    [Senate Hearing 111-1028]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 111-1028

                          OVERSIGHT HEARING TO EXAMINE
                  THE IMPACT OF EPA REGULATION ON AGRICULTURE

    =======================================================================

                                    HEARING

                                   before the

                           COMMITTEE ON AGRICULTURE,
                            NUTRITION, AND FORESTRY

                              UNITED STATES SENATE

                         ONE HUNDRED ELEVENTH CONGRESS

                                 SECOND SESSION

                                   __________

                               SEPTEMBER 23, 2010

                                   __________

                           Printed for the use of the
               Committee on Agriculture, Nutrition, and Forestry

            Available via the World Wide Web: http://www.fdsys.gov/

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               COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY

                     BLANCHE L. LINCOLN, Arkansas, Chairman

    PATRICK J. LEAHY, Vermont            SAXBY CHAMBLISS, Georgia
    TOM HARKIN, Iowa                     RICHARD G. LUGAR, Indiana
    KENT CONRAD, North Dakota            THAD COCHRAN, Mississippi
    MAX BAUCUS, Montana                  MITCH McCONNELL, Kentucky
    DEBBIE STABENOW, Michigan            PAT ROBERTS, Kansas
    E. BENJAMIN NELSON, Nebraska         MIKE JOHANNS, Nebraska
    SHERROD BROWN, Ohio                  CHARLES GRASSLEY, Iowa
    ROBERT CASEY, Jr., Pennsylvania      JOHN THUNE, South Dakota
    AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
    MICHAEL BENNET, Colorado
    KIRSTEN GILLIBRAND, New York

                   Robert Holifield, Majority Staff Director

                        Jessica L. Williams, Chief Clerk

                Martha Scott Poindexter, Minority Staff Director

                    Anne C. Hazlett, Minority Chief Counsel

                                      (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page

    Hearing(s):

    Oversight Hearing to Examine the Impact of EPA Regulation on
      Agriculture....................................................     1

                                  ----------

                         Wednesday, September 23, 2010
                        STATEMENTS PRESENTED BY SENATORS

    Lincoln, Hon. Blanche L., U.S. Senator from the State of
      Arkansas, Chairman, Committee on Agriculture, Nutrition and
      Forestry.......................................................     1
    Chambliss, Hon. Saxby, U.S. Senator from the State of Georgia....     5

                                    Panel I

    Jackson, Hon. Lisa P., Administrator, U.S. Environmental
      Protection Agency, Washington, DC..............................     8

                                    Panel II

    Hillman, Rich, Vice President, Arkansas Farm Bureau, Carlisle,
      Arkansas.......................................................    31
    Vroom, Jay, President and Chief Executive Officer, Croplife
      America, Washington, DC........................................    32
    White, Jere, Executive Director, Kansas Corn Growers Association,
      Barnett, Kansas................................................    34
                                  ----------

                                    APPENDIX

    Prepared Statements:
        Grassley, Hon. Chuck.........................................    46
        Hillman, Rich................................................    47
        Jackson, Hon. Lisa P.........................................    54
        Vroom, Jay...................................................    66
        White, Jere..................................................    75
    Document(s) Submitted for the Record:
        Holiday Shores Subpoena......................................    82
    Question and Answer:
    Lincoln, Hon. Blanche L.:
        Written questions to Hon. Lisa P. Jackson....................    92
    Chambliss, Hon. Saxby:
        Written questions to Hon. Lisa P. Jackson....................    94
    Gillibrand, Hon. Kirsten:
        Written questions to Hon. Lisa P. Jackson....................    99
    Grassley, Hon. Charles E.:
        Written questions to Hon. Lisa P. Jackson....................   104
    Johanns, Hon. Mike:
        Written questions to Hon. Lisa P. Jackson....................   102
    McConnell, Hon. Mitch:
        Written questions to Hon. Lisa P. Jackson....................   100
    Nelson, Hon. E. Benjamin:
        Written questions to Hon. Lisa P. Jackson....................    95
    Roberts, Hon. Pat:
        Written questions to Hon. Lisa P. Jackson....................   102
        Written questions to Jere White..............................   148
    Jackson, Hon. Lisa P.:
        Written response to questions from Hon. Blanche L. Lincoln...   108
        Written response to questions from Hon. Saxby Chambliss......   114
        Written response to questions from Hon. Kirsten Gillibrand...   127
        Written response to questions from Hon. Charles E. Grassley..   141
        Written response to questions from Hon. Mike Johanns.........   137
        Written response to questions from Hon. Mitch McConnell......   130
        Written response to questions from Hon. E. Benjamin Nelson...   120
        Written response to questions from Hon. Pat Roberts..........   135
    White, Jere:
        Written response to questions from Hon. Pat Roberts..........   149

                         OVERSIGHT HEARING TO EXAMINE

                  THE IMPACT OF EPA REGULATION ON AGRICULTURE

                                  ----------

                          Thursday, September 23, 2010

                                  United States Senate,
             Committee on Agriculture, Nutrition, and Forestry,
                                                         Washington, DC
        The Committee met, pursuant to notice, at 2:44 p.m., in
    Room SR328A, Russell Senate Office Building, Hon. Blanche
    Lincoln, Chairman of the Committee, presiding.
        Present or submitting a statement: Senators Lincoln,
    Conrad, Stabenow, Nelson, Klobuchar, Chambliss, Roberts,
    Johanns, and Thune.

      STATEMENT OF HON. BLANCHE L. LINCOLN, U.S. SENATOR FROM THE
        STATE OF ARKANSAS, CHAIRMAN, COMMITTEE ON AGRICULTURE,
                         NUTRITION AND FORESTRY

        Chairman Lincoln. Good afternoon. The Senate
        Committee on Agriculture, Nutrition and Forestry will now
    come to order.
        I am pleased to hold this hearing, examining the impact of
    the Environmental Protection Agency's regulation of farmers and
    ranchers.
        As always I am delighted to be joined by my good friend and
    ranking member Senator Chambliss who I know had other things he
    has been at and may have to leave for as well but I am so proud
    that he is here today and grateful for his sharing of my
    passion and commitment for farmers, ranchers and certainly
    rural America. He serves us all well. I am glad he is here.
        Several excellent witnesses will provide testimony today,
    and I would like to first extend a special thanks to fellow
    Arkansan, Mr. Rich Hillman. To be here with us today Rich is
    missing the first day of a two-day meeting of the Board of
    Directors of the Arkansas Farm Bureau.
        So, Rich, I appreciate you for being here.
        We will also hear from Mr. Jay Vroom, who is the President
    and Chief Executive Officer of Croplife America; and, of
    course, Mr. Jere White, who is Executive Director of the Kansas
    Corn Growers Association.
        Finally, a very special thanks to you, Administrator Lisa
    Jackson, from the Environmental Protection Agency for coming
    before us and appearing before the Committee today.
        Administrator Jackson, I know you and your team have been
    extremely busy in these last several months as we mentioned
    back here, responding to this spill in the Gulf of Mexico. We
    appreciate that, and we appreciate you making time to be with
    us today.
        As a farmer's daughter I learned first-hand from farmers
    and ranchers and foresters who are the best stewards of our
    land. I have never known a better conservationist than my dad
    who had a tremendous respect for the land and a great love for
    it as well.
        It provided for us with the safest, most abundant, and most
    affordable supply of food and fiber in the world, and they have
    done it for generations.
        This could not happen without the careful stewardship of
    their land. In fact, much of the conservation gains that have
    been made over the past half century have been achieved through
    voluntary, incentive-based cost sharing programs, many of which
    were developed on a bipartisan basis by members of this
    Committee both past and present. Truly remarkable improvements
    have been made in reduced soil erosion, improved water and air
    quality, and wildlife habitat restoration.
        To my point I would suggest that any of you all that might
    think about it pick up a copy of the Worst Hard Times. It is a
    story about the dust bowl days to really get a sense of where
    we have been and where we are today thanks to a collaborative
    effort between farmers, ranchers, and those who really
    understand production agriculture in Congress.
        As one who has been a part of this progress, it has been my
    experience and it is certainly my judgment that the carrot has
    time and time again proved mightier than the stick when it
    comes to advancing important conservation and environmental
    objectives on farms, ranches, and forest land.
        Unfortunately farmers and ranchers in rural Arkansas and
    all over on our Nation are increasingly frustrated and
    bewildered by vague, overreaching and unnecessarily burdensome
    EPA regulations. Farmers face so many unknowns, so many that
    many of us just take for granted. The last thing they need is
    regulatory uncertainty.
        Producers are subject to the whims of the commodity markets
    and the weather, just to name a few. A sudden shift in price or
    a wet summer can devastate a farmer and drive him out of
    business.
        In the face of these stark realities, our farmers, ranchers
    and foresters need clear, straightforward, and predictable
    rules to live by that are not burdensome, duplicative, costly,
    unnecessary or, in some cases, just plain bizarre.
        Farmers and ranchers do not have an army of environmental
    engineers, lawyers, and regulatory compliance specialist on
    their speed dial.
        I do not know but I spent a great deal of time in a pickup
    truck with my dad who had a small binder up above the visor on
    his car or his truck, and that is how he kept up. He did not
    have a computer. Many farmers still do not have computers on
    board with them in those trucks and cars to be able to figure
    out what it is that is being asked of them and try to decipher
    it on their own without a tremendous number of engineers or
    lawyers or others.
        Compliance obligations that may seem simple to a career
        bureaucrat in Washington, DC, are often complex, they are
    ambiguous, and in the end leave farmers and ranchers feeling
    tremendously uncertain and exposed to steep fines they simply
    cannot afford in this economic environment.
        I urge everyone to give thought to the following. Right now
    at a time when every American feels anxious about his or her
    own economic future and the economic future of the country, our
    farmers, ranchers, and foresters are facing at least a dozen, a
    dozen new regulatory requirements, each of which will add to
    their cost making it harder for them to compete in a world that
    is marked by stiff and usually unfair competition.
        And most, if not all, of these regulations rely on dubious
    rationales, and as a consequence, will be of questionable
    benefit to the overall goal of conservation and environmental
    protection.
        There is no question that our farmers and ranchers want to
    do what is best for the environment. They ask that you do not
    lower your expectations of them but simply give them goals that
    they can reach and still continue to produce a safe and
    affordable and abundant supply of food and fiber.
        They ask that you work together with agriculture community
    to set these common sense goals instead of using the command
    and control top down approach that this Administration has
    relied on so far.
        In a moment I will talk about two issues that are prime
    examples of this Administration's overreaching approach to
    regulation. But I would be remiss if I did not mention several
    other issues that really do concern me.
        EPA's recent proposed spray drift guidance, as I have
    indicated in a letter to the Administrator, was vague,
    unenforceable, and would have left producers uncertain about
    whether they were complying within the law when they sprayed.
        I was initially informed that EPA decided to reconsider the
    proposed spray drift guidance. Though more recently I have now
    heard that EPA plans to stick with its initial proposal. This
    troubles me because, as I stated before, the proposed standard
    is completely unworkable.
        Now as chair of the Senate Committee on Agriculture,
    Nutrition, and Forestry, I do not know what to expect or to
    understand or to encourage growers across this Nation as to
    what they can expect. You can imagine the concern and the
    confusion among our farmers and ranchers and foresters in this
    country not knowing what it is they can anticipate.
        I am also concerned about EPA's recent practice of settling
    Clean Water Act lawsuits while only allowing environmental
    groups a seat at the table. I believe, as I always have, in
    whatever issue we are dealing with all stakeholders should have
    a seat at the table when so much is on the line.
        Also the Administrator's goal of expanding the use of
    renewable energy is being undermined by EPA's proposed boiler
    MACT which would inhibit the use of biomass by subjecting new
    facilities to needlessly expensive emission controls. This
    regulation would also impose new costs on the Nation's paper
    industry which currently relies on biomass for two thirds of
    its energy.
        Then there is EPA's proposed ambient air quality standards
    for particulate matter which could lead to stringent
    regulations of dust on farms. Folks, dust is a fact of life in
    rural and agricultural areas of the United States. Trucks,
    combines, livestock, they all kick up dust during the course of
    normal farming operations. EPA must use common sense when
    setting these types of standards.
        Finally, I flat out disagree with EPA's regulation of
    greenhouse gases. Because the legal foundation for the
    tailoring is shaky at best probably, I fear that federal courts
    will order EPA to regulate small sources of greenhouse gases.
    This could mean unnecessary regulation for thousands of farms
    all around the country.
        We cannot allow this to happen, and as I have said time and
    again, it should be Congress, not unelected bureaucrats, who
    should be writing the laws to regulate greenhouse gases.
        Now, just to talk about two issues in greater detail, the
    first involves EPA's development of Clean Water Act permit
    requirements for pesticide applications.
        What is most frustrating to me about this development is
    that the pesticide applications will unnecessarily regulate
    twice, once under FIFRA and again under the Clean Water Act.
        I firmly believe that as long as a FIFRA registered product
    is applied in accordance with its label and any other
    conditions, then we should not be requiring unnecessary,
    duplicative regulatory burdens.
        The Clean Water Act requirements for pesticide applications
    have also created incredible uncertainty and concern for
    producers, especially rice producers in our State of Arkansas.
        Growers are suddenly forced to make a choice between either
    potentially seeking an expensive permit that requires onerous
    record keeping and other obligations and yet does nothing for
    the environment that FIFRA does not already do for spraying
    without a permit and be potentially subject to Clean Water Act
    citizen suits and enormous civil penalties. It is simply a
    choice that our farmers and ranchers and foresters should not
    have to make.
        For these reasons, Ranking Member Chambliss and I
    introduced S. 3735, a bill that would clarify that a Clean
    Water Act permit is not required if a pesticide is applied in
    accordance with FIFRA. It is my hope that we could find a way
    to pass this legislation as soon as possible.
        Second issue, one unique to my home State of Arkansas, and
    I appreciate the Committee bearing with me, is EPA's rush to
    establish a total maximum daily load for the Illinois River
    before the State of Oklahoma revisits its phosphorous standards
    for the river. Common sense would seem to suggest that Oklahoma
    should revisit its phosphorus standards before EPA takes
    action.
        I am also concerned by multiple reports from poultry
    farmers in the northwest part of our State indicating a lack of
    clarity regarding their obligation under the Clean Water Act. I
    cannot emphasize enough that poultry farmers are not power
    plants or large manufacturing facilities. They do not have
    lawyers and engineers on staff. They do not sit around sipping
    coffee, parsing and debating the finer points of the Clean
    Water Act or the Supreme Court jurisprudence on the meaning of
    the term ``waters of the US''. They need guidance and a clear
    set of expectations, and it is EPA's job to provide it.
        As we work to create jobs and put our economy back on
    track, I know, I hope and believe that with all of our
    objectives here working together we must give folks in rural
    America the certainty they need to be successful. Overreaching,
    burdensome regulations from the EPA create huge uncertainties
    for our farmers and ranchers and put our Nation's food supply
    at risk.
        I hope that we can use today's hearing to discuss how we
    can create a more collaborative relationship between the EPA
    and American agriculture.
        I again want to thank you all for being here. I appreciate
    Administrator Jackson for being here and look forward to being
    able to work to find some kind of common ground here that makes
    sense to people in rural America and those that do produce for
    us the safest, most abundant, and affordable supply of food and
    fiber in the world.
        So I will now turn to our Ranking Member, Senator
    Chambliss, for his opening statement.

