[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
TO CONSIDER A DISCUSSION DRAFT ENTITLED ``INCREASING MANUFACTURING
COMPETITIVENESS THROUGH IMPROVED RECYCLING ACT OF 2012'' AND H.R. 2997,
``THE SUPERFUND COMMON SENSE ACT''
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
JUNE 27, 2012
__________
Serial No. 112-156
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
_____
U.S. GOVERNMENT PRINTING OFFICE
81-483 PDF WASHINGTON : 2013
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
COMMITTEE ON ENERGY AND COMMERCE
FRED UPTON, Michigan
Chairman
JOE BARTON, Texas HENRY A. WAXMAN, California
Chairman Emeritus Ranking Member
CLIFF STEARNS, Florida JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky Chairman Emeritus
JOHN SHIMKUS, Illinois EDWARD J. MARKEY, Massachusetts
JOSEPH R. PITTS, Pennsylvania EDOLPHUS TOWNS, New York
MARY BONO MACK, California FRANK PALLONE, Jr., New Jersey
GREG WALDEN, Oregon BOBBY L. RUSH, Illinois
LEE TERRY, Nebraska ANNA G. ESHOO, California
MIKE ROGERS, Michigan ELIOT L. ENGEL, New York
SUE WILKINS MYRICK, North Carolina GENE GREEN, Texas
Vice Chairman DIANA DeGETTE, Colorado
JOHN SULLIVAN, Oklahoma LOIS CAPPS, California
TIM MURPHY, Pennsylvania MICHAEL F. DOYLE, Pennsylvania
MICHAEL C. BURGESS, Texas JANICE D. SCHAKOWSKY, Illinois
MARSHA BLACKBURN, Tennessee CHARLES A. GONZALEZ, Texas
BRIAN P. BILBRAY, California TAMMY BALDWIN, Wisconsin
CHARLES F. BASS, New Hampshire MIKE ROSS, Arkansas
PHIL GINGREY, Georgia JIM MATHESON, Utah
STEVE SCALISE, Louisiana G.K. BUTTERFIELD, North Carolina
ROBERT E. LATTA, Ohio JOHN BARROW, Georgia
CATHY McMORRIS RODGERS, Washington DORIS O. MATSUI, California
GREGG HARPER, Mississippi DONNA M. CHRISTENSEN, Virgin
LEONARD LANCE, New Jersey Islands
BILL CASSIDY, Louisiana KATHY CASTOR, Florida
BRETT GUTHRIE, Kentucky JOHN P. SARBANES, Maryland
PETE OLSON, Texas
DAVID B. McKINLEY, West Virginia
CORY GARDNER, Colorado
MIKE POMPEO, Kansas
ADAM KINZINGER, Illinois
H. MORGAN GRIFFITH, Virginia
_____
Subcommittee on Environment and the Economy
JOHN SHIMKUS, Illinois
Chairman
TIM MURPHY, Pennsylvania GENE GREEN, Texas
Vice Chairman Ranking Member
ED WHITFIELD, Kentucky TAMMY BALDWIN, Wisconsin
JOSEPH R. PITTS, Pennsylvania G.K. BUTTERFIELD, North Carolina
MARY BONO MACK, California JOHN BARROW, Georgia
JOHN SULLIVAN, Oklahoma DORIS O. MATSUI, California
CHARLES F. BASS, New Hampshire FRANK PALLONE, Jr., New Jersey
ROBERT E. LATTA, Ohio DIANA DeGETTE, Colorado
CATHY McMORRIS RODGERS, Washington LOIS CAPPS, California
GREGG HARPER, Mississippi JOHN D. DINGELL, Michigan (ex
BILL CASSIDY, Louisiana officio)
CORY GARDNER, Colorado HENRY A. WAXMAN, California (ex
JOE BARTON, Texas officio)
FRED UPTON, Michigan (ex officio)
(ii)
C O N T E N T S
----------
Page
Hon. John Shimkus, a Representative in Congress from the State of
Illinois, opening statement.................................... 1
Prepared statement........................................... 4
Hon. Gene Green, a Representative in Congress from the State of
Texas, opening statement....................................... 18
Hon. Fred Upton, a Representative in Congress from the State of
Michigan, opening statement.................................... 19
Prepared statement........................................... 21
Hon. Cory Gardner, a Representative in Congress from the State of
Colorado, opening statement.................................... 22
Hon. Henry A. Waxman, a Representative in Congress from the State
of California, opening statement............................... 22
Witnesses
Hon. Billy Long, a Representative in Congress from the State of
Missouri....................................................... 24
Prepared statement........................................... 27
Mathy Stanislaus, Assistant Administrator, Office of Solid Waste
and Emergency Response, Environmental Protection Agency........ 31
Prepared statement........................................... 34
Answers to submitted questions............................... 137
Charles D. Johnson, Vice President, Environment, Health, and
Safety, The Aluminum Association, Inc.......................... 57
Prepared statement........................................... 60
Answers to submitted questions \1\...........................
Lynn M. Bragg, President, Glass Packaging Institute.............. 65
Prepared statement........................................... 67
Answers to submitted questions............................... 143
Jonathan Gold, Senior Vice President, Recovery and Recycling
Division, The Newark Group, on Behalf of The Paper Recycling
Coalition...................................................... 78
Prepared statement........................................... 80
Answers to submitted questions............................... 145
John H. Skinner, Executive Director and Chief Executive Officer,
Solid Waste Association of North America....................... 84
Prepared statement........................................... 86
Susana M. Hildebrand, Chief Engineer, Texas Commission on
Environmental Quality.......................................... 96
Prepared statement........................................... 98
Answers to submitted questions............................... 146
Walter Bradley, Government and Industry Relations Representative,
Dairy Farmers of America....................................... 100
Prepared statement........................................... 102
Ed Hopkins, Director, Environmental Quality Program, Sierra Club. 106
Prepared statement........................................... 108
Answers to questions from Mr. Shimkus........................ 153
Answers to submitted questions............................... 155
Submitted Material
Discussion Draft of H.R. --------, the ``Increasing Manufacturing
Competitiveness Through Improved Recycling Act of 2012,''
submitted by Mr. Shimkus....................................... 7
H.R. 2997, ``The Superfund Common Sense Act,'' submitted by Mr.
Shimkus........................................................ 15
Letter, dated June 25, 2012, from Dennis Sabourin, Executive
Director, National Association for PET Container Resources, to
Mr. Shimkus, submitted by Mr. Shimkus.......................... 130
Letter, dated July 3, 2012, from Timothy R. Gablehouse, Director,
Government Relations, National Association of SARA Title III
Program Officials, to committee leadership, submitted by Mr.
Green.......................................................... 132
Letter, dated June 26, 2012, from Bob Stallman, President,
American Farm Bureau Federation, to Mr. Shimkus and Mr. Green,
submitted by Mr. Shimkus....................................... 135
----------
\1\ Mr. Johnson did not answer submitted questions for the record
by the time of printing.
TO CONSIDER A DISCUSSION DRAFT ENTITLED ``INCREASING MANUFACTURING
COMPETITIVENESS THROUGH IMPROVED RECYCLING ACT OF 2012'' AND H.R. 2997,
``THE SUPERFUND COMMON SENSE ACT''
----------
WEDNESDAY, JUNE 27, 2012
House of Representatives,
Subcommittee on Environment and the Economy,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:18 a.m., in
room 2322 of the Rayburn House Office Building, Hon. John
Shimkus (chairman of the subcommittee) presiding.
Members present: Representatives Shimkus, Murphy, Pitts,
Harper, Cassidy, Gardner, Upton (ex officio), Green,
Butterfield, Dingell (ex officio), and Waxman (ex officio).
Staff present: Nick Abraham, Legislative Clerk; Anita
Bradley, Senior Policy Advisor to Chairman Emeritus; Jerry
Couri, Senior Environmental Policy Advisor; Dave McCarthy,
Chief Counsel, Environment and the Economy; Andrew Powaleny,
Deputy Press Secretary; Tina Richards, Counsel, Environment and
the Economy; Chris Sarley, Policy Coordinator, Environment and
the Economy; Jacqueline Cohen, Democratic Counsel; Greg Dotson,
Democratic Energy and Environment Staff Director; Kristina
Friedman, Democratic EPA Detailee; and Caitlin Haberman,
Democratic Policy Analyst.
Mr. Shimkus. The committee will now come to order. Most
people know how we will conduct this day's hearing. We have
four panels. We actually have two subject matters. The first
panel will go relatively quickly, it will be Congressman Billy
Long, and then the second panel will be the EPA, and then we
will follow it by panel three and panel four, so probably a
productive couple of hours this morning.
So with that we would like to welcome you all, and I
recognize myself for 5 minutes for my opening statement.
OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
This subcommittee set an official record last week for
length of a two-panel hearing, which was very short, but today
we make up for it with four panels. The chair appreciates
Members' judicious use of their time last week and hopes that
we can have a repeat performance.
On behalf of the whole subcommittee, we extend
congratulations to a lucky guy, Jonathan Elkin, and our very
best wishes to him and his new bride, minority counsel
Jacqueline Cohen, who were recently married.
Throughout this Congress, our committee has been
investigating places where Congress can enhance opportunities
for growing the private sector of our economy, as well as
examining places where duplicative red tape creates more
burdens, but not greater protection. Our hearing today will
examine legislative measures that touch upon each of these
concepts.
The first bill is a Discussion Draft which directs EPA to
collect better information on recyclable materials. As
cochairman of the House Recycling Caucus, I think the aspect we
are looking into is particularly interesting and I think we
should better understand the need for this legislation.
For decades, the EPA has been publishing a biannual report
showing what products and materials are commonly collected and
disposed. All of these materials, including paper, glass, and
aluminum, are generated by residential and commercial sectors
and are recycled, reused, combusted, or land-filled.
Despite all that has been accomplished in the collection of
recyclables, there is concern among several recyclers that a
considerable amount of quality feedstock materials are not
ultimately being processed and reused. Many recyclers believe
asking smarter questions and collecting better data will lead
us to solutions to this problem.
The Discussion Draft directs the EPA, with the Energy and
Commerce Departments, to gather and review voluntarily
submitted information on waste streams and recycling from
government and private entities. Specifically, the Discussion
Draft requires EPA to report to Congress within 2 years on each
type of recycled material separately and cover the quantities
collected, the method of collection, the amount of recoverable
material, and amount disposed. Importantly, the Discussion
Draft leaves it to the private sector to figure out how to best
use this information and does not create Federal recycling
regulations.
The second bill under consideration today is H.R. 2997, the
Superfund Common Sense Act. The bill arises from the concern
that courts or EPA will spell out something in law that is
unwarranted or redundant and never directed by Congress.
Currently, Section 103 of the Comprehensive Environmental
Response Compensation and Liability Act, commonly known as
CERCLA; and Section 304 of the Emergency Planning and Community
Right-to-know Act, commonly known as EPCRA, establish reporting
requirements for the release of hazardous substances that are
above reportable quantities.
Superfund also imposes strict, joint, several, and
retroactive liability for the release of hazardous substances
and has response and abatement provisions. While manure has not
been classified as a hazardous waste, concern exists--based on
past legal challenges--that litigation or future regulation
could change that equation.
Of note, in 2008, EPA issued a final rule exempting all
reporting requirements for air releases from manure at farms
under Section 103 of CERCLA. The final rule also exempted
certain livestock farms, based upon size, that had air
emissions from animal waste that met or exceeded the level for
reporting under EPCRA Section 304. However, on October 21,
2011, EPA stated in the Federal Register it was ``on a separate
track'' to develop regulations to amend reporting requirements
for livestock operations for air emissions under CERCLA and
EPCRA.
H.R. 2997 clarifies manure is not included in the meaning
of ``hazardous substance'' or a ``pollutant or contaminant''
under CERCLA. H.R. 2997 also eliminates the emissions reporting
requirement for releases associated with manure under CERCLA
Section 103 and Section 304 of EPCRA. In addition, by changing
the definition of ``hazardous substance,'' ``pollutant,'' or
``contaminant'' under CERCLA, H.R. 2997 also removes liability
for releases of manure and precludes use of CERCLA sections
dealing with response authorities and abatement actions.
While H.R. 2997 makes explicit the application of CERCLA
and EPCRA as it relates to releases associated with manure, the
bill preserves the applicability of other Federal, State, and
local environmental law as it relates to the definition of
manure, or the responsibilities or liabilities of persons
regarding the treatment, storage, or disposal of manure.
I want to thank all of our witnesses for coming here to
lend their time and experience to us. I look forward to their
testimony.
My time has expired and now I would like to recognize the
ranking member of the subcommittee, Mr. Green from Texas, for 5
minutes.
[The prepared statement of Mr. Shimkus follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
OPENING STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Green. Mr. Chairman, I want to thank you for holding
this hearing today, and I would like to welcome our witnesses
and particularly our fellow Member from Missouri, Congressman
Long. Thank you for coming.
Today, we are here to discuss two different bills--a
Discussion Draft entitled ``Increasing Manufacturing
Competitiveness through Improved Recycling Act of 2012''
offered by our colleague on our committee, Mr. Sullivan from
Oklahoma; and H.R. 2997, the Superfund Common Sense Act,
offered by Congressman Long from Missouri. While I appreciate
your willingness to testify today, I have some concerns about
your bill which would exempt manure from cleanup injunction and
reporting authorities available under the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, also referred as Superfund; and the Emergency Planning
and Community Right-to-Know Act of 1986.
The Superfund Act, as amended by amendments over the years,
authorizes Federal cleanup of releases of hazardous substances,
imposes liability for cleanup, and provides a restoration and
replacement of natural resources affected by the release. I
have two Superfund sites in our district and so I can
appreciate the necessity of the program.
While I share and appreciate your concern that small farms
not be required to file reports on animal waste, I think you
need to recognize that exempting concentrated animal feeding
operations, also known as CAFOs, is highly controversial and
could have serious ramifications for communities across our
country should contamination occur at a large agribusiness
facility. CAFOs store very large amounts of animal waste and
contrary facilities which does not occur naturally at most
farms. That is why the EPA currently differentiates between the
two and the small farms are exempted.
Studies have shown that these CAFOs emit large amounts of
hazardous ammonia and hydrogen sulfide, which have been linked
to health concerns including chronic respiratory, neurological,
and other problems. That is why the law requires reporting
because emergency response removal and hazardous release
controls depend on the accurate information in order to protect
public health and the environment. H.R. 2997 would eliminate
both the notification and reporting requirements for all
releases associated with manure, including ammonia and hydrogen
sulfide air releases.
Reporting aside, the bill also prevents EPA from using
CERCLA to clean up hazardous substance releases from manure or
issuing an order to a facility to clean up releases of
hazardous substances resulting from manure components, meaning
that the bill would exempt large agribusiness from Federal
liability of any natural resource damage as it may result from
damage and spills.
I mentioned before I have concerns about small farms, and I
know our committee is interested in recycling on our second
bill. Obviously, a lot of that could be recycled in very
beneficial use. But my concern is H.R. 2997 with the cost of
cleanup, damage by that hazardous substance, it is the
responsibility of the ratepayers and local communities.
The second bill we are looking at today is Increasing
Manufacturing Competitiveness through Improved Recycling Act. I
agree that it is important for us to understand where
recyclables collected through recycling programs end up. Better
information leads to more efficient recycling that maximizes
environmental gain and material efficiency and makes sense for
our businesses. However, I am concerned that by making a survey
voluntary, the participation would not lead to the type of data
that we are aiming for.
I am also struggling to understand why States or trade
associations cannot do the same type of voluntary survey. Given
our budget issues, I think we should ensure that data could not
be obtained through existing reporting regiments.
With that, I look forward to the testimony of our
witnesses, Mr. Chairman, and thank you for calling the hearing.
Mr. Shimkus. I thank my friend. And I would like to
recognize the chairman of the full committee, Mr. Upton, for 5
minutes.
OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Upton. Well, thank you, Mr. Chairman.
Today, we are going to hear testimony on two bills--Mr.
Sullivan's Discussion Draft on recycling and Mr. Long's bill
clarifying that manure is not defined as a hazardous substance
under CERCLA.
Monday, I visited a paper recycling plant in Michigan
employing hundreds of folks who make 100 percent recycled
paperboard. In my view, these private sector innovators are the
real green jobs that we need to be promoting. The folks at this
facility in Kalamazoo are concerned about getting access to
high quality paper fibers that they can recycle into new paper
products, whether it be cartons, cereal boxes, or other types
of packaging. They are frustrated that more than 40 percent of
good paper fiber goes overseas or into a landfill. They are not
asking for Federal laws mandating recycling, but they do feel
that better information is needed both to help the American
public understand recycling and to help the recycling community
gain access to the types and quantities of feedstock that it
needs to be competitive.
