[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
----------------------------------------------------------------------
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Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
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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

                              ----------                              
                                                                   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.
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                   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.
                              ----------                              


                     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.

                                 
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