    STATEMENT OF HON. SAXBY CHAMBLISS, U.S. SENATOR FROM THE STATE
                               OF GEORGIA

        Senator Chambliss. Thank you very much, Madam Chairman, and
    let me just say at the outset that after what your Razorbacks
    did to my Bull Dogs last Saturday----
        Chairman Lincoln. I was not going to mention that. You
    brought that up.
        Senator Chambliss. I have every reason to be upset with
    everybody in Arkansas.
        [Laughter.]
        Senator Chambliss. Since we do not play you all for two
    more years, it is going to take me two years to get over it.
        [Laughter.]
        Chairman Lincoln. We went pretty easy on you.
        Senator Chambliss. If you did not care who won, it was an
    exciting football game.
        Thanks for your comments and likewise you are a great
    partner here and with all the complex and difficult issues that
    face American agriculture, we have had a great working
    relationship and we are continuing down the road on this very
    sensitive issue, and for that I thank you for holding this
    hearing on this important and timely topic.
        Administrator Jackson, I thank you for coming before the
    Committee today. I realize that your time obviously is very
    valuable.
        I hope that I, along with my colleagues on both sides of
    the aisle and from every region of the country, can impress
    upon you just how serious our concerns are with the
    Environmental Protection Agency. Really all of rural America is
    concerned.
        As we open this discussion, let me say from the outset that
    I am not here to complain that agriculture is being unfairly or
    is being picked on or unfairly targeted by this Administration.
    However, I do think it is fair to say that we are here to talk
    about an approach to government regulation and several specific
    regulations that will have a pivotal impact on the future of
    the agricultural sector in America.
        A few weeks ago, Secretary Vilsack unveiled two USDA
    reports that show that the U.S. agriculture sector is improving
    and exports are growing. After declining more than 20 percent
    in 2009, farm sector earnings have experienced a rapid rebound
    in 2010 and are forecasted to rise even higher by the end of
    this year.
        The secretary also announced that agricultural exports are
    projected to reach $107.5 billion with an $11 billion increase
    over this year. These figures make 2010 the second highest year
    on record. That is great news for agriculture. I wish it were
    true for the rest of our economy.
        But as we think about this news, the question we then ask
    is what impact are EPA's regulatory plans going to have on
    future opportunities for growth. Specifically, will the
    regulations help or hinder these opportunities and the jobs,
    investment, and income that come with them.
        Given the regulatory issues before us, particularly the one
    cited by the Chairman, I believe along with many of my
    colleagues around this table that the agency's plans will
    hinder growth in agriculture in rural America.
        By my count there are more than 20 different efforts
    underway at EPA that affect agriculture and the farmers,
    ranchers, foresters, agribusinesses and rural communities of
    this country.
        Let me just list a few of them for you. Clean Water Act
    permits for pesticide applications. Next April EPA will impose
    a completely unnecessary paperwork burden on pesticide users by
    requiring a national pollutant discharge elimination system
    permit for pesticide applications. This requirement will add
    zero protection for the environment.
        Under this framework, more than 5.6 million pesticide
    applications will need to be permitted because the agency
    refused to defend its well considered 30-year-old policy in
    this area.
        Next, atrazine. Last year EPA decided to re-review
    atrazine. This was shocking since there was no scientific
    reason for it, especially since EPA had finished a
    comprehensive review of atrazine in 2006 and is scheduled to
    begin the re-registration process in 2013. EPA's own Scientific
    Advisory Panel has questioned the agency's motive for a second
    review.
        Next, numeric nutrient criteria. EPA's plan to set criteria
    for Florida's streams, rivers, and lakes is astonishingly
    expensive. In fact, the estimated initial cost just for
    agriculture is anywhere from $855 million to more than $3
    billion. This effort has been highly criticized for lack of
    correlation between the proposed criteria and the desired
    condition of these waters.
        But this is not just about Florida. This precedent set in
    Florida will affect the entire country. EPA has one chance to
    get it right.
        Next, CAFOs. EPA will begin to expand the Concentrated
    Animal Feeding Operation program next summer to require permits
    for all small and medium operations and to develop more
    aggressive nutrient management plans for all sizes of farms.
    This expansion is due to a settlement agreement with an
    environmental litigant which is a very poor way to set policy
    and is based upon a questionable interpretation of the law.
        Next, greenhouse gas regulations. The EPA suite of
    regulations would drive up costs for all energy users, bring
    large and small agribusinesses into a permitting program, and
    within a few years require large farms to obtain air permits.
        In addition, EPA's treatment of biomass emissions in its
    tailoring rule contradicts long-standing US policy. The
    uncertainty created by this rule is sidelining investment in
    biomass power something this Administration has made a priority
    in its green energy agenda--and threatening the viability of
    existing biomass energy production facilities.
        Next, risk assessment for dioxin. Exposure to dioxin has
    declined by 90 percent over the past two decades. This is a
    victory. Unbelievably at the very same time, however, EPA is
    contemplating setting a standard lower than every other
    developed nation. This would mean that no food, which is the
    primary source of dioxin exposure, would be safe. This defies
    rational science and all common sense.
        Why does all of this matter? Because we need American
    agriculture not just to feed Americans but to feed the world.
    The Food and Agriculture Organization, FAO, recently projected
    the world population will rise from 6.8 billion today to 9.1
    billion people by 2050.
        In short, the world will need to produce 70 percent more
    food to feed an additional 2.3 billion people. Nearly all of
    the population growth will occur in developing countries. At
    the same time, food producing nations like the United States
    will need to take a leadership role in combating poverty and
    hunger using scarce natural resources more efficiently and
    adapting to a changing climate.
        While the FAO is cautiously optimistic about the world's
    potential to feed itself by 2050, I seriously question whether
    anyone has made the connection between the central role that
    America must play to solve this challenge and the regulations
    that EPA has put forth for agriculture, the very industry that
    will be responsible for the solution.
        No one disputes the need or desire for clean air and water,
    bountiful habitat, and healthy landscapes. We all believe in
    that. But at some point, which I believe we are getting
    dangerously close to, regulatory burdens on farmers and
    ranchers will hinder rather than help them become better
    stewards of the land and more bountiful producers of food,
    fiber, and fuel.
        Administrator Jackson, you as the leader of EPA, are the
    one to make this connection along with Secretary Vilsack. It is
    you that must take this to your colleagues in the
    Administration and ask the hard questions about this approach
    to agriculture. I hope this hearing helps motivate you to do
    exactly that.
        In a spirit of cooperation, let me close with this final
    thought. These issues are not going away. They must be
    addressed in a reasonable manner. We have a choice. The
    agriculture community can fight regulation by regulation or we,
    Congress, the Administration, and the agricultural sector can
    work together on a sensible approach that harnesses the
    innovation, productive capability, and natural resource base of
    America to improve the future of our country and our neighbors
    around the world. It is my hope that this hearing will open the
    door to do just that.
        Thank you again, Madam Chairman, for holding this timely
    hearing, and I look forward to the Administrator's testimony.
        Chairman Lincoln. Thank you. I appreciate your closing
    comments, and in the good spirit of what we did on nutrition is
    a great opportunity in this Committee to work in a bipartisan
    way and with the Administration and the industry to really find
    those kind of common sense solutions to the problems that we
    might face. So I thank the Senator for reminding us where we
    have come from and where we have to go.
        We have two panels that we are anxious to hear from today.
    In the interest of time, any Senator I would hope that you all
    would, if you want to just submit your opening statements for
    the record, I know people are wanting to get out of town too so
    we will move on.
        We would like to welcome EPA Administrator Lisa Jackson.
    Before becoming EPS's Administrator, Ms. Jackson served as
    Chief of Staff to New Jersey Governor Jon Corzine and
    commissioner of the State's Department of Environmental
    Protection.
        Prior to joining DEP, she worked for 16 years as an
    employee of the U.S. EPA. She has been working tirelessly in
    the Gulf and I know that is certainly something of great
    importance to her as I believe you were born or raised in New
    Orleans so it is hometown territory for you and I know it is
    work that you hated to have to do but enjoyed being there to be
    able to see all the things that you could accomplish in
    reviving the Gulf.
        Administrator Jackson, we look forward to your remarks.
    Your written testimony will be submitted for the record and I
    ask that you keep your remarks hopefully to as close to five
    minutes as you can. Thank you.

        STATEMENT OF HON. LISA P. JACKSON, ADMINISTRATOR, U.S.
            ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, DC

