed to these first responders and
public health officials, I have serious questions on the basis
of this proposal to begin with. Under existing regulations,
only those emissions exceeding 100 pounds must be reported. In
2005, the EPA offered animal feeding operations an opportunity
to sign a voluntary consent agreement and final order.
Under the agreement, animal feeding operations are required
to report any releases above the reportable quantity once
emission protocols have been established. In return
participating operations will receive a limited release from
enforcement for certain past and ongoing violations.
Given the risk to public health and first responders from
emissions and the existing flexibility, I believe a blanket
exemption from reporting is irresponsible and an unnecessary
risk. I look forward to hearing from our witnesses, and I yield
back the balance of my time, Mr. Chairman.
Mr. Green. I thank my colleague from California. Our next
opening statement is from Congressman Butterfield.
OPENING STATEMENT OF HON. G.K. BUTTERFIELD, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NORTH CAROLINA
Mr. Butterfield. Thank you very much, Mr. Chairman. I
apologize for being late, but you know what it is all about
when you are multitasking. I thank you very much for holding
this hearing.
This subject is very important, Mr. Chairman, without a
doubt. It is a subject that deserves attention and requires
congressional oversight. The Environmental Protection Agency
should play a role in the regulation of ammonia and hydrogen
sulfide releases into the air. EPA entered into the air
compliance agreement with close to 14,000 farms, and to roll
back the environmental requirements intended to protect public
health and the environment, in my humble opinion, would be a
mistake. However, I am disappointed by the report from the GAO
on the pork industry, and I feel the need to speak against what
I view are some of the inaccurate characterizations of the
environmental performance of my state, North Carolina, the
state's pork producers.
North Carolina is the second largest pork producing state
in the Nation, and our pork producers are good neighbors who
care about the environment. We care about the animal well being
in their communities and state. They have worked very hard to
build a responsible industry. These farmers are major
contributors to my state's economy and are proud to produce
high quality, safe food for people here and around the world.
I agree with the need for Federal regulations, as do pork
producers who supported the Air Compliance Agreement. However,
contrary to the GAO report, North Carolina pork producers
already comply with a very comprehensive and mandatory
statewide livestock permitting program, which is one of the
most aggressive in the nation. The permit application is 14
pages in length and contains detailed requirements for
management of swine manure.
Furthermore, by law each of our swine facilities must
receive two onsite inspections each year, one by our Division
of Water Quality and the other by the Division of Soil and
Water Conservation. There are 2,200 swine farms in the state
that have a comprehensive general permit, and I happen to have
a copy of each and every one of these permits here with me
today. We were able to obtain a copy of these permits simply by
requesting this information from the Division of Water Quality.
Relative to pork producers environmental performance in our
state, several groups try to paint a scary picture of CAFOs
simply on the basis of the quantity of manure our animals
produce on a volume or pounds basis relative to cities and
communities. I am not sure I got that right, but I am going to
submit it for the record.
GAO takes the same approach, and I am disappointed in their
report as a result. These efforts fail to make a reasonable and
accurate reflection of what modern manure management practices
mean on our farms for environmental performance. How farmers
manage and use animal manure is the most meaningful predictor
of their environmental performance. I recognize and applaud the
effort of this subcommittee to deal with the EPA's rollback. I
oppose a full-scale exemption for hazardous release reporting
by CAFOs given the demonstrated health effects associated with
their releases of the hazardous substances ammonia and hydrogen
sulfide.
And we would be remiss if we did not recognize the great
strides made by the pork industry to become a more responsible
and responsive group of farmers. I only ran over by 13 seconds,
Mr. Chairman. Thank you very much.
[The prepared statement of Mr. Butterfield follows:]
Statement of Hon. G.K. Butterfield
The Environmental Protection Agency should play a role in
the regulation of ammonia and hydrogen sulfide releases into
the air. EPA entered into the Air Compliance Agreement with
close to 14,000 farms, and to roll back the environmental
requirements intended to protect public health and the
environment would be a mistake.
However, I am disappointed by the report from the
Government Accountability Office on the pork industry, and I
feel the need to speak against what I view as some of the
inaccurate characterizations of the environmental performance
of my state's pork producers. North Carolina is the second
largest pork producing state in the nation, and our pork
producers are good neighbors who care about the environment,
animal well-being and their communities and state. They have
worked very hard to build a responsible industry. These farmers
are major contributors to my state's economy and are proud to
produce high quality, safe food for people here and around the
world.
I agree with the need for federal regulations, as do pork
producers who supported the Air Compliance Agreement. However,
contrary to the GAO report, North Carolina pork producers
already comply with a very comprehensive and mandatory state-
wide livestock permitting program, which is one of the most
aggressive nationwide. The current permit application is 14
pages in length and contains detailed requirements for
management of the swine manure management system. Furthermore,
by law, each of our swine facilities must receive two on-site
inspections per year, one by our Division of Water Quality (the
regulatory agency) and the other by our Division of Soil and
Water Conservation (the technical resource agency). There are
2,239 swine farms in the state that have a comprehensive
general permit, and I happen to have a copy of each and every
one of these permits, more or less, here with me. I were able
to obtain a copy of these permits simply by requesting this
public information from the Division of Water Quality.
Relative to pork producers' environmental performance in
our state, several groups try to paint a scary picture of CAFOs
simply on the basis of the quantity of manure our animals
produce on a volume or pounds basis relative to cities and
communities. GAO takes this same approach and I am disappointed
in their report as a result. These efforts fail to make a
reasonable or accurate reflection of what modern manure
management practices mean on farms for environmental
performance. How farmers manage and use animal manure is the
most meaningful predictor of their environmental performance.
I take some issue with GAO's attempt to characterize the 5-
county region in our state as a regional cluster that has too
much manure relative to the cropland in use by those pork
farms. This is an old mischaracterization of manure nutrient
use in the state, dating from the mid-1990's and resulting from
incorrect information about the types of hay grown. I believe
that the natural resource professionals at the USDA have done
their own more recent analysis that indicates GAO's
calculations are not correct. I would appreciate GAO working
with USDA to review their own analysis and issue a correction
to their final report should that prove necessary. I say this
for several reasons:
Farmers' nutrient management plans are certified by
technical specialists (designated by the State of North
Carolina) as having sufficient land available to the CAFO for
the proper application for crop production.
Each operation must have land available to apply its
nutrients on a fully agronomic basis - they have to do it
right.
Furthermore, GAO fails to note that failure to use this
manure properly, at sound agronomic rates, can mean Federal
fines under the Clean Water Act CAFO rule of $32,500 a day,
giving them further incentive to comply.
They certainly have the land and crops to comply as well.
Using North Carolina Department of Agriculture's estimates of
available hayed and grazed land in the five counties, the total
potential for nitrogen uptake on this land is an estimated 25
million pounds. This far exceeds the approximately 13 million
pounds produced by swine operations in this region. In
addition, there are many thousands of acres of cropland
utilizing crops such as corn and small grains, which have
significant nitrogen needs to ensure they can effectively and
profitably use all these nutrients.
Lastly, I want to mention further attempts in the state to
derive greater value from animals' manure. During the 2007
session of the North Carolina General Assembly, the pork
producers worked hard to get provisions incorporated in
legislation that would promote renewable energy projects. The
first was the provision that was placed in Senate Bill 1465
that established the "Swine Farm Methane Capture Pilot
Program". The provision would provide that up to 50 farms could
participate in the program which is setup to capture methane
and generate electricity to sell to a public utility in the
state. Currently over 200 farms in the state have registered as
having an interest in participating in the program. In
addition, a Renewable Energy and Energy Efficiency Portfolio
Standard was passed during the 2007 session that provided for
the use of swine manure to meet the new standard.
I recognize and applaud the effort of this subcommittee to
deal with the EPA's rollback. I oppose a full-scale exemption
for hazardous release reporting by CAFOs given the demonstrated
health effects associated with air releases of the hazardous
substances ammonia and hydrogen sulfide. However, we would be
remiss if we did not recognize the great strides made by the
pork industry to become a more responsible and responsive group
of farmers.
----------
Mr. Green. I thank my colleague from North Carolina. That
concludes the opening statements by members and now we will
turn to our witness panel for today's hearing. First up is
Susan P. Bodine, Assistant Administrator of the U.S.
Environmental Protection Agency for Solid Waste and Emergency
Response. Next we will have Mark E. Rey, Under Secretary for
Natural Resources and the Environment, U.S. Department of
Agriculture. And for the Agency for Toxic Substances and
Disease Registry, joining us is Mark Johnson, a Senior
Environmental Health Scientist. And our final witness is from
the Government Accountability Office, Ms. Anu Mittal, a lead
author of today's GAO report on concentrated animal feeding
operations.
We will now recognize each of our witnesses in turn for 5-
minute statements summarizing their prepared testimony. The
prepared testimony submitted in advance of the hearing will be
made part of the record.
And before we begin, I would like to make a unanimous
consent request. I ask unanimous consent to include the
following documents in the record. First the letter dated March
18, 2008, from Mr. Dingell and Ms. Solis to the EPA and EPA's
response dated April 17, 2008. Second, a letter dated March 27,
2008, from Timothy R. Gablehouse and the National Association
of SARA Title III Program Officials to the EPA. And third, a
January 28, 2008, Congressional Research Service memorandum to
the House Energy and Commerce Committee, entitled Emergency
Planning Committee Comments on Poultry Petition. And fourth, a
letter dated September 19, 2008 from the Agency for Toxic
Substances and Disease Registry and the Minnesota Department of
Health to the EPA and the Minnesota Pollution Control Agency.
Is there objection?
[The information appears at the conclusion of the hearing.]
Mr. Shadegg. Mr. Chairman, I reserve the right to object
and for now I will object because our staff has not been able
to see and read all those documents. So pending their ability
to do so, I would object to their inclusion in the record.
Mr. Green. I am aware we gave these to you about 15 minutes
ago, but would be glad to hold off on introducing them into the
record so you have a chance to review them.
Mr. Shadegg. We have lots of speed readers, but we have
been using them for other purposes.
Mr. Green. Okay, Assistant Administrator Bodine, we will
begin with you.
STATEMENT OF SUSAN P. BODINE, ASSISTANT ADMINISTRATOR, OFFICE
OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION
AGENCY
Ms. Bodine. Thank you, Mr. Chairman and members of the
subcommittee. I thank you for inviting me to appear today to
talk about the requirements for notification of releases of
hazardous substances under both CERCLA, the Comprehensive
Environmental Response Compensation and Liability Act, as well
as under EPCRA, which is the Emergency Planning and Community
Right-to-Know Act, as well as EPA's proposed rule to exempt air
releases of hazardous substances from animal waste, that is
manure, from these notification requirements.
In addition, Mr. Chairman, pursuant to your question in
your invitation letter to me, we have provided to you a summary
of the status of EPA's air compliance agreement, the status of
NPL sites that were impacted by Hurricane Ike, and a chart of
EPA's Superfund construction completion since 1993.
In addition, you had asked for the reports filed under
CERCLA and EPCRA since the year 2000 for releases from animal
feeding operations. What I have, and I would like to provide
this for you right now, is a summary of reports since 2000 to
the National Response Center. EPA doesn't actually get reports
that are filed under EPCRA. We don't have those reports. But
the National Response Center gets the CERCLA reports, and I
have the summary to provide to you for the record.
This summary is our best estimate--your question related to
animal feeding operations. The staff had to look at the reports
and look at the kind of release that is reported to determine
whether it was from a farm or not a farm because the NRC
doesn't actually collect facility information. So I have that
summary here.
Now, back to discussing the reporting requirements. Under
CERCLA, a person in charge of a facility has to report if a
hazardous substance has been released into the environment in
excess of a reportable quantity in a 24-hour period. That
report goes to the Coast Guard headquarters. It is the National
Response Center.
The purpose of that report is to notify the Federal
Government of the release so Federal emergency response
personnel can decide whether an action is necessary to be
taken. Now, under Section 304 of EPCRA, a facility owner/
operator has to report a release of an extremely hazardous
substance. That report goes to local emergency planning
committees as well as to the state emergency response
commission. And again, for the same purpose. The report serves
the purpose of letting those officials make a determination of
whether a response is appropriate.
As Congressman Shadegg noted, EPA has never initiated a
response to any notice to the National Response Center of a
release of ammonia, hydrogen sulfide or any other hazardous
substance from animal waste at farms.
Back in December of 2007, the agency published a proposed
rulemaking that proposed to exempt from both CERCLA, Section
103, as well as the EPCRA 304 requirements, releases to the air
where the source is animal waste at farms. The rationale is
explained in that proposal. The rationale is based on the
purpose of those reporting requirements. It is an emergency
response program. The purpose is to notify emergency response
personnel of a release so they can determine whether to
respond. The rationale also is based on information that we had
about whether a response to that kind of a report would be very
likely.
Again, we are not talking about water. We are talking about
releases to air. We are not talking about other sources of
hazardous substances that may be present. We are talking about
manure, and in addition, the proposal only would create an
administrative reporting exemption. It doesn't affect any of
the EPA's other authorities, whether it is our response
authorities under 104, or liability that might occur under
Section 107 of CERCLA. Again, any authorities that the Agency
has to deal with an issue is retained, and the proposal deals
just with the reporting requirement.
There was a public comment period of 90 days. It closed on
March 27. We are currently evaluating comments, and when we
have a final proposal, we will have a response to comments
document that will be in the record.
And that concludes my statement. I would be happy to answer
any questions.
[The prepared statement of Ms. Bodine follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Green. Dr. Johnson.
STATEMENT OF MARK JOHNSON, SENIOR ENVIRONMENTAL HEALTH
SCIENTIST, AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY -
REGION 5
Mr. Johnson. Good morning, Mr. Chairman and members of the
committee. Thank you for inviting me to testify today. My name
is Mark Johnson. I am the Assistant Director for Science, in
the division of regional operations for the Agency for Toxic
Substances and Disease Registry, known as ATSDR. We are a
Federal agency within the Department of Health and Human
Services. Joining me today is Lieutenant Commander Michelle
Colledge, who is an Environmental Health Scientist in the ATSDR
regional office in Chicago.
In this testimony, I will provide the committee with a
summary of ongoing ATSDR assessments of community exposures to
emissions from a concentrated animal feeding operation, CAFO.
The Excel Dairy Farm is a CAFO that is located outside of Thief
River Falls in northwest Minnesota. In May 2008, the Minnesota
Pollution Control Agency (MPCA) and the Minnesota Department of
Health received complaints about odors and health effects from
the residents living near the Excel Dairy Farm. People were
reporting nasal congestion, sore throats, itchy eyes, trouble
breathing, headaches, and nausea that they associated with
emissions from the numerous waste lagoons at the dairy.
In early June 2008, a group of citizens reported to the
state health department that they had used a portable hydrogen
sulfide monitor to measure the concentrations in the areas
around the Excel Dairy facility and nearby residences. Since
early June, the state has been continuously monitoring the
levels of hydrogen sulfide at two locations near the Excel
property line. During that time, the concentration of hydrogen
sulfide has frequently exceeded the Minnesota ambient air
quality standard of 30 parts per billion averaged over 30-
minute periods and frequently exceeded 90 parts per billion,
the maximum concentration that the state's instruments were
able to measure.
