U.S. GOVERNMENT PUBLISHING OFFICE

28–379 WASHINGTON : 2019

H.R. lll , THE FARM REGULATORY 

CERTAINTY ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

NOVEMBER 9, 2017 

Serial No. 115–77 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

(II) 

COMMITTEE ON ENERGY AND COMMERCE 

GREG WALDEN, Oregon 

Chairman 

JOE BARTON, Texas 

Vice Chairman 

FRED UPTON, Michigan 

JOHN SHIMKUS, Illinois 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

SUSAN W. BROOKS, Indiana 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

TIM WALBERG, Michigan 

MIMI WALTERS, California 

RYAN A. COSTELLO, Pennsylvania 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

JEFF DUNCAN, South Carolina 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

PETER WELCH, Vermont 

BEN RAY LUJA ́ N, New Mexico 

PAUL TONKO, New York 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

KURT SCHRADER, Oregon 

JOSEPH P. KENNEDY, III, Massachusetts 

TONY CA ́ RDENAS, CaliforniaL RUIZ, 

California 

SCOTT H. PETERS, California 

DEBBIE DINGELL, Michigan 

SUBCOMMITTEE ON ENVIRONMENT

JOHN SHIMKUS, Illinois 

Chairman 

DAVID B. MCKINLEY, West Virginia 

Vice Chairman 

JOE BARTON, Texas 

TIM MURPHY, Pennsylvania 

MARSHA BLACKBURN, Tennessee 

GREGG HARPER, Mississippi 

PETE OLSON, Texas 

BILL JOHNSON, Ohio 

BILL FLORES, Texas 

RICHARD HUDSON, North Carolina 

KEVIN CRAMER, North Dakota 

TIM WALBERG, Michigan 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

GREG WALDEN, Oregon (ex officio) 

PAUL TONKO, New York 

Ranking Member 

RAUL RUIZ, California 

SCOTT H. PETERS, California 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

JERRY MCNERNEY, California 

TONY CA ́ RDENAS, California 

DEBBIE DINGELL, Michigan 

DORIS O. MATSUI, California 

FRANK PALLONE, JR., New Jersey (ex 

officio) 

(III) 

C O N T E N T S 

Page 

Hon. John Shimkus, a Representative in Congress from the State of Illinois, 

prepared statement .............................................................................................. 1 

Hon. Paul Tonko, a Representative in Congress from the State of New York, 

opening statement ................................................................................................ 2 

Hon. Frank Pallone, Jr., a Representative in Congress from the State of 

New Jersey, prepared statement ........................................................................ 67 

WITNESSES

Hon. Dan Newhouse, a Representative in Congress from the State of Washington .................................................................................................................... 4 

Prepared statement .......................................................................................... 6 

Hon. Jim Costa, a Representative in Congress from the State of California ..... 9 

Prepared statement .......................................................................................... 11 

Dan Wood, Executive Director, Washington State Dairy Federation ................. 14 

Prepared statement .......................................................................................... 16 

Answers to submitted questions ...................................................................... 121 

Amy Romig, Partner, Plews Shadley Racher & Braun, LLP ............................... 19 

Prepared statement .......................................................................................... 21 

Answers to submitted questions ...................................................................... 126 

Jessica Culpepper, Food Project Attorney, Public Justice .................................... 33 

Prepared statement 1 ........................................................................................ 35 

Answers to submitted questions 2 ................................................................... 131 

Lynn Utesch, Founder, Kewaunee Citizens Advocating Responsible Environmental Stewardship ............................................................................................. 48 

Prepared statement 3 ........................................................................................ 50 

Answers to submitted questions 4 ................................................................... 154 

SUBMITTED MATERIAL

Statement of the U.S. Environmental Protection Agency .................................... 69 

Statement of Adaptive Seeds .................................................................................. 71 

Statement of over 1,400 farmers, ranchers, business owners, health experts, 

communities, and public interest groups ........................................................... 74 

Statement of Estela Garcia ..................................................................................... 95 

Statement of Friends of Toppenish Creek ............................................................. 97 

Statement of Gloria Herrera ................................................................................... 99 

Statement of the Natural Resources Defense Council .......................................... 101 

Statement of the Rural Empowerment Association for Community Help .......... 103 

Statement of Community Association for Restoration of the Environment ........ 105 

Statement of The Guardians of Grand Lake St. Marys ....................................... 107 

Statement of The Johns Hopkins Center for a Livable Future ........................... 112 

Page

IV 

Statement of Washington State public interest groups ........................................ 117 

1 The attachments to Ms. Culpepper’s statement can be found at: https:// 

docs.house.gov/meetings/if/if18/20171109/106603/hhrg-115-if18-wstateculpepperj-20171109.pdf.. 2 The attachments to Ms. Culpepper’s answers can be found at: https:// 

docs.house.gov/meetings/if/if18/20171109/106603/hhrg-115-if18-wstateculpepperj-20171109-sd006.pdf. 3 The attachments to Mr. Utesch’s statement can be found at: https:// 

docs.house.gov/meetings/if/if18/20171109/106603/hhrg-115-if18-wstateuteschl-20171109.pdf. 4 The attachments to Mr. Utesch’s answers can be found at: https:// 

docs.house.gov/meetings/if/if18/20171109/106603/hhrg-115-if18-wstateuteschl-20171109.pdf. 

(1) 

H.R. —————, THE FARM REGULATORY 

CERTAINTY ACT 

THURSDAY, NOVEMBER 9, 2017 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENVIRONMENT, 

COMMITTEE ON ENERGY AND COMMERCE

Washington, DC. 

The subcommittee met, pursuant to call, at 10:13 a.m., in room 

2322, Rayburn House Office Building, Hon. John Shimkus (chairman of the subcommittee) presiding. 

Present: Representatives Shimkus, McKinley, Blackburn, Harper, Flores, Hudson, Cramer, Carter, Tonko, Ruiz, Peters, McNerney, Pallone (ex officio). 

Staff Present: Allie Bury, Legislative Clerk, Energy/Environment; Jordan Haverly, Policy Coordinator, Environment; A.T. Johnston, Senior Policy Advisor, Energy; Mary Martin, Chief Counsel, 

Energy/Environment; Alex Miller, Video Production Aide and Press 

Assistant; Tina Richards, Counsel, Environment; Dan Schneider, 

Press Secretary; Jacqueline Cohen, Minority Chief Environment 

Counsel; Rick Kessler, Minority Senior Advisor and Staff Director, 

Energy and Environment; Alexander Ratner, Minority Policy Analyst; and Catherine Zander, Minority Environment Fellow. 

Mr. SHIMKUS. We are going to call this subcommittee to order. 

And in the interest of time, I am going to not do my opening statement, and I will submit that for the record. 

[The prepared statement of Mr. Shimkus follows:] 

PREPARED STATEMENT OF HON. JOHN SHIMKUS

The Subcommittee will now come to order. 

I want to thank our witnesses for joining us today—especially my colleagues from 

Washington and California. The Discussion Draft that we are considering today is 

an outgrowth of Mr. Newhouse’s bill, H.R. 848. 

I want to mention that even though they were not able to send someone today 

to present testimony in person, the Environmental Protection Agency provided a 

written statement to be included in our hearing record. [I seek unanimous consent 

to enter EPA’s statement into the record. So ordered]. The Agency has also agreed 

to taken written questions from Members for our hearing record. 

I now recognize myself for 5 minutes for giving an opening statement. 

Today, we consider the intersection of our environmental laws with modern agriculture. Agriculture plays a significant role in my District, as it does in many of 

our Districts. My District is the 17th largest Congressional district in the country 

in terms of farm operators and number of farms. Agriculture covers 7.5 million acres 

in my District. I know my colleagues began this effort because of some cases involving dairy farms, but this bill would also help hog farmers who are trying to do the 

right thing. My District can also lay claim to the largest pork producing county in 

Illinois—Clinton County—which has roughly 230,000 hogs. 

2 

The Resource Conservation and Recovery Act was enacted in 1976. Congress specifically addressed agricultural operations and clearly intended to include certain 

agricultural practices, but at the time Congress was focused on waste disposal practices that resulted in open dumping. In the legislative history of RCRA the Committee specifically noted that RCRA was not intended to apply to an agricultural 

operation that returns manure or crop residue to the soil as for fertilizer or soil conditioner because if it was reused, it was not discarded and therefore, not solid waste. 

Likewise, in its regulations implementing RCRA, EPA also determined that manure and crop residue, if returned to the soil as fertilizer or soil conditioner, are not 

solid waste. 

As a result, agricultural operations are not regulated under RCRA. Rather, they 

are typically regulated under the Clean Water Act, the Safe Drinking Water Act, 

or similar state regulatory programs. 

Most farmers are good stewards of the soil—but not all. There are some who cut 

corners or do not store or apply manure in a way that complies with the appropriate 

agronomic practices or with applicable permits and regulations. In the case of agricultural operations that mishandle manure, the applicable regulatory process should 

be allowed to play out. The regulator governing the operation is responsible for the 

agricultural operation’s compliance. The regulator should be able to work with the 

agricultural operation to bring them into compliance. The use of RCRA citizen suits 

as a hammer to force compliance should only be used as a last resort. If the operator 

is working with the regulator to come into compliance, then a RCRA citizen suit on 

top of whatever action is being taken by the state or federal government under the 

appropriate regulatory program, feels punitive. 

The Discussion Draft is sponsored by Mr. Newhouse who has been diligently 

working on this issue for many years. The purpose of this bill is not to shield agricultural operations from RCRA citizen suits, but rather to ensure that if state or 

federal regulators are otherwise seeking compliance through civil, criminal, or administrative actions and the agricultural operation is trying to be a good actor by 

working with the regulator and has entered a consent agreement or order, then a 

RCRA citizen suit may not be initiated. If the state or EPA are not diligently taking 

action to obtain or ensure compliance, the bill does not preclude citizen suits. 

I thank my colleagues for being here today to talk about their legislation and I 

thank our second panel which is comprised of someone who knows firsthand the impact of duplicative RCRA suits on dairy farms, an experienced environmental attorney who has handled a number of RCRA citizen suits as well as agricultural issues, 

an attorney who handles public justice and food safety issues, and a representative 

from an environmental stewardship organization. 

With that, I yield back my time and now yield to my friend from New York, the 

Ranking Member of the Subcommittee, Mr. Tonko. 

Mr. SHIMKUS. Congresswoman Blackburn, did you want a second 

or two to say something? 

Mrs. BLACKBURN. I will submit mine for the record, and I thank 

you for the hearing. 

Mr. SHIMKUS. Thank you. 

And I yield back my time, and now turn to the ranking member, 

Mr. Tonko, from New York. 

Mr. TONKO. Mr. Chair, I will yield back to you and submit my 

statement to the record. 

[The prepared statement of Mr. Tonko follows:] 

PREPARED STATEMENT OF HON. PAUL TONKO

Thank you, Mr. Chairman, and thank you to our colleagues Mr. Newhouse and 

Mr. Costa for being here to share their views on the Farm Regulatory Certainty Act. 

I am sure Mr. Newhouse and Mr. Costa will want to brag about their states’ agriculture, so I hope you will allow me a minute to talk up my home state. 

Dairy is an important part of New York’s agricultural output, and I am proud to 

represent a number dairy farms in the Capital Region. New York is home to around 

5,500 dairy farms and produces the third most milk of any state. 

I am also proud to be the grandson of a dairy farmer. In my youth, I spent many 

days working on my grandfather’s farm in the Town of Florida, New York. 

So I have great respect for dairy farmers, and I know they care about being good 

stewards of the environment. 

3 

The Resource Conservation and Recovery Act, commonly known as RCRA, was enacted in 1976 and governs the disposal of solid and hazardous waste, which can include manure and crop residue. 

In my view, the discussion draft before us today doesn’t pass the smell test. And 

while we may hear a few more bad jokes this morning, let me tell you, this is an 

incredibly serious issue. 

The legislation would amend provisions of RCRA to block the availability of citizen suits in some cases involving manure and crop residue. 

RCRA provides a mechanism for citizen suits when pollution has endangered public health and the environment and when EPA or state agencies are not effectively 

enforcing the law. 

As we will hear from Ms. Culpepper on the second panel, RCRA’s citizen suit provisions have in fact been used regarding manure. 

However, citizen suits are already prohibited by the law if EPA or the state is 

taking action under RCRA or CERCLA. 

RCRA, including the citizen suit provisions, does not apply when manure and crop 

residues are returned to the soil as fertilizers. But RCRA does cover agricultural 

waste. 

It is clear from at least one recent court case that there is a point where manure 

has been applied to the soil in amounts far exceeding the agronomic rate, at which 

point, the exemption for manure as a fertilizer no long applies. It is being improperly disposed of as waste. 

I want to stress the importance of preserving the opportunity for citizen suits 

when necessary. 

Many of our nation’s most important environmental laws, including RCRA, allow 

private citizens to bring suit in order to enforce the law. 

We will hear testimony this morning that will make it clear that these suits are 

not frivolous. Communities support their local dairies—they work on these farms. 

And people take these actions only as a last recourse when public health is put 

at risk. 

I do not want to set a bad precedent of limiting citizen suits under environmental 

laws, and I believe that the legislation before us today is far too broad. 

According to EPA’s statement for the record, EPA believes that EPA and state actions against an agricultural operation under other statutory authorities—not just 

RCRA or CERCLA—could bar the types of citizen suits affected by this bill. 

That means RCRA citizen suits would be prohibited if there is any pending action 

against an agricultural operation, even if it has no relationship to the RCRA violation. 

Unfortunately, there are some bad actors in every industry. Some farms are 

breaking the law in how they manage manure, resulting in pollution of groundwater 

and putting Americans’ health at risk. 

Protecting people’s drinking water, including protecting groundwater sources for 

private wells, must be a top priority, not just for this Committee, EPA, or State 

agencies, but for all Americans. 

When EPA or a state fails to enforce the law, citizens must have the right to do 

something about it. 

I have no doubt that most farmers want to do the right thing, but in the rare 

case where this does not happen, I am very hesitant to remove this last avenue for 

legal recourse. 

I look forward to hearing from our colleagues and the other witnesses, and I yield 

back. 

Mr. SHIMKUS. Thank you very much for that. 

The full committee chairman is not here. The ranker of the full 

committee—they are downstairs. OK. So anyone else want to say 

something for, like, 1 second? 

Seeing none, we want to welcome our colleagues here on this bill, 

and we would like to—what is the proper courtesy, the Republican 

or the older guy? Costa is much older. 

So we will recognize Congressman Newhouse for 5 minutes for 

a statement on the bill. 

4 

STATEMENT OF THE HON. DAN NEWHOUSE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON 

Mr. NEWHOUSE. Good morning, Chairman Shimkus, Ranking 

Member Tonko, members of the committee. Thank you for the opportunity to testify before you this morning on this discussion draft 

of the Farm Regulatory and Certainty Act. And I also want to 

thank my good friend Mr. Costa who was the cosponsor of this bipartisan legislation. 

So I represent hardworking farmers of central Washington State. 

And as a Member of Congress serving with you all in this body, I 

want to speak to you as a peer on specific issues that are currently 

faced by dairy and other livestock producers, not only in my community but in your communities, in districts all throughout this 

country. 

So I am a third-generation farmer. I am a former director of the 

Washington State Agriculture Department. So I know how seriously the farmers take the responsibility of being good stewards. 

Farming communities like mine in Yakima County face a multitude of challenges. It is one of the most highly regulated industries in our country. My constituents know all too well the kinds 

of challenges encountered when operating a family farm—I can 

speak from personal experience—from inconsistent regulations to 

severe labor shortfalls, weather, prices—all kinds of things that are 

out of your control. 

But our farming communities need to know the rules of the road. 

They need and deserve as much certainty as they can have. That 

is why I am with you today. 

So in 2013, in Washington State, a dairy was proactively working 

with the Environmental Protection Agency to address nutrient 

management issues on their farm. Up until this time, the dairy had 

operated under the stringent Washington State Nutrient Management Program through WSDA, which is a state-approved nutrient 

management plan. They had been doing this for nearly two decades. But in the face of strong EPA enforcement actions, the dairy 

entered into a tough consent decree with the EPA to ensure that 

the farm corrected problems and complied with applicable management requirements. 

After entering into the agreement to develop these stronger environmental protections, a third party obtained documents between 

the EPA and the dairy. Ultimately, the dairy was subject to a citizen suit under the Resource Conservation and Recovery Act. 

The goal of environmental rules should be to assist ag producers 

to improve nutrient management and reduce the environmental 

footprint, not to subject them to lawsuits that threaten to put them 

out of business. That is why I am here today to discuss this legislation. 

This seeks to encourage farmers to be proactive stewards and 

create a climate to reinforce farmers’ ability to trust that they, as 

they work with regulators, that their efforts to address stewardship 

issues will result in outcomes that benefit the environment and not 

result in exposing farmers who are working in good faith to comply 

with the law to third-party lawsuits creating kind of a double-jeopardy situation. 

5 

So this legislation is straightforward. It is limited in scope to the 

citizen suit provisions under the RCRA. Simply put, this legislation 

covers only the agricultural activities that are already exempt 

under EPA’s regulations. This legislation would not prevent EPA 

from enforcing regulations under the Safe Water Drinking Act, the 

Clean Water Act, or any other applicable laws, nor would this legislation exempt livestock producers from any laws or any regulations 

intended to govern agricultural operations. 

So I firmly believe that farmers have and must continue to lead 

the charge on good stewardship and conservation. The discussion 

draft before you today seeks to protect farmers who are trying to 

do the right thing by working with state or Federal agencies to address nutrient management issues. 

And I want to thank you, Mr. Chairman, for holding this hearing, as well as the full committee chairman, Mr. Walden, and also 

for their staffs working with me on this legislation. I hope we can 

get this what I would call commonsense legislation signed into law. 

Thank you very much, and I would yield back. 

[The prepared statement of Mr. Newhouse follows:] 

6 


28379.001

Testimony of The Honorable Dan Newhouse (WA-04) 

Before the United States House of Representatives 

Committee on Energy and Commerce Subcommittee on Environment 

Testimony Discussion Draft HR. _the Farm Regulatory Certainty Act 

November 9, 2017 

Chairman Walden, Chairman Shimkus, Ranking Member Tonko, and Members of the 

Subcommittee, thank you for the opportunity to testify before you today on the Discussion Draft, 

the Farm Regulatory and Certainty Act. I also want to thank Representative Costa, who 

introduced this bipartisan legislation with me. 

I represent the hard-working farmers of Central Washington. As a Member of Congress serving 

with you in this body, I want to speak to you today as a peer on specific issues currently faced by 

dairy and other livestock producers not only in my community but in your districts throughout 

the country. 

Today, the farming community is just two percent of the entire United States population, many 

of which are generational family farms. As a third-generation farmer myself and the former 

Washington State Department of Agriculture director, I know how seriously farmers take our 

responsibility to be good stewards. 

In my home state of Washington, we have just over 400 dairy farms with nearly 270,000 milkproducing cows with each cow producing on average 24,000 pounds or 3,000 gallons of milk 

each year. By these numbers. Washington State ranks I 0'11 nationally in total milk production. 

In Yakima County, Washington, where I live, there are nearly 70 operational dairies making 

Yakima one of the ten largest dairy producing counties in the nation based on the 2012 USDA 

Census of Agriculture. 
7 


28379.002

Farming communities, like mine in Yakima, face a multitude of challenges as one of the most 

highly regulated industries in our country. My constituents know all too well the kinds of 

challenges encountered when operating a family farm. From inconsistent regulations to severe 

labor shortfalls, our farming communities need to know the rules of the road. They need and 

deserve certainty. 

Here is why I am with you today: 

In 2013, a dairy in Washington State was proactively working with the Environmental Protection 

Agency (EPA) to address nutrient management issues on their farm. Up until this time, the dairy 

had operated under the stringent Washington State Nutrient Management Program with a stateapproved nutrient management plan for nearly two decades. But in the face of strong EPA 

enforcement actions, the dairy entered into a tough consent decree with the EPA to ensure that 

the farm corrected problems and complied with applicable management requirements. 

After entering into the agreement to develop stronger environmental protections, a third-party 

obtained documents between EPA and the dairy. Ultimately, the dairy was subject to a citizen 

suit under the Resource Conservation and Recovery Act (RCRA). 

The goal of environmental rules should be to assist agricultural producers to improve nutrient 

management and reduce their environmental footprint, not to subject them to lawsuits that 

threaten to put them out of business. That is why I am here today to discuss this legislation. 

This legislation seeks to encourage farmers to be proactive stewards and create a climate to 

reinforce fanners' ability to trust that as they work with regulators, their efforts to address 

stewardship issues will result in outcomes that benefit the environment-and not result in 

exposing farmers who are working in good faith to comply with the law to third-party suits that 

arc a kind of "double-jeopardy." 

The legislation is straightforward and limited in scope to the citizen suit provisions under RCRA. 

Simply put, this legislation covers only the agricultural activities that are already exempt under 
8 


28379.003

EPA's RCRA regulations, This legislation would not prevent EPA from enforcing regulations 

under the Safe Water Drinking Act, the Clean Water Act, or any other applicable laws. Nor 

would this legislation exempt livestock producers from any laws or regulations intended to 

govern agricultural operations. 

I firmly believe farmers have and must continue to lead the charge on good stewardship and 

conservation. The discussion draft before you today seeks to protect farmers who arc trying to do 

the right thing by working with state or federal agencies to address nutrient management issues. 

Thank you for holding this legislative hearing. I also want to thank Chairman Shimkus, full 

Committee Chairman Walden, and their staff for working with me on this legislation, and I hope 

we can get this common-sense legislation signed into law. 

!yield back the balance of my time .. 
9 

Mr. SHIMKUS. The gentleman yields back his time. 

The chair now recognizes the Honorable Jim Costa, Member of 

Congress from the 16th District of California. 

And you are recognized for 5 minutes. 

STATEMENT OF THE HON. JIM COSTA, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. COSTA. Thank you very much, Chairman Shimkus and Ranking Member Tonko and members of this subcommittee, for giving 

us the opportunity to testify before you on an important issue affecting the food producers of America and, for me, those in California who I have the honor and privilege to represent. 

I am a strong supporter of the Farm Regulatory Certainty Act 

introduced by Representative Dan Newhouse and myself. We have 

more than 60 cosponsors. It is a bipartisan piece of legislation. I 

want to thank Representative Newhouse for your work on this legislation and for asking me to be a part of this important effort. 

This bill would prohibit third parties from engaging in legal actions against agricultural operations that are actively working with 

the Federal Environmental Protection Agency or a State regulator 

to improve the environmental compliance with whatever issue that 

they are dealing with, in essence, on their farm. We are talking 

about providing peace of mind to farmers and incentivizing good 

environmental stewardship. 

Like Representative Newhouse, I am, too, a third-generation 

farmer. Growing up on my family’s dairy farm taught me many redeemable skills, some that obviously could be more valuable than 

what we do here, but not the least of which was to care for and 

sustain the land that we farm. Today, obviously, I have that honor 

and privilege to represent those farmers, those dairy men and 

women, who make up the backbone of the San Joaquin Valley. 

California, as many of you know, is the country’s largest agricul- tural state. Last year it was over $45 billion at the farm gate, an 

abundance that includes over 400 commodities. We have been 

blessed with over a third of the Nation’s vegetables, two thirds of 

the Nation’s fruits and nuts. Let’s go light on the latter part there. 

But we do produce 70 percent of the world’s almonds and 50 percent of the world’s pistachios, and the list goes on. 

In 2016, the value of California’s dairy production was over $6 

billion, and the district I have the honor to represent is the thirdlargest producer of milk in the entire country. This is all achieved 

while complying under some of the most rigorous and environmental regulations in the world, not just what we have on the Federal level, but California, I might add, I think, sets the highest bar 

as it relates to a state regulatory environment. 

For agriculture to be successful, then, for our local communities, 

the environment, obviously, we want it to be healthy and safe. That 

is why both surface and groundwater contamination is taken so seriously on our water in California. 

Because farmers are reliant on the environment with which they 

farm, they are active in regional efforts in California to address nitrate and salinity issues that are occurring in various parts of California’s Central Valley. The state Water Resources Control Board, 

the Central Valley Regional Water Quality Control Board, the enviVerDate Nov 24 2008 11:53 Jan 09, 2019 Jkt 037690 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 I:\MY DOCS\HEARINGS 115\HEARINGS\115-77 CHRIS
10 

ronmental communities, numerous municipalities, agricultural 

water districts, and many others are also engaged in the actions to 

protect this precious source, our water. 

But California also has a long history of working with regulators 

to address environmental concerns. This legislation, as the author 

noted, would not change that relationship at all. The bill before us 

today, the Farm Regulatory Certainty Act, was developed out of 

fear that many producers in my state have with litigation brought 

upon them by third parties. And this isn’t something that is anecdotal, but this is something that, unfortunately, happens with some 

regularity. 

Similar to the situation in Representative Newhouse’s state, 

dairymen and ranchers have found themselves in situations where 

complying with environmental regulations and acting in good faith 

place them in legal jeopardy, and that is just not right. 

The Farm Regulatory Certainty Act will produce and foster a 

spirit of collaboration. We believe it incentivizes agriculture producers to comply with environmental laws and regulations. A farmer acting in good faith to improve their environmental stewardship 

should not be targeted by litigation while they are cooperatively 

working to fix the problems and improve their operations. 

Let’s realize that, for those of us who have grown up on a farm 

and are still farming, farmers depend upon their land for their livelihoods. They are good stewards of the environment. If it is not sustainable through one generation to the next generation, guess 

what? You can’t live off that land. That is just the reality. It makes 

no sense to think that they would believe otherwise. Let us give 

them the certainty, therefore, necessary to comply with the regulations put in place by state and Federal authorities. 

The commonsense legislation that you have before you would go 

a long ways to improve both the environment and allow farmers to 

continue to provide abundant, healthy, affordable food for our nation and for the world. Nobody does it better than the American 

farmer. 

Less than 3 percent of our nation’s population is directly involved 

in the production of food and fiber, and it is an amazing thing, so 

much so that I think the majority of Americans take it for granted. 

They think their food comes from a grocery store. It doesn’t. It 

comes from the farms. 

So thank you very much, and I will yield back. 

[The prepared statement of Mr. Costa follows:] 

11 


28379.004

Testimony of Congressman Jim Costa (CA-16) 

Before the United States House of Representatives 

Committee on Energy and Commerce Subcommittee on Environment 

Testimony Discussion Draft H.R. _the Farm Regulatory Certainty Act 

November 9, 2017 

Chairman Shimkus, Ranking Member Tonko, and Members of this Subcommittee, thank you for 

providing me the opportunity to testify today before you on an issue of particular importance to 

the food producers of California's San Joaquin Valley. I am a strong supporter of the Farm 

Regulatory Certainty Act introduced by Representative Dan Newhouse and myself, and 

supported by more than sixty bipartisan cosponsors. Thank you Representative Newhouse for 

your work on this bill and for asking me to join you in support of this important legislation. 

This bill would prohibit third parties from engaging in legal actions against agricultural 

operations that are actively working with the federal Environmental Protection Agency or state 

regulator to improve their environmental compliance. We are talking about peace of mind for 

farmers, and incentivizing good environmental stewardship. 

Like Representative Newhouse I too am a third generation farmer. Growing up on a dairy taught 

me many redeemable skills not least of which was how to care for and sustain the land on which 

we farmed. Today I serve the people of California's San Joaquin Valley as Ranking Member of 

the Committee on Agriculture Subcommittee on Livestock and Foreign Agriculture where I 

bring my background as a farmer to Congress. 

California is the country's largest agricultural state. Last year the state produced approximately 

$45 billion in agricultural goods. Our abundance includes more than 400 commodities, over a 

third of the country's vegetables and two-thirds of the country's fruits and nuts. In 2016 the 

value of California's dairy production was over $6 billion and the district I have the honor to 

Page 1 of 3 
12 


28379.005

represent is the third largest producer of milk in the entire country. This is all achieved while 

complying with some of the most rigorous environmental regulations in the world. 

For agriculture to be successful our local communities and environment need to be healthy and 

safe. That is why the issue of both surface and groundwater contamination is taken so seriously 

in California. Because farmers are also reliant on the environment within which they farm they 

are active in a regional effort in California to address nitrate and salinity issues that are occurring 

in various parts of California's Central Valley. The State Water Resources Control Board, 

Central Valley Regional Water Quality Control Board, the environmental community, numerous 

municipalities, agricultural water districts and many others are engaged in actions to protect 

California's most precious resource. 

California agriculture has a long history of working with regulators to address environmental 

concerns. This bill would not change that relationship. 

The bill before us today, the Farm Regulatory Certainty Act, was developed out of a fear many 

producers in my state have of litigation brought upon them by third parties. Similar to the 

situation in Representative Newhouse's state, dairymen and ranchers have found themselves in 

situations where complying with environmental regulations and acting in good faith have placed 

them in legal jeopardy. 

The Farm Regulatory Certainty Act will foster a spirit of collaboration that incentivizes 

agricultural producers to comply with environmental laws and regulations. A farmer acting in 

good faith to improve their environmental stewardship should not be targeted by litigation while 

they are working cooperatively to fix problems, and improve their operations. This bill will give 

peace of mind to producers who want to minimize contaminants but may fear negative 

repercussions stemming from their efforts. 

Farmers depend on the land for their livelihoods. It is in their interest to be good stewards. Let us 

give them the certainty necessary to comply with the regulations put in place by state and federal 

authorities. 

Page 2 of3 
13 


28379.006

Thank you for inviting me to testify here today. I hope that I have been able to shed light on this 

issue from the perspective of a farmer and the farmers I represent. This common sense legislation 

would go a long way to both improve the environment and allow farmers to continue to provide 

abundant, healthy, and affordable food for our nation and the world. 

Thank you and I yield back. 

Page 3 of 3 
14 

Mr. SHIMKUS. The gentleman yields back his time. We appreciate 

you coming. 

The tradition for us is not to ask you questions. We can do that 

privately or on the floor. So we want to thank you. 

We want to sit the second panel in respect to everybody’s time. 

Thank you for coming. 

Mr. SHIMKUS. And let’s get the second panel up and placards 

placed. 

So as we have our folks sitting, I will recognize each one of you 

for 5 minutes. Your full statement has been submitted for the 

record. And it is always a challenge to remind people to press the 

button, to make sure the microphone is on, and everything will 

work fine. 

So with that, I want to turn to Mr. Dan Wood, executive director 

of the Washington State Dairy Federation. 

Sir, you are recognized for 5 minutes. 

STATEMENTS OF DAN WOOD, EXECUTIVE DIRECTOR, WASHINGTON STATE DAIRY FEDERATION; AMY ROMIG, PARTNER, 

PLEWS SHADLEY RACHER & BRAUN, LLP; JESSICA CULPEPPER, FOOD PROJECT ATTORNEY, PUBLIC JUSTICE; AND 

LYNN UTESCH, FOUNDER, KEWAUNEE CITIZENS ADVOCATING RESPONSIBLE ENVIRONMENTAL STEWARDSHIP 

STATEMENT OF DAN WOOD 

Mr. WOOD. Thank you. Chairman Shimkus, members of the committee, Ranking Member Tonko, thank you for the opportunity to 

testify. I am Dan Wood, Executive Director of the Washington 

State Dairy Federation. 

The Washington State Dairy Federation is here in support of the 

matter before you introduced by Representative Newhouse and 

Representative Costa. We represent about 400 dairy families in 

Washington State. We are a member of the National Milk Producers Federation and the Western States Dairy Producers Association. Each are also in support of the bill. 

Today I will cover the current degree of regulation of our dairy 

farms, illustrate how they have been placed in double jeopardy 

with the lawsuits, and tell you why the language in the bill before 

you will foster a more cooperative relationship with the state and 

Federal agencies that have authority for regulating the dairy 

farms. 

Our dairy farmers strive to be good environmental stewards, as 

the Members of Congress just testified before you. They depend on 

the land and the water that is necessary for their farming. 

Last year, the Washington State Department of Agriculture reported that we had a better than 92 percent compliance rate with 

our very rigorous State Dairy Nutrient Management Act with oversight by the Department of Agriculture. Our dairy farms are regulated by multiple layers of state and Federal agencies, including 

the Safe Drinking Water Act administered by the EPA. 

If there is an error or allegation that is made with a state or 

Federal regulator, the farms should not face a citizen lawsuit if 

they are already working cooperatively with the state or Federal 

regulators in resolving that error or allegation. 

15 

Citizen lawsuits were intended to put citizens in place of the regulators if the regulators failed to do their jobs. These lawsuits were 

not intended to double down on penalties and costs or place farms 

in double jeopardy if they are already trying to do the right thing 

and work with the regulators. But that is exactly what happened 

in the Yakima Valley in southeastern Washington State 2 years 

ago. 

Groundwater nitrates that have been high for more than 100 

years, predating the dairies and much of agriculture that is in that 

area. Region 10 EPA issued a report assigning blame for those historically high groundwater nitrates to four dairy families. 

That was in 2012. Rather than spend millions of dollars battling 

that out, the dairies voluntarily into a detailed and rigorous consent order with EPA, and those farms were told by EPA that the 

matter was resolved in dealing with that. 

They had a lot of extra work to do, but they were told that resolved the matter. And despite that cooperation with the EPA, the 

citizen lawsuit under RCRA was then brought against those 

dairies, and they had to spend millions of dollars. 

The smaller dairy family wasn’t able to put up the millions of 

dollars for defense, and so they closed their dairy. And keep in 

mind that they had entered that EPA consent order, but it was the 

lawsuit that put them out of business. 

RCRA, or the Resource Conservation Recovery Act, was never intended to apply to manure or crop residue returned to the soil as 

fertilizer or soil conditioner, and that is very clear in the Code of 

Federal Regulations that is currently on the books with the EPA. 

The other three farms continued to struggle under the weight of 

the costs of compliance, but they are complying with the consent 

order. And remember, all of these farms had entered a consent 

order with the EPA before they were sued. 

To help address the issue, Congressman Newhouse introduced 

the Farm Regulatory Certainty Act, which now has 65 bipartisan 

cosponsors in the House. Language in the bill would not have prevented the consent order, but rather the consent order was the 

under the Safe Drinking Water Act. It simply would prevent farmers from getting sued over the very same things that are dealt 

with, with the Federal and state regulators. 

Importantly, the prohibition on RCRA citizen lawsuits only applies to the use of nutrients as laid out in the EPA regulations. It 

is not an across-the-board exemption, and it is merely intended to 

reinforce what is already codified both in law and regulation pertaining to the scope of RCRA. 

If enacted, the legislation would preserve the ability to work with 

regulators, it would strengthen the certainty of doing that. And we 

would urge your support. 

I would be glad to answer any questions. 

[The prepared statement of Mr. Wood follows:] 

16 


28379.007

Washington State Dairy Federation 

TESTIMONY of Dan Wood, Executive Director 

Washington State Dairy Federation 

To the U.S. House Subcommittee on 

Chairman Shimkus, Ranking Member Tonko, and members of the Subcommittee: 

I'm Dan Wood, Executive Director of Washington State Dairy Federation, our state's trade 

association for dairy farm families. I appreciate the opportunity to testify before you today on 

the discussion draft of the Fann Regulatory Certainty Act (H.R. 848) authored by Representative 

Dan Newhouse (R-W A) and cosponsored by Representative Jim Costa (D-CA). 

The Washington State Dairy Federation represents roughly 400 family farms across the state. 

Our organization is a member of the National Milk Producers Federation as well as the Western 

States Dairy Producers Association, both of which support the pending draft legislation. 

Today I' II cover the current degree of regulation of dairy farms, illustrate how they have been 

put in double jeopardy, and tell you why the language in the bill before you will foster a more 

secure and cooperative relationship between dairy families and the state and federal agencies that 

provide oversight. 

Dairy farmers strive to be good stewards of all resources, including environmental resources like 

the land and water that make it possible for them to farm. 

The Washington State Department of Agriculture reported last year that we had a more than 92% 

compliance rate with our rigorous Dairy Nutrient Management Program. 

Across the nation, dairy farmers arc regulated by a multi-layered system of state agencies & 

laws, and federal agencies & laws, including the Safe Drinking Water Act administered by the 

EPA. 

If there is an error or allegation being addressed with a state or federal regulator, then the farms 

should not face a citizen lawsuit if they arc working in good faith with the regulatory agencies 

with authority over the respective laws. 

Citizen lawsuits were intended to allow citizens to step into the role of the regulator when the 

government agency failed to fulfill its responsibilities. These lawsuits were not intended to 

double down on penalties and costs, or place farms in double jeopardy when they arc already 

trying to solve a problem collaboratively and cooperatively. 

But that is exactly what happened in the Yakima Valley in Washington State two years ago. 

Groundwater nitrates have been high in Yakima Valley for more than 100 years predating the 

dairy farms and much of the agriculture there. 

102 WYoung Street, P 0 Box 1768, Elma WA 98541 360.482.3485 
17 


28379.008

Region l 0 EPA issued a widely disputed report that assigned blamed to four dairy families. 

Rather than spend millions of dollars in court, the dairies voluntarily entered into a Consent 

Order. 

The farms were told by EPA, and they reasonably expected, that the matter was resolved as long 

as they followed the consent order, which required the farms to adhere to rigorous environmental 

operating conditions, such as increasing soil testing and submitting more frequent, detailed 

reports on soil and water conditions to the EPA. 

Despite the collaborative work being done by the farmers and the EPA under the Consent Order, 

activists sued these dairy families in court using the Resource Conservation and Recovery Act 

(RCRA). This lawsuit made it necessary for the farmers to spend millions of dollars defending 

themselves over the very same issues that were intended to be resolved in the Consent Order 

with EPA. 

Importantly, RCRA was not intended to apply to manure or crop residue returned to the soil as 

fertilizers or soil conditioners. The EPA made this clear when it put forth regulations to 

implement RCRA after it was enacted (40 CFR 257.1). 

The family with the smaller farm knew they had no hope of funding a defense, regardless of the 

outcome. Facing the possibility of crushing legal bills, they closed their dairy after receiving 

notice of the intent to sue. 

The other farms continue to struggle under the weight of the lawsuit settlement from, which they 

entered into after they were no longer able to afford to defend themselves. 

Remember, these farms had already entered into a consent decree with the EPA. They spent a 

great deal of time and money working with EPA. Then they were sued. 

To help address this issue, Congressman Newhouse has introduced the Farm Regulatory 

Certainty Act, which now has 65 bipartisan cosponsors in the House. 

Language in the bill would not prevent the Consent Order under the Safe Drinking Water Act. It 

would simply prevent farmers from facing RCRA citizen suits when they arc already engaged in 

consent orders or other similar environmental actions by federal or state regulators. 

Importantly, the prohibition on RCRA citizen suits only applies to the uses of nutrients as laid 

out in the EPA's regulations. This is NOT an across-the-board exemption, it is merely intended 

to reinforce what is already codified both in law and in regulation pertaining to the scope of 

RCRA. 

Given the Yakima lawsuit, many dairy farmers around the country arc understandably nervous 

that their positive efforts with regulators may be for naught if citizen suits will abound under 

other environmental statutes that were not intended to govern the activities in question regardless 

of the work being done. 
18 


28379.009

If enacted, this legislation would preserve the ability of regulators to work with farmers just as 

EPA was doing in this case before the lawsuit, and it would give farmers renewed confidence 

that their efforts to be proactive environmental stewards will not harm them unintentionally. 

Once again, this is a narrow, bipartisan bill that is intended to correct a targeted problem, not a 

bill intended to undermine environmental protections in any manner. 

I appreciate the opportunity to testify before you today and I am happy to answer any questions 

have. 

Language from CFR 257.1 

§ 257.1 Scope and purpose . 

... (c) These criteria apply to all solid waste disposal facilities 

and practices with the following exceptions: 

{1) The criteria do not apply to agricultural wastes, including manures and 

crop residues, returned to the soil as fertilizers or soil conditioners. 
19 

Mr. SHIMKUS. Thank you very much, sir. 

I would now like turn to Ms. Amy Romig, partner at Plews 

Shadley Racher & Braun. 

Ms. ROMIG. Excellent job. 

Mr. SHIMKUS. That is the only thing I do well. 

So you are recognized for 5 minutes, and your full statement is 

in the record. 

STATEMENT OF AMY ROMIG 

Ms. ROMIG. Thank you. Chairman Shimkus, Ranking Member 

Tonko, and members of the subcommittee, thank you for allowing 

me to come talk to you today. 