        Ms. Jackson. Thank you.
        Chairwoman Lincoln, Ranking Member Chambliss, members of
    the Committee, thank you very much for inviting me to testify.
        I am pleased to talk with you about EPA's mission to
    protect human health and the environment and the interaction
    with the agriculture community. Farmers and ranchers are an
    essential part of the American economy. They provide us with
    food, fiber, and fuel. The agriculture community should be
    credited with taking significant steps to protect the
    environment while finding innovative ways to feed millions of
    people.
        I recognize that there are concerns in the agriculture
    community about EPA's activities. Two weeks ago I was in
    Americus, Georgia, where I heard directly from local farmers
    about the challenges they and their families face and how they
    are attempting to deal with environmental issues.
        The slim margins on which farmers operate, the inability to
    pass along the cost of environmental improvements, and their
    vulnerability in a difficult economy was obvious and a critical
    considerations in working with agriculture.
        At the same time that we are hearing concerns from farmers,
    they are also expressing their willingness to engage with us on
    environmental challenges. American farmers have made
    substantial contributions to protecting the environment from
    practices that reduce risk from pesticide use in fruit orchards
    and vegetable fields to conservation efforts to protect water
    quality in regions such as the Chesapeake Bay. While much has
    been accomplished, too much remains to be done to protect our
    air and water as the population and development increases.
        As EPA Administrator I made a commitment to protect the air
    we breathe, the water we drink and use to irrigate our land and
    to protect the land that is our heritage and our children's
    inheritance.
        I pledged to uphold the law, use the best available
    science, and be transparent in our decision-making at EPA. A
    recent example of EPA's commitment to those principles came
    during the RFS2 rule making. Congress directed EPA to conduct a
    life cycle analysis for biofuels. EPA's initial proposal in the
    spring of 2009 was based on science as we knew it at that time.
        We opened our analysis to comments from the public and
    industry as well as an independent science review, and I sent
    senior staff to Iowa so that they could meet with farmers and
    researchers.
        Based on the vast amount of new information received and
    analyzed, we came to a substantially different conclusion than
    our initial proposal. Throughout that process we demonstrated
    our willingness to engage with the public to carry out our
    responsibilities, to make complex decisions under the law, and
    to ensure that we follow the current science.
        Taking the time to solicit ideas directly from farmers and
    listening to their concerns is major priority for me. I have
    co-hosted a series of meetings with Secretary Vilsack at which
    we met with producers and their representatives from the
    commodity, livestock, and specialty crops sectors.
        These meetings were candid and wide-ranging conversations
    with farmers and ranchers where I heard their concerns
    firsthand. I also heard about the remarkable things they and
    their neighbors are doing across the country in large and small
    operations to protect our land, water, and air.
        As a product of what we learned in those meetings, I have
    asked my staff to initiate two important discussions with
    agricultural stakeholders.
        First, I am asking our Office of Air and Radiation to carry
    out an extensive effort to solicit information about the issues
    associated with PM10, the dust issue, and its implication for
    rural communities and agriculture before we make any proposal
    on this issue.
        Second, I am asking our Office of Enforcement and
    Compliance Assurance to convene a discussion with agricultural
    and other stakeholders to foster better understanding and
    communication around EPA's enforcement operations and to
    discuss options for increasing the ability of agriculture to
    protect the environment. By providing these opportunities, I
    hope to demonstrate EPA's commitment to engaging directly with
    the agriculture and rural communities.
        EPA has also been making direct and substantial investment
    in the farm communities' efforts to find and implement
    environmentally sound practices.
        During my time so far at EPA, the agency has provided
    approximately $190 million in grants in direct support for
    critical agricultural projects across the United States. Our
    investment is as diverse as the range of issues that farmers
    must grapple with.
        For instance, we have provided grants to states for work to
    protect Lake Champlain's watershed, to reduce insect resistance
    for crops in the southwest United States, to help farmers adapt
    variable rate technologies in Ohio.
        In many of these efforts, EPA funds have been used along
    with USDA funds such as EPA's seed grant in south Georgia which
    helped leverage a substantial investment from USDA to assist
    limited resource and disadvantaged farmers to implement best
    management practices.
        Admittedly EPA's financial resources are only one part of
    the larger picture of support. While in many places they are a
    catalyst and a complement to the much more significant
    resources that USDA brings to communities, the immense private
    investment by farmers and their communities are the major
    driver.
        If there is one message I want to send today, it is that I
    recognize that the most effective course for protecting our
    environment is an active partnership between EPA and USDA and
    farmers and their communities.
        We will continue to face complex and difficult issues in
    carrying out the responsibilities that Congress has given us. I
    am encouraged by my conversations with farmers that there is a
    path forward on the issues ahead. Just as important, my
    conversations with the agricultural community have reinforced
    my belief and commitment that a healthy farm economy and a
    health environment can and should go hand in hand.
        Thank you. I am pleased to answer your questions.
        [The prepared statement of Ms. Jackson can be found on page
    54 in the appendix.]
        Chairman Lincoln. Thank you so much, Administrator for your
    testimony. Just a few questions.
        In my opening statement I stated that it makes no sense for
    pesticide application to be subject to both FIFRA and the Clean
    Water Act. FIFRA takes into account environmental
    considerations so additional Clean Water Act regulation is
    certainly an unnecessary burden not only to applicators but
    also to state regulatory authorities. And States like Arkansas
    are underfunded and struggle to keep up with existing laws and
    regulations and do not need to spend their time enforcing
    regulations that do not improve the environment.
        Your agency is not scheduled to finish the general permit
    it is developing until December 2010. I have heard that it may
    be pushed back to January 2011. States are supposed to
    implement their permitting programs by April 2011.
        I am frankly amazed that your agency expects states to
    implement that general permit into law in a mere four months'
    time. Do you think it is reasonable for a state to implement,
    that it is going to be reasonable for a state to implement a
    complicated permitting system between January 2011 and April
    2011?
        I guess would you consider asking the Sixth Circuit to
    extend the compliance deadline beyond April 2011 giving states
    additional time to implement the permitting requirement; and if
    they cannot meet it, if states cannot meet it by April 2011
    deadline due to the lack of resources and the lack of time,
    what do you suggest that they do? What are you going to suggest
    to them that they do?
        And I guess how about applicators in our states that do not
    meet the deadline either. What are you going to recommend that
    they do?
        Ms. Jackson. Thank you, Chairman.
        From the beginning, EPA has worked to craft a proposed
    general permit with the states and with stakeholders that meet
    the court's direction but minimize the burden to states and to
    the regulated community.
        The idea of a general permit was, a general permit is
    probably the least intrusive regulatory method. I realize that
    a preference within the Ag community is no permit but the
    general permit was intended to be the least intrusive way of
    providing notification required through the court decision.
        We have worked quite closely with states. I am certainly
    not representing that we are there. The permit is out for
    comment. That is why we are in a comment period where that work
    continues.
        We will finalize it as expeditiously as possible and we
    will continue what has already begun which is extensive
    outreach that will morph into training. The states will be the
    ones to implement that permit, and we are very well aware of
    that fact.
        Chairman Lincoln. I would just say that we are at the end
    of September here, and the possibilities of being able to see
    that happen in that time frame become more and more bleak, and
    I would just consider that I think probably one of the most
    frustrating things to Americans right now is the lack of
    certainty and the lack of predictability coming out of
    Washington, and I would hate for this to be yet one more thing.
        If states are not capable of implementing that in that time
    frame, it is going to be very difficult for applicators and for
    the states to be able to meet some of those deadlines.
        So I hope that you will be prepared to provide the kind of
    guidance that is going to be needed to be there if, in fact,
    they cannot meet that. I would certainly suggest that we
    actually try to reach out and see if we cannot do something
    about a compliance deadline, moving that deadline to a more
    reasonable time.
        I have also been touring my State of Arkansas extensively
    this year, and recently I heard an up tick in farmers voicing
    their concerns about EPA coming on to their farms to inspect
    their poultry operations.
        I also know that EPA has identified the Illinois River
    watershed in Oklahoma and Arkansas as a priority watershed. I
    know that you are doing I think two watersheds in each of the
    regional districts.
        It is my understanding that this could lead to enforcement
    measures against Arkansas poultry and cattle farms. As I
    mentioned in my opening statement, my farmers do not get paid
    full-time to sit around and think about environmental
    compliance.
        What efforts has your agency made to reach out to farmers
    in this watershed regarding their compliance efforts? And you
    know if it is true that EPA is starting to come on to their
    farms, I think that EPA has sent out something to each and
    every poultry farm, some sort of guidance document to help them
    through this process.
        Does EPA have a document that can help farmers in the
    Illinois watershed understand, what is expected of them by you
    all at the agency?
        Ms. Jackson. Thank you, Chairman.
        It is my hope and intention that they have a clear
    understanding of what EPA's compliance visits are meant to
    achieve. If that is not the case, then I am happy to work with
    you and your office to ensure that your constituents, that
    there is no mystery around compliance visits.
        Compliance visits do not assume nor do they presume nor do
    they necessarily result in any kind of an enforcement action.
    They are a visit which is intended to help farmers understand
    what their compliance obligations are under law.
        We have had some successful models in several watersheds. I
    am familiar with one in the Shenandoah watershed where we were
    very clear that we were going to conduct these visits. We try
    not to surprise people. We try to give them information ahead
    of time so that they will understand why we are there. But we
    also acknowledge that oftentimes working with the state or with
    elected officials is a good way to get information out to the
    community because there is a lack of trust there.
        Chairman Lincoln. I certainly know that you would want to
    say that you have tried. I guess the key here is for the
    uncertainty that exists and the concern that these farmers and
    poultry growers have about what kind of fines and repercussions
    and consequences they are going to suffer from that visit is
    enormous.
        I do not hear from them that they getting information. That
    is why I am asking if you are sending out that kind of
    information. I realize that you know you may think of this as
    just a visit. But to be honest with you, it is not something
    that is pleasurable for them to go through, not knowing what
    the consequences could be particularly in these economic times.
        I have seen some outrageous fines. I have seen some
    outrageous circumstances when you get a lot of people that
    normally sit behind a computer or from a regulatory standpoint
    coming out onto a farm or to a poultry growers operation and
    they are seeing things for the first time. It is enormously
    alarming to those farmers that you know they do not know what
    is going to happen, what is going to be the consequences nor
    have they been given any kind of heads up or information in
    terms of what the expectations are of them.
        So I hope that some of that information can be more
    forthcoming and I hope that there will be a greater partnership
    built in terms of those visits and what the expectations really
    are.
        Just one last issue I would like to raise. I have heard
    that EPA is providing two different interpretations of how it
    views dust and feathers emitted from a poultry house fan.
        One view is that it is a Clean Water Act discharge. The
    other view is that it is not. I would sure hope that EPA will
    clarify complications like these before they proceed.
        When a fan blows in a chicken house, if any of you all have
    been in one, I have been in many, there is a real difference.
    So I hope that we can see more clarification.
        It is truly the uncertainty and unpredictability that comes
    out of Washington that is going to fail us in trying to put our
    economy back on track and put people back to work if we do not
    provide a greater certainty to growers.
        So thank you. I will turn to the ranking member now for his
    questions.
        Senator Chambliss. Thank you, Madam Chairman. I certainly
    would associate myself with your remarks there. We have got to
    have some certainty in these regulations.
        Administrator Jackson, the Georgia Department of
    Agriculture requested a Section 18 emergency use exemption on
    the behalf of Georgia vegetable growers for the fungicide
    Manzate on March 18, 2010.
        The usual turnaround time for an emergency use exemption is
    50 days. The Georgia Department of Agriculture, the University
    of Georgia, George chemical distributors, and Georgia growers
    have provided EPA with all of the information needed to make a
    decision on that date.
        Can you give me a updated status on that and when we might
    expect the decision to be made?
        Ms. Jackson. Yes, sir, Senator.
        As I recall, I am trying to find my note as we speak but it
    is not happening. So let me do it from memory and I will get
    you more information if I can.
        The original information was certainly extensive but there
    were still safety risks. The concern was that there were still
    residual levels that did not comply with the law. And EPA did
    not believe that there was sufficient basis to grant the
    exemption.
        Now, I think that there is still an opportunity. We did not
    deny it but we did not grant it, and that was quite purposeful.
    The idea was that we believe there is still a way to work
    together to look at the risks and residue issues to try to find
    circumstances with the agricultural community in Georgia where
    there may be some opportunity for that exemption to be granted.
        That is a fairly common process, sir, is my understanding.
    There is a bit of back and forth in trying to find the right
    spot in-between these exemptions being granted. But the work
    continues.
        When I was in Georgia recently, we talked about the need to
    make sure that we are aggressively pursuing an alternative or a
    potentially approvable request.
        Senator Chambliss. Okay. Well, it has been six months. I
    just appreciate your folks staying in touch with our local
    folks on the ground in Georgia to make sure there is an
    opportunity to work together. We look forward to doing that but
    it needs to be moving forward.
        Ms. Jackson. Yes, sir, if I can just interrupt. My staffer
    found the note, and it says later this fall we expect some
    resolution.
        Senator Chambliss. In July EPA requested critical use
    applications for methyl bromide for 2013. In that request the
    agency announced it was appropriate at this time to consider a
    year in which the agency will stop requesting applications for
    critical use exemptions.
        Georgia growers have done an outstanding job transitioning
    away from methyl bromide. In fact, Dr. Stanley Culpepper from
    the University of Georgia Cooperative Extension Service tonight
    will receive EPA's Montreal Protocol Award for his work on
    methyl bromide alternatives.
        However, I have serious reservations about EPA's preference
    to stop requesting critical use exemptions in 2015. I would
    like to ask you to include the House and Senate Agriculture
    Committees in the agency's deliberations on this issue and get
    a commitment from you that you would be willing to do that.
        Ms. Jackson. To work with the Committees on these issues?
        Senator Chambliss. To incorporate the House and Senate Ag
    Committees in the deliberations on methyl bromide's
    discontinuance, on those exemptions.
        Ms. Jackson. Absolutely, sir, within any confines of the
    law we are happy to include both Committees. We would value
    your expertise and information and input on those issues.
        Senator Chambliss. Well, I would like for it to be stronger
    than that, Administrator Jackson. I mean you all have been
    doing some things off the cuff down there that have been
    delineated here this afternoon that are going to have a hugely
    negative impact on agriculture in America.
        What I would like to know is, are you telling us today that
    when it comes to methyl bromide and these exemptions that you
    are going to work with the House and Senate Ag Committees
    before any decisions are made in the future?
        Ms. Jackson. Yes, sir.
        Senator Chambliss. Very good.
        In the government's brief which was prepared in response to
    agriculture's petition for Supreme Court review of the National
    Cotton Council versus EPA case, the agency stated that it
    believed that the Sixth Circuit reached the wrong conclusion in
    that case and that EPA's rule was justified.
        I believe EPA made the wrong decision not to defend its
    rule and instead develop a general permit for pesticide
    applications. As you know, EPA plans to finalize the general
    permit by December of this year, and EPA and the states will
    begin enforcing it beginning in April of 2011.
        This is an extremely short period of time especially as it
    requires the agency and states to issue 38,000 new permits. If
    the agency will not change its position, I believe it needs to
    ask the court for more time, specifically for at least an
    additional year.
        Would your agency be willing to do that?
        Ms. Jackson. Sir, I cannot commit to that today. I think it
    is important that, right now it is important for folks to
    understand that EPA is working awfully hard with stakeholders
    to try to get compliance with the court's judgment and
    decision.
        If, as we move closer to the date, we decide we simply
    cannot get there, then so be it. But we have been working very
    hard with the permitting authorities, each of the states, to
    implement a general permit that is workable and that is a
    minimal additional burden to applicators who already have to
    get permits for these pesticides in many states. States run
    those permit programs.
        Senator Chambliss. Again just like with my previous
    question, I would hope that you would have an open dialogue
    between the agency and the Committees on both the House and
    Senate side on this issue because it again is just one of those
    critical issues for the cotton industry that is going to have a
    huge impact on the bottom line for our farmers and at the end
    of the day we want to have a quality product. We want to make
    sure that air and water is pure and clean. But we have got to
    have that certainty and that understanding between farmers,
    ranchers, and the EPA. And that means between the House Ag
    Committee and the Senate Ag
        Committee on issues like this.
        I would simply encourage you that if you want to have a
    desired resolution of all of these issues, you just stay in
    touch with us.
        Ms. Jackson. Thank you, sir.
        RM. Thank you, Madam Chairman.
        Chairman Lincoln. Senator Johanns.
        Senator Johanns. Madam Chair, thank you.
        Let me start out and just thank the chair for holding this
    hearing. I think we all feel it is a very important hearing.
        Administrator, I suspect that if you sat down with every
    Senator here today in anticipation of this hearing, they would
    tell you that they have received a letter from one or more farm
    groups in their state, to be blunt about it, attacking your
    agency. I have a letter here and they refer to what you are
    doing is a nonstop regulatory assault on agriculture. That is a
    direct quote.
        You see, there is a feeling out in the country that you
    walked in, the President walked in, and every idea for more
    regulation was dusted off and cut loose, and agriculture is
    under attack, and that is how people feel.
        I hear you say you were out there, and you have listened to
    farmers, and that you have been with Secretary Vilsack. I just
    would say to you it is one thing to listen; it is another thing
    to hear.
        It just seems like you pay lip service and then go on. Let
    me give you an example. A group of us, a group of Senators
    wrote you a letter, and let me quote for you a piece of federal
    law. It says this.
        ``The Administrator,'' that being you, ``shall conduct
    continuing evaluation of potential loss or shifts of employment
    which may result from the administration or enforcement of the
    provision of this chapter and applicable implementation plans
    including, where appropriate, investigating threatened plant
    closures or reductions in employment allegedly resulting from
    such administration or enforcement.'' Unquote. It comes right
    out of the Clean Air Act.
        So our question to you was are you doing that, and your
    response to us, and it is a longer response but there are three
    sections that jump right out at me.
        Again I am quoting from your letter. Quote. ``EPA has not
    interpreted Section 321 to require EPA to conduct employment
    investigations in taking regulatory actions. Secondly, EPA has
    not conducted a Section 321 investigation of its greenhouse gas
    actions. Third, we are not undertaking a Section 321 analysis
    of PSD tailoring rule.''
        Now, how does Congress get more clear with you? ``Shall''
    seems to be quite obvious to me. You know we debate these laws.
    We battle each other. We fight these things out. We finally get