Based on this information, both the state of Minnesota and
U.S. EPA Region 5 had taken enforcement actions against Excel
Dairy. At the request of the U.S. EPA Region 5, ATSDR evaluated
the existing data and determined that there was a need to
collect more information about community exposures to better
characterize health hazards.
In early June, ATSDR staff initiated an exposure
investigation to collect continuous sampling data for hydrogen
sulfide at three residential locations that were in close
proximity to the dairy. ATSDR there focused on hydrogen sulfide
because of the volumes present in CAFO air emissions, its
physical properties, and a toxicity associated with exposure to
hydrogen sulfide.
Stationary monitors were placed at both outdoor and indoor
locations at two of these homes. Over the three-week period,
the monitors detected a maximum hydrogen sulfide concentration
in outdoor air of 480 parts per billion. To evaluate exposures
for potential health impacts, ATSDR uses what is referred to as
a minimum risk level, MRL, which is defined as an exposure
level that is estimated to be without health impact for any
individual for a specific period of time.
For hydrogen sulfide, the acute MRL is based on the
demonstration of an airway constriction among individuals with
asthma who were exposed to 2,000 parts per billion of hydrogen
sulfide for 30 minutes. From this study, we have derived an MRL
value of 70 parts per billion for screening purposes.
The monitoring data at the residences nearest to the waste
lagoons showed that the 30-minute average concentrations of
hydrogen sulfide in outdoor air exceeded that value for a
cumulative total of six to eight hours. Although ATSDR did not
conduct a formal health study to evaluate the health of people
living near the dairy, the symptoms described by the residents
were consistent with the known acute health effects of hydrogen
sulfide, including difficult breathing, eye irritation,
dizziness, nausea, and headaches.
Based on the concentrations that were detected, we have
concluded that these conditions pose a public health hazard to
residents near the dairy. We recommend taking immediate actions
to reduce emissions from the facility, to establish a
monitoring program to evaluate the effectiveness of those
actions, and for Excel Dairy to restrict access to the waste
lagoons onsite to reduce direct exposures to children who may
be living there.
ATSDR and the state health department communicated these
findings, conclusions, and recommendations to the state, to the
U.S. EPA, and to Excel Dairy owners in writing last Friday. Mr.
Chairman, I would ask to submit this letter for the record,
which I think you have already consented to that request.
In conclusion, under certain conditions, exposure to
chemicals emitted from CAFOs can result in adverse health
effects. In the case of Excel Dairy, community exposures to
periodic elevations of hydrogen sulfide levels were determined
to be a public health hazard. Thank you for the opportunity to
comment on this important public health issue.
[The prepared statement of Mr. Johnson follows:]
Statement of Mark Johnson
Mr. Chairman and Members of the Committee, thank you for
inviting me to testify today. My name is Mark Johnson. I am the
Assistant Director for Science, in the Division of Regional
Operations at the Agency for Toxic Substances and Disease
Registry (ATSDR). ATSDR is a federal agency within the United
States Department of Health and Human Services. The mission of
ATSDR is to serve the public by using the best science, taking
responsive public health actions, and providing trusted health
information to prevent harmful exposures and disease related to
toxic substances.
In this testimony, I will provide the committee with
information regarding the current and past actions of ATSDR in
evaluating potential health risks posed by Concentrated Animal
Feeding Operations (CAFOs); describe what is known about
emissions from this type of operation; describe the toxicity of
and potential health effects from exposure to the primary
constituents of CAFO emissions; provide a summary of ATSDR's
on-going public health activities and findings; and summarize
our recommendations to protect the health of residents living
around the Excel Dairy in Thief River Falls, Minnesota.
Concentrated Animal Feeding Operations (CAFOs)
EPA estimates that animal feeding operations produce about
500 million tons of manure per year from over 250,000 feeding
operations. Individuals who work at or live in close proximity
to some CAFOs may face health concerns.
Emissions from animal waste are comprised of a complex
mixture of chemicals and gases such as hydrogen sulfide and
ammonia. Some residents who live in areas surrounding CAFOs
report odors, respiratory symptoms, and neurological effects.
Given the multiple pathways for release of contaminants from
CAFOs, people may be exposed to these chemicals through
inhalation of air or dust, direct contact with soil, ingestion
of drinking water, or dermal contact with surface water.
At CAFOs where ATSDR has conducted assessments, irritant
contaminants such as hydrogen sulfide, ammonia, and reduced
sulfides (known as mercaptans) have been detected in air
emissions. In a recent assessment at a CAFO facility in
southwest Minnesota, the Minnesota Department of Health and
ATSDR concluded that exposure to hydrogen sulfide at the site
was a public health hazard. Among the chemicals that are
emitted from the storage, handling, and decomposition of animal
wastes, hydrogen sulfide is of great concern for potential
exposure. This is due to the volume of hydrogen sulfide
emissions from some CAFOs, the physical properties of hydrogen
sulfide, and the toxicity associated with hydrogen sulfide
exposure.
Effects of Hydrogen Sulfide Exposure
Hydrogen sulfide is a colorless, flammable gas that is
heavier than air and has the potential to accumulate close to
the ground surface where people can be exposed. People can
smell hydrogen sulfide at levels as low as 0.5 parts per
billion (ppb). The odor is usually characterized as smelling
like "rotten eggs" or "sewage." Natural sources account for
approximately 90 percent of the hydrogen sulfide in the
atmosphere. Background concentrations of hydrogen sulfide in
outdoor air are typically less than 1 ppb.
Information about the health effects of chemical exposure
is summarized in the ATSDR Toxicological Profile for a specific
chemical (website: http://www.atsdr.cdc.gov/toxpro2.html).
Based on a review of the known toxicity of a chemical, a
critical study is selected to represent the health effect that
could occur at the lowest level of exposure or a level that is
not associated with an effect. That information, in conjunction
with the application of uncertainty factors, is used to
determine a Minimum Risk Level (MRL), defined as an exposure
level that is estimated to be without a health effect for any
individual for a specific period of exposure. ATSDR develops
MRLs for exposures that are of an acute duration (up to 14
days), intermediate duration (14 days to 1 year) and chronic
duration (greater than 1 year). For hydrogen sulfide, the acute
MRL of 70 ppb is based on the effect of airway constriction
among asthmatic individuals who were exposed to 2,000 ppb
hydrogen sulfide for 30 minutes. The intermediate MRL of 20 ppb
is based on toxicity to olfactory neurons in exposed laboratory
animals. This information is presented in ATSDR's Hydrogen
Sulfide Toxicological Profile, which was updated in 2006
(http://www.atsdr.cdc.gov/toxprofiles/tp114.pdf).
Adverse health effects associated with short-term exposures
to hydrogen sulfide concentrations above the MRL include airway
constriction in individuals who have asthma, decreased lung
function, eye irritation, dizziness, nausea, and headache.
Acute exposures to high concentrations (greater than 100,000
ppb) may result in pulmonary edema and physical collapse.
The state of Minnesota has a health-based Ambient Air
Quality Standard under their State Implementation Plan (SIP)
that requires that there be no more than two 30-minute periods
of hydrogen sulfide above 30 ppb in 5 days, or no more than two
periods of hydrogen sulfide above 50 ppb in any year.
Summary of ATSDR Investigation at the Excel Dairy
The Excel Dairy is a dairy farm, operating outside Thief
River Falls in Marshall County in northwest Minnesota, which
has a capacity for over 1,500 animals. The Minnesota Pollution
Control Agency (MPCA) and the Minnesota Department of Health
(MDH) received complaints in the past and most recently in
early May 2008 about odors and health effects from residents
living near Excel Dairy farm. The health effects mentioned by
residents included upper respiratory effects (such as nasal
congestion and sore throats), itchy eyes, trouble breathing,
headaches, and nausea. In early June 2008, the MDH received
data from concerned citizens that included measurements of
elevated levels of hydrogen sulfide in the ambient air in their
community. The residents had rented a portable monitor to
measure hydrogen sulfide at a residence near the Excel Dairy
facility. They reported many periods of hydrogen sulfide
readings in the hundreds of ppb, and some readings over 1,000
ppb.
Since early May 2008, the Minnesota Pollution Control
Agency (MPCA) has been monitoring the levels of hydrogen
sulfide at locations near the Excel Dairy property line. MPCA
has been using stationary monitors for the measurement of
hydrogen sulfide concentrations in ambient air. The
concentration of hydrogen sulfide has frequently exceeded the
Minnesota Ambient Air Quality Standard of 30 ppb over 30 minute
periods, and frequently exceeded 90 ppb. Since the MPCA
instruments only quantified the hydrogen sulfide concentrations
in the air up to 90 ppb, the actual peak concentrations are not
known.
The Region 5 Office of the U.S. Environmental Protection
Agency (USEPA) also received health and odor complaints from
citizens, beginning in the second week of June 2008. USEPA
requested assistance from the ATSDR Regional Office to
interpret this data and to provide an evaluation of potential
hazards posed by inhalation exposure to hydrogen sulfide for
residents living near the Excel Dairy.
At the request of MDH, ATSDR agreed to conduct an Exposure
Investigation to evaluate the exposures that nearby residents
were experiencing. An exposure investigation is one approach
ATSDR uses to develop better characterization of past, current,
and possible future human exposures to hazardous substances in
the environment and to evaluate existing and possible health
effects related to those exposures more thoroughly. ATSDR
exposure investigations are not meant to substitute for a
monitoring program that would be conducted for regulatory or
operational management purposes.
In July 2008, ATSDR staff initiated continuous sampling for
hydrogen sulfide levels at three residential locations in close
proximity to the Excel Dairy. Stationary monitors were placed
at both outdoor and indoor locations at two of these locations.
The monitors detected a maximum hydrogen sulfide concentration
in outdoor air of 480 ppb. Over a three-week period, the 30-
minute average concentrations of hydrogen sulfide in ambient
air exceeded the ATSDR acute minimum risk level (70 ppb) for a
cumulative total of 6-8 hours at the residences closest to the
facility (0.2-0.3 miles from the nearest lagoon).
On June 20, 2008, the Minnesota Attorney General and the
MPCA filed a complaint seeking a temporary injunction against
the Excel Dairy owner to address operational shortfalls
contributing to these ambient releases of hydrogen sulfide. On
July 18, 2008, the USEPA issued a Notice of Violation to the
owner of the Excel Dairy farm for exceeding the state standard.
The ATSDR evaluation is limited to the measurement of
hydrogen sulfide in ambient and indoor air at only 3 locations,
during a limited time period. Although ATSDR did not conduct a
formal health study to evaluate the health of people living on
or near Excel Dairy, the symptoms described by the residents to
ATSDR and MDH staff were not inconsistent with the known acute
health effects of hydrogen sulfide exposure. Based on the fact
that the concentrations of hydrogen sulfide detected by ATSDR
and MPCA frequently exceeded state air quality standards and
ATSDR's acute MRL, ATSDR and MDH concluded that these
conditions pose a public health hazard to citizens living in
the vicinity of Excel Dairy. ATSDR uses the "public health
hazard" conclusion for sites at which long-term exposures to
hazardous substances or conditions could result in harmful
health effects. No data have been provided to ATSDR or MDH to
determine the concentration of hydrogen sulfide exposure that
individuals who work or live on the Excel Dairy property may
experience.
Based on this assessment, ATSDR recommended that Excel
Dairy should take action immediately to implement improved
emission control measures that will significantly reduce the
levels of exposure to hydrogen sulfide gas released from onsite
operations. To verify the effectiveness of these emission
control measures in reducing the release of hydrogen sulfide
gas, MPCA and Excel Dairy should coordinate to implement an air
monitoring program. Finally, Excel Dairy should restrict access
to lagoons to reduce direct exposures to trespassers and
children living on-site.
Conclusions
In conclusion, chemicals emitted from CAFOs can result in
public exposure and the potential for adverse health effects.
Hydrogen sulfide is among the chemicals that pose the greatest
concern for exposure. In the case of Excel Dairy, after
receiving reports of health concerns from local residents,
ATSDR and the state of Minnesota Pollution Control Agency
conducted air sampling and found that levels of hydrogen
sulfide in the air exceeded the ATSDR acute MRLs and the
Minnesota Air Quality Standards. ATSDR communicated
recommendations to the state, to USEPA, and to Excel Dairy
owners to reduce exposures to hydrogen sulfide and to monitor
the effectiveness of measures taken to reduce emissions.
Thank you for the opportunity to testify on this important
public health issue.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Green. Mr. Rey.
STATEMENT OF MARK E. REY, UNDER SECRETARY FOR NATURAL RESOURCES
AND THE ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE
Mr. Rey. Thank you for the opportunity to appear before the
committee to describe the activities of the Department of
Agriculture in providing assistance to farmers and ranchers in
addressing air and water quality issues, particularly as it
relates to livestock operations.
EPA's enforcement actions related to air emissions from
CAFOs have been based on violations of the Clean Air Act and
reporting requirements under CERCLA and EPCRA. Historically,
CERCLA and EPCRA were implemented to address hazardous
substances that, when released into the environment, may
present substantial danger to the public health welfare or the
environment. Application of these statutes to address air
emissions from CAFOs is a recent phenomenon.
One difficulty for the agricultural community with the
application of these statutes to CAFOs is that in determining
whether CAFO air emission thresholds have been exceeded. In the
early part of this decade, EPA commissioned a National Academy
of Sciences study on air emissions from animal feeding
operations. NAS published a report in 2003, and the most
significant recommendation of the NAS study was the need to
develop a process-based model of CAFOs to more accurately
estimate the air quality impacts of these operations.
To support the conduct of this study, EPA and USDA held a
joint meeting in November of 2003 with a number of scientists,
CAFO representatives, and environmentalists. Meetings were held
after the initial meeting to develop a scientifically-sound
monitoring protocol. Following publication in the Federal
register, EPA conducted signup opportunities in selected sites
for the study. In 2007, the state-of-the-art mobile
laboratories were positioned on selected CAFOs and began data
collection.
It is anticipated the data collection efforts will conclude
in 2009 and EPA will begin the development of their emissions
estimation methodology. This methodology is the first step in
the EPA's process to develop a more comprehensive estimation
technique recommended by the National Academy of Scientists, a
processed-based model which will aid in the development of any
needed air emission requirements from CAFOs which will
thereafter be science-based requirements.
Recently, relative to this area, USDA was sent a copy of a
draft GAO report. USDA agriculture and air quality experts
reviewed the draft report to determine its accuracy. Based on
that review, a total of 14 pages of comments were drafted and
submitted to GAO on the draft report. I will submit the
entirety of those comments for the record of this hearing. They
are summarized in our statement for the record, but
fundamentally, the GAO analysis was, in our view, one,
conducted over too short a time period, two, appears to be a
relatively superficial investigation and analysis, three, did
not adequately involve agriculture and air quality experts both
within USDA and outside of government, and, four, fails to
allow for the inclusion of USDA's comments that would have
corrected some of the inaccuracies in the report. At best,
these findings represent operations as they were conducted
decades in the past.
Today there are numerous programs at USDA that assist
farmers and ranchers to ensure better management of all of our
natural resources including the air and water quality
implications of CAFOs. A summary of those programs, the
investments that have been made at Congress's direction, are
provided in my statement for the record.
USDA has enjoyed, over the last several years, a positive
working relationship with EPA, working together to resolve
regulatory challenges. With specific regard to CAFOs, we have
been working together under a unified national CAFOs strategy
throughout the past 10 years that directs a number of joint
agency efforts to deal with air and water quality implications
from CAFOs. I will submit a copy of that strategy for the
record as well.
