[Congressional Record Volume 152, Number 135 (Friday, December 8, 2006)]
[Senate]
[Pages S11725-S11726]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



  (At the request of Mr. Reid, the following statement was ordered to 
be printed in the Record.)

    SMALL FARM SUSTAINABILITY: ANIMAL FEEDING OPERATIONS AND CERCLA

 Mr. JEFFORDS. Mr. President, I rise today to speak about two 
issues that are of great importance to Vermonters--sustainable 
agriculture and environmental protections. Over the years, I have 
fought for education dollars when it seemed none were available. I have 
fought to protect the environment when its champions were few. But my 
greatest priority has been to find ways to ensure that Vermont 
agriculture, the lifeblood of our economy and our culture, remains 
sustainable and competitive into the future.
  I have worked successfully in both the House and the Senate to help 
assure dairy farmers of a fair and stable price for their milk, through 
the dairy compact and MILC Program. I have worked hard to provide 
strong Federal support for conservation programs, helping farmers to be 
good stewards of the land, while never comprising my commitment to 
environmental protection. I have supported the cider and cheese 
industries in the face of increasing Federal regulation and have 
promoted tax policy that allows for the intergenerational transfer of 
farms.
  Today, I stand before you somewhat perplexed. For several months now, 
two of the issues where I have dedicated the majority of my time in 
public service--the environment and agriculture--have been seemingly at 
odds with one another.
  In some States, lawsuits have been brought against large agricultural 
operations under the Comprehensive Environmental Response, Compensation 
and Liability Act, CERCLA. I have been contacted by a number of Vermont 
farmers very concerned about whether CERCLA applies to them and about 
what it would mean to be sued under this law.
  In response to this concern, proposals have been made that would 
unnecessarily adopt expansive exemptions from the Superfund statute for 
major pollution streams stemming from very large agricultural 
operations. I cannot support these proposals that would eliminate one 
of the tools of last resort for communities with waters contaminated by 
large-scale animal feeding operations.

  I have watched with regret as the face of American agriculture in 
some regions has changed from one of the individual family, working 
hard to extract their living from their land, to one of the corporate 
executive, leading massive agribusiness operations. With this type of 
consolidation, we have lost in many places, though not in Vermont, the 
reality of the hard-working family farming using sustainable practices. 
In many parts of the Nation, we see massive animal feeding operations, 
often controlled by corporate interests located outside the State, 
contributing significantly to local water quality problems. Allowing 
these large operations to simply walk away from the damage that they 
can cause to our local communities allows them to cut costs, tipping 
the economic scales in their favor when compared with smaller farms 
that have less environmental impacts. I wish to do everything in my 
power to ensure that this scenario never becomes the norm in Vermont.
  Vermonters have a long tradition of strong feelings about water 
quality. In 1972, when the Clean Water Act was adopted by Congress, our 
Nation was faced with a water pollution crisis. Toxic materials were 
routinely dumped into pristine water bodies by industrial polluters. It 
was standard practice in municipalities to have underground pipes 
deliver raw sewage from homes directly into rivers and streams without 
any intervening treatment. Citizens demanded action to solve our 
environmental problems. In 1970, I was the state attorney general of 
Vermont. My office worked to create Vermont Act 252, which enacted the 
toughest water pollution laws in the country at the time. I had the 
honor of testifying before this Committee during Senator Muskie's 
chairmanship during the first phases of the debate on the 1972 Clean 
Water Act. Some of the concepts in Act 252 are today part of Federal 
water pollution laws. One of my fondest memories from this period is of 
the slogan, ``Jeffords Won't Let Them Do it in the Lake,'' which came 
about as we successfully fought off efforts by International Paper to 
dump untreated waste into Lake Champlain.
  Despite progress on wastewater treatment and point sources of 
pollution like International Paper, by the mid-1980s, it was clear that 
without action on other water quality issues such as toxics like 
mercury and nonpoint source pollution from urban and agricultural 
sources, we would not be able to meet our clean water goals. In 1987, 
our own Senator Stafford of Vermont worked with champions like Senator 
John Chafee, Senator Mitchell, and Senator Bentsen to write the 1987 
Clean Water Act amendments, overcoming the third Presidential veto in 
the act's history. Many of the key pieces of the 1987 amendments, in 
particular, nonpoint source pollution, continue to resonate in our 
clean water debate today.
  Despite our progress on these issues, there is much to be done. 
According to the EPA, the overwhelming majority of the population of 
the United States--218 million people--live within 10 miles of a 
polluted river, lake or coastal water. Almost 40 percent of these 
waters are not safe for fishing, swimming, boating, drinking water or 
other needs. The EPA estimates that nonpoint sources of pollution are 
responsible for 50 percent of our water quality problems.
  I discuss this history because it is relevant. I understand the 
impacts of nonpoint sources of pollution on water quality. I also 
understand the importance of small-sca1e farming to my home State of 
Vermont, and I do not believe that CERCLA is well suited, or was ever 
intended, to apply to the normal operations on Vermont-scale farms.
  I am here today with my colleague from California, Senator Barbara 
Boxer, who will be taking over the helm of the Senate Environment and 
Public Works Committee. I know that the committee will be in good 
hands.
  I have written to Senator Boxer and asked her to consider an 
alternative approach that I have put together on this issue of animal 
manure and CERCLA during the Committee's deliberations on this issue in 
the 110th Congress. This proposal takes steps to equalize the playing 
field between