The second bill that we are going to consider is H.R. 2997,
the Superfund Common Sense Act, by Mr. Long. This legislation
will remove a lot of anxiety and bureaucratic compliance cost
for folks who operate animal feeding operations. The bill would
do two things. First, it clarifies that manure is not included
in CERCLA as a hazardous substance or a pollutant or
contaminant. This alleviates farmer and rancher worries over
possible CERCLA exposure for manure, but it preserves claims
under a host of other environmental laws, from the Clean Water
Act and Clean Air Act to various State and local ordinances.
Second, the bill eliminates some red-tape paperwork
reporting concerns. So Mr. Chairman, we all expect animal
feeding operations to operate responsibly and with respect for
their neighbors and the law. But today we ask is it more
important to apply lots of laws to one operation or just the
right ones?
So to our witnesses I say thanks for coming. I yield back
to other Members that would like to speak. Mr. Harper? Mr.
Gardner? Mr. Gardner.
[The prepared statement of Mr. Upton follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
OPENING STATEMENT OF HON. CORY GARDNER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Mr. Gardner. Thank you, Chairman Upton, for the
opportunity, for yielding time. And thank you, Chairman Shimkus
and Ranking Member Green as well for convening this hearing on
two very important pieces of legislation which will help our
agricultural community improve energy efficiency and increase
international competitiveness.
The first bill that we have talked about--Increasing
Manufacturing Competitiveness through Improved Recycling Act--
directs the EPA and stakeholders to take steps to improve data
collection related to the recovery of recyclable material and
review ways to increase the collection of recyclable materials.
EPA Franklin Associates report--we found out that the State of
Colorado generates approximately 157,000 tons of glass and only
32,000 tons, or 21 percent, is recycled, making a big
difference.
One of my constituents, an employer that has over 200 men
and women working at the facility, Owens-Illinois, is very
interested in the issues of recycling, and as I toured their
facility learning about what it takes to make their glass
product, the important role that recycling has within that
industry, and that is why I think this legislation could be
helpful.
The second bill we are considering today will provide
needed certainty to our agricultural community and help protect
the livelihood of farmers and ranchers throughout the United
States. My district is the 11th largest agricultural producing
district in Congress. Many of our producers use concentrated
animal feeding operations, or CAFOs, and CERCLA and the
Emergency Planning and Community Right-to-Know Act could soon
be used to subject manure to redundant requirements or
stringent regulations.
This H.R. 2997 would exclude animal manure from the
definition of hazardous substance. In a letter that we received
from the Colorado Livestock Association, they believe that H.R.
2997 ``will reduce unproductive expenditures by individuals
engaged in producing the Nation's supplies of protein and milk
products without in any way compromising the health and safety
of the public. CAFOs are used throughout Colorado and this
legislation is essential to protecting our producers from undue
regulations that could significantly hurt their business.
A thank you to our colleague from Missouri, and certainly
thank you, Chairman, and I yield back my time.
Mr. Shimkus. The time has been yielded back.
The chair now recognizes the ranking member of the full
committee, Mr. Waxman, for 5 minutes.
OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Waxman. Thank you very much, Mr. Chairman.
Today, we will hear testimony on a bill called the
Superfund Common Sense Act. While my Republican colleagues will
talk about the small family farmer with a single cow grazing
out in the pasture, they will warn of EPA rushing through the
farm gate, calling a cow patty hazardous and placing costly and
burdensome requirements on an innocent, freckle-faced farm boy.
And they will use this imagery to argue that farmers need to be
protected from Superfund and the EPA.
We have all heard of what is called a Trojan Horse. I call
this a Trojan Cow. There is one big problem with the Republican
narrative--it is completely made up. In reality, this
legislation is about exempting giant agribusinesses from
liability if they pollute the land and groundwater.
Time after time, this committee has put the interests of
big corporations and their billionaire owners over the
interests of the struggling middle class.
Many farming operations comply with the law. But there are
times when some do not. And when that happens, liability under
Superfund is essential. That is common sense.
An example is what happened in Waco, Texas, where poultry
factory farms contaminated the sole source of drinking water.
The city successfully made a claim under Superfund for
reimbursement for the cost of cleaning up the phosphorous
pollution. Without Superfund, the local taxpayers would have
been defenseless.
Another example occurred in Tulsa, Oklahoma, which
recovered funds from Tyson Foods under Superfund when poultry
operations there contaminated the city's water.
That is why I am so worried about this piece of
legislation, despite its very nice name, because it is being
promoted under false pretenses. We have already voted over 250
times on the House Floor to roll back environmental
protections. And if this bill makes it to the floor, it will
only add to this total.
We have considered a bill that would have blocked President
Obama's historic tailpipe standards that will save consumers
thousands of dollars and dramatically reduce our dependence on
foreign oil. The false pretense for that bill was that money-
saving fuel efficiency standards are an energy tax.
We passed a bill to allow mining operations like the one in
Libby, Montana, to spew cancer-causing particles into
neighboring communities. Well, the rationale for that bill was
that we needed to prevent EPA from regulating farm dust even
though EPA told us they have no intention of regulating farm
dust.
Last week, the House passed legislation that included the
Latta amendment, which would cut the heart out of the Clean Air
Act by gutting the Act's health-based standards. The completely
unrelated argument for that bill was that we needed to study
rules that might be proposed on refineries.
Well, House Republicans have voted to nullify rules to cut
mercury pollution from waste incinerators, industrial boilers,
and cement kilns. The argument was that we just need to give
EPA more time to get the rules right.
Mr. Chairman, I have said this before and I repeat it
again: This is the most anti-environment House of
Representatives in the history of the country. And today, this
bill is one more effort to make the country safe for pollution
and I strongly oppose the bill.
Before I yield back, however, I would like to note that we
are also examining legislation relating to recycling today.
While this bill appears likely to accomplish very little, I
look forward to hearing testimony about it.
Superfund Common Sense, well, we are all for Superfund and
common sense, but it is not common sense to put shackles on
Superfund and let polluters cause serious consequences to the
taxpayers and the middle-class people living in the communities
nearby.
I yield back my time.
Mr. Shimkus. The gentleman yields back his time.
Now, the chair recognizes our own freckle-faced farm boy
from the State of Missouri. Mr. Long, you are recognized for 5
minutes.
STATEMENT OF HON. BILLY LONG, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF MISSOURI
Mr. Long. Thank you.
First off, I would like to thank you, Chairman Shimkus and
Ranking Member Green and all of the subcommittee members, for
allowing me to testify this morning.
Last year, I introduced a bill which would exempt livestock
operations from the Comprehensive Environmental Response,
Compensation, and Liability Act--or CERCLA--regulation. The
bill, H.R. 2997, or the Superfund Common Sense Act, would also
exempt livestock operations from Emergency Planning and
Community Right-to-Know Act, the EPCRA, reporting requirements.
Livestock producers, along with other small businesses,
face increasing regulatory uncertainty, much of it stemming
from potential or proposed Environmental Protection Agency
rules. The Nation's livestock producers or agricultural
industry as a whole cannot afford to comply with unnecessary
regulations.
The CERCLA law, which we know created the Superfund, was
enacted in Congress in 1980 because of the Love Canal incident.
The law was never meant to regulate livestock manure, but its
activists may use ambiguities in the law to create new
livestock operation regulations. My bill clarifies that the
reporting requirements under CERCLA and EPCRA will not apply to
animal manure or its emissions. It does not make sense to lump
tens of thousands of farms and livestock producers under the
same severe liability provisions that apply to nearly 1,300
Federal Superfund toxic waste sites. My bill will provide more
certainty for producers and more common sense to these laws.
If the EPA does not choose to exempt cattle operations from
released reporting obligations, the operations may be required
to file daily reports with Federal, State, and local emergency
responders. Additionally, measuring ammonia from open air beef
feedlots is impractical since there is no pipe or other way to
measure ammonia emissions directly. Because ammonia is
dispersed in the air before measurement, the wind speed and
direction, air pressure, and temperature all affect emissions.
Measuring the emission depends on capturing the whole ``cloud''
or air sample in a specific time and space. This would require
all kinds of instruments upwind, downwind from the source, much
like a complete set of meteorological instruments measuring
wind speed, direction, pressure, and the like. Since these
instruments could only measure concentrations at relatively few
points in the air space of varying size and shape over short
periods of time, large errors are likely and data would be
unreliable. These are supposed to be livestock operations, not
small weather stations.
Annual continuous release reports may be a continued option
for large operations, but because emissions from open air beef
cattle operations also vary depending on the climate, the feed,
the weather, the age of cattle, and many other variables, there
is no guarantee the reports would be useful since the emissions
are obviously not continuous or stable.
A continuous release by the law's definition ``a release
that occurs without interruption or abatement or that is
routine, anticipated, and intermittent and incidental to normal
operations or treatment processes.'' The release must also be
``stable in quantity and rate,'' which means that it is
``predictable and regular in the amount and rate of emission.''
Finally, neither ammonia nor hydrogen sulfide is a
regulated hazardous air pollutant under the Clean Air Act.
I introduced my bill in September of 2011. When the EPA was
asked for comment, an EPA spokesman stated the following on
October the 20th, 2011, in the Energy and Environment Daily
article--``this one joins the growing list of myths being
perpetuated about the EPA rules.'' And then she added, ``it is
unfortunate that time is being spent on solving a perceived
problem that does not exist.'' I will note for the record there
was no mention of a freckled-face farm boy, but the intent was
there.
After they denied it, the next day's Federal Register was
printed. The EPA is currently in the process of developing a
rulemaking to amend reporting requirements for livestock
operations on air emissions under CERCLA Section 103 and EPCRA
Section 304.
Also, on November 8, 2011, Congressional Research Service
report stated that the EPA anticipates it will propose a new or
revised rule regulating livestock waste in 2012.
Mr. Chairman, I would also like to mention that the United
States Department of Agriculture has gotten so out of control
with regulations. I have had constituents of mine threatened
with large fines and confiscation of property because their
small rabbit breeding operation was considered illegal. This
kind of regulatory overreach does not reflect self-governance,
and come to think of it, there was a small, freckle-faced boy
involved in that case. This kind of regulatory overreach does
not reflect self-governance, which is a fundamental principle
of our Nation.
Where does the individual citizen go to vote out an abusive
regulator or overbearing bureaucrat? Where is that ballot box?
It is time for us, the United States Congress, to reclaim much
of the authority we have surrendered to the Executive Branch
bureaucracy. The Federal Government's job is not to stifle
economic growth and intimidate the American people. The
constituents I mentioned earlier only wanted to breed rabbits
and be left alone in peace, but they instead were punished by
an expensive and time-consuming process brought on by
ridiculous regulations. I would mention that they had ceased
raising rabbits for a few years before they brought this
charge, which was also ridiculous.
I would also like to point out what happened in Illinois
last August. At a town hall meeting where President Obama held
in Atkinson, Illinois, a local corn and soybean farmer asked
the President about more possible EPA regulations covering
dust, noise, and water runoff. The President said, ``the folks
in Washington like to get all ginned up'' about things that
aren't necessarily happening. Then, he instructed the gentleman
to contact the USDA. Well, one reporter followed this direction
and called the USDA. After several phone calls and referrals to
various agencies, including the Illinois Department of
Agriculture and the Illinois Farm Bureau, an answer was not
found.
I again want to thank you, Chairman Shimkus and Ranking
Member Green, along with members of the subcommittee for
allowing me to testify today. I look forward to working with
you on this commonsense solution.
[The prepared statement of Mr. Long follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you for joining us and it is our
tradition not to take questions. So thanks and we will now--
Billy----
Mr. Waxman. May I ask a question?
Mr. Shimkus. Billy? Without objection, the ranking member
of the full committee will be recognized for--how much time do
you want?
Mr. Waxman. Let us try 5 minutes and I will try not to go
that long.
Mr. Shimkus. OK, for 5 minutes.
Mr. Waxman. I thank you.
Mr. Shimkus. Without objection, so ordered.
Mr. Waxman. I thank you for your explanation of the bill
and willingness to answer my questions.
Your statement says that the bill clarifies that ``the
reporting requirements under Superfund and EPCRA will not apply
to animal manure or its emissions.'' That is what you are
trying to accomplish. Is this the sole intent of the bill to
exempt manure and its emissions from the reporting requirements
under Superfund and EPCRA?
Mr. Long. The intent of the bill is to stop trying to use
something that was created for Times Beach in Missouri or Love
Canal, an actual toxic waste Superfund Cleanup Act for manure.
Mr. Waxman. OK.
Mr. Long. That is the intent of the bill.
Mr. Waxman. Now, EPA is going to testify that the impact
will go far beyond the reporting requirement and it blocks
authority to clean up contaminated sites, prevent further
contamination through injunction, recover compensation from
responsible parties for cleanup activities. Now, this would
severely undermine the principle of the polluter should pay to
clean up their pollution. Instead, the cost of cleanup would be
shifted to the taxpayers. Is it your intent in this legislation
to shield polluters from liability and shift the cost of
cleanup to taxpayers?
Mr. Long. Absolutely not, but I want the EPA to use the
rules that are on their books now for such ventures. I do not
want them to get off into this la-la land of trying to use a
Superfund that was for Times Beach and Love Canal for cow
manure.
Mr. Waxman. OK. And then one last question, would you
support redrafting the language in your bill to ensure that the
polluter-pays principle is upheld and that the cleanup costs
are not shifted to innocent taxpayers?
Mr. Long. I will have to get back to you on that, which I
will do.
Mr. Waxman. But you want to accomplish that goal?
Mr. Long. I will get back to you on it, yes.
Mr. Waxman. Thank you very much. I appreciate your answers.
Mr. Shimkus. And I thank you, my colleague. And Billy, if
you would just wait. I will recognize myself for a minute and a
half without objection.
Things we want to continue to highlight is the Clean Water
Act, Section 311(f), authorizes recovery of costs incurred
pursuant to hazardous substance mitigation. Requirements under
Section 311(c) of the Clean Water Act. Section 3007, the Solid
Waste Disposal Act, authorizes the EPA to obtain information or
inspect facilities where hazardous waste had been generated or
stored, disposed, and/or transported. And then Section 7002 of
the Solid Waste Disposal Act authorizes citizen suits against
any person or the Federal Government to enforce solid or
hazardous waste laws. Section 7003 of the Solid Waste Disposal
Act gives EPA authority to address imminent hazards.
So the point being--and I think part of my colleagues
coming forward is a set of regulations that you can follow, not
piling on. And this is a legislative hearing. I appreciate my
colleague from California raising the question and I thank my
colleague from Missouri for joining us.
And with that I will dismiss this and call the second
panel.
Mr. Green. Mr. Chairman, I just want you to know for public
information I told our colleague that I wouldn't ask him any
questions about the bill.
Mr. Shimkus. And now I would like to welcome the Honorable
Mathy Stanislaus, Assistant Administrator, Office of Solid
Waste and Emergency Response with the United States
Environmental Protection Agency. He has been here before. Thank
you for coming back. Sir, your full statement is in the record
and you are recognized for 5 minutes.
STATEMENT OF MATHY STANISLAUS, ASSISTANT ADMINISTRATOR, OFFICE
OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION
AGENCY
Mr. Stanislaus. Mr. Chairman, Ranking Member Green, and
members of the subcommittee, I am Mathy Stanislaus, Assistant
Administrator for EPA's Office of Solid Waste and Emergency
Response. Thank you for the opportunity to testify today on
H.R. 2997, which would amend the Comprehensive Environmental
Response, Compensation, and Liability Act, otherwise known as
CERCLA; and on a legislative proposal regarding recycling data
collection and a report to Congress, the Increasing
Manufacturing Competitiveness through Improved Recycling Act of
2012.
Regarding H.R. 2997 and the issue of air emissions from
animal waste, EPA in December 2008 issued a final rule referred
to as CERCLA/EPCRA Administrative Reporting Exemption for Air
Releases of Hazardous Substances from Animal Waste at Farms.
The exemption became effective on January 20, 2009, and exempts
farms from reporting under CERCLA Section 102. The final rule
also exempts farms that release hazardous substances from
animal waste to the air from reporting under EPCRA Section 304
if they are stable or confine fewer than the number of animals
to be considered under large concentrated animal feeding
operation thresholds as defined in the Clean Water Act
regulations.
Let me be clear. EPA has never designated manure as a
hazardous substance, nor has the EPA ever designated a farm a
Superfund site and has no plans to do so. We believe EPA's 2008
final rule has addressed concerns raised by the farm sector
related to air release reporting under CERCLA and EPCRA without
removing important CERCLA response authorities. While we do not
consider manure a hazardous substance, there are substances
associated with manure such as ammonia and hydrogen sulfide
that are by definition hazardous substances and can threaten
public health and the environment.
The effect of H.R. 2997 would be to prevent the EPA from
using CERCLA-response authorities to respond to releases to the
environment when the manure is the source of those hazardous
substances even if the release, for instance, such as the
failure of a large manure waste lagoon presents a substantial
danger to the public health and the environment.
It would also prevent the Agency from issuing CERCLA
abatement orders to require immediate response to damaging
releases that could threaten drinking water sources, as well as
residents. Therefore, we have concerns with the broad impacts
of this bill.