I am going to supplement Mr. Wood’s testimony about the general regulatory regime faced by farmers. Under the Resource Conservation and Recovery Act, citizens can bring suits. RCRA jurisdiction is triggered whenever there is a solid waste, and solid waste 

is defined as garbage, refuse, or something that is discarded. 

RCRA also recognizes that we don’t need to send all of our trash 

and waste to landfills, that if things have value, we need to reuse 

it. RCRA balances this by encouraging recycling and reusing. 

RCRA specifically recognizes that manure has value. It is exempted from the definition of solid waste and, thus, it is completely 

exempted from RCRA jurisdiction if it is agricultural waste, including manures and crop residues, that are returned to the soil as fertilizers and conditioners. 

So you have two types of manure. You have manure that is going 

to be used as fertilizer that is completely exempted from RCRA jurisdiction, and you have manures that aren’t going to be used as 

fertilizer that the case that Mr. Wood talked about found was 

under RCRA jurisdiction. 

Now, why this is important today is, most importantly, farmers 

have been regulated, and they have been regulated since at least 

1974 under the Clean Water Act. And, in fact, the most comprehensive confined animal feeding operation regulations that were recently passed by the EPA were promulgated under the Clean 

Water Act. 

So farmers know that they have to comply with the Clean Water 

Act. They go and they look at these regulations. They don’t even 

know how RCRA necessarily applies, because, as I talked about, 

they are not completely covered by RCRA, depending on how they 

use their manure. 

And this makes sense, because if agricultural operations are 

going to cause harm, they are likely going to cause harm to the 

water, and that is why we look to our water regulations to protect 

the harm that farms might cause, if they are going to cause any. 

If there is a problem with farms or these agricultural operations, 

the EPA or the state agencies are likely going to proceed under the 

Clean Water Act, and that makes sense because they have complete jurisdiction over all manure under the Clean Water Act. They 

don’t have to engage in this really tricky, Is it RCRA manure or 

is it not RCRA manure? 

Now, RCRA does have these citizen suit provisions, as we have 

discussed, and, in fact, so does the Clean Water Act, so does the 

Clean Air Act. Most of our environmental regulations do have citVerDate Nov 24 2008 11:53 Jan 09, 2019 Jkt 037690 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 I:\MY DOCS\HEARINGS 115\HEARINGS\115-77 CHRIS
20 

izen suit provisions. And all of them have a key provision, that if 

you are working with an agency and if an agency is working with 

a regulated entity, then the citizen suits are prohibited. 

But the catch and the technicality here is that in each of these 

statutes, especially RCRA, the citizen suits are only prohibited if 

the agency is proceeding under RCRA or CERCLA. And as I discussed, that is the Catch-22 here, that the agencies are likely going 

to bring these things under the Clean Water Act. 

Now, it makes sense to prohibit these citizen suits, because, as 

our Supreme Court has said, we want citizen suits to supplement 

the overworked and underfunded agencies. They are not to supplant or substitute their judgment for those agencies, because these 

agencies, we recognize that they have the expertise and they are 

independent arbiters to look at how these agricultural operations 

are working. 

The point is to prevent multiple and numerous lawsuits. It is to 

protect these regulated entities when they are working with the 

agencies the way they should. If you allow citizen suits to proceed 

while the agencies are still working, that can subject these hardworking businesses to inconsistent results. The agency can tell 

them they need to do one thing while the citizens could tell them 

they need to do something else, and that is not fair, to subject 

these farms to multiple inconsistent outcomes. And that is because 

we have a disconnect here that these farm operations usually are 

regulated under the Clean Water Act. 

I am not saying that citizen suits don’t have a place in our jurisprudence. In fact, I have represented citizens, and I have brought 

citizen suits. However, the jurisdiction and the mechanisms for 

these suits need to match the regulations that the entities are 

being regulated under. And I would like to finish my testimony 

with an example of why these citizen suits can be harmful. 

I represented a particular entity that ran into some problems, 

and they had to get new permits. And the citizens challenged both 

of those permits in the agency. They had their chance to say: We 

don’t like how things are being done. 

IDEM, our environmental management agency in Indianapolis, 

brought a suit in civil court, and the citizens intervened in that 

suit. They had a chance to check over the agency’s shoulder and 

say they weren’t doing it right. They brought an independent state 

suit, and we prevailed in all of those actions. And then they 

brought a RCRA citizen suit, and that was the straw that broke 

the camel’s back. It forced this industry to file bankruptcy. 

I am asking the committee to protect businesses from this double 

jeopardy. Thank you. 

[The prepared statement of Ms. Romig follows:] 

21 


28379.010

Before the House R•·m·"'""'t.~t.hm' Committee on Energy and Commerce, 

Snlb(•onarutitt:ee on Environment 

Hearing on "H.R._, Farm Regulatory Certainty Act." 

Chairman Shimkus, Ranking Member Tonko, and Members of the 

Subcommittee, I am pleased to be invited to present my views on how the proposed 

amendments to the citizen suit provisions of the Resource Conservation and 

Recovery Act ("RCRA") can provide regulatory certainty to agricultural operations 

while continuing to protect America's lands and waters. Even with these proposed 

amendments, citizens will still have the opportunity to commence civil actions 

against those operations allegedly in violation of environmental laws; their options 

however \VOuld be tailored to the agricultural operations and governed by hnvs 

typically applicable to agricultural operations, rather than RCRA which is better 

suit('d to non~agricultural operations. I will also discuss hmv citizen suits are often 

only one form of redress available to neighbors and environmental groups and how 

continued duplicative actions can be harmful to A1nerican businesses such as 

agricultural operation;.; that often operate on such low margins that unnecessary 

lmvsuits could force such businesses out of operation. 

I am a partner with the law firm of Plows Shadley Racher & Braun, LLP. 

represent several private businesses, non~profit entities, and other private 

l! 
22 


28379.011

stakeholders who are interested in the availability of citizen suits. I have 

xepresented entities defending citizen suits as well as who have filed citizen 

suits to address environmental concerns. My firm and I have also represented 

a,gricultural organizations in many different capacities, including defending civil 

suits as \Vell administrative and enforcement actions involving environmental 

agencies, I have also represented neighbors of agricultural operations vvho have 

objected to how those operations are conducted. However. I am not presenting this 

testimony directly on my clients' behalf. Rather, my advice to the Subcommittee 

today is drmvn from my seventeen years of work as an environmental litigator and 

compliance attorney nnd my overall desire to ensure that the RCRA. citizen suit 

provisions are tailored to the types of operations typically gm·emed by RCRA. 

have personally witnessed the impact that RCRA citizen suits can have upon 

businesses a level of impact that should only be allowed in carefully tailored 

c:trcumstances where environmental agencies are not already dealing with the 

alleged noncompliance. 

RCRA Jurisdiction 

RCRA was enacted 197G and governs the disposal of solid and hazardous 

\Vastc. "Disposal" is defined as "the discharge, deposit, injection, dumping, spilling, 

leaking, placing of any solid \vastc or hazardous \Vaste into or on any land or 

\vater such that solid waste or hazardous \Vaste or any constituent thereof may 

enter the environment or be emitted into air or discharged into any waters, 

2 1 r ;1 y, ,, 
23 


28379.012

including ground " 42 U.S.C. §6903(3), 40 CFR 

determined to solid undi>rRCRA is othe1' 

discarded material...from industrial, commercial, and agricultural 

operations,.,." 42 U.S. C. §13903(27). 

Despite the broad definition of solid v•:hich triggers jurisdiction under 

RCRA. Congress recognized when enacting RCRA that it prefcrahlo to reuse 

materials and resources rather than treating them as wastes: 

The Congress with respect to materials that ---

(1) millions of tons of recoverable materials which could be used 

arc needlesslv buried each 

(2) methods arc ~vailnble to separate usable materials from solid 

waste: and 

(3) the recovery and conservation of such material can reduce 

the dependence of the United on foreign rcsourcet:~ and 

reduce tho deficit in the balance of payments. 

-12 U.S. C. §H901(c)(l). In balancing the interest between regulating solid 

RCRA regulation those "agricultural including manures and crop residues, 

Determining vvhat a ''solid ;;vasteu and therefore (and most importantly) 

triggering RCRA jurisdiction is not always simple 

in d0fining "solid vvastc." The EPA fiTst promulgated a regulatory definition in 1985 

which was nearly immediately challenged and the EPA bas been and trying 

to lmprove the definition for thirt,v years, most recently revising the rule in 2015. 

'I 
24 


28379.013

surrounding the definition have dealt with winnowing out true "disposaf' 

the 

encouraged and which do not result in increased 

environment. 

Agricultural Operations 

to human health or the 

Agricultural operations are typlcally operated and governed under the Clean 

Water Act ("CWA"), Although agricultural operations happen on land. the 

environmental ri;-.k most associated '.vith these operations runoff pollution and 

impairment of\:vatcr quality, including both surfact~ and groundsvater. The EPA 

has been regulating' some agricultural operations since at least 1974 (promulgation 

of national cf'fiuent limitations guidelines aud standards under the CvYA for 

feedlots, 39 FR February 14, 1H7 4). Even today the EPA continues to compile 

annual summaries and to determine the implementation of the Confined Animal 

Feeding Operations regulations under National Pollutant Discharge Elimination 

System ("NPDES'')- in other words, its water permits system nndcr the CWA. 

From 197'-1 through today, the EPA continues to considm· agricultural oper<1tions to 

be .an industry regulated under the by the EPA. The EPA and delegatedstates programs rcvic'iv compliance and commence enforcement actions against 

agricultural operations under C\YA authority; 

these operations. 

do not look to RCRA to govern 

·ll 
25 


28379.014

Depending upon the size of the agricultural operation, the pe:~;mits 

and/or 

These plans take into account the nutrient need of crops, the available 

nutrients in soil) the nutrients available in manure and crop residues) as well as 

other conditions such as temperature and different elements 

are balanced to estimatt~ how much rna nun~ can be added to land in a way to 

provide beneficial fertilization soil conditioning while preventing migration of 

nutrients to surface or ground waters. The goal is to ensure that manure is not 

land applied in of agronomic rates is not applied at times that vvould 

result in runoff of potential pollution, 

Citizen Suits In General 

Both RCRA and the CWA (in addition to nearly every other major 

cnvironmcntallavv) contain citizen suit provisions to allmv private citizens to bring 

an action to enforce environmcntnllavvs. By allovving to bring these suits, 

Congress expanded the resources to fight environmental compliance isRues 

because environmental ag-encies ahvays have limited resources. Under the eitizcn 

suit provisions of both the C\V.c\ and RCR.r\, citizens must provide notice to the EPA 

Administrator, the state, and the alleged violator, 33 U$C, §l365(a)(l)Jh)(1) 

(CWA); 12 §G~l72(b)(l)(A),(2)(A) (RCRA), notice requirements have the 

purpose of informing the fCderal and state agencies oft he alleged violations 

to allO\v those agencies to undertake their ovvn enforcement. Furthcnnore. notice 
26 


28379.015

also allows alleged violators to bring their operations into compliance and 

all parties the and expense of litigation. 

After complying with the notice rcquirt~ment, citizens can b:ring under 

both RCRA and the only if the agencies not diligently prosecuting an 

action against the alleged violator. :J3 U.S.C. §13G5(g)(6)(A)(ii) (CWA); u.s.c. 

§G972(b)(2)(B),(C)(i) (RCRA). The prohibition on citizen suits when the agencies 

tasked \Vith protecting the environment taking action protects the pTimary 

enforce1nent authority of the agencies and protects regulated entities fron1 

defending repetitious lawsuits for the same violations. The Supreme Court has 

found that a "citizen suit is nwant to supplement, not supplant, governmental 

action ... · Gl(·altncy of Smithfield t·. Chcsapmhc Day Found., 484 U.S. 49, 60 (1987). 

Courts have routinely enforced the diligent prosecution prohibition on citizen suits 

The congressional intent in 

private actions was to prevent and numerous 

instances involving private citizens, the 

states and the gcn-crnment. Instead, 

determined that the desired result 

environmental hazard could be beKt 

either the Atlm1mstr·a 

suit on behalf of the 

Only 1chen and state got'ernments fail 

the situation or file suit in either State or 

to public resources did 

Congress envision the need private citizens to 

commence actions to correct environmental hazards. 
27 


28379.016

McGregor v. Indus. Excess 709 F.Supp; (N.D. 

v. 62 F.3d H)92, Cir. 

1995), the court considered the underlying purpose of RCRA and determined that 

1

'nohvithstanding the inclusion of this citizen suit provision in RCRA, 

provisions whose obvious goal it is to forestall suits so 

statute 

become 

availahle only as a last resort." I d. at 1098 (emphasis added). Congress intended to 

allow citizen suits in order to encourage compliance with RCRA-but not when 

compliance vvas at hand. I d. "The legislative histm;t indicates an intent to stl'ike a 

balance behvecn encouraging citizen enforcement of environmental regulations and 

avoiding burdening the federal courts \Vit h excessive numbers of citizen suits!' !d. 

(citing Hallslmm c·. Tillamook County, 493 U.S. 20, 29 (1989)). addition, the 

behind the citizen suit provisions is to avoid '\iuplication of effort." J.~!funiz r. 

Rcxnord Corp., 2004 U.S. Dist. LEXTS 17B39 (N.D. TlL 200,1) at 12. 

Thus, as both 1egiB1ntive intent and courts have recognized, citizen 

should only be allowed when the environmental agencies charged with protecting 

the environment have failed to take action. This not only prevents excessive 

litigation- prevents rcmediatlonlrcdrcss. If both the govcrnm(~nt and 

citizen alhnvcd to litigate the same violations in different forums, the 

outcome from each action may differ. \Vhile the government may require 

demonstration that nn operation use best management practices, a group 
28 


28379.017

may demand that the operations be subject to more strict requirements. Thus, a 

may differing standa1'ds if both are allowed to proceed. 

The problem for agricultural operations arises in the literal language of the 

citizen suit provisions of RCRA .. Under RCRA citizen suit can only proceed when 

an agency has not taken action wuicr RCR;l or CERCLA: 

No action may be commenced under ... this section if the 

Administrator, in order to restrain or abate acts or conditions 

\Vhich may have contributed or contributing to the activities: 

which may present the alleged cnaanf':errnenr-·· 

(i) has commenced and is 

action under section 6973 

section 106 of[CERCL'\), 

42 U.S. C. §6972(b)(l)(B). discussed above, hmvcver, \Vhen compliance issues 

arise \Vith agricultural operations the or environmental 

their enforcement actions under the CWA, not under RCRA or CERCLA. This is 

bccause the ageneies' n1les regarding agricultural operations arc promulgated 

under the CWA as well the fact that under the regulations determining RCRA 

bring RCRA enforcement action whc•n it only has jurisdiction over \vastcs not. 

action pursuant to the C\;VA under which jurisdiction and regulations are more 

clear-cut. 
29 


28379.018

This mismatch- where there is arguably 

wastes hut not and thus 

jm~is<:!iction over certain 

suit under RCRA yet the 

agencies pursuing facilities under the CWA for the same underlying conductresults in precisely the duplication of efforts and excessive litig'ation that Congress 

was trying to when drafting RCRA citizen suit provisions. This mismatch 

for the proposed RCRA amendments before you today. 

Excessive Litigation is a Threat to Agricultural Operations 

The testimony today involves the citizen prm·isions of RCRA but the 

litigation spmvned RCHA often does not occur in a vacuum. In my expel'iencc 

citizens and citizen groups do not only usc RCRA to challenge agricultural 

operations. In the classic "Not In My Backyard" ("NIMBY') scenario, citizens 

group~1 have many resources to challenge operations that do not like, even 

operations that have been in existence for many years, even generations. 

It not unusual for these groups to challenge every single action and 

environmental permit involving these facilities. They frequently bring civil suih.; iOr 

nuisnnce, not\vithstanding common la\V and statutory protections to prevent thm;e 

''coming to the nuisance" from bringing In many such as Indiana, those 

groups can in the administrative and civil enforcement actions brought 

agencies. Regardless of the merits ofthe.s.c eases it tn.kcs significant legal resources 

to dispose of these challenges. one case in vv hich I counsel of record. 

group brought several administrative permit challenges against an 
30 


28379.019

intervened in a state civil enfoice1nent 

enforcement action. \Vhile my client successfully defended these 

actions, it was ultimately the RCRA suit, brought in federal court, which 

added the straw that broke the camel's back Although the suit was initially 

dismissed by the court, the group appealed through the 7th Circuit. 

Overall the total litigation costs f(lr that client exceeded hundreds of thousands of 

dollars, forcing the client into bankruptcy. The group only prevailed when 

the facility had no money, could not hire counsel, and the citizens' group won \vith a 

default judgment. 

YVhilc some citizens obviously have meritorious claims, Congress 1nust 

recognize that suits arc expensive to defend regard]es::; of the merits. This 

fact needs be taken into account while balancing when enforcement should be left 

to the agencies with the expertise and vvhon it should allo\v the citizens to act 

"private attorneys generaL'' 

The Farm Regulatory Certainty Act will Provide Certainty 

Agricultural Organizations 

As discussed above. regulated should not be forced to defend 

multiple forums against multiple parties for the same alleged 

violations. By amending RCRA to prohibit citizen suits ag·ainst an agricultural 

operation if the EP.i-\ or a is already diligently prosecuting an action (whether 

or not under RCRA), or has entered a consent agreement related to manure or crop 
31 


28379.020

residue that is to be returned to the soil, Congress will dose the 

agri\:ultural operations 

government under the CWA but also citizen under RCRA. This not only 

protects agricultural operations from ruinously expensive litigation, particularly 

when their dollars could be better spent ensuring compliance, but also protects 

such operations from potentially conl1icting outcomes when the citizens demand 

different outcome than that required by the regulating Closing this 

loophole also recognizes that we expect our environmental ngc-ncics~ who are not 

s\vayed by local politics or other concerns, to policies and determine the 

mo~t appropriate remedial measure-s. this law does not prohibit or in any 

limit the \Yay agencies may enforce environmental requirements 

agricultural organlzations under the CVVA, nor docs it prohibit citizens' suits under 

the '.Yhen appropriate. This is one \Yhich certa]nty and 

protecti011 for the regulated community 'vhilc also remaining protective of hu1nan 

health and the environment. 

Conclusion 

I urge the Committee to approve the Farm Regulatory Certainty Act because 

it protects agricultural organizations from exccsf<ivc and possibly contradictory 

litigation, it recognizes government agencies the first defense in environmental 

compliance and enforcement, and docs not impact protection of human health and 

the environment. 

11 i ,'~ ,, 
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28379.021

I appreciate the opportunity to 

have. 
33 

Mr. SHIMKUS. I would like to thank you. 

And now I would like to recognize Ms. Jessica Culpepper, Food 

Project attorney for Public Justice. 

Ma’am, you are recognized for 5 minutes. 

STATEMENT OF JESSICA CULPEPPER 

Ms. CULPEPPER. Chairman and members of the subcommittee, I 

sincerely appreciate the opportunity today to discuss the draft bill 

offered by Mr. Newhouse. 

As you just heard, Congress included a citizen enforcement provision when it passed the Resource Conservation and Recovery Act, 

which I will refer to as RCRA, in 1976 so that people could protect 

themselves when the government fails to fix the problem. 

Four decades later, a community in Yakima, Washington, used 

RCRA to successfully protect their private drinking water from manure contamination after the state and Federal government actions 

and inactions failed them. And this bill now threatens to take away 

the rights of all citizens in those same circumstances. 

So I am here today to outline why the purported reasons for 

passing this bill are redundant with RCRA. I am then going to tell 

you what this bill actually does and why it is so dangerous. 

First, you have heard today that RCRA was never intended to 

cover fertilizer. We completely agree with that. Even without this 

bill passing, RCRA will never apply to farmers fertilizing their 

crops, because it is already exempted. RCRA only kicks in when 

massive operations are using their lands as a means of disposal 

and that manure ends up in your drinking water. And importantly, 

Congress specifically identified the disposal of animal waste as a 

problem RCRA was designed to address. 

In the cases I helped litigate in Yakima, the operations were applying millions of gallons of manure to land that didn’t need fertilizing. I have also seen frozen solid fields in the Midwest stacked 

2 feet deep with manure. 

Those bad actors are not regular farmers. Those operations use 

their fields as a means of disposal without regard for what their 

crops needed. And the manure disposal in Yakima poisoned rural 

communities’ drinking water to the point that the neighborhood 

school had signs above the water fountains warning students that 

the water could make people sick. 

So nothing in RCRA will interfere with farmers fertilizing their 

crops. What it stops is dumping your waste on a neighbor’s property, in their air, and in their drinking water. 

Second, you have heard today that RCRA enforcement could hurt 

small family farms. This is simply not true. Even without this bill 

at all, small farmers are not in jeopardy for citizen enforcement actions. This is simply because they lack the volume of manure required to generate the danger to public health that triggers RCRA. 

If you think of a drinking water aquifer like a glass of water, a 

single drop of nitrate, it is not going to do anything. You will never 

notice it. But a handful of manure, that you are going to notice. It 

takes massive operations to trigger RCRA. 

Third, even without this bill, there is no opportunity for double 

jeopardy. As you just heard, RCRA underscores this safeguard by 

stating explicitly: If there is a government action seeking the same 

34 

cleanup, then citizens cannot enforce the law. What is important 

is that the actions that were taken in Yakima weren’t fixing the 

problem. 

That is what this bill is not about. Now let me tell you what this 

bill is actually about. RCRA exists to allow the government and 

citizens to stop danger to public health in the environment in emergency situations. The bill dramatically weakens the citizens’ ability 

to enforce RCRA in the case of agriculture. It is, in effect, creating 

a giant loophole in the law that will stop polluters from being held 

accountable for hurting their neighbors. 

RCRA is a law of last resort. It is used only in the worst-case 

scenarios. But when it is used, RCRA is the only safeguard the citizens have to protect their private well water from contamination. 

You heard about the Clean Water Act. The Clean Water Act does 

not apply to groundwater, so it is not going to fix the problem. The 

Safe Drinking Water Act does not apply to private wells. So if you 

are a rural American that relies on a private well for your drinking 

water, you cannot protect yourself under the Safe Drinking Water 

Act. 

Citizen enforcement of those laws will not fix problems faced by 

rural Americans with dirty wells. If this bill were passed, it would 

leave these communities completely reliant on the government to 

save them. 

What I want to leave here with you today is the purported reasons for this bill is a fix for a problem that doesn’t exist. It doesn’t 

take a legal scholar to know that there is something illegal when 

your water runs brown with manure. 

RCRA, and only RCRA, was designed to help the local communities protect themselves to stop exactly those public health 

threats. Citizens must have the right and ability to protect themselves and enforce RCRA without constraints that would render 

that right meaningless. 

Thank you. 

[The prepared statement of Ms. Culpepper follows:] 

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28379.022

H.R. __ ,The Farm Regulatory Certainty Act of 2017 

THE IMPORTANCE OF CITIZEN ENFORCEMENT TO PROTECT COMMUNITIES 

AND DRINKING WATER FROM AGRICULTURAL POLLUTION 

Testimony of Jessica Culpepper, Food Project Attorney at Public Justice 

U.S. House Subcommittee on the Environment 

Hearing on the Discussion Draft 

November 9, 2017 

Summary 

Without the Resource Conservation and Recovery Act's (RCRA) citizen enforcement 

provision, no existing law by itself allows private well owners to stop drinking water 

contamination by agricultural pollution. The Safe Drinking Water Act (SDW A) excludes private 

wells from regulation. The Clean Water Act only addresses impacts to surface water. RCRA 

supplements a number of other federal, state, and local laws that apply to agricultural waste 

management, but this system fits together like the gears of a clock that will not work unless 

citizens have the right to enforce them. Like the SDWA, but unlike the Clean Water Act, RCRA 

imposes no specific regulatory burden on agriculture. Rather, it provides a mechanism for citizen 

law enforcement where a polluter has endangered public health or the environment. But if this 

bill is passed, then any proceeding covering waste management would preclude rural Americans 

from enforcing the only law protecting their access to clean water. 

While most fanners m·e dedicated members of their community and stewards of the land, 

there are some who ignore their own waste management plans and permits. Some irresponsible 

operators of concentrated animal feeding operations (CAFOs) have long been violating state and 

federal laws in how they manage their manure. Rural communities living near CAFOs have seen 

repeated instances where state and federal agencies did not effectively enforce laws designed to 

protect communities from the risks and pollution stemming from mismanaged waste owned by 
36 


28379.023

CAFO operators. The results have been continued pollution, dangers to communities, and, for 

some, catastrophic loss of their drinking water. 

RCRA citizen enforcement actions are lawsuits of last resort. As a member of the legal 

team who represented the community behind the only successful RCRA citizen enforcement 

action brought on behalf of a rural community against a CAFO, I can say that these actions arc 

costly, time consuming, and extremely difficult to bring. Moreover, rural Americans do not want 

to take legal action against their neighbors. Because of these factors, citizen enforcement suits 

under RCRA only occur against the worst actors in the most egregious circumstances. But in 

that suit, citizen law enforcement obtained a cleanup of agricultural pollution where state 

agencies had not taken action, and the EPA had not taken enough action to solve the problemthe agency left hundreds of households without clean water and did not require mandatory 

changes that would stop further contamination of the drinking water aquifer. 

In the lawsuit in Yakima Valley, Washington, the operators admitted, under oath, that 

they violated their own Nutrient Management Plans for years and used their fields as dumping 

grounds for millions of gallons of raw waste. They illegally disposed of waste in fields across 

the street from their neighbors. And the lawsuit worked where nothing else could. Hundreds of 

households who had no clean drinking water for years are now receiving critical clean water 

delivery, and the CAFOs have been forced to change their practices so that their production 

methods no longer contaminate their neighbors' drinking water. The only way this could have 

happened was citizen law enforcement under the Resource Conservation and Recovery Act. For 

this statute to serve the public purposes for which it was intended, the public- and not just state 

and federal government bureaucracies- must have the authority to protect themselves through 

citizen enforcement suits. 

2 
37 


28379.024

THE IMPORTANCE OF CITIZEN ENFORCEMENT TO PROTECT COMMUNITIES 

AND DRINKING WATER FROM AGRICULTURAL POLLUTION 

Testimony of .Jessica Culpepper, Food Project Attorney at Public Justice 

U.S. House Subcommittee on the Environment 

November 9, 2017 

Here is the proposal: A CAFO produces millions of gallons of manure and urine 

containing toxic substances, including nitrates, bacteria, pathogens, arsenic, and selenium. We 

propose to dig unlined pits that we wi II not properly maintain on top of an aquifer, the local 

community's sole source of drinking water. The CAFO will dump the manure and facility wash 

water into these pits for storage. These millions of wet gallons of waste will sit there untreated, 

where the toxic substances in this waste will leach into the groundwater, which flows into the 

community's wells. 

Now the CAFO will spray the remaining raw animal sewage from the unlined pits onto our 

land. They have a management plan that they are supposed to follow, but because the CAFO 

produced more manure than their crops actually need, they will ignore the requirements of that plan 

and apply millions of gallons more than what is necessary for crop growth onto our fields. The 

excess manure that is not used by the crops will also leach into the groundwater and flow into the 

community's wells. They will continue to do that for at least a decade, even when they receive 

information that dangerous nitrates are rising in the drinking water, and scientists and government 

agencies inform them that they are likely part of that problem. 

Sounds like a good idea? That is exactly what the operators of the mega-dairies admitted to in 

the Yakima, Washington citizen enforcement action that led to Rep. Newhouse introducing the socalled Farm Regulatory Certainty Act. It should come as no surprise that these lagoons have 

failures and that some operators are going to ignore the laws and mismanage their manure. It 

does not take a prophet to predict that, because of these few, bad actors, environmental and 

public health crises will happen, it does not take a rocket scientist to determine that mismanaging 

3 
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28379.025

mass quantities of manure like this will pollute, and it does not take a legal scholar to figure out 

that when a person's tap water runs brown from manure, something about this is illegal. 1 And 

any concerned citizen can see that this is no way for agricultural waste to be handled in his or her 

community this age of complex engineering and agronomy plans which, if utilized properly, 

would prevent pollution from happening in the first place, 

Yet, what we have seen across the nation is that even though some in this industry are 

breaking existing law in how they manage manure, and even though the manure is polluting 

groundwater and rivers with toxic contamination and even though there is the risk of catastrophic 

public health crises, the CAFOs and the state agencies that regulate them have not taken effective 

action to stop bad practices and protect local communities and clean water, In the single case 

brought against a CAFO, we obtained substantial clean up and convinced the CAFOs that they must 

change their waste management practices- but only when citizens had the right to take the future of 

their communities into their own hands, to bring their own enforcement action, and to thereby force 

the state and federal agencies and the CAFOs to face up to the hann that unlined manure storage over 

aquifers and massive land dumping is doing to local neighborhoods and our natural resources. 

Forty-nine percent of the United States relies on groundwater for its drinking water. In the 

states represented by this subcommittee alone, 33 million people in California rely on groundwater;2 

183,000 people in Colorado rely on private wells with another 1, I million relying on groundwater in 

community systems; 3 I .53 million people in Georgia rely on private wells with another 1.78 million 

1 See Attachment A for news coverage of communities with brown tap water. 2 https://www. waterboards,ca,guv/water _ issues/programs/groundwater/gw _ basics,shtm I and see 

http://www.water,ca,gov/groundwater/gwinfo/index.cfm 

3 http://coloradogeologicalsurvey,org/water/groundwater/ and see 

http://www.ngwa,org/Documents/States/Use/co.pdf 

4 
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28379.026

relying on groundwater in community systems; 4 5 million people in Illinois rely on groundwater; 

446,000 people in Mississippi rely on private wells with another 2.9 relying on groundwater- almost 

the entire state population; 5 2 million people in New York rely on private well water, while another 

4.96 rely on groundwater in community systems; 6 3.3 million people in North Carolina rely on 

private well water, while another 1.9 million rely on groundwater in community systems; 7 26,500 

people in North Dakota rely on private well water, while another 244,840 people rely on groundwater 

in community systems: 8 1.8 million people in Ohio rely on private well water, while another 3.3 

million rely on groundwater in community systems;9 225,000 people in Oregon rely on private well 

water, while another 789,000 people rely on groundwater in community systems; 10 538,000 people in 

Tennessee rely on private well water, while another 1.49 million people rely on groundwater in 

community systems; 11 2.23 million people in Texas rely on private well water, while another 6 

million people rely on groundwater in community systems; 12 and 393,000 people in West Virginia 

rely on private well water, while another 309,600 rely on groundwater in community systems. 13 

4 http://coloradogeologicalsurvey.org/water/groundwater/; see also 

http://www.ngwa.org/Documcnts/States/Use/co.pdf 

5 http://www.ngwa.org/Documents/States/Use/ms.pdf 

6 http://www.ngwa.org/Documents/Statcs/Usc/ny.pdf 

7 http://www.ngwa.org/Documents/states/use/nc.pdf 

8 http://www.ngwa.org/Documents/States/Use/nd.pdf 

9 http://www.ngwa.org/Documents/Statcs/Use/oh.pdf 

10 http://www.ngwa.org!Documents/States/Use/or.pdf; see also 

http://www.oregon.gov/oha!PH!llEALTHYENVl RONMENTS/DRINK!NGW ATERJSOURCEW ATERJ 

Pages/whppsum.aspx. 

11 ht!p://www.ngwa.org/Documents/States/Use/tn.pdf 

12 see http://www.ngwa.org/Documents/States/Usc/tx.pdf 

13 http://www.ngwa.org/Documents/States/Use/wv.pdf 

5 
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28379.027

These astounding numbers show the breadth of impact the this bill will have if these people's rights 

are taken away. 

It is worth examining RCRA, what this Discussion Draft would do to it, and what the only 

succe.ssful citizen enforcement action against agriculture has accomplished when the state agencies 

did not act, and EPA did not act enough. 

A. The Importance ofRCRA's Citizen Enforcement Provisions 

Congress enacted RCRA in 1976 to close "the last remaining loophole in environmental 

law, that of unregulated land disposal of discarded materials and hazardous wastes" and "to 

minimize the present and future threat to human health and the environment." 14 To understand 

how RCRA works with the agricultural community, it is important to understand that nothing 

about this law has regulatory impact. The case that brought about the Rep. Newhouse's 

proposed bill, and the underlying statute, is about law enforcement. So the so-called Farm 

Regulatory Certainty Act does not reduce regulatory burden at all. It simply shields industry 

from liability for creating conditions that threaten public health. What the bill changes is the 

section of RCRA that allows citizens to enforce RCRA's prohibition against any person causing 

or contributing to the creation of an imminent and substantial endangerment to human health or 

the environment. 42 U.S.C. § 6972(a)(l)(b). 

I want to set the record straight on Rep. Newhouse's letter to request a hearing on this 

bill. Rep. Newhouse introduces three misconceptions about RCRA's citizen enforcement 

provisions and the what the bill purports to do in his Jetter. Namely, RCRA is already doing 

achieving of the purported purposes in the so-called Farm Regulatory Certainty Act. That is no 

14 H.R.Rep No. 1491, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S.C.C.A.N. 6238, 6241; 42 U.S.C. § 

6902(b). 

6 
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28379.028

surprise because Congress was intentional when it set out to protect Americans' health from 

toxic waste, and reveals that this bill is not about reducing regulations, but about shielding the 

worst actors in this industry from accountability and shutting the courthouse doors on the most 

vulnerable in rural America. 

First: RCRA citizen enforcement actions cannot be brought against a facility for the 

regular use of fertilizer to grow crops. Before you can bring a citizen enforcement action under 

RCRA, you need to have a solid waste and RCRA already exempts manure reused as fertilizer or 

soil conditioner from the definition of solid waste. It always has, and this bill does not change 

the fact that fertilizer used as such will never be a solid waste, and, because RCRA is only 

applicable to solid waste, the statute's provisions simply will not apply. 

Rep. Newhouse stated in his letter requesting this hearing that Congress never intended 

for RCRA to govern agricultural nutrient management practices. This is simply not true, and 

what he fails to say is that RCRA docs not apply to agriculture unless the practices being used 

lead to a disposal of waste that endangers public health. Congress most certainly intended to 

cover agricultural waste under RCRA. In the earliest versions of the law, agriculture was 

included in the Congressional findings as a source of waste of concern, and remains there to this 

day despite numerous amendments to the Jaw. See P.L. 94-580 (Oct. 21, I 976) 90 STAT. 2797. 

The legislative history strongly suggests that agricultural waste, including manure, was 

considered, discussed, and was determined to be an important material regulated under RCRA. 

For example, in a House Report to amend RCRA, the explanation for the bill included 

agricultural waste in its definition of solid waste and explained the need to include it: 

Agriculture and animal wastes alone are 2 billion tons annually. So, millions of tons of 

solid waste are being spread as it were into our environment in the period of a year's time. 

Now, we can't sweep these into a corner and we can't find that quiet sanctuary and say 

that the problems will be taken care of in time. 

7 
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28379.029

Numerous statements by Congress identified the dangers caused by animal and agricultural 

wastes and the need for RCRA to address it as part of the statute. 15 

The court in the only citizen enforcement action to rule on this issue stated that the 

operators of the CAFO admitted that they ignored their own nutrient management plans and 

applied millions of gallons beyond what crops needed as fertilizer or soil conditioner. The 

massive amounts of excess manure that could not be used by the crops is what contaminated the 

drinking water. There is a line between fertilizer applications and dumping excess waste to 

dispose of it, and the court found that in that particular factual scenario, the CAFO was 

unquestionably past it. 

Second: RCRA citizen enforcement actions would likely not be brought against small or 

medium sized family farms. Even if you are disposing of your manure rather than using it as 

fertilizer, RCRA still will not apply unless three very serious facts are present: 

I. You have to dump such vast quantities of manure that it threatens to leave your 

property and gets into the water supply; 

15 Resource Recovery Act of 1969 (Part 1), Subcomm. on Air and Water Pollution of the Comm. on 

Public Works (March 4, 5, AND 13, 1970, March 31, 1970), 2 (Statement by Sen. Rando1ph)(Mr. 

President, our society generates 4.4 billion tons of solid waste annually. The principal sources are animal 

wastes, 1.7 billion tons; and agricultural wastes, 640 million tons ... To avoid an escalation of the current 

unsatisfactory situation, we must institute a comprehensive national materials policy which closes the 

present cycle of resource extraction, use, and discard to include reuse as a fundamental premise.); 

Resource Recovery Act of 1969 (Part 5), Subcomm. on Air and Water Pollution of the Comm. on Public 

Works (March 4, 5, AND 13, 1970, March 31, 1970), 2513-14 (statement of Frank Stead, called by Sen. 

Muskie) (Ignored as a public responsibility, and handled with little thought of the public interest in 

resources, are the agricultural wastes such as animal manures, orchard crops, and field and row crops, 

which, in the San Francisco Bay area itself, constitute half of the total waste loading .... No public agency 

is in a position to either prevent the mingling into the waste stream of material such as plastics, which are 

extremely difficult to accommodate as recycleable resources, or to insure the inclusion in the system of 

those materials whose handling now causes severe environmental impairment. Included in this latter 

category, of course, are abandoned automobiles, digested sewage sludges, and agricultural wastes); 

8 
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28379.030

2. The contaminants that threaten to leave your property are at such a high level that 

they may contribute to the violation of the drinking water standards for that 

contaminant; and 

3. The violation of those drinking water standards is happening or is imminent in a 

source of drinking water such that it could endanger public health. 

Without all of these additional conditions, there is still no coverage by the statute it 

does not apply. And even if they did apply, RCRA allows for a notice period of ninety days 

before litigation can be filed, which gives an owner a period oftime to fix the problem before 

litigation starts. Moreover, these conditions occur only in the most egregious of circumstances 

simply because the sheer volume of disposed waste over time to create this kind of public health 

risk is not the accepted or normal practices for this, or any, industry. Finally, these law suits are 

incredibly challenging and extremely resource-intensive to bring. And because the only remedy 

available under RCRA is to fix the problem, and there are no money damages available, there is 

no incentive to bring them against a facility unless that action will stop a substantial threat to 

public health and the environment. 

Third: RCRA citizen enforcement actions already cannot be brought where a state or 

federal agency is diligently pursuing a duplicate judicial or administrative enforcement action 

under RCRA or another law. 42 U.S.C. §§ 6972(b)(2)(B)-(C). This is called the RCRA's "antiduplication" provision. RCRA also has an "anti-inconsistency" provision, which similarly 

prohibits the statute to be used in a way that creates inconsistent requirements with other laws. 

42 U.S.C. § 6905(a). So RCRA already preempts lawsuits where a state or federal agency is 

addressing the issue through an enforcement action. What this Discussion Draft does is blow 

9 
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28379.031

those provisions open so that even unrelated proceedings will preclude citizens from enforcing 

RCRA against a polluter for contaminating their drinking water. 

Finally, there is an easy way to make farmers more certain about their legal and 

regulatory compliance: agriculture must comply with RCRAjust as it does any other law. In this 

case, complying with the law simply means that a CAFO must not mismanage its waste so 

egregiously that it creates an imminent and substantial endangerment to health or the 

environment. Compliance with other laws and regulations does not, and should not, shield an 

actor from liability under RCRA unless it is directly related to the cleanup, as is already 

prescribed in the anti-duplication provisions. In contrast, this Discussion Draft says that if you 

are speeding, and you get a ticket for that, then you can't be held liable for running a traffic light 

and crashing into someone else's car. And I want to emphasize that the crash must happen in 

addition to running the red light. Because it is not enough that an operator dump their waste to be 

held liable under RCRA; that manure must also threaten to get into the drinking water supply at a 

level endangers public health. We believe that it is reasonable to expect drivers to obey all 

traffic laws when on the road, just as we believe it is reasonable to expect an industry to obey all 

environmental and public health laws when operating a business that could potentially cause 

serious threats to public health. 

B. Community Association for Restoration of the Environment v. Cow Palace, LLC 

My characterization of why this bill is unnecessary is consistent with the only court to 

interpret animal manure to be a solid waste under RCRA: that the law allowed citizen enforcement 

leading to a cleanup that government law enforcement never sought. 

