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HAZARDOUS SUBSTANCE RELEASES AND REPORTING UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980 (CERCLA) AND THE 

EMERGENCY PLANNING AND COMMUNITY 

RIGHT-TO-KNOW ACT OF 1986 (EPCRA) 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND 

HAZARDOUS MATERIALS 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

September 24, 2008 

Serial No. 110–151 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

JOHN D. DINGELL, Michigan, Chairman 

HENRY A. WAXMAN, California 

EDWARD J. MARKEY, Massachusetts 

RICK BOUCHER, Virginia 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

BART GORDON, Tennessee 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

BART STUPAK, Michigan 

ELIOT L. ENGEL, New York 

ALBERT R. WYNN, Maryland 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

Vice Chairman 

LOIS CAPPS, California 

MIKE DOYLE, Pennsylvania 

JANE HARMAN, California 

TOM ALLEN, Maine 

JAN SCHAKOWSKY, Illinois 

HILDA L. SOLIS, California 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

DARLENE HOOLEY, Oregon 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

CHARLIE MELANCON, Louisiana 

JOHN BARROW, Georgia 

BARON P. HILL, Indiana 

JOE BARTON, Texas 

Ranking Member 

RALPH M. HALL, Texas 

FRED UPTON, Michigan 

CLIFF STEARNS, Florida 

NATHAN DEAL, Georgia 

ED WHITFIELD, Kentucky 

BARBARA CUBIN, Wyoming 

JOHN SHIMKUS, Illinois 

HEATHER WILSON, New Mexico 

JOHN B. SHADEGG, Arizona 

CHARLES W. ‘‘CHIP’’ PICKERING, 

Mississippi 

VITO FOSSELLA, New York 

ROY BLUNT, Missouri 

STEVE BUYER, Indiana 

GEORGE RADANOVICH, California 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE FERGUSON, New Jersey 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

PROFESSIONAL STAFF

DENNIS B. FITZGIBBONS, Chief of Staff 

GREGG A. ROTHSCHILD, Chief Counsel 

SHARON E. DAVIS, Chief Clerk 

DAVID CAVICKE, Minority Staff Director 

(II) 

(III) 

SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS

ALBERT R. WYNN, Maryland, Chairman 

FRANK PALLONE, JR., New Jersey 

BART STUPAK, Michigan 

LOIS CAPPS, California 

TOM ALLEN, Maine 

HILDA L. SOLIS, California 

Vice Chairman 

TAMMY BALDWIN, Wisconsin 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

BARON P. HILL, Indiana 

DIANA DEGETTE, Colorado 

ANTHONY D. WEINER, New York 

HENRY A. WAXMAN, California 

GENE GREEN, Texas 

JAN SCHAKOWSKY, Illinois 

JOHN D. DINGELL, Michigan (ex officio) 

JOHN B. SHADEGG, Arizona 

Ranking Member 

CLIFF STEARNS, Florida 

NATHAN DEAL, Georgia 

JOHN SHIMKUS, Illinois 

HEATHER WILSON, New Mexico 

VITO FOSELLA, New York 

GEORGE RADANOVICH, California 

JOSEPH R. PITTS, Pennsylvania 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

JOE BARTON, Texas (ex officio) 

PROFESSIONAL STAFF

RICHARD FRANDSEN, Chief Counsel 

CAROLINE AHEARN, Counsel 

RACHEL BLESHMAN, Legislative Clerk 

GERALD COURI, Minority Counsel 

(V) 

C O N T E N T S 

Page 

Hon. Gene Green, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 1 

Hon. John B. Shadegg, a Representative in Congress from the State of Arizona, opening statement ...................................................................................... 3 

Hon. John Barrow, a Representative in Congress from the State of Georgia, 

opening statement ................................................................................................ 4 

Hon. Nathan Deal, a Representative in Congress from the State of Georgia, 

prepared statement 1 ........................................................................................... 5 

Hon. Hilda L. Solis, a Representative in Congress from the State of California, opening statement .................................................................................... 5 

Hon. G.K Butterfield, a Representative in Congress from the State of North 

Carolina, opening statement ............................................................................... 7 

Hon. John D. Dingell, a Representative in Congress from the State of Michigan, opening statement ....................................................................................... 219 

Hon. Joe Barton, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 220 

Hon. Bart Stupak, a Representative in Congress from the State of Michigan, 

opening statement ................................................................................................ 221 

WITNESSES

Susan P. Bodine, Assistant Administrator, Office of Solid Waste and Emergency Response, Environmental Protection Agency .......................................... 10 

Prepared statement .......................................................................................... 12 

Submitted questions 2 ......................................................................................