Now turning to the Increasing Manufacturing Competitiveness
through the Improved Recycling Act and recycling data
collection, the EPA recognizes that there are limited aggregate
data to evaluate the success of recycling programs at the
local, State, regional, or national level. EPA's Municipal
Solid Waste Characterization Report was designed to provide a
snapshot of the U.S. municipal solid waste stream and is a
primary data source at the national level. The report includes
data and trends since 1960 and analyzed the composition and
amounts of municipal solid waste in the U.S. and how those
materials are recycled, incinerated, and land-filled. It is
used by a broad range of entities, including local, State,
Federal governments, NGOs, the public, academia, and industry
for a variety of progressively more complex and specific
purposes, some of which were not originally anticipated or
designed for in the original report.
Recognizing that revisions of the MSW Characterization
Report could be helpful, EPA issued a Federal Register Notice
in September 2011 and received public comments from industry,
local and State governments, and recycling groups. EPA plans to
revise and expand the next Characterization Report to reflect
an ongoing shift to sustainable materials management
essentially to identify opportunities to maximize the economic
and environmental benefit from reusing materials rather than
throwing them away.
We believe that the data collected for the MSW
Characterization Report will inform the public and private
sector on current recycling trends and practices and identify
areas needed to be addressed to support increased recycling and
support sustainable materials management efforts. The EPA is
evaluating new methodologies and will continue to publish a
report annually with incremental changes over time.
Moreover, we continue to engage industry to identify ways
to enable greater reuse and recycling of materials because of
the economic benefits including job creation, as well as its
environmental benefits.
While we support the goals of the draft bill, we have
several comments. The bill does not provide authority to
require various sources referenced in the draft bill to provide
specified information to achieve its goal. While the draft
legislation intends for the information collected to be
voluntary, it may fall short of its goal to provide the
enhanced data needed to help more informed decision-making
among policymakers and government officials and help the
private sector increase the use of recyclable materials.
EPA's planned revision and expansion of its MSW
Characterization Report will help inform the public and private
sector about sustainable materials management. While the draft
bill states that the information collected by EPA is intended
to be voluntary, this appears to be contradicted by the
Confidential Business Information provision. Current law
already provides those protections, and should an owner have
such confidential proprietary information, they could seek
those protections. Having the broad protections defined in the
bill kind of gets in the way of the intention of the bill.
With that, Mr. Chairman, I close my remarks.
[The prepared statement of Mr. Stanislaus follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you very much.
I now recognize myself for 5 minutes for opening round of
questions.
I want to follow up on what Mr. Long started about really
addressing a timeline because I think that has kind of raised a
lot of issues, too. So on October 21 of 2008, the EPA proposed
in the Federal Register the National Pollutant Discharge
Elimination System Concentrated Animal Feeding Operation
Reporting Rule. In it, EPA stated that it is ``on a separate
track to develop a rulemaking to amend reporting requirements
for livestock operations on air emissions under CERCLA Section
103 and EPCRA Section 304.'' Can you tell me the status of this
separate rulemaking for the reporting of EPCRA Section 304 and
CERCLA Section 103?
Mr. Stanislaus. Sure. Currently, we are in the midst of
collecting air emissions data working with industry on that
modeling. There is actually a separate office outside of my
office collecting that data. So we are in the midst of
evaluating that data. We cannot move forward on rulemaking
until that data collection is done, so I don't have a precise
date but I can follow up with information regarding that.
Mr. Shimkus. And if you would, we would appreciate that.
And what was the impetus for changing the rule issued by EPA in
2008 on these matters? What caused the change from the position
taken in 2008 to the position of the 21 October 2011?
Mr. Stanislaus. Well, I mean we heard from various
stakeholders as to the underlying basis of that determination
of where we drew the line in terms of the size of the facility
that would be exempted and those that will still be covered by
the rule. So we are taking a hard look as to the data support
for that determination.
Mr. Shimkus. Were you petitioned?
Mr. Stanislaus. I am not sure. Yes, I think we were in
litigation and we remanded from that litigation to evaluate the
rule. So we were sued. So we decided to remand to EPA to
examine another rule.
Mr. Shimkus. Which brings up my favorite subject, which is
the judgment fund and compensation pursuits and who pays what,
but that is for another hearing.
What is the status of the proposed rule of October--well,
we have kind of answered that. Will that proposed rule have any
impact on the way these agriculture operations are governed
under CERCLA or EPCRA?
Mr. Stanislaus. Well, we are taking a look at just the
public notification provision and looking at the air emission
studies to inform that strictly with respect to the
notification of emissions from these facilities and not other
aspects of CERCLA.
Mr. Shimkus. EPA has testified that it has never filed a
CERCLA Section 104 action nor anything under CERCLA Section 106
or 107 with regard to animal farming operations. How many total
RCRA Section 703 Imminent Hazard Action cases has EPA brought
against a farming operation?
Mr. Stanislaus. I don't have that information. I will get
that to you.
Mr. Shimkus. Thank you. Is it fair to say that EPA
considers laws other than CERCLA emergency authority as
appropriate response to environmental threats which may occur
at animal agriculture facilities?
Mr. Stanislaus. Clearly, we have used other authorities in
certain circumstances. As I testified, what this would do, it
would prevent the use of what we call an abatement order. So
immediately moving forward to clean up the result of a major
spill and to prevent immediate impacts like drinking water
impacts and impacts to local residents.
Mr. Shimkus. If EPA changed the 2008 reporting regulation
to include more animal facilities in CERCLA Section 103 and
EPCRA Section 304, how many new facilities are subject to EPCRA
reporting?
Mr. Stanislaus. We don't have that analysis yet. We have
not made a decision to change.
Mr. Shimkus. Do you have a projection of a cost that it
would incur of the additional reporting?
Mr. Stanislaus. I mean clearly if we decide to change, we
will conduct that analysis.
Mr. Shimkus. And will you conduct an analysis of the
additional cost to the Agency of receiving those reports?
Mr. Stanislaus. Sure.
Mr. Shimkus. How about the cost of receiving and acting on
those reports?
Mr. Stanislaus. Acting depending, yes, on our authorities,
yes.
Mr. Shimkus. OK. And I thank you for your time. You know,
the point being we think that under current law as I stated
earlier that duplication of this is just redundant, costly,
inefficient, and that is why we raise this issue.
So thank you for your time and I yield back my time and
recognize the ranking member of the subcommittee, Mr. Green,
for 5 minutes.
Mr. Green. Thank you, Mr. Chairman.
Administrator, again, thank you for being here. Supporters
of H.R. 2997 say that the Clean Water Act, Clean Air Act, and
the Resource Conservation Recovery Act sufficiently regulate
and address any environmental damage that would result from
manure contamination. Why do you feel that CERCLA is still
necessary?
Mr. Stanislaus. Well, CERCLA serves a distinct purpose.
There are two aspects that we are talking about here today, and
one is to preserve the ability to respond to a major
catastrophic event that requires an immediate cleanup so there
are no public health or environmental harms. You want to
preserve that and it is critical that we preserve that
authority.
The other is for large facilities. Particularly local
responders and local government have pointed out during our
original rulemaking the real important need for that
information so they can effectively prepare should an event
occur.
Mr. Green. There are concerns about small farms being
captured by future regulations. I know there is a difference
between my family farm and a feedlot----
Mr. Stanislaus. Yes.
Mr. Green [continuing]. For example, although there could
be a family farm that includes a feedlot. So what are the
distinctions?
Mr. Stanislaus. Well, yes, it is defined under the Clean
Water Act. Currently, only large CAFOs are subject to the rule
but a significant large number of species. I can give you the
various--afterwards.
Mr. Green. Yes, if you----
Mr. Stanislaus. OK.
Mr. Green [continuing]. Just submit it to us----
Mr. Stanislaus. Yes.
Mr. Green. And granted, there is some concern obviously
that if you are downwind or downstream or down a hill from a
large feedlot that there is an issue, but again a small farm
typically is not the issue. So I think that is----
Mr. Stanislaus. That is correct.
Mr. Green. Some witnesses today argue that phosphates in
manure are not now nor have they ever been equivalent to
harmful chemicals that CERCLA has been addressing in the last
32 years. Do you agree with that?
Mr. Stanislaus. I am sorry. Could you say that one more
time?
Mr. Green. That phosphates in manure are not now nor have
they ever been equivalent to harmful chemicals that CERCLA has
been addressing for the last 32 years. Do you think phosphates
or those type of harmful chemical in certain numbers?
Mr. Stanislaus. Yes. I mean really those chemicals and
other chemicals listed as a hazardous substance, they are
listed for a reason because there are underlying studies that
show a risk and impact if it is above a certain level of
concentration.
Mr. Green. OK. Congressman Long's statement talked about
measuring ammonia from open-air beef cattle feedlots is
impractical since there is no pipe or any other way to measure
ammonia emissions. I have in our district lots of industrial
capacity and most of my plants now do fence-line monitoring.
Could we see the same type of fence-line monitoring if you had
a huge feedlot operation for testing for ammonia like we test
for other releases?
Mr. Stanislaus. We don't currently envision that. I mean
that is not part of the rule that we are talking about.
Mr. Green. But that is what happens. Like I said, I have
refineries and chemical plants who, in the last 10 years, have
adopted that simply because they want to know what they are
going to blamed for----
Mr. Stanislaus. Yes.
Mr. Green [continuing]. Instead of their neighbors since
they are literally fence line to fence line. But that is a way
that you can measure ammonia from a facility?
Mr. Stanislaus. Well, yes. But again we are not proposing
that at the moment.
Mr. Green. On the recycling bill, I share your concerns
about the surveys being voluntary. Can you elaborate on why
these concerns, if we make them mandatory, would these specific
authorities that would need to be included in the legislation
for you to carry out your study?
Mr. Stanislaus. Well, very simply, I think the good intent
of a bill is to provide more granular data from a variety of
sources. So some of those sources are State and local
governments, some of them are industry, and some of the data is
industry-to-industry. So to really provide the kind of
information, the granular, that industry wants and other
sectors want, we would need to have a comprehensive set of
data. So we have data gaps that really cut against the intended
nature of really advancing the environmental economic
protections of that. So without that, I don't see how the goals
would be met.
Mr. Green. Well, and you could end up with just self-
selection and really holes in your data that you couldn't
really address effectively.
Mr. Stanislaus. That is right. Some industries, some
companies voluntarily put that information up and others would
not, but we would not be able to make an industry-specific
judgment that is statistically significant in some cases if we
have data gaps.
Mr. Green. OK. The 2012 Interior/Environment Appropriations
Act Congress directed EPA to report to Congress on development
of a process to collect additional data on recovery rates
achieved by U.S. recycling programs. That report was due in
March of this year. Do you know the status of that report?
Mr. Stanislaus. Yes, that was submitted on that day. That
was submitted, yes.
Mr. Green. OK, thank you.
Mr. Chairman, I don't have any other questions.
Mr. Shimkus. Gentleman's time is expired.
The chair recognizes the vice chairman of the committee,
Mr. Murphy, for 5 minutes.
Mr. Murphy. Thank you. Welcome here.
I understand EPA identified better collection of data on
recycling as an issue in your fiscal year 2012 justification on
appropriations. In addition, I understand that in the fiscal
year 2012 appropriations bill Congress directed the EPA to
develop a plan to collect better information and report on that
to Congress. Finally, I understand that EPA has solicited
public comment on what information you should include in your
Municipal Solid Waste Characterization Report. So first of all,
if you and Congress agree this is important, when can we expect
the report to Congress on improving recycling data? When can we
expect that?
Mr. Stanislaus. Yes, so the report has already been
submitted per the congressional direction. We are advancing
more granular data versus a characterization study. We did a
Federal Register Notice. We solicited comments from a variety
of stakeholders and gradually expanding the data collection
under that report.
Mr. Shimkus. So if the gentleman would yield.
You have given an initial response but it is going to be a
fuller analysis. Is that what you are testifying?
Mr. Stanislaus. Well, we----
Mr. Shimkus. You are talking about granular.
Mr. Stanislaus. Yes, so I just want to make sure I
understand the question.
Mr. Murphy. I would like to know what granular means. Is it
the full report?
Mr. Stanislaus. So we submitted a report per congressional
direction this year. You know, as identified in that report, we
identified the need to have better data, particularly data that
goes beyond historic recycling and really looks at what we call
material management opportunities and where can we look at
opportunities to reuse and reengineer. So we solicited comments
with a Federal Register Notice. We are in the midst of
evaluating that and our intention is, with respect to the data
collection and the report that we issue publicly biannually, to
have an expanded set of data.
Mr. Murphy. So that full report is done or not done?
Mr. Stanislaus. Yes. We are talking two reports. The report
to Congress is done.
Mr. Murphy. OK.
Mr. Stanislaus. The MSW Characterization Report, we issue
that----
Mr. Murphy. And you responded to all the public comments,
too?
Mr. Stanislaus. State that again.
Mr. Murphy. Have you responded to the public comment on the
matter?
Mr. Stanislaus. We are in the midst of evaluating that----
Mr. Murphy. OK.
Mr. Stanislaus [continuing]. Before that, yes.
Mr. Murphy. Can you detail the steps that EPA is taking to
improve your existing Municipal Solid Waste Characterization
Report? Can you detail for us, can you give information on the
steps that EPA has taken to improve the existing Municipal
Solid Waste Characterization Report?
Mr. Stanislaus. So I mean it is contained in the report. I
can follow up on that.
Mr. Murphy. OK. Does the administration consider private
sector recycling part of the green economy on green jobs?
Mr. Stanislaus. Oh, absolutely.
Mr. Murphy. It does? OK. And why hasn't EPA, through your
next report--though your next report is due--why isn't EPA
improving this data? I am still confused in terms of how you
are working this.
Mr. Stanislaus. Well, that is exactly the point. Our effort
currently is to actually improve the data with the real focus
on identifying reuse opportunities and reengineering
opportunities because, you know, we have heard from lots of
industries who have told us that that information will be
critical for them to make informed judgments.
Mr. Murphy. OK. Let me shift to another thing about
electronics recycling initiatives if I could. Would you support
electronic recycling initiatives that violate our trade
obligation under the WTO?
Mr. Stanislaus. I guess I am not informed enough with
respect to the international----
Mr. Murphy. You can get back to us on that?
Mr. Stanislaus. I can get back to you on that.
Mr. Murphy. Thank you. Does EPA have existing authority to
conduct the study called for in the Discussion Draft on these
things?
Mr. Stanislaus. The study called for in the Discussion
Draft? I would say we have general authority but I guess not as
specific as set forth in the bill.
Mr. Murphy. How much funding will the expanded study--do
you have any idea how much funding is going to be necessary to
do that?
Mr. Stanislaus. Well, we took a look at the estimate, the
amount set forth in the bill and we believe that is inadequate.
You know, our estimate is roughly about $800,000 a year to do
that, as well as within the timeline is too restricted to
complete the job. We think 2 years will not be enough to really
do the kind of rigorous data collection that is set forth in
the bill.
Mr. Murphy. Thank you, Mr. Chair, and I will submit other
questions for the record. Thank you.
Mr. Shimkus. I thank my colleague.
Now the chair recognizes the chairman emeritus, Mr.
Dingell, for 5 minutes.
Mr. Dingell. Mr. Chairman, I thank you for your courtesy.
Yes or no answers if you please.
If manure is consolidated into a big lagoon, does EPA
consider that circumstance a naturally occurring substance in
its unaltered state from a location where it is naturally
found? Yes or no?
Mr. Stanislaus. Well, I would have to ask within the answer
to this be the CERCLA authority. CERCLA authority would not
attach to that circumstance.
Mr. Dingell. Thank you. Has EPA ever responded to the
release of a naturally occurring substance? Yes or no?
Mr. Stanislaus. No.
Mr. Dingell. Do you have any plans to do so?
Mr. Stanislaus. No.
Mr. Dingell. Is EPA aware that substances such as
phosphorous are added to the feed at animal feeding operations?
Yes or no?
Mr. Stanislaus. I guess I am not specifically aware but I
am sure my staff is.
Mr. Dingell. OK. Were the Waco and Tulsa examples,
situations where local governments were trying to recover
response costs for protection of drinking water supplies from
contamination caused by dairy or other animal feeding
operations? Yes or no?
Mr. Stanislaus. I am not specifically aware of that
litigation. We were not involved in that. That is my
understanding----
Mr. Dingell. But it was an action by the local
governments----
Mr. Stanislaus. That is right.
Mr. Dingell [continuing]. To protect their water supplies
and the public health, is that not so?
Mr. Stanislaus. That is what has been represented. We were
not involved in that.
Mr. Dingell. And it was causing substantial amounts of
algal bloom, phosphorous, and other pollution of the waters of
Lake Waco and the people in the area who used that for their
water supply, is that right?
Mr. Stanislaus. Again, I am not intimately familiar with
the facts.