    a law passed, and it is like nobody is paying any attention.
    You are just kind of out there doing your thing, whatever your
    thing of the day is.
        But here is the point I want to make to you. You are
    hammering the little guy. The big guy that can get capital and
    loans and access that will somehow find a way to deal with what
    you are requiring even thought it is enormously onerous. And
    even when you exempt or we exempt the smaller operator, they
    still feel the ripple effects of what you are doing.
        And you are just causing agriculture to consolidate more
    and more and more at a time when quite honestly that is the
    last thing we need is more consolidation in agriculture.
        So my question to you is this. When you have such a clear
    direction from Congress as you have got in Section 321, how
    could you possibly reach a conclusion that an employment
    analysis does not need to be done on something so important, so
    fundamental, so job impacting as what you are doing in this
    area? How can you ignore that?
        Ms. Jackson. Senator, the concern in the countryside that I
    have heard when I have gone out either with the Secretary here
    in Washington or gone out myself is that EPA somehow has it in
    for the agriculture sector.
        My assurance is that we have nothing of the kind. I have no
    personal agenda. I believe that we cannot be a strong country
    without a strong agricultural sector, that we cannot be
    prosperous if we cannot feed ourselves.
        From an environmental perspective, importing food with the
    huge carbon footprint that means is much less preferable than
    being able to look at food miles and get our food locally,
    nutritious homegrown food.
        So first I just want to get it because it is so important
    to Americans to understand that any belief that there is an
    agenda that somehow targets that sector would be the furthest
    thing from who I am, what my priority is as EPA Administrator.
        I did check because I have seen the allegations. The year
    before I became Administrator EPA put out about 120, somewhere
    between 120, 125 regulations. Last year we did 94.
        So there is no huge blowup in the number of regulations but
    there is a huge regulatory backlog, much of it driven by court
    cases which compel the agency to follow the law. I took an oath
    to follow the laws of the land.
        With respect to economic analysis of our rule making, one
    of those 94 regulation was the tailoring rule which
    specifically exempts agriculture and small businesses from
    having to face any greenhouse gas regulation until at least
    2016 when it is my fervent hope that by then there will be
    legislation to govern those issues.
        It was an attempt to give further assurance to those
    sectors that they are not where we are looking for greenhouse
    gas reductions. That being said, any rule we do has a full
    regulatory impact analysis associated with it, and part of my
    response to that letter I believe, I do not have to right in
    front of me, references the fact that we take very seriously
    our responsibility to put forth costs, benefits, and many of
    our rules, we do our own review, and then we have independent
    review at the White House, and then we go on to the public
    comment and solicit further information.
        I guess I want to end where I began which is that EPA
    understands that we can have a clean and healthy environment.
    We are working against ourselves if, at the end of the day,
    that means that we are individually harming the agriculture
    sector. It is not our intention.
        Chairman Lincoln. Senator Conrad.
        Senator Conrad. Well, I am going to start with a different
    message. My message is thank you, thank you very much for what
    you have just done in North Dakota to change the sulfate
    standard in the Upper Sheyenne to allow greater discharges of
    water to try to prevent an uncontrolled release of water from
    Devil Lake. It is very significant what you and your agency did
    to change the standard of 450 parts per million of sulfate to
    750 in the Upper Sheyenne.
        We have this situation in North Dakota that is unlike
    anything anywhere else in the country. We have a lake called
    Devil Lake and the lake is now three times the size of the
    District of Columbia. It has gone up nearly 30 feet in the last
    17 years.
        The Federal Government also at the end of this year spent
    $900 million dealing with this crisis. $900 million in my State
    is a lot of money. We have raised dikes. We have raised roads.
    We have taken a whole series of steps to try to deal with this
    crisis.
        We have an outlet running 250 CFS to try to relieve
    pressure on that lake. We had a town that is about to be
    engulfed. The town of Minnewaukan.
        I had federal officials a number of years ago come out and
    say why did they build the town so close to the lake? Well,
    they were actually referencing the high school. Why did they
    build it so close? When they built it, it was eight miles from
    the lake.
        This is the most incredible thing happening anywhere in the
    country with a runaway lake. We are very appreciative that you
    have changed the standard in a reasonable way to protect
    health, to protect safety. And at the same time recognize there
    is a much bigger threat to the environment if we have an
    uncontrolled release out of the east end of the lake rather
    than to have controlled releases out of the west end because
    the water quality on the east end of the lake is five times
    worse than the water quality in the west end.
        It is a very unusual lake. It has a flow to it. The water
    comes in the northwest and the lake flows east. And as it flows
    east, it picks up sulfates.
        So if we are going to reduce the risk of uncontrolled
    release, and now we are within six feet of an uncontrolled
    release, it is imperative that we move water and move more of
    it. We are very appreciative that you and your agency
    recognized that fact and changed the standard. That sent an
    important signal.
        We now need to go to the next step and adjust standards in
    the Lower Sheyenne, and we are hopeful that we can make that
    case in as persuasive a way as we did on the Upper Sheyenne.
        Let me go to an issue that had been raised by my farmers,
    and it is the number one issue with EPA in my State other than
    Devil Lake. That is the question of the oil spill control issue
    with aboveground storage, below ground storage. And producers
    in my State are very concerned. I just had a Farmers Union fly
    in. This was the number one issue on their list.
        One of my concerns was the requirement that a professional
    engineer must certified an oil spill plan. Is there a
    possibility that could be adjusted so that if they are
    following the basic design standards provided by the Extension
    Service and/or the Natural Resources Conservation Service, that
    that would be acceptable without having an engineer certify it?
        I raised this because, number one, it costs a lot of money
    to get an engineer. Number two, in my State it is very hard to
    find additional engineering time because of the oil boom that
    is going on in North Dakota. So farmers are deeply concerned,
    number one, about the cost. Number two, how are they going to
    get an engineering firm to come and do certification of a plan
    on their property when they are completely overwhelmed with the
    demands of the oil industry?
        Ms. Jackson. Sir, I am happy to look into the specifics.
    Those are under the SPCC rule making I believe.
        Senator Conrad. That is correct.
        Ms. Jackson. And as you know, we right now I believe have
    two rules out there, one that extends the compliance date, and
    that is probably shortly going to be finalized because we are
    out for comment and we need to finalize that rule.
        That was an intention to work with the industry within the
    confines of, of course, the other imperative which is we have
    to be, prevention is extraordinarily important when it comes to
    oil. I like Thad Allen's remark that nothing good happens after
    oil hits the water. After that, everything is really just
    trying to minimize bad. So we need to balance that. But I think
    that extension is intended to give us time to deal with some of
    these issues on implementation.
        I am not sure if, as written, the regs would preclude your
    suggestion, but I am happy to work with you.
        Senator Conrad. I would be very interested to pursue that.
        Second, just quickly if I could, is there anyway for EPA to
    more accurately identify which producers are required to comply
    by giving mapping areas where waters of the United States are
    likely to be impacted or those places where they are unlikely
    to be impacted? It seems like a common sense measure that there
    might be some broad guidance given as to those places that are
    especially vulnerable and those places that have very low risk
    of movement into waterways.
        Ms. Jackson. I am happy to work with your office of that
    suggestion, sir.
        Senator Conrad. A final if I could, the recommendation came
    back from my farmers that the EPA take advantage of each states
    cooperative extension service by working with them to design an
    implementation and outreach strategy.
        Cooperative extension in my State, and I think it is true
    of almost all rural states, is out there in every county, have
    an ongoing relationship with producers, and an education effort
    I think would be enormously beneficial. Also kind of lower the
    heat and the temperature on this issue.
        Ms. Jackson. Thank you for that suggestion. We are happy to
    incorporate that. That is a great idea. And, Senator, thank you
    for your leadership on Devil Lake in particular.
        Senator Conrad. It is absolutely the most incredible
    experience that we have had, this lake that just keeps going up
    and up. We know in 4,000 years of history three times it has
    had an uncontrolled release, only in those days very sparsely
    populated. If we have an uncontrolled release now out of the
    east side, it will be an unmitigated disaster.
        Chairman Lincoln. Thank you, Senator Conrad.
        In Senator Nelson's absence, we go to Senator Klobuchar.
        Senator Klobuchar. Thank you very much, Madam Chair, and
    welcome Administrator Jackson. I think I am one of the few
    members on the Committee that also serves on the Environment
    and Public Works Committee so we have done work together
    before, and I appreciate your hard work and candid nature. I
    also appreciate some of the work you did down in the Gulf
    during the oil spill. Thank you for that.
        Speaking of oil, a number of us had a meeting with you, and
    I am glad you came to it. That was good you were there to talk
    about the ethanol blend and the delays there. I just want say
    we continue to be concerned. I know that EPA will soon be ready
    to announce its decision on a waiver but I encourage you to
    make that decision as soon as possible.
        I see Senator Thune over there. A number of us have States
    where we are waiting on biofuels. As I said at that meeting, it
    is not a biofuel plant that blew up in the middle of a corn
    field. That is a good fuel and we think it is part of our
    energy future as we go forward.
        We can talk about that in a minute. The second thing is the
    dust issue which I think that has been covered so I am not
    going to go on about that.
        Another thing I wanted to raise is Senator Lugar and I are
    putting a bill out that looks at, I have been trying to figure
    out with all the good intentions how we keep cracking up
    against each other on some of these agriculture issues. I
    really think that sometimes people while they are trying to do
    good work at EPA do not think about the repercussions on our
    farmers and what it will mean, whether it is the dust issue,
    whether it is in the manure issue, whether it is the milk
    issue. There have been a number of things lately.
        I do not think it is because they are trying to hurt these
    farmers but I think it sometimes has that effect.
        So Senator Lugar and I came up with one idea. It will not
    solve everything. I know you have been getting feedback. But
    looking at the Science Advisory Board that is headed by a
    Minnesotan which is great but we realize that none of the
    people on there really have an agriculture background and there
    is something like 50 people on there.
        So we are putting together a bill that we call
    Representation for Farmers Act, to see if some of those people,
    we are suggesting three, could be appointed by the USDA so that
    we can try it to get some of that input from the agriculture
    community.
        We have run it by, it is supported by the Farmers Union,
    the Farm Bureau, the Corn Growers Association, the National
    Council of Farmer Coops, the National Milk Producers
    Federation, wheat growers, and we have just been doing it for
    three days.
        So I just want you to consider it and we would love to have
    your support. I think it could go a long way just on the front
    end. And I do not think it is going to solve everything. There
    is always going to be some tension but I think it is something
    that we will want to look at.
        I wanted to ask you about what is going on with the E-15.
    And do you anticipate an announcement very soon regarding at
    least the 2007 and newer vehicles and what is happening with
    the waivers?
        Ms. Jackson. Thank you, Senator, and I look forward to
    taking a look at your forthcoming legislation. So thank you.
        On E-15, as you know, we have been awaiting test results.
    The tests are done by our partners and friends over at the
    Department of Energy on a number of vehicles. We have most of
    the results back. They are being QA/QCed and reviewed by my
    staff. I am optimistic having seen the results so far for 2007
    and newer vehicles, Tier 2 vehicles essentially.
        We are waiting one last set of results. They are tear down
    test results. I spoke to Secretary Chu yesterday and he
    confirmed that he intends and believes they are on track to get
    us those results by September 30.
        Given that, we are prepared to render our waiver decision
    within two weeks following receipt of those tests, and in fact,
    have obviously been working on this issue for quite some time.
        Senator Klobuchar. I understand. And then there is going to
    be another series of tests after that or this is the first
    grouping of tests and then is there another grouping?
        Ms. Jackson. Correct. There are other tests that have
    already been begun but they are taking a bit longer on other
    vehicles. And through many discussions and the one you and I
    were both present at, it was decided that one of the things
    that would help the industry and the petitioner would be to get
    at least a decision on that which we had complete data for.
        So for 2007 these are really the tier two vehicles but the
    shorthand is 2007 and later. The brief was that we should get
    the information we have and make a decision there.
        There are also other issues that will affect ethanol and E-
    15. To the extent that they touch EPA, we have been
    coordinating those. Some of them do not affect EPA at all.
        Senator Klobuchar. Okay. Just again I want to urge as we
    did at that meeting, the sooner we can go forward with this the
    better. I just think the science is on our side on this end.
        I am also concerned about various labels. I have said this.
    We just have to make sure that we do this as quickly as
    possible.
        Another thing. The EPA recently announced it would exempt
    dairy farmers from the Spill Prevention, Control and
    Countermeasures Act. I have cosponsored legislation to make
    sure that this policy is put into place as soon as possible.
    What is the status of implementing EPA's decision to exempt
    dairy farmers from this law that was intended to prevent oil
    spills?
        I do not mean to keep bringing up oil spills but I will
    just do it.
        Ms. Jackson. It is quite all right. The exemption for milk,
    for containers, is expected to be completed by February but the
    news is that the containers would be regulated come November of
    this year unless we extended the deadline. That extension will
    likely be final in mid October. So within weeks.
        So they will not be regulated and then the exemption, the
    full exemption for milk will be following in February.
        Senator Klobuchar. I am running out of time so I am just
    going to put on the record some of the questions that I have on
    atrazine as well as the boiler MACT rule. There is concern, a
    lot of concern about that in my State and some of the other
    things. Thank you very much.
        Ms. Jackson. Thank you very much, Senator.
        Chairman Lincoln. Thank you, Senator Klobuchar.
        Senator Stabenow.
        Senator Stabenow. Thank you, Madam Chair, and welcome,
    Administrator Jackson.
        Let me first say I also thank you for joining us in a very
    tragic situation with the Kalamazoo River with the oil spill
    that occurred a while ago and I appreciate your willingness to
    come out as quickly as you did and the efforts that are going
    on are very important that we make sure this is cleaned up as
    quickly as possible and does not happen again.
        As a preface to my question, I have been involved in
    agriculture committees for a long time and have been working on
    pesticide issues actually a long time. I would urge you to
    really take the time necessary to bring all parties to the
    table to work out a balanced approach going forward on this.
        When I was in the statehouse, I led an effort that took
    about a year to bring all the players together from farmers and
    environmentalists and agricultural business community.
    Everybody. We had everybody.
        It took a while but we came up with something that made
    sense and it was science-based and it was something in the end
    that was embraced by everyone to go forward because it was
    certainty because it was science-based but it was also
    addressing the broader goals and so on.
        I would strongly urge you to take whatever time is
    necessary to do that because this is an incredibly important
    and impactful issue for us in agriculture.
        On to my questions. When we look at a state like mine that
    has great diversity of crops, more diversity of crops than any
    other state except California, one that the prescriptive rule
    is not going to apply across the board to all of our different
    producers, I have concerns about what appears to be gray areas
    here in this permitting process. You have talked about some.
    But as I understand the rule that has been proposed in the
    Clean Water Act general permit, outside of the four areas
    specified, agriculture activities are not included.
        This would suggest that producers may be liable in that
    they would have to apply for an individual permits. As I am
    sure is the case in a lot of places, I know producers in
    Michigan that could apply pesticides which drift or by drift or
    accidental application could flow to waters of the United
    States such as our beautiful Great Lakes, that could happen.
        But while I imagine permitting for the hundreds of
    thousands of farms is not practical, is EPA planning to address
    any agricultural applications of pesticides not outlined in the
    general permit?
        Ms. Jackson. Let me make sure, Senator, I am answering your
    question. We do not cover terrestrial applications in the
    general permit. That is something that we worked very hard to
    ensure we were clear on.
        Senator Stabenow. Yes. Are you saying that is exempt, those
    agricultural practices?
        Ms. Jackson. Our proposal, we do not cover terrestrial
    applications of pesticides and does not cover spray drift, does
    not alter existing provisions in the Clean Water Act that
    provide exemptions for irrigation return flows or agricultural
    storm water runoff.
        So those are already features that we worked into our
    discussions on the general permit as it already stands. I think
    your question had more to do with other potential
    opportunities. There are some places where pesticides are
    applied over water, certain producers
        Senator Stabenow. Or near.
        Ms. Jackson. Or near, yes. If it is just drift issue, that
    is not covered. We would welcome the opportunity and we
    continue discussions with those. It is a fairly small number of
    cases where the question is they know that they apply to water
    and they are looking at the general permit and wondering if
    that can cover them.
        We probably are not ready yet to make a final
    determination. That is something that has come out during
    public comment but we welcome the opportunity to discuss it
    further.
        Senator Stabenow. Thank you. The Clean Water Act clearly
    states also in the definition of point source that agriculture
    storm water discharges and return flows from irrigated
    agriculture are excluded.
        How may this limit a producer's liability in regards to any
    type of permit?
        Ms. Jackson. So they are exempt activities under the Clean
    Water Act so they would not then be regulated activities under
    this permit, meaning that those activities would not require a
    permit as was proposed. I should caveat by saying we have a
    proposed permit. We do not have a final at this point.
        Senator Stabenow. Then if I might just quickly on
    integrated pest management plans which are so important.
    Michigan State University has been involved in working on many
    of those working with experts on techniques for decades.
        The plans are broad in scope. They cover more than just
    pesticide use. They also guide growers in reporting and record
    keeping. How does the EPA work with USDA to consider growers'
    work with integrated pest management plans and are such plans
    helpful to prevent future redundancy and paperwork?
        Ms. Jackson. Integrated pest management is a win-win for
    everyone. I mean pesticides cost money so growers love when
    they can minimize the use of pesticides, and they certainly do
    not to run it off into water because that is not working. The
    leadership that USDA has shown, the leadership that your State
    has shown, Senator, in running a wetlands, in thinking these
    issues through and in its regulatory program is very important
    to our work so thank you.
        Senator Stabenow. Thank you, Madam Chairman.
        Chairman Lincoln. Senator Thune.
        Senator Thune. Madam Administrator, thank you for being
    with us today.
        I want to associate myself with the comments that were made
    by the Senator from Nebraska. The Environmental Protection
    Agency has become public enemy number one of our farmers and
    ranchers, and over the August break I had the opportunity to
    meet with corn growers, wheat growers, soybean growers, cattle
    producers, pork producers. I am sure lots of others.
        But each of these groups have issues that were specific to
    their industry but they all have one common concern, and that
    was the overreaching EPA regulations and the harm that they are
    doing to their industry in the rural areas. That comes in lots
    of areas.
        It is greenhouse gas regulations. It is threats to regulate
    dust. The band of atrazine. It just seems like ag producers are
    in the cross hairs of the EPA.
        And in every case there are actions that drive up costs,
    drive down the profits of family farms and ranches. It just
    seems to me that we are losing our way when you have people in
    rural America asking the Federal Government not for help but
    just to stop hurting our rural communities.
        And at the same time we got decisions that could be helpful