Imagine you are one of the families that have lived in this community for generations, and 

now your sole source of household water has more than seven times the maximum limit for nitrate in 

10 
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28379.032

it. 16 And while nitrate is a nutrient found in manure needed by crops to grow, when it is in 

drinking water, it can cause "blue baby syndrome" in infants, a potentially fatal disorder that 

causes a type of asphyxiation. 17 Nitrate has also been linked to miscarriages and higher rates of 

birth defects, Type I diabetes in children when pregnant mothers consume it, and certain kinds 

of cancer. What makes nitrates even more dangerous is that you cannot sec it, smell it, or taste it. 

Boiling the water only increases the levels, even though boiling water is the common safety rule 

taught to parents when making their infants' bottles. This happened to dozens of households that 

lived by the mega-dairies in Yakima, and this is just one of many ways that manure can make 

people sick when it gets into their drinking water. 18 

And as a community member, you know that there is groundwater testing information going 

back more than a decade showing groundwater contamination around these sites, including 

contaminated well water at the local elementmy school. But as contamination increased, the dairy 

industry lobbied the state legislature to reduce the regulators charged with compliancc. 19 The state 

agencies, though they know of the pollution problem, refused to or could not take effective 

action to require changes to these dangerous and polluting practices. After years of state 

16 In fact, you do not have to imagine. Several letters from small farmers and families in these and other 

communities like theirs have been submitted as part of the record. More than anything I can say about this 

Discussion Draft, the weight of their stories, in their own words, about losing their only source of clean 

water and being ignored by state and federal regulators they seek out to help them fix the problem is a 

powerful testament to why this proposed bill should not progress. 

17 Nitrate contamination is also costly. A team of researchers led by the EPA, Attachment B, estimated in 

2008 that agricultural nitrate may cost the nation $157 billion per year. Nitrate's direct damage to 

drinking water supplies was estimated at $19 billion. 

18 Attachment C, Johns Hopkins Center for a Livable Future, Letter to Members of the Dunn County 

Livestock Operations Study Group (outlining public health risks from C;\FOs). The Center also 

submitted into the record a critical analysis of the public health impacts of Rep. Newhouse's bill. 

19 Leah Beth Ward, Hidden Water, Dirty Wells, Yakima Herald (July 30, 2009), www.yakimaherald.com/stories/200811 Oil 1 /hidden-wells-dirty-water; see also News 21 Report, Troubled Water, 

http://troubledwatcr.news21.com/ 

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28379.033

inaction, the EPA stepped in and did a two-year study that determined the CAFOs as the most 

likely source of the drinking water contamination, leading to an enforcement action under their 

emergency powers under the SDWA. That action had two serious shortcomings: first, it only 

provided water provisions for one mile from the facilities even though the EPA study showed 

impacts from much further away. Second, the nutrient management changes were vague, often 

voluntary, and were insufficient to stop future contamination of the aquifer. 20 

It was only at that point that the community, after decades of trying to clean up their dirty 

water, decided to bring a citizen enforcement action for violations ofRCRA. I was one of the 

attorneys representing them. The dairies made all the same arguments that are being made in 

support of this bill: that RCRA was never intended to apply to manure and that the EPA's 

consent decree under the SDW A was duplicative and addressed the problem. 

The court, after reviewing hundreds of pages of evidence and in a Ill-page written 

opinion, 21 determined that the CAFO violated RCRA. Specifically, the Court agreed with the 

industry that RCRA did not apply to fertilizer. The Court held that, according to the evidence and 

admissions made by the CAFO operator under oath, the way in which the CAFO was putting 

manure on the field was not fertilizer usc, but rather a discarded material because it was 

"untethered to the [nutrient management plan l and made without regard to the fertilization needs 

of their crops.'' Cmty. Ass'n for Restoration of the Env't. Inc. v. Cow Palace, LLC, 80 F. Supp. 

3d 1180, 1221 (E. D. Wash. 20 15). The com1 also held that the EPA's consent decree under the 

20 US EPA Region 10 Administrative Order on Consent In the Matter of Yakima Valley Dairies, Docket 

No. SDWA-10-2013-0080, 

www3.epa.gov/region1 0/pdf/sites/yakimagw/conscnt_ order_yakima_ valley_ dairies_ march2013.pdf 

21 Cmty. Ass'n for Restoration of the Env't, Inc. v. Cow Palace, LLC, 80 F. Supp. 3d 1180 (E.D. Wash. 

2015), 

http://www.centerforfoodsafety.org/liles/320--order-granting-in-part -msj-114 15 _78926.pdf 

12 
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28379.034

SDWA was not duplicative of the citizen enforcement action under RCRA because RCRA's 

provisions to ensure the safe treatment and disposal of waste was far broader than the limited 

reach of the EPA's emergency powers under the SDWA. Cmty. Ass'n for Restoration of the 

Env't, Inc. v. George & Margaret LLC, 954 F. Supp. 2d 1151, 1159-60 (E. D. Wash. 2013). 

Through that enforcement action, the citizens around the dairies were able to get broader 

and more effective relief for their harms than was possible under the EPA consent decree. 

Specifically, the citizens obtained bottled water delivery for households three miles downstream 

from the CAFOs rather than the more limited boundaries set by the EPA. The community was 

also able to get reasonable but meaningful changes to the CAFOs' waste management system, 

including liners for their storage lagoons, limiting manure applications on land to only what the 

crops actually need, and careful monitoring of the groundwater flow from the CAFOs. 

CONCLUSION 

The record is absolutely clear. RCRA as it stands already achieves the purported purpose 

of the so-called Farm Regulatory Certainty Act, and the bill merely stands to shield an entire 

industry from liability. Without the citizens' right to enforce the law, local communities cannot 

count on state agencies to effectively protect them from illegal, polluting, and dangerous manure 

contamination. Local citizens must have the ability to enforce this law because it is their only 

tool to protect their sole source of drinking water. State agencies have been reluctant to take 

action for violations of manure management, and federal agencies have not taken the measures 

necessary to fix the problem in rural communities who have dirty water. If RCRA was designed 

to help local communities to be safe, to protect their economies, and to stop public health threats, 

citizens must have the right and ability to protect themselves and enforce it without constraints 

that would render that right meaningless. 

13 
48 

[The attachments to Ms. Culpepper’s statement can be found at: 

https://docs.house.gov/meetings/if/if18/20171109/106603/hhrg115-if18-wstate-culpepperj-20171109.pdf.] 

Mr. SHIMKUS. The chair thanks the gentlelady. 

We will now turn to Mr. Lynn Utesch, founder of the Kewaunee 

Citizens Advocating Responsible Environmental Stewardship. 

You are recognized for 5 minutes. Thanks for coming. 

STATEMENT OF LYNN UTESCH 

Mr. UTESCH. Thank you for allowing me to speak today. 

I live in Kewaunee County, Wisconsin. I am a farmer. I started 

farming with my uncle on a dairy farm. I currently farm with my 

wife and my two youngest sons and raise beef on our 150 acres in 

Kewaunee County. 

Kewaunee County has 15 dairy CAFOs. The groundwater in my 

community has been tested and shows that 34 percent of the wells 

tested are contaminated with E.coli and/or nitrates. In the town of 

Lincoln, it has been tested and shown that over 50 percent of the 

wells tested are contaminated. 

USDA researchers have done extensive researching and found 

that there is salmonella, rotavirus, cryptosporidium, and other 

pathogens in our water. They have equated our water to that of a 

Third World country. Judge Jeffrey Bolt at a CAFO permit hearing 

said that water in the town of Lincoln is deplorable and that the 

State of Wisconsin has a massive regulatory failure. 

The citizens that live with this water are afraid to drink their 

water, brush their teeth, take a shower, and even afraid to wash 

their grandchildren’s scratches out with their water, because it 

may be so contaminated to make them sick. 

Kewaunee County has three major rivers: the Ahnapee, the East 

Twin, and the Kewaunee rivers. They were former Class 1 trout 

streams. They now are on the impaired waters list. Our organization, along with Marquette University, has been testing the water 

and the sediment in those streams and rivers, and they have found 

MRSA and multiple antibiotic resistant bacteria in our waters. 

Why do you think that? Why should we care about that? 

There was a young man that was visiting with his grandparents 

and was playing in one of those streams and had a cut on his knee. 

It wasn’t soon after that that it became infected and, unfortunately, 

he contracted MRSA. This young child was then sent to have part 

of his kneecap removed and holes drilled in his leg to drain out the 

MRSA. 

We live along Lake Michigan. Our beaches are filled with 

cladophora, which is an algae that grows because of excess nitrates 

and phosphorous. They were closed for 20 days in 2014. Our organization, along with several others, over 3 years ago petitioned the 

EPA under the Safe Drinking Water Act to invoke their emergency 

powers. We had DNR workgroups. And part of that, what came out 

of all of our work groups, was sent to the Governor’s office, yet gutted after lobbying by the dairy industry. 

In the State of Wisconsin there was a Legislative Audit Bureau 

report done and they found that over 94 percent of the time the 

Wisconsin DNR did not follow their own regulations. 

49 

The Farm Regulatory Certainty Act does not provide certainty. 

Today you have been told that this is going to hurt small farmers. 

The reality of this is that this is a polluter protection act. 

As a farmer, we need to know that we are doing things 

sustainably. Unfortunately, there are those that do not, and they 

generate so much waste and put it on so little acreage that it is 

having a negative impact on people’s groundwaters. As a small 

farmer, this act does not protect me. 

I am asking you, requesting of you, please help my community. 

We need the government to do its job. When they don’t, we need 

to be allowed, the citizens, to be able to do the enforcement for 

those agencies. 

You have heard earlier that farmers are the most regulated industries. Unfortunately, they are. But they are also the least enforced. Please do not allow this bill to go forward. 

Thank you. 

[The prepared statement of Mr. Utesch follows:] 

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CITIZEN ENFORCEMENT IS ESSENTIAL TO PROTECT COMMUNITIES AND 

AMERICA'S DRINKING WATER FROM AGRICULTURAL POLLUTION, WHEN 

GOVERNMENT FAILS TO PROTECT US 

Statement of Mr. Lynn Utesch, U.S. Navy Veteran, Owner of Guardians of the Field Farm 

LLC, and Co-Founder of Kewaunee Citizens Advocating Responsible Environmental 

Stewardship 

U.S. House Subcommittee on the Environment and Commerce 

November 7, 2017 

Summary 

As a dairyman and beef farmer, I am very familiar with the struggles farmers meet on a 

daily basis to make a living in today's food system. I am also familiar with the many federal and 

state and local laws and regulations that must be followed by agriculture, and the challenges 

farmers face to comply with these complex issues these laws address. I understand that some of 

these requirements have been passed over the years to ensure that bad practices do not endanger 

public health or the environment because, as every farmer well knows, manure and agricultural 

waste can cause serious pollution and public health threats if it is not properly managed. But 

these laws will not work unless citizens have the right to enforce them. 

For us in Kewaunee County, Wisconsin, brown water events arc not a question of"if', 

but a daily question of"when'' and "where next". For over 13 years now, our community has 

had at least one infant admitted to the ICU poisoned with E. Coli, entire families including the 

family dog becoming poisoned after manure applications, and longtime residents moving to the 

city just so they can have clean water for their children. 

My community has asked. over and over again, that state and federal agencies enforce 

laws designed to protect communities from the risks and pollution stemming from improperly 

managed agriculture; but over and over again, the governments have failed to protect us. They 
51 


28379.036

lack the resources and the political will to take this animal agricultural industry on, and so 

communities like mine in Kewaunee County are left to deal with the mess, repetitively exposed 

to bad management practices that poison and pollute, even when that means we lack safe 

drinking water. So The Farm Regulatory Certainty Act is not giving me any certainty. If 

anything, it leaves me less certain of our community, and rural America's, ability to live in our 

communities safely. 

This issue is close to my heart because I farm and live in Kewaunee County, which has 

some of the most contaminated drinking water in terms of nitrate and fecal bacteria in the state. 

A USDA researcher studying our water has said ours is the water of a Third World Country. Our 

county, and the town of Lincoln, are all on well water. In our county, cattle outnumber people 

five to one. This was not the case I 0 years ago before the dairies became "industrial" size 

operations. Now, our drinking water literally runs brown with manure. A local County 

Supervisor is on his second well and still gets brown water when manure is applied just before a 

rain or snowmelt; and two years ago an older couple had to evacuate their home on the 

Christmas Holiday because the application fields surrounding their home caused manure to enter 

their well water. The contamination has been making people and calves sick in our community 

for years, and the majority of the problem comes from industrial animal agricultural operations. 

Approximately 34% of the wells tested in Kewaunee County are contaminated with E. Coli, 

nitrates, or both, and other contaminants. USDA has also recently found pathogenic E. Coli, 

salmonella, rota virus, campylobacter, cryptosporidium, and giardia in our wells. When USDA 

found salmonella in the water near two schools, WDNR came out and tested only for E. Coli --

the wrong contaminant. Many community members no longer report brown water or 

contamination events to WDNR because the state provides no help. I worry that the cfTcct of the 

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28379.037

Farm Regulatory Certainty Act would allow agencies to sit on their hands, and for my 

community, and communities like ours, to have no recourse when we need it most. 

This is about treating our neighbors respectfully and keeping those waters, that we all 

need, clean. As farmers, we do everything we can to make sure that we do not contribute to the 

problems that can be caused when waste is not well-managed. But there are folks out there who 

are more motivated by profit than concerned with people, and usc bad practices. Many of these 

bad practices are not allowed by the law, but the already limited enforcement actions from the 

government means they get away with it, and that causes a real loss to rural American 

communities like mine. The Farm Regulatory Certainty Act would allow governments to do 

even less than they currently do, and take away our last avenue of legal recourse. Anyone who 

breaks the rules and hurts an entire community--especially children--should be held accountable 

for their actions. This can be painful because no one in a rural community wants to take their 

neighbor to court. We go to church together, and our kids go to school together, and we depend 

on one another in a way that is like nowhere else. But if someone pollutes the water our entire 

community relics on, and they refuse to change, and the government refuses to adequately fix the 

problem, this bill would destroy our last resott to protect our own drinking water. 

Our Story of the Problem 

I chose a life of farming. As a child, my extended family was in the dairy business. 

began dairy farming in high school with my uncle until I served this great country in the Navy 

from 1981-1985, where I worked on cryptographic equipment and on submarines. As soon as I 

got home, I started working to save up money for my own farm. My wife and I bought our first 

farm on Washington Island in Door County, Wisconsin in 1993, and moved to a larger farm in 

Kewaunee County in 2004. We started with just three animals and grew into 85 head of 

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28379.038

purebred Shorthorn beef on 150 acres that makes up Guardians of the Field Farm. 1 We raised 

our five children on our farm. Farming is not just a career choice, it is a way of life, and we have 

a passion for what we do. We love the land, this life, and our animals, which is why I am so 

concerned about the proposed bill by Rep. Dan Newhouse. Because, as agriculture turns into 

agribusiness in this County, the water in my county has become a danger to the people and the 

calves here. 

At least 90 percent of nitrate inputs into groundwater come from artificial fertilizers and 

manure from farming operations, according to a WDNR Groundwater Coordinating Council 

2015 report to the Legislature. A dairy farm with 2,500 cows produces as much waste as a city 

with around 411,000 residents. In Kewaunee County. there are 97,000 cows, heifers and calves, 

of which 45,500 are dairy cows. We have 15 mega-sized dairy farms in our county alone and 

concentrated animal feeding operations in our state are up by 400 percent from 2000. That 

means that the dairy cows alone produce as much waste as 7.48 million people, or more than the 

entire states Tennessee and West Virginia combined, only in the space of Fort Irwin. This is 

complicated in my region because our aquifer, which supplies all of our drinking water, moves 

through porous rock called karst, which allows any moisture from the surface, including liquid 

manure, to move quickly through the soil and into the aquifer, where it contaminates nearby 

wells. It happens so frequently it is almost predictable now. If one of the industrial dairy 

operations in our county applies manure before heavy rains or snowmelt, it washes directly into 

our community's wells and comes out of the tap brown and smelling like manure. I attached 

some pictures of my neighbor's water for you to see for yourself. 2 

1 See attached Pictures 1 and 2 of the Utesch farm. 2 See attached Pictures 3 and 4 of brown water in Kewaunee County. 

4 
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28379.039

In Kewaunee County, we are all very familiar with the problems associated with animal 

manure in our water. Our county's three major rivers- the Ahnapee, East Twin, and Kewaunee 

-all violate state standards for phosphorus pollution and are on the EPA's impaired waters 

listing. In Wisconsin, one in five wells in heavily agricultural areas is now too polluted with 

nitrate for safe drinking, according to our Department of Agriculture. Soon after we moved to 

Kewaunee County, one of our community member's six-month old daughter was rushed to 

intensive care due toe-coli poisoning from their homestead's well water. One of our community 

members suffered chronic diarrhea for years before he knew he should get his well tested; once 

he started doing that, E. Coli showed up regularly in his water. Another community member is 

surrounded by manure fields; his first wife died of cancer and his second wife is now sick with 

the same cancer. His well has tested positive for salmonella and other contaminants. After the 

USDA studied wells in our county in the last few years, the parasite Crypto was found in 12 

percent of the sampled wells, and bovine-specific rotavirus A was in 14 percent. The 

concentration of bovine-specific rotavirus A was extremely high, as compared to the 

concentration of human-specific ones. Other pathogens USDA found included E. coli, 

Salmonella and rotavirus C. We were told that the pathogens in the wells could lead to severe or 

life-threatening illness. Of the 12,200 people in my county using private wells, the scientists 

who did the study estimated that around 140 people and l, 700 calves a year are infected with 

Cryptosporidiosis from contaminated well water. 

We have lost local businesses because of the polluted water. Our beautiful Lake 

Michigan beaches now stink and the water is filled with Cladaphora algae, caused by nutrient 

runoff. In2014, our public beaches in Algoma were closed 20 of the 90 open days because of 

the algae and E. Coli. A local cafe and outdoor garden on Lake Michigan closed in 2017 

5 
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28379.040

because of water quality issues, and the stench from their lakeshore frontage. Also, our 

community's home and property values are plummeting. A home with 900' oflakefront recently 

sold at a major loss, and I have heard stories of offers on homes and property for only 50% of 

their value. Families that have owned property in our community for decades, and that have 

been farm families, are now moving away to the city in order to avoid the problems here. 

When we lose our water, many of us have no recourse, and no way to get clean water. A 

new well costs about $10,000- $15,000. Household treatment systems in our area run about 

$17,000 per home, and even a single faucet system costing $500 is too much for some of us. 

Several community members came together, and it took us 3 years, but we finally got a clean 

public water kiosk installed at the local high school. Now people in the community can access 

clean water; we have about 80-90 families that usc it now. The kiosk remains the only 

community source of clean water for anyone with a contaminated well on an ongoing basis. But, 

our community is proud, and people do not want others knowing their water is dirty, so 

unfortunately a lot of people are ashamed to be seen using it. One of the local dairies tried to start 

a clean water program. But can you imagine going to a polluter and having to beg for clean 

water? Or allowing the polluter into your home, and giving them information about your family, 

just to access clean water? This is something most people in Kewaunee County will not do. 

Many people in the community work for the dairies as farm hands, crop haulers, combine 

drivers. These people arc hostage to the situation. How can they speak out against the entity that 

provides their paycheck? 

Witnessing the degradation of the water quality of local rivers and streams-and the high 

contamination rate of tested wells in Kewaunee County spurred my family into advocacy. In 

2011, my wife and I, along with fellow residents in Kewaunee, established Kewaunee Citizens 

6 
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28379.041

Advocating Responsible Environmental Stewardship for concerned residents to have a voice in 

the local and statewide debate over the need for greater water protection and sustainable fanning. 

It allows us to stand together and to try to hold the WDNR accmmtable when they refuse to do 

enough to hold the dairies accountable, or to clean up om drinking water. But even though 

concemed county residents can find suppoli through the citizen action group, taking on the risks 

and costs of a lawsuit against the state govemment over pollution problems demands 

significantly more than most people are willing to take on. It is vety difficult to spend your time, 

money and energy over a lawsuit. This is a very rural collllllunity. We do not want to be bad 

neighbors. We prefer to work with our collllllunity. 

Our collllllnnity has done a Jot to try and stop the pollution in our water.l In 2015, we 

voted ovetwhehningly to suppoli an ordinance implementing commonsense manure 

management measures that would have the effect of protecting our water. These included 

restricting manure spreading in winter and early spring on fields with 20 feet or less of soil, 

which was the first tin1e a Wisconsin county took such action. A local town recently passed a 

one-year moratoritml on new operations coming in. And we are working on banning manure 

spray irrigation- large, tall sprinklers that fu·e manure across a field. But that has not been 

nearly enough to make dent in the problem. We need state agencies to take strong action to 

improve our conditions, but while they take some action, they will not do enough to stop the 

problem or require cleanup. In 2017, the WDNR quietly annotmced a well program, but the 

income requirements and testing requirements and procedural hurdles to qualify for the program 

make it a joke for the community to patiicipate. USDA is conducting a study of the water, but 

the study only provides a snapshot; it is not tracing the pollution back to its somce. My biggest 

concem is that under this bill, citizen enforcement would be stopped where there is a threat to 

3 Attachment 5 (selected at1icles regarding Kewaunee Cmmty pmblems and effolis. 

7 
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28379.042

public health simply because an agency is taking some kind of action related to the facility's 

manure management, even if that action does not fix our problem or makes even less of an 

impact than we could do on our own. lfthis bill gets passed, a broader range of actions that an 

agency has taken will shut the courthouse doors in my community's face even though our water 

is still contaminated and the agency's actions do not stop the pollution or cleanup the mess. 

Let me give you an example of some of the ways we have tried to work with the industry 

and the government to fix the problem. In 2014 a number of groups, including Kewaunee 

CARES, petitioned the EPA to simply investigate groundwater contamination in Kewaunee 

County, the maximum EPA \Vas able to do under the Safe Drinking Water Act, but EPA took no 

meaningful action. EPA pushed the Wisconsin DNR to respond. and WDNR started workgroups 

to look at some of our issues. The workgroups were very inclusive; they were made up of dairy 

operation owners, manure haulers, agronomists, state officials, federal EPA officials, 

environmental advocates, local community member representatives, and town government 

officials. We worked together for 2 years and presented two proposals to change state 

regulations to try and fix the problem, all the while knowing that the water in our wells could 

hurt our families. Those proposals were consensus items, including industry agreement. But 

when the proposals got to the Governor, he refused to enact the full proposal. The parts of the 

proposal that did come through have never been implemented by the state. So the problemthat is our poisoned water-- was, and remains, unresolved. To date, not a drop of clean water has 

been provided despite all that work. 

Now, we work with our county and township governments to try to make things better. 

Just last week, a local tax assessor recognized some devaluation for the homes located next to 

operations. Earlier this month, a town passed a one-year moratorium on new operations. But 

8 
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28379.043

those efforts have small impacts and may be short-lived. We are still fighting every day to get the 

necessary information to participate in public process on permits, and to get public health and 

environmental information. Sometimes information is provided at the very last minute, 

compromising our ability to use it effectively and to fully participate in public proceedings. 

While you can't make people test their water- and some people don't want to know what's in 

their drinking water because bad results can affect their property values -the cause for alarm 

here is very real. It is going to take action from the EPA to keep manure spreading, and the 

WDNR, in check. But we cannot get EPA or WDNR to do what needs to be done to put the 

health of people first. If we as a nation are leaving it up to the individual citizen to figure out if 

their wells are contaminated, and to bear the cost of obtaining clean water, then it is a shameful 

public policy to simultaneously take away our rights as citizens to bring legal action to get our 

clean water back. 

9 
59 

[The attachments to Mr. Utesch’s statement can be found at: 

https://docs.house.gov/meetings/if/if18/20171109/106603/hhrg115-if18-wstate-uteschl-20171109.pdf.] 

Mr. SHIMKUS. Thank you very much. We appreciate your testimony. 

This is what we are going to do. To my colleagues, the votes have 

been called on the floor. I wanted to expedite it so everyone could 

be here for the testimony. A couple of us will be coming back to 

engage in questions. 

But at least we were able to get all your statements in the record 

with both of my colleagues here. 

So with that, I am going to recess the committee until after 

votes, and that may be about 20, 30 minutes. 

[Recess.] 

Mr. SHIMKUS. We will call the hearing back to order. 

First of all, thank you for your patience. 

And I know that some of you have been told to expect, since a 

lot of members are going to the airport, it is a fly-out day, not a 

lot to be here. I am sure there will be interest in submitting questions for the record. And if you get those and can get them back 

to us, I know there is a timeframe that we would like it in, but 

expeditiously, and we will include that as part of the record of the 

hearing. 

So let me start by recognizing myself for 5 minutes and my question first to Ms. Romig. 

Your written testimony explains that Resource Conservation and 

Recovery Act, RCRA, currently bars citizen suits if EPA is diligently prosecuting someone who is in violation of RCRA or 

CERCLA, and that because agricultural operations are not regulated under RCRA, allowing citizen suits against agricultural operations under RCRA would result in the duplication of efforts and 

excessive litigation that Congress was trying to avoid. 

Doesn’t the discussion draft impose the same restriction on citizen suits in order to allow EPA or the state to diligently prosecute 

the laws that do apply? 

Ms. ROMIG. Absolutely. The discussion draft has absolutely no 

impact on what the agencies can or can’t do. It also doesn’t have 

the impacts that you heard earlier today on the citizens. It doesn’t 

prevent them from all lawsuits, it doesn’t prevent them from nuisance actions, trespass actions, property damage actions. The only 

thing that this discussion draft does is prevent them from bringing 

a RCRA action if they are already under an enforcement action 

from an agency under another statute. 

And while we heard that citizen suits are the last resort, they 

aren’t. They are usually the first resort, because they are one of the 

statutes that allow fee shifting where the winning citizens get to 

ask the farmers to pay for their lawsuits. So they will often resort 

to citizen suits well before they resort to any other type of lawsuits 

that are out there available by common law and by state law. 

Mr. SHIMKUS. Thank you very much. 

And just for full disclosure, a lot of people who follow us know 

our districts and how they are. So I have more pigs than people 

in my district. We have large operations. I am very proud of that, 

because it is jobs, and production agriculture feeds the world. And 

60 

you heard that from some of my colleagues in the opening statements. 

But there is a balance. And I love hearings. I love the Congress. 

And this is our chance to ask questions and get stuff back, because 

there is truth somewhere in here and we are trying to figure out 

where that is. 

Mr. Wood, and this is my written question here, and I represent 

a district with significant agriculture presence. I kind of said that. 

Can you explain why duplicative litigation is so detrimental to family farms? 

Mr. WOOD. Sure. Thank you, Mr. Chair. 

In 2013, the farms in the Yakima Valley entered into the consent 

order with EPA. In 2013, they were sued under RCRA on the very 

same issues that were addressed. They made a decision to work cooperatively with EPA. They dealt with lagoon testing, lagoon liners, 

soil testing, et cetera, et cetera. And all of those things under the 

Safe Drinking Water Act were considerations for doing the right 

thing. They were financial considerations. And then they turned 

around and were sued under the citizen suit anyway. 

So the question now a lot of farmers are asking is: If I am facing 

the same situation, do I work with the agency and get sued or do 

I wait and see if I get sued? This will bring more certainty for 

working with the agencies. 

Mr. SHIMKUS. The EPA region, is that Region 10? 

Mr. WOOD. Region 10. 

Mr. SHIMKUS. And where is the headquarters at of Region 10? 

Mr. WOOD. That is in Seattle. 

Mr. SHIMKUS. OK. Because I am in Region 5, and I know some 

regions are viewed by people who are on the business side as really 

tough. 

Mr. WOOD. That would be Region 10. 

Mr. SHIMKUS. I would put Region 5 up to the task also of being 

a very challenging one for folks. And I think that probably Wisconsin, I believe, is up in that region. Illinois, I know that for sure. 

Back to Mr. Wood. How would the discussion draft sponsored by 

Mr. Newhouse help protect our farmers and other agricultural operations? 

Mr. WOOD. Well, it gives them the protection. If they are under 

enforcement, whether it be a consent order or a penalty and any 

other oversights from a Federal or state agency, then they have 

that certainty. 

These farms, these four farms were told that they had that certainty when they were working with EPA on the consent order: 

Enter into this rigorous agreement with us, we will provide the 

oversight, and the matters are resolved. That turned out to not be 

the case. They were dealing with them under the Safe Drinking 

Water Act, the very same issues came up with the RCRA lawsuit. 

So they got sued over the same issues they were working with 

the agency to resolve. And so the certainty is not there. I have 

farmers telling me that if they are faced with a lawsuit today that 

they will just fold because of what happened. And these are large 

farms, these are small farms. They are saying that there is no certainty anymore. 

Mr. SHIMKUS. And my time has expired. 

61 

I also have the largest wheat district, corn and beans, and the 

largest dairy counties in Clinton County, Illinois. So it’s not near 

the size of some of the big areas, but we do have that. 

So with that, I would like to yield to the ranking member of the 

subcommittee, Mr. Tonko, for 5 minutes. 

Mr. TONKO. Thank you, Mr. Chair. 

Sometimes we hear about citizen suits as a sort of bogeyman, but 

these suits can be valuable to actually enforcing the requirements 

that we passed into law and empowering ordinary people to protect 

themselves and their communities. 

So, Mr. Utesch, I want to thank you for your testimony. This 

subcommittee has spent a lot of time thinking about how to ensure 

Americans have access to safe drinking water, and it is important 

to hear the perspective of rural communities that primarily rely on 

private wells. It really sounds like you have taken a lot of steps to 

work with farms, as well as the local and state governments, to try 

to address the given problem. 

You mentioned a number of suits that have come about. Is that 

in the past as a situation or—— 

Mr. UTESCH. We have petitioned the EPA under the Safe Drinking Water Act, like I said, over 3 years ago. We also have petitioned the EPA, we have petitioned for corrective action, and, unfortunately, we have really seen minimal amount of action by the 

EPA to actually address those issues. 

To put it in perspective, our community petitioned the EPA before Flint, Michigan, did and we have yet to see a response from 

them officially as to what they are going to go do. We have received 

no drinking water for our citizens from any government entity, 

other than our local high school working with citizens that provides 

clean water on an ongoing basis for the citizens in our community. 

So even at the state level, we have done work with the Wisconsin 

Department of Natural Resources, and every time that we try to 

get some enactment to make things better for our citizens it is constantly being pushed back against by lobbying groups. So that is 

part of our issue, is that we are not getting the response from the 

government regulatory agencies to actually fix these issues. 

Mr. TONKO. And can you give a few examples of what you have 

been doing to try to protect your community? 

Mr. UTESCH. At the local level, mainly at the town and county 

level, we have towns in our community, the town of Lincoln has actually put in place a moratorium to not allow any further expansions of the CAFOs in their community. They currently have three. 

So 3 out of the 15 that are in Kewaunee County, that will affect 

them. 

We have also put in place at the county level, we have enacted 

a winter spreading ordinance that makes it so that from March 

until April 15th that there is no application of liquid manure on 

20 feet or less to bedrock. 

The one thing that has been identified through all the research 

in our community is the spring runoff, the snowmelt, is one of the 

biggest issues for contaminating our groundwater, and that was 

something that was passed in our county. It had to go to a referendum to all the towns and it was passed by every single town 

in our county. 

62 

Mr. TONKO. Do you get paid to do this work? 

Mr. UTESCH. No, I do not. This is all voluntary. 

Mr. TONKO. What would it mean for a community that is dealing 

with problems like yours if we prohibited citizen enforcement of our 

waste laws? 

Mr. UTESCH. One, I believe that we would not get our water 

fixed. While our community is not looking at pursuing this at this 

point in time, we want to work with those agencies, but I think 

without having this available, it makes it so that even the state 

and Federal agencies have to do the work. 

So without that threat, I guess would be a good way to put it, 

of citizens taking this into their own hands, it doesn’t make it so 

that the state and Federal agencies actually do do the work that 

they should be doing. 

Mr. TONKO. And, Ms. Culpepper, how have you worked with communities trying to protect themselves from manure pollution? 

Ms. CULPEPPER. Thank you for that question. 

I work with communities nationwide. In fact, I also work with 

Lynn’s community. And I have seen that these communities, despite what we heard earlier, that litigation is the absolute last 

thing that they want to do. 

In rural communities, their children go to school together, they 

go to church together, they live next to each other. They don’t have 

other people to depend on. And the last thing that they want to do 

is litigation. 

But it is also incredibly frustrating for them when for decades 

they work with state and Federal agencies trying to get a solution 

to their problem and they don’t. 

In the Yakima lawsuits, when EPA stepped in under the Safe 

Drinking Water Act, the consent decree didn’t fix their problem. 

And that was why, after two decades of trying to fix it, that they 

invited us to bring that lawsuit. And that lawsuit brought clean 

drinking water to a 3-mile radius around the dairies, dozens of 

households that had water seven times above the legal limit for nitrates suddenly getting access clean to water. 

Allowing these citizens the chance to stand up for themselves 

and not rely on a government that is not showing up for them, or 

that is falling down on the job, or showing up with actions that 

don’t fully fix the problem, is critical, particularly given the public 

health purpose of RCRA. 

Mr. TONKO. Mr. Chair, I yield back. 

Mr. SHIMKUS. The gentleman yields back. 

The chair recognizes the gentleman from Georgia, Mr. Carter, for 

5 minutes. 

Mr. CARTER. Thank you, Mr. Chairman. 

And thank all of you for being here. Obviously, this is something 

that is very important. 

Mr. Wood, I want to start with you. It is pretty clear, at least 

to me, that congressional intent and that the EPA regulations, that 

manure was never intended to fall under this category within 

RCRA. And I am just wondering, prior to this Washington ruling, 

what were the regulatory requirements that dairy farmers had to 

follow for manure under the law? 

Mr. WOOD. Thank you, Congressman. 

63 

The language in the Code of Federal Regulations is pretty clear, 

that RCRA is not to apply to livestock, manure, or to crop residues 

returned as fertilizer or soil conditioners. 

I want to very quickly just mention some of the areas dealt with 

in the 2013 consent order. Lagoon testing and liners, soil testing, 

groundwater monitoring wells, detailed reports, composting stalls, 

testing pipes, and more were all dealt with in that consent order 

in 2013. 

Was the citizen lawsuit the last resort? Absolutely not. It was 

filed in 2013 against the dairies. So arguing that it didn’t resolve 

the problem I think is not supported by the timeline on this. 

The dairy Nutrient Management Act governs our dairies, EPA, 

Department of Ecology, and more. 

Mr. CARTER. In that lawsuit, as I understand it, the judge found 

that the farms’ manure storage facilities weren’t constructed to 

USDA’s Natural Resource Conservation Service standards. Can you 

explain those standards to me? I am not really familiar with those. 

What does that mean? 

Mr. WOOD. The NRCS standards deal with the proximity to 

groundwater, the shape, the size, the permeability. There was no 

record of compliance with NRCS standards, not because they didn’t 

comply, but because they didn’t receive NRCS funding. 

And so some farms that build the storage lagoons on their own 

will not go to NRCS for matching funds. And so NRCS did not have 

a record of that. 

Mr. CARTER. OK. 

Ms. Romig, this case, this Washington case really opened up new 

legal pathways against farmers, and under a bill, as we said earlier, that was never intended for manure to be included. Have 

these citizen lawsuits, have they changed the way environmental 

regulations are enforced, in your opinion? 

Ms. ROMIG. In my opinion, they are trying to enforce existing 

regulations. So they are not claiming that the regulations aren’t 

sufficient. They are claiming that the agencies aren’t doing so. 

And in this lawsuit, I would like to point out, in Washington, 

that whether or not the district courts have jurisdiction is dependent upon whether or not something has been prosecuted. But in the 

Washington case, you had 111 pages and multiple experts just to 

determine whether it was manure regulated by RCRA or not. And 

that is not what is supposed to happen in the Federal courts. You 

are not supposed to have to have all of these experts just to determine whether the court should even act. 

Mr. CARTER. OK. Then given this case may have been a case 

that—a situation, an example of where the citizen filing a case, filing a lawsuit was not necessary, and I will go ahead and say 

abused, have you seen cases where it was useful? 

Ms. ROMIG. Yes. In fact, just even the process of starting a citizen suit is useful. You have to file notice with the agency that you 

think there is a problem, and that allows the agency to realize 

there is a problem and to step in. The notice is also useful because 

if you are the regulated entity, it gives you an opportunity to fix 

what they are complaining about before you have the lawsuit. 

So the process is useful, but I think it can be pushed too far. And 

our courts have consistently held that when an agency is diligently 

64 

prosecuting, that they should be given the first crack at this. And 

then the regulated entities should receive comfort, if they are working with the agency, that they won’t be subject to further litigation. 

Mr. CARTER. So you have seen cases of abuse. You have seen 

cases also where it can be useful. 

Ms. ROMIG. Absolutely. I have used them in cases to be useful. 

Mr. CARTER. OK. Point well taken. 

OK, Mr. Chairman, I yield back. Thank you. 

Thank you all. 

Mr. SHIMKUS. The gentleman yields back his time. 

If it is OK with you all, it is highly irregular for us on a fly-out 

day to say we are going to go with one more round of questions. 

That means everybody gets 5 more minutes. And we would like to 

do that, if that is OK with you all, because this is, obviously, great 

testimony, both sides. We appreciate it and we understand the 

emotion of that. 

So I think we just want to drill down a little bit more. And you 

have the chairman and the ranking member. And so let me begin. 

So I want to go to Ms. Culpepper. 

So here is the challenge that we have. We fight against the EPA 

all the time, and usually we Republicans don’t always say nice 

things about them because we think they are very aggressive. They 

are so aggressive that they can close down businesses, they create 

economic harm, and all this stuff. And especially with the last administration, we were really tough on them. So it is hard for us to 

wrap our arms around the EPA not being vigilant. That is a hard 

bar for us to cross over. 

So then we have this consent decree that we think—I am going 

to read some of these provisions—that we think is a pretty tough 

document. And then I think the issue is, when the parties agree 

to this, their stake in their livelihood and their faith of, ‘‘OK, we 

have got an agreement, we are going to comply with this agreement,’’ and then the citizen suit is just another sledgehammer that 

has, as Mr. Wood said, and I don’t have any reason to doubt him, 

that one of the operations went bankrupt or closed in this process. 

So in the consent decree EPA had directed the dairies under the 

order to provide clean drinking water to all users in a 1-mile-down 

gradient. Is that true? 

Ms. CULPEPPER. Yes, that is true. 

Mr. SHIMKUS. OK. 

Another part of the consent decree was that EPA instructed the 

dairies to install an extensive series of groundwater monitoring 

wells. Was that your understanding of that consent decree? 

Ms. CULPEPPER. Yes. 

Mr. SHIMKUS. EPA also required that dairies, told them to address the issues with manure lagoons, including lining the lagoons. 

We have had a lot of discussions about lining in this committee. Is 

that part of that consent decree? 

Ms. CULPEPPER. My understanding is that they were to assess 

their lagoons and that if there were certain problems then they 

would need to line them. 

Mr. SHIMKUS. OK. 

The other part was the administration order required for dairies 

to follow procedures dictated by a professional agronomist to 

65 

achieve a specific nitrate level in the soil as part of the consent decree? 

Ms. CULPEPPER. My understanding is that they were encouraged 

to take certain conservation measures, but that those measures 

were not mandatory to a level that would stop contamination. 

Mr. SHIMKUS. OK. And that is why we have the hearings. I believe this, but I also have no reason to doubt your analysis of that. 

And your written testimony states that in this case the state 

agency had not taken action and that EPA had not taken enough 

action to solve the problem. The way the citizen suit provisions 

work is that citizens are only allowed to step in when the agency 

has not done anything. You do not get to step in because you disagree with what the agency has done. Is that your understanding? 

Ms. CULPEPPER. Yes, certainly. 

Mr. SHIMKUS. So things were done, I guess that is the issue. 

Ms. CULPEPPER. If I may respond. 

Mr. SHIMKUS. Sure, of course. 

Ms. CULPEPPER. Sure. Things were down under the Safe Drinking Water Act. And I think we can all agree here that mismanaged 

manure can have a multitude of different problems, right? One of 

them can be addressed by the Safe Drinking Water Act. But the 

Resource Conservation and Recovery Act, RCRA, it addresses a 

broader set of issues. 

So the way that you handle your waste, the way that you dispose 

of your waste, the way that you store your waste, those are things 

that are handled only under RCRA. But moreover, it doesn’t apply 

to private well users. 