Mark Johnson, Senior Environmental Health Scientist, Agency for Toxic Substances and Disease Registry—Region 5 ............................................................ 23 

Prepared statement .......................................................................................... 24 

Answers to submitted questions ...................................................................... 217 

Mark E. Rey, Under Secretary for Natural Resources and the Environment, 

U.S. Department of Agriculture .......................................................................... 36 

Prepared statement .......................................................................................... 37 

Submitted questions 3 ......................................................................................

Anu Mittal, Director, Natural Resources and Environment, U.S. Government 

Accountability Office ............................................................................................ 42 

Prepared statement .......................................................................................... 45 

Answers to submitted questions ...................................................................... 209 

SUBMITTED MATERIAL

Committee letter, dated March 18, 2008, to Environmental Protection Agency 92 

EPA response .................................................................................................... 108 

Comments, dated March 27, 2008, by National Association of SARA Title 

III Program Officials ............................................................................................ 119 

Memorandum, dated January 28, 2008, from Congressional Research Service . 137 

Government Accountability Office Response to United States Department 

of Agriculture comments ...................................................................................... 140 

USDA comments ............................................................................................... 166 

Follow-up letters: 

Ms. Bodine ........................................................................................................ 181 

Mr. Johnson ...................................................................................................... 196 

Mr. Rey .............................................................................................................. 203 

Page

VI 

Follow-up letters—Continued 

Ms. Mittal .......................................................................................................... 207 

1 Mr. Deal did not submit a prepared statement for the record in time 

for printing. 2 Assistant Administrator Bodine did not answer submitted questions for 

the record. 3 Under Secretary Rey did not answer submitted questions for the record. 

(1) 

HAZARDOUS SUBSTANCE RELEASES AND REPORTING UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, 

AND LIABILITY ACT OF 1980 (CERCLA) AND 

THE EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT OF 1986 (EPCRA) 

WEDNESDAY, SEPTEMBER 24, 2008 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS

MATERIALS, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:34 a.m., in room 

2123 of the Rayburn House Office Building, Hon. Gene Green 

(chairman) presiding. 

Members present: Representatives Green, Solis, Butterfield, Barrow, DeGette, Shadegg, Hall, Deal, Radanovich, and Sullivan. 

Staff present: Richard A. Frandsen, Caroline Ahearn, Karrin 

Hoesling, Rachel Bleshman, Drew Wallace, Jerry Couri, and Garrett Golding. 

OPENING STATEMENT OF HON. GENE GREEN, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. GREEN. Good morning. I call this meeting to order. Today we 

have a hearing on Hazardous Substance Releases and Reporting 

under the Comprehensive Environmental Response, Compensation, 

and Liability Act, commonly known as the Superfund, and the 

Emergency Planning and Community Right-to-Know Act, also 

known as EPCRA. For the purposes of making opening statements, 

the chair and the ranking members of subcommittee and full committee will each be recognized for 5 minutes, and all other members of the subcommittee will be recognized for 3 minutes. Members may waive their right for an opening statement, and we will 

instead add 3 minutes to their time for questions for the first round 

of questions. Since we have one panel, we will have the opportunity 

to ask two rounds of questions. 

Without objection, all members have two legislative days to submit opening statements for the record instead of the usual five, 

since hopefully we may not be in session five more days. The chair 

now recognizes himself for an opening statement. 

I would like to welcome our witnesses on today’s panel and thank 

you for coming. Hazardous releases and reporting requirements are 

2 

important areas of our jurisdiction, and any significant issues that 

arise under the Superfund program are high priority for this subcommittee. I would like to start by sharing a recent story that illustrates the importance of government action to prevent and respond 

to hazardous releases. 

On Monday, I toured Baytown, Texas, one of the hardest hit 

areas of Hurricane Ike. It is actually in our congressional district. 