Now, I think probably it is worthwhile to comment a little
bit on the Excel Dairy situation, which is the only situation
that has been identified thus far that released enough
emissions that triggered a CERCLA or EPCRA requirement. What
happened on the ground affected what happened in the air, and
the things that happened on the ground at Excel Dairy should
not have happened under a normally permitted CAFO.
Essentially Excel Dairy went bankrupt. They were allowed by
the state of Minnesota to leave manure in their pits. That
manure festered in a straw-based solution for 3 to 5 years
before a successor in interest reopened the dairy. That
successor in interest was allowed to reopen the dairy without
cleaning up the old manure or expanding the size of the pits to
accommodate a twofold increase in the number of animals.
The mixture of the old manure that had been fermenting for
3 to 5 years and the new manure is what likely caused a spike
in hydrogen sulfide emissions to the level that previous
witness indicated. Had the state of Minnesota been properly
operating the permitting process for the dairy, both before
Excel went bankrupt and after a successor in interest took
over, their likely wouldn't have been that level of emission.
Mr. Green. Mr. Rey, please conclude.
Mr. Rey. I am concluding. Thank you for the opportunity to
offer my testimony.
[The prepared statement of Mr. Rey follows:]
Statement of Mark Rey
Mr. Chairman and Members of the Committee:
Thank you for the opportunity to appear before the
Committee to describe the activities of the United States
Department of Agriculture (USDA) in providing assistance to
farmers and ranchers in addressing water quality, particularly
as it relates to livestock operations. As Under Secretary
overseeing the Natural Resources Conservation Service (NRCS), I
have experienced firsthand some of the excellent conservation
work that farmers, ranchers, and other private landowners are
performing by working hand-in-hand with local NRCS staff and
our many partners.
Through the technical and financial assistance NRCS
delivers, our employees work in partnership with private
landowners to take proactive steps to improve water quality and
help them comply with local, State and federal regulatory
requirements across the Nation.
Helping People Help the Land
For over 70 years, NRCS has been committed to working with
America's private landowners through a locally led, voluntary,
cooperative conservation approach. Because of this "ground-up"
approach to helping people, we describe NRCS as "helping people
help the land." Working closely with America's agricultural
producers requires a commitment to providing high quality
service resulting in improved environmental benefits and a
healthier landscape.
Challenges of Applying CERCLA and EPCRA to CAFOs
While many of the initial complaints were driven by odor
issues, EPA enforcement actions and the citizen suits related
to air emissions from CAFOs (Concentrated Animal Feeding
Operations) have been based on violation of the Clean Air Act
(CAA) and the reporting requirements under the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA) and the Emergency Planning and Community Right-To-Know
Act (EPCRA).
Historically, CERCLA and EPCRA were implemented to address
hazardous substances that when released into the environment
may present substantial danger to the public health, welfare or
the environment. Application of these statutes to address air
emissions from CAFOs is a recent phenomenon. One difficulty for
the agricultural community with the application of these
statutes to CAFOs is in determining whether CAFO air emission
thresholds have been exceeded.
In the early 2000s, EPA commissioned a National Academy of
Sciences (NAS) study on air emissions from animal feeding
operations. This analysis was commissioned because EPA
understood the limits of its scientific knowledge of air
emissions from these types of operations. NAS published its
report, entitled "Air Emissions From Animal Feeding Operations:
Current Knowledge, Future Needs," in 2003. The most significant
recommendation of the NAS study was the need to develop a
process-based model of CAFOs to more accurately estimate the
air quality impacts of these operations.
Prior to the issuance of the NAS study, CAFO operators/
farmers approached EPA about the enforcement of environmental
laws governing air emissions, and the limits of EPA's knowledge
of their operations. These operators offered to participate in,
and fund, a two-year study in exchange for a limited "covenant
not to sue" for failure to report on-site quantities in excess
of the reportable quantity. As a result of these discussions,
over 2,600 CAFO operators entered into a Consent Agreement and
Final Order, an administrative enforcement settlement with EPA,
whereby they agreed to pay a civil penalty for violations of
the CAA, CERCLA and EPCRA, and participate in and be
responsible for funding a portion of the National Air Emissions
Study (NAEMS) study. In exchange, EPA agreed not to bring civil
enforcement actions against the participating CAFO owners/
operators for past and ongoing violations of the CAA, CERCLA
and EPCRA as long as they ultimately come into compliance under
the terms of the Consent Agreement.
To support the conduct of the NAEMS study, EPA and USDA
held a joint meeting in November 2003 at the USDA Beltsville,
MD, research facility. A number of scientists, CAFO
representatives and environmentalists were in attendance. In
addition, staffs from USDA and EPA with air quality and
agricultural experience were also in attendance. Over the 2.5
days of the meeting, a strategy for developing the testing
protocol was developed. Following this strategy, multiple
conference calls and meetings were held with attendees from the
initial meeting to develop a scientifically sound monitoring
protocol. As a result of that effort, the Consent Agreement and
the monitoring protocol were published in the Federal Register.
Following publication in the Federal Register, EPA
conducted sign-up opportunities and selected sites for the
NAEMS study. In 2007, the state-of-the-art mobile laboratories
were positioned on selected CAFOs and began data collection. It
is anticipated that data collection efforts will conclude in
2009 and EPA will begin the development of their emission
estimation methodology. This emission estimation method is the
first step in EPA's process to develop the more comprehensive
(and more accurate) estimation technique recommended by NAS - a
process-based model. It is our understanding that EPA will use
additional information to help in their development of the
process-based model, which will occur at a later date.
It should be noted that USDA supports EPA's effort to
develop a sound scientific basis for accurately determining
CAFO impacts on air quality. The use of sound science to
determine agricultural impacts helps to sustain a viable
agricultural economy and a healthy environment.
CAFOs and the GAO Audit
As part of the audit process, GAO conducted limited
interviews with agriculture and air quality experts at USDA.
For some reason, GAO sought information from unidentified
experts not associated with CAFO programs conducted at USDA.
Recently, USDA was sent a copy of the draft GAO report.
USDA agriculture and air quality experts reviewed the draft
report to determine its accuracy. Based on that review, a total
of fourteen pages of comments were crafted and submitted to GAO
on the draft report. These comments identified numerous
incorrect statements and calculation errors that
mischaracterize CAFO impacts and EPA's efforts to gather
sufficient information in the NAEMS study to more accurately
characterize CAFO emissions.
In general, GAO's draft report suffers from many
inaccuracies, including erroneous assumptions, faulty
information and uncited references. Moreover, we believe that
GAO missed an important opportunity to correctly present CAFO
producers as environmentally responsible citizens - a fact
demonstrated by the evidence to date. We believe that there
should have been more time dedicated to preparing the draft
report, as well as consistent input from experts at USDA and
EPA and better use of the wide variety of written materials
currently available.
The draft report contains many factual errors. The
following are a few examples:
GAO states that on any one day the hog population of the
five North Carolina counties referenced in their draft report
is over 9 million hogs producing almost 19 million tons of
manure per year. This is a factual error based on an inaccurate
estimate of swine populations. The 19 million ton figure for
yearly manure production is off by as much as 30 to 40 percent.
According to our estimates, the actual amount of manure
produced is 11.4 to 13.3 million tons per year.
The assertion that insufficient land exists in the five
county area to utilize the nutrients from the manure produced
by the swine industry which is leading to water quality
degradation is incorrect. The Cape Fear River system in North
Carolina drains three of the largest swine producing counties
in the United States that constitute over 70% of the swine
production in North Carolina. The Black and South rivers, part
of the Cape Fear River system, are classified by the North
Carolina environmental agencies as "Outstanding Resource
Water," a rating that signifies excellent water quality as
defined by the North Carolina Division of Water Quality.
The draft report indicates that "the contamination may
have occurred because the hog farms are attempting to dispose
of excess manure but have little available cropland that can
effectively use it." In fact, every single permitted swine
operation in North Carolina has a Certified Animal Waste
Management Plan and waste treatment structure that has been
certified as sufficient to treat the total volume of manure
produced as well as account, by land application on growing
crops, for all plant available nitrogen produced by the
operation.
The GAO draft report characterizes USDA's Agricultural Air
Quality Task Force as a Federal agency rather than a Federal
Advisory Committee that operates under the mandate established
by Congress in the 1996 FAIR Act and is governed by the Federal
Advisory Committee Act. The Agricultural Air Quality Task Force
(AAQTF) is a Federal Advisory Committee (not an "agency") that
makes recommendations to the Secretary of Agriculture. The
AAQTF cannot enter into any MOU with EPA as has been indicated
in the draft GAO report.
The GAO analysis was: (1) conducted over too short a time
period, (2) appears to be a poor investigation and analysis,
(3) did not adequately involve agriculture and air quality
experts at USDA and (4) fails to allow for inclusion of USDA's
comments that would correct the errors contained in the draft
report. At best, these findings represent operations as they
were conducted decades in the past. The vast majority of CAFOs
are very well run from an environmental standpoint.
Today, there are numerous programs at USDA that assist
farmers and ranchers to ensure better management of all natural
resources, including water and air quality. Below are a few
examples of recent activities that we have undertaken that
demonstrate our commitment to address these issues:
In 2007, NRCS helped farmers and ranchers develop over
5,100 and apply over 4,400 Comprehensive Nutrient Management
Plans (CNMPs) for livestock manure management, bringing the
total CNMPs written with NRCS assistance since 2002 to 33,600
and CNMPs applied to 21,400.
Developed United States Department of Agriculture (USDA)
policy on market-based incentives and signed a Partnership
Agreement with the U.S. Environmental Protection Agency (EPA)
to further the market-based approach.
Provided technical assistance to help farmers and ranchers
treat over 47 million acres of working lands to improve or
enhance soil quality, water quality, water management, wildlife
habitat, and air quality.
Provided conservation technical assistance to nearly 1
million customers throughout the Nation.
These activities are a direct outcome of programs supported
and authorized by Congress. These programs include, but are not
limited to:
Conservation Technical Assistance (CTA) Program - a
voluntary, incentive-based program of conservation activities
where a producer identifies the unique resource concerns of his
or her operation as a starting point and develops a
conservation plan. This conservation plan is the foundation of
locally-led, cooperative conservation.
Environmental Quality Incentives Program (EQIP) - a
flagship working lands conservation program. The objective of
EQIP is to optimize environmental benefits. The program
provides technical and financial assistance to landowners that
face serious natural resource challenges in their management of
cropland, grazing lands, forestland, livestock, and wildlife
habitat.
In FY 2007, over 66 percent or $520 million of EQIP funds
was obligated for assisting livestock producers. Of that
amount, over one-fourth ($141 million) went to confined
livestock operations.
Figure 1 provides details about the confined livestock
operations which benefited from EQIP funding in FY 2007.
Figure 1
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Figure 2 demonstrates the broad range of natural resource
issues that EQIP addresses, including 28 percent of funding
going toward water quality improvement practices.
Figure 2
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Conservation Security Program (revised as the new
Conservation Stewardship Program in the 2008 Farm Bill) - a
voluntary program that provides financial and technical
assistance for the conservation, protection, and improvement of
natural resources on tribal and private working lands. The
Conservation Stewardship Program is a working lands program
that offers incentives for higher levels of conservation to
those producers who have already achieved progressive
stewardship throughout their operations.
We have made significant progress in helping people help
the land by providing technical and financial support to the
Nation's agricultural producers. But while we have excellent
information about our program outputs, we still are working to
quantify our data on the environmental outcomes of our programs
and improve our practices, where warranted.
Starting in 2003, NRCS, in collaboration with other USDA
and Federal agencies, initiated the Conservation Effects
Assessment Project (CEAP) to scientifically assess the
environmental and related outcomes from Farm Bill conservation
programs at both the national and watershed scale.
The national assessment initially focuses on water quality,
soil quality, and water conservation benefits from cropland
programs, including the Conservation Reserve Program. Using the
National Resources Inventory data, supplemented by farmer
surveys and verified by USDA computer models, CEAP will
estimate national benefits from conservation practices and
programs. In addition to the cropland component, CEAP includes
wetlands, grazing lands and wildlife components in the
assessment of conservation benefits from Farm Bill programs To
date, the CEAP analysis discussed here assessed the land
application of manure (regardless of the source of the manure).
It assessed nutrient losses and soil enhancements from the
application of manure. Other aspects of manure management that
may occur on a CAFO were not assessed.
In terms of outputs, farmers and ranchers are making
important gains in conservation on working lands. They have
applied conservation systems to over 57 million acres of
cropland and over 108 million acres of grazing lands, and
improved 56 million acres of fish and wildlife habitat. We will
use the CEAP data to more precisely measure the results and
actual outcomes we are helping our customers achieve.
In addition to our internal efforts to improve the
environmental footprint of CAFOs, USDA and EPA staffs work
collaboratively to ensure that EPA guidelines, policies and
regulations are based on sound science. USDA staff work with
EPA staff to provide them with a better understanding of
current agricultural conservation systems and practices so that
if regulation is warranted, the requirements will result in
real environmental benefits. These are but a few examples of
our work to ensure a healthy environment and a safe food supply
for the public.
Challenges of Regulations
Mr. Chairman, USDA has enjoyed a positive working
relationship with the United States Environmental Protection
Agency (EPA) in recent years, working together to resolve
regulatory challenges.
USDA provided extensive consultation to EPA as they
developed revised rules in response to the Second Circuit
decision in Waterkeeper v. EPA. During the course of this
assistance, USDA and EPA have developed a very effective
partnership. The agencies have agreed to the same approaches
for nutrient management plans so that they can be used for both
USDA programs and EPA regulations. EPA has become a full
partner with USDA and Purdue University in the development of
the Manure Management Planner software that will enable faster
and more accurate production of Comprehensive Nutrient
Management Plans.
EPA has also proposed to use two USDA software products in
the revised rule to support a demonstration of "no discharge"
from the production facility of a Concentrated Animal Feeding
Operation. These software products are the Soil, Plants, Air
and Water model and Agricultural Water Management model. These
models are able to assess whether or not a discharge will occur
from a CAFO under greater than 100-year frequency rainfall
combined with a properly installed Comprehensive Nutrient
Management Plan.
USDA is updating internal technical policy on Comprehensive
Nutrient Management Plans so that it reflects the streamlining
efforts referenced above and coordinates terms with EPA.
The messages and concerns of private agriculture producers
are being heard and we have established the right kind of
dialogue to ensure that both solid science and the day-to-day
realities of farming operations are being heard in EPA's
regulatory actions. However, I want to take a moment to express
a few concerns regarding some of the assertions that have been
associated with further regulatory activities.
While great strides have been made, there contiues to be a
need to improve estimation of CAFO emissions so that they and
potential environmental impacts are correctly characterized.
USDA supports EPA's NAEMS study as a step forward to develop
methods to more accurately estimate CAFO emissions. Finally,
there is a great need to establish agriculturally appropriate
regulatory definitions for terms such as "source," "contiguous
property," "discrete facilities," and other terms used to
determine the applicability of regulations. It is only through
an appropriate characterization of agricultural emissions and a
clear understanding of regulatory language that agricultural
operations can fairly and appropriately be engaged to comply
with current and future regulations. With source appropriate
regulatory requirements and a clear understanding of those
requirements, farmers and ranchers can continue to provide the
safest, most abundant, and reasonably priced food supply while
meeting the commitment to conserve our natural resources.