[[Page S11726]]

smaller, Vermont-scale farms and large-scale agriculture. It would 
clarify that the normal application of fertilizer as described in the 
CERCLA statute includes the use of animal manure as fertilizer. I wrote 
to the EPA earlier this year asking them to take regulatory action for 
that purpose and they refused.

  The proposal does not change the existing provision in CERCLA, which 
provides that Federal permitholders, when they are in compliance with 
their permit, are not subject to CERCLA litigation. Existing law 
ensures that larger animal feeding operations that will be required to 
hold Clean Water Act permits and are more likely to have significant 
waste streams should be protected from CERCLA litigation as long as 
they are in compliance with the terms of their permit. My legislation 
takes steps to provide similar assurances to smaller, Vermont-scale 
farms that are generally not required to hold Clean Water Act permits. 
It provides that an independent, third-party certification that a farm 
has applied fertilizer to land in a manner that is in compliance with 
its nutrient management plan would serve as evidence for an affirmative 
defense in the unlikely event that a CERCLA lawsuit would be filed 
against a small, Vermont-scale farm. I offer this extra assurance, even 
though there is no record of farms of this scale having been sued under 
CERCLA, and even though such a lawsuit is an unlikely event given the 
amount of material being handled at these small facilities and the 
structure of CERCLA, which is designed to address major waste streams. 
Federal Officials and Environmental advocates understand, I think, that 
resorting to a Superfund lawsuit to gain compliance from a small farm 
would be like using a sledge hammer to open a walnut.
  Some have asked me: What does that actually get you? The independent 
third-party certification offered as evidence during the course of any 
civil or administrative proceeding would support the fact that the 
facility properly used or applied animal manure to land in compliance 
with its nutrient management plan. This presumption of fact could only 
be overcome by contradictory evidence. I believe that the establishment 
of this affirmative defense will protect Vermont small-scale farmers 
from CERCLA litigation.
  Mr. President, I will not be here in the next Congress to help my 
colleagues find a way forward on this issue. I offer this idea as a 
starting point in the debate after much discussion with Vermonters, 
farmers, environmentalists, and legal and policy experts. We are all 
seeking the silver bullet that will help to maintain the American 
tradition of the small, family farm and allow us to make forward 
progress on the persistent problem of nonpoint source pollution. This 
idea is my vision of how we can overcome this latest hurdle in our 
efforts to effectively deal with nonpoint source pollution and 
hopefully bridge the gap between two of my passions--sustainable, 
Vermont-scale agriculture, and environmental progress.

                          ____________________