    such as the E-15 issue which the Senator from Minnesota
    mentioned that remain undecided. I am pleased to hear that
    process is moving forward.
        But our ag produces are the best stewards of our land and
    of our environment. They go to work each day just not to make a
    living but to feed the world and to preserve the land for
    future generations.
        They are very frustrated, and I just want to read you a
    quote from the panel that will follow you from Mr. Rich
    Hillman, who is a rice, soybean, and wheat producer, and he
    states that farmers have never felt more challenged and more
    threatened in their livelihood than they do today from the
    continuous onslaught regulations and requirements from the EPA.
        He goes on to say, ``The EPA proposals are overwhelming to
    farmers and ranchers, and they are creating a cascade of costly
    requirements that are likely to drive individual farmers to the
    tipping point. In addition to driving up the cost of producing
    food, fiber, and fuel, these proposals highlight EPA's goal of
    controlling land use and water supplies. In many cases they
    will bring citizen suit enforcement and judicial review of
    individual farming practices.'' End quote.
        I will tell you that is what I heard. That is what I heard
    from the agricultural groups, individual produces all across
    South Dakota. I know at times that out here what seems to make
    sense just really does not in the rural areas of our country. I
    make that as an observation and express the frustration that I
    heard from individual produces during the August break.
        I do want to come back to the E-15 issue. As I heard it, we
    are looking at probably final data in the end of this month and
    then shortly after that, a couple of weeks perhaps, a decision
    on E-15. That is just with regard to 2007 vehicles and newer.
        How about 2001 to 2007 vehicles?
        Ms. Jackson. For 2001 to 2007 that testing is also ongoing.
    It is taking a bit longer. I believe those test results are due
    to begin by the end of the year, the calendar year. And EPA
    will be in a position to make a determination as we see the
    data obviously.
        But we will again strive to be expeditious in our decision
    making and review of the test data.
        Senator Thune. Just coming back to making two announcements
    on E-15, does not in some way two announcements actually create
    more consumer confusion on the status of E-15?
        Ms. Jackson. Certainly I guess that is one way to look at
    it but we were asked and have talked to the applicant who
    requested E-15 about whether some signal, we heard lots of
    concerns about their needing to be a signal that this was not
    going to be forbidden, this blend.
        As we started to get the data back, what we committed to
    and what we talked about was moving quickly in pieces
    admittedly but in an attempt to give that signal.
        Senator Thune. We are right now 10 months past the
    statutory deadline for a decision on that. The 2007 and newer
    vehicles decision seems to me again that when you create this
    sort of a bifurcated approach to this that you in some respects
    create even more confrontation than maybe perhaps already
    exists.
        But let me ask you with regard to the Department of
    Energy's testing on E-15. Are you aware of any driveability or
    parts compatibility issues with 2001 and new vehicles that are
    directly related to the use of E-15?
        Ms. Jackson. Sir, I am not aware of them but we have not
    received that information so that probably is not a complete
    answer because we do not have the data.
        Senator Thune. Are you aware of any evidence that E-15
    would damage vehicles older than 2001? In other words, vehicles
    manufactured before 2001?
        Ms. Jackson. I am not personally aware of any data or any
    test that has actually been----
        Senator Thune. You are saying you do not think they are
    testing vehicles that are older than 2001?
        Ms. Jackson. I do not believe so, sir.
        Senator Thune. I hope we get this resolved as quickly as
    possible because this is one thing, and you were right about
    the signal. This is an important signal to the industry. It is
    important to agriculture to get this issue settled.
        It seems like--I visited Oak Ridge. I visited NREL. The
    testing has been going on for an awfully long time. It seems
    they would have more than adequate data to get this issue
    settled and I would hope that they would be able to at least
    for 2001 vehicles forward approve it, and hopefully soon so
    that we do not create even more uncertainty than we already
    have.
        I have another question, Madam Chair. I see my time has
    expired, that I can submit for the record. I will say one of
    the things again that it really concerned me about some of the
    things that are happening over at your agency, the more recent
    one of these is dust. There is a tremendous amount of concern
    about that proposed legislation as well which I got an earful
    about while I was traveling during the month of August.
        Thank you, Madam Chair.
        Ms. Jackson. There is no proposed regulation. So perhaps we
    can get the word out there that EPA has proposed no regulation
    on dust and I committed earlier to doing some listening
    sessions before we even undertake such actions.
        Chairman Lincoln. Thank you.
        Senator Roberts.
        Senator Roberts. I am sorry. I missed that. Was that dust,
    there would be no regulations on dust?
        Ms. Jackson. What I said, Senator, in my statement is that
    there is no proposal on dust. We have a recommendation from one
    of our scientists----
        Senator Roberts. I wish you could stop it. We just had a
    heck of a dust storm out in Kansas.
        Ms. Jackson. I am sorry, sir.
        Senator Roberts. I think you used to call it rural fugitive
    dust. I will have more to say on that topic in just a minute.
        How are you doing?
        Ms. Jackson. I am fine. Thank you, sir. Sorry about the
    dust storm.
        Senator Roberts. Thank you for coming out to Kansas.
    Actually you sent a team of experts out to Kansas. We would
    have welcomed you to see that rather remarkable sight in
    Treece. I think you remember that. They did good work.
        And the State of Kansas stepping up and the citizens of
    Treece will soon be able to move where financially they could
    not before, and that was a terrible waste site. It was very
    dangerous and you did a good job on that and I want to thank
    you for that.
        Pretty much everything that needs to be said has been said
    especially Senator Johanns and Senator Thune, the Chairman,
    everybody here, also on the other side of the aisle.
        How many people know that Devil Lake is named after Senator
    Conrad.
        [Laughter.]
        Senator Roberts. It is the same thing as Senator Thune just
    said. I mean I cannot go to an agricultural meeting with any
    commodity group, any farm organization without them saying what
    on earth is going back there. It is usually a you-guys thing.
    What are you guys doing back there? Guys is not gender related.
        I say I am an us-guys. I am not a you-guy. And probably 8
    times out of 10, it comes down to the EPA and what we think is
    questionable in challenged science is doing in regards more to
    agriculture and our national economy and our national security
    because agriculture does affect that.
        88 percent of the land in Kansas is utilized for some form
    of agriculture production with 61 percent of the total in crop
    land, 34 percent pasture land, very similar to the Dakotas,
    Nebraska.
        Having an abundance of productive farm ground allows Kansas
    to rank in the top five nationally in the exports of wheat,
    grain, sorghum, sunflowers, live animals and meats, as well as
    hides and skins.
        One in five of our folks out there are involved in
    agriculture in one way or another. So that is really just
    stating the obvious, and I am stating the obvious again and
    again. I apologize for doing that. It is a terribly important
    and I think it is reflective of all of agriculture all across
    the country.
        Animal feeding operators, custom harvesters, chemical
    applicators, flour millers, even public health officials
    influence the environment. Some activities do actually create
    dust--I will come back to that in a minute--while others do use
    chemicals, pesticides, fertilizers to grow the food and fiber.
        It really keeps us from starvation and malnutrition around
    the world. I always put out in Southern Command there are 31
    nations down south. The average age of the folks down there
    which is 14. They are malnourished.
        If all of a sudden you have a disaster that hits like in
    Haiti and other places in the world, we have the ability and
    the farmer has the capability of this production miracle to
    immediately step forward and provide help and assistance.
        So the thing I would like to point out too is in order to
    turn a profit, they must protect the land and water. They do
    not have a choice. So it is not only that we all want to see
    clean air and clean water, that is the ``While I'' speech,
    while we want clean air and clean water, let me point out that
    this is not the way to do it in terms of the regulatory means
    that we do this.
        The farmer would never put the seed in the ground if he or
    she was not an optimist. But they are not as optimistic today
    about how they will comply with the laundry list of regulations
    that the Senator has just mentioned, Senator Thune.
        They are not as optimistic about how they can continue with
    this kind of situation. The list goes for everything from
    expanding the definition of waters of the United States to
    tightening the national ambient air quality standards for
    particulate matter to lowering the threshold for inorganic
    arsenic in the ground water to opening up an unscheduled review
    of atrazine.
        I have the head of the Kansas corn producers to speak to
    that, and he has a unique tale to tell about what happened
    after he stood before the Scientific Advisory Panel and
    probably even testifying before us, Madam Chairman.
        Are you still there? Great. I expect a couple ``Amens''
    from you but any rate.
        [Laughter.]
        Senator Roberts. Very unusual circumstance and he will
    testify to that and it is a very worrisome thing about a
    chilling effect on people in any farm organization willing to
    talk about these things.
        Then you want to regulate the range burning on the Flint
    Hills which has been a tradition for many years and then to
    also regulating dioxin below naturally occurring background
    levels. All of that has Kansans concerned.
        It is the third time around for me. I was a bucket totter
    for my predecessor in the Congress, a staffer. I was
    administrative assistant, and finally he got so upset about
    this business back in the 1970s about rural fugitive dust and
    it became almost a laughing matter until farmers figured out
    that the EPA was serious.
        So I tried to track down the person who actually was in the
    business to promulgate, that is a great word, to promulgate in
    the Federal Register what was going to happen to rural fugitive
    dust. It took me three days.
        Finally I found this very nice lady in EPA who was from
    Massachusetts. Where else? I agreed with her because she said,
    ``Do you realize how many gravel road you have out there in
    Kansas?'' I said, ``Yes, ma'am, I have been down about everyone
    of them.''
        ``Do your realize how much dust you are creating in regards
    to cattle trucks or grain trucks or pickups or whatever?''
    ``Yes, ma'am,'' I said, ``Do you realize what we have done in
    terms of conservation, the Great Plains conservation program,
    and all?'' I listed all the things we have done for the dirty
    30s.
        Finally I said, ``What do you want us to do? What is your
    suggestion? How can we get away from you putting the EPA sights
    on us out here for rural fugitive dust which I found rather
    unique?''
        She said, ``Well, why do you not just send out water trucks
    at 10 o'clock in the morning and then again at 3 o'clock in the
    afternoon and spray down those roads?'' Pause. ``It is a great
    idea. Could you provide the trucks and the water?'' Pause.
    ``No.''
        That was sort of a standoff. Then it sort of, like other
    dust, settled. I do not think we ever got in the business of
    fining farmers or locking them up or whatever it is if they
    decided to go in a pickup to town down a gravel road.
        And then in the 1980s it was back. I do not know why you do
    these things. I mean you are supposed to be digital now. Throw
    all those files the way. They dug out the files and brought the
    thinking back. I do not know what happened when you all came in
    first.
        You probably said, ``Well, let us take a look at what we
    have done in the past and what we need to do in the future.''
    Now by golly we have rural fugitive dust back again.
        Are you going to tell me we are going to have to get more
    water and water trucks and do that in the morning and the
    afternoon? One other thing.
        Navigable waters. Applicable to farm ponds where our
    critters go into cool off. We do not swim in those farm ponds.
    We do not drink any water out of those farm ponds. Most of the
    time they dry up, and no self-respecting duck would ever land
    on those farm ponds, and yet they could be declared navigable
    waters.
        Then that sort of faded away and it is back and it is like
    Lucy and Charlie Brown kicking the football, and I cannot
    remember now, I think in the little circle of what he said in
    the cartoon it was A-A-R-R-G-H-H! I do not know how to
    pronounce that. Some farmers do.
        But instead of picking up the football, I think it is sort
    of like an anvil down there, switching it, and boom he hits
    right into things like rural fugitive dust and navigable
    waters.
        Those are the ones that you can point to with some degree
    of, it is not levity. It is just to illustrate the point. But
    Jere White is here. He is from the Kansas Corn Growers. He has
    quite an experience to tell about atrazine. It actually takes
    the place of multiple pesticides, fungicides, rodenticides,
    whatever that it is kind of used for at levels that we think
    are safe. And he has really paid a price for it.
        So here is my suggestion.
        Chairman Lincoln. You need to wrap it up at this point.
        Senator Roberts. Yes, I am five minutes over but there is
    nobody here except you, Madam Chairman.
        [Laughter.]
        Senator Roberts. You did not recognize me first so you got
    to pay for it at the end.
        [Laughter.]
        Senator Roberts. You told me to come here off the floor and
    raise hell so that is what I am trying to do here.
        [Laughter.]
        Senator Roberts. Historically the Department of Agriculture
    and the Food and Drug Administration, the EPA, and Health and
    Human Services, even the Department of Labor, and yes, even the
    CIA--I used to be chairman of intelligence because of the
    importance of our food supply and safety of our food supply, et
    cetera, et cetera, they worked together on many projects to
    help protect our Nation's food supply, environmental quality,
    and the economic viability of production agriculture.
        How can the American public be sure that your agency is
    protecting scientific integrity through a risk-based approach
    rather than a precautionary stance to regulate dust, water,
    pesticides, chemicals?
        Is there any sort of cost benefit yardstick that all
    agencies should sort of agree on, and say, look, this is not
    the old testament. This is the new testament with all of the
    scientific means that we have today in a parts per trillion
    scientific world.
        I mean there is a little bit of something in everything. I
    am just wondering if all the agencies could not get together
    and say, look, to prevent the civil suits that are popping all
    over the countryside and which, as Mr. White can testify to and
    how he got dragged into it is rather amazing, but at any rate,
    could there not be some yardstick that we would all agree on
    and say, okay, from a stability standpoint instead of changing
    the rules every decade and coming back to rural fugitive dust
    for the fourth time when the administration changes next, it is
    regardless of whether it is Republican or Democrat, but at any
    rate can we not have some kind of a common measuring thing on
    it? This is what we are going to do and we are going to do it
    in a unified way and a regular way. Please.
        Administrator Jackson. At the risk of going further, why do
    I not simply answer, sir, by saying that, first, there are no
    fugitive dust rules. We have a scientific group, a Federal
    Advisory Committee, who have recommended particulate matter
    health-based standards.
        Senator Roberts. Can you send them out during harvest? That
    would be a good deal. Just send them out during harvest and
    they can drive the grain truck.
        Ms. Jackson. But what I committed to is that we are not
    going to propose any rules or change any rules without
    embarking on a process to work with the agricultural community.
    The rules are not for agriculture. Particulate matter comes out
    of trucks, comes out of diesel, and are a huge concern around
    ports. There are plenty areas in this country where PM10
    emissions are killers.
        Senator Roberts. I know the lawn mowers play a big part of
    that in the Kansas City area around August which is another
    problem but I am not going to get into that.
        What about a common yardstick? And the other thing is,
    certainly mentioned by the Chairman and the Ranking Member you
    know keep us posted and we can have a good dialogue but, man,
    if you could just get all these alphabet soup agencies together
    and say here is where we think we are. These are acceptable
    levels. That may change I mean if there is some terrible
    circumstance but it would certainly give us some stability.
        Ms. Jackson. Yes, sir. Senator, I am happy, one thing I
    take from this hearing is the need to stay close to this
    Committee. There were several requests that the Committee have
    much more information and consideration of what we are doing
    and we are happy to do that, and we have and I have worked very
    hard with Secretary Vilsack to ensure that the most important
    department with respect to these issues that we work very
    closely. I will redouble those efforts. I am happy to do that.
        Senator Roberts. Thank you.
        Ms. Jackson. Thank you, sir.
        Chairman Lincoln. Thank you, Senator Roberts.
        Thank you, Administrator Jackson. I will just reiterate
    what I think most of the members here have all expressed, and
    that is, when we go home to our district, we talk to the people
    that we represent. And I will be honest with you. I am going to
    make no apologies whatsoever for standing up for the hard-
    working farm families across this country that really do work
    hard day in and day out to provide the safest and abundant and
    affordable supply of food and fiber but they do it with great
    passion, Madam Administrator.
        They do it with a great passion towards not only what they
    are doing but how they are doing it. It is with great care and
    great compassion for the land and for the environment, and I
    think often times they feel like when they hear things from
    Washington that they are not doing anything right or that they
    are constantly being asked to do things that are impossible.
        So I would just say if there is anything, we would like to
    ask that there is communication. I know they want to be
    included. I think they feel like that they have had no role in
    these settlement agreements, that EPA has worked with other
    groups, the NGOs, the environmental groups, and yet agriculture
    does not feel like they have had a seat at the table.
        So I would ask of you to engage with them. Try to put
    yourself in their shoes and better understand what their
    challenges are.
        I tour the state frequently, and whether it is talking to
    farmers or educators or anybody else, small businesses and
    others across our State, when they look at Washington, they say
    do not lower your expectations of us. We want to do the best
    that we can possibly do, whether it is teaching children or
    growing food and fiber, whether it is creating jobs or
    whatever. But give us goals that we can reach.
        I think that the frustration in so many ways is that they
    feel like that the goals and the parameters that are being sent
    for them are things they cannot reach.
        With the slim margins that they are already facing and the
    fact that day to day the variables that they face could cause
    them really to go out of business, and regulations and other
    things on top of that just exacerbate that problem.
        So we certainly ask you to work with us. It is great to
    work with Secretary Vilsack. He is a good man, and the
    Department of Agriculture is great.
        For those of us that are out there in the field with our
    constituents, it is so critical for them to have a seat at the
    table. We just really would like to ask you to hopefully help
    us make that happen.
        Thank you for joining us today. We appreciate it. We look
    forward to working with you.
        I would like to ask the witnesses on the second panel to
    come forward and be seated.
        Our panel includes Rich Hillman, who is the Vice President
    of the Arkansas Farm Bureau. Jay Vroom, who is President and
    Chief Executive Officer of Croplife America. And Jere White,
    who is the Executive Director of the Kansas Corn Growers
    Association.
        Senator Roberts will be back so do not worry, Mr. White, he
    is not going anywhere.
        Gentleman, your written testimonies will be submitted for
    the record so I would like to ask you to try to keep your
    remarks within that five minute rule. We are very grateful that
    you are here.
        It is my pleasure to welcome a fellow Arkansan and a good
    friend of mine, Rich Hillman, somebody I know who has had a
    pair of boots on and knows what it is like out there in the
    field.
        Mr. Hillman has been a rice, soybean, and wheat farmer
    since 1983 in Lonoke County, Arkansas. He served on the
    Arkansas Farm Bureau Board of Directors since 2001. He is a
    leader in the agriculture community in my home State, and we
    are fortunate that he is here with us today to share his
    insight into running a farming operation and the effects of EPA
    regulations. We are grateful to have you.
        I also want to thank Jay Vroom. It is a pleasure to have
    him also on our witness panel. Mr. Vroom is president and CEO
    of Croplife America where he has been since 1989. He has been a
    lifelong advocate of U.S. agribusiness trade associations.
        Mr. Vroom was born and raised on a grain and livestock farm
    in north central Illinois which he owns to this day. So we are
    grateful not only for Jay's understanding of the agribusiness
    trade arena but also his understanding of what goes on a farm
    on a day-to-day basis.
        It is also our pleasure to have with us today Jere White.
    Mr. White is a fifth generation livestock producer in Garnett,
    Kansas. He serves on several board of directors for various
    agricultural organizations and has been Executive Director of
    Kansas Corn since 1988.
        Today he provides testimony as chairman of the Triazine
    Network which represents atrazine and related triazines which
    farmers use of herbicides.
        So we will start with Mr. Hillman and go down the line.
    Senator Roberts will be back shortly.
        Thank you.