And so one of things that was a concern is that that 1-mile radius didn’t reach all the people who had wells above the limits, 

right? And so when they brought action, we were able to get them 

that water. 

And the other thing is that we were able to say: No, you have 

to line those lagoons, and you do have to limit, it is not voluntary, 

it is not assessment, you have to store, process and dispose of your 

waste in accordance with RCRA, which is different from the Safe 

Drinking Water Act. 

Mr. SHIMKUS. OK. Thank you very much. 

I only have 9 seconds left, so I will yield back my time and turn 

to Mr. Tonko for 5 minutes. 

Mr. TONKO. Thank you. 

Ms. Culpepper, according to EPA’s statement for the record, EPA 

believes that EPA and State actions against an agricultural operation under other statutory authorities, not just RCRA or 

CERCLA, could bar the types of citizen suits affected by this bill. 

That means RCRA citizen suits would be prohibited if there is any 

pending action against an agricultural operation, even if it has no 

relationship to the RCRA violation. 

Do you agree with EPA’s reading of that language? 

[The information appears at the conclusion of the hearing.] 

Ms. CULPEPPER. Yes. Thank you for that question, because that 

really is essentially the problem, that the drafting of this bill creates a giant loophole in the citizen enforcement provision. Literally 

any kind of enforcement action or compliance action would prevent 

people protecting their drinking water. 

66 

So it could be they don’t report where they shipped their manure 

last September and they are asking them to report that and fix 

that problem with their permit and suddenly you can’t protect your 

drinking water. That is incredibly too broad to keep to the public 

health risk that RCRA was trying to prevent. 

Mr. TONKO. Thank you. And with the Cow Palace case, did the 

community receive any money for bringing the suit? 

Ms. CULPEPPER. Absolutely not. The only thing they did with 

that lawsuit was fix the problem. 

Mr. TONKO. And in terms of what the community got out of it, 

it was just that, or was there any other activity that or resource 

that was provided them? 

Ms. CULPEPPER. They got clean drinking water and they got the 

assurance that the future aquifer is not going to be contaminated 

anymore. 

Mr. TONKO. So just to be clear, a citizen suit can be an expensive 

undertaking. Since no monetary damages are available, people can 

only get relief from the problem. There is not a financial incentive 

to bring these types of suits, unless the problem is serious and 

there are no other options available. Is that representative of the 

experiences you have had? 

Ms. CULPEPPER. Yes. As one of the lawyers who brought the action, I can say that these lawsuits are incredibly resource intensive, 

both in terms of time, in paying the experts to do this work, to 

show that the public health crisis is actually caused by the people 

that we are suing, right? 

But also, as you said, there is no financial incentive. So the only 

time you are going to bring these actions is, A, when there is a 

public health crisis and there are people like me who are out there 

dedicated to stopping these public health crises; and B, when it is 

so bad and the facility is so egregious that going after that facility, 

you know it is going to fix the problem. Otherwise people are not 

going to put millions of dollars and countless hours into trying to 

help a community for something that isn’t going to fix it. 

Mr. TONKO. So you have been involved in a number of these public health crises. What would it have meant for the communities 

you worked with if they had been blocked from going to court? 

Ms. CULPEPPER. Well, I want to be clear that there has only been 

one of these lawsuits, and that is because it is only brought in the 

most egregious of circumstances. 

So RCRA lawsuits against agricultural operations is a rare thing, 

right? Most—and I think that you would agree with this—most 

farmers are doing it right. And therefore RCRA is not going to 

apply to them. It is never going to cover a farmer fertilizing his 

crops. The only time that this is going to apply is when they are 

dumping it in your water supply or dumping it in a way that is 

making you unhealthy. 

So for these communities, this truly is a law of last resort. It is 

when the Safe Drinking Water Act didn’t work. It is when the 

Clean Water Act didn’t work. It is when they have tried so hard 

to work with their state and Federal partners to fix the problem 

and there is nothing left to them. 

I mentioned earlier that people in rural areas do not want to sue 

one another. It has to be so bad that they are willing to go those 

67 

lengths. And to take that away from them is literally taking their 

last tool away to protect their own private well water, which I 

think we all know millions of rural Americans rely on private well 

water. 

Mr. TONKO. Thank you very much, all of you, as witnesses and 

for your responses. 

And with that, Mr. Chair, I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. It sounds like 

we have a tough one here, Mr. Tonko. We are used to them, right? 

Mr. TONKO. Yes, we are. 

Mr. SHIMKUS. So before I adjourn, I need to ask unanimous consent that these letters be submitted for the record. There is a list 

of 11 of them. 

Do I have to read them all or they are submitted here? Is that 

good enough? All right. 

So without objection, so ordered. 

[The information appears at the conclusion of the hearing.] 

Mr. SHIMKUS. We want to thank you for coming. And we apologize for fly-out day. You never know, we could be here until 2, we 

could be out at 10. 

I want to thank my colleagues in the minority because they really helped us expedite the process where most members, at least, 

got a chance to hear your opening statements and then allowing for 

a second round so we could drill down a little bit. 

So with that, thank you for coming and stay tuned. And I adjourn the hearing. 

[Whereupon, at 11:52 a.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

PREPARED STATEMENT OF HON. FRANK PALLONE, JR. 

Mr. Chairman, I strongly oppose the bill we are considering today. It would undermine environmental protection, protect polluters, and block citizens’ access to the 

courts. I have no doubt that it would harm public health if adopted. 

The bill is also completely unnecessary. We are likely to hear claims today that 

farmers are facing regulatory uncertainty, or overly burdensome regulations. And 

we may hear other claims that an overzealous court applied the requirements of the 

Resource Conservation and Recovery Act, or RCRA, beyond what Congress ever intended. These claims are simply not true. Farmers already enjoy a clear exemption 

from the requirements of RCRA, so long as they are acting appropriately. Manure 

that is applied as fertilizer is not waste, and is not covered by waste laws. However, 

when manure is dumped on land in amounts far beyond what the land can absorb, 

that is absolutely waste, and is exactly the type of dangerous disposal that RCRA 

was intended to prevent. 

This bill responds to a specific RCRA case in Washington State concerning a concentrated animal feeding operation that did not act appropriately. They did not use 

their manure as fertilizer. Instead, they stored it in large, unlined lagoons, and 

dumped it on their fields in vast quantities. That dumping polluted groundwater 

and endangered public health. Why would we consider legislation that would reward 

these polluters? 

Well, that is exactly what this bill does—it blocks citizen enforcement of our waste 

laws to reward polluters. This bill is among the last things this Committee should 

be considering. We could have used this hearing slot to conduct oversight of the Environmental Protection Agency’s implementation of the Lautenberg Toxic Substances Control Act reform law we passed last Congress. We could have used it to 

look at EPA Administrator Scott Pruitt’s questionable travel, questionable lobbying 

activities, or questionable use of Agency resources. We could have used it to look 

at the pressing issue of climate change and the implementation of the Paris Agreement by every country on earth other than the United States. 

68 

Instead, we are here today to discuss a bad bill that would undermine environmental protection and harm public health as a handout to polluters. It is dangerous, 

misguided, and, frankly, poorly drafted. The language is shockingly broad, and 

would block citizen suits anytime an agricultural operation is engaged in an administrative proceeding. That would be true even if the administrative proceeding is 

completely unrelated to the dangerous condition the citizens are trying to address. 

I sincerely hope this is merely a drafting error, and something the sponsors of the 

legislation will want to correct. 

But even if that language is fixed, I will continue to strongly oppose this bill. We 

have a responsibility on this Committee to protect the victims of pollution, not the 

polluters. I yield back. 

69 


28379.044

U.S. Environmental Protection Agency 

Statement for the Record 

Committee on Energy and Commerce 

Subcommittee on Environment 

United States Honse of Representatives 

November 9, 2017 

Farm Regulatory Certainty Act 

Although the Administration does not have an official position on the Farm Regulatory Certainty 

Act. the EPA is providing the following summary of the bill, and background on the 

environmental law that it would amend, to assist the committee in considering this legislation. 

The stated intent of the bill is to amend the Solid Waste Disposal Act (as amended by the 

Resource Conservation and Recovery Act, known as RCRA) to clarify the citizen suit provisions 

with respect to the use of manure or crop residue as a fertilizer or soil conditioner at an 

agricultural operation. 

RCRA contains two different citizen suit provisions. Section 7002(a)(1 )(A) provides for citizen 

suits to address alleged violations of RCRA requirements, including regulations, permits and 

orders. Section 7002(a)(l )(B) provides for suits to address "imminent and substantial 

endangerment" to human health or the environment. 

The current citizen suit authority also specifies certain EPA or state actions that bar citizen suits 

from proceeding. For the imminent and substantial endangerment suits under section 

7002(a)(l )(B), a citizen suit is generally barred if, as to the alleged endangerment, EPA: 

• is diligently prosecuting an action under RCRA § 7003 or CERCLA § I 06; 

is engaging in a removal action under CERCLA § I 04; 

• has incurred costs for remedial investigation under CERCLA § 104 and is diligently 

proceeding with a remedial action; or 

has obtained a court order or issued an administrative order under CERCLA § 106 or 

RCRA § 7003 under which a responsible party is diligently conducting investigation, 

removal or remedial activities. 1 

A citizen suit under section 7002(a)( I )(B) also is generally barred if, as to the alleged 

endangerment, the state: 

• is diligently prosecuting a citizen suit under RCRA § 7002(a)(I)(B); 

is engaging in a removal action under CERCLA § 104; or 

• has incurred costs for remedial investigation under CERCLA § 104 and is diligently 

proceeding with a remedial action. 2 

1 RCRA § 7002(b)(2)(B). 2 RCRA § 7002(b)(2)(C). 
70 


28379.045

This bill would add to these statutory bars. The new section would bar any "imminent and 

substantial endangerment" citizen suits pertaining to (I) manure or crop residues returned to the 

soil as fertilizer by an agricultural operation, or (2) storage of manure or crop residue for such 

use, when they contributed to the activities which may present an endangerment, in two 

situations. Suits would be barred if either EPA or the state: 

• is diligently prosecuting a civil or criminal court action against such agricultural 

operation; or 

• is diligently conducting an administrative proceeding against, or has entered into a 

consent agreement with, such agricultural operation. 

Unlike the current statutory bars, the EPA or state actions that would bar a citizen suit under this 

bill are not limited to RCRA or CERCLA actions. Thus EPA and state actions under other 

statutory authorities could bar the types of citizen suits affected by this bill. Because states can 

bring RCRA citizen suits, the bill could also bar states from bringing action under section 7002 

where EPA is already acting. 

The bill does not bar citizen suits for regulatory violations arising from the covered activities. 

But the hazardous waste regulations under RCRA subtitle C exclude animal and crop waste from 

the definition of "hazardous waste" when they are "returned to the soils as fertilizers." 3 

Similarly, EPA's solid waste regulations under RCRA subtitleD explicitly "do not apply to 

agricultural wastes, including manures and crop residues, returned to the soil as fertilizers or soil 

conditioners."4 Thus there are unlikely to be many citizen suits filed under section 7002(a)(I)(A) 

alleging regulatory violations for the spreading of manure or crop residue for fertilizer at an 

agricultural operation. 

The EPA appreciates the opportunity to provide this written statement on the Farm Regulatory 

Certainty Act. The agency stands ready to offer our technical assistance to the Committee. 

3 40 C.F .R. § 261.4(b )(2). 4 40 C.F.R. § 257.1 (c)(l ). 
71 


28379.046

25079 Brush Creek Rd., Sweet Home, OR 97386 

(541) 367-11 OS· www.adaptiveseeds.com · seed@adaptiveseeds.com 

Letter from Adaptive Seeds to be Considered before the Environmental Subcommittee, 

Committee on Energy and Commerce, 

U.S. House of Representatives 

Hearing on the Discussion Draft of H.R. __ , 

The Farm Regulatory Certainty Act of 2017 

November 9, 2017 

Dear Chairman Walden, Ranking Member Pallone, Subcommittee Chairman Shimkus, and 

Subcommittee Ranking Member Tonko: 

Adaptive Seeds is writing to share our grave concern with The Farm Regulatory Certainty Act 

offered by Rep. Newhouse. As an Oregon farm-based seed company that stewards rare. diverse & 

resilient seed varieties for ecologically-minded farmers, gardeners, and seed savers, pollution from 

industrial agriculture is a critical issue for our business, our health, and our livelihood. We are deeply 

alarmed that the language in this draft bill would limit a citizen's ability to stop an agricultural facility 

that was mismanaging its waste so much that it endangers our community's health and our environment. 

Adaptive Seeds relies on our land, our air. and our water to do the work we do, just as all farmers in our 

community do. Which means that when one of us has poisoned our environment and will not fix the 

problem, Congress should not take farmer's access to the courts away to get them to change their 

practices. 

Adaptive Seeds was established in 2009 by Andrew Still and Sarah Kleeger near Sweet Home, 

Oregon. Our farm bas been Certified Organic by Oregon Tilth since early summer 2013, and all seeds 
72 


28379.047

that have been grown at Adaptive Seeds arc certified organic. We pride ourselves in our use of open 

pollinated cultivars, which encourages diversity and resilience. It is akin to open source software. Unlike 

hybrids, open pollinated varieties become adapted to the area in which they are gro~om and have been 

shown to outperform imported seed. This approach to production deeply roots us in the land here in 

Oregon, and requires clean, healthy soil, air, and water to thrive. 

We are proud to be in a state with an agricultural landscape that is primarily comprised of small 

and mid-sized family farms and ranches, though we are aware that there is a shift in industrial 

production models in our rural communities. There are dozens of CAFOs where we live in rural Linn 

County, Oregon (population just over 120,000). Broilers are one of the top commodities produced here 

(6,000,000 birds produced in 20 12)-the vast majority of these in CAFOs. Much of our county is within 

the boundaries of the Southern Willamctte Valley Groundwater Management area, which was declared 

in 2004 after a study found that more than 20% of wells tested have moderate-to-high levels of Nitrate 

(study available at http://www.oregon.gov/deq/FilterDocs/gw-swvgwma-nitrates.pdf). Like many 

residents of Linn County, we depend on private well water for our household & irrigation needs. We also 

irrigate with surface water from the creek that runs through our property. Under these circumstances, the 

Farm Regulatory Certainty Act really hits home, and not in a good way. People in our community need 

to continue to be able to stand up to protect the water that we depend on for our livelihoods & our lives. 

As farmers that are deeply connected to our community and our place, we are careful to ensure 

that small and mid-sized family farms continue to have say over our local agricultural economies and 

industry impacts to our shared resources. Part of our job is complying with laws and regulations to 

make sure that we meet the food needs of our communities, from seed to plate, without harming people 

or the environment in the process. We know that we meet those requirements and that most of our 

fellow farmers do the same. But there are exceptions to every rule, and there are currently no other 

ways than the Resource Conservation and Recovery Act's citizen suit provisions to force a bad actor to 
73 


28379.048

go back and clean up the mess. We are up against a lot in our struggle to survive as small farmers in a 

food system that is increasingly corporate-controlled and industrialized, and we need every tool we can 

use to protect our resources and assets. We certainly do not want Congress closing off our access to the 

courts. 

At Adaptive Seeds, we talk about our work of Bringing Biodiversity Back. Part of that, of course, 

is growing and stewarding seed and providing others with good seed stock for their own gardening and 

farming efforts. But seed work isn't only done in the field, and this is why we reach out to you today and 

ask you to maintain the language in this critical environmental law so that farmers like us can protect the 

resources we need to continue to thrive, and hold polluters accountable. Thank you for your 

consideration. 

Sincerely, 

Sarah Kleeger, Partner & Andrew Still, Partner 

Adaptive Seeds, LLC 

25079 Brush Creek Rd 

Sweet Home, OR 97386 
74 


28379.049

November 8, 2017 

The Honorable Greg Walden 

Chairman 

Committee on Energy & Commerce 

U.S. House of Representatives 

The Honorable John Shimkus 

Chairman 

Committee on Energy & Commerce 

Subcommittee on the Environment 

U.S. House of Representatives 

The Honorable Frank Pallone 

Ranking Member 

Committee on Energy & Commerce 

U.S. House of Representatives 

The Honorable Paul Tonko 

Ranking Member 

Committee on Energy & Commerce 

Subcommittee on the Environment 

U.S. House of Representatives 

Dear Chairman Walden, Ranking Member Pallone, Chairman Shimkus, Ranking Member Tonko, and members 

of the Energy and Commerce Committee, 

Over 1,400 farmers, ranchers, business owners, health experts, concerned and impacted communities, and 

public interest groups from across the country, write to voice firm opposition to the discussion draft of the 

"Farm Regulatory Certainty Act." This proposal is an unacceptable attack on access to the courts for rural 

communities harmed by toxic waste. 

In America, we don't pick and choose who has access to our courts yet this proposal carves out rural 

communities from critical federal protections. Access to the courts provides the ability for individuals to 

vindicate their constitutional right to "petition the Government for a redress of grievances." Congress long ago 

recognized the federal government needs average citizens to be partners in enforcing America's laws, including 

civil rights laws, voting rights laws, environmental laws, and others. Citizen suit provisions, included in the 

Resource Conservation and Recovery Act (RCRA)-our federal solid and hazardous waste law-allow 

individuals from across the political and economic spectrum to enforce our laws, ensure government 

accountability, and prevent abuse. For nearly four decades, RCRA has protected human health and the 

environment from toxic pollution that fouls our drinking water, rivers, streams, air and soil when there is no 

other legal recourse. 

The "Farm Regulatory Certainty Act" provides the agricultural industry with an unprecedented legal shield 

against responsibility when they contaminate the public's air, land and water, by curtailing the right to sue 

agricultural polluters that store or dispose of waste in a way that imminently and substantially endangers 

human health or the environment. It accomplishes this by creating a special provision for the agricultural 

industry that prohibits the filing of a citizen suit against an operation if an "administrative proceeding," civil 

action or criminal case is ongoing, without ensuring that the government's action will alleviate the harm. 

A state agency, for example, could issue a notice of violation, letter, or order {without penalties), or even simply 

have a meeting, directing a polluter to take an action. In the presence of any such administrative act, which 

often involves negligible effort by a state agency and may never result in protection, a citizen suit to require 

compliance or cleanup could never go forward. Additionally, the civil and criminal case liability shield in this 

proposal would bar citizen suits without requiring that the government's legal action actually addresses the 

endangerment through an ongoing cleanup, as is currently required under RCRA. 
75 


28379.050

This proposal is unnecessary. RCRA already contains numerous protections against frivolous, duplicative or 

unnecessary litigation, which have worked effectively for decades, and citizen suits under RCRA are already 

prohibited when EPA or the State are engaged in diligent prosecution that actually addresses the 

endangerment. 

Agricultural operations, particularly Concentrated Animal Feeding Operations (CAFOs), are a substantial, 

unaddressed source of pollution across the country. For example, waterways in aliSO states are impacted by 

nutrient pollution- that is enormous amounts of nitrogen and phosphorus discharged to water that cause toxic 

algal blooms, create dead zones depleted of oxygen and life, shut down fisheries, cause fish kills, render 

drinking water unsafe, cause illness and death, and keep people from fishing, swimming and boating. 

This alarming proposal will harm rural Americans, who are disproportionately reliant on private well water and 

also most likely to be located near large industrial agricultural facilities. There is currently no requirement for 

state or federal monitoring of private well water quality, even when residents lack the resources to perform 

regular monitoring themselves. One of the most severe problems associated with the mismanagement of 

agricultural waste is the presence of nitrate in drinking water aquifers, which cannot be seen, smelled, or tasted 

in drinking water. Nitrate is associated most seriously with harm to infants in the form of "blue baby 

syndrome," and is associated with higher levels of miscarriage, birth defects, and certain kinds of cancer. 

Nitrate is particularly dangerous for young children because boiling water to use for formula feeding, which 

parents are told to do, can actually increase the levels ingested and the danger to the child. 

People in rural communities do not usually want to resort to slow, difficult, and costly litigation, they turn first 

to their state and local governments or EPA to ask for help. However, when those processes fail, rural 

communities need the courts as a last resort to protect their only source of clean drinking and domestic water. 

Specifically, CAFO waste generation, storage and disposal have endangered human health and the 

environment by contaminating groundwater aquifers, releasing pathogenic bacteria into drinking water and 

recreational waters, increasing the risk of antibiotic resistance, and disposing of heavy metals from feed on 

lands that can build up and be released into watersheds: 

In the state of Washington, 60% of the population relies on groundwater for their drinking water supply, 

but several areas of the state with high concentrations of CAFOs have been found to have high levels of 

toxic nitrates in drinking water. Excessive waste application to land is common at CAFOs, and is estimated 

to contribute 66% of the nitrate contamination in the Sumas-Blaine aquifer and 58% of the nitrate 

contamination in the Lower Yakima Valley, which hosts the largest concentration of CAFOs in the state. 

• In New York, in 2015 alone, there were over 40 documented cases of water contamination caused by CAFO 

waste. In March of 2017, one of the largest facilities in the state was responsible for two manure spills in 

the span of one week - one of the spills entered Cayuga Lake prompting the New York Department of 

Environmental Conservation to warn people against using or drinking water from the lake. 

In North Carolina, more than 6,500 swine, poultry and cattle CAFOs have contributed to pollution of air 

and water across the state, disproportionately impacting minority and low-income communities. Scientific 

studies have documented numerous health impacts from living near CAFOs in North Carolina, such as 

asthma and other respiratory disorders, exposure to antibiotic-resistant bacteria such as methicillinresistant Staphylococcus aureus (MRSA), drinking water contaminated with nitrates, and emissions of 

hazardous gasses causing coughing, nausea, headaches, burning eyes and psychological effects. 

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• In Ohio, uncontrolled pollution from CAFOs is a significant source helping to fuel the massive toxic algal 

blooms in Lake Erie, which in 2014 forced the shutdown of Toledo's water supply. Grand Lake St. Marys, 

the sole source of drinking water for the town of Celina, is so polluted with toxic algae due to agricultural 

pollution that the Ohio Health Department has issued an advisory to avoid all contact with the lake. In 

2015, a woman was hospitalized after coming into contact with the water while recreating. 

The right of communities to protect their health and environment must be protected. We urge you to oppose 

the Farm Regulatory Certainty Act, as well as all similar bills that weaken federal protections from toxic waste 

and prevent public access to justice. 

Respectfully, 

NATIONAl ORGANIZATIONS: 

Alliance for Justice 

American Grassfed Association 

American Rivers 

Center for Biological Diversity 

Center for Progressive Reform 

Center on Race, Poverty & the Environment 

Clean Water Action 

Compassion in World Farming 

Compassion Over Killing 

Earth justice 

Environment America 

Environmental Working Group 

Farm and Ranch Freedom Alliance 

Farm Forward 

Farmworker Justice 

Food & Water Watch 

Friends of the Earth U.S. 

Greenlatinos 

Humane Society Legislative Fund 

Concerned and/or Impacted Individuals: 

Candice Hicks 

Dell Brooke 

Hannah McPeters 

Jackie Heard 

Jeanne Tucker 

Shelley Summerford 

William Moody 

Inland Ocean Coalition 

Institute for Agriculture and Trade Policy 

!SED Solutions 

League of Conservation Voters 

League of United latin American Citizens 

Mercy for Animals 

National Family Farm Coalition 

Natural Resources Defense Council 

Organic Consumers Association 

Pesticide Action Network (PAN) 

Public Justice 

Rachel Carson Council 

Sierra Club 

Socially Responsible Agricultural Project 

The Humane Society of the United States 

The Moore Charitable Foundation 

The Weston A. Price Foundation 

Waterkeeper Alliance 

Wild Earth Guardians 

Organizations: 

Alabama Rivers Alliance 

Cahaba Riverkeeper 

Coosa Riverkeeper 

Tennessee Riverkeeper 

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Concerned and/or Impacted Individuals: 

lia San ph 

Lynn Wilbur 

Farmers/Ranchers/Business Owners: 

George Donart, Commercial Fisherman 

Concerned and/or Impacted Individuals: 

Samantha Utesch 

Myra Harris 

Aida Cochran 

Angela Renaud 

Anonymous 

Arthur C Endersen 

Barbara Como 

Beverly White 

Blackson 

Daniel Hurst 

Daniel Mack 

David Butler 

David Turner 

Dianne Douglas 

Jack Reed 

Jane Magee 

Jessica Cary-Alvarez 

Joan powers 

Joseph Monaco 

Juanita Colucci 

June Blackson 

Karen Benally 

Kerry C. Kelso 

Linda Butler 

Lois Jordan 

Lorna Proper 

Mary Rainwater 

Mary Stoll 

Mike Butler 

Mira Coluccio 

Philip Diller 

Rhonda Mack 

Richard Renaud 

Sharine Endersen 

Steven Love 

Sue Thomas 

Linda Miller Kinman 

Cynthia Conway 

Mark Hayduke Grenard 

Ernst Bauer 

Linda Davis 

Timothy Avilla 

Edward & Lee Wardle 

Lloyd Rogers 

Leslie Saunders 

Farmers/Ranchers/Business Owners: 

Terri Nelson, Great American Construction 

Jacqueline Avilla, Ranch Owner 

Organizations: 

Don't Waste Arizona 

Save Tonopah Oppose Poultry Plants (STOPP) 

Elected or appointed officials: 

Paul Roetto, Governing Board President, 

Saddle Mountain Unified School District 

ARKANSAS: 

Concerned and/or Impacted Individuals: 

Alice Andrews 

Amanda Cheatham-Hurd 

Barry Haas 

Donald Richardson 

Lolly Tindol 

Lynn Risser 

Shelley Buonaiuto 

Susan Gateley 

Farmers/Ranchers/Business Owners: 

Carol Bitting 

Cynthia Parke, Parke family farm 

Jean Larson, Shady Hill Farm 

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Organizations: 

Arkansas Canoe Club 

Buffalo River Watershed Alliance 

Ozark River Stewards 

White River Waterkeeper 

CALIFORNIA 

Concerned and/or Impacted Individuals: 

Adriana Cervantes 

Aixa Fielder 

Amrit Khalsa 

Andrea Bonnett 

Anita Simons 

Anna Ling 

Ashleigh Marsh 

Bonnie Bagwell 

Cara Blaxton 

Carol Horowitz 

Cathleen O'connell 

Charlotte Sines 

Cherie Connick 

Christina Dilko 

Christopher Hendrickson 

Clare Hooson 

Claudia Morales 

Dan And Paula Fogarty 

Deirdre Brownell 

Desiree Lopez 

Donna Carr 

Dr. Mha Atma S Khalsa 

Elaine Livesey-Fassel 

Elisse DeSio 

Ernie Walters 

Eugene Majerowicz 

Evan Jane Kriss 

Freda Hofland 

Gail Lack 

Gail Roberts 

Gracie Ia Huth 

Haylee Oyler 

Hillary Ostrow 

Jacquelin M. Perry 

James F Berkheimer 

Jan Rose 

Janis Hug 

Jeff Miner 

Jena Hallmark 

Jesse Bahm 

Jim Merin 

Joan Squires 

Joe Salazar 

John Pasqua 

Julie Ford 

Kelly Lentz 

Ladeana Satriano 

Larry Lapuyade 

Usa Hamann 

Usa Robinson 

Lorna Kriss 

Lynne Preston 

Marcia Noren 

Marilyn Borchardt 

Marion Reich 

Martha Saavedra 

Martin Friedman 

Micah Mcintyre 

Nina Diamante 

Niria Alicia Garcia 

Pamela Check 

Rebecca Griswold 

Rebecca Tripp 

Richard Kauffman 

Rob Beemer 

Sam Butler 

Sandra D. 

Sandy Fox 

Sarah Spinuzzi 

Scott Boiler 

Sharon Crocker 

Sigrid Ramos 

Stephanie Romero 

Steve Iverson 

Steven Schlam 

Susan Meserve 

Ted Fishman 

Timmarie Hamill 

Virginia Arnold 
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Farmers/Ranchers/Business Owners: 

Mara Zlotoff 

Loretta Murphy, Drakes Bay Oyster Company 

Brian Weissbuch, KW Botanicals Inc. 

Organizations: 

Azul 

Comite Civico del Valle 

Community Water Center 

Impact Fund 

Inland Empire Waterkeeper 

Leadership Counsel for Justice and Accountability 

Orange County Coastkeeper 

San Diego Coast keeper 

San Francisco Baykeeper 

COLORADO: 

Concerned and/or Impacted Individuals: 

Andi Saden 

Andrea Wasserman 

Carla Orlandi 

Carol DeAntoni 

Dale Ellis 

David Mitchell 

Dawn Hendry 

Donna Bonetti 

Dr. Richard Grossman 

Ed D. Metal 

Elaine Benvenuto 

Gaia Schubert 

Gayle Lie ban 

George Hartman 

Jaye Anna Mundy 

Kathleen Doyle 

Kathryn Christian 

Krista Gagnon 

Margaret Shane 

Mark Meeks 

Martin Wolf 

Raymond Schamel 

Sharon Baker 

Sonia lmMasche 

Stacy Wagner 

Stephanie Huntington 

Susan Kelly Ambler 

Terrie Petersen 

Thomas Hutton 

Travis Jardon 

William Whitaker 

Farmers/Ranchers/Business Owners: 

Dr. Susan Raymond, Veterinarian/rancher 

Dirk Kroger, Ash Tree Apiary LLC 

Wayne Goin, Minion Hydrologic 

Organizations: 

Alamosa Riverkeeper 

Elected or appointed officials: 

Ralph D'Aiessandro, Delta Conservation District 

CONNECTICUT 

Concerned and/or Impacted Individuals: 

Annette Crozier 

Maria Williams 

Randi Saslow 

S. Stirling Davenport 

Organizations: 

Park Watershed 

DELAWARE 

Concerned and/or Impacted Individuals: 

Alfred Gratz 

Amy Roe Ph.D. 

Andrea Green 

Anne Gratz 

Anthony Petrillo 

Carol Taylor 

Carole Edgar 

Cathie Nagy 

Christopher Edginton 

Chuck Schonder 

Donna Smith 

Doug Miller 

Eva Klaess Barnett 

Georgina Yelenovsky 

Irene diaz 

James Yelenovsky 

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Janet Terner 

Jared Cornelia 

Jeff Day 

Jerry Lynch 

Joanne Haynes 

Joe Nagy 

Joseph Smith 

Ken Haynes 

Leah Brooks 

Lew Podolske 

linda Pawlyk 

Loretta Copley 

Margaret Keefe 

maria payan 

Maureen Z Dempster 

Megan cain 

Michael Lawton 

Nancy Fifer 

Nancy Willing 

Patricia Williams 

Patrick Gaffney 

Rebecca Winant 

Rhonda Anderson 

Sarah Bucic 

Sasha Mink 

Stephen Zemanek 

Thomas Murphy 

Walter Novak 

William Barnett 

Yauheniya Zialenskaya 

Farmers/Ranchers/Business Owners: 

Norman Dempster, G & R Campground 

DISTRICT OF COLUMBIA 

Concerned and/or Impacted Individuals: 

Shoshana Risman 

Marty lrby 

Concerned and/or Impacted Individuals: 

Aara Anderson 

Abe Levy 

Andra Heide 

Bj Beavin 

Casey Weiner 

Cheryl Owen 

Choky Alvarez 

Danielle Logue 

David Sinclair 

Diane Eisenhower 

Dr. Stocker 

Fred Coppotelli 

Harriet Lawrence 

Janet Robinson 

Jonathan Barnes 

Kris Pagenkopf 

Kristin Cathey 

liza Tamayo 

Marc is Hoodwin 

Margaret Fox 

Matt Emmer 

Mr Ken Bowman 

Norva Achenbaugh 

Pat Levy 

Paula Morgan 

Richard Rothstein 

Robin Faraday 

Susan Haines 

Virginia Mendez 

William Revesz 

Farmers/Ranchers/Business Owners: 

Diane Buxton, Geranium Lane Farm 

Organizations: 

Collier County Waterkeeper 

Farmworker Association of Florida 

Matanzas Riverkeeper 

Sun coast Waterkeeper 

Concerned and/or Impacted Individuals: 

Dale Caldwell 

David Chambers 

Jacqueline Robinson 

Kaylee Major 

Marco Pardi 

Rebecca Roter 

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Sally Spelbring 

Steve Schmidt 

Tracy Trentadue 

Farmers/Ranchers/Business Owners: 

Eeryn Falk-Lubicich 

Organizations: 

Altamaha Riverkeeper 

Concerned and/or Impacted Individuals: 

Nomi Carmona 

Concerned and/or Impacted Individuals: 

Jane H. Middlesworth 

Thomas Rogers 

Organizations: 

Kootenai Environmental Alliance 

Snake River Waterkeeper 

Concerned and/or Impacted Individuals: 

Allison Fradkin 

Amber Rose Miller 

Amy Moon 

Anne Speicher 

Carol Jurczewski 

Carol Lapetino 

Christine Favilla 

Cynthia Bonnet 

Cynthia Fore 

D. Butler 

Danielle Ross 

David Larsen 

Donna Jaggard 

Ernest L Frans 

Frank Goudy 

J. Beverly 

Jamie Casolari 

Janet Weber 

Jeff Cowdrey 

John Pearson 

Joyce Carroll 

Judith Cate 

Judy Krach 

Kimberly Backman 

lisa Powell 

Matthew Wechsler 

Megan Warren 

Mike Downs 

Nancy Faust 

Nancy Neubeck 

Pat Campbell 

Patricia Pruitt 

Phyllis Arist 

Rebecca Rowe 

Shane A Moon 

Shawn Butler 

Suzanne Case 

Vicki Gerberich 

Farmers/Ranchers/Business Owners: 

Andrea Hazzard, Hazzard Free Farm 

Organizations: 

Illinois Citizens for Clean Air and Water 

Bluestem Communications 

Frontera Farmer Foundation 

Illinois Council Trout Unlimited 

Prairie Rivers Network 

Concerned and/or Impacted Individuals: 

Alfred All ina 

Cohen Klein 

Curtis Ramer 

Dan Dinsmore 

DaneiCox 

Daniel Heckman 

Danka Klein 

Darell Robinson 

Denise Heckman 

Gordon Huey 

Henry Mazzola 

Jacqueline Weber 

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James L Schrimper 

Jamie Jones 

Jamie Young 

Janet Prendergast 

Jaralee Davison 

Jason Hazelett 

Jean Johannigman 

Jennette Miller 

Jim Leonard 

Joel Sieplinga 

John Marquis 

John O'connell 

Julia Lowe 

Karen Deforest 

Kate O'halloran 

Kent Davison 

Kevin Mccracken 

Linda K Zimmerman 

Linda Leonard 

Lori Sanchez Ertel 

Marcella Surra 

Marvin Goble 

Matt Radding 

Max E. Zimmerman 

Nancy Bruder 

Neal Schrimshaw 

Nina Rodocker 

Paul Mills 

Richard Atwell 

Richard Goodwin 

Rita Harness 

Sara Dygert 

Scott Brosman 

Sherri Dugger 

Shirley Inman 

Stevi Kersh 

Susan Knose 

Susie Sexton 

Terry D Hughes 

Terry Goodwin 

Tim Dygert 

Tom Mee 

Farmers/Ranchers/Business Owners: 

Barbara Cox 

Cary Zahm, ZimZahm Productions 

Danelle Jentges 

Douglas Driscoll, AD Media 

Jamie Campbell Petty, Red Bark Farms 

Jim Murney 

Justin McBride, Second Breakfast Ranch 

Justin Petty, Red Bark Farms 

Karen Western, John Western & Family 

Kent Reineking, Kent's Harbor, Inc. 

Kevin Williams 

Lisa Bough 

Marjorie Miller, Miller Bees 

Organizations: 

Hoosier Environmental Council 

Indiana Farmers Union 

Concerned and/or Impacted Individuals: 

Andrew Plate 

Angela Tedesco 

Barry Miller 

Blair Frank 

Bob Sansgaard 

Brenda Brink 

Carol Olicker 

Carole Simmons 

Cherie Mortice 

Cheryl Walsh 

Christine Radford 

Connie Larsen 

Connie Suby 

Dan Archip 

Daryl Kothenbeutel 

Diana Krystofiak 

Diane Robertson 

Diane Rosenberg 

Edith Haenel 

Effie Hall 

Elizabeth Hill 

Gordon Garrison 

Jean Marsden 

Jean Perri 

Jeff Wells 

Jennifer Vazquez 

Jerry A vise-Rouse 

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Jessica Dillon 

Jim Kessler 

Joan Olive 

John Clayton 

John Ikerd 

Judith Hainaut 

Julie Duhn 

Karen Joost 

Karla Selby 

Kenn Bowen 

Kevin lolbe 

Linda Klimesh 

Lois Larsen 

Lorna Caulkins 

Mandy McAllister 

Margaret McDonnell 

Marie Herring 

Mark Edwards 

Mark Suby 

Mary Tarnoff 

Michael Murphy 

Milton Severe 

Nancy Cadmus 

Nikki Dietze 

Norma Bosma 

Patricia S. Tim mens 

Patrick Bosold 

Patti Naylor 

Peggy Nichols 

R.J. Meyer 

Regina Behmlander 

Rich Sims 

Robert Cadmus 

Roberta Carpenter 

Ronald J. Wyse 

Sandy Moffett 

Sheila Tran 

Sig Barber 

Sue Berkey 

Sue Biederman 

Susan Kolbe 

Susan Schilling 

Thomas Fierova 

Timothy Dobe 

Valerie Vetter 

Vida Praitis 

Farmers/Ranchers/Business Owners: 

Ann Brau, Compass Plant CSA 

Dale Martinson, Martinson Sodding LLC 

Danny Brunsvold 

Denyce Rusch, Breadtopia 

Diane Benjamin 

Dianne Prichard 

Douglas Caulkins, Pleasant Grove Land 

Preservation 

Erica Schultes 

James Berge, Berge Farms LLC 

Joyce Otto, Poweshiek CARES 

L. Darrel Wrider, Wrider Whittington Farm 

Laforest Sherman, Pinder Avenue Storage 

Linda Delaughter, Hoberg Harmony Farm 

Lois Dovico, Dovico Hydroponics & Aquaponics & 

Dovico Gardens & Greenhouse 

Margaret Ruddy 

Marian Kuper, Keith A. Kuper Farm 

Phyllis Sobek 

Rita McDonald, Home Farm for 117 years 

Robert Trembly, Heart's Desire Orchard 

Sarah Lewis 

Sarah Quinn, Quinn Legacy LLC 

Organizations: 

Iowa Citizens for Community Improvement 

Iowa Citizens for Responsible Agriculture 

Iowa Environmental Council 

Jefferson County Farmers & Neighbors 

Poweshiek CARES 

Quad Cities Waterkeeper Inc. 