Mr. Dingell. All right. Is EPA aware of any small farm
operations as opposed to large-scale industrial AFOs that have
triggered the reporting requirements for ammonia and hydrogen
sulfide? Yes or no?
Mr. Stanislaus. Well, the reporting requirements currently
strictly apply to large CAFOs.
Mr. Dingell. All right. EPA finalized an exemption in
December 2008 which exempted hazardous substance releases from
animal waste from the reporting requirement. Therefore, no data
has been reported since that time. Is that true?
Mr. Stanislaus. Yes, data under CERCLA 103, that is
correct.
Mr. Dingell. The air emission monitoring study was supposed
to take 2 years but the draft development of emissions
estimating methodologies for lagoons and basins at swine and
dairy animal feeding operations reported that additional
analysis is needed. Is there any data that shows that the broad
exemption in the bill before is justified? Yes or no?
Mr. Stanislaus. We are in the process of evaluating that
data. We have not made a conclusion.
Mr. Dingell. But you do not have the data because the study
is not available to you, is that right?
Mr. Stanislaus. Well, there is a separate study that a
separate office of EPA is conducting with data from various
industrial sources.
Mr. Dingell. All right. Has any public agency determined
that a public health hazard existed based on the release of
hydrogen sulfide at a dairy farm or other animal feeding
operation? Yes or no?
Mr. Stanislaus. I don't know whether a public health agency
has made that----
Mr. Dingell. You know of none?
Mr. Stanislaus. I know of none, no.
Mr. Dingell. Now, Mr. Chairman, we are in an
extraordinarily dangerous situation. On one hand, we have a
reporting exemption that has prohibited collection of any data
for over 3 years. On the other hand, we know that the Agency
for Toxic Substances and Disease Registry has previously
testified before this panel that there was a public health
hazard as a result of high levels of hydrogen sulfide at a
dairy farm in Minnesota. I do not believe that we need a broad
exemption from reporting where we know that there is at least
one significant problem.
Now, if you have a big animal feed operation, i.e., one of
these gigantic hog farms or a tremendous, large animal
operation like you would find at Monfort out around Longworth,
Colorado, you can smell that damn thing 40 miles away.
Approximately what size city would have that much manure
flowing through its waste treatment system?
Mr. Stanislaus. What size city?
Mr. Dingell. Yes.
Mr. Stanislaus. I am not sure that----
Mr. Dingell. The huge hog farm there got thousands of hogs,
you got a huge beef lot, how many animals would be at those and
what would be the amount of the manure that would be collected
there? And how would that equate to the size of a city, say
Minneapolis or Cedar Rapids or Muskegon or Detroit?
Mr. Stanislaus. I can get back to you with respect to data.
Mr. Dingell. I would like to have that. Please give us a
table if you could----
Mr. Shimkus. Gentleman's time----
Mr. Dingell [continuing]. Of just how much manure is out
there and what you do to a city if it had that kind of
operation, risking both air and water pollution?
Mr. Chairman, I thank you for your courtesy.
Mr. Shimkus. The gentleman's time has expired.
The chair now recognizes Mr. Harper for 5 minutes.
Mr. Harper. Thank you, Mr. Chairman.
EPA received $9.5 million for waste minimization and
recycling in 2012 and the Obama administration requested EPA
about this same amount for fiscal year 2013. At the same time,
you said that you want to focus on sustainable materials
management.
Mr. Stanislaus. Um-hum.
Mr. Harper. So my first question is don't you agree that if
EPA wants to be a leader on this issue, you need good
information about how materials are being recycled currently?
Mr. Stanislaus. Absolutely.
Mr. Harper. And are you telling me that you can't spend
$400,000 a year for 3 years from within your current
appropriations level to help get better information to solve
problems you say you want to solve?
Mr. Stanislaus. Well, as I testified earlier, we in fact
have collected information and plan to include that as part of
our characterization report.
Mr. Harper. If you break down that figure, it comes to
about $182 per employee----
Mr. Stanislaus. Um-hum.
Mr. Harper [continuing]. So how do those folks even know
what they should be focusing on if they don't understand how
that existing recycling system works?
Mr. Stanislaus. Well, we have a significant amount of data
that we report on regularly that is used by industry, used by
local government to identify economic and environmental
opportunity. And we also recognize that additional and more
precise data would be beneficial to advance the recycling
market, and that is our intention to do so.
Mr. Harper. All right. Let me ask this. Does the
administration consider private sector recycling part of the
green economy or green jobs it is trying to promote?
Mr. Stanislaus. Well, I mean clearly recycling by private
industry is critically important. We work with industry all the
time. We recognize the economic environmental value of that. In
fact, we have ongoing conversations with industry to advance
that.
Mr. Harper. My next question would be I understand that the
EPA does not have an approved information collection request
under the Paperwork Reduction Act for recycling data. That
means that your current report on solid waste and recycling can
only rely on published information collected from I believe no
more than nine people. Is that correct?
Mr. Stanislaus. I am not sure that is correct but I will
get back to you on that----
Mr. Harper. OK.
Mr. Stanislaus [continuing]. In terms of the sources of
data that we use for the characterization study.
Mr. Harper. Is the information asked of in the Discussion
Draft already requested and published by EPA?
Mr. Stanislaus. Well, if you are asking how the bill
compares with the data we current collect, you know, we
acknowledge that, one, there is aggregate data that we are
currently going by and clearly the ability to collect more data
is important. We also identified earlier in my testimony that
if we focus on just voluntary data, it is still going to leave
a gap in terms of the comprehensiveness of the data.
Mr. Harper. I just want to be clear. Are you saying that
you only surveyed nine people----
Mr. Stanislaus. No, that is not----
Mr. Harper [continuing]. Or you didn't or you don't know in
this recycling----
Mr. Stanislaus. Well, I believe the nine people relates to
whether you do or do not need information collection provision.
This is developed over many years so our sources include local
and State government, as well industry. In terms of our total
sources of data, I will get back to you on that.
Mr. Harper. Well, you know, I am just curious if there are
just a few surveys that were done and then there was an
extrapolation done and based upon that information or how that
came about.
Mr. Stanislaus. It is a yearly collection of data from
multiple sources.
Mr. Harper. OK. You say that you use the materials flow
methodology to estimate the amount of recycling nationwide
using estimates of goods produced and materials discarded or
recycled and trying to do a mass balance. How can that method
tell you anything about recycling systems?
Mr. Stanislaus. Well, based on data we collect, we analyze
the systems and some of those systems are dependent on various
kinds of industries, so based on the data we extrapolate and do
systems-based analysis.
Mr. Harper. Is it safe to say or fair to say that we really
don't know where recycled material is coming from?
Mr. Stanislaus. No, I wouldn't say that. I think we have a
fairly good feel for recycling and various industries and
opportunities for recycling in various industries. We have
ongoing conversations with numerous industries that want to
promote that. Clearly, more data will help advance the
opportunities in recycling.
Mr. Harper. So are you able to give us a breakdown of where
the recycled material comes from across----
Mr. Stanislaus. Sure. Sure. In fact, we submitted a report
to Congress and we could provide you that characterization
study any supplements to that.
Mr. Harper. Thank you, Mr. Chairman. I will yield back.
Mr. Shimkus. The gentleman yields back.
The chair now recognizes the ranking member of the full
committee, Mr. Waxman, for 5 minutes.
Mr. Waxman. Thank you, Mr. Chairman.
Proponents of this legislation have said that Superfund was
never meant to address manure and that it is not needed to
address contamination from manure. This is simply not true. The
legislative history of Superfund shows that manure was
considered and Superfund has been used to address contamination
from manure and could be an essential tool in addressing
potential future contamination. On May 19, 2000, EPA issued a
Notice of Violation to the Nation's second-largest pork
producer, Premium Standard Farms, for failing to comply with
release reporting obligations in Section 103 of Superfund and
Section 304 of EPCRA with respect to releases of ammonia at 12
lagoons on facilities owned by Premium Standard Farms. Is that
correct, Mr. Stanislaus?
Mr. Stanislaus. I can get back to you. I don't have the
specific information in front of me.
Mr. Waxman. OK. Those violations were resolved in a
settlement on November 19, 2001, and a payment of a civil
penalty. In September 2006, EPA also filed a civil complaint
against Seaboard Foods, concentrated animal feeding operation
in Oklahoma for releases of ammonia. Proponents of this bill
discount the importance of these emissions. Can you explain how
a community would experience an ammonia release that drifts
through its neighborhood?
Mr. Stanislaus. Well, I could generally describe it and get
back--I mean clearly ammonia is listed as a hazardous substance
because of underlying health studies that show a detriment-to-
health consequence from inhaling ammonia.
Mr. Waxman. Well, ammonia can cause acute and long-term
health effects. What I went through were examples of Federal
responses to contamination from manure. States and local
governments have also brought suit under Superfund based on
contamination caused by manure to recover taxpayer funds spent
on cleanups. The city of Tulsa, Oklahoma, brought suit for
contamination under Superfund, as did the city of Waco, Texas.
Both of those suits settled. The State of Oklahoma acting
through the Attorney General also brought suit under Superfund
to recover cleanup costs against poultry farms in Arkansas.
That case is still pending.
If H.R. 2997 becomes law, will States and towns be able to
use Superfund in the future to recover public funds spent
cleaning up contamination from manure?
Mr. Stanislaus. As I testified, this would prevent the use
of all of CERCLA authorities, including response and abatement
orders, as well as other provisions of CERCLA.
Mr. Waxman. You testified, Mr. Stanislaus, that a large
manure waste lagoon could fail and present a substantial danger
to public health and the environment. In such a case, if this
bill were enacted, what impact would H.R. 2997 have on EPA's
ability to require a response to such a spill?
Mr. Stanislaus. Well, one, we would not be able to issue an
abatement order against the responsible party to immediately
ameliorate that public health risk. Separately, if a
responsible party was not willing to do so, it would prevent us
from using our resources to prevent that immediate risk to
public health.
Mr. Waxman. As I understood the testimony from
Representative Long, he said he wanted to preserve existing
authorities and requirements just argue we don't need new ones.
These authorities and requirements under Superfund that we have
discussed are existing authorities, aren't they?
Mr. Stanislaus. That is correct.
Mr. Waxman. And they have been since 1980, is that right?
Mr. Stanislaus. That is right.
Mr. Waxman. So turning quickly to the recycling bill, I
expect that we will hear concerns from later panels and
information voluntarily given to EPA about municipal waste
streams will not be protected appropriately from disclosure. If
a company or trade association submitted confidential business
information to EPA in the context of the MSW Characterization
Report or in any other context, what protections would the
Agency provide for that CBI?
Mr. Stanislaus. We have an existing process where if a
company claims confidential business information, we evaluate
whether that is or not and engage the company. So there is an
existing rigorous process to protect proprietary information.
Mr. Waxman. OK. Thank you very much, Mr. Chairman. I will
yield back my time.
Mr. Shimkus. The gentleman yields back his time.
The chair recognizes the gentleman from Colorado, Mr.
Gardner, for 5 minutes.
Mr. Gardner. Thank you, Mr. Chairman.
And thank you, Mr. Stanislaus, for being here today.
In your opening statement you stated that, ``as discussed
above, we believe EPA's 2008 final rule''--it goes on to talk
about CERCLA, EPCRA--``has addressed concerns raised by the
farm sector.'' Is the farm sector supportive of this provision?
Mr. Stanislaus. The bill?
Mr. Gardner. You are talking about some of the things I
think in your opening statement--I wrote it down--where you
talked about the EPA acting in response to concerns raised by
the farm sector.
Mr. Stanislaus. You are talking about the 2008 rule?
Mr. Gardner. Right.
Mr. Stanislaus. Yes, I think it reflects their comments in
terms of particularly ensuring the small farmer's burdens are
addressed.
Mr. Gardner. OK. So the farm sector supports the 2008 rule?
Mr. Stanislaus. Well, we have heard from lots of farms and
I think particularly it recognizes the small farms' issues.
So----
Mr. Gardner. So the farm sector supports the rule, then?
Mr. Stanislaus. Well, again, we have had multiple
stakeholders and I am sure that is many segments of--
particularly the small farmers support that provision.
Mr. Gardner. What is a small farm to you?
Mr. Stanislaus. Well, small farms are those that are
defined in the Clean Water Act. These are not concentrated
animal feeding operations. They are below that size. And I can
give you the specific details based on the----
Mr. Gardner. So people who don't have feedlots then
basically?
Mr. Stanislaus. I am sorry. Say it again.
Mr. Gardner. So they don't have feedlots? That is what you
are describing as a small farm is somebody without a feedlot?
Mr. Stanislaus. Well, someone without basically an
industrial level animal feeding operation.
Mr. Gardner. What is an industrial level----
Mr. Stanislaus. Well, it is defined based on the various
kinds of animals used and we could give you a list of what
those definitions are.
Mr. Gardner. Have you ever been to a concentrated animal
feeding operation?
Mr. Stanislaus. I have been adjacent to them, yes.
Mr. Gardner. But have you been onsite? Have you been on
one?
Mr. Stanislaus. Not in it, but adjacent to it, yes.
Mr. Gardner. Adjacent? What do you mean? You have driven by
one?
Mr. Stanislaus. No, I have walked in the periphery of that,
the fence line of that.
Mr. Gardner. So you have seen a feedlot? You have gone
through it?
Mr. Stanislaus. I have.
Mr. Gardner. OK, very good.
A couple of questions for you. In considering and requiring
all CAFOs to report emissions of ammonia and hydrogen sulfide
under CERCLA, you are considering that right now?
Mr. Stanislaus. Well, we are first looking at data as well
as estimating methodologies with industry and other
stakeholders to make sure that we are able to estimate their
emissions first. Based on that, that is going to inform our
rulemaking. So we have not come to any conclusion on that.
Mr. Gardner. But you are considering it then?
Mr. Stanislaus. Well, yes. We issued a Federal Register
Notice regarding that.
Mr. Gardner. In your October 2011 Proposed Clean Water Act
Section 308 rule that you were talking about using this
reporting rule to gain information for livestock operations, it
implies that you are considering wrapping all livestock
operations under these reporting rules. And I certainly hope
that that is not the path that you are planning on going down?
Mr. Stanislaus. Yes, I am not familiar with that specific
provision.
Mr. Gardner. Do open-air cattle feedlots present an
emergency situation?
Mr. Stanislaus. Not inherently. Again, as I testified
earlier with respect to this bill, what we want to preserve is
those limited circumstances where there could be a catastrophic
kind of failure that results in potential public health and
environmental risk.
Mr. Gardner. And so what is it that responders are going to
respond to at a feedlot?
Mr. Stanislaus. So just to be clear, during the 2008 rule
development, what I was articulating earlier is that from a
need-to-know information, particularly of large CAFOs,
emergency responders, local government officials noted that
they need to know, particularly these large facilities so they
can have the infrastructure in place to respond should there be
a release of a significant quantity.
Mr. Gardner. So I live in a small town of about 3,000
people in the eastern plains of Colorado. It is no longer the
Monfort feedlot but it is certainly still in existence outside
of my town. It is a very large operation, employs a great
number of people. And so my volunteer fire department, the
first responders there, would they be equipped with a HAZMAT
operation to deal with this proposed emergency situation? Is
that what you are trying to get at?
Mr. Stanislaus. Well, generally, emergency responders need
to know the kind of equipment based on what is within their
jurisdiction. So it is going to be tailored around the
potential releases and making sure the proper equipment.
Mr. Gardner. So what would that proper equipment be for my
local police department or fire department for the feed lot
down the road?
Mr. Stanislaus. Well, it is various kinds of cleanup
equipment. Cleanup equipment varies depending on the kind of
releases. You know, so I can get back to you with the specific
kinds----
Mr. Gardner. Well, what kind of a release do you anticipate
happening?
Mr. Stanislaus. No, again, with respect to the particular
issue we are talking about, we want to preserve the ability--we
have a catastrophic failure that impacts, for example, drinking
water sources, impacts residents, then making sure that we can
immediately clean that up----
Mr. Gardner. This is like a cloud of ammonia you anticipate
moving toward town?
Mr. Stanislaus. No, what I was specifically referring to is
a major CAFO having a breach and significant volumes that
impacts drinking water source and being able to clean that up
so it doesn't compromise public health.
Mr. Gardner. I see my time has expired. One last question,
Mr. Chairman, if you will indulge.
Are you using aerial surveillance right now to monitor
CERCLA compliance with CAFOs?
Mr. Stanislaus. Well, yes, I think that the Agency has made
a statement regarding its aerial surveillance and we could
provide that to you.
Mr. Gardner. So you are using----
Mr. Shimkus. Thank you----
Mr. Stanislaus. Well, again, the Agency has made a
statement and it doesn't come under my jurisdiction.
Mr. Shimkus. Thank you. The gentleman's time has expired.
We now recognize the gentleman from North Carolina for 5
minutes, Mr. Butterfield.