Summary
I am proud of the work and the conservation ethic our
people exhibit day in and day out as they go about the job of
achieving conservation on the ground. Through Cooperative
Conservation, we have achieved a great deal of success. We are
sharply focusing our efforts and will work together with our
partners to continue to make improvements to water and air
quality. We are demonstrating that voluntary, incentive-based
conservation program work and expansion of regulatory
requirements is not always necessary. I look forward to working
with you, as we move ahead in this endeavor.
This concludes my statement. I will be glad to answer any
questions that Members of the Subcommittee might have.
----------
Mr. Green. Thank you. Our next witness is Ms. Mittal.
STATEMENT OF ANU MITTAL, DIRECTOR, NATURAL RESOURCES AND
ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE
Ms. Mittal. Mr. Chairman and members of the subcommittee--
--
Mr. Green. You want to--yes.
Ms. Mittal. Sorry. Mr. Chairman and members of the
subcommittee, thank you for inviting us to participate in your
hearing today. At your request, my testimony will summarize the
findings of the GAO's report that you released today on air and
water pollution associated with concentrated animal feeding
operations, known as CAFOs.
As you know, CAFOs can produce thousands of tons of manure
a year, and if this manure is not properly managed, it can
result in the release of a variety of harmful substances into
the environment. Our report's findings also provide important
context for evaluating EPA's recent proposal to exempt farms
that have releases of hazardous substances from manure from
CERCLA and EPCRA's reporting requirements.
First we tried to determine how many CAFOs are in operation
and how much manure they actually produce. Unfortunately
because no Federal agency collects data on CAFOs, no one knows
exactly how many CAFOs are in operation. What we do know is
that the number of large farms that raise animals increased by
230 percent between 1982 and 2002 and the number of animals
raised on these farms has also increased. So we would expect
that CAFOs have also experienced similar growth trends.
What is more troubling, however, is that EPA does not have
accurate, consistent, and complete data on the number,
location, and size of those CAFOs that have been issued an
NPDES permit even though we are not talking about the Clean
Water Act today. Without this information, EPA cannot
effectively regulate discharges from CAFOs.
Although we do not know exactly how many CAFOs are in
operation, we can estimate the amount of waste an individual
operation can generate. As you would expect, the amount of
manure produced by a CAFO depends on a number of factors,
including the type and number of animals raised and the feeding
practices employed.
A minimum-sized CAFO raising 82,000 layers, therefore, can
produce about 2,800 tons of manure a year. While on the other
extreme, a CAFO with 800,000 hogs can produce more than 1.6
million tons of manure a year. 1.6 million tons of manure, as
has already been mentioned, is more than one and a half times
the human sanitary waste produced by the city of Philadelphia.
For CAFOs that produce such large amounts of manure, hazardous
substance releases can become a real issue.
We also looked at the research that has recently been
completed linking pollutants released by CAFOs to impacts on
human health and the environment. We identified at least 34
studies that have researched this linkage and found that the
majority of these studies established either a direct or an
indirect link between specific air and water pollutants
released by CAFOs and human health and environmental impacts.
Only 7 of the 34 studies that we looked at found no such
linkage.
EPA has been regulating CAFOs under the Clean Water Act for
almost 30 years and has long recognized the potential impacts
that CAFO water pollutants can have on human health and the
environment. It is only recently that EPA has become concerned
about similar impacts for air pollutants released by CAFOs.
However, EPA has yet to assess the extent of these impacts for
either water or air pollutants because it lacks data on the
characteristics of CAFOs nationwide and the amount of
pollutants they are actually releasing.
EPA told us that it does not have the resources to collect
the nationwide data that it needs for water pollutants, but for
air pollutants, a 2-year monitoring study was recently
initiated in 2007 that is being funded largely by the industry.
We also found that with regard to CAFO air pollutants that
may be regulated under the Clean Air Act and are subject to
CERCLA and EPCRA requirements, EPA is still years away from
having the air emissions protocols that it needs. The air
emissions monitoring study was supposed to provide EPA with
scientific and statistically valid data needed to develop air
emissions protocols by 2011. However, we identified several
concerns with how the study is structured and being implemented
that, if not addressed immediately, may result in EPA not
obtaining the data that it needs to develop these protocols.
In this regard, the timing of EPA's decision to exempt
farms from EPCRA's and CERCLA's reporting requirements is a
concern. Because the monitoring study has not been completed,
EPA does not know the extent to which hazardous substances are
actually being released by animal feeding operations.
In addition, EPA has not yet decided if it will aggregate
all of the emissions occuring on an animal feeding operation,
or if the emissions will be considered separately to decide if
an operation has exceeded allowable limits.
In conclusion, Mr. Chairman, given the dramatic changes
that have occurred in the structure of the animal production
industry, it is disconcerting that EPA lacks reliable data on
the number, location, and size of CAFOs and the amounts of
pollutants that they release. Without this information, EPA can
neither effectively monitor the harmful substances released by
these operations, nor can they conduct the necessary
assessments of how these substances impact human health and the
environment.
This concludes my prepared statement. I would be happy to
respond to any questions that you might have.
[The prepared statement of Ms. Mittal follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Green. Thank you. That concludes all our opening
statements, and we will start off with our two rounds of
questioning regarding the proposed CAFO air rule, and then move
on--I will start with the CAFO air rule and move on to
Superfund oversight.
My first two questions on the CAFO air rule are for Ms.
Mittal and GAO, and please answer yes or no. Is your opinion
that the EPA's proposed air emissions reporting rule is a
departure from past regulatory enforcement actions including
the air compliance agreement?
Ms. Mittal. Yes, we believe it is.
Mr. Green. Do you think that EPA should obtain more data on
CAFO emissions and potential human health effects before
exempting them from hazardous air release?
Ms. Mittal. Yes, we believe they should.
Mr. Green. My next question on the CAFO proposed air rule
is for Assistant Administrator Bodine, and again please answer
yes or no as well. Does EPA plan to seek more information on
the potential health impacts of CAFO releases before finalizing
the rule?
Ms. Bodine. No.
Mr. Green. Okay, has EPA submitted the final rule to the
Office of Management and Budget?
Ms. Bodine. No.
Mr. Green. Okay, does the Administration intend to issue a
final rule before November 1?
Ms. Bodine. A decision on the final rule has not been made.
It is still a proposal within EPA.
Mr. Green. Okay, I know White House chief of staff Joshua
Bolton issued a memo stating that federal agencies should not
issue final rules after November 1. And do you know if EPA
intends to follow that directive in this case?
Ms. Bodine. I don't know. We haven't sent it to OMB yet.
Mr. Green. Okay, I would like to ask some other Superfund-
related questions because this is our last chance for this
year, and these questions again are for our Assistant
Administrator. Your office provided us with a chart of
Superfund construction sites since 1993, which we will
distribute on the dais.
And unfortunately the chart shows that a climb from 60 to
80 completed cleanups in the 1990's to 30 or less in the last 2
years. Do you know how many Superfund sites have reached
construction complete status in 2008 compared to the goal of 30
provided in the administration's budget?
Ms. Bodine. The fiscal year is not over yet. Our goal this
year is 30. We have 30 sites that are candidates, and I am very
optimistic that we will reach that goal. There is at least one
site I am aware of where we are doing the confirmatory sampling
and so we can make sure that, in fact, everything is cleaned up
as it is supposed to be. So it is going to come down to the
last days of the fiscal year. So I don't have a definitive
answer for you right now, but I am very, very optimistic that
we will have them.
Mr. Green. The last day of the fiscal year is next week.
Ms. Bodine. Yes, in fact, that is exactly right.
Mr. Green. Do you have any idea of the number of the 30
that you have now? Do we have 20 or 10 or anything at all?
Ms. Bodine. We have the final reports from the region in
for all 30. But, as I mentioned, I am aware that there is some
sampling that we are waiting for at least one site. So I can't
give you a dispositive answer at this point.
Mr. Green. Okay, we will contact you after the close of
this year. Does availability of funding have any impact on the
number of sites that you can complete?
Ms. Bodine. Each year, at least since 2004, the Agency has
posted on its website the number of projects that we start in
that year and if there are projects that we didn't start
because of availability of funding, we put that information up
on the web as well. In FY 2004 and 2005 and 2006 there were
some unfunded projects. In FY 2007, we were able to start them
all, but you could assume that if a project isn't started in a
particular year, if the start moves to a later year that would
then ultimately, 3 years later perhaps, impact when a project
would be completed.
So in terms of what we are providing funding for in this
year and our construction completions this year, I don't
believe funding was an issue. The question is was there
something that we didn't start back in FY 2004 but that could
have been done this year.
Mr. Green. Could you provide our committee with a written
response explaining why EPA is not able to achieve the greater
results that addresses the impacts of funding availability and
any cost increases that have been since, for example, 2004?
Ms. Bodine. Yes.
Mr. Green. Appreciate that. My time is almost over. I have
another line of questions. I will wait until the second panel.
The Chair recognizes our ranking member, Congressman Shadegg.
Mr. Shadegg. Thank you, Mr. Chairman. Mr. Rey, I am going
to begin with you. I would like to learn a little bit more
about the incident at the dairy that was referred to. As I
understand it, you said that is the only incident that you are
aware of in which there was an emission of either of these two
pollutants from manure arising from a CAFO, that is the topic
we are talking about?
Mr. Rey. The only instance that I am aware of where the
emissions exceeded what would be the reportable quantity under
CERCLA or EPCRA.
Mr. Shadegg. Ms. Mittal, are you aware of other emissions?
Ms. Mittal. We were not made aware of any other incident,
and that is why the National Air Emissions Monitoring Study is
so important for this effort because this study is going to
provide EPA with that kind of information.
Mr. Shadegg. How long has the law required these kind of
reports?
Ms. Mittal. Which kind of reports, sir?
Mr. Shadegg. The EPA is proposing to waive the current
requirement for notification.
Ms. Mittal. Right.
Mr. Shadegg. Mr. Rey, maybe you know the answer. How long
has the law required these kind of reports?
Mr. Rey. I think they have been required since some of the
litigation over CERCLA and EPCRA about 2003.
Mr. Shadegg. So we have 4 years--4 or 5 years of reports,
and in that 5 years, the only one we know of is the one
involving this dairy?
Mr. Rey. That is my understanding.
Mr. Shadegg. Dr. Johnson, do you know of others?
Mr. Johnson. Our agency is not involved in reviewing CAFOs
in general. We review assessments as they are presented to us
for our opinions. We have only done three or four assessments
over the past several years.
Mr. Shadegg. But your answer would be you don't know of any
others?
Mr. Johnson. No, I don't.
Mr. Shadegg. Okay, Ms. Bodine?
Ms. Bodine. In response to the chairman's request in the
invitation letter, we have provided, and I have it for the
record, a summary of reports that have been sent in to the
National Response Center from facilities that we--by looking at
what was being reported, we are estimating are coming from
animal feeding operations or farms. And so, yes, there have
been a number of reports that have been filed with respect to
hydrogen sulfide and ammonia. And I have that.
Mr. Shadegg. Well, my question isn't have there been
reports filed on it. The law requires reports be filed. That is
what you propose to exempt. My question is Mr. Rey says there
has only been one that exceeds the standards. And is that
correct, or is that incorrect?
Ms. Bodine. I am going to assume that the people were
reporting because they thought they had exceeded the reportable
quantity. But I would have to actually look and see exactly
what the report is. But if they had exceeded the reportable
quantity, then the obligation to report would arise.
Mr. Shadegg. Okay, I want to clarify. One report goes to
the Coast Guard?
Ms. Bodine. Yes, under CERCLA Section 103, it goes to--the
National Response Center is manned by the Coast Guard, correct.
And then they send the reports out. Most of them they send out
to EPA.
Mr. Shadegg. And the other report goes to local emergency
agencies. Is that correct?
Ms. Bodine. Under EPCRA, that is correct. It goes both to
the local and to the state agencies.
Mr. Shadegg. And what you testified was that in no instance
has a report to a local emergency agency resulted in a
response?
Ms. Bodine. I testified that no report that came through
the Coast Guard to EPA has resulted in a response. We are not
aware of any report to the locals that resulted in a response,
but we don't get those reports.
Mr. Shadegg. Mr. Rey, as I understood from your testimony,
what happened at this dairy should never have happened if the
state had been applying the law properly with regard to the
operations of this dairy to begin with. Can you explain what
reports----
Mr. Rey. It is our judgment that in the water quality
permitting process that the state uses, not just Minnesota but
other states as well, the dairy operator that went bankrupt
should have been required to finish the cleanup of the pits.
And in any event, even if that hadn't happened, the new
permitting for the successor in interest, the company that took
over from Excel, should have been required to clean up those
pits before the permit was granted to operate the dairy.
So I think my point is that if the permitting process for
water quality had worked properly, then our judgment is there
wouldn't have been a spike in hydrogen sulfide emissions
because we think that spike was the result of the mixing of the
older waste that had been fermenting for some time with the new
waste of the new operator.
Mr. Shadegg. Are the operators of these facilities required
to follow a management plan that is what they are going to do
with this manure over time, sell it, process it?
Mr. Rey. A comprehensive nutrient management plan or a
manure management plan is part of the requirements for their
clean water permit.
Mr. Shadegg. And that plan should reveal quantities,
disposal, whether or not these kind of buildups are going to
occur?
Mr. Rey. Generally speaking.
Mr. Shadegg. One last question if I might, Mr. Chairman.
Both Mr. Rey and Ms. Mittal referred to a study to be completed
in 2009. You are both referring to the same study?
Ms. Mittal. Yes.
Mr. Rey. Yes.
Mr. Shadegg. And, Ms. Mittal, you have concerns about its
protocols?
Ms. Mittal. Yes.
Mr. Shadegg. Thank you.
Mr. Green. The Chair recognizes Congressman Barrow for
three minutes.
Mr. Barrow. Thank you, Mr. Chairman. I am still trying to
get a handle on whether or not what we are proposing to abandon
here is something that has effectively been tried, been tried
in a reasonably effective manner, or whether it has been tried
and found wanting. And a part of the confusion arises out of
the fact that we have reporting requirements fixed by law, by
statute, affirmative requirement by law. And we have monitoring
requirements, the best I can figure out, that are basically not
enforceable as a matter of law but only as a result of
contract, essentially what is an agreement to enter into a
monitoring program, for purposes of trying to decide what kind
of regulations are more appropriate in the future.
But what I hear and what I am hearing from folks back home
is that the monitoring requirements that a lot of folks felt
kind of coerced to enter into as a result EPA's efforts to beef
up enforcement in this area are way over broad in the sense
that it covers a lot of de minimis operations, a lot of
operations that really probably aren't as serious as others.
What concerns me is we have a lot of CAFOs thrown in with a
lot of mom-and-pop operations and apparently a monitoring
requirement that is so burdensome and so troublesome that it
causes more trouble than trying to get the useful information
Ms. Mittal says we need to have in order to decide where to go
from here.
And so I just want somebody on the panel to tell me if
there is any effort being made to try and reassess the current
monitoring program to decide whether or not we can focus its
efforts or limit it just to CAFOs, operations that are big
enough to worry about.
Has any consideration been given to that?