Concerned and/or Impacted Individuals: 

Becky Pruitt 

Boyd A Davies Jr 

Carol Abramovitz 

Charlene Zink 

Gwen Schmitz 

Judy Morgan 

Kimberly Ropp 

Kris Roberts 

Letitia Dace 

Linda D. Vanderweide 

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Mary Pierce 

Nickie Perry 

Shelby Fatherley 

Teresa Timmons 

Richelle Walker 

Scott Reynolds 

Farmers/Ranchers/Business Owners: 

Nancy Thellman, Juniper Hill Farm 

Paul Krumm, Gyld Wynds 

KENTUCKY 

Concerned and/or Impacted Individuals: 

Katie Ellis 

Richard Murphy 

Robin Blanton 

Sandra Raupfer 

Jennifer Edelen 

Aloma Dew 

Organizations: 

Community Against Pig Pollution and Disease 

(CAPPAD) 

Kentucky Waterways Alliance 

LOUISIANA 

Concerned and/or Impacted Individuals: 

Jean Lappe 

Organizations: 

Atchafalaya Basinkeeper 

Gulf Restoration Network 

Concerned and/or Impacted Individuals: 

Carol Howell 

Diane Hollister 

Francesca Totty 

Paul Saunder 

Stephanie Rhodes 

MARYLAND 

Concerned and/or Impacted Individuals: 

Adriana Delatorre 

Andrea Delgado 

Allen Seigel 

Any Kincaid 

Billy Weiland 

Carl Benson 

Chris Seymour 

Christopher Cullen 

Claire Fitch 

Debbie Gousha 

Dr. Chinside 

Frederick F Stiehl 

Heather Nottingham 

Hope Clark 

I an Poisker 

James Adcock 

Joyce Robinson 

Judy Quillin 

Kim Quillin 

Karen Hunter 

Laurel Campbell 

Lisa Crowe 

Marina Feeser 

Mary Phillips 

Maureen Lagasse 

Meya Law 

Michael Greenberg 

Napoleon Crowe 

Patti Leonard 

Paul Bishop 

Robert Augustine 

Ryan Murphy 

Sara Huffman 

Stephen Tuttle 

Farmers/Ranchers/Business Owners: 

Glen Webb, Centennial Farms 

Organizations: 

Assateague Coastal Trust 

Gunpowder RIVERKEEEPER 

Upper Potomac Riverkeeper 

Waterkeepers Chesapeake 

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MASSACHUSETIS 

Concerned and/or Impacted Individuals: 

Ann Eastman 

Brendan Cox 

Dana Craig 

Joan Doucette 

Judith Embry 

Laraine Snooks 

Mary Coelho 

Mary Dygert 

Mary Gilbert 

Maryanna Foskett 

Tammy King 

WilliamS Holcombe 

Organizations: 

Animals Are Sentient Beings 

MICHIGAN 

Concerned and/or Impacted Individuals: 

Alan Kommel 

Anna Edwards 

Barbara Lang 

Beth Lincoln 

CaroiTimm 

Carolyn Haack 

Charles And Patricia Pavlik 

Charles Pavlik Jr 

Cindy Eby 

Cindy Kirby 

Daria Hyde 

David C Jones 

Deb Kallunki-Gotham 

Elaine Wolf-Baker 

Elise D. Garcia 

Emily K-Paaternak 

Emily Moerlins 

Gary Rayburn 

James Hannah 

James Kelly 

Jami Lowstuter 

Janice Pavlik 

Jennifer Bush 

Jill Benn 

John Kuschell 

Karen Bush 

Lynn Sandra 

M. Leonard 

Marguerite Clevenger 

Melissa K. Haworth 

Ralph Frey 

Robert & Sylvia Xeras 

Roxann Harrington 

Roy Sexton 

Sabrina Gross 

Sister Kathy Nolan 

Stevens Bartels 

Susan Hunter 

Susan Reithel 

Susanne Spice 

Thomas Bush 

Thomas Wassmer 

Timothy Lincoln 

Tori Craig 

Victoria Powell 

Farmers/Ranchers/Business Owners: 

George R Lastowski, Faithful Heart Farm 

Katherine Melmoth, Recipe Gardens 

Karla Souden, Souden Family Farm 

Martha Burbeck, Beacon Springs Farm LLC 

Organizations: 

Environmentally Concerned Citizens of South 

Central Michigan 

For Love of Water 

Great Lakes Environmental Law Center 

Healthy Pine River 

Michigan Environmental Council 

Michigan Land Trustees 

Michigan League of Conservation Voters 

Water You Fighting For 

Elected or appointed officials: 

Greg Mapes, Mayor, City of Alma 

Roger Allman, Commissioner, City of Alma 

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MINNESOTA 

Concerned and/or Impacted Individuals: 

Ah-Li Monahan 

Bonnie Harris 

Dd Redman 

Dia Redman 

Elaine Wiegand 

Janet A. Neihart 

Jeni Gregory 

Jim Clapp 

John Via crucis 

Nan Corliss 

PeggyTrom 

Rebecca Deboer 

Robert Wahlberg 

Scott Slocum 

Sonja Tram Eayrs 

Farmers/Ranchers/Business Owners: 

Evan Schmeling 

Theresa Benda 

John J. Finazzo Sr., Lipari Renewables, Inc. 

Katherine Brozek, Hilltop Harvest Strawberry Farm 

Organizations: 

Dodge County Concerned Citizens 

Minnesota River Valley Audubon Chapter 

MISSISSIPPI: 

Concerned and/or Impacted Individuals: 

Dyan Gibson 

Jonathan James 

MISSOURI 

Concerned and/or Impacted Individuals: 

Angela Corson 

Collette R. Jones 

David Raich 

Emily Towne 

Erma Scott 

Janet S. England 

Joseph W. England 

Leona Bochantin 

Margaret Munch 

Nancy Fricke 

Raymond Fricke 

Raymond Zahra 

Shirley Kidwell 

Farmers/Ranchers/Business Owners: 

Amanda Good, A. Good Egg Company 

Connie Key, Keyview Farms 

James Leftwich, James Leftwich Farm 

Jon & Sandra Wise, Wise Farms 

Rolf Christen, Christen Farms LLC 

Tammy Williams, Flat Creek Farm 

Organizations: 

Citizens Legal Environmental Action Network 

Pettis County Citizens for Land Protection 

MONTANA 

Concerned and/or Impacted Individuals: 

Audrey Jean Haight 

Barbara Rusmore 

Beverly Jackson 

Jennifer Nitz 

Ruth Angeletti 

Organizations: 

Upper Missouri Waterkeeper 

NEBRASKA 

Concerned and/or Impacted Individuals: 

George Cunningham 

Rachelle Hunt 

Farmers/Ranchers/Business Owners: 

Michelle Boden, Boden Family Farm 

Organizations: 

Nebraska Chapter- Sierra Club 

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Concerned and/or Impacted Individuals: 

Chad Moore 

Denise Martini 

Douglas Moore 

Faith Franck 

Mike Seyfried 

Patricia M. Baley 

Sandra Moore 

Susannah Gelbart 

Organizations: 

Bristlecone Alliance 

NEW HAMPSHIRE 

Concerned and/or Impacted Individuals: 

Charissa Koulovatos 

Erline Towner 

NEW JERSEY 

Concerned and/or Impacted Individuals: 

Carl N. Oerke Jr. 

Carolina Espinosa 

Cheryl Dzubak 

Diana J. Horen 

Glenn Welsh 

Helene Frakel 

Joan Denver 

Jodi-Beth Felton 

Krunal Patel 

Meredith Demarco 

Michael Shakarjian 

Millicent Sims 

R. Vanstrien 

Scott Soulia 

Susan Nierenberg 

Tom Harris 

Organizations: 

Hackensack Riverkeeper Inc. 

NY/NJ Baykeeper 

NEW MEXICO 

Concerned and/or Impacted Individuals: 

Bruce Donnell 

Gaia Mika 

John Tischhauser 

Lesley Jorgensen 

Logan Glasenapp 

Maria Elena Bejarano 

Monica Steensma 

Susan Queen 

Tony Greiner 

Organizations: 

Water-Culture Institute 

NEW YORK 

Concerned and/or Impacted Individuals: 

Andrea Zinn 

Andrew Cranston 

Anita Brandariz 

Betsy Mayo 

Beverly Simone 

Bridget McGuire 

Carl Arnold 

Carol Warren 

Carole Forman 

Cheryl Frank 

Darian Mark 

Diane Hafner 

Dominic Melita 

Donald Chu 

Dorian Fulvia 

Douglas Cooke 

Edward Butler 

Elaine Livingston 

Elizabeth Watts 

Erma Lewis 

Esmee Einersen 

Frans !manuel 

Gerard J. Curran 

H Ellis Griffin 

Herbert Coles 

Irene Franck 

Iris Rochkind 

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Jacquelyn Kallunki Farmers/Ranchers/Business Owners: 

James Mulder Jeannie Irvine 

James Sylver Linda Yannone, Gardenella 

Jeanmarie Chenette Susan Quillio, Batten kill Culinary Servcies 

Jerrilyn Johnson 

Jk Kibler Organizations: 

Jodie Zupancic Gas Free Seneca 

John Keiser North American Climate 

John Neumeister Protect Orange County 

Jose Contreras Riverkeeper 

Joseph Wesker Seneca Lake Guardian 

Kara Shannon Sisters of Charity 

Kathy Haverkamp Swarna Hansa Foundation 

Leslie Cassidy 

Leslie Just NORTH CAROLINA 

Linda Byrne 

Linda Gioia Concerned and/or Impacted Individuals: 

Lisa Hunkler Arthur Kahn 

Lydia Pyun Bethany Stultz 

Lynne Teplin Bryce Cracknell 

Maia Raposo Claire Wang 

Margaret Jensen Dr. Kelly Doyle 

Marge Dakouzlian Elsie Herring 

Martha Reddout Eric Zimdars 

Mary Buchanan Erin Carrier 

Michelle Hayward Fred Stanback 

Moraima Suarez Hal Trufan 

Nancy Staley Helen Beets 

Pamylle Greinke Jamie Mitchell 

Patti Packer Larry Cooper 

Randi Gustafsson Pammela Johnston 

Richard Stern Sanyika Dillard 

Robert Snyder Stephen Beets 

Robin Meadows Sue Perry 

Robin Spiegelman Tom leonard 

Sheryl Samuel 

Sirena Green Farmers/Ranchers/Business Owners: 

Stephen Burns Keith Lynch 

Susan Carey Sheila Menendez, Hope Farms 

Timothy Dunn 

Trevor South lea Organizations: 

Wendy Fast Cape Fear River Watch 

William Sharfman Catawba Riverkeeper Foundation 

Coastal Carolina Riverwatch 

Crystal Coast Waterkeeper 

French Broad Riverkeeper Mountain True 

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Green Riverkeeper MountainTrue 

North Carolina Environmental Justice Network 

Sound Rivers 

White Oak-New Riverkeeper Alliance 

Winyah Rivers 

Yadkin Riverkeeper 

NORTH DAKOTA 

Concerned and/or Impacted Individuals: 

Aaron Elshaug 

Alice Urban 

Bernie Howard 

Bethany Elshaug 

Bev Geller 

Daril Rainesalo 

Diane Holth 

Eugene Howard 

Jan Nelson 

Karlan Follman 

Kim Burnham 

Leeann Long 

Lisa Lauckner 

Lois Steinhaus 

Lynn CWolff 

Nancy Ferguson 

Pamela Kjono 

Peggy Gisi 

Renae Elshaug 

Robert Hendrickson 

Roy Thompson 

Sandra Kimmet 

Sharon Harmel 

Sheila Thompson 

Steven Stevenson 

Sue Fritz 

Farmers/Ranchers/Business Owners: 

Bonnie Erickson, Reel 'Em Inn Lodge 

Gwen Fraase 

Janelle Engstrom, Lake Region Concerned Citizens 

Jesse Kenner 

Lyle Johanson, Johanson Farm 

Sheri Tuchscherer 

Tanner Elshaug 

Terry Engstrom, Engstrom Farms 

Organizations: 

South Agassiz Resource Council /Affiliate of Dakota 

Resource Council 

Concerned and/or Impacted Individuals: 

Alice Dugar 

Anthony Mehle 

CarlS. Hines 

Charles Wurster 

George Marsh 

James A Hepp 

James Tesno 

Jeffery Johnston 

Jim Wentz 

John Templin 

Judith Walter 

Judy Smucker 

Julie Grote 

Kathleen 

Ken Vinciquerra 

Kenneth Lawrence 

Mathilda Navias 

Michael Bean 

Mj Raichyk 

Peg Rotondo 

Richard Reierson 

Robert Sachs 

Sharon Stork 

Susan Lohwater 

Ted E Webster 

Theresa Mcgeady 

Todd Cox 

William Ringo 

Farmers/Ranchers/Business Owners: 

Lynn Fell, Fell Family Farms 

Steve Klosterman, Klosterman Development Corp. 

Organizations: 

Lake Erie Waterkeeper Lake Erie Foundation 

Ohio Environmental Council 

Ohio Environmental Stewardship Alliance 

Westfield Responsible Agricultural Project 

16 
90 


28379.065

Elected or appointed officials: 

Tom Bullock, Lakewood City Council 

OKLAHOMA 

Concerned and/or Impacted Individuals: 

Lydia Garvey 

Madison Mayer 

Farmers/Ranchers/Business Owners: 

Dr. Steven Mackie, 98W Farm 

Shari Morrison, Real-Ranch 

Organizations: 

BECAUSE 

Concerned and/or Impacted Individuals: 

Diane Chavez 

Elizabeth Slikas 

Emma Newton 

Gail Snyder 

Jeffrey White 

John Young 

Kathryn Plitt 

Martha Perez 

Michael Weinerman 

Nathan Klinger 

Rachel Cordas 

Renee Kersey 

David Hermanns 

Robin Miller 

Susan Delles 

Tarresa See 

Farmers/Ranchers/Business Owners: 

Carla Phillips, Phillips Family Farm 

Dan Sherwood, Dan Sherwood Photography 

David A Keller-Rode, Boundless Farmstead LLC 

Dean Claeys, Blue Flower Family Farm 

Frank Morton, Shoulder to Shoulder Farm 

Hank Keogh and Jo Erikson, Avoca Seed 

Jeanadele Wright, Jeanie's Jellies 

Leslie Carter, Jo-Le Farms 

Matthew Gordon, Cully Neighborhood Farm 

Steve Fry, Dick-N-Don Inc. 

Organizations: 

Columbia River Estuary Action Team 

Friends of Family Farmers 

Oregon Environmental Council 

Rogue Riverkeeper 

Tualatin Riverkeepers 

PENNSYLVANIA 

Concerned and/or Impacted Individuals: 

Alice Keppley 

Bob Kane 

Bob Steininger 

Cheryl Settember 

Dale Broman 

Deanne O'donnell 

Denise Koons 

Diane Calkins 

Douglas Eveler 

Elaine Pennington 

Eleanor Weisman 

Halia Vankirk 

Isaac Thomas 

Joe Wolfgang 

John W. Parana 

Jon Ayscue 

Karlin Lamberto 

Kayla Clayton 

Kristen Markley 

Laura Keppley 

Matthew Moyer 

Mychal Ozaeta 

Nancy Dickson 

Norma Horton 

Patricia Risso 

Paul Johnson 

Raymond Kizina 

Robert Rodgers 

Sarah Heffner 

Theresa Treasure 

17 
91 


28379.066

Farmers/Ranchers/Business Owners: 

Eric Koperek, WorldAgricultureSolutions.com 

Gary Walter 

T. Lyle Ferderber, Frankferd Farms 

Organizations: 

Friends of Family Farms Montgomery Township 

Juniata Valley Audubon 

Kaltreider Restoration 

Lower Susquehanna RIVERKEEPER Association 

Mountain Watershed Association 

Youghiogheny Riverkeeper 

RHODE ISLAND 

Concerned and/or Impacted Individuals: 

Ellen Goodman 

SOUTH CAROLINA 

Concerned and/or Impacted Individuals: 

K. Kern 

Linda Parlo 

Organizations: 

Edisto Riverkeeper 

Waccamaw Riverkeeper 

SOUTH DAKOTA 

Concerned and/or Impacted Individuals: 

Caitlin Collier 

Cathy Weiss 

Daniel Dolejsi 

Emily Radech 

Estelle Johnson 

Jane Grant 

Janice Palmer 

Janice Wahlers 

Karen Englehart 

Kathy Tyler 

Kristi Mogen 

Marilyn Huntley 

Mike Wid mark 

Teryl Cruse 

Farmers/Ranchers/Business Owners: 

Paula Haiwick, Haiwick Heritage Ranch 

Robbie Ray, Johnson Farms 

Organizations: 

Sierra Club of South Dakota 

TENNESSEE 

Concerned and/or Impacted Individuals: 

Axel Ringe 

Chris Drumright 

Connie Dunn 

Daniel Boone 

Jean Cheveallier 

Jesse Gore 

Joyce Coombs 

Linda Tift 

Meredith Clebsch 

Merima Alagic 

Noah Vollhoffer 

Sue Davis 

Organizations: 

Farms Not Arms 

Harpeth Conservancy 

Tennessee Scenic Rivers Association 

Concerned and/or Impacted Individuals: 

Addie Campaigne 

Amanda Davis 

Andrea Juarez 

Barbara Hill 

Brian Schill 

Colton Harp 

Cynthia Cook 

Edward Hubennette 

Elizabeth Odear 

John Young 

Kelly White 

Kevin Anton 

Leslie Spurling 

Marianne Lynch 

Michele May 

18 
92 


28379.067

Monica Laze-Lopez 

Farmers/Ranchers/Business Owners: 

Joshua DeCamp, Agarita Farm 

Organizations: 

Environmental Stewardship, a Waterkeeper 

Alliance Affiliate 

Concerned and/or Impacted Individuals: 

Gay Palmer Stern 

Jessica Santore 

Justin Grover 

VERMONT 

Concerned and/or Impacted Individuals: 

Diana Bain 

Ruah Swennerfelt 

Concerned and/or Impacted Individuals: 

Carlene Zach 

Dorothy Beck 

Elaine Becker 

Ellen O'connor 

Em Branson 

Emilia Skoglund 

Grace Holden 

Hm Arnold 

Lynne Rogers 

Maryellen Ferratt Yoder 

Ms Paulette Smith 

Olivia Lowery 

Pamela Townsend 

Polly Lazaron 

Robert Leggett 

Stacie Hickman 

Teresa Gladden 

Todd Schindler 

Triicia Schwarz 

Farmers/Ranchers/Business Owners: 

Kenneth Dufty, Wind horse Farm 

Organizations: 

Citizens for A Better Eastern Shore 

Contract Poultry Growers Association of the 

Virginias 

Potomac Riverkeeper 

Potomac Riverkeeper Network 

Protect Our Shores 

Shenandoah Riverkeeper 

Shore Wildlife Rehab 

WASHINGTON 

Concerned and/or Impacted Individuals: 

Adina Parsley 

Amelia Apfel 

Beth O'brien 

Bob Triggs 

Bronwen Evans 

Carol Mattox 

David Arntson 

Grace Padelford 

Helen Curtis 

Jennifer Purcell 

Karen Erlander 

Kristen Brickey 

Mary Hunt 

Mundi Hamilton 

Peter Holcomb 

Robin Chalfie 

Sammy low 

Suzanne Hamer 

Tyra Wallace 

Vicky Gannon 

Werner Bergman 

Farmers/Ranchers/Business Owners: 

Fritzi Cohen, Tabard Corporation/Moby Dick 

Corporation 

Organizations: 

Concerned Citizens of the Yakama Reservation 

Puget Soundkeeper Alliance 

19 
93 


28379.068

RESources for Sustainable Communities 

Spokane Riverkeeper 

WEST VIRGINIA 

Concerned and/or Impacted Individuals: 

Hedda Haning 

Jayme Bosley 

Michael Klausing 

Organizations: 

Coal River Mountain Watch 

OVEC-Ohio Valley Environmental Coalition 

West Virginia Headwaters Waterkeeper 

WISCONSIN 

Concerned and/or Impacted Individuals: 

Anita J. Martin 

Anthony Belanger 

Betty Koepsel 

Bill Leichtnam 

Brenda Vetter 

Bridget Knapek 

Bruce Dimick 

Carol Hardin 

Carol Johnson 

Christine Yellowthunder 

Deanna Vinson 

Denise O'halloran 

Donna Hann 

Duane Hofmeister 

Dyan Pasono 

Ed Cohen 

Elizabeth Lange 

Elliott Long 

Eric Godfrey 

Gene Lemmenes 

Glory Adams 

Hildy Feen 

James Anderson 

Jane Weber 

Janet Foust 

John H. Kraemer 

Judy Jolin 

Katie Groves 

Katy Aamodt 

Kim Dupre 

Kim Ward 

Kitty Belanger 

Kristy Jensch 

Laura Wirkkala (Me) 

Laurie Millane 

Liisa Aus Norwegen 

Lisa Shields 

Lois Kallunki 

Lorna Huh 

Lynn Ketchum 

Lynn Shoemaker 

Mark Smith 

Martha Munger 

Michael Mertes 

Nancy Eggleston 

Nancy Gathing 

Pam Fischer 

Patricia Finder-Stone 

Paul Field 

Ralph Novy 

Rita Hale 

Roger Adams 

Steven Eatough 

Sue Boehme 

Sue Savage 

Terry Woodward 

Todd Knutson 

William Hiller 

William Larsen 

Farmers/Ranchers/Business Owners: 

David Ellringer, Kubb Farm 

Gayle Gonsior, Morning View Farm 

Genie Metoyer, Metoyer-Brown Farm 

Jim Goodman, Northwood Organic Farm 

Michelle Dewitt, Today's Realty Solutions 

Organizations: 

Crawford Stewardship Project 

Family Farm Defenders 

Farms Not Factories 

Midwest Environmental Advocates 

Milwaukee Riverkeeper 

Religious Coalition for the Great Lakes 

20 
94 


28379.069

Sustain Rural Wisconsin Network 

WYOMING 

Concerned and/or Impacted Individuals: 

Brian Richardson 

Judith Wilson 

Organizations: 

Upper Green River Network 

21 
95 


28379.070

November 7, 2017 

The Honorable Greg Walden 

Chairman 

Committee on Energy & Commerce 

U.S. House of Representatives 

The Honorable Frank Pallone 

Ranking Member 

Committee on Energy & Commerce 

U.S. House of Representatives 

The Honorable John Shimkus 

Chairman 

Committee on Energy & Commerce 

Subcommittee on the Environment 

U.S. House of Representatives 

The Honorable Paul Tonko 

Ranking Member 

Committee on Energy & Commerce 

Subcommittee on the Environment 

U.S. House of Representatives 

Dear Chaitman Walden, Ranl<ing Member Pallone, Chairman Shimkus and Ranking Member Tonka, 

My name is Estela Garcia and a long time residence in Arvin, CA. Arvin is a community of around 20,000 

population, most of the community is Iatino and farm workers .. Our water in Arvin has been 

contaminated with Nitrates for which the City has been working on cleaning up .. Our water I know we 

are surrounded by Dairies and agriculture which I feel contribute to the contamination of our water. The 

cow manure is used in the agriculture very heavily. We have so many dairies that have been unregulated 

for many years, with their ponds unlined and polluting our water. 

I am afraid we could be risking our health if we drink the water. I do not want to see any of my family 

member or my community suffer because of these nitrates. I can not see some one get cancer, or 

deaths to infants because our water is contaminated with nitrates, or find out of health effects of blue 

baby syndrome. 

Our water quality has not been in compliance with the EPA standards. For this reason, our water district 

had to ask for multimillion loans, which means that we the costumers will have to pay for them. Then I 

have to spend another $50.00 for bottle water. I am able to this for now, but I am sure there are many 

families, who are farmworkers, who can not afford to pay for the bottle water, so their only choice is to 

drink the City water that is contaminated. Our community like many around here in California have to 

pay high rates. We have had 8 consecutive years in total of high water rates and I know it is not going to 

stop there. 

Our communities want to resolve these issues of contamination without having to sue. We have not 

been able to be successful to get the EPA and the State to clean up the nitrates in the water. 
96 


28379.071

I ask you to take into account our situation we find our selves in Delano and if it's with in your power to 

help our communities to stop the contamination of nitrates on our water, we will be widely appreciated. 