Mr. Butterfield. Thank you, Mr. Chairman. And thank you,
Administrator, for your testimony today.
Continuing to improve our country's recycling programs is
an important issue for many of our colleagues, and certainly it
is important for me. It is important for the district that I
represent in eastern North Carolina.
EPA currently reports the amount of materials recycled each
year by collecting information made publicly available by
recycling stakeholders and municipalities. The EPA has
expressed interest in collecting more extensive data about
recycling and has been soliciting public comments. And so I
just wanted to say for the record that I look forward to
working with the EPA to identify the most effective way to
generate accurate and useful information to improve our
recycling programs.
I am also pleased the subcommittee is discussing
agriculture, very important to my district, agriculture, which
accounts for nearly $70 billion annually to North Carolina's
economy. I appreciate your testimony on this and other subjects
as well.
Let me just ask you, Administrator, let me start with this
very quickly. Does EPA intend to take into consideration views
of the agriculture community and the other stakeholders when
revising the rule?
Mr. Stanislaus. We are already in conversations with them,
yes. So the answer is yes.
Mr. Butterfield. All right. Can the EPA issue orders to
require response for damaging releases of hazardous substances
from manure using other statutes such as the Clean Air Act or
the Clean Water Act, the Resource Conservation and Recovery Act
or FIFRA? Are there other statutes that you can depend on?
Mr. Stanislaus. Not to conduct an immediate cleanup.
Mr. Butterfield. You mentioned that manure is not a
hazardous substance. You agree on that, is that correct?
Mr. Stanislaus. Say again.
Mr. Butterfield. Manure is not a hazardous----
Mr. Stanislaus. That is right.
Mr. Butterfield [continuing]. Substance according to your
definition.
Mr. Stanislaus. That is right.
Mr. Butterfield. Is manure the only nonhazardous substance
under the jurisdiction of the Superfund?
Mr. Stanislaus. Well, again, manure is not listed as a
hazardous substance so I guess I am not clear about your
question.
Mr. Butterfield. Well, let me read it again. You mentioned
that manure is not a hazardous substance.
Mr. Stanislaus. That is right.
Mr. Butterfield. Is manure the only nonhazardous substance
under the jurisdiction of CERCLA and EPCRA or do you have other
examples?
Mr. Stanislaus. Well, again, as CERCLA is constructed,
there is a list of hazardous substances so it could be a
contaminant that is not a hazardous substance that we could use
our authorities to do cleanup.
Mr. Butterfield. Can EPA designate a farm a Superfund site
in the future prospectively?
Mr. Stanislaus. As I have testified, that is not something
we have done or plan to do again because manure is not a listed
hazardous substance.
Mr. Butterfield. That was in response to Mr. Dingell's
question earlier I believe?
Mr. Stanislaus. Yes.
Mr. Butterfield. Are there any barriers in place that
prevent the EPA from conducting more voluntary surveys about
recycling? Are there any barriers?
Mr. Stanislaus. I don't believe there are explicit barriers
but there are procedures that we need to go through to collect
information.
Mr. Butterfield. Have you evaluated the usefulness of
voluntary surveys?
Mr. Stanislaus. Well, yes. In fact, we in fact do that
currently as part of our efforts.
Mr. Butterfield. All right. I think I will stop right
there. I yield back. Thank you.
Mr. Stanislaus. Thank you.
Mr. Shimkus. The gentleman yields back his time.
The chair now recognizes the gentleman from Louisiana, Mr.
Cassidy, for 5 minutes.
Mr. Cassidy. Hey, Mr. Stanislaus. How are you?
Mr. Stanislaus. Good, how you are doing?
Mr. Cassidy. I am good, thank you.
I am interested in the recycling almost as a discussion of
the topic because I am trying to understand it. It almost seems
like it is such a moving target that you may take a snapshot of
what recycling activity takes place, but if somebody suddenly
puts a premium on aluminum cans, it is going to dramatically
increase aluminum can recycling. And if that occurs just after
your snapshot, then your data are dated. And I am saying that
not to accuse or anything, just to kind of ponder.
Similarly, I think I see in the bill that the use of
recycled material to develop energy if you will, waste burning,
is not included in the bill but if you have a cost differential
that would say burn a plastic bottle for its potential energy
as opposed to recycle, you are going to shunt one way versus
the other. Does that make sense?
Mr. Stanislaus. Well, clearly those decisions are made on a
regular basis today.
Mr. Cassidy. Correct.
Mr. Stanislaus. Yes, and it is based on the price value of
reusing one direction or the other and commodity prices vary.
So there is a regular shift based on that.
Mr. Cassidy. I don't want to seem nihilistic, but it almost
seems more important for you to look at the variables that
would influence recycling than to do a particular measure of
how much we recycle.
Mr. Stanislaus. Well, we do both, so really the intention
of looking at materials more holistically as we are doing right
now, it is to not only look at the historic recycle waste
stream but really look at various industrial sectors and how to
really maximize sometimes closed-loop, sometimes reengineering
from third parties, so looking at recycling in the economy
overall.
Mr. Cassidy. So I accept that. And so again it almost seems
like the measuring at a point in time, what is happening, is
far less important than helping a business optimize their use
of recycled material to decrease marginal cost. Does that make
sense?
Mr. Stanislaus. Well, I do think that partially makes sense
but in our conversations--and I am sure you are going to hear
from panelists later on--I think it is fair to say that
numerous industrial sectors, as well as State and local
governments in terms of really identifying the opportunities
and how to put in place infrastructure and make decisions, they
would welcome EPA's data to help inform those decisions.
Mr. Cassidy. But you seem to be agreeing with me that if
you wanted to have more use of something as opposed to going to
a landfill, it doesn't really matter as much to measure the
amount going into the landfill as much as to measure the
potential benefit from either burning it for energy combustion
or for recycling at a certain given price.
Mr. Stanislaus. Well, I think we want to take a
comprehensive look at the materials field. And so looking at
what goes in a landfill is an indicator of success or failure
and so if you track it over time, you could see how effective
your upstream actions have been. And have you in fact been
successful in putting in place the kinds of programs so that
industry can take advantage? So there is a net reduction to
landfill. So I would argue that you need to have a full
lifecycle of information and data.
Mr. Cassidy. I could almost see, though, that the price
they are paying for aluminum cans would give you the same
information. If there is a lot of aluminum cans, they are not
paying very much, but if there are few, they are going to pay
more for that which they get.
That said, in your testimony you said that you would like
to have the ability to require entities to produce certain
information to make your analysis more robust I assume. I am
just asking who would be required to produce this and what
amount of information would they be required to produce and how
onerous would be that requirement?
Mr. Stanislaus. Yes, you know, what I testified is where
the proposed bill relies exclusively on voluntary information,
I think exclusively relying on voluntary information inherently
means that you will have some data gaps. So I would say it
constrains the ability to meet the overall----
Mr. Cassidy. I am almost out of time----
Mr. Stanislaus. OK.
Mr. Cassidy [continuing]. But, again, I am concerned that
we are going to put some small municipality under a great
burden of reporting requirements. So who would be required and
how much, how onerous would be the requirements?
Mr. Stanislaus. Well, I would say that where the greatest
data sources are and where I think both the various aspects--
the recycling industry and prospective recycling industry--
would benefit is again a granular level of data from industry-
to-industry recycling opportunities. So I will leave it all
to----
Mr. Cassidy. So not just municipal dumps but also a
manufacturing outfit that leaves scrap metal on the floor?
Mr. Stanislaus. Well, that is where I see the greatest
opportunity is the industry-to-industry opportunity.
Mr. Cassidy. OK, but still how onerous would it be? Do you
see what I am saying? That is the key thing.
Mr. Stanislaus. Sure, that is a fair point.
Mr. Cassidy. Yes.
Mr. Shimkus. The gentleman's time is expired. I will tell
you that as the chair of the Recycling Caucus, it is not
industry who is--you don't have to worry about recycling. They
are going after everything and they leave nothing on the floor.
And the importance of this debate is really the municipal side,
what is being left on the table through the municipal waste
stream.
So Mr. Stanislaus, thank you for your time. As per
tradition, 10 days you may get additional questions submitted
for the record. If you would reply based upon Members' written
questions during that period of time, we would appreciate it.
Also, I would like to get a list of programs that receive
voluntarily submitted information that the EPA has. You may----
Mr. Stanislaus. On the recycling side?
Mr. Shimkus. Overall.
Mr. Stanislaus. I am sorry. Say that one more time. I am
sorry.
Mr. Shimkus. You stated in the question that there are
programs in which you receive voluntary information so I would
like to know what type of programs are getting voluntary
information and how you are gathering that data and what it is
used for.
Mr. Stanislaus. OK.
Mr. Shimkus. And with that, seeing no other questions, you
are allowed to leave. And we will empanel the third panel.
Thank you for your time.
Mr. Stanislaus. Thank you.
Mr. Shimkus. We want to welcome everybody. It almost felt a
little schizophrenic bouncing back and forth between two bills.
This third panel is based upon the recycling portion of the
hearing, so we are happy to get back singularly focused. And
with that, your full statements are submitted for the record.
You will get 5 minutes.
I am going to welcome you all first and then we will go to
you individually for your opening statements.
With us on the third panel is Mr. Charles D. Johnson, Vice
President, Environment, Health, and Safety of the Aluminum
Association, Inc; also Ms. Lynn Bragg, President of the Glass
Packaging Institute; Mr. Jonathan Gold, Senior Vice President,
Recovery and Recycling Division of the Newark Group; and then
Mr. John Skinner, Executive Director of the Solid Waste
Association of North America. Again, we welcome you all. And we
will start with Mr. Johnson for a 5-minute opening statement.
STATEMENTS OF CHARLES D. JOHNSON, VICE PRESIDENT, ENVIRONMENT,
HEALTH, AND SAFETY, THE ALUMINUM ASSOCIATION, INC.; LYNN M.
BRAGG, PRESIDENT, GLASS PACKAGING INSTITUTE; JONATHAN GOLD,
SENIOR VICE PRESIDENT, RECOVERY AND RECYCLING DIVISION, THE
NEWARK GROUP, ON BEHALF OF THE PAPER RECYCLING COALITION; AND
JOHN H. SKINNER, EXECUTIVE DIRECTOR AND CHIEF EXECUTIVE
OFFICER, SOLID WASTE ASSOCIATION OF NORTH AMERICA
STATEMENT OF CHARLES D. JOHNSON
Mr. Johnson. Chairman Shimkus, Ranking Member Green, and
members of the committee, thank you for this opportunity to
testify. My name is Charles Johnson; I am the vice president of
Environment, Health, and Safety with the Aluminum Association.
We are the trade association representing U.S. aluminum
producers, recyclers, and industry suppliers. On behalf of our
industry, I would like to commend Congressman Sullivan for
offering this draft bill and his continued efforts to increase
recycling as a critical piece of U.S. energy and sustainability
efforts.
The U.S. aluminum industry believes this legislation is
critical because recycling is a source of sustainable, private
sector-driven green jobs; recycling is a vital part of energy
efficiency and should be part our Nation's energy solutions;
and the collection of better waste and recycling data,
facilitated by this legislation will allow consumers,
policymakers, and industry to more rapidly achieve higher
recycling rates.
In 2010, Americans recycled $1.6 billion in aluminum cans.
If the industry's beverage can recycling goal of 75 percent was
achieved, the payback to American consumers would be $2.1
billion. Aluminum's infinitely recyclable nature means scrap
metal has high value, and the processing and recycling of the
metal yields a significant impact on the economy and in job
creation.
Market trends are leading all recycling industries to take
back more recycled materials but this material is not always
available. At the same time, the American public is demanding
more environmentally responsible solutions. Wal-Mart, Target,
and many others are demanding increasingly sustainable
packaging with higher environmental benefits. The demands for
those benefits are part of a larger shift in consumer
preferences and this is becoming as important to our industry
as access to raw materials.
Our industry views the Increasing Manufacturing
Competitiveness through Improved Recycling Act of 2012 as a
critical next step in advancing the practice of recycling and
improving operating efficiency and environmental impact for the
aluminum industry. Thirty-nine percent of consumers have said
they are confused about what is good or bad for the
environment. Quality data allows consumers, as well as industry
and policymakers, to successfully examine new proposals and
plans for improving recycling using facts and not suppositions.
Aluminum recycling provides a massive opportunity for
energy efficiency. The metallic, elemental nature of aluminum
means that it is infinitely recyclable. It can be recycled over
and over with no loss of quality or down-cycling. In fact, 75
percent of all aluminum ever produced since 1888 is still in
use today. Recycling aluminum saves 95 percent of the energy
and emits only 5 percent of the greenhouse gases associated
with primary aluminum production. In the simplest form, our
business case for recycling is based on the fact that
increasing recycling increases energy efficiency. The aluminum
industry's position in favor of recycling is not green washing;
it is green business.
The most widely recognized application for aluminum is the
beverage can. The aluminum can is the most recycled beverage
container in America. In an average can, 68 percent is recycled
content, the highest amount of any beverage container. In 2010,
58 percent of aluminum cans were recycled in the United States.
This bill, to improve our understanding of municipal recycling,
is vital for our industry to bring consumer recycling in line
with aluminum recycling in other sectors, which is greater than
90 percent. It will also be vital to help our understanding of
how we might raise our can recycling rate to the level of other
countries, many of which are in the area of 90 percent or
higher.
Our industry has established a goal of reaching a 75
percent aluminum can recycling rate by 2015. We are engaged in
various initiatives, including establishing and funding a new
organization called the Curbside Value Partnership with other
materials manufacturers. CVP works with municipalities to
increase consumer participation in existing recycling programs.
Our evaluation of the program indicates that it routinely
results in a 17 percent increase in household participation,
translating into a 22 percent increase in tons of recycled
materials. Data generation and analysis is a requirement for
cities implementing this program and is a key to the program's
success.
A robust material tracking and data gathering system is
necessary because of the complexities of materials recycling
value chains. For example, differences in material weights and
scrap value complicate consumer behavior choices. Aluminum's
material characteristics of high strength to weight and
corrosion resistance allow for uses that weigh less than other
materials performing the same job. Then measuring recycling by
comingled weight undercuts the full benefit of aluminum
recycling to the environment and its subsidizing role in most
curbside programs. This is just one of many considerations
which improved municipal waste data could influence.
The aluminum industry is committed to increasing recycling
because it is good business and good for the environment and
recycling efficiency should be a key consideration in our
country's energy strategy. For these reasons, the aluminum
industry is ready to work with EPA to improve our understanding
of the waste and recycling streams.
There are many proposed solutions to increasing recycling
in America, but industry and policymakers first need the best
data possible to understand which method is best.
I look forward to answering questions. I would thank the
committee again and the chairman. And thank you.
[The prepared statement of Mr. Johnson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you.
And now I would like to have Ms. Lynn Bragg. Thank you
again for appearing and you are recognized for 5 minutes.
STATEMENT OF LYNN M. BRAGG
Ms. Bragg. Thank you, Chairman Shimkus, Ranking Member
Green, members of the subcommittee. I am Lynn Bragg, President
of the Glass Packaging Institute, representing the North
American glass container manufacturing industry. Thank you
again for inviting me.
After hearing EPA testify, some of you may be wondering why
this bill is needed. Explaining how we make glass containers I
think will help answer that need.
Glass is originally made from sand, soda ash, and
limestone. The raw materials are melted together at extremely
high temperatures in a glass furnace creating molten glass that
is formed into beer, wine, and food and beverage containers.
New glass containers also can be made from recycled glass or
cullet. When we make new containers by adding cullet, we can
operate our furnaces at a much lower temperature, reducing our
energy use and emissions.
In terms of production, approximately 25 billion glass
containers were made in the United States in 2010. Our member
companies can make over 3 million beer bottles a day at a
single plant. At each of the 48 glass container plants in 22
States, recycled glass energy savings keeps our plants
competitive against increasing global competition, helps the
plants comply with Clean Air Act regulations, and keeps 18,000
people employed in high-paying salaried and hourly jobs.
GPI member companies use cullet on a daily basis and
compete heavily to buy it. Understanding the data behind the
recycled glass we purchase and from which recycling system it
comes from is a critical need for our industry. We know the
majority of Americans are committed to recycling. As
manufacturers, we rely on their voluntary efforts. There is a
good chance that you recycle using the green or the blue bin.
Have you ever wondered where the recyclables end up? We believe
most people do and the same is true for the manufacturing
industries that purchase these recyclables.
Currently, EPA issues a report on municipal solid waste
generation, recovery, and disposal. In that report, EPA
estimates the total amount of recyclables entering the
municipal waste stream and the total amount recovered. However,
EPA defines recovery as materials removed from the waste stream
for the purpose of recycling. For glass, EPA also counts as
recovery uses such as roadbed construction. Just collecting
materials or using materials as roadbed is very different from
the actual recycling of glass into new containers and other
products such as fiberglass.