Ms. Mittal. Well, I can definitely start. The concern that
we are trying to raise through our report is that traditionally
we have considered animal feeding operations or farms to be low
sources of emissions. And what we are seeing is this dramatic
shift in the industry, where you have larger farms, very large
size farms with very large numbers of animals producing very
large quantities of manure.
And so our traditionally held belief that these farms are
not a major source of emissions may no longer hold true.
Mr. Barrow. But the trend you are describing though, to my
way of thinking, suggests that a large number of small time
producers aren't a big deal. It is the huge concentrations in
these big operations that are a big deal.
Ms. Mittal. And that----
Mr. Barrow. You have a 2-year-old monitoring program. We
are halfway through it. It has a lot of small mom-and-pop
operations thrown in with the big guys. And I could tell you
the push back and the perceived lack of utility in the
monitoring program for a lot of folks. That supports the EPA
position we don't need to do anything about this because we
aren't going to respond to these anyhow. We never have so far.
Ms. Mittal. Well, I think that is the concern we have with
the exemption, that it is very broad and it covers all
establishments, even the very large ones. And we don't have
information. We don't have good complete information on how
many emissions are actually occurring at these very large
operations. So that is one of our concerns with the EPA
exemption, that it may be premature since we don't have data
yet. The study is not completed yet, and we don't know the
extent to which emissions are actually occurring.
Mr. Barrow. Anybody want to respond to that? Ms. Bodine,
can you give us some feedback in response to that?
Ms. Bodine. The rationale for our rule is based on the fact
that these reporting requirements are for the purposes of
managing an emergency response program----
Mr. Barrow. I recognize----
Ms. Bodine [continuing]. And not----
Mr. Barrow [continuing]. The difference between acute and
chronic, between something that is released all of a sudden
like and something that is just kind of constantly seeping and
the difficulties of monitoring and the burdens of responding to
both. But you got to recognize that something that builds up
over a long time is just as much of a concern as something that
comes out all at once.
Ms. Bodine. And then the question is what purpose is served
by reports versus whether or not the information that is being
gathered under the air compliance monitoring study will be
relevant for determining whether or not regulations, actual
controls, would need to be required. And that would be
information that would be relevant information coming out of
the study. The reporting requirements that are the subject of
our proposed rule have nothing to do with controlling
emissions. It is a report. They don't have anything to do with
monitoring. It is a report.
Mr. Barrow. I know. I understand that, but the purpose of
the report is to make it possible for folks to respond, if
there is a need to----
Ms. Bodine. The purpose of the report--they go to the
emergency response community, and the purpose is to determine
whether a response is necessary.
Mr. Barrow. Well, here is the concern that I have. Clearly,
we have to make a common sense distinction between the mom-and-
pop operator, the small family farm, and the CAFO. And clearly
we have to recognize that monitoring requirements that don't
lead to any kind of reporting when something is bad is
worthless. And reporting requirements that don't have the
effect of monitoring are worthless because you report--
something you don't know about it, you can't report it. So we
have to apply some common sense and figure out how to do this.
I am concerned though when a cop says because I don't issue
any citations, therefore there ought not be a law on speeding.
That is a concern to me, and I don't know how much folks are
speeding or not speeding because you can't tell that because we
are not issuing any citations. If that is going to be the
measure of whether or not there is speeding going on out there,
you might have a lot of wrecks going on and still not have any
effective means of dealing with it.
Thank you. I yield back the balance of my time.
Mr. Green. Our next questions are from Congressman Deal.
Mr. Deal. Thank you, Mr. Chairman. I want to follow up on
the excellent analysis that my fellow Georgian, Mr. Barrow, has
made because he and I both have small family farm operations.
It my congressional district, it probably has the largest
concentration of numbers of boiler producers in the entire
country. We call ourselves the poultry capital of the world.
And I want to direct this to you, Ms. Bodine. I am going to
precede it with some statements of fact that we think are
correct and then ask you to comment on a few things. First of
all is that University of Georgia recently completed a study
that measured the actual levels of ammonia in the air at a
larger than average poultry farm.
Research concluded that at very close distances to the
poultry houses, even as close as 100 feet, the concentration of
ammonia was around one part per million the great majority of
the time. The highest level measured was only a few parts per
million. Most important is that the level of airborne ammonia
measured by the University of Georgia study was, first of all,
far below the current OSHA workplace exposure limits for
ammonia, and, two, even lower than the very conservative
minimum risk level of 1.7 parts per million set by the Agency
for Toxic Substances Disease Registry.
The question is this: with these kinds of extremely low
concentrations of naturally occurring, rapidly dispersing
ammonia on poultry farms, should EPA be concerned that these
farms, which are mostly family-owned farms, are posing an
emergency in the same way a chemical explosion or a hazardous
spill might?
Ms. Bodine. In our proposed rule, we looked at the kinds of
emissions that were coming from farms and found the
characterization as you depicted--they were constant,
relatively constant emissions that, as you said, are dispersed.
Then we looked at the history of response and whether or not we
would expect there to be an emergency response akin to a
derailment or an explosion. We determined that for the purposes
of the proposed rule that no, in fact, there would be no
response. And that is the basis, that is the rationale for the
proposed rule.
Mr. Deal. And that leads us to a no conclusion on that, a
conclusion of no, they don't pose the same degree of hazards or
concerns. Second question is should a poultry farm that
generates near zero levels of ammonia in the air be required to
notify emergency response officials at the state, local, and
Federal level that their operations are posing a danger
warranting a response under the same rules that would apply to
the larger chemical or toxic spills?
Ms. Bodine. I would again have to refer you back to our
proposed rule. What the agency proposed was that we would
provide an administrative reporting exemption for the hazardous
substance emissions that were from animal waste.
Mr. Deal. And your proposal is on the premise that they
don't or should not justify that kind of emergency report.
Ms. Bodine. That the reports aren't necessary for our
emergency response program----
Mr. Deal. Yes.
Ms. Bodine [continuing]. Is the rationale for the rule.
Mr. Deal. Have emergency responders overwhelmingly told the
EPA that losing the 304 reports will cripple emergency response
on farms?
Ms. Bodine. Our own emergency responders have told us that
they wouldn't respond. In terms of comments that we have
received, we did receive comments from Mr. Gablehouse, who is
the president the National Association of SARA Title III
officials, opposing the rule. His comments didn't say that the
reports were required for a response, but they opposed the
rule.
We also received some individual comments from a number of
individuals, state and local entities, that supported the rule.
So we had mixed comments--there is the association on the one
hand and then the individuals on the other. We had mixed
comment on that.
Mr. Deal. All right, my second question is, first of all,
as you know, states and even local communities have legislated
through state law or zoning ordinances requirements to change
the set back requirements for animal operations so that there
is a sufficient buffer between, say for example, a poultry
house or turkey barn, and neighboring properties or residents.
This, of course, can place additional burdens on the owners
of the property and the operators of the poultry operations
with respect to whether and how they can expand their
operations. I am sure you are aware that some of these
decisions regarding set back distances have been made at local
and state levels. Have these requirements and the buffering
role that play a factor, have they played a factor in your
decision as to how to address the emergency notification as it
relates to poultry and other farming operations?
Ms. Bodine. I don't believe we did a systematic analysis of
set back requirements, no. Again the rationale for our rule was
these are reports for an emergency management program that we
didn't see were going to lead to an emergency response.
Mr. Deal. Based on the study I have just cited from the
University of Georgia on the relatively low emissions and the
fact that if they are separated by set back requirements from
neighbors or residential communities, I believe that that is
already playing a very large part in the fact that you are not
receiving complaints in most of the areas that we see these
poultry type operations in place.
So I think they have played a positive role in trying to
minimize any degree of concerns and any complaint process that
might be otherwise activated. Mr. Chairman, I would yield back
the balance of my time.
Mr. Green. Thank you. Before we go forward with Congressman
Solis, the ranking member brought up an issue earlier about the
reporting requirements that were--they have been on the books
since 1986, and EPA is enforcing them against CAFOs starting
about 5 years ago. So it has actually been a law for a number
of years. The Chair recognizes Congresswoman Solis.
Ms. Solis. Thank you, Mr. Chairman. I just want to also
clarify for the record when we had a subcommittee hearing in
the House on November 16 of 2005, we asked EPA if they had any
knowledge of any qualitative risks or studies that might have
been done affecting health risks. And their answer was no, and
that is noted on page 155. So I would draw the members'
attention to that.
And on page 156, EPA was further asked if they had any
information regarding triggering of reporting requirements and
what that meant with respect to the operational size of these
farms. And apparently at the time, they said they had no
information. No information. And then 2 years later, on
December 28, of 2007. They are proposing a rule that would
disallow any reporting for the larger CAFOs. So I think that it
seems as though the blind is leading the blind. There is no
information on which to base this rulemaking.
And I wanted to ask our GAO representative if she would
elaborate on what some of the issues are here with data gaps.
You kind of pointed that out, but what does that mean? I mean I
clearly understand where Mr. Barrow is coming from with smaller
facilities. And now to know that there really isn't adequate
information to assess any of this with any great degree, why
are we rushing to this? And what implications does that have
for us?
Ms. Mittal. That was one of the things that we heard
throughout our study was that EPA does not have complete
information on the number, size, and location of CAFOs and the
amount of pollutants that they release, whether it is air or
water. Obviously in this case, we are talking about air
pollutants. So they do not have that information. They cannot
therefore do the assessments that you just mentioned in terms
of health and environmental impacts because they first need to
know how many releases are actually occurring.
The other issue that I have already mentioned is the fact
that the air emissions monitoring study was supposed to provide
a significant amount of statistically valid and scientifically
based data, so that the agency could know how many--what
quantity and what types of air emissions are coming from CAFOs.
So we would think at a minimum we would need that information
from the air emissions monitoring study to be complete before
proceeding with the proposed exemption.
The other issue that I raised in my testimony was the fact
that EPA has not yet decided what will be considered a source
of an emission at an animal feeding operation, whether
individual----
Ms. Solis. Her mike went off, Mr. Chairman.
Ms. Mittal. It says on. The green light is on.
Ms. Solis. So can you see--I don't want my time to run out.
Mr. Green. Yeah, we will give you--did somebody turn the
mike down? Okay, we need you to turn it just a little bit
higher so we can hear. We don't want the feedback, but we also
don't want the--we want to be able to hear the testimony. Okay,
continue.
Ms. Mittal. The last issue that I mentioned was that EPA
has still not made a decision about what is considered a source
for an animal feeding operation. If you look at just one barn,
you may have a certain amount of emissions. But when you look
at all of the barns put together, you may have a completely
different profile.
Early indications that we have seen from preliminary data
from the study that is ongoing is that some of the barns that
EPA is monitoring do have emissions that exceed the reportable
quantity. And if you add all of the emissions from all of the
barns, you have 500 times the reportable quantities.
So we are very concerned about the timing of this proposal.
Ms. Solis. My next question is for Mr. Johnson and your
involvement in the incident that occurred out in--what you were
just talking about in Minnesota. And what triggered your
response? How did that happen?
Mr. Johnson. Our involvement is about a number of
situations either because we are involved from a Superfund
involvement in which it provides our authority. But also we
could be petitioned by citizens, by states, and by other EPA
programs. In this case, it was a specific request from U.S. EPA
and the Air Enforcement Program to review the data that had
been assembled by the state environmental agency and also by
the citizens and for us to render a public health hazard
determination.
Ms. Solis. So EPA notified you?
Mr. Johnson. That is correct, and it became a collaboration
between us and the Minnesota Department of Health to conduct
that assessment.
Ms. Solis. But is there any other incidents that might come
up where EPA doesn't tell you and you go out and find that
there is hazardous exposure here in the air and you do not
maybe notify EPA because you haven't been prompted by them?
What happens in those situations?
Mr. Johnson. Right, and that situation is where we are
petitioned by a community in which we conduct an assessment. We
may, in certain cases, actually do our own sampling if we think
there is a need to do that, to inform a decision about public
health hazards. In most cases though, if we feel there is a
need for some intervention to occur, we need to work with an
agency that can conduct that intervention since we have no
regulatory authority.
So in most cases if we think an action is needed, we will
work with either U.S. EPA or state authorities to make sure
that those actions are taken.
Ms. Solis. So there could be actions that we are just not
aware of that could have been given to state authorities?
Because what I am concerned about here is that we are trying to
point out that this the only case that we know of in Minnesota,
and that is really hard for me to believe that there weren't
any other incidences that might have come up. And I just want
to be clear on what that process is and what triggers EPA to
get involved as opposed to the community's right to know.
Someone calls you and they say hey, we have a problem here.
Then you go to, say itis our state EPA, and they then don't
notify the Federal EPA. That could very well happen. I would
like to know if EPA has--is there any way to collect that data.
And that is probably one of the bigger gaps that exist as well.
That big gap where no one is telling Federal EPA about these
incidences that have occurred, maybe on smaller farms or larger
farms, I would imagine probably the larger ones, means that we
are just not aware. And that really disturbs me. If we are
moving so quickly down this path where we want to complete
rulemaking here without having the right tools and information.
So, Mr. Chairman, I just have to state that I am very, very
reluctant to see that the administration would move forward,
especially after November. I mean I just think it is
outrageous.
Mr. Green. I think that has been reflected in not only our
line of questions but also in our statements. So thank you. Is
there a response? Because obviously we need to have as quick as
we can. We expect a vote in about 10 minutes.
Mr. Rey. Well, I think I would like to clarify a couple
things for the committee.
Mr. Green. As brief as possible please.
Mr. Rey. First of all, CAFOs aren't all big. Under certain
circumstances, a mom-and-pop operation with less than 300 cows
has been and can be designated as a CAFO. So we are not talking
about a reporting requirement that is only going to apply to
large operations.
Second, many of the data gaps and concerns that we have
been hearing about are concerns related to emissions monitoring
and control through the Clean Air Act, not concerns that are
relevant to a release of a hazardous emission.
To follow Mr. Barrow's analogy, we are not arguing over
speed limits here. We are arguing over a requirement that after
you have a wreck, you call the ambulance company. Presently we
are calling the ambulance company whether we have a wreck or
not, and we have only had one wreck over 5 years.
Mr. Green. The time has expired. Congressman Hall.
Mr. Hall. Thank you, Mr. Chairman. I will try to be as
brief as I can be. Ms. Bodine, I want to ask you, excuse me, a
series of questions, and I would like for your answer to be a
one-letter answer. And I would like for it to begin with a Y
and end with an E--with an S if possible, and not begin with an
N and end with an O. So help me along if you can because I am
up in years, and I don't have much time.
I am one of the few remaining members of Congress who
served as a conferee on the 1986 amendments to CERCLA which
created, as you know, the Emergency Planning and Community
Right-To-Know Act and the emissions reporting requirements that
we are discussing right here today. So correct me if I am
wrong, but didn't we include in that legislation a list of
hazardous substances for which emissions reporting is not
required under CERCLA RFS?
Ms. Bodine. Emissions reporting not required?
Mr. Hall. Yes.
Ms. Bodine. I know there is a list of hazardous substances
for which emissions is required, and there are exemptions. But
I----
Mr. Hall. But we included in the legislation a lot of
hazardous substances for which emissions reporting is not
required.
Ms. Bodine. Okay.
Mr. Hall. They are in there.
Ms. Bodine. Okay.
Mr. Hall. Will you stipulate a yes with me?