Sincerely _.,_/ /'/(~ 

~~~ 

Estel a Garcia. 

Arvin, CA 92302 
97 


28379.072

November 7, 2017 

Dear Chairman Walden, Ranking Member Pallone, Chairman Shimkus and Ranking Member 

Tonko, 

From 2009 to 2013 Dan Newhouse served as Director of the Washington State 

Department of Agriculture (WSDA}. During his tenure the dairy industry flourished in 

south central Washington, especially in the Lower Yakima Valley where the congressman 

farms. During that time the Environmental Protection Agency began an investigation into 

serious pollution of the aquifer in this area, pollution directly related to a cluster of dairy 

farms that operated in clear violation of their mandated nutrient management plans. 

Over sixty percent of domestic wells down gradient from this cluster of farms had nitrate 

pollution above the safe drinking water limit of 10 mg/L. One well had nitrates as high as 

234 mg/L. These dairies had approved nutrient management plans and were inspected by 

Dan Newhouse's staff. One operation, a former dairy showcase with the largest manure 

digester in the state, applied as much as seven times the recommended amounts of manure 

on some fields. WSDA turned a blind eye. The Director of the WSDA Dairy Nutrient 

Management Program explained it this way: the dairies are required to have nutrient 

management plans but they are not required to follow them. And they did not. 

Citizens have complained for years about polluted wells and foul air. Over 35% of all 

Washington milk cows,> 100,000, are maintained in a 271 square mile area in Yakima 

County. At the congressman's most recent town hall meeting in the impacted area dairies 

were at the top of citizen concerns. He continues to ignore our concerns. Agribusiness and 

dairy are the largest contributors to his war chest and he delivers, no matter the cost to the 

people who live in his own community. 

We are not wealthy people. When we asked one of the Washington State Attorneys 

General what average citizens can do when a neighbor's careless farming practices pollute 

our wells, Attorney Phyllis Barney answered in a few words: "They can sue." Litigation is 

our only realistic recourse. Litigation is expensive and not something we do lightly. But 

federal, state and local governments have failed to address the pollution that results when 

concentrated animal feeding operation (CAFO} dairies believe they are above the law. 
98 


28379.073

U.S. District Court judge Thomas 0. Rice was correct when he found that "Defendants' 

application, storage, and management of manure at Cow Palace Dairy violated RCRA's 

substantial and imminent endangerment and open dumping provisions." 

We may be poor but we are not stupid. We know that Yakima County dairies are making 

us sick and we know that government leaders, such as Dan Newhouse, have crafted and 

continue to craft legislation that attempts to shield this industry from any accountability 

for their actions. 

Please reject HR 848. 

Sincerely, 

jean Mendoza 

Executive Director, Friends of Toppenish Creek 

3142 Signal Peak Road 

White Swan, WA 98952 
99 


28379.074

November 7, 2017 

The Honorable Greg Walden 

Chairman 

Committee on Energy & Commerce 

U,S. House of Representatives 

The Honorable Frank Pallone 

Ranking Member 

Committee on Energy & Commerce 

U.S. House of Representatives 

The Honorable John Shimkus 

Chairman 

Committee on Energy & Commerce 

Subcommittee on the Environment 

U.S. Ilousc of Representatives 

The Honorable Paul Tonka 

Ranking Member 

Committee on Energy & Commerce 

Subcommittee on the Environment 

U.S. House of Representatives 

Dear Chairman Walden, Ranking Member Pallone, Chairman Shimkus and Ranking Member Tonka, 

My name is Gloria Herrera and a long time residence since 1970 in Delano, CA. Delano is a community of 

around ~5,000 population, most of the community is Iatino and farm workers .. Our water in Delano has 

been contaminated with Nitrates for which the City has been worl<ing on cleaning up. I know we are 

surrounded by Dairies and agriculture which I feel contribute to the contamination of our water. The 

cow manure is used in the agriculture very heavily. We have so many dairies that have been unregulated 

for many years, with their ponds unlined and polluting our water. 

I am afraid we could be risking our health if we drink the water. I do not want to see any of my family 

members or my community suffer because of these nitrates. I can not see some one get cancer, or 

deaths to infants because our water is contaminated with nitrates, or find out of health effects of blue 

baby syndrome. 

So our cost is high, we pay the City of Delano $115 per month if you are a senior or $135 flat rate and 

tha is for water I can not drink. Then I have to spend another $50.00 for bottle water. I am able to this 

for now, but I arn sure there are many families, who are farrnworkers, who can not afford to pay for the 

bottle water, so their only choice is to drink the City water that is contaminated. Our community like 

many others around here in California have to pay high water rates. We have had 8 consecutive years in 

total of high water rate increases and I know it is not going to stop there. 

Our communities want to resolve these issues of contamination without having to sue our communities. 

We have not been able to be successful to get the EPA and the State to clean up the nitrates in the 

water. 
100 


28379.075

I ask you to take into account our situation we find our selves in Delano and if it's with in your powers to 

help our communities to stop the contamination of nitrates on our Willer, we will be widely 

appreciative. Please reject any bills or laws that would continue to put our health in jeopardy in 

contaminating our waters with nitrates. 

~~t)~WI~ Gloria Herrera 

51 gth Ave 

Delano, CA 9215 
101 


28379.076

OPPOSE the FRC ACT: The so-called "Farm Regulatory Certainty Act" 

(a.k.a. the "Freedom to Ruin Clean Drinking Water" Act) 

Huge factory farms are located in rural areas where citizens often depend exclusively on private wells to 

supply them, and their families, with clean drinking water. These facilities, which house tens and even 

hundreds of thousands of animals adjacent to homes, schools and businesses, produce extraordinary 

amounts of waste. While most of these operations are good neighbors and manage waste appropriately, 

those that do nat pose serious threats to public health, including contaminating water with nitrates and 

bacteria that lead to increased rates of infant deaths, birth defects, and cancer. Forty years ago, 

Congress passed the Resource Conservation and Recovery Act (RCRA) to ensure that all wastes, including 

animal wastes, do not endanger communities. When other environmental statutes provide no recourse, 

RCRA allows citizens threatened by an imminent and substantial danger to sue a polluter. If they win a 

lawsuit under RCRA, citizens do not receive money. Rother, the polluter is required to fix the problem. 

This Discussion Draft: 

Creates a loophole for even the worst actors: As long as a facility is engaged in any sort of 

vague, undefined "administrative proceeding" for anything related to agricultural waste, no 

citizen can bring a RCRA enforcement action against it. For example, an industrial polluter facing 

a minor reporting violation could inflict wildly disproportionate (and unrelated) harm on a 

community without any accountability. That's like saying someone gets a free pass for a hit-andrun if she is currently contesting a speeding ticket. 

Pulls a bait-and-switch: The legislation's sponsors purport to be "clarifying," yet the language 

makes profound statutory changes designed to eliminate the legal rights of rural communities 

that are harmed by industrial pollution and have no other recourse to fix the problem. 

Slams the courthouse doors in the faces of communities with no other options: The actions 

targeted by this bill are last resort options used in only the most extreme cases when no other 

remedies are available. Without this option, communities are completely reliant on the 

government to fix the problem. 

Setting the record straight: this bill would lower citizens' protections against industrial pollution. 

Farmers do NOT face "double jeopardy" under RCRA and other laws. RCRA already includes a 

"nonduplication provision," which ensures it fits together with other environmental statutes like 

puzzle pieces, without overlap. 

RCRA already contains protections against frivolous, duplicative, or unnecessary litigation, 

which have worked effectively for decades. Citizen suits under RCRA are prohibited when EPA 

or the State are engaged in diligent prosecution of the polluter. 

RCRA does not apply where the Clean Water Act (CWA) applies. The same pollution is generally 

not covered by both the CWA and RCRA. These statutes have always addressed different harms. 

RCRA already exempts manure or crop residue that is going to be reused (i.e. returned to the 

soil as fertilizer or soil conditioner). Only manure that is disposed of, rather than used, opens the 

door for RCRA violations. 

Congress Must Protect the Resource Conservation and Recovery Act 

So Citizens Can Protect Themselves 

Contact: Valerie Baron, Natural Resources Defense Council (ybaron(wnrdc.org) 202-717-8232 

cumr~uu<c'r. Public Justice (i£.\llj;l.§JQgf..@publicj!Js!in'.net) ?02-797-8600 
102 


28379.077

OPPOSE the FRC ACT: The so-called "Farm Regulatory Certainty Act" 

(a.k.a. the "Freedom to Ruin Clean Drinking Water" Act) 

Factory Farms 

Factory farms-known technically as Concentrated Animal Feeding Operations (CAFOs)-are the largest 

animal agriculture operations. Each facility typically holds thousands, tens of thousands, or even 

hundreds of thousands of animals. The U.S. Environmental Protection Agency (EPA) estimates that there 

are approximately 20,000 CAFOs in the country, making up only a small percentage of the nation's 

farms. 

Because CAFOs confine so many animals at once, they produce much more manure then can properly 

serve as a fertilizer in one place. One herd of 11,000 dairy cows produces as much waste as a city of 

more than 1.8 million people-more than the population of Philadelphia. While urban human waste 

undergoes treatment before it is discharged or applied to land, typically animal waste from CAFOs is 

never treated. Instead it is spread or sprayed on land, stored in large lagoons, or indiscriminately left in 

piles, allowing it to leach into water resources. This waste includes animal feces and bodily fluids and is 

laden with chemicals like nitrogen, pathogens, and veterinary pharmaceuticals including antibiotics. 

The Cow Palace Dairy Case 

The citizens of Yakima Valley, Washington battled five CAFOs that were contaminating drinking water 

with nitrates. For nearly 15 years, the citizens asked the EPA and state agencies to protect their drinking 

water. The largest of these dairy facilities, Cow Palace, confines 11,000 cows and produces more than 7 

times the quantity of waste as the County's human population. In 2012, the EPA concluded that these 

dairies caused more than 60 percent of the nitrate pollution in the county's drinking water, but took no 

action. EPA entered into a consent decree with these facilities, but it was insufficient to protect drinking 

water; it did not solve the problem. Left with no other recourse, local group Community Association for 

Restoration of the Environment and the Center for Food Safety brought a lawsuit. 

The court found that the dairies were not following the rules; they disregarded the very nutrient 

management plans designed to ensure they applied their manure properly as a fertilizer. In other words, 

rather than using manure as a benefit to the land and crops, the dairies were simply discarding millions 

of additional gallons of it that leached into groundwater. This resulted in groundwater that dangerously 

exceeded the EPA's nitrate limits. The court concluded the dairies were dumping waste into the 

environment and causing an imminent and substantial endangerment to public health, and the dairies 

agreed to settle the lawsuit. As a result, for the first time in 15 years, the community is guaranteed safe 

drinking water. 

Contact: Valerie Baron, Natural Resources Defense Council (vbaron@nrdc.org) 202-717-8232 

Jessica Culpepper, Public Justice (k\!lQQJ2PJ~r..@illillllflustice.net) 202·797-8600 
103 


28379.078

The Honorable Greg Walden 

Chairman 

Committee on Energy & Commerce 

U.S. House of Representatives 

2185 Rayburn House Office Building 

Washington, D.C. 20515 

The Honorable Frank Pallone 

Ranking Member 

Committee on Energy & Commerce 

U.S. House of Representatives 

237 Cannon House Office Building 

Washington, DC 20515 

The Honorable John Shimkus 

Chairman 

Committee on Energy & Commerce, 

Subcommittee on the Environment 

U.S. House of Representatives 

2217 Rayburn House Office Building 

Washington, D.C. 20515 

The Honorable Paul Tonko 

Ranking Member 

Committee on Energy & Commerce, Subcommittee on the Environment 

U.S. House of Representatives 

2463 Rayburn House Office Building 

Washington, DC 20515 

Dear Chairman Walden, Ranking Member Pallone, Subcommittee Chairman Shimkus, and 

Subcommittee Ranking Member Tonko: 

I am the co-founder/Program Manager of the Rural Empowerment Association for Community 

Help (REACH) of Duplin County, North Carolina. REACH has been empowering the citizens of 

Duplin County since 2002. 

Ranking second nationally in hog production, North Carolina faces unprecedented environmental 

devastation and health risks from factory farm waste. Over the decades, hog farms have become 

most concentrated in Eastern North Carolina, which is home to the ten counties with the highest 

density of swine in the country. A majority of rural African-Americans also reside in this part of 

the state. There is a documented, disproportionate impact on people of color from these factory 

farms. Earlier this year, the U.S. EPA Office of Environmental Justice raised concerns about the 

problems caused by these hog operations and expressed "grave concerns" about threats and 

intimidation against the minority residents who complained about these problems. 
104 


28379.079

Many residents of Duplin Cotmty have relied on well water for their sole sources of drinking 

water. Water is essential to life, and we should all have access to clean drinking water. 

Communities living around these industrial farming operations must deal with a lot of problems 

- from asthma to the stench to contsminated water. 

Access to clean drinking water for our families should not be at the whim of these operators. It is 

a basic human right. As a community who deals every day with the health and quality oflife 

impacts of industrial animal agriculture, we stand in solidarity with other communities facing 

similar threats. 

Any community should be allowed to demand that factory farms stop contaminating their 

drinking water. We are deeply troubled that the Discussion Draft seeks to eliminate the ability 

for communities to fight on their own behalf. Residents who rely on well water have no other 

place to torn for help. 

Sincerely, . 1 "(} 

~~A.~ 

Devon J. i'fall, Sr. 
105 


28379.080

From:Charles M Tebbutt PC 541 344 3516 1110612017 16 11 

CARE 

Community Association for 

Restoration 

The Honorable Greg Walden 

Chairman 

of the Environment 

Committee on Energy & Commerce 

U.S. House of Representatives 

2 J 85 Rayburn House Office Building 

Washington, D.C. 205 J 5 

The Honorable Frank Pallone 

Ranking Member 

Committee ori Energy & Commerce 

U.S. Hf)use of Representatives 

237 Cannon House Office Building 

Washi~gton, DC 20515 

The Honorable Jolm Shimkus 

Chairman 

Committee on Energy & Commerce, 

Subcommittee on the Environment 

U.S. House of Representatives 

2217 Rayburn House Office Building 

Washington, D.C. 20515 

The Honorable Paul Tonko 

Ranking Member 

Committee on Energy & Commerce, Subcommittee on the Environment 

U.S. House of Representatives 

2463 Rayburn House Office Building 

Washington, DC 20515 

#124 P.0011002 

Dear Chairman Walden, Ranking Member Pallone, Subcommittee Chairman Shimkus, 

and Subcommittee Ranking Member Tonko: 

I am 81 years young, have lived in the Yakima Valley of Washington for over 60 

years, obtained my college degree while raising five children, taught school, and raised 

cherries and apples with my husband (now passed) for that whole time. The big dairies 

started moving into the Lower Yakima Valley in the late 1970's. They have since 

continued to expand, outstripping the ability of the land to handle the massive amounts of 

manure produced by the back end of the milk business. The big dairies use the land to 

get rid of their manure by overapplying to fields and putting their liquids in huge holes in 

the ground that leak to the groundwater we depend upon for life. 

I am the president of Community Association for Restoration of the Environment 

(CARE) and have been since 1997, We have fought to protect our quality of life since 

before that time. We have about 80,00 dairy cows in a hundred square mile area. The 

federal and state agencies charged with protecting people and the environment have 
106 


28379.081

failed us miserably. The only thing that has been effective in changing the dairies' 

practices over the years has been citizen enforcement of the Clean Water Act, and more 

recently, the Resource Conservation and Recovery Act (RCRA). Now that we have used 

RCRA as it was originally intended, our own Congressman Newhouse seeks to take away 

one of the few tools we have to protect ourselves from the onslaught of manure pollution. 

Over the years the dairymen have tlneatcned me personally, run me off the road 

for exercising my right to challenge their unlawful practices, pressured employers to fire 

family members of mine, and tried to make life even more miserable for those us who 

speak out against their atrocious behavior. I have testified in federal courts and before 

national commissions about these abuses. Through it all, our only successes have been 

tlnough the federal environmental statutes. We have tried to sit down with the dairy 

industry over the years, but they have, until the recent RCRA enforcement successes, 

only dug in their heels further. The problem is far from solved. 

We expect that you will hear testimony from the Washington State Dairy 

Federation about how RCRA is being misused by us poor little citizens. Well let me tell 

you: if you take away our most effective means of holding these massive concentrated 

animal feeding operations accountable for their inesponsible behavior, then we have no 

hope of ever recovering the quality of life we once enjoyed in this beautiful fannland and 

in the scores of similar rural communities I have visited over the past few decades. 

I grew up on daity farm in Missouri, so I know what a farm smells like. These 

CAFOs are industrial operations, not the farms that we once knew. It is unfair and onAmerican that they are able to dump their manure on the community, poison our drinking 

water, and go on as if nothing is wrong. Any other industry doing this would be told to 

stop and if they couldn't, they'd be shut down. Magically resolving that manure is not 

manure WILL NOT solve this problem and taking what little control the public has over 

this filthy problem will not improve the situation. 

After all these years and all the evidence we the people have collected, we still 

have hope that the government will protect us from getting dumped on. Please don't dash 

any remaining hope we might still have by taking away one of the few opportunities we 

have to try to protect ourselves while the bureaucracy continues to willfully ignore us. 

Please kick this bill into the trash heap where it belongs and send a message that people 

still matter. 

ZOO/ZOO. d Pol# 

Respectfully Yours, 

r

1 .. A

1

/ c o. t -t>U__..')(._ 

Helen Reddout 

President, Community Association for Restoration of the 

Environment 
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Letter from The Guardians of Grand Lake St. Marys to be Considered 

before the Environmental Subcommittee, 

Committee on Energy and Commerce, 

U.S. House of Representatives 

Hearing on the Discussion Draft of H.R. __ , 

The Farm Regulatory Certainty Act of2017 

November 9, 2017 

Dear Chairman Walden, Ranking Member Pallone, Subcommittee Chairman Shimkus, and 

Subcommittee Ranking Member Tonko: 

The Guardians of Grand Lake St. Marys, Inc. (The Guardians) writes to share our grave 

concern with The Farm Regulatory Certainty Act offered by Rep. Newhouse. As an organization 

comprised of community members surrounding the most polluted lake in Ohio, Grand Lake St. 

Marys, which is the sole source of drinking water for the town of Celina, we are alarmed at the 

language in this bill. The text of the bill as it stands would strip our right to stand up for our 

drinking water and the source of tourism for our community simply because a government 

official is conducting any proceeding dealing with manure management. Effectively, we would 

lose our rights to stop polluters from further contaminating our lake over a reporting violation. 

We write to ask you not to slam the courthouse doors in our face. 

The Guardians is registered with the Ohio Secretary of State as a not-for-profit 

organization. It was incorporated on March 11, 2013 for the purpose of educating the public of 

the actual level of microcystin in Grand Lake St. Marys; and to ensure that all parties with 

legal responsibility for protecting Grand Lake St. Marys and its tributaries are abiding by all 

federal and state environmental laws and regulations through legal, scientific, economic, political 

and educational actions. The Guardians are committed to lowering the level of pollution in 

Grand Lake St. Marys by reducing nutrients from point and non point pollution. The Guardians 

1 
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emphasis has been to identify mismanagement of the related watershed and push for a strong 

effort to clean-up Grand Lake St. Marys, which is one of the most polluted bodies of water in 

Ohio and is the only designated "'distressed watershed" in Ohio. Grand Lake St. Marys is a 

public state park with historical significance. 

One of our goals is to ensure that agriculture is complying with the law, and there are 

many facilities in the watershed where the state agencies are working with the facilities to 

comply with their permits that we monitor. Our community has never had to initiate a citizen 

suit against a bad actor, and we hope we never have to. However, under the language of this bill, 

those actions, no matter how minor or unrelated to a violation of the Resource Conversation and 

Recovery Act, would prevent us from ever being able to use this law to protect our lake, our 

drinking water, and our community from harm. And there is serious risk of harm in our 

community due to Harmful Algal Blooms. 

Even though we are just regular community members that live around the lake, we have 

become experts in cyanobacteria, the blue-green algae that creates harmful algae blooms like the 

one that forced Toledo to warn its residents not to drink their water. Cyanobacteria release 

harmful toxins, including microcystin, which is the major problem in Grand Lake St. Mary. We 

regularly have levels ofmicrocystin more than four times the safety threshold set by the World 

Health Organization. 1 Microcystin can cause serious liver toxicity, severe gastrointestinal 

distress, kidney toxicity, pneumonia, blistering on contact, and can lead to death. Currently, the 

Ohio Health Department has posted a "No Contact'' advisory for the water in the lake. 2 In 2016, 

the levels of microcystin in the lake reached !80 ppb, even though sensitive populations like 

infants and pregnant women are in danger at levels as low as 0.3 ppb. 

1 NOAA- Great Lakes Environmental Research Laboratory, "Microcystin and Other Algal Toxin Guidelines" 

https :/ /www .glerl. noaa. gov I res/HABs _and_ Hypoxia/ mi crocysti nGui deli nes.htm I 

2 Ohio Department of Health, BEACHGUARD Advisories, http://publicapps.odh.ohio.gov/beachguardpublic/ 

2 
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Members of the Guardians are residents on and surrounding the lake, or are regular 

tourists there. Members of the Guardians used to regularly use and enjoy the Grand Lake St. 

Marys, including boating, fishing, swimming, and watersports, but with the posting by the Ohio 

Department of Health to have "no contact with the water," our use is now very limited without 

endangering our lives. For example, in 2015, an Indiana woman got extremely sick when she fell 

off her jet-ski into the lake. Additionally, many in our community rely on Grand Lake St. Marys 

as their source of drinking water, which has been compromised heavily by agricultural pollution 

and has required millions of dollars of extra filtration that is still unable to filter all algae and 

pharmaceuticals from the drinking water. 

Other members own or work for industries that benefitted from tourism to Grand Lake St. 

Marys. We have lost our investments, our businesses, and our livelihoods because of the loss of 

3 
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tourism due to the pollution. Our summer tourism is a $!50-million-a-year industry for the small 

towns and cities surrounding the lake 3 However, because the pollution in the lake is so severe 

and the water is such a public health hazard, our annual sailing regatta has been cancelled, and 

the number of visitors coming are shrinking. Our property values are plummeting as a result. 4 

Over a decade ago, the lake was designated as a distressed watershed, and a 2007 EPA 

report called for reducing manure runoff from farms by 99 percent. 5 The citizens in Auglaize 

and Mercer counties have been waiting for nearly two decades for the State of Ohio to clean up 

Grand Lake St. Marys. 

"Daily Standard- April 26, 2017 

CELINA- City officials are planning a half-million-dollar expansion of 

the water treatment plant to improve quality and to prepare for any 

future treatment standards .... Plant superintendent Mike Sud man said 

the new process would treat for "remaining disinfection byproducts prior 

to the chlorine being added, any kind ofminute pharmaceutical that 

could be remaining, algal toxins that could get through the carbon." 

"Currently these are things that we're not testing for but are on the radar 

,"Sud man said, adding the EPA will soon release a list of necessary tests." 

For a decade, the State of Ohio has had the tool to clean up our lake with the "Total 

Maximum Daily Load" plan, which specifically spells out that approximately 90-l 00% of all 

phosphorous, nitrates and fecal coliform should be stopped from coming into GLSM if there is 

any hope of cleaning up the lake. However, the citizens of Auglaizc and Mercer counties are 

still waiting for a serious cleanup effort that actually addresses the source of the pollution. Any 

true cleanup effort cannot ignore the agricultural contributors, which are a major source of our 

3 Lake Improvement Association, Economic Impact of Grand Lake St. Marys, 

https://lakeimprovement.com/economy/ 

'The Ohio State University, Algal blooms cost Ohio homeowners $152 million over six years, 

https:/ /news.osu.edu/news/2017/08/17 /algaehouse/. 

5 Ohio EPA, Beaver Creek and Grand Lake St. Marts Watershed TMDL Report, 

http:/ I epa.oh io .gov /porta ls/3 5 /tm d 1/ GLSMfactsheet%20Fi na l%200ct07. pdf 

4 
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problem. If there is a bad actor that is severely mismanaging manure, there is no more critical 

place than Grand Lake St. Marys to address the problem. If the government is not or cannot 

address a threat to our health, then the citizens around Grand Lake St. Marys deserve to know 

that they can take action to make their drinking water and recreational waters are safe. Given 

the serious public health crisis we are facing, and the failure of the government to properly 

address it, we are asking you not to shut the courthouse doors for our citizens to stop a polluter 

from contributing to the problems in our watershed. 

Respectfully, 

Kate Anderson 

Kate Anderson, President 

Guardians of Grand lake St. Marys 

5 
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JOHNS HOPKINS 

CENTER for A LIVABLE FUTURE 

The Johns Hopkins Center for a Livable Future 

Bloomberg School of Public Health 

615 North Wolfe Street, W7010 

Baltimore, MD 21205 

November 9, 2017 

Environment Subcommittee 

House Energy and Commerce Committee 

2125 Rayburn House Office Building 

Washington, D.C. 20515 

Disclaimer: The opinions expressed herein are our own and do not necessarily reflect the views of The 

Johns Hopkins University. 

RE: Farm Certainty Regulatory Act discussion draft 

Dear Members of the House Environment Subcommittee. 

We are researchers at The Johns Hopkins Center for a Livable Future, based at the Bloomberg School of 

Public Health in the Department of Environmental Health and Engineering. The Center engages in 

research, policy analysis, education, and other activities guided by an ecologic perspective that diet, food 

production, the environment, and public health are interwoven elements of a complex system. The Center 

also recognizes the prominent role that food animal production plays regarding a wide range of public 

health issues surrounding that system. We are writing to express our concerns regarding the discussion 

draft before you today based on House Resolution (I !R) 848. the Farm Certainty Regulatory Act, which 

seeks to eliminate one of the only methods for public defense against the pollution of drinking water by 

agricultural activities such as the over application of animal waste and crop residue. We believe that HR 

848, and any similar versions of it, would have serious implications for the health of rural citizens, many 

of whom rely on private wells for drinking and household use. '.2 Passing HR 848 would severely limit 

the ability of citizens to protect and defend their water and health from groundwater pollution. 

Over the last 60 years, food animal production has shifted from an extensive system of small and 

medium-sized farms to one characterized primarily by large-scale, industrial operations that concentrate 

large numbers of animals in small geographic areas. 3 This transition to large, high-density. confined 

animal feeding operations has resulted in the routine accumulation of large volumes of animal waste, 

often at rates far exceeding the capacity of nearby farmland to absorb it. 4 As a result, the excess waste 

produced by these operations is disposed of in a manner that can pollute surface and groundwater 

resources, and therefore represents a signitkant public health and ecological hazard. 4

·

5 

This excess waste can contain nitrates, antibiotic residues and other animal drugs, pathogens, and other 

hazards, 6

"

10 and studies have found that people can be exposed to these contaminants when they swim or 

engage in other recreational activities in water impacted by waste and by drinking the contaminated 
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2 

water. 9

'

11 Contamination by pathogens can potentially cause a waterborne disease outbreak, 4 and studies 

have demonstrated that exposure to elevated levels of nitrates in drinking water is associated with adverse 

health effects, including cancer, 12·

15 birth defects and other reproductive problems, 11 ·

12•

16.1 7 thyroid 

problems, 1

1.1 2 diabetes mellitus, 18•

20 and methemoglobinemia (blue baby syndrome, a potentially fatal 

condition among infants). 1

1.2 1 

Citizen suits under the Resource Conservation and Recovery Act (RCRA) provide a much needed avenue 

for recourse against the pollution of private groundwater wells, especially since groundwater and private 

wells arc not covered by existing federal regulation; the Safe Drinking Water Act does not apply to 

private wells, 22·

23 the Environmental Protection Agency does not regulate private groundwater wells, 23·

24 

and the Clean Water Act only applies to navigable, or surface, waters. 25 HR 848 and similar draft 

legislation would, therefore, severely limit the ability of citizens to seek remediation for the pollution of 

their groundwater by agricultural waste. 

Thank you for considering our concerns. We hope that our description of the public health risks posed by 

l-!R 848 and similar versions of the bill is helpful in your deliberation of this legislation. We welcome the 

opp011unity to discuss this further and answer any questions you many have. Please contact us at ( 41 0) 

502-7578 or by emailing Bob Martin, Director of the Food System Policy Program, at rmarti57@jhu.edu. 

Sincerely, 

James D. Yager, PhD 

Professor, Department of Environmental Health & Engineering 

Edyth H. Schoenrich Professor, Emeritus 

Interim Director, Center for A Livable Future 

Johns Hopkins Bloomberg School of Public Health 

Keeve E. Nachman, PhD, MHS 

Assistant Professor, Departments of Environmental Health & Engineering, and Health 

Policy and Management 

Johns Hopkins Bloomberg School of Public Health 

Program Director, Food Production and Public Health 

Johns Hopkins Center for a Livable Future 

Johns Hopkins University 
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Robert Martin 

Senior Lecturer, Department of Environmental Health & Engineering 

Johns Hopkins Bloomberg School of Public Health 

Program Director, Food System Policy 

Johns Hopkins Center for a Livable Future 

Johns Hopkins University 

4~ Carolyn Hricko, MPH 

Research Program Manager, Food System Policy 

Johns Hopkins Center for a Livable Future 

Johns Hopkins University 

Department of Environmental Health & Engineering 

Johns Hopkins Bloomberg School of Public Health 

References I. American housing survey for the united states: 2007. U.S. Census Bureau, Current 

Housing Reports, Series Hl50/07 Web site. httos://www.census.gov/prod/2008pubs/h 150-07.pdf. 

Published September 2008. Accessed August 3, 2017. 

2. Picture of america: Drinking water quality. Centers for Disease Control and Prevention Web site. 

httos://www.cdc.gov/picturcofamerica/pdfs/picture of america drinking water. pdf Accessed August 3, 

2017. 

3. The Pew Charitable Trusts and Johns Hopkins University Bloomberg School of Public Health. Putting 

meat on the table: Industrial farm animal production in america. Washington: DC'. 2008. 

4. Literature review of contaminants in livestock and poultry manure and implications for water quality. 

United States Environmental Protection Agency Web site. 

http://water.epa.gov/scitech!cec/upload/Literature-Rcview-of-Contaminants-in-Livestock-and-PoultryManure-and-lmplications-for-Water-Quality.pdf;. Updated July 2013EPA 820-R-13-002. 

5. Summary of the resource conservation and recovery act, 42 U.S.C. §6901 et seq. (1976). United States 

Environmental Protection Agency Web site. https://www.epa.gov/laws-regulations/summary-resourceconservation-and-recovery-act. Updated 2017. Accessed August 28,2017. 

6. Heaney CD, Myers K, Wing S, Hall D, Baron D, Stewart JR. Source tracking swine fecal waste in 

surface water proximal to swine concentrated animal feeding operations. Sci Total Environ. 

2015;511:676-683. 
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4 

7. Spencer JL, Guan J. Public health implications related to spread of pathogens in manure from livestock 

and poultry operations. Public Health Microbiology: Methods and Protocols. 2004:503-515. 

8. Graham JP, Nachman KE. Managing waste from confined animal feeding operations in the united 

states: The need for sanitary reform. Journal of water and health. 201 0;8( 4):646-670. 

9. Showers WJ, Genna B, McDade T, Bolich R, Fountain JC. Nitrate contamination in groundwater on an 

urbanized dairy farm. Environ Sci Techno/. 2008;42(I3):4683-4688. 

I 0. Relation between nitrates in water wells and potential sources in the lower yakima valley, washington 

state. U.S. environmental protection agency, washington, D.C., 20I2.<br />Link: 

Https://Www3 .epa.gov/region 1 0/pdf/sites/yakimagw/nitrale _in_ water_ wells _study_ 9-27-20 12.pdf. 

11. Burkholder J, Libra B, Weyer P, ct a!. Impacts of waste from concentrated animal feeding operations 

on water quality. Environ Health Perspect. 2007:308-312. 

12. Ward MH. Too much of a good thing? nitrate from nitrogen fertilizers and cancer. Rev Environ 

Health. 2009;24( 4):357-363. 

13. Chiu H, Tsai S, Yang C. Nitrate in drinking water and risk of death from bladder cancer: An 

ecological case-control study in taiwan. Journal of Toxicology and Environmental Health, Part A. 

2007;70(!2): 1000-1004. 

14. Gulis G, Czompolyova M, Cerhan JR. An ecologic study of nitrate in municipal drinking water and 

cancer incidence in trnava district, slovakia. Environ Res. 2002;88(3): 182-187. 

15. Ward MH, Kilfoy BA, Weyer PJ, Anderson KE, Folsom AR, Cerhan JR. Nitrate intake and the risk of 

thyroid cancer and thyroid disease. Epidemiology. 2010;21(3):389-395. 

16. Manassaram DM, Backer LC, Moll DM. A review of nitrates in drinking water: Maternal exposure 

and adverse reproductive and developmental outcomes. Environmental Health Perspectives. 2006. 

17. Brender JD, Weyer PJ. Romitti PA, eta!. Prenatal nitrate intake from drinking water and selected 

birth defects in offspring of participants in the national birth defects prevention study. Environ Health 

Perspect. 2013; 121(9): 1083-1089. 

18. Kostraba JN, Gay EC, Rewers M, Hamman RF. Nitrate levels in community drinking waters and risk 

of IDDM. an ecological analysis. Diabetes Care. 1992; 15(11 ): 1505-1508. 

19. Parslow R, McKinney P, Law G, Staines A, Williams R, Bodansky I-1. Incidence of childhood 

diabetes mellitus in yorkshire, northern england, is associated with nitrate in drinking water: An 

ecological analysis. Diabetologia. 1997;40(5):550-556. 

20. de la Monte, Suzanne M, Ncusner A, Chu J, Lawton M. Epidemiological trends strongly suggest 

exposures as etiologic agents in the pathogenesis of sporadic alzheimer's disease, diabetes mellitus, and 

non-alcoholic steatohepatitis. J Al;:;heimer's Dis. 2009; 17(3):519-529. 

21. Knobeloch L, Salna B, !logan A, Postle J, Anderson fl. Blue babies and nitrate-contaminated well 

water. Environ Ilealth Perspect. 2000; 1 08(7):675-678. 
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22. Understanding the safe drinking water act. United States Environmental Protection Agency Web site. 

https://www.epa.gov/sites/production/filcs/20 15-04/documents/epa816fl)4030.pdf. Updated 2016. 

Accessed August 31, 20 17. 

23. Fox MA, Nachman KE, Anderson B, Lam J. Resnick B. Meeting the public health challenge of 

protecting private wells: Proceedings and recommendations from an expert panel workshop. Sci Total 

Environ. 2016;554:113-118. 

24. Drinking water: Private ground water wells. Centers for Disease Control and Prevention Web site. 

https:!/www.cdc.gov/healthywater/drinking/private/wells/index.html. Updated December 16, 2014. 

Accessed August 3, 2017. 

25. Summary of the clean water act. 33 U.S.C. §1251 et seq. (1972). United States Environmental 

Protection Agency Web site. https://www.epa.gov/laws-regulations/summarv-clean-water-act. Updated 

2017. Accessed August, 28,2017. 

5 
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November 7, 2017 

The Honorable Greg Walden 

Chairman 

Committee on Energy & Commerce 

U.S. House of Representatives 

2185 Rayburn House Office Building 

Washington, D.C. 20515 

The Honorable John Shimkus 

Chairman 

Committee on Energy & Commerce, 

Subcommittee on the Environment 

U.S. House of Representatives 

2217 Rayburn House Office Building 

Washington, D.C. 20515 

The Honorable Frank Pallone 

Ranking Member 

Committee on Energy & Commerce 

U.S. House of Representatives 

237 Cannon House Office Building 

Washington, DC 20515 

The Honorable Paul Tonka 

Ranking Member 

Committee on Energy & Commerce, Subcommittee on 

the Environment 

U.S. House of Representatives 

2463 Rayburn House Office Building 

Washington, DC 20515 

Dear Chairman Walden, Ranking Member Pallone, Subcommittee Chairman Shimkus, and 

Subcommittee Ranking Member Tonko: 

We, the undersigned Washington State public interest groups, write today regarding H.R. 848, a 

proposed amendment to the Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq., otherwise 

known as the Resource Conservation and Recovery Act. The bill, sponsored by Rep. Newhouse 

(R-Wash.), would exclude from the definition of"solid waste" any "animal or crop waste, 

manure, or fertilizer or constituents derived from such animal or crop waste, manure, or 

fertilizer." It would also create a special provision for the agricultural industry that prohibits the 

filing of an enforcement suit against a polluting operation if an "administrative proceeding," civil 

action or criminal case is ongoing. without ensuring that the government's action will remediate 

the harm. If passed, the bill would create an unprecedented legal shield for industrialized 

agriculture to contaminate the public's air, land, and water. We urge you to take all appropriate 

action to ensure that this bill is defeated, for it puts Americans in danger and threatens to 

undermine one of our nation's greatest assets: clean, potable groundwater. 

H.R. 848, sponsored by industrial agricultural special interests. is a direct reaction to the Cow 

Palace litigation, a set of successful citizen lawsuits brought against large dairy Concentrated 

Animal Feeding Operations, or CAFOs, in the Lower Yakima Valley of Washington. Residents 

living in the Valley have been forced to deal with nitrate-contaminated groundwater for decades. 

The extent of that contamination was brought to light in 2008, when a public elementary school 

in Outlook, W A tested above the federal "Maximum Contaminant Level" or "MCL" for 

nitrates. 1 While the children were provided bottled water as a temporary fix, the cause of the 

problem, industrial dairies, was ignored by both state and federal entities. 

1 Leah Beth Ward, Hidden Wells, Dirtv Water, available at 

hl\£§.://www.eentcrforhe~lthjournalisn;.org/fellowships/projects/investigation-water-wells-ruralwashinton. 
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In October 2008, the Yakima-Herald Republic published the results of its independent 

investigation into the Lower Yakima Valley's widespread nitrate contamination. The newspaper 

found that no regulatory agency understood the extent of the contamination or had evaluated 

which areas would be at risk of consuming water in excess of the nitrate MCL. Residents that 

were interviewed acknowledged that their wells had been found unsafe, but could not afford 

expensive, point-of-use reverse osmosis machines to clean their water. More troubling, 

journalists discovered "that broader efforts to scientifically identify and monitor groundwater 

pollution have been thwarted by the dairy and livestock industries which in Yakima County 

account for an estimated 115,000 dairy cows and beef cattle living in concentrations as great as 

8,000 per farm."2 In fact, a dairy CAFO with just 2,500 mature dairy cows produces as much 

waste as a human population of 411,000 residents. 3 The key difference: human waste is treated 

in sophisticated waste treatment facilities, whereas cow manure is stored in unlined lagoons and 

dumped on fields as untreated waste. 

As a result of the Yakima-Herald Republic's investigation, the United States Environmental 

Protection Agency ("EPA") finally took notice and, in 2010, began sampling groundwater from 

private wells throughout the Yakima Valley4 After three years of testing and analysis, the EPA 

issued a final report, finding that five large dairy facilities were a likely source of widespread 

nitrate contamination documented in groundwater found downgradicnt of the facilities.' 

Shortly thereafter, the EPA entered into an agreed order with the dairies under the Safe Drinking 

Water Act. Local residents were incensed that the agreement did not require meaningful changes 

at the dairy facilities that would remediatc the groundwater. Instead, residents viewed the 

agreement as a series of half-measures, effectively allowing nitrate contamination to continue to 

the detriment of the Valley residents that rely upon groundwater for drinking water. 

Consequently, organized residents retained attorneys and provided requisite pre-suit notice under 

the Resource Conservation and Recovery Act (''RCRA"), alleging that the five dairies had 

mishandled their manure in such a manner that caused or contributed to an imminent and 

substantial endangerment to human health and the environment. The state and federal 

governments had the opportunity to step in to take over the suits but did not. 

On February 14,2013, the Community Association for Restoration ofthc Environment, Inc. 

(''CARE") and the Center for Food Safety ("CFS") brought suit against each of the owners of the 

2 1d. 

3 Relation Between Nitrate in Water Wells and Potential Sources in the Lower Yakima Valley 

Report, EPA-910-R-13-004, p. 31 n. 21. Available at 

https://www3.epa.gov/region! 0/pdt/sites/vakimagw/nitrate in water wells study march20 13.p 

df. 

~S'ee EPA website, ''Lower Yakima Valley Groundwater," available at 

<https :/ /yosemite.epa.gov /r 1 0/water.nsf/ gwpu/1 yakimag> 5 Relation Between Nitrate in Water Wells and Potential Sources in the Lower Yakima Valley 

Report, EPA-910-R-13-004, available at 

https://www3.epa.gov/region 1 0/pdf/sites/yakimagw/nitrate in water wells study march2013.p 

Qf. 
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dairy facilities. The crux of the lawsuits was that the dairy facilities had discarded their manure, 

eliminating its use as a crop fertilizer and transforming it into a "solid waste" under RCRA. To 

that end, the Plaintiffs established that the Cow Palace Dairy, one of the dairy defendants, had 

grossly over-applied manure to its crop fields, stored manure in lagoons that the defendant knew 

leaked and were in fact designed to leak, and com posted manure on bare ground, allowing 

manure nutrients to leach into the soil and groundwater6 

The consequence of this mishandling of manure was the significant and widespread nitrate 

contamination of the underlying aquifer. The Court concluded that "ft]he undisputed facts are 

that residential wells downgradient of the Dairy exceed the maximum contaminant level, as 

established by the EPA," and that even if the Dairy were taking steps to "reduce" the risk of 

danger posed by consumption of water in excess of that maximum contaminant level, "the risk 

still remains to these residents," as well as to those in the flow path of the contamination from 

the Dairy site. 7 

After the Court found in the Plaintiffs' favor in the Cow Palace Dairy case, the remaining dairies 

entered into binding Consent Decrees. Those Decrees required the dairies to fund a Clean 

Drinking Water Program, which provides clean drinking water or installation of a reverse 

osmosis machine to residents within the dairies' contamination plume. They also required major 

structural and operational changes at the dairy facilities to ensure that manure would be stored in 

lagoons that do not leak, composted on areas that prevent leaching, and applied to fields in a 

manner that maximizes its function as a crop fertilizer while also protecting groundwatcr8 

The Cow Palace decision emphasizes the importance of the distinction Congress drew between 

wastes that arc "returned" to the soil as fertilizer and wastes which are merely dumped onto 

fields as a method of disposal. As described in H.R. Rep. No. 94-1491(1), Congressional intent 

in passing RCRA was that "[a]gricultural wastes which are returned to the soil as fertilizers or 

soil conditioners are not considered discarded materials in the sense of this legislation." 

(emphasis added) (see also 1976 U.S.C.C.A.N. 6238, 6240). On the one hand, farmers who use 

the tools available to them to use animal wastes as fertilizer are not "discarding" their manure, 

but rather putting it to beneficial re-use. These are the farmers that Congress intended to protect 

from RCRA 's requirements, as they arc ·'returning" agricultural wastes to the soil for 

fertilization. 

On the other hand, farmers who dump millions of gallons of manure onto their fields after 

receiving soil testing showing no agronomic need for additional fertilization -like Cow Palace 

Dairy, Bosma Dairies and George DeRuyter Dairies- do not beneficially recycle that manure. 

They discard it, because the crops cannot make use of the extra manure nutrients. The same is 

true for facilities that store manure in lagoons that leak (and are, in fact, designed to leak) and 

compost manure on bare ground. Those wasted nutrients especially nitrate- move deeper and 

deeper into the soil, eventually polluting groundwater and rendering the aquifer unsuitable for 

6 Community Association for Restoration of the Environment. Inc. v. Cow Palace Dairy, 80 F. 

Supp. 3d t t80 (E.D. Wash. 20i5). 7 Id. at 1128. 8 See, e.g., Cow Palace Dairy Consent Decree, available at http://www.yakimaherald.com/cowpalace-consent-decree/pdf d0c6ab62-c 16a-ll e6-99ed-d7cbb50e6d62.html. 
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human consumption. Contrary to Representative Newhouse's statements, the legislative history 

shows congressional intent was not to insulate these bad actors from RCRA's requirements. 

Instead, as the Court recognized in the Cow Palace Daily case, such farming operations must be 

held accountable for the pollution they cause. 

And make no mistake: pollution from industrialized agriculture is not unique to the Lower 

Yakima Valley. The northwestern part of Washington State is also home to many dairy CAFOs 

and, unfortunately, similar environmental problems have arisen. Runoff and seepage from fields 

receiving excessive quantities of manure contain extremely high levels of bacteria, such as fecal 

coliform, that can cause shellfish bed and beach closures. For instance, between 2011 and 2014 

there were 52 shellfish harvesting areas closures due to high levels offeeal coliform,9 180 acres 

of shelltish beds were closed from 1996-2006, costing the Lummi Nation an estimated $8 

million in revenuc. 10 More shellfish bed acres have since been closed, causing the loss of even 

more money and severely impacting traditional cultural practices as well. Passage of 1-l.R. 848 

will only exacerbate this problem further, as citizens will lose one of their last tools to fight 

against polluting, industrialized agricultural operations. 

In sum, 1-l.R. 848 subverts and distorts original Congressional intent. The existing version of 

RCRA already insulates farmers who correctly fertilize their crops with manure, while the 

Newhouse bill would improperly insulate those who improperly use their agricultural fields as a 

dumping ground for their unwanted waste. It takes away from citizens a critically important tool 

in the fight against pollution and puts hundreds of thousands of Americans, if not more, at risk of 

consuming polluted groundwater. And perhaps most importantly, RCRA already contains 

protections against frivolous, duplicative, or unnecessary litigation, which have worked 

e!Tectively for decades, and suits under RCRA (already rare because of the extensive evidentiary 

burdens required to prove a case) arc already prohibited when EPA or the State are engaged in 

diligent prosecution that actually addresses the endangerment. 

We urge you to oppose the Farm Regulatory Certainty Act, as well as all similar bills that 

weaken federal protections from toxic waste and prevent public access to justice. 

SIGNED THIS 8TH DAY OF NOVEMBER, 2017. 

Helen Rcddout, President Lauren Goldberg, Staff Attorney 

Community Association for Restoration of the Columbia Riverkeeper 

Environment. Inc. 

Chris Wilke, Executive Director Lee First, North Sound Baykeeper 

PuJ<el Soundkeeper Alliance RESources for Sustainable Communities 

Joshua Tsavatewa, President Stephanie Hillman, Northwest Campaign 

Friends of Toppenish Creek Representative 

Sierra Club 

9 Puget Sound Partnership, Samish Basin: Keeping Shellfish Beds Open (October 2014) at I; 

Skagit County Public Works Department, Clean Water Skagit County 2013 Annual Report 

(2013) at 4. 10 Northwest Treaty Tribes, Dairy Farm Pollution Costs Lummi Nation (January 16, 2015), at 

!:ill.r:llnwtrcatytribes.org/dairy-farm-pollution-costs-lummi-nation/. 
121 


28379.096

GREG WALD[N, OREGON 

CHAIRMAN 

Mr. Dan Wood 

Executive Director 

ONE HUNDRED FIFTEENTH CONGRESS 

FRANK PALLONE, Jft, NEW JERSEY 

RANKING MEMBEH 

<!Congre9's of tbe 'mtniteb $tates ~ousc of l'\epresentatiues 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYHUHN House OcHCE BUILDING 

WASHINGTON, DC 20515-6115 M;>Joff\y ,2021225-2927 

M•nonty !202);>25 3641 

December 21,2017 

Washington State Dairy Federation 

P.O. Box 1768 

Elma, W A 98541 

Dear Mr. Wood: 

Thank you for appearing before the Subcommittee on Environment on November 9) 2017, to 

testify at the hearing entitled "H.R._, Farm Regulatory Certainty Act." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open tOr ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows: (l) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a 

transmittal letter by the close of business on Friday, January 12, 2017. Your responses should be mailed 

to Allie Bury, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office 

Building, Washington, DC 20515 and e-mailed in Word format to Allie.Bury(ii)mail.hmM.uov. 

Thank you again for your time and effOrt preparing and delivering testimony before the 

Subcommittee. 

Sincerely, 

cc: The Honorable Paul Tonko, Ranking Member, Subcommittee on Environment 

Attachment 
122 


28379.097

Washington State Dairy Federation 

P.O. Box 1768 

January 12,2018 

The Honorable Tim Walberg 

U.S. Representative 

Elma, WA. 98541 

Member, House Committee on Energy & Commerce 

Subcommittee on Environment 

RE: Written Question as Follow Up to Testimony on the Farm Regulatory Certainty Act. 

Representative Walberg, 

You asked the following question: 

"Your written testimony states that the language of the bill will foster a more 

secure and cooperative relationship between dairy families and their state 