Based on EPA's current reports, we have a rough idea of how
many glass containers are collected. Glass plants know how much
recycled glass they buy. We know that there is a big difference
between those numbers. And right now, what happens between
collection and actual recovery by a manufacturer is a black
box. We don't know what happens to the material that gets lost
along the way. We suspect that much of it becomes what the
recycling industry calls residue, material lost to
manufacturers after spending time and money collecting and
sorting that material.
Again, why are we talking to Congress about this issue?
Isn't recycling a State and local issue? We emphatically agree
that it is but we also believe the Federal Government has a
role in collecting and disseminating data. For example, the
Commerce Department through the U.S. Census reports vital data
on the production and sale of goods. That doesn't mean it
regulates those activities.
We think that EPA can play an important role in recycling
by collecting information and making it available to everyone.
With new data points on recycling that consider manufacturing
and markets, State and local governments can evaluate different
options for recycling. Municipalities may want to tailor their
recycling contracts to reach different outcomes, and industry
may find opportunities to form partnerships to recover more
recyclable materials collected.
Manufacturers frequently meet with States, local
governments, the solid waste industry, brand owners, and
environmental groups, and the need for better recycling data is
frequently discussed. In fact, I am attending such a meeting
today. We all share the goal of increasing recycling, but the
first asked typically involves information, what do we know,
what we don't know.
While the Discussion Draft doesn't allow EPA to force
organization to respond to information requests, we think EPA
will get a better response than if industry were asking the
questions. We know EPA will not get perfect information but it
will be an improvement. Right now, EPA issues their MSW report
without an approved information collection request under the
Paperwork Reduction Act. That means by law EPA can only ask
nine people for information. This draft does not waive the
Paperwork Reduction Act, but by requiring EPA to collect better
data on recycling, EPA can go to OMB and get approval for an
ICR, be able to ask more than nine people for information, and
produce a report that will help all of us better understand our
municipal recycling programs. I would also note that the draft
is only intended to address the MSW recycling stream and not
the industrial pre-scrap.
Thank you. I would be happy to answer any questions.
[The prepared statement of Ms. Bragg follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you very much.
Now, I recognize Mr. Jonathan Gold. Sir, you are recognized
for 5 minutes.
STATEMENT OF JONATHAN GOLD
Mr. Gold. Thank you, Chairman Shimkus, Ranking Member
Green, and members of the committee. My name is Jonathan Gold.
I am the senior vice president of the Recovery and Recycling
Division of the Newark Group. The Newark Group is one of the
oldest 100 percent recycled paperboard companies in the United
States. This year, we are celebrating our 100th anniversary. In
1916, my grandfather started the North Shore Recycled Fibers
paper recovery plant in Salem, Massachusetts, but I swear I
haven't been with the company that long--only about 35 years--
but paper recycling is in my blood.
I want to thank the committee for the opportunity to
present the views of the Paper Recycling Coalition on the
importance of data collection for recovered materials.
The PRC is comprised of 10 companies who manufacture 100
percent recycled paperboard and containerboard--basically
cereal, cake boxes, game boards, construction tubes, corrugated
boxes and beverage containers. PRC member companies operate
over 400 facilities in 42 States employing over 50,000 American
workers in well-paying jobs.
Recycling reduces the need for new landfills, saves energy,
creates jobs, reduces greenhouse gas emissions, conserves
natural resources, and supplies valuable raw materials to
American industry. It is the last point that brings me here
today.
Despite the well noted growth of electronic media, the
demand for recycled paper products is increasing every year.
Our society continues to be paper-intensive for numerous
reasons, including a rising demand for packaging. Recovered
paper is the only ``raw'' material that can be used by the 100
percent recycled paper industry, and by doing so, we are
extending the fiber supply. Our raw material comes from homes,
offices, and businesses all across this country. Each State is
responsible under the Resource Conservation and Recovery Act,
known as RCRA, for municipal solid waste (MSW) programs and the
systems for collection vary widely from State to state and from
municipality to municipality, producing vastly different
results.
For more than 20 years, EPA has been generating an annual
report on the Characterization of Municipal Solid Waste. It
currently details how much MSW is collected and how much is
diverted. However, that report has never been able to disclose
how much of that diverted material is actually reaching the
manufacturers who can turn it into a new product and how much
all of these recycling efforts are benefiting our society.
Let me give you an example from my own personal experience.
In the State of Massachusetts, which reports a 39 percent
municipality recycling rate, the material that comes into our
mill has a contamination level as high as 15 to 18 percent
because of broken glass, plastic bottles, plastic bags, and
steel cans, for example, as well as other unmentionables. When
you factor in wet weather, this level can be as high as 22
percent on a day-to-day situation.
To a large extent this is caused by single-stream
collection, a curbside collection process that allows for all
material to be collected in one bin versus separating paper
from all other collected material. This material is still
counted by the Commonwealth as recycled. What is too
contaminated for us to recycle in our mills ends up at the
landfill casting serious questions on the ``true'' recycling
rate. Improved data would help us get a better handle on the
problem in order to identify solutions.
We know that there is a great deal more that can be done to
improve basic collection. For example, every 2 weeks, we could
fill Fenway Park in Boston to the top with paper that is not
recovered for recycling. That is raw material and jobs that we
will never see due to the inefficiencies in the collection
system.
The paper industry has done an astonishing job of
increasing the recycling rate for paper 81 percent over the
past 20 years so that now we are collecting 66.8 percent of all
the paper available for recycling. However, with an ever-
increasing domestic and international demand, we need better
data tools to identify the paper that we are not currently
accessing in order to stimulate U.S. job growth.
The data collection bill under consideration today would
focus EPA's attention on the material that is actually
recovered for reuse in manufacturing. This material is the bulk
work of our business and essential to maintain our position as
a vital and vibrant American industry.
In the current economic climate, municipalities are
struggling to maintain funding for material collection. We
understand their problems and this proposal will not add to
their burden. We want to be part of the solution to that
problem, but we need better data in order to target our
approach to increasing collection.
We support this basic principle of this bill but remain
adamantly opposed to any government mandates on the private
sector because they distort market outcomes and efficiencies.
Mr. Chairman, this concludes my oral testimony. I would ask
that the committee consider my written testimony on this matter
on behalf of the Paper Recycling Coalition. I would be happy to
answer any questions from members of this committee. Thank you.
[The prepared statement of Mr. Gold follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you very much.
The chair now recognizes Mr. John Skinner from the Solid
Waste Association of North America. Sir, 5 minutes.
STATEMENT OF JOHN H. SKINNER
Mr. Skinner. Thank you. Good morning. Mr. Chairman, members
of the committee, it is a pleasure for me to be testifying here
about the importance of recycling of solid waste. It is a
strategy that has significant environmental energy efficiency
and economic benefits. We strongly support recycling and we
reviewed the draft discussion legislation and have some
comments that we would like to make about it.
Let me just tell you a little bit about who I represent.
Our members, 8,000 of them, are the people that collect,
process, recycle, and dispose of municipal solid waste across
the country. They are the professionals that are on the
frontline carrying out those programs. Thirty-five percent of
them work for the private sector; 65 percent of them work for
the public sector and we have 45 chapters in North America.
Our mission is professional development of our members--
education, training, scholarships, networking, certification,
and publications and we provide our members with the tools
necessary to do their jobs the best way throughout the year.
Recycling is very important to our members. It is
environmentally and economically sound and we provided an
extensive array of programs for our members in the areas of
recycling. I have listed some of those programs in my testimony
and in the interest of time I am not going to go over them, but
it is a wide range of training, education, certification,
research, and publication programs.
Turning now to the draft legislation, we certainly agree
that the manufacturing sector can increase its competitiveness,
it can reduce its energy cost, reduce its emission levels, and
improve the amount of materials that are diverted from
landfills through the increased use of recycled materials. That
is a goal that we entirely support. And we acknowledge that
increasing energy efficiency in the manufacturing sector can
increase employment, including higher-paying jobs. And we
acknowledge also that recycled materials are perfectly
acceptable feedstocks to produce new materials and products.
It is important that the data specified in the bill lead to
increased use of recycling, and communities have many variables
that they consider, but the key determinants of whether they
recycle a material or ship it for recycling are cost and
revenues. It is an economic decision and I am sure you all know
the situation that our local governments are in these days with
respect to their tax revenues and their economics.
We agree that improved data are very important and more
informed decision-making by policymakers will help private
sector users of recyclables increase their understanding of
what recyclable materials might be available. We also agree
that the report called for under Section 4 of the draft bill
would provide very detailed and very useful information at a
level of detail which is not available now and we think that
that is extremely good goal.
We had three areas of concerns that we raised: the time
frame for collecting this data, the cost estimate for
collecting it, and the authorities that will be necessary to
obtain that data. We have seen the changes that have been made
in the current draft of the bill and we think they go a long
way in that direction. The 2-year time frame is much better
than the earlier time frame that was indicated, and the fact
that the authorization would be an annual authorization and not
a 1-year authorization annual over 3 years would also be a very
important direction to move in.
I also heard Administrator Stanislaus say that he thought
that $800,000 a year and longer than 2 years was necessary, and
I think that we should listen to his reasons for that. There
might be some very good reasons for that. Tracking the flow of
materials throughout the economy from collector to broker to
manufacturer could be a difficult task and could take
considerable resources.
Finally, whether this type of information can be obtained
from voluntary information requests and existing published data
is questionable to obtain it at this level. I am not saying we
shouldn't try, but we may come up short and not get the type of
information that we need and we might need to go back and look
at other options. And we recommend that the committee consider
ways of obtaining that information and increasing voluntary
information submittals.
And we do recognize the fact that this bill would provide
EPA with the authority to conduct more wide-scale surveys,
would give them the ability to go and get approval of those
surveys under the Paperwork Reduction Act, but the question is
here how to increase the response rates. So let me say we would
be pleased, my association would be very pleased to work with
EPA on this effort and we would encourage our members to
cooperate with it. We believe the information would be very
useful and helpful to both the suppliers and the users.
Thank you, Mr. Chairman, be happy to answer any questions.
[The prepared statement of Mr. Skinner follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you, Mr. Skinner.
Now, I will recognize myself for the first 5 minutes.
And I will start with, you know, just the basic
observation: Recycling is good for everybody. There is really
no downside. So the question stems from in the new Congress,
the new House specifically, we are trying to shy away from
Federal mandates, mandating things. And so part of this bill,
my understanding, is obviously getting the EPA to collect
information but a voluntary system. So a question is do you
think the Discussion Draft, when introduced, should mandate
Federal recycling, recycling systems, or recycling goals? Mr.
Johnson, briefly if you can.
Mr. Johnson. No. We believe actually that those solutions
do exist. There are many of them, and this bill does exactly
what it should, which is to collect more information and
reevaluate the way we analyze that data so that we can make
those decisions after that fact.
Mr. Shimkus. Great. Ms. Bragg?
Ms. Bragg. I agree with Mr. Johnson. The Discussion Draft
and future legislation should not prescribe or mandate
recycling programs at the Federal level. It shouldn't be
mandating anything.
Mr. Shimkus. Mr. Gold, you sounded a little impassioned
about this in your opening statement. Do you concur?
Mr. Gold. Absolutely not. It is not practical or
economical.
Mr. Shimkus. OK, great. Mr. Skinner?
Mr. Skinner. Certainly not at this stage. There are a lot
of things that can be done to increase recycling short of going
that far.
Mr. Shimkus. Do you support any Federal mandates or
regulation as a way of increasing recycling?
Mr. Johnson. Not at this time. We don't have enough
information to know what those programs would look like and how
they would affect our industry and our material stream.
Mr. Shimkus. Ms. Bragg?
Ms. Bragg. No.
Mr. Shimkus. Mr. Gold?
Mr. Gold. No.
Mr. Shimkus. Mr. Skinner?
Mr. Skinner. Not regulations or legislation but I think the
Federal Government can play a very significant leadership role
in encouraging people to do these types of activities.
Mr. Shimkus. And let me just follow up on that because
obviously in the opening statement it seems like everybody is
pretty supportive, I think. Mr. Skinner, you were raising some
concerns but not, ``Stop, no way.'' And as I mentioned earlier,
I am co-chair of the Recycling Caucus. One of the reasons why
was to make sure that on the corporate side people really
understood how much is recycled there and it is really a solid
waste issue.
Good data could help us answer one question that perplexes
me--single-source versus multiple bins. And Mr. Gold, you
raised the contaminated or tainted material in a single source
issue. But the reality is we don't know nationally how much is
lost. There is no way we can provide information to local
communities or you all to say single source is good because, my
observation, more people find it easier to put everything in a
single bin. Simplicity helps. So there may be more generated
recyclable material but then we forget about that portion that
may be tainted and thrown out. But we don't know that answer.
Is that correct?
Mr. Johnson. That is absolutely correct. That is one of the
problems that we have pointed out repeatedly and we cite the
need for a study of this type. We need to know more about what
is happening to the material between collection and
reclamation.
Mr. Shimkus. Ms. Bragg?
Ms. Bragg. That is absolutely correct. Mr. Johnson's answer
is perfect really. We have the same issue.
Mr. Shimkus. And you are with the glass recyclers, is that
right?
Ms. Bragg. Yes.
Mr. Shimkus. So I toured the waste-to-energy plant across
the river, which is another huge option. They are very
successful in even reclaiming some of the metals, but glass, I
think, melts and that is one thing that if it is a single
source goes to waste-to-energy, I don't think the glass portion
is recoverable. Do you know anything about the waste-to-energy
and do you lose all that?
Ms. Bragg. I would have to do some additional searches on
waste-to-energy in terms of glass, but just in terms of
recycling, if the glass isn't collected properly, it does break
into very many small pieces and usually gets entangled with
paper and other liquids and becomes a big mess.
Mr. Shimkus. Is colored glass a challenge anymore for your
sector or----
Ms. Bragg. No.
Mr. Shimkus. No.
Ms. Bragg. No.
Mr. Shimkus. Mr. Gold?
Mr. Gold. Nationally, no, but internally with our own
company we know it is 10 to 15 to 18 percent contaminants from
single stream. It is unscrambling the scrambled egg.
Mr. Shimkus. Right. Yes. Mr. Skinner?
Mr. Skinner. Yes, the important thing is to understand why
municipalities go for single-stream or single sort. It is an
economic decision. It makes collection of the material much
less costly and collection is 80 percent of your costs of
managing of wastes. If you have to send down multiple trucks to
pick up multiple streams or you have sorting by the collector,
the collection is much more expensive. You can put it all in
one container. It reduces the collection cost if you can
collect it automated. So that is the reason that they are
moving in that direction. But I do acknowledge that when you do
that, you have to be very, very careful about your materials
recovery facility and sort out the contaminants so that the
products that you are producing are valuable.
Mr. Shimkus. And I will end on that. But I guess my final
point is I think centralized voluntary information is better
than no information to start making these decisions either from
the municipal waste collection side or the folks who want to be
end users of recycled products. There is a gap there of things
we don't know. And so I am very interested in this process and
we will follow it forward with great consultation with my
friend, Mr. Green, who I would like to recognize for 5 minutes
for questions.
Mr. Green. Thank you, Mr. Chairman. Again, I thank our
panel for being here.
This question is for anyone on the panel. Many States and
communities already issue reports on the outcomes of their
recycling initiatives. Is there a reason this type of survey
cannot be attached to those current reporting regimens?
Mr. Johnson. Are we still going in order?
The first reason is scope and scale. Many municipalities
attack their questions about their municipal material streams
at the local level and answer those questions. Industries need
information about the national and international movement of
our materials and the material flow.
Mr. Green. OK. Anybody else? Is that pretty well everyone
is agreed?
What makes you think that voluntary responses to the EPA
would differ from an initiative that your associations could
jointly initiate? I know, for example, I represent five
refiners and they cooperate all the time on surveys. It is
pretty regular. Would that be any different than what your
associations would cooperate on?
Ms. Bragg. Speaking for the glass industry, we do have our
own internal surveys but the type of information that we are
looking for in terms of this gap is something that we couldn't
do alone in terms of our own industry because we are really
looking for additional information where we can get a better
handle on the end markets. And we also need to know the gap in
the middle, what is happening to it, and that is very difficult
for us. We wouldn't be able to handle that on our own.
Mr. Green. But a good example, Mr. Skinner represents the
group of recyclers and when somebody brings in--they bring in
glass, they bring in paper--and in the case of city of Houston
where I live they bring in e-waste that, you know, you have to
separate from everything else. It seemed like that the
cooperation you could get a lot of this good information, you
know, with your associations doing it with the folks who
actually are picking up and are the receiver of those
recyclable items.
Ms. Bragg. You are making a very good point but many of us
are involved in groups that are seeking answers to why we
aren't getting more recycled material back. We are working
cooperatively together but we really do feel that if the
government, if EPA could request this additional information we
are asking for, we would have a better overall picture than
trying to piece it all together ourselves.
Mr. Green. OK. Mr. Skinner, you represent a huge number of
groups--I assume municipalities but also private recyclers
like----
Mr. Skinner. That is correct.