       STATEMENT OF RICH HILLMAN, VICE PRESIDENT, ARKANSAS FARM
                       BUREAU, CARLISLE, ARKANSAS

        Mr. Hillman. Madam Chair and members of the Committee, my
    name is Rich Hillman. I am a fifth-generation rice, wheat,
    soybean the farmer from Carlisle, Arkansas. I am vice president
    of the Arkansas Farm Bureau and I am pleased to offer this
    testimony on behalf of our members across our great State.
        Let me begin by saying that farmers and ranchers have never
    felt more challenged and more threatened concerning their
    livelihood than they do today from the continuous onslaught of
    regulations and requirements from the Environmental Protection
    Agency. I hope my testimony today somehow represents the
    frustration that Arkansas farmers and ranchers are feeling.
        Over the past few decades agriculture has worked with USDA
    to make enormous strides in its environmental performance by
    adopting a range of practices and measures. We are proud of our
    accomplishment and believe that our overall environmental
    footprint is smaller today than it was 50 years ago.
    Incidentally in that same time period we have seen to double
    our production.
        Chairman Lincoln, as you stated in your opening comments,
    there are many regulatory issues facing farmers and ranchers
    that are very concerning. I would like to expand on a few.
        Currently in Arkansas all farmers and ranchers are required
    to have a restricted-use pesticide license. Chairman Lincoln,
    in your opening statement also mentioned FIFRA and the Clean
    Water Act and the current efforts of the EPA to require a
    pesticide general permit, an additional permit. This would mean
    not only additional expense but it would also place a burden on
    the farmer, rancher to apply for and to receive a permit every
    time we had to treat our crop. When insects attack, they
    usually come with a vengeance. In the matter of hours, they can
    destroy our postures and other crops.
        Madam Chairman, we greatly appreciate your leadership and
    work on this matter and we strongly support your legislation,
    Senate Bill 3735. I would like to take this opportunity to ask
    the other members of the Senate Agricultural Committee to join
    with you and Senator Chambliss in cosponsoring that Senate Bill
    3735. Agriculture needs your help now.
        In Arkansas for over 20 years, we have had a permitting
    program in place requiring all animal feeding operations with
    liquid manure systems to obtain no discharge permits. The Farm
    Bureau was a key supporter in the creation of this permitting
    process.
        EPA recently announced that the Illinois River watershed in
    Arkansas had been selected as one of its priority watersheds.
    This has resulted in two noticeable events. The first, the
    announcement of a TMDL study and increased inspections and
    enforcement of AFOs.
        At the same time EPA has insisted Arkansas State agencies
    start a process of developing a methodology to establish
    numerical standards for nutrients and developing a confined
    animal feeding operations CAFO permit.
        The potential to discharge language in CAFO was very vague
    and confusing. It does not clearly define who must apply. We
    believe this is intentional and it is an attempt to avoid the
    court's ruling that only those actual discharges must obtain a
    permit.
        Chairman Lincoln, as you well know poultry producers in
    Arkansas are struggling. Their profit margins are razor thin.
    They are good stewards of the land, and additional regulations
    add additional expenses which they can simply not afford.
        Spill prevention, control, and countermeasures is another
    thorn in agriculture's side. EPA wants us, farmers and
    ranchers, to build the retaining walls around fuel tanks in the
    middle of our fields and pastures. This would cost us thousands
    of dollars to mitigate what? EPA is attempting to address a
    problem that simply is not there.
        In closing, the farms and ranches across our Nation are
    privately held land that are coveted and cared for. They have
    provided not only a living for hundreds of thousands of farm
    families but have secured our Nation by feeding it.
        Year after year through floods, droughts, we have provided.
    Why would anyone want to keep us from doing that? Why would any
    agency try and change what we do best? And that is to feed this
    great Nation and the rest of the world.
        Madam Chairman, I commend you for hosting this hearing and
    for all of your work on behalf of agriculture in Arkansas and
    across this great country. I would be glad to entertain any
    questions at this time. Thank you.
        [The prepared statement of Mr. Hillman can be found on page
    47 in the appendix.]
        Chairman Lincoln. Thank you, Rich, and I know you are
    missing the first day of the conference in Arkansas so if you
    need me to write an excuse for you just see me after the
    hearing.
        Mr. Hillman. I would appreciate that. They are watching
    incidentally by internet so that put a little additional
    pressure on me but I thank you again.
        [Laughter.]
        Chairman Lincoln. We are glad you are here.
        Mr. Vroom.