and federal regulators. Can you explain why that is?" 

I would use the agency interaction and lawsuit in the Yakima Valley as an example. 

All four dairy families in the Yakima Valley (Washington State) case were the subject of 

a report and action by Region I 0 EPA. They were discussing with EPA the potential of 

signing a Consent Order with EPA and were subsequently sued under the Resource 

Conservation and Recovery Act (RCRA). 

All of the families had been negotiating with EPA over the details of the Consent Order, 

but one family did not sign because they closed their dairy operation after considering the 

legal and operational costs involved. 
123 


28379.098

All four dairy families faced a form of double jeopardy, in that they were negotiating an 

agreement (the Consent Order) with the EPA and subsequently received notice of intent 

to sue from the activist organizations. 

Three of the four families signed the consent order. The fourth family with the smallest of 

the farms decided to close their dairy and, as a result, did not sign the Consent Order. 

In addition to losing their family business, they paid $40,000 in settlement to the litigants, 

emptied their lagoon, and conducted testing of soils. 

There is a chilling effect of this story. 

The families believed they were resolving the matter at hand. The Consent Order was 

intended to allow all of the parties to move forward together to make remarkably 

expensive technological and operational changes and avoid even greater expenses from 

legal action. 

Instead, one farm family went out of business and three farm families had the great 

expenses of the Consent Order and the much greater expenses of the court case and 

settlement. 

In the aftermath, many farm families across the nation have noted that the farms are 

struggling under these massive expenses and that the farms "paid twice to get there." 

They ask if it is worth it to work cooperatively to settle a matter with the agencies if they 

will subsequently be sued over the very same matters by an activist lawsuit. 

Getting hammered twice is a deterrent to cooperative approaches with the federal and 

state agencies. 

This case remains a clear example of the problem dairies and other farms are facing. 

Even after the commencement of agency enforcement (negotiating the Consent Order) 

they faced a citizen lawsuit. 

This form of double-jeopardy must end. 

If farms are to face lawsuits in addition to working cooperatively with federal or state 

agencies, then there is no incentive to work with the agencies. We must make it possible 

to work cooperatively with regulatory agencies without facing additional actions over the 

same issues. 
124 


28379.099

The draft language before the Subcommittee says that citizen lawsuits may not be filed 

when a state or federal agency has "commenced and is diligently prosecuting a civil or 

criminal action against such agricultural operation in a court of the United States or a 

State; or commenced and is diligently conducting a Federal or State administrative 

proceeding against, or entered into a consent agreement with, such agricultural operation 

to seek compliance with an applicable permit, standard, regulation, condition, 

requirement, prohibition, or order." 

In the Yakima case, the EPA had commenced a proceeding against the four dairy 

families. The decision to close the smallest dairy was made after EPA had commenced 

action in this matter. The remaining farms have endured both the cost of the Consent 

Order and the costs of the lawsuit and settlement, which addressed virtually the same 

allegations and actions. 

The citizen lawsuit provision under RCRA was intended to address situations where 

agencies are NOT acting on a matter. 

The proposed bill language retains the citizen suit option for situations where action is 

not taken. 

Where action is in progress, as was the case in the Yakima Valley, a citizen lawsuit 

would not be filed. 

Many of the examples presented to you at the hearing were of repeated situations where 

state and federal agencies had failed to act. In those cases, the legislation would still 

allow for a citizen lawsuit. 

This combination approach in the legislation should have the effect of encouraging 

cooperative actions between the regulatory agencies and farmers who may have an issue 

that requires resolution. 

Thank you for your attention to this important legislation and thank you for your follow 

up question. 

I urge your passage of the Farm Regulatory Certainty Act. 

Sincerely, 
125 


28379.100

Dan Wood, Executive Director 

Washington State Dairy Federation 
126 


28379.101

GREG WALD[N, OREGON 

CHAIRMAN 

Ms. Amy Romig 

Partner 

ONE HUNORED FIFTEENTH CONGRESS 

FRANK PALLONE, JR., NEW JEHSEY 

HAN KING MEMBER 

<!Congress of tbe wtnttd.l ~tates 

}!)ousc of l'eprescntatil:les 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBURN HousE OFFicE BuiLDING 

WASHINGTON, DC 20515-6115 

December 21, 2017 

Plews Shadley Racher & Braun 

1346 N. Delaware Street 

Indianapolis, lN 46202 

Dear Ms. Romig: 

Thank you for appearing before the Subcommittee on Enviwnmcnt on November 9, 2017, to 

testify at the hearing entitled "H.R._, Farm Regulatory Certainty Act." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows: (1) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a 

transmittal letter by the close of business on Friday, January 12, 2017. Your responses should be mailed 

to Allie Bury, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office 

Building, Washington, DC 20515 and e-mailed in Word format to A II ie.Burv(ilJI]]l!] I. house .uov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

Sincerely, 

cc: The Honorable Paul Tonko, Ranking Member, Subcommittee on Environment 

Attachment 
127 


28379.102

Before the House R''"'"''''"''t."'ti•v!'!s Committee on Energy and Commerce, 

SuJ:>c,onrlnltitt;ee on Environment 

Answer to Additional Following Hearing on "H.R._, Farm 

ltE1g1uactory Certainty Act" 

RESPONSES TO ADDITIONAL QUESTIONS FOR THE RECORD 

The Honorable John Shjmku§ 

1. Under RCRA, citizen suits may not be brought when EPA or a State 

is already pursuing an action to address the problem a citizen suit 

seeks to address. The discussion draft similarly precludes an action 

under RCRA if EPA or the State has initiated and is conducting a 

criminal, civil, or administrative action to address the conduct at 

issue do you agree? Do you agree with the approach taken in the 

legislation and could you explain why or why not? 

Currently under RCRA, citizen suits may not be brought wben the EPA or a 

State is already pursuing an action under RCRA or CERCLA, but that prohibition 

does not cnrrently exist if the EPA or State is pursuing an action under other 

statutes, even if they're seeking to address the same conduct. This is particularly 

problematic for agricultural operations where their conduct is generally governed by 

the Clean Water Act ("CWA") and the or a State generally brings actions under 

that statute. The discussion draft seeks to make it clear that, even if the EPA or a 

State is not acting under RCRA or CERCLA, if the EPA or a State has initiated a 

criminal~ civil, or administrative action to address the conduct at issue (regardless 

of the statute under which the action is brought), citizens would be prohibited from 

bringing a suit addressing that same conduct. I entirely support and agree with the 

approach taken by the legislation. When Congress enacted RCRA, it meant to give 

primary enforcement authority over the conduct governed by RCRi\ to the EPA and 

states. Only when the EPA and/or states fail to take action docs RCRA authorize 

citizens to act as "Private Attorneys General" and allow them to use the force of 
128 


28379.103

(1) EPA and the State Environmental Agencies have the expertise 

the most appropriate envimnmental responses, do not citizens to 

undermine that expertise and second~guess those agencies; and 

(2) Facilities and regulated are more willing to work with the EPA and 

State Environmental Agencies to come into compliance if they knovv they are 

limiting their liability. If citizens are allowed to bring suit after the agencies 

have done so, facilities will be unwilling to work with the EPA and the 

environmental agencies for fear that they may be admitting liability (and 

even possibly encouraging subsequent citizen suits) and that they may 

further litigation expense and from citizens. 

The current legislation accomplishes the initial goals included in the RCRA 

Citizen Suit provision by recognizing that in today's regulatory scheme the same 

conduct may be regulated b:v more than one 

Z. EPA stated h1 their written testimony on the hill that "unlike the 

current statutory bars, the EPA or state actions that would bar a 

citizen suit under this bill are not limited to RCRA or CERCLA 

actions." Do you agree with this assessment? Do you think it is 

appropriate? 

I agree with the EPA's assessment that the purpose of the current discussion 

draft is to bar citizen suits even when the government not limited to RCRA 

or CERCLA. As discussed above, tbis change is appropriate to accomplish the 

original intent of the RCRA citizen p:rovision- the same conduct by a regulated 

entity should not he subject to enforcement by both the EPA and by citizen groups. 
129 


28379.104

your written testimony 

citizen suit provisions are intended it is 

important that the regulating agency is able to do what it needs to 

bring the regulated entity into compliance. You state that citizen 

suits should be a "last resort"- can you explain why that is? 

As discussed above in response to Representative Shin1kus' question, Congress 

meant to vest the EPA and State Environmental Agencies with primary 

enforcement responsibility under RCRA, with citizen suits only allowed to be 

brought when the agencies have not taken action. The Supreme Court agreed, 

finding that a "citizen suit is meant to supplement, not supplant, governmental 

action,." Gwaltney of Smithfield v. Chesapeake Bay Found., 484 U.S. 49, 60 (1987). 

From a practical standpoint, if Congress allowed citizen suits to go forward 

regardless of whether an agency is taking action, the agency's ability to influence 

facilities and work with them to reach compliance will be greatly diminished. 

facility will be reluctant to settle with a govcmmeut agency if it knows that any 

settlement position could weaken its litigation position in a concurrent or 

subsequent citizen suit. Likewise, will not settle with a government agency when 

is concerned that a citizen suit rnay subject it to conflicting requirements. 

a. Would the Discussion Draft help EPA or State regulators work 

with agricultural operations to ensure that they are doing the 

right thing with respect to manure management? 

The Discussion Draft would help the EPA and State regulators work with 

agricultural operations to do the right thing with manure management. The 

Discussion Draft protects agricultural operations from duplicative and expensive 

litigation and works the way RCRA was originally intended to work - that 

regulated entities should he subject to enforcement by the govemment or by 

citizens, but not both. Knowing that they're protected from duplicative suits, 

Agricultural Operations are more likely to work with the agencies to make sure 

they're complying with manure management practices that are protective of the 

environment. Given that the EPA and State Agencies are tasked with protecting 
130 


28379.105
131 


28379.106

GREG WALDEN, OREGON 

CHAIRMAN 

ONE HUNORED FIFTEENTH CONGRESS 

f-RANK PALLONE, JR., NEW JERSEY 

RANKING MEMBER 

(!Congress of tbe Wniteb !$tates 

j!;)ouse of ~epreswtatil:les 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBURN HousE OFFICE ButLDING 

WASHINGTON, DC 20515-6115 

Ms. Jessica Culpepper, 

Food Project Attorney 

1620 L Street, N. W.; Suite 630 

Washington, DC 20036 

Dear Ms. Culpepper: 

Majonty (20?)27t'\·7917 

Mtnonty {20?i~h 36¢1 

December 21,2017 

Thank you for appearing before the Subcommittee on Environment on November 9, 2017, to 

testify at the hearing entitled "H.R._, Farm Regulatory Certainty Act." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record 

remains open for ten business days to permit Members to submit additional questions for the record, 

which are attached. The format of your responses to these questions should be as follows: (1) the 

name of the Member whose question you are addressing, (2) the complete text of the question you 

are addressing in bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a 

transmittal letter by the close of business on Friday, January 12, 2017. Your responses should be 

mailed to Allie Bury, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House 

Office Washington, DC 20515 and e-mailed in Word format to 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

Sincerely> 

cc: The Honorable Paul Tonko, Ranking Member, Subcommittee on Environment 

Attachment 
132 


28379.107

PUBLIC JUSTICE 

January 19, 2018 

Hon. John Shimkus 

Chair, Subcommittee on Environment 

Committee on Energy and Commerce 

2125 Rayburn House Office Building 

Washington, DC 20515 

Chairman Shimkus, 

~~ [ 

Thank you for the opportunity to testify at the hearing entitled "H.R. __ . Farm Regulatory 

Certainty Act" on Thursday, November 9, 2017. Per your request, please find attached my 

response to your questions for the record. 

Jessica Culpepper 

Food Project Attorney 

Public Justice 

Enclosures 

publicjust!ce.net National Headquarters 

1620 L Street NW, Suite 630, Washington DC 20036 

(202) 797-8600 phone • (202) 232-7203 fax 

West Coast Office 

555 12th Street Suite 1230, Oakland CA 94607 

(510) 622-8150 phone • (510) 622-8155 fax 
133 


28379.108

Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

QUESTIONS FOR THE RECORD 

JESSICA CULPEPPER 

PUBLIC JUSTICE 

Responses to questions from the Honorable John Shimkus: 

1. Question: Does the Resource Conservation and Recovery Act (RCRA) contain a feeshifting provision? 

The Resource Conservation and Recovery Act contains a discretionary provision in the 

law that allows a court to recompense attorneys for reasonable costs and fees incurred during 

litigation. RCRA is no different in this regard than any other bedrock environmental statute. 

Congress has long recognized the importance of allowing the public to bring legal action against 

bad actors for violations of environmental laws to protect their property rights and their 

community from contamination when the government falls down on the job. 1 Indeed, the very 

purpose of enacting citizen suit provisions is to ensure that individuals are not reliant on the 

Government alone to enforce the statute. "The plaintiff is the chosen instrument of Congress to 

vindicate a policy that Congress considered of the highest priority." Christiansburg Garment Co. 

v. Equal Employment Opportunity Commission, 434 U.S. 412, 418 (1978). This provision is a 

mechanism to effectuate this policy. 

There are limits on these provisions. A party is only able to recover fees and costs if they 

prevail in these extremely difficult cases, so a plaintiff could never recover costs for a frivolous 

lawsuit. Even then, because recovery is discretionary, it is up to the judge to review the request 

for recovery and will only award "reasonably" incurred costs and time. 

As the only relief available under RCRA is injunctive relief to stop the cause of the 

contamination (meaning that a plaintiff cannot recover money from the polluter), without these 

provisions that cover litigation costs and time, many rural Americans, including the neighbors in 

the Cow Palace lawsuit, could not otherwise protect their drinking water. There are two reasons 

for this. First, contingency fees, meaning a sum of money that a lawyer receives if a case is won, 

are not possible in injunctive relief-only cases. Second, bringing a private action to protect the 

public health and environment from violations of these laws require experts to gather and 

analyze complex scientific data. The costs associated with experts and data-gathering and 

compensating a lawyer for the time to bring such complex litigation under these laws often 

years of work- would exceed the financial capability of most private citizens. 

1 When considering amendments to the Clean Air Act nearly fifty years ago, Congress found that 

government enforcement of the nation's environmental laws was "restrained," and thus urged Courts to 

"recognize that in bringing legitimate actions under this section citizens would be performing a public 

service." S. Rep. No. 91-1196, at 36. 
134 


28379.109

Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

RCRA's provisions for the award of costs and fees for prevailing in a citizen suit are 

found in section 42 U.S.C. § 6972(e). It states as follows: 

(e) Costs 

The court, in issuing any final order in any action brought pursuant to this section or 

section 6976 of this title, may award costs of litigation (including reasonable attorney and 

expert witness fees) to the prevailing or substantially prevailing party, whenever the court 

determines such an award is appropriate. (emphasis added) 

2. Question: For the case Community Association for the Restoration of the 

Environment, Inc. v. Cow Palace, LLC how much was awarded to Plaintiffs in (a) 

attorneys' fees, (b) expert witness fees, and (c) costs? 

Community Association for the Restoration of the Environment v. Cow Palace LLC was one 

of three interrelated cases that were litigated simultaneously against the four dairy Concentrated 

Animal Feeding Operations responsible for contaminating the surrounding community's 

drinking water. After the court granted the plaintiffs' motion for summary judgment in the Cow 

Palace case, all three cases settled in a global settlement. As part of that settlement, the 

defendants from the other two cases stipulated "that they will be jointly and severally liable for 

any award of fees and costs ordered by the Court." See Case No. 2:13-CV-3019, ECF No. 251. 

Because of this stipulation, the court did not separate the fees and costs award by case, but rather 

jointly addressed the fees and costs incurred on all three cases. Submitting detailed time records, 

the plaintiffs requested $3,587,615.50 in attorneys' and experts' fees and $542,088.60 in costs 

incurred during the course of the three-year litigation against all four dairies, but the court 

awarded $2,683,193.80 in attorneys' and experts' fees and $444,374.86 in costs. In its Order on 

Fees, the court "strongly encourage[d] the parties to come to a stipulated resolution" about the 

remaining expenses and fees that had arisen since the close of the case, and the parties did so 

without further litigation. Cmty. Ass'nfor Restoration of the Env't,Inc. v. Cow Palace, LLC, No. 

13-CV-3016-TOR, *57, 2016 WL 3582754 (E.D. Wash. Jan. 12, 2016). 

The court's order on fees came after two years of intensive investigative work and thousands 

of pages of briefing resulting in the Court "grant[ing] Plaintiffs' motion on the core RCRA 

liability issues," i.e., concluding the dairies were responsible for the drinking water 

contamination. Cmty. Ass 'n for Restoration of the Env 't, Inc. v. Cow Palace, LLC, No. 13-CV3016-TOR, 2016 WL 3582754, at *1 (E.D. Wash. Jan. 12, 2016) ("As was their right, 

Defendants fought Plaintiffs at every turn"). In a 58-page opinion explaining why it had chosen 

to award fees and costs, the Court reviewed the hours spent by the attorneys in Cow Palace in 

great detail, finding that Plaintiffs' counsel were reasonable in their time spent, and that the 

plaintiffs who bore the burden of proving the case and therefore would be expected to have 

spent more hours than the defendants had actually worked 1,000 fewer hours than defense 

counsel. 

2 
135 


28379.110

Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

In response to the Court's direction to resolve all remaining fees and costs outside of what 

was done in the Court's Order, the parties to the case came to an agreement about fees and costs 

in total, reducing the amount awarded by the court and allowing the different dairies to pay as 

they were able. In the parties' agreement on fees and costs tiled with the court, they did not 

separate out attorneys' fees, expert witness fees, and costs in their agreement. In the stipulation 

filed in court by all parties, Cow Palace agreed to pay $800,000 to plaintiffs, which covered all 

categories listed; that is, attorneys' fees, expert witness fees, and costs. 

3. Question: How much did your organization, Public Justice, receive in attorneys' 

fees? 

In the combined Yakima dairies litigation, Public Justice devoted almost 1500 hours and 

spent considerable resources exposing violations of the law against the four dairy Concentrated 

Animal Feeding Operations, including the Cow Palace case. In the course of investigation, 

development, litigation, and resolution of the three cases, Public Justice incurred over $530,000 

in billed attorney time and more than $25,000 in litigation expenses. Public Justice sought to 

recover $453,319.50 in fees and $10,927.80 in costs in total, which includes Cow Palace. See 

Cmty. Ass'nfor Restoration of the Env't, Inc. v. Cow Palace, LLC, No. 13-CV-3016-TOR, ECF 

411 at 23. The Court found that Public Justice's hours were "adequately documented" and costs 

were "adequately detailed" and "fully compensable as reasonable." ECF 453 at 34, 54. After 

the parties' fees and costs settlement, Public Justice received $404,419.02 in fees and recovered 

the $10,927.80 in costs, which was paid jointly by all four dairies as part of the settlement. This 

realized the goal of the fees and costs provision because a community that would not otherwise 

be able to bring a citizen suit was able to obtain clean drinking water and stop the contamination 

of their wells. 

4. Question: Did any of the Plaintiffs' attorneys initiate any other RCRA citizen suits 

(against other defendants) after the conclusion of Community Association for the 

Restoration of the Environment, Inc. v. Cow Palace, LLC? 

a. Please identify all cases initiated by any of Plaintiffs' attorneys subsequent to 

the decision in Community Association for the Restoration of the Environment, 

Inc. v. Cow Palace, LLC. 

To my best knowledge and after contacting each firm that represented the plaintiffs in the 

Cow Palace case, only one RCRA citizen suit was initiated against an agricultural entity 

subsequent to the Cow Palace case. This response is limited to RCRA citizen suits against 

agricultural entities: 

Blackwood eta/. v. N&M Dairy et al., No. 5:14-cv-00395-JGB-SP (E.D. Cal.), which 

settled outside of court. 

Community Association for the Restoration of the Environment v. Cow Palace LLC 

remains the only case where a court determined that the mismanagement of animal manure 

violated RCRA. The fact that so few RCRA cases have been brought against agricultural entities 

3 
136 


28379.111

Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

is not surprising, given that proving a violation ofRCRA's imminent and substantial 

endangerment provision takes considerable time, cost, and effort, and is therefore reserved for 

only for the rare times that massive contamination causing critical health threats has not been 

solved by local, state, and federal government actions. The difficult jurisdictional requirements 

to bring a RCRA suit also reduce the likelihood of citizen suits. 

First, no small or medium-sized farm could meet RCRA's jurisdictional requirement, and 

would never be subject to RCRA 's citizen suit provisions. In order for a citizen to bring a 

lawsuit for RCRA violations, the entity responsible for the pollution must be discarding their 

waste. RCRA already exempts any manure used as fertilizer for crops because a recycled waste 

(i.e., manure used as fertilizer) is not considered to be a "solid waste" subject to RCRA's 

jurisdiction. So RCRA will never stop a farmer from using their manure to grow crops and make 

healthy soil. And even if there is a solid waste (meaning the manure was not used as fertilizer 

and was instead dumped out), it must be in such a great quantity that it causes or contributes to a 

substantial and imminent endangerment off the bounds of their property. This means that only 

the largest operations that have mismanaged manure for so long that it has endangered people or 

the environment surrounding them arc subject to these lawsuits. 

Second, RCRA's jurisdictional requirements provide several ways to stop these lawsuits 

early and prevent costly litigation. For example, RCRA's citizen-suit provision, like those in 

other environmental statutes, requires a 90-day notice period before filing a lawsuit. This notice 

period is designed to give the polluter notice and time to fix the problem before they are subject 

to a lawsuit, and is also designed to give the government the chance to file its own action and 

supplant the citizen suit. And because RCRA only allows for injunctive relief to stop the 

endangerment, if the polluter simply fixes the problem, it stops the lawsuit immediately under 

the judicial doctrine of "mootness" because it solves the controversy at issue. As most farmers 

and industrial agriculture operators are good neighbors,. they respond to problems they have 

caused by fixing them, thus negating a potential citizen's ability to bring the citizen suit. These 

lawsuits are limited to bad actors that refuse to address serious problems caused by their 

operations. 

It is worth briefly documenting some of the behavior of the Yakima dairies at issue in 

Cow Palace to show the Committee why the lawsuits were necessary these dairies refused not 

only during the notice period, but over a span of decades to comply with the law. They were 

extreme examples of bad actors, and a state agency that refused to force them to meaningfully 

change their behavior. This is not the norm, and is exactly when citizen suits arc needed. 

• Records gathered from the local agency showed letters from the agency to one of the 

dairies stating "Your lack of response to our previous attempts to contact you by visit, 

letter, phone, and finally delivery of a cease-and-desist order by the sheriff has resulted in 

our recommendation of an additional penalty .... We would much rather have seen you 

spend that money on wastewater control facilities than to have to recommend a penalty." 

But even this did not fix the problem, and three years later, the dairy was caught digging 

4 
137 


28379.112

Jessica Culpepper 

Public Justice 

Responses to Questions for the Record 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

a ditch that unlawfully allowed "a discharge of black manure solids-laden water" to run 

off the property. The dairy was described by the agency as "uncooperative." All the 

while, the agency would, on occasion send fines that were only occasionally paid, 

without any meaningful enforcement action. 

• In the 1990s, the dairies were reported by the community for unlawful behavior, 

involving dumping raw animal sewage through a drainage pipe into irrigation ditches that 

dumped into the local streams, spraying manure on frozen ground, overapplying manure 

on sprayfields, allowing lagoons to overflow, and deliberately dumping manure into 

canals. 

• In 1993, numerous illegal manure discharges were observed by the community members 

and the local agency that did not result in enforcement action. 

• In response to their reports, between 1995 and 1997, the state agency fined two of the 

dairies that were the subject of the RCRA litigation for "substantial water quality 

violations," but did not stop the continuing unlawful behavior. 

These actions, and the dairies' refusal to change their waste management practices over 

the course of decades, led to the drinking water contamination and RCRA violations. 

5. Question: The Administrative Order on Consent between the Environmental 

Protection Agency (EPA) and the dairies that were defendants in Cow Palace was 

signed in March 2013. The complaint in the RCRA citizen suit was filed February 4, 

2013. EPA was working with the defendant dairies to help them come into 

compliance with the applicable statutes and regulations. Why did Plaintiffs not 

allow the process between EPA and the dairies to play out before initiating a citizen 

suit? 

Without this suit, the primary objective of the plaintiffs- to secure clean, safe drinking 

water for over I 00 families, and to ensure modifications to eliminate future contaminationwould not have been realized. CARE, the plaintiff, attempted to work with the EPA during the 

Administrative Order on Consent ("AOC") process. Before the final Order was signed, for 

example, it was distributed to the public for comment. When CARE approached the EPA to 

discuss grave concerns with the draft AOC, namely that it did not cover the full radius in which 

impacted homes could receive replacement drinking water, the agency brushed aside CARE's 

complaints. Additionally, CARE expressed that the AOC failed to require double-lined lagoons 

and a nutrient management budget that would result in lower levels of soil contamination- both 

of which were established as major causes to the aquifer contamination. CARE also pointed out 

that the AOC did not address contamination from cow pens and compost areas or require any 

changes to those practices to reduce leaching into the aquifer, the community's sole source of 

drinking water. In the face of such deficiencies, and EPA's refusal to address them in the AOC, 

CARE had no choice but to use the citizen suit provisions of RCRA- provisions that Congress 

specifically intended to be used in such situations. 

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Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

Importantly, CARE filed suit before the final Administrative Order on Consent was 

signed in hopes that the lawsuit would spur the parties to the AOC, the EPA and the dairies, to 

reconsider and correct the deficiencies in the Order so that it would address the serious public 

health risk to the community. If they had, the court would have automatically dismissed the 

plaintiffs' lawsuits against the dairies under the doctrine of "mootness" (that is, that there would 

have been no reliefthe plaintiffs could have gotten under a RCRA suit that was not already 

addressed by the Administrative Order on Consent). The Defendants actually claimed that the 

lawsuit should be dismissed because of the AOC. The only reason Plaintiffs' lawsuit was 

allowed to go forward was because the Court noted that there were very real differences between 

what was sought by the community members and what was required under the signed final 

Order. The outcome in the case was instrumental for the community because it accomplished 

ends the AOC did not achieve- over 100 families have so far been provided clean, safe 

drinking water, and major operational and structural modi ftcations are being made at the 

facilities to ensure future contamination is eliminated. 

Finally, it is worth correcting the record that it was in response to the EPA's Order, not 

the RCRA citizen suits, that one of the mega-dairies in the Valley went out of business. At the 

hearing, Mr. Wood falsely stated that one ofthe CAFOs went out of business because of the 

citizen enforcement action. Hearing at 21:56-22:09. Mr. Gordon, Mr. Wood's colleague at the 

Washington State Dairy Federation, stated otherwise in the Yakima Herald. 2 Mr. Gordon stated 

the facility went out of business because they did not want to comply with the EPA requirements 

under the Safe Drinking Water Act AOC. 

6. Question: Your testimony is that a citizen suit under RCRA is "last resort"- what 

other proceedings (under any other state or federal law) did your organization or 

any of the other Plaintiffs, initiate or conduct regarding the dairies at issue in 

Community Association for the Restoration of the Environment, Inc. v. Cow Palace, 

LLC? 

There are two important clarifications to the phrase "last resort" as it refers to RCRA 

citizen suits. First, I was not limiting that phrase to "proceedings" initiated by the community. 

Rather importantly, I include community attempts to work with the polluter to try and get them 

to change the offending practice, and community attempts to get the local, state, or federal 

government to act on their behalf to stop the bad actors from continuing to harm the community. 

Second, to the extent that we are discussing "proceedings," the phrase "last resort" refers to the 

fact that there were (and remain) no other reasonably viable legal causes of action the Plaintiffs 

and their affected members could take at the time the Cow Palace lawsuit was initiated. 

2 Courtney, R. Yakima Herald. Opposing sides argue positions in groundwater pollution case (Jun. 13, 

20 13), available at 

http://www.yakimaherald.com/news!local/opposing-sides-argue-positions-in-groundwater-pollutioncase/ 

article _5030c644-9938-52fd-b51 c-17f0da7f0810.html 

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Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

In case of Cow Palace, the community of farmers, orchardists, farmworkers, and multigeneration residents had been trying for two decades to protect their well water from the dairies 

who were acting far outside acceptable norms. CARE, specifically, worked for decades to 

address CAFO pollution in Washington State, prior to bringing the Yakima groundwater 

litigation. In the 1990s, members of the community in the Yakima Valley began to document 

and report when the dairies violated the law, but while the local agencies would occasionally fine 

the dairies, they took no enforcement action to force the facilities to change their practices. 

Instead, CARE's work led to anonymous threats, CARE's members being driven off the road, 

and other aggressive behavior. 

It was not just the community residents who were frustrated with the state agency's 

failure to fix the problem. Public records show that the manager of the Sunnyside Valley 

Irrigation District sent a letter to the state agency about the dairies allowing waste from their 

lagoons to run into the canal. "The impact has been enormous," he wrote. "We have complaints 

from water users ... These are not isolated complaints. The above situation is frustrating because 

it is typical of the experience the District has had with dairy waste problems for the last several 

years." lie added "We have a number of water users who would be most willing to testify in 

court, contact area legislators, or do whatever else is necessary to assist you with your 

enforcement responsibilities." 

In 1998, after years of the state regulatory failing to fix the problems in Yakima Valley, 

the community organized into CARE and threatened litigation to a number of the dairies in the 

Lower Valley. In response to the letters noticing a potential lawsuit, some of the dairies made 

significant improvements to their manure management systems and fixed the problems. For the 

dairies that refused to make changes to comply with the law, the community filed their first of 

several Clean Water Act lawsuits against the dairies for violations of their Clean Water Act and 

Washington state dairy permits. A court would later rule in the community and CARE's favor, 

establishing that the dairies in the Yakima Valley had violated the Clean Water Act. While these 

actions slowed pollution of the local rivers, the groundwater contamination problem persisted 

because the Clean Water Act does not address groundwater pollution. In the early 2000's, some 

of the civil penalties from the CWA lawsuits helped fund two studies of groundwater quality in 

the Lower Yakima Valley, the results of which showed nitrate contamination in residential water 

wells. 

Armed with that information, multiple Washington state public interest groups, including 

CARE, have tried to persuade state regulators for decades to impose meaningful pollution 

control regulations on Concentrated Animal Feeding Operations ("CAFOs") under the CWA and 

the State's Water Pollution Control Act, R.C.W. 90.48. 3 In 2006, CARE was the lead petitioner 

in a challenge to the State's CAFO National Pollution Discharge Elimination System ("NPDES") 

3 The November 7, 2017 letter from Washington State public interest groups discusses how the State has 

been aware of groundwater contamination issues for years, but has failed to take actions to correct that 

contamination or address its sources. 

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Jessica Culpepper 

Public Justice 

Responses to Questions for the Record 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

permit under the Federal Water Pollution Control Act, otherwise known as the Clean Water Act. 

Among other problems, that NPDES permit failed to require lagoon lining or groundwater 

monitoring in and around permitted facilities despite the fact that the State's own scientist 

testified that such monitoring was the only effective means to evaluate whether a facility was 

causing groundwater pollution. Nonetheless, the State approved the permit to the detriment of 

public health. Presently, CARE and others are involved in a challenge to Washington State's 

newest NPDES permit, which this time around includes a state groundwater discharge 

component. Unfortunately, the new permit again fails to require lagoon lining, groundwater 

monitoring, or adequate pollution control measures for livestock confinement pens, composting 

areas, and land application fields. Indeed, it allows for permittees to discharge manure and other 

pollutants into groundwater without ever having to monitor those discharges. 

As it pertains to the Cow Palace defendants, CARE tried to work with EPA to obtain 

documents about the groundwater contamination surrounding those dairies before the EPA 

finalized its "Consent Order" so that the order could be amended to address residents' health 

concerns. Unfortunately, EPA administrators informed CARE that it would not provide any 

documents out of fear that such a move would "enflame" the dairies and throw off the Agency's 

settlement negotiations. CARE was forced to file suit against EPA to obtain the documents, 

which were provided after months of litigation in federal court. EPA also brushed aside CARE's 

complaints that the "Consent Order" was inadequate to protect human health and the 

environment, namely that it did not cover the full radius in which impacted homes could receive 

free drinking water. Additionally, the Consent Order failed to require double-lined lagoons nor a 

nutrient management budget that would result in lower levels of soil contamination- both of 

which were established major causes to the aquifer contamination. CARE also pointed out that 

the Consent Order did not address contamination from cow pens and compost areas or require 

any changes to those practices to reduce leaching into the community's sole source of drinking 

water. In the face of such deficiencies, CARE had no choice but to use the citizen suit provisions 

of RCRA provisions that Congress specifically intended to be used in such situations. 

ln sum, it was only after decades of regulatory failure, and finally, when the EPA made 

clear that they would not fully fix the problem and shut the door on hundreds of community 

members who had lost access to their own wells, that this litigation was brought. No community 

should be forced to watch their common resources be degraded and their property values 

diminished with no recourse, which would have been the case for the people in the lower 

Yakima Valley were the Farm Regulatory Certainty Act law. 

8 
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28379.116

Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

Responses to questions from the Honorable Frank Pallone 

1. Question: What are some of the health and environmental impacts you have seen in 

the communities you have worked with? 

Health and environmental impacts from CAFOs on fence line communities have been 

well-documented for decades, and are only getting worse. 4 Some of those communities shared 

their compelling stories with you in letters filed in the record before the hearing. Their stories 

tell the truth about what industrial animal agriculture harms when allowed to mismanage their 

waste with impunity. They show that when waste from an industry is mismanaged, those who 

suffer most are the fcnceline communities. Outside of what is illustrated by these community 

letters, health and environmental impacts from industrial animal agriculture range from very 

local bacterial outbreaks to the global impact of being one of the major contributors to climate 

change. 

lt is helpful to briefly outline the source of the impacts about which Mr. Pallone inquires. 

In 2010, the Centers for Disease Control worked with the National Association of Local Boards 

of Health in creating a report called Understanding Concentrated Animal Feeding Operations and 

Their Impact on Communities ("CDC Report"). 5 My findings in my work with these 

communities matches exactly the findings in the CDC Report. The report's findings arc best 

summarized in its own words: 

All of the environmental problems with CAFOs have direct impact on human health and 

welfare for communities that contain large industrial farms. As the following sections 

demonstrate, human health can suffer because of contaminated air and degraded water 

quality, or from diseases spread from farms. Quality of life can suffer because of odors 

or insect vectors surrounding farms, and property values can drop, affecting the financial 

stability of a community. CDC Report at 3. 

The report defines the source of the environmental and public health problems caused by 

industrial agriculture as the enormous amount of waste the industry produces (in the form of raw 

animal sewage). !d. at 2. The report, along with many others, notes that large CAFOs produce 

more waste than some U.S. cities, but without any waste treatment, as occurs with human waste. 

!d. Instead, the facilities store the vast quantities ofraw sewage in football field-sized lagoons, 

or in train-sized piles, before spreading the raw sewage onto land. The problems arise when 

there is more manure than can be used by the land or their crops, or when the manure is disposed 

of inappropriately so that it comes off the property and into the neighboring community or 

nearby waterways, where it degrades water quality. The CDC report also notes that the 

emissions from degrading waste harms air quality and is a source of greenhouse gases that 

contribute to climate change. 

'Casey, J.A., Kim, B.F., Larsen, J. Nachman, K., et al., Industrial Food Animal Production and 

Community Health. Curr Envir Health Rpt (2015) 2:259. https://doi.org/l0.1007/s40572-015-0061-0 5 Available at https://www.cdc.gov/nceh/ehs/docs/understanding_ cafos_nalboh.pdf 

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Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

Poor manure handling practices frequently result in clear and acute environmental 

problems. Just looking at fish kills in August-October of20 17, for example: 

• In October of2017, raw animal sewage from the Wild Rose Dairy in Wisconsin 

spilled into the Otter Creek, killing I ,300 fish. 6 

• In October of2017, manure allowed to runoff an Iowa dairy facility killed 60,000 

fish in eastern Iowa. 7 

• In October of2017, a facility dumped manure into a creek in Lancaster County, 

Pennsylvania, which turned the creek water black and killed the fish in the 

tributary to the Conestoga River. 8 

• In August of 2017, bad manure management at an Iowa dairy caused a fish kill in 

a 5-mile portion of Dry Run Creek. 9 

• In August of2017, bad manure management caused about 66,000 fish deaths in 

Lake Erie tributaries, where the creek water smelled of manure. 10 

The same waste that causes fish kills in surface water endangers entire communities 

reliant on contaminated groundwater or living near industrial facilities. Groundwater has long 

been recognized as an essential national resource, accounting for 40% and 36% of the nation's 

drinking water and irrigation water, respectively. The urine and manure stored and disposed of 

at industrial animal facilities contain pathogens, hormones, antibiotic resistant bacteria, 

pharmaceuticals, chemicals used at the facility, and nutrients like nitrate and phosphorus that can 

endanger public health and the environment. Many of the pathogens present in the fecal matter 

are zoonotic, meaning that people can get sick when they ingest them, and include E. coli, 

Salmonella, Cryptosporidium, Listeria, rotavirus, and hepatitis. Several studies have documented 

the transfer of these pathogens onto sprayfields and disposal sites, and subsequently, into surface 

and groundwater. 11 The CDC Report confirms that through misapplication of manure, these 

pathogens and excess nutrients end up in groundwater often rural American's sole source of 

6 McBride, J. Manure kills 1,300 fish in Otter Creek near La Farge, available at 

http://lacrossetribune.com/vcrnonbroadcaster/news/local/manure-kills-fish-in-otter-creek-near-lafarge/article_bc76f48c-47e 1-51 f9-8839-43d80a 1 fdfbc.html 7 Manure from Iowa dairy farm blamed for deaths of 60Kfish, available at 

http://fox6now.com/20 1711 0/3 !/manure-from-iowa-dairy-farm-blamed-for-deaths-of-60k-fish/ 8 Crews cleaning up manure spill; Fish kill reported in nearby creek, available at 

http://www.wgal.com/article/traveler-says-he-couldnt-board-flight-after-he-put-all-his-clotheson/15335324 

9 Manure runoff causes fish kill in stream near Decorah, available at 

http:/ /north i owatoday .com/20 17 /08/28/manure-runoff-causes-fish-ki !l-in-stream -near-decorah/ 10 Henry, T. Poor manure practices culprit in thousands offish deaths, 

http://www. to! edoblade.com/State/20 17 /08/24/Poor-manure-practiccs-cul pri t-in.html 11 See, e.g., Hutchison, M.L., eta!. 2005. Fate of Pathogens Present in Livestock Wastes Spread onto 

Fescue Plots. Appl Environ Microbial. 2005 Feb; 71(2): 691--696. 

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC546755/; Jones, D. L. Potential health risks associated 

with the persistence of Escherichia coli 0157 in agricultural environments. 1999 Soil Use Manag. 15:76-

83; Pell, A.N., Manure and microbes: public and animal health problem? J Dairy Sci. 1997 Oct; 

80(1 0):2673-81. 

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Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

drinking water, where it poses grave risk. Just some of the documented health impacts of living 

near a CAFO are that: 

• You have almost three times the risk of carrying the antibiotic resistant bacteria 

MRSA from living within one mile of a hog facility that confines 2,500 or more 

hogs. 

• Children attending schools within one-half mile from a CAFO have a 

"significantly increased prevalence of physician-diagnosed asthma." 12 

• For children with allergies, the prevalence of wheezing is 5% higher for those 

attending schools located within 3 miles of a CAFO and was 24% higher for those 

students at schools where farm animal odor was reported to be noticeable indoors 

twice per month. 

• Residents Jiving within the vicinity of a CAFO had elevated rates of mucous 

membrane irritation and respiratory and gastrointestinal problems, as well as 

higher reporting of headaches, runny noses, sore throats, excessive coughing, 

diarrhea, and burning eyes. 13 

• Doubling animal production at a facility increases infant mortality, driven by 

elevated levels of respiratory diseases, by 7.4%. 

In the communities I have worked with, I have seen levels of nitrate, a substance that 

cannot be seen, smelled, tasted, nor boiled out, seven times the EPA's Maximum Contaminant 

Level ("MCL"). The EPA set the MCL for nitrate at 10 because above that level, nitrate can 

cause "blue baby syndrome"- a potentially fatal condition for infants who drink bottles made 

with contaminated water. In the Yakima Valley where the litigation took place, about 20% of 

the sampled drinking water wells, and about 35% in the immediate vicinity of the dairies, tested 

above the EPA limit. High levels of nitrates have also been linked to fatal birth defects, 

including anencephaly, in which the fetus never fully develops parts of the brain and skull. In 

the Yakima area, anencephaly occurs more than four and a half times the national average, and 

more pregnant women are affected by anencephaly there than anywhere else in the country. In 

North Carolina, the CDC linked water contamination from pig waste to miscarriages in the mid1990s. 

In Kewaunee County, Wisconsin, 60% of the wells tested positive for fecal bacteria 

linked predominantly to cow manure. Cryptosporidium, a parasite which causes severe and 

acute digestive symptoms including diarrhea and vomiting, and can be deadly for young 

children, pregnant women, the elderly, and people undergoing chemotherapy, has also been 

documented in private wells. Kewaunee County has an estimated 140 cases of cryptosporidiosis 

12 Sigurdarson ST, School proximity to concentrated animal feeding operations and prevalence of asthma 

in students, Chest. 2006 Jun;129(6):1486-91. 13 WingS, WolfS. Intensive livestock operations, health, and quality of life among eastern North 

Carolina residents. Environmental Health Perspectives. 2000; 1 08(3):233-238. 

II 
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Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

per year from private wells, one of the highest rates per capita in the country. 14 There have been 

documented cases of wells showing E. Coli levels at 9,800 colony forming units per milliliter 

the EPA considers any amount of E. coli in drinking water to be dangerous. Simply bathing in 

their own well water in areas of Wisconsin have landed children in the hospital due to 

dehydration from vomiting, severe ear infections from E. coli, and exposure to antibiotic 

resistant bacteria. 

In the communities in which I have worked, those impacts extend also to an infringement 

on community and family life- the Joss of neighborhood cookouts, of outdoor birthday parties, of 

gardens and porches, and of evening walks and children's bicycle rides. The smell and flies I 

have personally experienced have been overwhelming. In places like Eastern North Carolina, 

the California's Central Valley, Maryland, and all over the Midwest I have walked in fenceline 

communities where the smell made my own eyes water and throat burn, causing uncontrollable 

coughing fits and gagging, and left my clothes and anything they touched reeking for days. One 

reporter that visited a poultry CAFO in California's San Joaquin Valley claimed that his suit 

continued to carry a putrid odor back at the studio. That is daily life for these communities all 

over rural America. 

I have heard the people who are not aware of these conditions attempt to argue that these 

impacts should be expected from agriculture. It is critical to note for the record that these 

facilities are not agricultural, but industrial, and their impacts are simply not experienced in 

traditional pasture-based systems. As the grandchild offarmers, an attendee of a farm college, 

and having worked with farmers and ranchers, I am familiar with the smell of a farm. But living 

near these facilities is more like living by an industrial plant than a red barn. The industrial 

approach to animal agriculture discharges toxic chemicals far above what would be ever be 

created at a traditional small family farm. Indeed, in Public Justice's work, we represent and 

work with farmers and farming communities who view what is going on in their neighborhoods 

and grieve the change from agricultural to industrial. 

2. Question: Are these impacts isolated to Washington State, or do we see them 

nationwide? 

Over 15 million U.S. households rely on private well water for drinking water, and EPA 

regulations that protect public drinking water systems do not apply to privately owned wells. All 

private wells rely on groundwater. Health and environmental impacts from industrial animal 

agriculture will occur anywhere that the industry concentrates its animal confinements beyond 

what the ground can bear and dumps its waste rather than processing it or disposing it in a safe 

way. These impacts are unfortunately not isolated to Washington State, as described above, but 

can be found in rural communities nationwide. Counties in Iowa, Nebraska, Michigan, Ohio, 

Minnesota, Illinois, Indiana, and Wisconsin at the central part of the United States; Georgia, 

14 Murray, P., NPR, Researchers Want To Know If Cows Are To Blame For Contaminated Wells In 

Northeastern Wisconsin, available at https://www.wpr.org/researchers-want-know-if-cows-are-blamecontaminated-wells-northeastern-wisconsin; see also Painter, J.E., Cryptosporidiosis Surveillance 

United States, 2011-2012 https://www.cdc.gov/mmwr/previcw/mmwrhtml!ss6403al.htm. 

12 
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Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

II.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

Arkansas, North Carolina, Mississippi, and Alabama in the southern part of the United States; 

Delaware, Maryland, and Pennsylvania in the eastern part of the United States; and Arizona, 

California, Idaho, New Mexico, and Texas in the western part of USA contain "hotspots" of 

CAFOs. In these regions, if large facilities refuse to properly dispose of their waste, then the 

communities and environment arc endangered. 

While farmers face serious pressures with regulation, it has been well documented that 

environmental enforcement for unlawful behavior is lacking in this industry. Without 

enforcement, bad actors are allowed to produce cheaper product by externalizing their waste and 

costs onto others, giving them an unfair competitive advantage to farmers who are following the 

rules. Either because the regulators do not have the resources to properly inspect and respond to 

dirty facilities, or the agencies lack the political will, bad actors in this industry frequently act 

with impunity for decades. Here are just a few of the documented impacts nationally that were 

not mentioned above: 