Mr. Green [continuing]. In my area in incorporated Houston
Waste Management has a recycling program that a community may
decide because it typically increases their cost to do that, so
you represent both private and public entities?
Mr. Skinner. That is correct.
Mr. Green. When your members pick up that waste, I assume
they divide it up or do they just have the different
associations that specialize in it. You know, does a glass
person come in and get your glass or aluminum person come in or
paper?
Mr. Skinner. It generally goes to a facility after it is
collected and depending upon how it is collected, it may need
to be sorted further and sorted considerably if it is collected
as comingled. And then it is basically baled and goes to a
broker and the broker would take it to the ultimate end
markets. So there is a process where they work through the
existing scrap markets to get that material.
In response to your prior question, I think there is good
data from the trade associations on how much material is being
used and how it is being used within their manufacturing. The
data that is limited is the supply side, what is coming out of
the municipalities and how much more could come out of
municipalities. That data is available. Some of it is on Web
sites and a good data collection effort could get it and bring
it all together. You might not get a complete national picture
but I think working on the supply side is important.
Mr. Green. Let me ask in my last 30 seconds I have a real
interest in e-waste and I partner with the city of Houston on a
number of these e-waste events. And Mr. Johnson, you talked
about the end user because I know a lot of my scrap paper is
actually sent overseas. I don't worry about how they dispose of
scrap paper as much as I am how they are doing and it has been
very publicly, internationally how some countries take e-waste
and literally it is a danger to the folks that do it. I want to
be able to track that.
And I know that is not today's hearing but, Mr. Chairman,
somewhere along the way I would like to see how we track what
e-waste is picked up now and how it is tracked to where we know
what is being done with it. And I appreciate the time.
Mr. Shimkus. The gentleman's time is expired.
The chair recognizes the gentleman from Colorado, Mr.
Gardner, for 5 minutes.
Mr. Gardner. Thank you, Mr. Chairman. And I know my
colleague and I and Mr. Latta from Ohio have a number of issues
in common in terms of concerns when it comes to recycling and
the facilities that we have in our districts--bottle
manufacturing and glass manufacturing, glass packaging--and so,
Ms. Bragg, I will direct a couple of questions your way. In
your testimony you claim that better recycling will help
energy-intensive manufacturers reduce their energy costs and
greenhouse gas emissions. How does the bill that we are
discussing today fit with that goal? How does it relate to
international competition and job preservation right here in
the United States?
Ms. Bragg. Thank you for the question. When a glass
manufacturer uses cullet instead of raw materials to make
glass, we can operate our furnaces at lower temperatures. So
once the cullet has already been melted into glass, it is much
easier to melt it again. And lower temperatures mean less
energy use. The glass industry relies mostly on natural gas to
run our furnaces and less energy use means lower emissions. And
they are, of course, directly related.
All of this helps us compete internationally and keep jobs
here in the U.S. As you would expect, profit margins are slim
and glass companies compete for customers by lowering their
prices, but you can't set your prices so low that the company
stops making money. And then if that happens, you have to close
your doors and people lose their jobs. And unfortunately, some
of our members have lost customers to foreign glass plants,
which really don't operate under the same regulatory
environment that we have here in the U.S.
So we need to do everything we can to cost-effectively keep
our energy costs and air emissions down. And really using
cullet instead of those raw materials to make glass really
helps us achieve those goals.
Mr. Gardner. And one thing I didn't realize until visiting
the manufacturing facility is the importation of recycled glass
into the country. Is that still occurring regularly?
Ms. Bragg. You know----
Mr. Gardner. Within the country, excuse me, like from, you
know, taking recycled glass from California to Colorado to meet
needs at the plant there.
Ms. Bragg. Yes, absolutely. Cullet is transported from
unbelievable locations to be used in a glass manufacturing
plant thousands of miles away.
Mr. Gardner. And the EPA believes that the bill requires
that it sample every single community and recycling facility in
the United States. Do you agree with that assessment?
Ms. Bragg. No, we do not. I mean even right now the EPA
uses statistical sampling and extrapolation of data and we
don't believe they would have to go to every single
municipality across the United States.
Mr. Gardner. Thanks. And you mentioned that the information
collection request in your testimony, what is that and why does
that matter?
Ms. Bragg. Well, as I mentioned in my testimony, the
information collection request is under the Paperwork Reduction
Act, and it limits the amount of people you can ask for that
information. So again with just nine people the reports are
estimates that are really extrapolated from a few surveys. And
it is my understanding that the EPA has not even tried to get
an information collection request to request any recycling data
like the data we are asking for in the Discussion Draft. So
again the Discussion Draft doesn't waive the Paperwork
Reduction Act but it does require EPA to collect information in
accordance with an ICR. So they would then have to put together
the survey, seek public comment, submit the surveys to OMB, and
given the legislation, we would expect OMB to approve the
surveys. So they would be able to ask more people than just
nine.
Mr. Gardner. Thank you, Ms. Bragg, and I yield back my
time.
Mr. Shimkus. Would the gentleman yield for his last 50
seconds?
Mr. Gardner. Absolutely.
Mr. Shimkus. We are a market-based competitive majority in
the House right now. And why wouldn't just the purchases of
recycled goods send a price signal? There will be a break point
where adding the recyclable material to your production process
is profitable based upon EPA regs, energy costs, and the like,
and when it is not. I will have to get an answer to this
question for my colleagues. Why wouldn't a price signaled by
you all on the cost of an input product send a signal we want
more recycled cans? We want more recycled glass. We want more
recycled paper. Why isn't that working?
Mr. Johnson. I would make two points. First is because that
signal is not received by the disparate end users of the
products who are the first step in recycling the material. So
the average household is not recycling aluminum cans because
they can get back the individual monetary value of each of
those cans. They are doing it because it is the right thing to
do for the environment and because it is an available service
in their community.
The second point I would make is that those price signals
are being sent through our economy. Each year, the aluminum
that is produced in the United States is almost half recycled
material and we have a shortage still of material coming into
our processes. So we are sending that signal but the first and
possibly the second step of the scrap stream is never going to
receive that signal.
Mr. Shimkus. Ms. Bragg, same?
Ms. Bragg. I can't really speak directly to price. Our
industry is especially very wary of antitrust. We really abide
very strictly by the antitrust regulations, so individual
companies could respond to that. I know as individual
companies, they work every day with recyclers and processers.
Mr. Gold. I think in the paper side the two major grades
that are recovered are corrugated and residential mixed papers,
and we are way over 70, almost 80 percent recovery rate on
those two. There is not a lot more that can be recovered unless
you go into the landfills and start to pull back.
Mr. Shimkus. Mr. Skinner?
Mr. Skinner. If the price signal is strong enough and if
there are contracts for the long-term, municipalities will put
in the collection programs to get that material out. And that
is what needs to be done. It has to be a program that you can't
turn on and off municipal recycling. It has to be something
that you sustain over a period of time.
Mr. Shimkus. Great. Well, we appreciate your testimony and
thank you for your time.
And with that, we will empanel the fourth panel. Thank you.
We welcome the fourth panel, and I will do as I did with
the third panel, introduce you all at one time and then ask you
to give your opening statements. So with us is Ms. Susana
Hildebrand, Professional Engineer, Chief Engineer, Texas
Commission on Environmental Quality. And we want to welcome
you. Mr. Water Bradley, Director of Government and Industry
Relations with the Dairy Farmers of America, and having the
largest dairy county in the State of Illinois, I particularly
welcome you.
Mr. Bradley. Great.
Mr. Shimkus. It is not huge but it is the largest.
Mr. Ed Hopkins, Director, Environmental Quality Program
with the Sierra Club, sir, welcome back.
And with that your full statements are in the record. As
always, you have 5 minutes and we would like to start with you,
Ms. Hildebrand.
STATEMENTS OF SUSANA M. HILDEBRAND, CHIEF ENGINEER, TEXAS
COMMISSION ON ENVIRONMENTAL QUALITY; WALTER BRADLEY, GOVERNMENT
AND INDUSTRY RELATIONS REPRESENTATIVE, DAIRY FARMERS OF
AMERICA; AND ED HOPKINS, DIRECTOR, ENVIRONMENTAL QUALITY
PROGRAM, SIERRA CLUB
STATEMENT OF SUSANA M. HILDEBRAND
Ms. Hildebrand. Good afternoon. Again, my name is Susana
Hildebrand and I am the chief engineer at the Texas Commission
on Environmental Quality. Thank you for the opportunity to
speak today.
The Texas Commission on Environmental Quality regularly
weighs matters that affect the environment and economy.
Decisions made by the TCEQ are based on the law, common sense,
good science, and fiscal responsibility. The Superfund Common
Sense Act, H.R. 2997, is also based on these principles. This
hearing is not about whether manure should be regulated. Animal
agricultural operations that produce manure are already
adequately regulated under other environmental laws such as the
Federal Clean Water Act and Clean Air Act, as well as State-
specific authorities in Texas--the Texas Water Code and Texas
Clean Air Act.
The question is whether additional regulatory burdens of
CERCLA are necessary for manure. H.R. 2997 would remove the
question from the purview of the courts and EPA ensuring that
resources dedicated to CERCLA are used to address the problems
that Congress had intended.
The Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), as amended by the Superfund Amendments
and Reauthorization Act (SARA), authorizes Federal cleanup of
releases of hazardous substances, imposes liability for
cleanup, and provides restoration or replacement of natural
resources affected by a release. CERCLA defines a hazardous
substance as a substance designated under various acts,
including the Clean Air Act and the Clean Water Act.
CERCLA also specifies reporting requirements when specific
quantities of hazardous substances are released into the
environment. CERCLA Section 103(a) excludes, ``federally
permitted'' releases, including discharges addressed through a
National Pollutant Discharge Elimination System (NPDES) permit
from the release notification requirements of CERCLA. This
exclusion is appropriate because effective regulatory and
enforcement mechanisms already exist under the applicable laws,
including the Clean Water Act and the Clean Air Act.
Specific agricultural operations, such as the confined
animal feeding operations (CAFOs), are already regulated under
the NPDES program and the Texas Pollutant Discharge Elimination
System (TPDES program) in Texas. TPDES permits regulate
discharges from CAFOs; they include best management practice
requirements for manure management. With regard to air
emissions, facilities in Texas are subject to the Texas Health
and Safety Code, through the Texas Clean Air Act, and must be
authorized prior to construction.
In considering issuance of a permit, the TCEQ considers
possible nuisance odors and addressing handling and storage of
manure. Violations of State law or agency regulations,
including odor and nuisance conditions, are subject to
enforcement. Congress should make it clear that current
environmental laws are adequate and that regulation under
CERCLA is not necessary.
Moreover, as the United States EPA describes in its
Superfund Web site, the CERCLA law was enacted following the
discovery of high-risk toxic waste dumps such as Love Canal in
New York and Times Beach in Missouri in the 1970s. Also,
according to EPA, ``this law created a tax on the chemical and
petroleum industries and provided broad Federal authorities to
respond directly to releases or threatened releases of
hazardous substances that may endanger public health or the
environment.'' CERCLA was never intended to address the removal
or cleanup of agricultural sites that are comprised of manure
created by biological processes, as defined by H.R. 2997.
The CERCLA and the Federal Superfund program have had
tremendous benefit in cleaning up legacy pollutants from some
of the Nation's worst toxic waste sites. Applying CERCLA to
agricultural operations that produce manure is not consistent
with its original intent and will likely result in the
diversion of Federal, State, and local resources away from the
cleanup of sites that contain hazardous substances and truly
present the most significant risks to human health and the
environment. Manure clearly does not fit into this category.
Regulating manure as a hazardous substance would be unduly
burdensome to business owners who by and large manage manure
properly. Congress should make it clear that manure is not a
hazardous substance regulated under CERCLA. If Congress does
not act to exclude manure, then it will allow the courts or EPA
to define CERCLA applicability, resulting in ambiguous,
duplicative, and inappropriate requirements to other mechanisms
already available to State regulators charged with the mission
of protecting human health and the environment. There is no
additional benefit to regulating manure under CERCLA as there
are regulatory programs already in place to address
environmental concerns.
The facts are clear: stringent requirements meant for truly
hazardous substances, such as those imposed under CERCLA,
should not apply to manure.
[The prepared statement of Ms. Hildebrand follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you very much.
Now, I would like to recognize Mr. Bradley for 5 minutes.
STATEMENT OF WALTER BRADLEY
Mr. Bradley. Thank you, Mr. Chairman, members of the
committee.
I am former New Mexico Lieutenant Government Water Bradley,
and today, I am here to represent the 15,000 farmer owners of
Dairy Farmers of America. And we are in strong support of H.R.
2997. This measure will once and for all affirm that the very
small livestock manure that is used to fertilize our Nation's
organic crops is not a hazardous or toxic substance under
Superfund.
The last few years have posed extraordinary challenges for
producers across the country but especially in my region where
a majority of feed is imported from other regions. And in 2009
and 2010, our producers dealt with a very volatile milk price
and input costs, a supply-and-demand imbalance, and other world
factors which drove down the price of milk and our operating
margins. Many lost a generation's worth of equity while others
left the business. In New Mexico, most every one of our
survivors had to take on more debt.
Prices, feed costs, supply-demand fluctuations, and weather
are all things farmers cannot always control. The uncertainty
that these and other factors bring to the industry is
startling, but one thing we can deliver, that we should be
delivering to our dairymen is regulatory surety. I ask this
committee to do just that, specifically make clear the intent
of Congress to not regulate manure under CERCLA and EPCRA. We
are not seeking an exemption from the Federal Clean Water Act
or the Clean Air Act or similar State laws including any
Federal or State worker protection laws. We are merely seeking
clarification under CERCLA and EPCRA that animal manure does
not necessitate an emergency response, nor does it create a
Superfund site.
It should also be pointed out that both CERCLA and EPCRA
include exemptions for animal operations. The example of the
definition of hazardous chemical under CERCLA excludes any
substance to the extent it is used in agriculture operations.
Without this clarity, the courts can and ultimately will be
left to redefine the regulation. And some lawyers have already
jumped on this bandwagon. In fact, in 2009, the Middleton Law
Firm in Georgia and the Spear Law Firm in Missouri formed the
Center to Close and Expose Animal Factories and have filed
numerous lawsuits around the country on all sizes of farms.
I don't believe Congress ever intended for manure to be
regulated as a hazardous substance, and recent history
demonstrates that Congress understands the value of manure to
America and has encouraged its creative use. Laws have been
passed and initiatives undertaken to encourage rural America to
participate in the renewable energy field through the
development of on-farm energy production by producing biogas,
electricity, and biodiesel derived from manure. This very
Congress has acknowledged manure's value by funding research,
passing tax credits and mandates for its use. How can we
possibly ask dairy producers to invest millions of dollars in
technologies to support the Nation's energy needs without
addressing the threat that manure will be classified as a
hazardous substance?
And how are organic farmers going to fertilize their crops?
Government regulations forbid the use of manufactured
fertilizers. Besides being used for bioenergy production,
manure is frequently spread on fields for fertilizer. This
simple, long-standing, and environmentally respectful practice
is threatened by the insecurity surrounding manure's possible
regulation under CERCLA. Conversely, I find it interesting that
petroleum-based fertilizers, the alternative to the naturally
occurring fertilizer, are exempt from these laws.
In closing, I would like to point out that animal
agriculture operations are subject to a vast array of Federal,
State, and local environmental laws and authority to deal with
every conceivable environmental problem presented by them. They
include the Clean Air Act; the Clean Water Act; the Resource
Conservation Recovery Act; the Toxic Substance Control Act;
FIFRA; soil conservation, dust, and odor mitigation controls;
as well as nuisance laws, which have all been applied broadly
throughout the country to provide environmental protection from
every conceivable aspect of animal agriculture operations.
In New Mexico, we have the Ground Water Protection Bureau,
the Surface Water Bureau, the Air Quality Bureau, and a set of
New Mexico dairy rules for permitting of all dairies in
addition to all the federal rules and regulations I mentioned
above.
There has been no indication that environmental laws such
as these are inadequate and we certainly don't need another
layer of duplicative regulatory actions. I hope Congress
addresses this issue and makes clear their original intent that
manure from animal agriculture is exempt as a CERCLA hazardous
substance, and I commend Congressman Long for his leadership on
this issue and hope to soon see H.R. 2997 passed and signed
into law.
Thank you, Mr. Chairman, members of the committee, for this
opportunity.
[The prepared statement of Mr. Bradley follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you very much.
And our final witness for today on the fourth panel is Mr.
Ed Hopkins, Director of Environmental Quality Programs, Sierra
Club. Sir, welcome.
STATEMENT OF ED HOPKINS
Mr. Hopkins. Thank you, Mr. Chairman, Ranking Member Green.
I appreciate being here today representing the Sierra Club. We
have worked at the local, State, and Federal level for over the
past decade to protect public health and the environment from
factory farm pollution.