    STATEMENT OF JAY VROOM, PRESIDENT AND CHIEF EXECUTIVE OFFICER,
                    CROPLIFE AMERICA, WASHINGTON, DC

        Mr. Vroom. Thank you, Madam Chairman, Mr. Roberts and other
    members of the Committee so much for convening this hearing to
    look at the entire landscape of environmental regulation facing
    the American farm families.
        I am indeed here today representing Croplife America, the
    trade association, as you indicated, that represents those
    companies that provide virtually all of the crop protection
    materials used by American farmers but I am also personally
    held accountable by another authority which is that group of
    family members who are at home in Illinois trying to harvest
    right now.
        In fact, I spoke with one of my brother-in-laws this
    morning who was gracious enough when I told him I was coming up
    here to visit with the Committee that he said, wait a minute,
    let me stop and shut the engine off. We need to talk. So I
    barely made it up here in time.
        So I do feel a personal responsibility to this as well as a
    professional one. I will speak about those regulatory matters,
    some of which have already been delved into quite extensively
    already here this afternoon with regard to crop protection
    materials and EPA's regulation of those materials as well as
    those pesticide materials that are used in non- agricultural
    activities. I will talk specifically about one of those as
    presented by our partner association, RISE.
        But as I have listened so far, the one thing that really
    has struck me is, oh, my goodness, is it any wonder that the
    American public is upset? The news media repeats this for us
    everyday, especially as we are anticipating the upcoming
    elections, that the American public are fed up and
        sick and tired of business as usual here Washington, DC.
        And as I think about it with respect to the things that we
    know best in the crop protection space and the interface with
    EPA, it really is a tale of three conflicting laws, three
    conflicting and out of touch and redundant federal agencies and
    the two offices within one of those federal agencies that just
    cannot quite get it right.
        We talk to those federal agencies a lot, of course, and
    with regard to, for instance, NPDS Clean Water Act issue that
    has already been talked about a good bit, we do think that we
    are at a point where the proposal that you and Senator
    Chambliss have made with regard to the Senate bill that Mr.
    Hillman just described and endorsed, and we did too, is timely
    because without that kind of assistance from Congress we fear
    that we do have a train wreck ahead of us.
        With all due respect to Administrator Jackson's explanation
    of the fact a few minutes ago, sitting in this chair, that the
    application of pesticides by farmers near water are not
    intended to be captured by this predatory regime and
    permitting, we all know that farmers farm near water.
        Most farmers hope they are near water and that water comes
    to help the crop grow. It is essential. So the NPDS regulatory
    and legal experts that we have retained as we have tried to
    work through this have told us with regard to decades of
    experience in the Clean Water Act and NPDS permitting, prior to
    this moment when it is now going to be applied to pesticides
    because of the Sixth Circuit decision, they have never seen an
    NPDS permit standstill or be adjusted to become more
    reasonable.
        It is always mission creep day after day after day. So it
    is clear to us that the American farmer should be concerned
    about this arriving on his or her doorstep, not only in terms
    of regulatory burden but also in terms of the fact that it
    creates so much additional liability, and farmers including my
    brother-in-law who reminded me again this morning, sitting on
    the combine, are concerned about that liability.
        The Endangered Species Act, another place where we need
    help from Congress. Can you pass a law perhaps or at least help
    provide more guidance and instruction to EPA and those other
    conflicting laws and regulatory agencies, the National Marine
    Fisheries Service and the Fish and Wildlife Service who keep
    just talking past each other.
        I just read a report a couple days ago about the spotted
    owl. We remember that our friends in forestry endured a
    terrific calamity decades ago when it was decided by a federal
    court that old growth harvesting needed to stop in order to
    protect the spotted owl, an endangered species.
        Yet this most recent report says that the populations of
    the spotted owl have continued to decline even though we have
    stopped harvesting in those old growth areas.
        The forestry industry is also an important customer of the
    pesticide industry and one that is going to be directly
    impacted by this NPDS permitting.
        Lastly, spray drift policy. Madam Chairman, you mentioned
    earlier in your opening remarks very serious concern and one
    where the agency just has not been able to focus on the clear
    and plain language in the statute of FIFRA that says that the
    risk standard is no unreasonable adverse effect.
        I would encourage you to guide, instruct the agency to make
    sure that when and if they do go about publishing a policy or
    regulation to govern spray drift that they always keep it
    connected to that risk standard that is in your statute.
        Thank you very much and I look forward to responding to
    your questions.
        [The prepared statement of Mr. Vroom can be found on page
    66 in the appendix.]
        Chairman Lincoln. Thank you.
        Mr. White.

       STATEMENT OF JERE WHITE, EXECUTIVE DIRECTOR, KANSAS CORN
                  GROWERS ASSOCIATION, BARNETT KANSAS

        Mr. White. Thank you, Madam Chairman, members of the
    Committee and Mr. Roberts for his attendance this afternoon.
        My name is Jere White, and I am the Executive Director of
    the Kansas Corn Growers Association and I do that role for
    Kansas Grain Sorghum as well. I appear today also as chairman
    of Triazine Network. The Triazine Network is not merely a
    coalition of agricultural groups but one that represents over
    30 crops grown in over 40 states. Those crops include corn,
    citrus, tree fruit, sorghum, vegetables, grapes, sugar cane,
    macadamia nuts. If it is grown, there is a chance that it is
    touched by our organization.
        Atrazine is a herbicide that American farmers have used for
    weed control for more than 50 years. It has been found to be
    safe by the governments of Great Britain, Australia, and many
    countries including the U.S. EPA.