• In 2001, nationally, agriculture accounted for 59% of all sources of impairment 

for rivers. 

• Detailed mapping of CAFOs in North Carolina documenting industrial animal 

agriculture pollution demonstrate 60% of the watersheds where CAFOs are 

located have "distinct differences in water quality reflecting swine and/or poultry 

manure effects" including high levels of nitrate and ammonia. 15 

• Detailed tracking of the manure load in the Western Lake Erie Basin established 

industrial animal agriculture as a major contributor to the growth of algae blooms 

in Lake Erie. 16 

• Four decades of studies of the Delmarva Peninsula, which includes most of 

Delaware, the Eastern Shore of Maryland, and the Eastern Shore of Virginia, have 

shown that excess nutrients from the land application of poultry waste is a major 

contributing factor in drinking water aquifers and the pollution in the Chesapeake 

Bay. 

• An EPA-funded, decade-long study detailing seven CAFOs located in 

contaminated groundwater aquifers in south central United States found that the 

contamination "most likely resulted directly from the operation, either through 

leaking infrastructure piping, leaking lagoons, or land application of CAFO 

waste." 17 

• A report released by the California State Water Resources Control Board 

identified animal agriculture as a serious contributor to the contamination of the 

groundwater serving 21 million Californians, particularly in the Central Valley. 

15 Environmental Working Group, Exposing Fields of Filth, https://www.ewg.org/research/exposingfields-filth#. Wl-oCqhKuUk 16 Sierra Club, Follow the Manure: Factory Farms and the Lake Erie Algal Crisis 

https://www.sierraclub.org/michigan/follow-manure-factory-farms-and-lakc-erie-algal-crisis 

17 Hutchins, S.R., Case Studies on the Impact of Concentrated Animal Feeding Operations (CAFOs) on 

Ground Water Quality, EPA 600/R-12/052 (Sept. 2012) at 23. 

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Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

It is also important to correct the record on the matter of environmental impacts in 

fence line communities. Washington State Dairy Federation (WSDF) Director Dan Wood, in 

addition being loose with many supposed facts, testified falsely to the Committee that 

"[g]roundwater nitrates there [in lower Yakima Valley] have been high for more than 100 years, 

predating the dairies and much of agriculture that's in the area." Hearing at 21:00-21: I 0. This 

argument was made and discredited in the Yakima groundwater litigation. There are no facts 

that credibly support historic source of nitrate contamination in the area. Nitrate history was a 

central issue in the Cow Palace litigation and the dairy industry failed to put any evidence 

forward of historic nitrate contamination. In fact, it is just the opposite the uncontroverted 

testimony is that over 99% of the potential loadings of nitrate in the area came from the four 

large dairy CAFOs, most of which had been operating since the 1970s. 

3. Question: Environmental justice is a real and serious concern. We should be doing 

everything we can on this Committee to increase environmental justice by helping 

low income communities and communities of color that hear the brunt of pollution. 

Who lives in these impacted communities? 

The issue of pollution from industrial animal agriculture is one of the most critical 

environmental justice issues of our time. Industrial animal agriculture facilities are 

overwhelmingly located in communities of color and in low-income communities. 

A study of 48 states and Hawaii of CAFO siting and communities of color and lowincome communities found "that the EJ issue is found to be valid for all the categories of 

industrial farms." 18 The study concluded that, in taking a national view, the percentage of 

African-American population, percentage of population below poverty, and the percentage of 

African-American population below poverty were significantly higher in areas with industrial 

chicken facilities. The percentage of white population below poverty level were found 

significantly higher in areas with cattle and hog farms at a national level, though there was 

recognition that concentration of siting varied on state-by-state bases. 

In North Carolina, for example, 95% of hog CAPOs are located in low-income 

communities of color. The intensive hog confinement facilities are located squarely in the socalled Black Belt, a crescent-shaped band throughout the South where slaves worked on 

plantations. A century after slavery, black residents of this region still experience high rates of 

poverty, poor health care, low educational attainment, unemployment, and substandard housing. 

They also live alongside the highest concentration of CAFOs in the state. In response to years of 

inaction from North Carolina agencies, the affected communities filed an Administrative 

Complaint with the EPA against the state for violations of Title VI of the Civil Rights Act of 

1964, 42 U.S.C. § 2000d, 40 C.F.R. Part 7. The Complaint is based on the state's issuing 

permits to more than 2,000 swine operations in communities of color; those permits fail to 

18 Rafael Harun, S.M. and Ogneva-Himmelberger, Y. Distribution of Industrial Farms in the United 

States and Socioeconomic, Health, and Environmental Characteristics of Counties, Geography Journal 

(2013), Article lD 385893. 

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Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

control pollution, leading to a disparate impact on African-Americans, Latinos, and Native 

Americans. 19 The proportions of African-Americans, Latinos, and Native Americans are 1.54, 

!.39, and 2.18 times higher, respectively, than the proportion of non-Hispanic Whites in North 

Carolina living within 3 miles of an industrial swine facility. In a 25-page response to the 

complaint, the EPA said that the N.C. Department ofEnvironmental Quality has not done 

enough to reduce asthma, stench, flies, truck traffic, and other problems caused by the facilities. 

The federal agency also says it has "grave concerns" about reports from minority neighbors of 

threats and intimidation against those who have complained, and documented where many 

neighbors gave up, feeling that state regulators would not help them. 

A case study in Ohio found higher proportions of children and Hispanic populations in 

regions with high densities of dairy and swine CAFOs, and concluded that there was 

environmental discrimination with respect to the concentration of CAFOs in the state. 20 The 

study also found that Hispanic populations were disproportionately exposed to the environmental 

dangers of toxic emissions and airborne illnesses from concentrated animal facilities, as well as 

reduced quality of life. The study argued that the disproportionate impact of pollution on 

communities of color must be considered in future siting and construction of CAFOs. 

In California, 90% of California's dairy cows and 30% of the state's disadvantaged 

communities are located in the San Joaquin Valley, where the communities are 

disproportionately non-white and low income relative to the rest of the state of California. While 

the average poverty rate in California is 14.2%, the average rate in the eight counties of the San 

Joaquin Valley is 20.49%. 21 The dairy industry in this region has disproportionate impacts on 

these communities. Though only about 9% of the state's population lives in the San Joaquin 

Valley (SJV), the region accounts for approximately 15% of the pollutants listed by the EPA as 

most conceming. 22 Despite being significantly more likely of drinking water contaminated with 

nitrates, the disadvantaged communities in the San Joaquin Valley are less likely to be able to 

afford to treat the contamination. 23 In fact, the majority of water systems that reported 

contamination in 2015 were in the Valley. 

19 Complaint Under Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000d, 40 C.F.R. Part 7 

https://earthjustice.org/sites/default/files/files/North-Carolina-EJ-Network-et-al-Complaint-under-TitleVI.pdf 

20 Lenhardt, J. and Ogneva-Himmelberger, Y. Environmental Injustice in the Spacial Distribution of 

Concentrated Animal Feeding Operations: A case study from Ohio, USA. Environmental Justice. August 

2013, 6(4): 133-139. 21 Perez, Miguel, and Kathleen Curtis. Healthy People 2010: A 2003 profile of health status in the Central 

San Joaquin Valley. 2003. California State University, Fresno. p. 2. 22 !d. at 8. 23 STATE WATER RESOURCES CONTROL BOARD REPORT TO THE LEGISLATURE, 

COMMUNITIES THAT RELY ON A CONTAMINATED GROUNDWATER SOURCE FOR DRINKING 

WATER (Jan. 2013) https://www.waterboards.ca.gov/gamalab2222/docs/ab2222.pdf 

15 
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28379.123

Jessica Culpepper 

Public Justice 

Responses to Questions for the Record 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

4. Question: Under current law, citizen suits arc blocked when EPA or the State is 

pursuing an enforcement action to address the dangerous condition the citizen suit 

seeks to address. How is the language in the discussion draft different from the 

approach in current law? 

The difference between the current law and the discussion draft is that the draft bill 

would block citizen suits for any civil, criminal, or Federal or State administrative action of any 

kind, including any "consent agreements" that seck compliance with any "applicable permit, 

standard, regulation, condition, requirement, prohibition, or order." Discussion Draft Subsection 

(E)(i)(l)-(11). 

In plain language, that means that no citizen can enforce RCRA even ifthere is imminent 

and substantial endangerment to public health if a regulatory authority is asking the facility to 

comply with any requirement, whether or not that requirement has anything to do improving the 

health and safety of the community. This includes paper filing requirements or paying dues and 

taxes on permits. It encompasses any kind of compliance activity that one could possibly 

conceive of at these facilities. It would be like preventing the State from prosecuting someone 

for a hit and run if they were already fighting a parking ticket. 

The current law, on the other hand, prohibits citizen suits where a state or federal agency 

is taking action to fix the very RCRA violations that may result in an endangerment to public 

health or the environment. Currently, that is limited to actions taken under relevant sections of 

RCRA or the Comprehensive Environmental Response, Compensation and Liability Act 

("CERCLA"). 

Additional limitations include judicial doctrines designed to stop any lawsuit that seeks 

relief from an injury that is already being addressed. One such doctrine is "mootness," which is 

a judicial principle where a court will not decide a case where there is no true controversy, 

including if a solution is already underway thanks to a State or Federal agency. For example, in 

the Cow Palace case, the defendants raised that argument- saying that the Administrative Order 

on Consent already provided the relief that the plaintiffs sought. The Court explicitly rejected 

that argument, saying that the plaintiffs sought relief that would not be provided by the Order so 

they could secure clean water to a larger area of impacted homes, and require waste management 

practices that were serious sources of drinking water contamination. 

5. Question: We received testimony from EPA in advance of this hearing, and they 

noted that "Unlike the current statutory bars, the EPA or state actions that would 

bar a citizen suit under this bill are not limited to RCRA or CERCLA actions." Do 

you agree with this assessment? Do you think this is appropriate? 

The EPA's assessment is correct. The statutory bar in this bill is virtually limitless. This 

is inappropriate for two reasons. 

First, the discussion draft turns the intent of RCRA on its head. When Congress enacted 

RCRA in 1976, it sought to close "the last remaining loophole in environmental law, that of 

16 
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28379.124

Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

unregulated land disposal of discarded materials and hazardous wastes." H.R.Rep No. 1491, 94th 

Cong., 2d Sess. 4, reprinted in 1976 U.S.C.C.A.N. 6238, 6241. RCRA is designed to be 

protective of public health and the environment from solid and hazardous waste. Agricultural 

waste was major Congressional focus when RCRA was passed, which is highlighted by 

Congress specifically naming it in the statutory definition of solid waste. Given that RCRA's 

citizen suits are designed as a residual power to protect the public from endangerment, then any 

time there is a solid or hazardous waste that causes an endangerment, Congress gave citizens the 

power to act. The drafters were careful not to limit that power simply because an agency is 

already working with the polluter. In fact, it is almost the reverse! If there is an endangerment, 

the statute presumes citizens can act unless a limited subset of actions that cover the same issues 

are present. This discussion draft completely inverts those intentions by being utterly 

unprotectivc of public health, through limiting citizens who are facing an imminent and 

substantial endangerment from being able to protect themselves if any action is being taken, 

whether or not it stops the endangerment. It leaves citizens defenseless if their drinking water is 

contaminated by solid waste, which cannot be what Congress intended when it passed this law. 

Second, the discussion draft is dangerous because it removes the only safeguard rural 

Americans have to protect their own private wells from industrial agriculture facilities that 

mismanage their waste. If this draft is passed into law, private citizens are completely reliant on 

regulatory agencies to provide them with adequate clean replacement water for drinking and 

domestic uses, and to stop any further contamination that may endanger them or their families. 

This unfairly passes the cost of pollution from the wrongdoer onto the taxpayer, and unfairly puts 

rural Americans at the mercy of an already overburdened and under-resourced regulatory agency 

or an agency with no political will or ability to fix the problem, as was seen in the Yakima 

Valley. The people in Kewaunee County Wisconsin, in Eastern North Carolina, and in Iowa are 

still waiting for their respective State and Federal governments to act on their behalf, as they 

have been for more than two decades. 

6. Question: If this bill had been in effect, would the lawsuit brought by Community 

Association for Restoration of the Environment against Cow Palace have been 

blocked? 

Yes, CARE would not have been able to bring a citizen suit to get clean drinking water 

for the hundreds of community members who had been left out of the EPA's settlement with the 

dairies under the Safe Drinking Water Act. This is because the EPA's Order would have fallen 

under the statutory bar if there are any "consent agreements" with the EPA seeking "compliance 

with an applicable ... requirement." Had this discussion draft been law, then there would 

currently be hundreds of community members reliant on contaminated drinking water with no 

way to get relief. Moreover, groundwater contamination would continue because the EPA's 

Order failed to seek compulsory changes to the waste management practices at the dairies for 

several of the sources of contamination. 

17 
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28379.125

Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

7. Question: What actions, required under the settlement in the CARES v. Cow Palace 

case, would not have been required under the Safe Drinking Water Act consent 

order? 

The following actions were not required under the Safe Drinking Water Act consent order: 

• An expanded radius of the community eligible for replacement water, meaning hundreds 

of community members would be going without clean drinking water. 

• The provision of drinking water to wider area by a neutral third-party, Nuestra Casa, an 

organization that provides educational and health services to immigrant women and leads 

community outreach efforts for cities and schools, rather than the dairies, which brought 

fear to the community and was limited in scope. 

• Modern, synthetic liners with leak-detection systems for the waste storage lagoons to stop 

leaking of wastewater into the aquifer. EPA had no such requirements to stop discharges. 

• Groundwater monitoring devices to detect new leaks of manure placed according to 

scientific measurements for where leaks were most likely to occur. 

• A nutrient management budget that would result in lower levels of soil concentration of 

nitrate, an established major cause to the aquifer contamination. 

• Contamination prevention requirements from cow pens and compost areas, such as 

building concrete aprons around water troughs and directing feed sileage leachate into the 

waste storage lagoons to reduce leaching into the aquifer. 

• Limitations on amounts of nitrogen and phosphorus to fields that were causing a 

significant amount of the contamination. 

• Mandatory recordkecping for compliance. 

• Updating each facility's state-required Dairy Nutrient Management Plan to reflect these 

requirements so that their operations reflected a waste management system that was 

protective of public health. 

8. Question: It has been suggested that the requirements of RCRA are duplicative with 

the requirements of the Safe Drinking Water Act or the Clean Water Act. Do you 

agree with that suggestion? 

While there are similarities in language, the requirements of RCRA are quite different 

from that of the Safe Drinking Water Act ("SDWA") and the Clean Water Act ("CWA"). The 

main difference is that neither the SDW A or RCRA impose any regulatory burdens or 

requirements on agricultural facilities at all, while the Clean Water Act creates a regulatory 

permitting system to prevent and control discharges of pollution from "point sources" to surface 

waters of the United States. Notably, the Clean Water Act does not regulate groundwater or 

"non-point sources" and importantly the statute exempts from regulation the runoff from land 

application of animal manure to fields or manure storage on a facility. 

18 
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28379.126

Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

Both RCRA and the SDWA provide emergency powers to the EPA to take to stop 

persons from causing or contributing to imminent and substantial endangerments to public 

health, but the SDWA limits such actions to public water systems or underground sources of 

drinking water, 42 U.S.C. § 300i, while RCRA limits such actions to the disposal of solid or 

hazardous waste. 42 U.S.C. § 6973. However, neither of those statutes impose requirements that 

must be complied with, outside of prohibiting a person from seriously endangering the public 

health. 

In terms of citizen enforcement, the Safe Drinking Water Act limits citizen suits to public 

water systems that arc failing to meet primary drinking water standards or against the 

government for failing to discharge their duties under the law. 42 USC § 300j-8; 40 CFR Part 

141. Those suits cannot be used to protect private wells, or against private actors who are the 

source of the contamination. 

The primary statute invoked by citizen-plaintiffs generally is the Federal Water Pollution 

Control Act, otherwise known as the Clean Water Act, 33 U.S.C. § 1251 et seq. ("'CWA"). Like 

RCRA, citizen-plaintiffs suing under the CWA's "citizen suit" provision must provide statutory 

pre-suit notice and are barred from litigation if a state or federal regulatory entity is "diligently 

prosecuting" a civil or criminal action against the defendant. See 33 U.S.C. § 1365(b). The 

Yakima citizens did bring actions against the big dairy CAFO's in the late 1990's. While these 

successful actions slowed pollution of the local rivers, the groundwater contamination problem 

persisted because the Clean Water Act does not regulate pollution to groundwater. 

Unfortunately, CWA citizen suits against CAFOs are limited by three important factors. 

First, jurisdiction under the CW A is confined to surface waters, not groundwater, which becomes 

drinking water. 24 In the context of Cow Palace, there were no active, ongoing surface water 

discharges that would have given rise to a cause of action under the CW A. Instead, manure 

pollutants were being released from soil to groundwater, causing widespread nitrate 

contamination of the underlying aquifer. Second, the remedy for CW A violations is typically a 

court-ordered cessation of discharges coupled with civil penalties. Injunctive relief of the type 

achieved by the Plaintiffs in Cow Palace to clean up the contamination would not have been 

available had the case been litigated under the CWA. Third, the Second Circuit's decision in 

Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2005), reversed EPA policy and held that only 

facilities with "actual discharges" are obligated to obtain a NPDES permit. In Washington State, 

virtually all CAFOs dropped their NPDES permit coverage after the decision, claiming no actual 

discharges of pollutants originated from their facilities. As such, there were no NPDES permits 

to enforce against CAFOs, making CW A litigation even more difficult. 

24 Some courts have recognized that discharges to surface water that first enter "hydrologically 

connected" groundwater are actionable under the CW A. Discharges directly to groundwater, however, 

are outside the purview of the statute. 

19 
152 


28379.127

Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

In sum, 

• RCRA and the SDWA do not impose any regulatory or statutory burdens or 

requirements, apart from prohibiting a person from gravely endangering the 

public health. 

• Citizens cannot bring enforcement actions for pollution to private well water 

under the Safe Drinking Water Act as it only pertains to community and 

public water systems; only RCRA covers pollution of private wells. 

• Citizens cannot bring enforcement actions for pollution to drinking water 

aquifers under the Clean Water Act as it only pertains to discharges of 

• pollution to surface water; only RCRA covers groundwater pollution 

impacting private wells. 

9. Question: It has also been suggested that communities have extensive alternatives to 

citizen suits. What alternatives would have been available to the Community 

Association for Restoration of the Environment if their citizen suit had been 

blocked? 

It is worth providing a background to this issue for the record, but the short answer is 

none. Private well water is completely unregulated in America. If your well water is 

contaminated by a third party, and the government has refused to step in and fix the problem, 

RCRA is your only option. 

As a primer, there are typically two avenues of litigation against a polluting CAFO 

facility: common law tort claims or causes of action arising under federal environmental statutes. 

As discussed below, each of these avenues has substantial constraints, leaving cases brought 

under the Resource Conservation and Recovery Act ("RCRA") as the only meaningful way to 

remedy CAFO pollution. 

First, under Washington State law, impacted citizens face major legal and financial 

barriers when bringing trespass, nuisance, or negligence claims against agricultural operations 

for contaminating their drinking water. In particular, Washington's "Right to Farm Act," 

codified in R.C.W. 7.48.300 et seq., insulates agricultural activities like dairy CAFOs from such 

lawsuits. RCW 7.48.305(1 ). 

In the context of Cow Palace, the Washington State Department of Agriculture had 

deemed the facility to be "in compliance" with its Dairy Nutrient Management Plan, the only 

state-mandated operational document required of the CAFO. See R.C.W. 90.64.026 (requiring 

dairy CAFOs to obtain and have certified a "dairy nutrient management plan" pursuant to 

Washington's "Dairy Nutrient Management Acf'). 25 In a nuisance-type case, statements about 

such "compliance" would likely have been used offensively to seek dismissal of the state tort 

25 There are no citizen enforcement mechanisms contained within the Dairy Nutrient Management Act. 

20 
153 

[The attachments to Ms. Culpepper’s answers can be found at: 

https://docs.house.gov/meetings/if/if18/20171109/106603/hhrg115-if18-wstate-culpepperj-20171109-sd006.pdf.] 


28379.128

Jessica Culpepper 

Public Justice 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to Questions for the Record 

action, with a counterclaim under the Right to Farm Act that would have put the individuals who 

brought action at risk of serious, personal financial jeopardy. Under RCRA, however, the 

Yakima Plaintiffs defeated a motion to dismiss and, in discovery, uncovered that the Washington 

Department of Agriculture and its inspectors had completely failed in their role to protect human 

health and the environment. Inspectors, either deliberatively or through incompetence, had 

inputted incorrect data on their inspection reports. They had also failed to review critical 

documents evidencing Cow Palace's nan-compliance with its Nutrient Management Plan. 

Even more problematic, an unsuccessful plaintiff facing a Right to Farm Act 

counterclaim is liable for a prevailing fanner's actual damages, exemplary damages, attorneys' 

fees, and costs. RCW 7.48.315(1). Indeed, the law even authorizes a state or local agency that 

merely investigates a complaint against an agricultural activity to recover its "full investigative 

costs and expenses" against an unsuccessful complainant. RCW 7.48.320. This creates a great 

disincentive to bringing tort actions because losing could be financially devastating. 

Finally, and perhaps most importantly, the remedy in state tort cases is almost universally 

money-damages, which do not abate the past and ongoing environmental harms caused by 

polluting CAFOs. 

The high evidentiary burden accompanying state tort claims, coupled with the potentially 

devastating financial implications for an unsuccessful citizen under the Right to Farm Act, make 

state tort claims against operations like Cow Palace exceptionally risky and non-advisable 

endeavors. 

The second avenue of litigation for citizens impacted by CAFOs lies with federal law. 

As discussed above, the Clean Water Act is limited to surface water discharges and does not 

cover the drinking water aquifer contamination that causes the public health risks addressed by 

RCRA. Similarly, the Safe Drinking Water Act docs not cover private wells, leaving rural 

Americans without a federal safeguard except for RCRA. 

Against this backdrop, RCRA citizen suits are, indeed, the "last resort" to abate and 

remedy groundwater pollution from CAFOs. Make no mistake, citizen litigation under RCRA is 

an expensive, time-consuming, and complex endeavor. It is not entered into lightly. Plaintiffs in 

the Cow Palace lawsuit expended hundreds of thousands of dollars proving that the facility was 

causing or contributing to an imminent and substantial endangerment to human health by 

inundating the aquifer with dangerous levels of nitrate contamination. The outcome in the case 

was significant for the community- over 100 families have so far been provided clean, safe 

drinking water, and major operational and structural modifications are being made at the 

facilities to ensure future contamination is eliminated. 

21 
154 


28379.129

GREG WALDEN, OREGON 

CH/\IR!VJAN 

Mr. Lynn Utesch 

Founder 

ONE HUNDRED FIFTEENTH CONGRESS 

FRANK PALLONE, JR,, NEW Jt:F!SlY 

RANKING MEMBER 

(l[ongress of tf)r Wnttrb $tatrs 

j!)ouse of l~cpresentntihes 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAvounN HousE OFFICE BuiLDING 

WASHINGTON, DC 20515-6115 Mujonty \:202)225··2927 

M11><Jn~y 3641 

December21, 2017 

Kewaunee Citizens Advocating Responsible Environmental Stewardship 

P.O. Box 84 

Kewaunee, WI 54216 

Dear Mr. Utesch: 

Thank you for appearing before the Subcommittee on Environment on November 9, 2017, to 

testify at the hearing entitled "H.R._, Farm Regulatory Certainty Act." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows: (I) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a 

transmittal letter by the close of business on Friday, January 12, 2017. Your responses should be mailed 

to Allie Bury, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office 

Building, Washington, DC 20515 and e-mailed in \Vord format to Allic.BurvriDnl~!Jwuse.eov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

Sincerely, 

cc: The Honorable Paul Tonko, Ranking Member, Subcommittee on Environment 

Attachment 
155 


28379.130

Lynn Utesch 

Founder 

Kewaunee Citizens Advocating Responsible Environmental Stewardship 

P.O. Box84 

Kewaunee, Wl54216 

january 12, 2018 

Hon. john Shimkus 

Chair, Subcommittee on Environment 

Committee on Energy and Commerce 

2125 Rayburn House Office Building 

Washington, DC 20515 

Chairman Shimkus, 

Thank you for the opportunity to testify at the hearing entitled "H.R._. Farm 

Regulatory Certainty Act" on Thursday, November 9, 2017. Per your request, please 

find attached my response to your questions for the record. 

Sincerely, 

jsj 

Lynn Utesch 

Enclosures 
156 


28379.131

Lynn Utesch 

Responses to Questions for the Record 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Responses to questions from the Honorable Frank Pallone: 

1. What are some of the health impacts you and your neighbors have 

experienced as a result of manure spraying? 

It is hard to underestimate the negative health effects of living hear a CAFO. 

Many of our neighbors have suffered health impacts that research shows are 

often linked to exposure to CAFO wastes. For example, in our community: 

• A young boy went swimming in a local creek with a skinned knee and 

contracted a life-threatening infection. He had to have part of his knee 

cap removed as a result. Antibiotic resistant bacteria are associated 

with CAFO waste. 

• A young woman had a typical blemish on her face, but when she 

scratched it, her face became infected with antibiotic resistant MRSA, 

an opportunistic pathogen. The infection was so severe that she had to 

have a hole drilled in the top of her mouth to drain the infection. 

• Another community member, who relies on well water, has 

experienced ongoing, severe diarrhea. Microbial source tracking 

testing of water from his well showed that there were contaminants 

from a bovine source in the water. 

Many neighbors have suffered many other health problems associated with 

CAFO wastes. 

In 2014, John Hopkins Center for a Livable Future wrote a letter addressing 

our community and the increased risks associated with exposure to 

increasing volumes of manure. In the last 2 months our local health 

department has reported confirmed cases of salmonella, campylobacter, 

giardia, & cryptosporidium. While these were not traced to the source, due 

to the small size of our health department, USDA researcher Mark Borchardt 

found many of these same pathogens in well water in our county, likening the 

condition of our water quality "to that which one would expect to find in a 

third world country." In this same research, the majority of contaminants 

came from bovine sources. 

Here in the state of Wisconsin, antibiotic resistant infections such as MRSA, 

are not tracked by state and local health departments, therefore we cannot 

get true numbers on how prevalent these infections are in our community. 

With that being said, we are aware of multiple cases of MRSA in our 

community, some severe enough to require removal of appendages. 

Prevalence of these pathogens in our environment were shown in a study 

conducted by Marquette University which tested water and sediments from 

our local streams and rivers. This research showed the presence of multiple 

antibiotics, and antibiotic resistant bacteria. Samples indicated that some of 

the antibiotics are used exclusively in veterinary medicine. In 2013, Dr. 

2 
157 


28379.132

Lynn Utesch 

Responses to Questions for the Record 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

Angelia Bauer's research indicated "significant human health threats" found 

in water in northeastern Wisconsin, including the presence of endocrine 

disrupting compounds. We are highly concerned with air quality issues 

where we live, and toxic emissions known to be neurotoxins, but since 

emissions are not regulated we are offered virtually no protection against air 

tainted with considerable hydrogen sulfide, ammonia, methane, particulate 

matter and multiple volatile organic compounds. Attached: John Hopkins 

letter; Marquette University research; USDA Mark Borchardt research; 

Angelia Bauer research. 

2. What are some of the economic impacts you and your neighbors have 

Experienced? 

In November, 2017, Wisconsin's Department of Revenue conducted a study 

of home values in Kewaunee County. The study found that homes within a 

quarter mile of a large CAFO had a 13% reduction in property value. If the 

home was from a quarter mile to one mile from a large CAFO the property 

value was reduced by 8%. The study shows citizens are losing value on what 

is most residents largest asset -through no fault of their own, merely their 

proximity to CAFO activities within a certain radius. This study does not take 

into account other issues these homes may have such as toxic emissions, a 

contaminated well, or non-stop semi traffic in their neighborhoods. In the 

Town of Lincoln, when a large CAFO turned a pastoral field into a feed pad 

and 76 million gallon lagoon, 8 families immediately left, with some of the 

housing was bought at considerably reduced rates by the CAFO operator. It 

is not unusual for operators to buy homes cheaply after their operation has 

devastated families who seek to leave the health threats and diminished 

quality of life issues that arise due to CAFO activities and production areas, 

and the accompanying land, water, and air pollution. 

Living in a county that has 34% of the tested wells contaminated with e. coli 

or nitrates makes it very difficult to attract new businesses and residents. 

While our county is attempting to increase tourism, it is difficult to get people 

to choose this as a travel destination since our Lake Michigan beaches are 

covered with dense algae mats that stink and cover the beach, fueled by 

excessive phosphorus from farm run-off into our tributaries which empty 

into Lake Michigan. Externalized costs from these mega dairies is untold to 

our environment; Our 3 major rivers, the Ahnapee, Kewaunee, and East 

Twin, are all on the EPA's impaired waters list. Many rivers in Kewaunee 

County are seriously impaired, although at one time held the status as class 1 

trout streams. 

Obviously, the biggest concern homestead owners have is a contaminated 

well, which in large part renders a home without water fit to drink, wash 

vegetables, brush one's teeth or bathe in. Costs to remediate problems are 

very costly for homeowners, well into thousands of thousands of dollars, and 

3 
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28379.133

Lynn Utesch 

Responses to Questions for the Record 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

digging a new well has unfortunately failed for some residents who found in 

a very short time that their well had been re-contaminated. Remediation for 

well contamination through different technologies is extremely expensive, 

and buying multiple gallons of water at the store on a regular basis is also a 

financial burden for citizens. Water testing is also expensive for 

homeowners to incur costs on, and many are deterred from regular well 

testing due to costs associated. 

The continued growth of CAFOs has highly impacted small dairy farmers by 

the surplus volumes of milk generated, which are driving milk prices down, 

having the greatest negative impact on small farmers. In 2017 Wisconsin lost 

500 dairy farms. As of January 1, 2018, there were 8,801licensed dairy 

herds. The number of dairy farms has dropped by 20% in Wisconsin in the 

last 5 years. The CAFO model has driven up land costs making it almost 

impossible for young and new farmers to purchase land. Land is valuable not 

in as so much for crop production, but for manure disposal. 

3. You, yourself are a farmer, so you have experience handing manure for 

farming purposes. In your experience, what are the big differences 

between the way you use manure as a farmer and the way Concentrated 

Animal Feeding Operations dispose oftheir manure? 

Manure handling in our area is primarily through the use of liquid manure. 

What that means is the manure and urine are mixed with water for ease of 

handling. For the CAFOs this means all the wash water for dairy equipment, 

barns, leachate etc. is added to the manure, which is stored in a manure pit. 

These pits hold millions of gallons-the largest in our area a 76 million gallon 

lagoon. In addition, in the state of Wisconsin these pits can accept up to 10% 

industrial waste of the total volume of the pit, which is classified as "manure". 

These pits are storing manure under anaerobic conditions [without oxygen], 

which starts the putrefaction process, which produces toxic gases such as 

hydrogen sulfide, methane, ammonia and up to 300 Volatile Organic 

Compounds. This liquid manure is then applied to the soil at what is termed 

agronomic rates. The typical rate for corn in our area is 22,000 gallons per 

acre, but it could be as high as 32,000 gallons per acre. These rates are based 

on the crop needs for the entire growing season. Unfortunately, liquid 

manure is applied in a single application. This application often takes place 

late in the fall when corn has been harvested on to bare soil that will not be 

planted until the next spring. This practice creates the potential for this 

liquid manure to migrate into the ground water or run off to surface waters. 

Even when this manure is applied in the spring at the volumes allowed, it 

creates the potential for the manure to leach below the root zone and enter 

the ground water. 

4 
159 


28379.134

Lynn Utesch 

Responses to Questions for the Record 

Subcommittee on Environment 

H.R._. Farm Regulatory Certainty Act 

On our farm, we use a rotational grazing system with 110 acres of pasture 

and 40 acres of woods and hedgerows. During the growing season our cows 

are moved to fresh pasture on a daily basis. Since our cows spend their time 

on grass we have a minimum of manure handling. The manure from our 

cows is in a solid form, and is deposited directly to the soil where the biology 

of the soil and living forms such as worms and dung beetles convert the 

waste to a bioavailable nutrient that can be used by the plant immediately. 

By using solid manure deposited on a carpet of plants we minimize the 

potential for our manure to migrate to our ground water or surface water. 

Even during the winter months our cows are moved on our pasture to round 

bales put out in different locations on the field, which reduces the 

concentration of manure from any one area. Any manure in the barns is 

cleaned out with a skid steer and com posted, which reduces its volume by as 

much as 50%. 

5 
160 


28379.135

The john Hopkins Center for a Livable Future 

Bloomberg School of Public Health 

615 North Wolfe Street, W7010 

Baltimore, MD 21205 

March 27,2014 

Kewaunee CARES 

P.O. Box 84 

Kewaunee, WI 54216 

Page 1 of12 

Disclaimer: The opinions expressed herein are our own and do not necessarily reflect the 

views of The johns Hopkins University. 

Re: Manure from intensive livestock operations: health and environmental concerns 

To whom it may concern: 

We are researchers at The johns Hopkins Center for a Livable Future, based at the 

Bloomberg School of Public Health. The Center engages in research, policy analysis, 

education, advocacy, and other activities guided by an ecologic perspective that diet, food 

production, the environment, and public health are interwoven elements of a single 

complex system. We recognize the fundamental importance of food animal production in 

these issues as they relate to the U.S. food system. 

We are writing to present some of the concerns associated with the generation and 

management of manure from intensive livestock operations, particularly regarding the 

health of Wisconsin's rural citizens. These health and environmental concerns include: 

• The spread of infectious disease, including antibiotic-resistant bacteria, to nearby 

communities. 

• Groundwater and surface water pollution, and associated health and ecological 

impacts. 

• Air pollution, odors, and associated health and social impacts. 

These are detailed below, with supporting evidence from the peer-reviewed scientific 

literature. 
161 


28379.136

Page 2 of12 

Background 

According to the 2007 Census of Agriculture, Wisconsin is the second leading dairyproducing state in the country. The state is home to over 1.2 million milk cows, with an 

inventory of close to 3.4 million cattle and calves-the 9th largest in the nation. Wisconsin 

is also a significant contributor to U.S. pork, poultry and egg production (1,2). 

Over half of Wisconsin's cattle and calves are on farms with reported inventories of over 

200 head, and 27 percent are on farms with over 500 head (1). With regards to health and 

environmental concerns, it is critical to consider inventory size alongside other important 

factors such as feed inputs, stocking density, and the amount of available cropland for 

spreading manure. 

Producing large numbers of animals over a relatively small land area presents the 

challenge of managing the quantities of manure they generate. A 1400 pound lactating cow, 

for example, produces an estimated 148lbs of waste daily (3). Humans, by comparison, 

produce 2.5 lbs daily. An intensive dairy operation with several hundred animals, by 

extension, may produce as much excrement as a small city, concentrated over a tiny 

fraction of the land area and without the benefit of a wastewater treatment plant to 

eliminate biological and chemical contaminants. In large part because of these challenges, 

intensive livestock operations have emerged as a major source of pollution to ground and 

surface waters ( 4-9). 

Any farmer can attest to the value of manure as a source of nutrients and organic matter for 

their soil. The quantity of manure generated at intensive operations, however, frequently 

exceeds the amount that can be utilized by surrounding cropland, and transporting manure 

further may not be economically feasible (10-12). When manure is over-applied, the 

excess-along with chemical (13-17) and microbial ( 4, 18, 19) contaminants associated 

with it-may be transported by runoff into surface waters and/or leach into groundwater. 

Results from a 2005 study, for example, suggest 71 percent of Wisconsin dairy farms 

generate manure in amounts that exceed the nutrient requirements of the cropland on 

which manure is applied (20). The potential health and ecological effects associated with 

these scenarios are detailed below. 

Spread of infectious disease to nearby communities 

Crowded conditions in intensive livestock operations present frequent opportunities for 

the transmission of viral and bacterial pathogens among animals, and between animals and 

humans. Many of these pathogens live in the digestive tracts of animals and may be passed 

in their waste ( 4,18,19). 
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The disease risks stemming from intensive livestock production are heightened by the 

potential for infection with antibiotic-resistant bacteria. The use of low doses of antibiotic 

drugs as a means to promote growth (often also called "disease prevention") in animals has 

become commonplace-an estimated 80 percent of antibiotics sold for human and animal 

uses in the U.S. are sold for use in food-producing animals (21). Administering antibiotics 

to animals at doses too low to treat disease fosters the proliferation of antibiotic-resistant 

pathogens, which can cause infections in humans. When a person is infected with 

antibiotic-resistant bacteria, these infections can be more difficult and expensive to treat 

(22). 

A growing body of evidence points to the potential pathways by which pathogens 

(antibiotic-resistant or otherwise) might spread from intensive livestock operations into 

communities. Studies suggest, for example, that antibiotic-resistant pathogens may be 

transmitted by workers into their homes and communities (23,24), conveyed by runoff into 

ground and surface waters (19), blown out of ventilation systems (25-27), and spread to 

consumers via contaminated meat (28,29). Pathogens may also be transported by flies 

(30), wild birds (31,32), and animal transport vehicles (33). Further evidence for these 

pathways is documented in a 2013 study in which living closer to swine operations-and 

to fields where manure is spread-was significantly associated with elevated rates of 

infection with methicillin-resistant Staphylococcus au reus (MRSA), an antibiotic-resistant 

pathogen that can be challenging and expensive to treat (34). A similar study found similar 

associations between proximity to a swine operation and colonization with MRSA (35). 

Health and ecological impacts of ground and surface water pollution 

Manure from intensive livestock operations may introduce a range of waterborne 

contaminants into ground and/or surface waters, including nitrates (7,8), microbial 

pathogens ( 4,19,34), veterinary pharmaceuticals(14-18,36) and natural and synthetic 

hormones (37,38). Communities living downstream from these operations may be exposed 

to these agents via drinking or having skin contact with contaminated ground or surface 

waters. 

Exposure to these waterborne contaminants can result in adverse health effects. Ingesting 

high levels of nitrate (naturally occurring in manure), for example, has been associated 

with increased risks for thyroid conditions (39,40), birth defects and other reproductive 

problems (39,41), diabetes (39), various cancers (39,42), and methemoglobinemia (blue 

baby syndrome), a potentially fatal condition among infants ( 43). 

The risks of exposure to waterborne contaminants are particularly salient for the 70 

percent of Wisconsin's population who depend on groundwater for their drinking water 
163 


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supply-the state ranks fourth in the nation for the percentage of households on private 

wells ( 44). Adding to these concerns, much of southern and eastern Wisconsin has karst 

geology-a feature that can readily channel surface contaminants into groundwater 

sources ( 45). Private wells are not subject to federal drinking water regulations, and while 

some states have minimal requirements for private wells, state-level action is usually only 

triggered during property transfer and rarely requires periodic monitoring of water quality 

( 46). Further, most water treatment systems for private wells are designed to deal with 

heavy metals and other more common drinking water contaminants, and are not suited for 

removal of drug residues and hormonally-active compounds. 

Nutrient runoff into surface waters may also have consequences for marine ecosystems 

and the people who depend on them for recreation and economic activity. Intensive 

livestock operations are a major source of nutrient runoff (6,7,47), contributing to algal 

blooms and subsequent hypoxic "dead zones" that may result from algal decomposition. 

Aquatic regions exposed to long periods of hypoxia often see dramatic reductions in 

fisheries, among other health, ecological, and economic harms ( 48). Nutrient runoff has 

also been implicated in the growth of harmful algal blooms (49), which may pose health 

risks for people who swim or fish in recreational waters, or who consume contaminated 

seafood. Exposure to algal toxins has been linked to neurological impairments, liver 

damage, stomach illness, skin lesions, and other adverse health effects (SO). 

In more severe cases, manure storage facilities may rupture, leak, or overflow during 

extreme weather events, releasing their contents into surrounding waterways. For 

example, in 1995 a large swine waste holding lagoon in North Carolina ruptured due to 

faulty management. Close to 26 million gallons of manure emptied onto fields and lawns of 

adjacent homes before draining into a nearby river. The pollution load led to the 

proliferation of toxic algal blooms and widespread fish kills, and fecal bacteria were 

detected in river sediment at levels over 15,000 times higher than state standards (51). 

Air pollution, odors, and associated health and social impacts 

Intensive livestock operations release a range of airborne pollutants, including ammonia, 

hydrogen sulfide, and other gases emitted from animal waste; and airborne particulates, 

which may be comprised of dried feces, animal dander, fungal spores, and bacterial toxins 

(52). Results from a two-year air monitoring study, jointly sponsored by the U.S. 

Environmental Protection Agency and representatives of the pork, poultry, dairy and egg 

industries, suggest intensive livestock operations produce several of these pollutants at 

levels well above federal standards.(S3) 
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Much of the research on the health effects associated with exposure to airborne pollutants 

from confinement operations has focused on workers. At least one in four workers in these 

operations are estimated to suffer from respiratory illness (54). 

A growing body of evidence suggests residents living near intensive livestock operations 

may also be at greater risks of respiratory illness. Results from a study of industrial-scale 

dairy operations in Washington State, for example, suggest intensive dairy operations are a 

significant source of particulate matter among nearby rural communities (55). Another 

study detected high concentrations of particulate matter downwind from swine 

confinement operations, which was linked to wheezing, breathing difficulties, and eye, skin, 

and nasal irritation among residents of downwind communities (56). Indicators of air 

pollution from swine confinement operations have also been linked to asthma symptoms 

among students at nearby schools (57). Additional studies have illustrated relationships 

between proximity to intensive livestock operations and respiratory effects (58-61) among 

other adverse health outcomes. 

Odors associated with air pollutants from intensive livestock operations have been known 

to interfere with daily activities, quality of life, social gatherings, and community cohesion 

(62,63). In addition to the stigma and social disruption they often generate, odors from 

swine confinement operations have been associated with physiological and psychological 

effects, including high blood pressure, depression, anxiety, and sleep disturbances ( 64-66). 

Despite the above concerns, all but the largest livestock operations-those designated as 

"Large CAFOs" (concentrated animal feeding operations )-are required by federal law to 

report hazardous airborne emissions, and then only if the levels are above certain 

thresholds. Even in cases when operations report emissions, such information may not be 

available to the public. For these reasons, the relationships between intensive livestock 

operations, air quality, and the health of rural residents are poorly understood. These data 

gaps speak to the need for better methods of estimating emissions, including more 

stringent reporting requirements and air monitoring stations at intensive livestock 

operations and communities (67). 

Conclusion 

For thousands of years, manure has been valued by farmers for its roles in building soil 

quality and increasing crop yields. Producing livestock such that they generate more 

manure than can be utilized by nearby cropland is not only a waste of this important 

resource, it is also a public health and environmental problem. A growing body of evidence 

has implicated the generation and management of manure from intensive livestock 

operations in the spread of infectious disease (including antibiotic-resistant strains), the 
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introduction of microbial and chemical contaminants into ground and surface waters, 

impacts to air quality, and the wide range of adverse health, social, ecological and economic 

outcomes that result from these events. 

We hope our Jetter is helpful in describing some of the public health and environmental 

concerns associated with the generation and management of manure from intensive 

livestock operations. Please do not hesitate to contact us if you have any questions. 

Sincerely, 

RobertS. Lawrence, MD, MACP, FACPM 

The Center for a Livable Future Professor in Environmental Health Sciences 

Professor, Departments of Environmental Health Sciences, Health Policy and Management, 

and International Health 

Director, johns Hopkins Center for a Livable Future 

Keeve E. Nachman, PhD, MHS 

Assistant Scientist, Departments of Environmental Health Sciences and Health Policy and 

Management 

Program Director, Food Production and Public Health, 

johns Hopkins Center for a Livable Future 

David C. Love, PhD 

Assistant Scientist, Department of Environmental Health Sciences 

Assistant Scientist, Public Health & Sustainable Aquaculture Project, 

Johns Hopkins Center for a Livable Future 

Robert P. Martin 

Senior Lecturer, Department of Environmental Health Sciences 

Program Director, Food System Policy Program, 

Johns Hopkins Center for a Livable Future 

Brent F. Kim, MHS 

Program Officer, Food Production and Public Health, 

Johns Hopkins Center for a Livable Future 

Claire M. Fitch 

Research Assistant, Food Production and Public Health, 

johns Hopkins Center for a Livable Future 
166 


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171 

[The attachments to Mr. Utesch’s answers can be found at: 

https://docs.house.gov/meetings/if/if18/20171109/106603/hhrg115-if18-wstate-uteschl-20171109.pdf.] 

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