Unlike in earlier decades, many of today's large-scale
operations contains thousands and in some cases even millions
of animals in closed buildings producing huge volumes of waste
material that can pose serious threats to air and water. A
recent GAO report cited an example of one hog operation
generating some 1.6 million tons of manure a year. That is
about one-and-a-half times the amount of sanitary waste
produced by the city of Philadelphia. There is an important
difference is that the city of Philadelphia has a wastewater
treatment system; the hog operation doesn't.
Some large livestock operations now find themselves
producing more waste than they can responsibly manage by
traditional land application practices. But instead of adopting
more advanced treatment or moving waste materials outside of
watersheds that can't tolerate more pollution, some operations
simply dump excess manure. Whether they allow leaks and spills
from manure storage lagoons, spray or apply manure to frozen or
bear ground, or simply over-apply far in excess of the
agronomic needs of crops, their practices result in pollution
of ground and surface waters with excess nutrients and
dangerous pathogens, arsenic, other toxic mineral compounds,
and antibiotics.
As a result, more than half of the States cite animal
feeding operations as sources of water pollution. Some of these
operations release more ammonia into the air than industrial
facilities. The GAO documented many government-sponsored or
peer-reviewed studies that directly or indirectly linked
pollutants from animal feeding operations to specific health
and community environmental impacts.
That is why cities like Tulsa, Oklahoma, and Waco, Texas,
desperate to protect their drinking water from upstream manure
pollution resorted to CERCLA as their only source of relief.
These cities want to protect their ratepayers from footing the
bill to clean up somebody else's pollution. In Waco, for
example, the city had to spend some $54 million to install new
drinking water treatment systems.
Passing H.R. 2997 and exempting poultry and livestock waste
from CERCLA and EPCRA will only exacerbate these real-world
problems. It will increase threats to drinking water supplies,
force water users to bear the cost imposed by sloppy operators,
and withhold important information about air toxics from
emergency responders in neighboring communities.
What is the problem that proponents of this bill are trying
to solve? Are they trying to stop lawsuits threatening farmers?
There have been three lawsuits to address manure-related
contamination of water in CERCLA's 32-year history. Isn't it
completely understandable that communities want polluters held
responsible for contaminating their drinking water?
Is it overregulation of agriculture? If anything, poultry
and livestock operations are grossly under-regulated. Twenty-
nine States report that CAFOs are responsible for pollution.
Only 40 percent of 20,000 large livestock and poultry
operations have obtained Clean Water Act permits, and as far as
I am aware, no livestock or poultry operation in the country
has a Federal Clean Air Act permit.
Is it duplication between CERCLA and the Clean Water Act?
Actually, these laws were carefully crafted to complement one
another. If an operation has a Clean Water Act permit, the
releases covered in that permit are shielded from CERCLA.
CERCLA is the only Federal law that allows for State and local
governments to recover cleanup costs from those responsible for
contaminating drinking water supplies.
Are these laws making manure into a hazardous waste and
turning farms into Superfund sites? No one is arguing that
manure itself is hazardous and no one is seeking to ban its use
as a fertilizer. If a farm operator is using manure as a
fertilizer, there is no liability under CERCLA. There is a
specific exclusion for that in the law. Only farmers
mismanaging manure so as to cause hazardous releases of
phosphorous and other pollutants into water need be concerned.
In the history of CERCLA, not one single farm has been named to
Superfund's National Priority List because of manure.
This bill does nothing to help responsible farmers. It is
aimed at eliminating legal safeguards communities can use to
protect their drinking water supplies and their ratepayers from
irresponsible livestock and poultry operators that are dumping
their manure and causing pollution.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Hopkins follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you, Mr. Hopkins. Let me go first to
you.
Does the Clean Water Act Section 311(f) authorize recovery
of costs incurred pursuant to hazardous substance mitigation
requirements under Section 311(c) of the Clean Water Act?
Mr. Hopkins. Not to my knowledge, sir.
Mr. Shimkus. I think it does. And the question would be
does 2997 change those authorities?
Mr. Hopkins. The bill doesn't amend the Clean Water Act.
Mr. Shimkus. So if I am correct and the Clean Water does
allow recovery, then this bill would not affect the recovery of
those costs. I mean if we were just following the basic--well,
obviously, we will have to get you to look at whether the Clean
Water Act authorizes the recovery of cost, which you don't know
the answer to. We think it does.
Mr. Hopkins. My understanding, sir, is that the reason that
the city of Waco and that Tulsa sued using CERCLA was because
that was the statute that best provided them the----
Mr. Shimkus. Yes. Reclaiming my time----
Mr. Hopkins [continuing]. Possibility of getting----
Mr. Shimkus. They also sued under the Clean Water Act, and
that was settled out of court. So it was a settlement between
the two parties so it never went to full litigation.
Let me ask the same question on the Solid Waste Disposal
Act, which authorizes EPA to obtain information or inspect
facilities where hazardous wastes have been generated, stored,
disposed of, or transported. Would H.R. 2997 change any of
these authorities?
Mr. Hopkins. Well, manure is not a hazardous waste, so it
wouldn't be covered by----
Mr. Shimkus. But this is under the Solid Waste Disposal
Act.
Mr. Hopkins. Yes, and that is regulating hazardous waste.
That is what the Solid Waste Disposal Act is. And----
Mr. Shimkus. But if the hazardous waste is a solid waste--
--
Mr. Hopkins. Um-hum.
Mr. Shimkus [continuing]. Then Section 3007 of the Solid
Waste Disposal Act authorizes the EPA to obtain information and
inspect facilities. So the question is, in the proposed bill,
would that change that authority?
Mr. Hopkins. No, the proposed bill would not change any
authority----
Mr. Shimkus. Thank you.
Mr. Hopkins [continuing]. Under that law.
Mr. Shimkus. And then Section 7002 of the Solid Waste
Disposal Act authorizes citizen suits against any person of the
Federal Government to enforce the solid and hazardous waste
laws. Would H.R. 2997 change these authorities?
Mr. Hopkins. No, it doesn't.
Mr. Shimkus. Again, Section 7003 of the Solid Waste
Disposal Act gives EPA authority to address imminent hazards
and issues orders necessary to protect the environment. In fact
EPA has used this authority before in pursuing a livestock
operation. Would H.R. 2997 change these authorities?
Mr. Hopkins. No, sir.
Mr. Shimkus. Section 112 of the Clean Air Act requires air
emissions reporting on hazardous air pollutants. Does H.R. 2997
change these authorities?
Mr. Hopkins. No, it doesn't amend the Clean Air Act.
Mr. Shimkus. Thank you. Let me ask, you know, Mr.
Stanislaus who testified for the EPA, kind of seemed all over
the board. In one comment, the comment was, ``manure is not
hazardous waste,'' but then he went down and then flipped and
said, well, the component parts of the manure are hazardous.
And I found his testimony quite confusing to the point that I
just decided to let him finish and move forward.
Let me go back to Mr. Hopkins. Are you all a party of the
suit to the EPA which caused the reevaluation and their filing
under the Federal Register of October 21, 2011? Mr. Stanislaus
talked about suits filed. Was Sierra Club part of filing a suit
in this case that helped encourage the EPA to relook at their
position?
Mr. Hopkins. You know, Mr. Chairman, I am sorry I don't
know the answer to that but I would be happy to provide that
for the record.
Mr. Shimkus. That would be helpful.
So finally, Ms. Hildebrand and Mr. Bradley, you did hear
the EPA, Mr. Stanislaus and his testimony. I will give you each
20, 25 seconds to anything you heard that you think that we
might want to raise our concerns.
Ms. Hildebrand. Well, I am not sure if Mr. Stanislaus is
not as familiar with the Clean Air Act or the Clean Water Act
and that is why he answered as he did, but it seemed that he
thought that there was nothing that the Federal Government
could do to compel immediate action if there were a lagoon
overflow or something to that effect. And my information
indicates that the Federal Water Pollution Control Act Section
504 is the piece that the EPA administrator could use to seek
immediate action. And Section 303 of the Clean Air Act allows
EPA to bring action for relief as well.
Mr. Shimkus. And it is your job as a commission member to
ensure the environmental quality of the citizens of the State
of Texas, is that correct?
Ms. Hildebrand. Certainly. That role is very important to
our agency.
Mr. Shimkus. Thank you very much.
And Mr. Bradley, just in response.
Mr. Bradley. I agree with what was just stated and I was a
little concerned about his wishy-washiness on phosphorous, et
cetera, which clearly all science says that animal-procured
phosphorous and phosphates are not the hazardous waste that the
chemically manmade-produced are. They are totally different and
I think he got confused there which kind of bothered me.
Mr. Shimkus. Well, I thank you for your time.
And now I would like to yield to the ranking member, Mr.
Green, for 5 minutes.
Mr. Green. Thank you, Mr. Chairman.
And I think, you know, we are talking about the difference
in size. You know, my average dairy farmer in Texas is really
not that large compared to some other farms. And, in fact, let
me ask my question of Ms. Hildebrand. One, I appreciate you
being here. And having served many years in the State
legislature, I appreciate the diligence of our Texas Commission
on Environmental Quality or whatever we call it now. I know
that is the current name.
Has the State of Texas ever used either Clean Water or
Clean Air actions against, for example, you know, a huge
facility whether it be for a large dairy facility or even a--I
know up around Amarillo and parts of Texas we have huge
stockyards that are really just factories for our beef. And we
like it but we also know because the size of those facilities
it may not be, you know, farmers running or ranchers running,
you know, a few cattle on their hundred acres, which is not the
issue. In fact, they probably recycle theirs as compared to a
larger operation. Has the State ever used a Clean Air or Clean
Water action on those?
Ms. Hildebrand. Well, I know of a couple examples and I can
give those to you in a written response.
Mr. Green. OK. I would appreciate that.
Ms. Hildebrand. But in general I would say that typically
we have the authority under the Clean Air Act, both the Texas
Clean Air Act and under the Federal and if, for example, there
was a nuisance condition that occurred as a result of a large
facility, we would go out and investigate because if a nuisance
occurred as a result of something like that, we would expect
there to be a permit issue. And so we would look for permit
violations whether that is under the TPDS or under the Clean
Air Act permit that they received, authorization.
Mr. Green. OK. What if they don't have a permit?
Ms. Hildebrand. So those emissions that would come from the
manure for air are authorized under permit-by-rule, so they may
not have an explicit permit that they received from the State
but they are authorized. Or they are operating under air
emission allowances that are provided for in the water permit.
Mr. Green. OK. Mr. Hopkins, I know there was a 2003
National Academy of Sciences issued a report on pollution from
animal feeding operations. The Academy found that multiple
operations emitted multiple pollutants including ammonia,
hydrogen sulfide, particulate matter, and greenhouse gases. In
2011, EPA estimated 80 percent of the U.S. ammonia emissions
were from agricultural operations. What are the potential
health impacts from large-scale ammonia emissions?
Mr. Hopkins. Well, ammonia emissions can cause a host of
respiratory problems, eye, ear, nose, and throat problems. It
is also a precursor to fine particular matter. Somewhere
between 9 and 11 percent of the Nation's fin particulate matter
has its origin in ammonia, so that is a very serious health
problem as you know and that can, again, cause all kinds of
respiratory and cardiovascular problems.
Mr. Green. I only have a couple minutes left. We heard
earlier today that other environmental laws and just now that
address the risks and the liability and reporting requirements
under Superfund are redundant and unnecessary. Are there
provisions under other environmental laws that would require
cleanup of contamination from manure and ensure that
responsible parties will pay for that cleanup?
Mr. Bradley. I will take a shot at that----
Mr. Green. OK.
Mr. Bradley [continuing]. Congressman Green. In the State
of New Mexico, part of an answer to your earlier question, you
know, the State of New Mexico took action on a spill into the
Rio Grande River by a dairy. That dairy was sued; that dairy
was ordered to clean up and to change their structure. They
were in violation of their permit so they paid a fine, they
paid their money, and the State of New Mexico does have a
Superfund that they have created for spills because a lot of
these people don't have any money. We take all we got and then
we go from there.
Mr. Green. OK. So New Mexico has a State Superfund I guess
for this so it is not under----
Mr. Bradley. But we also use the Clean Water Act, which is
in coordination with our Surface Water Ground Bureau.
Mr. Green. Ms. Hildebrand, is that similar to what we have
in Texas? You know, I am under a disadvantage. I have a very
urban area and, believe me, I have refineries and chemical
plants fence-to-fence, so I am real familiar with that. But,
you know, my ag area is just a little bit different so I am
learning.
Ms. Hildebrand. Certainly, as I understand it, the Texas
Health and Safety Code and the Texas Water Codes allow for us
to pursue relief from those facilities if there were an
environmental issue that was resulting from their actions.
Mr. Green. Including assigning responsibility to the party
and making them pay?
Ms. Hildebrand. I believe so.
Mr. Green. OK. Mr. Hopkins?
Mr. Hopkins. Well, I would say it is not just a question of
whether State regulatory agencies have the authority to do that
but whether other parties like cities have the authority to do
it. And I think that is an important facet that CERCLA provides
that maybe these State laws don't.
Mr. Green. The example--and I only have a few seconds
left--I know Waco and Waco had to sue. I assume they were suing
under not only State law but also city ordinances in Waco,
Texas? Because I think in Houston, you know, we have ordinances
for public nuisances that could be applied maybe unless they
are exempted by State law.
Ms. Hildebrand. I think that the crux of their lawsuit--and
again it was settled so it never went--the majority of their
issue was violations associated with the Clean Water Act.
Certainly CERCLA entered into it and there was a question about
the phosphorous that I think Mr. Bradley talked about, but at
the heart of the issue I think it was a Clean Water Act
question.
Mr. Green. OK. Mr. Hopkins, let me give you final if you
have any--well, I am out of time--but just so you could
respond. The current law is not available even to
municipalities if they have an ordinance?
Mr. Hopkins. Yes, I think that the reason Waco used CERCLA
was because they didn't want their ratepayers to foot the bill
for the pollution that they were having to clean up.
Mr. Green. Yes. Well, and obviously I know about my
Superfund sites and thank the Texas Environmental Quality, EPA
on light speed to put a facility--and we are still working on
that by the way. The encapsulation I understand is not working.
But anyway, thank you, Mr. Chairman, for the time.
Mr. Shimkus. The gentleman is quite welcome.
And we would like to thank the panel for being here and
answering our questions. I think one thing to consider on CAFOs
is the location. You know, most CAFOs are going to be in rural
America addresses the ammonia debate. Concentration is a
concern on air emissions but when you have got a CAFO that is
in rural America, rural Illinois, and it is 20 miles from the
nearest community, the ammonia issue and the intensity is not--
I mean I think we have still got Clean Water Act issues,
compounding issues, those are still in the debate. We think
those are kind of covered.
But having said this, Mr. Bradley?
Mr. Bradley. I just wanted to make a quick clarification if
I might about the Waco because I hear a lot about Waco in here
today and there is a lot of bad information floating around. I
think a little more research ought to be done----
Mr. Shimkus. Well, if the gentleman would yield, we are
going to ask for the final judgment to be filed as part of this
record because it addresses some of the questions that were
raised I think especially on phosphorous that you had raised
and the difference----
Mr. Bradley. Right.
Mr. Shimkus [continuing]. On that so----
Mr. Bradley. OK.
Mr. Shimkus [continuing]. A brief----
Mr. Green. Mr. Chairman, I know I am familiar also with the
problem in rural areas, but what we are having in Houston--
because I had a lot of dairy farmers up in Tomball, Texas, some
good families, but because of the suburbanization of it, you
know, the city has moved out there and it has made some
conflicts that folks, when they moved there, they didn't
realize there was a dairy farm down the road. We have that same
problem in other areas, too. But it can happen particularly in
the suburbs growing out the rural----
Mr. Shimkus. Those city slickers coming out to rural
America, they ought to----
Mr. Green. Yes.
Mr. Shimkus [continuing]. Make sure they know what they are
buying.
So we have three submissions we would ask unanimous consent
for. The first one is a letter from the National Association
for PET Container Resources.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. The other one we will keep the record open for
10 days and make sure we are able to see the letter that you
had asked to be submitted, which is from the National
Association of SARA Title III Program Officials.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. And then the last one, which I need to just be
corrected on, it is a brief on the Waco case. So without
objection----
Mr. Green. Whose brief is it?
Mr. Shimkus. Well, we have already run it by the----
Mr. Green. Oh, have you? OK. Mr. Chairman, let me just look
at it and see to see, you know----
Mr. Shimkus. OK. We will----
Mr. Green. Having done briefs, if my client wanted me to do
one, I would do it.
Mr. Shimkus. Well, we will do the same thing. We will do 10
days, you guys have time to either accept or reject on that.
Mr. Green. OK.
Mr. Shimkus. And appreciate your time and effort and again
thank you for coming.
And this hearing is adjourned.
[Whereupon, at 12:55 p.m., the subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]