[Congressional Record Volume 151, Number 144 (Thursday, November 3, 2005)]
[Senate]
[Pages S12349-S12350]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          SUPERFUND LITIGATION

  Mr. BROWNBACK. Mr. President, I rise today to speak on the issue of 
clarifying Congress's intent regarding agricultural operations in 
respect to Superfund litigation. I, along with my colleague from Idaho, 
Senator Craig, offered an amendment during the agriculture 
appropriations conference committee that would have done that very 
thing. The amendment passed the Senate, by a 9 to 8 vote, yet was 
stripped from the final conference report. Needless to say, I am 
disappointed with this result. So much so, in fact, I decided not to 
sign the conference report.
  When the Comprehensive Environmental Response, Compensation, and 
Liability Act, or CERCLA, was passed in 1980 and the Emergency Planning 
and Community Right-To-Know Act, or EPCLA, was passed in 1986, 
agriculture was never part of the deal. These acts were intended to 
provide for clean up of toxic waste dumps and spills such as Love Canal 
and Times Beach. To this end, Congress created the Superfund to tax 
building blocks, such as petrochemicals, inorganic raw materials and 
petroleum oil, used to make all hazardous products and waste. Animal 
agriculture waste, or manure, is clearly not among these materials. In 
fact, if you would have tried to attach agriculture to either of these 
two acts, they would not have passed. It was not Congress's intent to 
apply Superfund rules to manure which contains naturally occurring 
organic compounds--such as orthophosphate, ammonia and hydrogen 
sulfide--which occur naturally in the environment in the same form as 
they appear in manure.
  Recently, municipal and State governments have filed suit against 
livestock and poultry operations claiming Superfund liability in Texas 
and Oklahoma.
  On April 24, 2004, the City of Waco, TX, filed suit in Federal court 
against eight dairies in the North Bosque River Watershed and later 
amended the suit to include six additional dairies, seeking $45 million 
in damages under Superfund. The suit alleges that orthophosphate is 
discharged from the dairies and has affected the water quality of Lake 
Waco which is located approximately 100 miles downstream from the 
dairies.
  On June 13, 2005, the attorney general of the State of Oklahoma filed 
suit in Federal court against 14 major integrated poultry production 
firms claiming joint and several liability for damaged water quality in 
the Illinois River Watershed caused by poultry litter runoff from 
agricultural lands to which it has been applied as fertilizer. The suit 
seeks to recover past, present, and future response costs under 
Superfund, as well as natural resource damages that is expected to add 
up to several hundreds of millions of dollars. If these two cases are 
successful, other municipalities and States could bring similar 
lawsuits and every animal feeding operation and farm could be held 
liable under Superfund.
  This is another example of our judicial system overstepping its 
boundaries. Our judicial system is usurping the will of Congress and 
creating laws Congress never meant to create.
  Animal agriculture operations have been appropriately regulated and 
required to have permits for years under the Clean Water Act, the Clean 
Air Act, and various State laws to protect the environment, but never 
under Superfund. My amendment would have left these laws in place. My 
amendment would have only protected agricultural producers from another 
example of an activist judicial system. Agriculture is already an over 
regulated industry and adding the possibility of Superfund litigation 
will be too much to bear for farmers and ranchers.
  Further, Superfund was created with a specific goal and mission in 
mind. The EPA is burdened to meet these goals as it is. To now add the 
millions

[[Page S12350]]

of acres of agriculture as possible Superfund sites would be too heavy 
a burden for the EPA to carry. Including agriculture within Superfund 
takes away from Superfund's initial, worthy mission.
  As I stated earlier, I am disappointed that the Superfund amendment 
was stripped from this report after having passed the Senate. I fully 
intend to bring this item up next year and I am currently looking for 
ways to move this legislation. This needs to happen for our farmers and 
ranchers.

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