Ms. Bodine. I would have to check and answer, but I am
going to take your word for it.
Mr. Hall. Not an irrebuttable yes, but just a soft yes.
Ms. Bodine. Okay.
Mr. Hall. And I am over the first one here. And didn't we
create several exemptions from the definition of the word or
the term release that include one, any release that results in
exposure to persons solely within the workplace, and emissions
from the engine exhaust of a motor vehicle, rolling stock,
aircraft, vessel, or pipeline, pumping station? And I am
reading from the Act.
Ms. Bodine. Yes.
Mr. Hall. And that is good. And I want everyone to
understand I am not trying to speak poorly of the automobile
industry here because I agree with my friend, Mr. Dingell, on
their exemptions. And it is a good thing that automobiles are
exempt from CERCLA law, and I just think we need to make sure
that our farmers are getting a fair deal here as well. I don't
want a yes to that.
That being said, isn't it true that there are many
hazardous substances in automobile exhaust emissions that can
make you very sick or even give you cancer or maybe kill you
like carbon monoxide and oxides of nitrogen?
Ms. Bodine. I don't know the answer because I am not with
the air program.
Mr. Hall. I will stipulate a yes with you ----
Ms. Bodine. You will stipulate a yes.
Mr. Hall [continuing]. And give you a chance to correct it
if you want to later. So we have exempted car and truck owners
from reporting these emissions even though we know they can
make you sick or kill you, in spite of the fact that in our
cities, hundreds of thousands or even millions of these
vehicles emitting these lethal substances may be concentrated
in a very small geographic region and located very close to
millions of people. Easy yes, right?
Ms. Bodine. That----
Mr. Hall. All right, and do you----
Ms. Bodine. There are exemptions from the definition of
release. In the statute, yes.
Mr. Hall. You are doing your best to be helpful.
Ms. Bodine. Yes.
Mr. Hall. And I appreciate it. Do you believe that these
auto exhaust emissions contribute to air pollution in some
areas of the United States where air quality does not meet
Federal Clean Air Act standards?
Ms. Bodine. I can't speak on the clean air program. I would
have to----
Mr. Hall. I will write a yes in there for that. That is
good enough for me. Even though you admit autos pollute the
air, threaten human health, and are now concentrated in very
large numbers in relatively small numbers, do you see the need
for us to modify Superfund and remove the exemptions so that
auto owners would begin reporting their emissions to EPA?
Ms. Bodine. No, I don't see that.
Mr. Hall. That is a no, and that is a good no.
Ms. Bodine. Okay.
Mr. Hall. Now, if your proposed rule moves forward to
exempt large, confined animal feeding operations from reporting
requirements on ammonia and hydrogen sulfide, do you believe
this will weaken your ability in the future to regulate these
emissions if the nationwide testing, now underway on these
emissions, prove you need to regulate CAFO emissions?
Ms. Bodine. No, it won't affect that at all.
Mr. Hall. So no, and I believe all the necessary authority
under the Federal Clean Air Act to regulate as necessary, you
believe you have it, don't you?
Ms. Bodine. The Clean Air Act provides authority.
Mr. Hall. All right, I yield back my time, and I sure do
thank you for those clear and concise answers that you have
given. I yield back my time.
Mr. Green. I thank my colleague from Texas, and I guess it
is a difference between me driving my car and if I drive 1,000
cars and put them all in a barn and run them all day. Our next
questioner is Congresswoman DeGette.
Ms. DeGette. Thank you very much, Mr. Chairman. Just to
refocus the hearing a little bit. We are talking about the
reporting requirements under CERCLA and EPCRA for emissions on
farms of reportable quantities of materials, which is 100
pounds per day. Correct, Ms. Bodine?
Ms. Bodine. Yes.
Ms. DeGette. Thank you. Now, I have in my hand the letter
dated March 27, 2008 that the chairman tried to enter into the
record, and I would hope that the minority would now allow this
to be entered in because it is a letter from Tim Gablehouse,
who is an old friend of mine back from my days of practicing
law, who happens to be the president of the SARA Title III
program officers, which is the state emergency response
commissions, the tribal emergency response commissions, and the
local emergency planning committees, various Federal agencies,
and private industry.
Mr. Chairman, for a long time, I thought Tim was a
Republican, but I now think he might be a Democrat. But, you
know, this is a group of people--it is not a partisan group. It
is a group of officials who are really concerned about the
community's right to know. And they are concerned, when there
are emissions, that the local communities, Commerce City,
Colorado, and some of these smaller communities, that their
local emergency responders can figure out what is happening.
And so therefore they very strongly support reporting, and
what this letter says in the introduction is the NASTTPO
organization doesn't take a position on environmental
compliance record of animal feeding operations, but what they
think is that this proposed rule threatens the integrity of the
accidental release reporting system.
And what they say is EPA misses the point when it says that
first responders rarely respond to releases from farms. They
only respond when they know that the facilities are the source.
And the point that this organization of local responders is
making is that the 911 call that comes in from the member of
the public in the dark of night, that is reporting a foul or
chemical odor, rarely contains the information of the source.
Somebody is sitting at home, they have this smell, and they
call up 911.
And then what happens is the responders are forced to guess
at that source. Immediate release reporting by facilities under
EPCRA provides crucial information to responders, and without
information, responders are forced to blindly drive through an
area, not knowing what they are looking for. Is it a vehicle
accident? Is it a facility release? Or is it something worse?
Is it bioterrorism? And that is why the local responders think
it is so important that these amounts be reported.
And so I guess my question, and anybody who wants to answer
it, Ms. Bodine or Dr. Johnson, whoever. Here is my question.
Don't you think it is relevant that our first responders have
some sense of the source of an odor? Especially if the odor
could be a chemical that is a threat to public health?
Ms. Bodine. I would like to respond to that, and Mr.
Gablehouse's comments are in the administrative record, and of
course they are relevant. And we are considering all comments.
The section that you just read from his comments are confusing
but indicate to me that in fact if the local emergency
responder knew that the source was manure that they wouldn't
respond and that it was the lack of information about the
source that created the uncertainty that is referred to there.
So, of course, if we went final with our proposal to
exempt, then they would know that the source wasn't manure and,
in fact, was something else. These are confusing comments.
Ms. DeGette. That is just absolutely Alice-in-Wonderland
thinking because if somebody smells--if there, in fact, is an
emission that is a reportable emission from a farm, which
frankly, under the law, it is 100 pounds per day. So that is a
lot. Then if you exempt, if the EPA exempts farms, then the
local--but there is still the smell. Even though it is
exempted, it doesn't mean the smell goes away.
So then the people are reporting there is a smell, but if
you have no reporting requirement, then that smell--then the
release hasn't been reported and therefore the local
authorities have no idea where it is from.
Ms. Bodine. Again, I found these comments confusing as to
the point----
Ms. DeGette. Well, have I cleared it up at all?
Ms. Bodine. Because the comments----
Ms. DeGette. If they don't have to report the event, then
the local responders do not know that there has been a release.
So then if a community member calls up and says there is a
smell, they don't know because it hasn't been reported. That is
what Tim Gablehouse is trying to say.
Ms. Bodine. And what is not in the comments is that the
purpose of that report would then lead to a response to an air
emission from manure. There is nothing in the comments that
says that they would respond to release of an emission from
manure.
Ms. DeGette. The other thing, and maybe someone else can
answer this question, is there is actually after that comment
quite a long legal analysis which concludes that under these
two statutes that this rulemaking exceeds the EPA's rulemaking
authority and that it would be arbitrary and capricious. And I
am wondering if EPA or anybody else has had their attorneys
look at this to see if, in fact, this is within the boundaries
of EPA's rulemaking authority.
Ms. Bodine. Yes, of course, our proposed rule went through
our general counsel's office.
Ms. DeGette. I am sorry? Your proposal what?
Ms. Bodine. Our proposed rule went through our general
counsel's office.
Ms. DeGette. And was there a legal opinion on that?
Ms. Bodine. Our general counsels believe we have the
authority to----
Ms. DeGette. Was there written legal opinion on that, Ms.
Bodine?
Ms. Bodine. I would have to----
Ms. DeGette. If you can please check. And if there was, can
you please provide it to this committee within 20 days of this
hearing? Thank you very much. Now----
Mr. Rey. If I might try to----
Ms. DeGette. Sure.
Mr. Rey [continuing]. Elaborate a little bit on----
Ms. DeGette. Yes.
Mr. Rey [continuing]. The quandary I think you are having.
Ms. DeGette. I am not having a quandary.
Mr. Rey. I think one of the things we are finding is that
100 pounds may generate a smell, but it is not going to
generate other significant human health effects.
Ms. DeGette. Well, actually, Mr. Rey, 100 pounds could also
generate particulate matter that might be hazardous to
someone's health.
Mr. Rey. Not on the basis of the data we have seen so far,
and I will submit for the record----
Ms. DeGette. That would be great.
Mr. Rey [continuing]. The analysis on that. So what
responders would be doing is saying, okay, there is a smell,
but it is not the kind of thing that suggests an imminent
hazard that we are going to respond to----
Ms. DeGette. But if you don't----
Mr. Rey [continuing]. Unlike the Excel situation.
Ms. DeGette. If you don't make them report, then they don't
know if there is a problem or not because they don't know where
it is coming from.
I just have one last question, and it is actually for you
because you had testified earlier that these CAFOs are not big,
that they are only 300 cows. So I am wondering if you can tell
me for the record, since the reportable quantity amount for
ammonia and hydrogen sulfide is 100 pounds per day, would that
be generated by a farm with 300 cows?
Mr. Rey. It could be because----
Ms. DeGette. Well, what----
Mr. Rey [continuing]. Size alone isn't a function of----
Ms. DeGette [continuing]. Would the other considerations
be?
Mr. Rey. The most----
Mr. Green. If you will finish very quickly. We have less
than five minutes for a vote.
Mr. Rey. The most important consideration would be whether
the facility is being operated properly. Excel wasn't that big
a facility, but it wasn't operated properly.
Ms. DeGette. So we should exempt them?
Mr. Rey. No, we shouldn't exempt them.
Mr. Green. Okay, Congressman Sullivan, we are going to take
a recess while we can go vote and come back. Or you can do so
right now.
Mr. Sullivan. I can be quick.
Mr. Green. Great.
Mr. Sullivan. Ms. Bodine, we have met before, and you have
been to Tulsa and everything.
Ms. Bodine. Yes.
Mr. Sullivan. And I have written letters to talk about
getting the EPA involved. And we have a problem with the
poultry litter has gotten in our streams and watershed and
lakes. And the city of Tulsa, for example, has to spend upwards
of $100 million just to treat it.
I guess what my question is is that EPA won't get involved
in something because there is a lawsuit going on, and I guess
it is hard for me to understand. I guess EPA--but your
Environmental Protection Agency is for the nation, isn't it,
United States?
Ms. Bodine. Yes, sir.
Mr. Sullivan. Okay, and there are two states having a
dispute right now. I guess it is hard--I guess what is the
criteria--well, here is another example. I had a homebuilder
call me not long ago and said that some people complained
because the silt fences had holes in them and got some dirt in
the stream. And the EPA people from Dallas came up and fined
them.
Ms. Bodine. Um-hum.
Mr. Sullivan. If you entered into a lawsuit with those
neighborhood association that did that, would you not get
involved then in that? Or what kind of level does it take of
polluting someone's water source to get the EPA to actually act
and try to mediate the situation without a lawsuit?
Ms. Bodine. In the instance of your construction facility,
there are storm water requirements that, if the silt fence
wasn't there, weren't being met. In the situation with the
lawsuit by the Attorney General in the state of Oklahoma, it is
my understanding--again this is pollution to water. This
doesn't have anything to do with our release reporting
exemption.
But the release is from what we call non-point sources of
pollution, that means that they are not--they wouldn't be
subject to Federal regulatory authority. But because this is a
water case, I am not the expert on this case. And I would like
to----
Mr. Sullivan. But if someone is dumping tons of animal
waste, chicken, poultry litter and renderings into our water
supply, is that not something that is not considered bad or----
Ms. Bodine. If that is the fact pattern, then I would
assume that would be a discharge. But I would have to go back,
see what the facts are, and then respond.
Mr. Sullivan. So if there wasn't a lawsuit--so it is really
a----
Ms. Bodine. So the question is is there a Federal
regulation----
Mr. Sullivan. But the reason the EPA is not getting
involved in this to mediate between the states in the United
States is because of a lawsuit that is taking place right now?
Ms. Bodine. No, if there was a Federal requirement that
wasn't being complied with, the agency could get involved. The
question, I guess, this is a dispute between two states.
Mr. Sullivan. Well, would contaminating a whole state's
water supply be considered something that----
Ms. Bodine. Depends on whether or not it is regulated,
whether or not it would be from a point source. And that is the
fact pattern that I would need to go back and check.
Mr. Sullivan. But you think contaminating a state's water
supply would be more problematic than a silt fence not being
properly put up? That the EPA would get involved in that but
not in someone--I mean water is a basic----
Ms. Bodine. If the source is from a point source, then EPA
regulations apply. If the source is from a non-point source,
EPA regulations don't apply.
Mr. Sullivan. Do you understand that that would be hard for
someone to understand?
Ms. Bodine. I appreciate that, yes.
Mr. Sullivan. And also, Doctor, what kind of health
concerns are there with abundance of phosphorus and nitrogen in
the water and poultry litter and renderings of chickens and
things like that, blood, all that in the water? We have seen it
causes a smell and all that, but can pfiesteria cause any
problems with the humans?
Mr. Johnson. Again, our agency is assessing chemical
exposure. Obviously pfiesteria and other types of exposures
could be of a health concern. We would have to refer that to
experts at CDC to provide a more formal response to that.
Mr. Sullivan. But as a doctor, would you drink water that
had chicken poop in it?
Mr. Johnson. No.
Mr. Sullivan. No? Do you think that someone that drank
water with chicken poop in it could get sick?
Mr. Johnson. Yes.
Mr. Sullivan. Okay, I appreciate that. Thank you.
Mr. Green. I thank the gentleman. We will stand in recess.
We have one vote in probably about 15 minutes. You can take a
break.
[Recess.]
Mr. Green. The committee will come back into session, and I
want to thank our witnesses. You know one of our jobs is also
to vote on the floor, and every once in a while, we have to do
that. But particularly today since we are considering the CR
and we want to make sure we continue to fund our agencies in
the future.
Congressman Butterfield is not here, and was our last
questioner, but if he comes in, we will obviously give him the
courtesy. I have a few questions to our Assistant
Administrator. In August I went with EPA Region six staff to
visit the San Jacinto waste pits site by boat and received an
update on the site status including a letter sent to potential
responsible party and another party of interest. And I want to
thank the EPA for doing that. Could you briefly provide an
update on any progress since then as such, whether there has
been any progress of the potentially responsible party? And if
it is a lengthy response, could you please respond in writing
and just summarize?
Ms. Bodine. Yes, Mr. Chairman, I would like to respond in
writing so I can make sure I am getting the most up-to-date
information to you.
Mr. Green. Great. Thank you. And I discussed in my opening
statement the impact of Hurricane Ike on the Superfund sites is
a serious concern. How many Superfund sites in Texas and
Louisiana were impacted, potentially impacted by Hurricane Ike?
Ms. Bodine. In Texas, it is 29 NPL sites. In Louisiana, I
believe it is 17. Let me double check that. These are the
facility sites that were in the path of the hurricane.