        This morning I learned that the World Health Organization
    has adopted a new water quality standard, drinking water
    quality standard, and that new standard is over 33 times the
    current U.S. standard, 33 times.
        Atrazine is one of the most steady molecules on earth. On
    multiple occasions over the last decade, EPA has declared the
    product safe after rigorous scientific review using the highest
    quality data, and even as recently as last July.
        However, within weeks of last summer's positive report
    posted on their website, something happened, something that
    undermined all this deliberation, all this science.
        By the end of August of last year, a raft of spurious
    ecological epidemiology studies began to appear. They were
    promoted by trial attorneys, advanced by environmental groups
    with anti-agricultural agendas and their well-heeled PR
    advisors, and certainly picked up and ran by scare articles in
    the New York Times and also the Huffington Post.
        Trial lawyers joined forces with environmental activists
    and sought to regulate through the courts what science could
    not support within the EPA regulatory process way back in 2004.
        For instance, the EPA began to make their determination
    that atrazine was safe to continue to use in an interim
    registration decision that was published in 2003. The first
    trial lawyer lawsuit was filed in Illinois in 2004.
        But this is a different game now. Last fall they found the
    EPA very receptive to take the bate. Media frenzy prompted the
    EPA to announce the new comprehensive scientific re-review of
    atrazine with a break pace of four SAPs between November of
    2009 and just simply two weeks ago. Two more are scheduled
    quickly to follow in 2011.
        Amazingly EPA actually cited the media and activist reports
    for re-opening a scientific review process they just put to
    rest. EPA was not scheduled to review atrazine again until 2013
    as part of their scheduled review of all pesticides.
        In February an SAP considered the very studies EPA
    referenced to initiate this rush to re-review atrazine.
    Scientists at the SAP conclude that the overall quality of
    these studies was relatively, and certainly had the agency
    followed its own process of internal data evaluation prior to
    taking it to an SAP, it would have known that the studies were
    not useful in the regulatory process.
        This is just one way in which the agency's rushed re-
    review does not align with the processes that have up until now
    confirmed the EPA reliance on the best quality data available.
        Growers and associations which have provided comments in
    support of atrazine are now being targeted by the activist
    trial attorneys. Subpoenas are being issued for massive,
    expensive, and time-consuming production of records unrelated
    to any litigation.
        We are being harassed, even bullied, for daring to defend
    ourselves. The message is clear, if you stand up for atrazine
    you best be prepared to pay a price.
        I testified in support of atrazine at last week's SAP,
    sharing our concerns over trial attorney harassment of
    stakeholders as part of my comments. The very next day activist
    attorneys sought and obtained subpoenas against Kansas Corn,
    Kansas Grain Sorghum, and me personally.
        These subpoenas, not only do they intend to come into my
    offices on the 30th without any prior discussion whether my
    office might be available, they require me to be a Garnett,
    Kansas on the 30th at 10 o'clock as well as Olathe, Kansas on
    the 30th at 10 o'clock, depending on which hat I am wearing I
    guess that day. Fortunately I will be in the Ukraine on the
    30th at 10 o'clock.
        Most farmers live next to their fields. They raise their
    children in these environments; and if there was any real harm
    in atrazine, the American farmer would have been the first to
    notice and certainly the first to care.
        They value atrazine because it is effective and it is safe.
    That is why well over half of U.S. corn, two-thirds of sorghum,
    and about 90 percent of sugar cane is protected from weeds by
    the use of atrazine.
        For the farmer, however, atrazine is not a matter of
    politics. It is a matter of staying in business in what is
    still a rough economy.
        EPA estimated in 2006 that atrazine provides a $28 per acre
    benefit for corn, and while significant, we believe that number
    is actually much larger today.
        While environmental activists demonize atrazine, farmers
    know that atrazine enables an enormously productive benefit for
    the environment called conservation tillage. In 2008, for
    example, 64 percent of atrazine used in corn supported
    conservation agriculture practices that help sequester carbon,
    reduce fuel consumption, and improve a farm's overall carbon
    footprint as well as reduce soil erosion.
        I realize the members of this distinguished body have many
    important issues before you today. EPA's treatment of atrazine
    may not sound like a high priority but it is a matter of great
    importance to the farm economy.
        EPA at the highest levels needs to provide guidance to
    ensure that years of scientific review conducted under both
    Republican and Democratic administrations is not undermined. In
    addition, I believe our elected agricultural leaders must help
    EPA to understand the implications of their failure to do so.
        Thank you.
        [The prepared statement of Mr. White can be found on page
    75 in the appendix.]
        Chairman Lincoln. Thank all of you gentlemen for your
    testimony and we appreciate you coming before us today.
        Mr. Hillman, a few minutes ago you mentioned several
    concerns regarding the increased regulatory burden that farmers
    are facing these days and there is no doubt, as you mentioned,
    the margins are slim and really quite frankly as I mentioned so
    many times today the uncertainty and unpredictability of what
    you are up against whether it is regulation, weather, trade,
    price volatility, just a whole host of things.
        Of course, our State is diverse. In terms of farming
    operations, we have row crops in the east. We have forest in
    the south, and poultry and livestock throughout the State, and
    I know that all of our farmers all over the State are concerned
    about EPA's aggressive regulatory approach.
        What in your view are the major EPA regulatory issues
    facing the producers in Arkansas if you had to just pick the
    two top ones? I know we have mentioned a lot here today. But
    what would you say are those top two for Arkansas?
        Mr. Hillman. Chairman Lincoln, I think that you did mention
    that the whole State would be affected by any and all. But I
    think at the top of the list, two, CAFO, the poultry industry,
    if this is enacted, if their feathers fall out of their house,
    or the dust, even in the ditch, not even in water, they will be
    regulated like they have never been before, certainly northwest
    Arkansas and also southwest Arkansas, and I mentioned in my
    testimony that the profit margin that these folks are having
    right now is actually razor thin. An additional expense, and
    make no mistake about it, the expense is going to be there.
        The second would be the FIFRA. I think that would not only
    affect me as a row crop farmer, it would certainly affect the
    delta but it would affect the whole state as well.
        As I stated in my testimony, we currently already use and
    have and applying for and are trained for a restricted use
    license. We do that on the State level. Incidentally, we work
    well with all of our State agencies that oversee what we do for
    a living. This really would affect us. It would affect the
    whole State. You are talking about a whole new avenue of
    permitting.
        I know you said two but the spill prevention. You know for
    a smaller farmer having to go out there and build containment
    walls to the specs that the engineering firms deem necessary, I
    say again I do not know that there is a great problem with that
    whatsoever.
        So I guess that would be my comments.
        Chairman Lincoln. Well, I just note your second issue there
    on the FIFRA. I remember as a child my dad taking great care in
    terms of what applications he made and how he made them,
    studying for the testing to be able to get that permit, not
    because he just wanted to pass because he wanted to do the
    right thing.
        I think often times when we find people here, bureaucrats
    in the regulatory agencies who have not walked in those boots
    they do not really understand the sense of pride and dedication
    that farm families all across this country have in producing a
    good quality crop with great respect to the environment and
    doing all that they can.
        We appreciate that.
        Mr. Vroom, you have had some insightful testimony regarding
    the history and the background of pesticide regulation.
        This Committee does have direct jurisdiction over FIFRA. It
    has served its purpose for many years in protecting both the
    environment and applicators.
        As you have noted, new developments under the Endangered
    Species Act and the Clean Water Act along with proposed spray
    drip guidance are threatening our FIFRA effective regulatory
    scheme.
        What are some of the specific instances where delays in
    that Endangered Species Act biological opinions will prohibit
    producers who utilize crop protection products?
        And I have to say you also mentioned the aerial applicators
    better known as crop dusters. When I was in high school, I
    learned how to fly from a crop duster who served his country in
    Vietnam as a pilot. They do a tremendous job.
        If you have ever been out there in those fields, as we
    have, and you know what happens when those planes come in and
    out over the fields, thinking about spray drift and other
    things like that it boggles your mind to think that you are
    going to be able to do what it is that they wanted you to do.
        Mr. Vroom. Well, so I think specific to your question it is
    really in the holistic context these different laws that are
    not designed to work together and now you know we have had them
    on the books like the Endangered Species Act and FIFRA together
    for more than 35 years.
        For most of the time, there were not complex but extremist,
    activist organizations with very smart lawyers found favorable
    courthouses to go to and bring litigation that suddenly started
    to create this collision.
        Then out-of-court settlements that you have alluded to
    earlier where not all of the parties including our industry got
    to participate at the table for settlement discussions and you
    get outcomes that take valuable tools away from farmers which
    do not necessarily result in any benefit to the endangered
    species, a la, the spotted owl and old-growth timber that I
    mentioned earlier.
        So do we really want to look up and be 10 or 20 years down
    the road and have lost lots of important technology and still
    not benefiting those endangered species and suddenly 10 or 20
    years from now or maybe even sooner the United States of
    America is a net food importer.
        I have had the opportunity, because a lot of our member
    companies are headquartered in Europe, to be there a lot this
    year, and I have heard over and over again the European Union
    is a net 35 billion euro, that is more dollars than euros, food
    importer.
        Do we really want the United States of America to be there
    in a few years? And it is largely because of the precautionary
    principle of regulation of technology that has either been
    taken away from the European farmer or, in the case of
    biotechnology, has never been even made available to the
    European farmer.
        The American farmer is supplying some of that need through
    the production of soybeans that we export to the European Union
    but very little corn and corn products because again of that
    biotechnology restriction.
        So I think you need to really put it in that kind of
    context, and for those Americans who are not engaged in
    agriculture directly, in production agriculture, those of us
    need to understand that $100 billion plus that Senator
    Chambliss mentioned of agricultural exports do not just go
    directly into the pocket of the American farmer.
        It is generating enormously powerful, great number of jobs
    at the docks loading the ships, in plants manufacturing food to
    you know higher values for export, all matter of great
    employment that adds in ripple effect to our economy.
        Again I think it needs to be put into holistic context. I
    am not here to just kind of whine about you know EPA and FIFRA
    and pesticide regulation but to ask that you know the country
    think about this and the Senate in particular think about the
    ability to encourage EPA to work with us.
        I honestly believe that Administrator Jackson does want to
    do the right thing. She has very personal ties with
    agriculture. She has a lot on her plate as you mentioned with
    the oil spill in the Gulf of Mexico and many other important
    issues.
        So if she can be encouraged along with her team to work
    more closely with all us in the agriculture community as you
    have been suggesting on both sides of the aisle here this
    afternoon, I think we can get back to the table and make that
    kind of progress to preserve the technologies the American
    farmer needs and ensure that we continue to be leaders in the
    world's food and fiber and renewable production.
        Chairman Lincoln. That is great. I think finding common
    ground and working together is going to be the critical part of
    this, and you are exactly right. We need to work with the
    Administrator to reach that.
        Mr. White, we certainly appreciate your comments in the
    importance of atrazine to the production agriculture and
    certainly the vast body of scientific studies regarding that
    impact. It is critical for us to look at the science-based
    information that is there.
        If farmers lost their ability to use atrazine, how would it
    impact their farming operations, their costs, and those tilling
    practices that you mentioned? That would be I guess where I
    would want your input.
        Mr. White. Thank you, Madam Chairman.
        Really there are a couple of issues. There is a financial
    cost, and certainly if you use what I consider a conservative
    number by EPA, we are talking $28 an acre for corn. Less
    analysis has been done by the agency for grain sorghum and
    sugarcane.
        But beyond then when you look at the fact that atrazine is
    a produce that is used not necessarily very much today as a
    primary herbicide but it is an additive herbicide to a lot of
    the new technologies.
        So it has not been unusual at all when different companies
    introduce a new technology for controlling weeds, the next
    thing they do is introduce a new formulation that includes some
    atrazine in it, you know may be at a lower rate.
        So it is not just about the cost. It is about being able to
    control the weeds. It is about dealing with weed resistance
    issues with some of the more popular technologies that are out
    there.
        But the bigger question really, if there is anything bigger
    than atrazine and I have devoted a lot of my life the last 16
    years to this issue, is the fact that with the 50 years of safe
    use, with literally 6,000 plus studies being a part of the
    database that has led EPA to arrive to the safety determination
    they have today, if you cannot defend atrazine, what product is
    it that we will be able to use?
        What product is out there that has that body of science
    today or will have in the future that the companies will invest
    you know tens of billions of dollars to defend?
        Quite frankly if this process goes the way it is going and
    the award for stakeholders to step up and support it is to get
    beat down by trial attorneys, how many are going to be willing
    to do that in the future?
        Chairman Lincoln. That is exactly right. Thank you.
        Senator Roberts. Thank you, Madam Chairman. More especially
    in regards to this panel I thank the panel for taking the time.
    I know your time is very valuable.
        Pesticides like atrazine are subject to regular review. In
    fact, atrazine was re-registered in 2006, not scheduled for re-
    review until 2013. That is under the banner of stability and
    predictability. Always something could happen why you could
    have a special advisory, pardon me, a Scientific Advisory Panel
    meeting.
        But in October of last year, EPA scheduled an unprecedented
    four Scientific Advisory Panel meetings. Madam Chairman,
    everything is an acronym here. Those are called SAPs. So there
    were four SAPs within 11 months.
        Since 2000, EPA reviews have included more than 16
    opportunities for public comment including six SAP meetings
    convened under the Federal Insecticide, Fungicide, and
    Rodenicide Act, FIFRA.
        I hate to admit this but I was a staffer for my predecessor
    in the House when FIFRA was first passed and he assigned me to
    go cover it one time because our agricultural assistant was
    sick.
        I attended the meeting. I had no idea what they were
    talking about and came back and told the congressmen, Keith
    Sebelius of the big First District of Kansas, do not ever
    assign me to that again, only to be assigned when I became a
    member of Congress to the subcommittee dealing with FIFRA and
    dealing with George Brown of California at that time who knew
    more about it than anybody, and I was ranking member.
        Chairman Lincoln. You were sapped there.
        Senator Roberts. Yes. This SAP suddenly became known as Mr.
    FIFRA, and people there can testify that is the case, Mr. Vroom
    especially.
        And it is amazing what you can get acquainted with if you
    just have good staff that print things in large letters on
    cards and get you to read them.
        Here is what the situation is with Jere White, who is a
    great friend and takes his time and effort to represent the
    Kansas Corn Growers.
        You stated now in your oral and written testimony that you
    have recently been served a subpoena and you believe it to be
    because, as a leader of the Kansas Corn Growers Association,
    Kansas Corn Commission, and the Kansas Grain Sorghum Producers
    Association, you have been an active participant in promoting
    the beneficial uses of atrazine.
        The Chairman just asked you the question. You just
    responded. You are here in Washington today at your expense.
    Because you testified before the EPA Scientific Advisory Panel
    on atrazine, the plaintiff's attorney from Holiday Shores
    Sanitary Distinct in the State of Illinois court case has asked
    for you to provide all correspondence, memoranda, notes,
    studies, and surveys to and from Jere White, Kansas Corn and
    Kansas Grain Sorghum Commission with regard to atrazine.
        I got this subpoena. I mean I did not get the subpoena but
    we may if this continues. I do not know the difference between
    appearing before a Scientific Advisory Panel then having some
    trial lawyer send you a subpoena from another state, a man who
    farms in one state then gets a subpoena from somebody from
    another state simply because he has the courage and the
    leadership to head up a farmer organization that stood before a
    Scientific Advisory Panel, what the heck is the difference
    between that and coming to the Congress to testify.
        Maybe you are going to get a subpoena because you came here
    and testified before us. Maybe the Chairman and I will get a
    subpoena. That is something to think about. I had not really
    thought about that until right now.
        Then if you look at this, Madam Chairman. Let me get back
    to this. This is what he is supposed to be deposed on in two
    separate places at the same time. I do not think they are going
    to go to the Ukraine. They might. This is more reflective of
    the Soviet Union than it is I think America.
        All correspondence to and from the relative parties, Kansas
    Corn Growers Association, et cetera, et cetera, et cetera. All
    e-mails from copying, blind copying, so on and so forth, a
    blind copying. Sending blind copies. If they are blind, how
    can--no, never mind.
        All internal memoranda and notes concerning atrazine. All
    studies relating to atrazine, conducted, authorized, sponsored
    or supervised by the Kansas Corn Growers; all raw data of
    atrazine studies, all notes, reports, analysis or other
    documents, any source of information, other documents relied
    upon, any surveys received from corn growers and/or farmers.
        Jere, hello, how you doing, e-mails. What are you doing on
    the atrazine thing, well, let me tell you what is happening on
    my farm. Sorry, got to put that in there.
        All reports, articles, other documents written by the
    Kansas Corn Growers, any source information or other documents,
    all documents related to presentation here today, all documents
    related to persons present in any presentation.
        I guess I am going to have to submit something. Any
    documents evidencing monetary contributions or compensation.
    Oh. Any documents relating to training, how you going to get
    anything, in contribution, well, never mind. I am not going to
    get into that.
        Any documents relating to training offered to Kansas Corn
    Growers Association, all phone logs, notes, other documents
    reflecting phone conversations, all calendar entries, reports.
        This just goes on and on and on even to the point if he
    talks to his secretary that could be deposed. My question is.
    You have given your life to the Kansas Corn Growers and you
    have got a great farming operation.
        If we are going to get into anything under the jurisdiction
    of FIFRA where somebody stands before a Scientific Advisory
    Panel and gives their point of view or this Committee or any
    other public place, how does this interaction and judicial
    activism affect those who may want to serve on farmer or
    commodity organizations, wheat growers, corn growers, cotton
    growers, sorghum growers, livestock association, pork
    producers?
        It seems to me this has a terrible chilling affect and some
    of it comes back to the fact that the EPA decided to have six
    SAPs in god knows how many days, giving them the opportunity
    then to say, okay, here is a straw man out here, pardon me, a
    corn man out here, a corn husk out here, that they can go
    after.
        I do not know how anybody wants to serve in a capacity of
    leadership within any farm organization if that is the case.
    This is a very bad situation.
        Mr. White. Well, Senator, they are certainly getting at our
    right to associate. I think it is a fundamental principle of
    what trade associations do. You know they are even getting at
    our right to associate within our office.
        As we discussed earlier, many times things that we put out
    for public consumption gets battered around just as it would in
    your office. Not all the ideas that are floated certainly rise
    to the top or sometimes you write back to your coworker what
    are you thinking but a lot of times today we write. We do not
    necessarily talk.
        All those discussions are part of the subpoena. The
    interaction with board members. It does. It gets at the very
    core of what we are able to do as we develop our policies, our
    positions, our thoughts, and I think it is intended to do that.
    I truly do.
        Can I say with certainty that I received these subpoenas
    because I was at the SAP last week? No, I do not know the
    thought process of the trial attorneys. But I can tell you that
    the Holiday Shores Sanitary District has no reason to think
    that I know anything about what goes on when they sell water to
    people in Holiday Shores. And I do not.
        But we are talking literally, I have been following the
    atrazine saga since 1994. Within the State of Kansas, I have
    been working on the atrazine issue since 1989. We are talking
    tens of thousands of documents, thousands of e- mails. We are
    talking things that are stuck away in the attic, in storage
    sheds, and things like that.
        A tremendous burden, and I know it is of no value.
    Admittedly, the trial attorneys may say, well, we do not know
    that. But again what right do they have to harass me. And the
    only reason they know I exist is because of the activities that
    you talked about.
        I stuck my head up out of the weeds and welcome to our
    world. I can tell you that you know if it is meant to
    intimidate, it had the wrong impact on me. I originally was not
    able to attend this hearing because of some conflicts. I did
    everything I could to work them out to be here after getting
    the subpoenas on Monday night. And if they are coming after me,
    as we might say Kansas occasionally, they need to bring a lunch
    because they are going to be at it a while.
        Senator Roberts. Madam Chairman, I think we have one heck
    of a problem on our hands or a challenge on our hands. This has
    the effect, a chilling effect as it relates to anybody that
    takes their time and effort to serve in leadership in behalf of
    any farmer organization, any commodity group or for that matter
    any group, and I would like to ask unanimous consent that these
    three subpoenas be made part of the record if that is
    appropriate.
        Chairman Lincoln. Without objection.
        [The information can be found on page 82 in the appendix.]
        Senator Roberts. I thank you for having the hearing. Jere,
    I am sorry you having to go through this and we will keep
    meeting and see if we can find some answer to this because this
    is simply not right and I appreciate your coming.
        Mr. White. Thank you, Senator.
        Mr. Vroom. Madam Chairman, could I add something? I think
    what Jere is working on with regard to bringing information
    forward, scientific and benefits information about atrazine,
    the same thing that is going on with regard to a number of
    other older compounds which are also important, all of which
    get regular review by EPA, and in the case of all of these like
    atrazine, like carbofuran, endosulfan, aldicarb and the list
    goes on.
        We have seen risk mitigation over the years, certainly the
    20 plus years that I have been with this association and yet
    farmers still depend on these and yet now in the last few
    months we have seen what we feel like are knee jerk and
    unexpected kind of new process or the departure from regular
    process procedures in threatening or forcing cancellation of
    some of these products.
        But also there is a chilling effect on our members who are
    inventing the newer products to go along with the older
    product. A great example is one of our members who has a methyl
    bromide replacement product, methyl iodide. EPA registered it
    several years ago and it is still waiting for regulatory
    approval in California.
        Extremist activist organizations have challenged that in
    California and now have petitioned EPA to rethink their
    registration of methyl iodide. So that has to make those member
    companies of ours who are investing $20-, $30 million a month,
    and usually it is upwards of $300 million cost before they ever
    get a new product to market, to wonder is it really worth the
    price of continuing to take the risk to innovate.
        So there is a chilling effect everywhere you look, and it
    is because we have lost our way with regard to regular order,
    the rule of law, science and transparency which the
    Administrator has said she supports and is committed to, and I
    believe with your help she will return to.
        Chairman Lincoln. There is no doubt that transparency and
    you know science-based evidence and science-based research is
    critical to what we need to see happen here. I think you are
    right that we just need to make sure we are continuing to move
    forward and to encourage that in a common sense way and to also
    ask everybody to be at the table when things are being decided.
        I think several things have come out of this and I am
    certainly appreciative to this panel and all of our witnesses
    today. One of the most important is that if we do not like
    importing oil we are really not going to like importing our
    food.
        And we have a lot of really hard working farm families and
    ranchers across the State, across this country that do a great
    job, and I think that you know so many of the other things that
    we have seen, whether it is what we can use, what the tools are
    that our agricultural producers have that allow them to be
    competitive and to continue to do what they do, taking those
    tools away from them not only unfortunately may shift us into
    requiring our dependence on imported food but it is importing
    food from countries that grow crops and products with the very
    things that we are outlawing now.
        So I think it is so important for us to work through these
    issues and I will look forward to working with all of you all
    as well as the EPA Administrator and others and certainly my
    colleagues to come up with some of these solutions so we can
    keep those hard-working farm families doing what we need to do
    best.
        So thank you all for being with us today.
        The record will remain open for five business days for
    members who could not attend to submit their questions in
        writing and that would mean that the Committee on
    Agriculture, Nutrition, and Forestry is adjourned.
        [Whereupon, at 5:06 p.m., the Committee was adjourned.]

    =======================================================================

                                A P P E N D I X

                               September 23, 2010

    =======================================================================

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                       DOCUMENTS SUBMITTED FOR THE RECORD

                               September 23, 2010

    ======================================================================

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                             QUESTIONS AND ANSWERS

                               September 23, 2010

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