Mr. Green. Okay, thank you. When will EPA investigate the
sites both in Louisiana and Texas?
Ms. Bodine. In Louisiana, all 17 sites have already been
investigated. In Texas, we have investigated seven of the
sites, and the remaining are scheduled to start actually today,
the remaining investigation. So we expect that work to be done
within the next 10 days.
Mr. Green. What would be the worst case scenario for a
hurricane impact on a Superfund site, such as a hazardous waste
dump impacted by a storm surge?
Ms. Bodine. It is going to depend on how far along a remedy
is at the site. Obviously what we are very concerned about is
that we don't have hazardous substances that have been in
control moving off-site or moving in an uncontrolled situation.
Mr. Green. Okay, when the results of these investigations
are complete, can you provide our committee with a response on
the findings including any recommendations for action to
control the hazardous releases?
Ms. Bodine. Yes, certainly.
Mr. Green. Thank you. There are over 100 Superfund sites in
the United States where human exposure to hazardous waste is
not under control. EPA has been subject to some criticism for
the continued uncontrolled human exposure at these sites. Does
EPA have a national plan to prioritize these sites and address
these uncontrolled human exposures?
Ms. Bodine. Definitely we place a priority on controlling
human exposures.
Mr. Green. Are there any certain types of sites such as
groundwater mitigation or sites in urban areas that are more
likely to be uncontrolled human exposure sites than others?
Ms. Bodine. There are sites where it is easy to cut off
human exposure. You could simply cap or put in a fence because
the standard for whether human exposure is under control is
whether there is exposure. That doesn't mean you have cleaned
the site up, but first and foremost you cut off the exposure.
The sites that are the hardest to do that are sites where the
reason for the human exposure is consumption of fish, and
people are violating fish consumption advisory.
Mr. Green. That brings up a great point, and my concern is
when you instruct the EPA Region six to determine whether the
San Jacinto waste pit site is a source of uncontrolled human
exposure as quickly as possible. And I don't know if you are
familiar with that site.
Ms. Bodine. I have some familiarity with it. I do
understand that the issue there, dioxin and furans, has to do
with the fact that there is fish consumption. And from the
information that I read, which is that people are eating the
fish notwithstanding a fish consumption advisory, that would be
under our guidance not under control. It is the region that
makes that determination. So we can follow up and make sure
that they evaluate that and follow our guidance.
Mr. Green. Okay, thank you, and I appreciate your following
up. And again could you provide the committee with a written
response of EPA's actions in fiscal year 2008 to address the
outstanding number of ongoing human exposure sites?
Ms. Bodine. I would be happy to do that.
Mr. Green. Is that possible?
Ms. Bodine. Yes.
Mr. Green. Ms. Mittal, is there anything else you would
like to add on the proposed rule including whether the EPA
should delay the rule?
Ms. Mittal. I think the points that I made earlier are the
concerns that we have, that EPA should definitely wait until
they have the national air emissions monitoring study
completed, they know actually how many emissions are happening
from these CAFOs, and they also have made some decisions about
what is considered a source for air emissions.
Mr. Green. Okay, USDA, any other comments before I lose my
7 seconds?
Mr. Rey. Again I think the major comment is that question
has just been raised, or questions that are more germane to
regulating CAFO emissions under the Clean Air Act. What we are
talking about here are reporting requirements under CERCLA and
EPCRA, and I don't think we lack the information that we need
to make a determination there. We have 5 years of experience.
Mr. Green. Thank you. My time has expired, and I yield to
the ranking member.
Mr. Shadegg. Thank you, Mr. Chairman. I have actually five
written questions I would like to submit. Most of them are to
Ms. Bodine. As a matter of fact, I think all of them are. And I
will submit those for the record if I might.
I just want to go over a couple of points that have come up
in questioning by the witnesses. First of all, Ms. Bodine or
Mr. Rey, how long is this report? How detailed is the report
that you are proposing not be required to be filed? How
detailed is that? How long is it? How long does it take to fill
it out or could it take? Range of hours, range of minutes,
range of days?
Ms. Bodine. Yes, there is a reporting burden associated
with these reports. It doesn't require monitoring, but it does
require an estimate based on best professional judgment. So the
reporting burden is based on the number of hours, and per
notice, it would be $166.99, so about $167 per notice if they
are reporting.
Mr. Shadegg. And do they have to have equipment to monitor
this?
Ms. Bodine. No, we don't require equipment. We don't
require monitoring. They can use best professional judgment.
Mr. Shadegg. Which is why you said the people who reported
before may have believed they were over the reporting
requirement without necessarily knowing it because they don't
have equipment to know precisely. Is that correct?
Ms. Bodine. That is correct.
Mr. Shadegg. Mr. Rey, do you have a comment on that, on
what is involved in the report?
Mr. Rey. Yeah, just a general comment. We are trying to
bring these facilities into the best air and water quality
compliance possible, and we are imposing a lot of new
requirements on these facilities. So where we can target our
efforts to engage farmers and ranchers in something that is
meaningful, that is where we want to be putting our focus and
not charging them a couple hundred bucks a pop for something
that has proved largely meaningless over a five-year period.
Mr. Shadegg. Good point. Is there a penalty for not--if the
rule EPA proposes is not passed or adopted and the reporting
requirement for emissions from manure remains in place, is
there a penalty for not complying with this report?
Ms. Bodine. Yes. It actually goes up occasionally because
it is adjusted. But yes, there are penalties of $27,000 plus a
day.
Mr. Shadegg. $27,000 plus a day?
Ms. Bodine. That would be the maximum.
Mr. Shadegg. Okay, there is a discussion here that no
government agency knows the size, location or--I am sorry, the
number, size, location of CAFOs. And the GAO report actually
says no Federal agency collects reliable data on CAFOs. It
could not determine the trend of these operations over the past
30 years. Is that correct, Mr. Rey?
Mr. Rey. No. In fact, had we had the opportunity to spend
more time with GAO, we could have given and did give them in
our written comments on their draft report the precise
information that they desired. Moreover, much of that
information is generated by the National Agriculture
Statistical Service. The next Ag census is going out in
February, so if there is information that either EPA or GAO or
HHS wants, we can include that in the next census. We know how
many CAFOs there are. We know which ones are under permit.
Mr. Shadegg. Yes?
Ms. Bodine. And I believe GAO's criticism was that that
wasn't in a database. The CAFOs are regulated under the Clean
Water Act. That information is in the permits, but right now,
we don't have a database with all of that information in it.
Mr. Shadegg. Fair enough. There is some discussion by Ms.
DeGette about exempting farms and about exempting the Excel
Dairy. I am sorry she is not still here, but no witness is
proposing exempting farms or exempting dairies. You are
proposing exempting emissions from manure piles. If, in fact, a
farm or a dairy has an emission of these toxics or these
materials from something else, they have a storage tank on
their facility that emits this kind of pollutant, not an
emission from a manure pile but from some sort of storage tank,
your rule would not exempt the requirement that that be
reported, correct?
Ms. Bodine. Correct.
Mr. Shadegg. Mr. Rey, is that also correct?
Mr. Rey. That is correct.
Mr. Shadegg. So to the extent that Ms. DeGette was
concerned that we were just going to exempt farms or dairies,
at least, Mr. Rey, you were asked, and you said no, you
wouldn't do that. You wouldn't propose doing that, and that is
not what the rule proposes doing, correct?
Mr. Rey. Correct.
Mr. Shadegg. I have one last quick point. It is probably
not a question. But in pursuing regulation--I think, Mr. Rey,
this falls upon your point, if the burden of the regulated
community with reporting what turns out to be useless or
unnecessary information, isn't there a danger that we burden
the system?
For example, I understand there are some 34,000 reports a
year to the Coast Guard currently being filed and that
enforcing this might result in thousands of additional reports
of level exceedences from manure piles, which we would
ascertain have little or no health effects. Would that be
correct, Mr. Rey?
Mr. Rey. That would be correct.
Mr. Shadegg. Ms. Bodine?
Ms. Bodine. Again it would depend on how many of those
facilities were reporting, but yes, it is definitely a
potential for many reports. And that is a cost to the
government as well. Again the cost per notice to the government
is about $40 per notice.
Mr. Shadegg. My last point is Ms. DeGette was also
concerned that we would exempt these reports and that therefore
we would not be forcing an emergency agency to respond. Nothing
in the current law would force an agency to respond. If they
get a report, as Ms. DeGette laid out, of an odor, they can
call an agency, the local responder, local fire department, and
say we have a toxic smell. In the presence of this report or
the absence of this report, they have to make a decision
whether to respond. If there were a report that said we filed a
report, the odor came from manure, that might, in fact,
encourage them not to go respond because they are not worried
about odor from manure piles.
On the other hand, if they called and said you know there
is no report that has been filed from this CAFO saying that
they had an emission, they couldn't rely on that as a reason
not to respond because in point of fact, that might suggest
there is even more danger. Am I not correct? Do you follow my
point, Mr. Rey?
Mr. Rey. I think that is basically correct.
Mr. Shadegg. Maybe it was too complicated. The point is----
Mr. Rey. No.
Mr. Shadegg [continuing]. If anything, a report that the
odor is from a manure pile, I think is going to encourage at
least a first responder type agency to say we are not going to
go do that. We are not going to go look at the manure emission.
Maybe that is Dr. Johnson's problem, you know, and maybe he
wants to know because maybe he wants to find out if there
really are health effects. And it is not a problem that first
responders, I would suggest, are going to run to. Dr. Johnson,
you had----
Mr. Johnson. To add to that, I certainly--as an agency,
when we do assessments, we value the information that the
community needs to have to make their own decisions about their
exposure and their health risks. So we would support those
efforts to inform them. We don't have a formal opinion about
the specific regulations, but it is something we value a great
deal.
Mr. Shadegg. Thank you very much. I yield back my time.
Mr. Green. Ms. Mittal, do you have any quick response to
the GAO?
Ms. Mittal. I do, sir. I continue to be concerned about how
USDA mischaracterized the work that we did, and I want to put
it on the record that we used USDA's census of agriculture data
when we determined the trends in CAFOs. USDA does not collect
information on CAFOs.
What they collect is information on large farms that raise
animals, and we used that information. We worked with their
analysts for over a year, and in the end we provided
information that is a proxy for the number of CAFOs that are in
the United States. There is no Federal database on CAFOs.
Mr. Green. Thank you. Let me reiterate my unanimous consent
request included earlier in the information we provided.
Mr. Shadegg. The only issue is the letter to which Ms.
DeGette referred, which is the letter from Mr.--what is his
name?
Voice. Gablehouse.
Mr. Shadegg. Right, National Association of SARA Title III
Program Officials, a letter from Mr. Gablehouse. I have no
problem putting that in the record. I am a little concerned
that it is a part of all of the comments that were submitted in
the record, and it seems to me if we put this document in the
record--and I have no idea how those comments got--then maybe
we are obligated to put in all of the comments, all the public
comments in the record. If you will stipulate to that, that----
Mr. Green. Yes, just that letter is what I am requesting,
not all the public comments. Ms. Bodine?
Ms. Bodine. We received a lot of comments. That would be a
lot of paper in your record.
Mr. Green. We don't intend to put all the public comments
in the record.
Mr. Shadegg. And I understand you don't. You want to put in
what you like.
Mr. Green. Well, you can put in, and I will agree to put in
what you like.
Mr. Shadegg. Well, why don't we put in--why don't we ask
Ms. Bodine to write a summary of the comments and put that in
the record so it tells us, you know----
Mr. Green. Okay, what I will do, you know, your statement
is already in the record----
Ms. Bodine. Yes.
Mr. Green. --the information. But if the second letter is a
problem, we will pull that out, and I asked for the letter that
both Chairman Dingell and Ms. Solis sent in the third and
fourth and leave out the second.
Mr. Shadegg. I am proposing we put this in and that we put
in a summary of the public comments from Ms. Bodine.
Ms. Bodine. A response is also going to be extremely
voluminous. If we could give your staff a list of comments and
they could pick and choose.
Mr. Shadegg. Well, I will withdraw my objection.
Mr. Green. Okay, no objection. I thank you, and the
committee stands in recess.
[Whereupon, at 12:37 p.m., the Subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mark Johnson, Answers to Submitted Questions
Question Submitted by Hon. John D. Dingell
1. The Minnesota Department of Health (MDH) and the
Minnesota Pollution Control Agency (MPCA) received complaints
from citizens about odors and health effects believed to be
related to hydrogen sulfide emission originating at the Excel
Dairy, Thief River Falls, Minnesota. Self-reported health
complaints include upper respiratory effects (such as nasal
congestion and sore throats), itchy eyes, trouble breathing,
nausea, and headaches.
Are these health complaints consistent with Agency for
Toxic Substances and Disease Registry's findings for health
effects of hydrogen sulfide in its Toxicological Profile for
Hydrogen Sulfide and its Public Health Statement for Hydrogen
Sulfide?
ATSDR response: While these symptoms are not exclusive to
hydrogen sulfide, these types of symptoms (i.e., irritation of
mucous membranes, upper airway irritation) are characteristic
of the effects of exposure to an irritant gas, such as hydrogen
sulfide as addressed in ATSDR's Toxicological Profile for
Hydrogen Sulfide. ATSDR uses a weight of evidence approach in
our health consultation that includes a review of the
environmental sampling data and the reported health impacts to
draw conclusions about health hazards.
Questions Submitted by Hon. Joe Barton and John B. Shadegg
1. In ATSDR's September 19, 2008 letter to U.S. EPA and the
Minnesota Pollution Control Agency, which you and one other
person signed, three recommendations were made. First, Excel
must engage in emissions control measures. Second, Minnesota
and Excelshould coordinate on an air monitoring program - as
part of Minnesota's state airimplementation plan - to assure
emissions control. Third, Execl should restrict access to
lagoons trespassers and children living on-site of the dairy.
No where, was there a comment that Excel needed to file EPCRA
and CERCLA reporting with the National Response Center, or
state and local emergency response planners? Why?
ATSDR response: Since ATSDR and the Minnesota Department of
Health are not regulatory agencies, we are not involved in
evaluating the need to meet the legal requirements under EPCRA
and CERCLA. Our health evaluation is independent of whether the
emissions from Excel may have been determined to have triggered
reporting requirements under those regulations.
2. You testify that mUltiple pathways for release of
contaminants from CAPOs, may expose people to these chemicals
through inhalation of air or dust, direct contact with soil,
ingestion of drinking water, or dermal contact with surface
water. EPA is being accused of somehow trying to let polluters
of the hook. However, EPA is testifying today that it is not
proposing to diminish its ability to respond to these very
threats. In light of the fact that Excel Dairy first came to
Minnesota's attention as a state and federal Clean Air Act law
violator, rather than a CERCLA or EPCRA violator, is the
Federal government loosing its ability to respond to these
kinds of issues by removing a paperwork requirement?
ATSDR response: It is ATSDR's understanding that the
reporting requirements under CERCLA and EPCRA are not based on
predictions of human exposure levels or potential health
impacts. While disclosure of CERCLA or EPCRA violations may be
a factor to trigger further health evaluations, ATSDR does not
use this regulatory criteria as the basis for determining
whether there is or is not a public health hazard.
3. Your testimony admits that ATSDR only performed an
exposure investigation instead of monitoring people in the
community. In addition, your testimony admits that you did not
conduct a formal health study of persons living on or near the
dairy. Simply'put, you base your assertions about the impacts
of Excel's emissions on the description of symptoms your
testimony calls "not inconsistent" with known acute health
affects as well as other assumptions that mayor may not be
relevant - like cloud cover and temperature impacts on air
deposits. In a court oflaw, this kind oftestimony would be
inadmissible as hearsay. Why shouldn't we assume that you made
a leap from one cause to the other effect based solely on air
level data rather than on hard evidence that ATSDR itself
collected?
ATSDR response: The ATSDR Exposure Investigation based its
conclusion that a public health hazard existed on our air
sampling results. These results showed that potential hydrogen
sulfide exposures to people living close to the Excel Dairy
exceeded our acute screening value (70 ppb) and were in the
range of concentrations that have been associated with health
impacts reported in the scientific literature. These findings
justified our conclusions and recommendations. We did include
in the report the fact that community members self-reported
symptoms that are consistent with hydrogen sulfide exposure.
However, our report was not based on a scientific evaluation of
health effects due to exposures from the dairy. Self-reported
health complaints, while relevant to the overall situation,
were not used as the basis of our conclusions.
4. According to Minnesota Public Radio, one explanation for
the high levels of hydrogen sulfide readings from based on a
dispute between Excel Dairy and the Minnesota Pollution Control
Agency in which the dairy claims the state is forcing repair
work on one of its manure basins but won't inspect it form
compliance. In you opinion, is this a plausible explanation as
to why the levels are as high? Doesn't it seem logical that
having properly managed manure system operating is the surest
way to drive down emissions levels?
ATSDR response: ATSDR does not have the information
necessary to respond to these questions. While we understand
that there is a disagreement between Excel and MPCA about what
triggered the releases, we would agree that the solution is to
use best management practices to control the emissions from the
manure treatment system.
5. Five studies -- (1) 2008 Texas A&M study of hydrogen
sulfide emissions on 2,000 head open-lot dairy operation, (2)
2008 Texas A&M study of hydrogen sulfide emissions from a
18,000 head beef cattle lot, (3) 2002 Iowa Department of
Natural Resources assessment of hydrogen sulfide at the state's
largest swine feeding operations, (4) 2004 Iowa State
University study of downwind hydrogen sulfide emissions at six
(6) swine finishing sites, and (5) 2004 American Society of
Agricultural and Biology Engineers hydrogen sulfide study of a
50,000 beef feedlot - each showed that large livestock
operations were not producing amounts of hydrogen sulfide in
excess of state or Federal law or of regulatory The Honorable
Joe Barton and John B. Shadegg (continued) concern. When you
consider the range and the statistically higher amount of
animals involved in the operations sampled for the five (5)
studies cited, is it possible that Excel is an outlier or an
example of poor practices in handling hydrogen sulfide rather
than the norm?
ATSDR response: We approached this assessment the same way
we would for any other chemical emissions from an industrial
source. As stated in our testimony, ATSDR has limited
experience in the assessment of CAFOs. Therefore, we would not
be able to draw conclusions as to how operations at the Excel
Dairy compare to other CAFOs.
6. You mention "restricting access" to Excel's manure
lagoons to prevent on-site children from getting close to them.
Yet, this will not stop air emissions from reaching them. If
you were to dispatch an emergency responder to Excel Dairy to
address high levels of hydrogen sulfide on site, what specific
thing should that responder do to eliminate the harmful impacts
of elevated hydrogen sulfide levels for that child?
ATSDR response: Our recommendation was for Excel to take
action that would prevent children from accessing areas near
the source of the emissions. If a hazardous condition were
identified by an emergency responder, we would expect that the
most appropriate action would be to relocate the child, or any
other exposed individual, to an unimpacted area until the
hazard was mitigated.
7. ATSDR has been involved with assessments at four (4)
other CAFOs and only a few of those had EPCRA implications. How
much hard data does ATSDR have to makeunequivocally statements
about CAFOs and EPCRA?
ATSDR response: ATSDR has not made any statements regarding
CAFOs and EPCRA. Our health assessments have evaluated
available environmental data to determine whether a health
hazard is present.
8. To what extent do local common law nuisance actions
resolve much of this or if we've gone totally Federal in this
area?
ATSDR response: This question requests information that is
outside the scope of ATSDR's investigation.
9. Do you have any information you can share with our
subcommittee regarding the relative volumes of manure livestock
produce when compared to the volume of sewage that is produced
in our cities wastewater treatment facilities?
ATSDR response: ATSDR does not collect or possess
information regarding the volumes of livestock manure and human
sewage produced in the United States.
Questions Submitted by Hon. Bart Stupak
1. In your testimony it was stated that hydrogen sulfide
concentration in outdoor air reached 480 parts per billion
(Ppb). At what level does the agency believe exposure poses a
risk to human health?
ATSDR does not have a bright line that defines a health
hazard. We evaluate the data on a site-specific basis and apply
a weight-of-evidence approach in drawing conclusions about the
presence of a health hazard. This approach is intended to
characterize actual exposures, which includes the consideration
of factors such as the profile of chemical concentrations, the
frequency and duration of exposure, and the presence of
individuals who may be sensitive to the effects of that
exposure. Our initial screening evaluation is a comparison to
the ATSDR Minimal Risk Levels (MRLs). The acute MRL for short-
term exposure (up to 14 days) is 70 ppb. The intermediate MRL
for durations greater than 14 days is 20 ppb. The acute effects
of exposure to hydrogen sulfide (i.e., irritation of upper
respiratory system and mucous membranes) can be triggered
within a few minutes of exposure. Our conclusion of a public
health hazard was based on the magnitude and frequency of the
exceedance of our health-based criteria, in comparison to
health impact data in the scientific literature.
2. Has the ATSDR issued sample data on what the hydrogen
sulfide concentration level was measured at for its indoor
monitors?
ATSDR and the Minnesota Department of Health are preparing
a Health Consultation report that will summarize all of the
data that ATSDR collected during the exposure investigation,
including the indoor sampling results, as well as other
environmental sampling data collected by the Minnesota
Pollution Control Agency (MPCA). ATSDR will provide the
Committee with a copy of that document.
3. Does ATSDR have any ideas on what the sources of
hydrogen sulfide were in regards to Excel Dairy?
ATSDR did not have access to the Excel Dairy property to
perform an independent evaluation of the specific areas of
hydrogen sulfide emissions. However, we know that hydrogen
sulfide gas is generated under anaerobic conditions. It was
reported to us by MPCA that one of the lagoons was highly
anaerobic and did not have an adequate "crust" to prevent air
releases. Therefore, this lagoon was likely to be a significant
source of emissions.
4. What actions need to be taken by EPA and Excel Dairy to
reduce the exposure of Hydrogen Sulfide?
ATSDR is a public health agency that advises EPA, other
regulatory agencies, and facility owners about health concerns
associated with exposure to environmental contaminants. Our
recommendation was to take actions that would result in a
reduction in community exposures to emissions from Excel Dairy.
We would rely on EPA, MPCA, and Excel Dairy to utilize their
technical expertise and authorities to develop and implement a
strategy that would define the specific actions needed to
achieve that goal.
----------
Statement of Hon. John D. Dingell
Mr. Chairman, I commend you and thank you for holding this
hearing. On March 18, I wrote the Environmental Protection
Agency (EPA) about the proposed reporting exemption for air
releases from farms that, among other things, would deprive
local emergency responders and communities of knowledge of
significant releases of ammonia and hydrogen sulfide from large
industrialized animal feeding operations. At that time, I
indicated that the proposed exemption appeared to be ill-
considered and contrary to the public interest. Today, after
reviewing the Government Accountability Office's (GAO) report
and the comments EPA received from the national association
representing Local Emergency Planning Committees and State
Emergency Response Commissions, I can say with certainty that
the Bush Administration's plan to exempt industrial-sized
animal feeding operations from air emissions reporting
requirements is nothing more than a favor to Big Agribusiness
at the expense of the public health and communities living near
these facilities.
One question I asked EPA concerned why it didn't consider
limiting the exemption to so-called family farms rather than
providing an exemption for large corporate concentrated animal
feeding operations. The answer from EPA was that "the Agency's
basis or rationale for proposing the exemption is not dependent
on the size of the farm." EPA also informed me that it was not
aware of any small farm operations that have triggered the
reporting requirements for ammonia and hydrogen sulfide.
Clearly, EPA is not concerned about small farms that most
likely would not have releases of ammonia or hydrogen sulfide
above the reportable quantity limit anyway. This exemption from
long-standing regulations is clearly designed for big
industrialized animal feeding operations such as the ones
identified by GAO that produce more manure annually than the
sanitary waste produced by cities like Philadelphia and
Houston.
EPA, in its own risk assessment for CAFO's in March 2004,
stated that "a dairy CAFO with 1,000 animal units is equivalent
to a city of 164,500 people." We should keep in mind that human
waste is treated before discharge into the environment, but
animal waste is either not treated at all or minimally treated
by virtue of the storage methods used before disposal.
As its rationale for the exemption, EPA has taken the
position that it could not foresee any response action being
taken as a result of a notification of a release of ammonia or
hydrogen sulfide above 100 lbs/day and that requiring
monitoring or recommendations to local officials regarding
evacuations and shelter-in-place would not be a necessary or an
appropriate response to the release of hazardous substances to
the air from animal waste at farms.
The public evacuation of residents living near Excel Dairy
in Minnesota this summer due to hydrogen sulfide releases
entirely undermines EPA's rationale for the exemption. Further,
the national association representing State Emergency Response
Commissions and the Local Emergency Planning Committees told
EPA in March that the proposed exemption "endangers responders
and the public by denying them information they would use to
protect themselves from hazardous chemical releases."
We should let the first responders on the ground make the
judgment whether a response is necessary after a notification
is filed -- not political officials sitting in Washington who
want to do favors for Big-Agribusiness.
I look forward to the testimony of our witnesses.
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Statement of Hon. Joe Barton
Mr. Chairman, thank you for recognizing me for the purposes
of an opening statement and let me congratulate you for an
exceptionally informative and educational hearing on carbon
capture and sequestration. I hope this hearing will be equally
enlightening.
As I listen to the testimony and analyze the issue before
us today, the most important thing to me is not whether we have
multiple laws and regulations covering a specific area, but
that the law we have works and helps protect people. We need to
ensure that the target audience that the law is addressing is
not confused or unnecessarily burdened with activities that
sideline their efforts, especially when certain requirements
make busy work for bureaucrats and do not enhance the ability
to respond to or contain these releases.
I think we all agree that the intention of EPCRA is to have
communities ready to respond and abate environmental releases
of hazardous substances. However, it's equally important that
we understand who the primary audience is that these laws speak
to and that is the state and local emergency planning
commissions. We must make sure these folks have practical
information to know what is on site so they have a plan to
handle an unplanned, finite release of a hazardous substance.
I applaud EPA for taking the very narrow and targeted steps
that it has in its rulemaking to lift a CERCLA and EPCRA
administrative reporting requirement from livestock farms whose
source of hazardous air emissions - as defined in law - is
solely from animal waste at that farm. This proposal does not
alter, affect or diminish U.S. EPA's authorities to respond to
hazardous substances, cleanup or compel cleanup of hazardous
waste sites, relieve anyone of liability for environmental
damage caused by these releases, or change any other provisions
of the CERCLA or EPCRA.
I understand that GAO is going to argue that well-managed
manure on a farm is not a threat to the environment or public
health and poorly managed manure is a problem EPA's proposed
rule allows it to combat. In fact, I am not aware of a single
CERCLA or EPCRA enforcement case against a farm where some
other environmental violation was not implicated - whether the
Solid Waste Disposal Act, the Clean Water Act, or the Clean Air
Act. This includes Excel Dairy, for which EPA filed a Notice of
Violation under the Clean Air Act long before EPCRA and CERCLA
reporting issues were raised.
I know some of my colleagues think that we should not be
absolving farms of a paperwork requirement whose burden, in
this circumstance, does nothing to clean the environment or
improve public health. I only ask them to consider to what end
this report is necessary?
First, the National Response Center, who is charged with
taking these phone calls, already fields more than 33,000 calls
per year for releases in which there is a defined way to abate
the threat - or more than 92 calls per day. If you add large
livestock operations on the assumption that they have lots of
manure and flatulence - this call center would be getting more
than 8,000 calls per day. Second, once it gets these calls --
or the local or State emergency planning official receives the
repeated filings, they have to consider how to respond. I am an
engineer, but short of outsourcing our milk and meat to others,
I have no idea what the proper remedy is for removing the smell
of livestock flatulence from the open atmosphere. As I said at
our November 2005 hearing on this subject, folks don't need to
phone call or a stack of forms to know that livestock eat and
create wastes, all they need is their nose.
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
understand that there are serious health issues involved when
bad actors are allowed to free-lance. I want to hear from our
witnesses what gaps in public health protection exist if the
EPA proposal is adopted. We must make sure that our environment
is safe and clean and that our businesses are good neighbors to
each other. But, as we heard in our first subcommittee hearing
this Congress, we should also use common sense with our
programs and make decisions that achieve results, not just
squander public resources in the name-only of the public's
good.
I want to thank the witnesses for coming to testify today
and yield back my time.
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Statement of Hon. Bart Stupak
Thank you, Chairman Green, for holding this hearing on the
Environmental Protection Agency's (EPA) proposed reporting
exemption for air releases of hazardous substances, including
ammonia and hydrogen sulfide, from animal waste.
This proposed rule has raised a number of concerns in
regards to whether the proposed exemption would significantly
weaken the EPA's capability to enforce effective air quality
standards for Concentrated Animal Feeding Operations (CAFO).
In addition, the Government Accountability Office report
issued to the Committee for this hearing, states "no federal
agency collects consistent, reliable data on CAFOs."
Before the EPA moves forward on a proposed exemption for
reporting, it is important that this issue of consistent
reliable data gathering is resolved first.
The regulatory authorities must work with accurate and up
to date information. That way, should we consider exemptions to
reduce the burdens of compliance, we know exactly what the
implications can be.
In addition, consistent and reliable data made available to
the public will provide them the tools they need to stay
informed about potential public health safety risks.
I look forward to learning how the EPA arrived at its 2007
proposed rulemaking on exemptions for air releases of hazardous
substances from animal waste under the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA) and the Emergency Planning and Community Right-to-Know
Act (EPCRA).
I understand the need to ensure regulations are flexible
for small businesses. Often regulations enacted here in DC need
to be modified after implementation to address the unique needs
of rural communities like those in Northern Michigan.
However, the proposed rule making is much broader in its
scope. It appears that the EPA is seeking to exempt the
industry from compliance before it actually has to comply.
What methodology did the agency use when crafting this
rulemaking? What thresholds were met for the agency to consider
exemptions?
Exempting any industry from reporting the release of any
hazardous substance that is a human toxin sets a precedent.
While this hearing is focused on reporting requirements for air
quality, I am personally concerned on what the future may hold
for reporting requirements with water quality.
Strict water quality regulations and reporting requirements
are essential to maintaining the health of the Great Lakes.
I am also concerned with the timing of finalizing this
proposed rulemaking being as how we are nearing the end of this
Administration's term.
Chairman Green, thank you again for holding today's
hearing. I look forward to learning more about the EPA's
proposal.