The storm surge of about 10 feet went up Galveston Bay into the 

Sanderson River, causing serious destruction. Hurricane Ike likely 

caused hazardous releases. One constituent showed me where contaminated flood water damaged his property. 

While I was there, the constituents called Baytown’s local 

hazmat crew to come and dispose of a barrel of some unknown substance or unknown product that floated ashore in his neighborhood. 

And it was just a plastic barrel that is commonly used in our industry. 

This experience made me very concerned about Superfund sites 

that may have been impacted by Hurricane Ike. All members of the 

subcommittee should be concerned that the EPA Superfund database lists only 100 sites in this country where human exposure to 

toxic substances is not under control. 

In my own backyard, there is a new Superfund site that should 

be added to the list of the uncontrolled human exposures. The 

storm surge from Hurricane Ike may have made uncontrolled 

human exposures even worse at this particular site. In East Harris 

County, an old paper mill dump subsided into the Sanderson River 

many years ago and was recently discovered and listed on the 

Superfund National Priorities List. 

The EPA site status summary states sediment water tissue samples show elevated levels of dioxins. The fish consumption advisory 

from the Texas Department of Health is in place, and despite the 

advisory, residents are continuing to consume fish and crabs from 

the river, and even Galveston Bay, the upper reaches of Galveston 

Bay. While EPA has not made a final determination, the information definitely indicates an uncontrolled human exposure. 

I am deeply concerned that these dioxins could have been spread 

to an even wider area by the storm surge from Hurricane Ike. The 

Sanderson River drains into Galveston Bay, which produces more 

seafood than any other estuary except the Chesapeake. 

Like the Sanderson River, new fish advisory warnings about 

health risks have gone into effect in Galveston Bay. EPA should act 

swiftly in all sites with uncontrolled human exposure, especially if 

that are at risk of disturbance. If potentially responsible parties 

move slowly, EPA should use its own resources to take prompt action and seek recovery in court as provided by the law. 

If our subcommittee finds a lack of resources contributing to the 

uncontrolled human exposure and slowdown in cleanup, I will support the reinstatement of the Superfund fee for the trust fund. Reinstatement could be revenue neutral and different from the previous structure, but Superfund sites must be cleaned up nationwide. 

The focus of today’s hearing is EPA’s controversial proposed rule 

to provide a highly unusual exemption from Superfund reporting 

requirements for air emissions, from animal waste at all farms. 

3 

The law requires all facilities to report all air releases and hazardous chemicals above certain reportable quantities. In my view, 

the concern with this proposed exemption is not that your average 

farm or ranch should file reports based on animal waste. The controversy arises when the exemption applies to all large animal 

waste facilities or concentrated animal feeding operations, known 

as CAFOs. 

The agriculture sector has been very successful at providing our 

nation with a great food supply and at low prices by taking advantage of the economy’s scale CAFOs just like other economic sectors. 

CAFOs store very large amounts of animal waste in concentrated 

facilities, which does not occur naturally or at most farms. Due to 

their size and concentration, studies show that these facilities emit 

large amounts of hazardous ammonia, hydrogen sulfide and as a 

result, some Federal public health professionals believe individuals 

living near or working in CAFOs may face health concerns including chronic respiratory, neurological, and other problems. 

In one recent incident, hydrogen sulfide releases from a dairy 

caused the evacuation of several nearby families. The law requires 

reporting because emergency response removal and hazardous release controls depend upon accurate information in order to protect 

public health and the environment. 

EPA plans to exempt all CAFOs from reporting any hazardous 

substance emission before EPA finishes a multi-year, multi-state, 

state-of-the-art study, to determine emissions from CAFOs. Today 

we are releasing a GAO report which questions EPA’s proposed 

rule based on EPA’s lack of the needed data for the study. I am 

highly skeptical of EPA’s proposal to exempt CAFOs from Superfund and the EPCRA reporting for similar reasons. 

Putting the lack of data aside, I also am skeptical of the EPA’s 

authority for a blanket exemption like this where Congress did not 

provide one. These exemptions are so rare that the courts have apparently never considered the question. The focus of our hearing is 

not intended to portray large agricultures producers or CAFOs in 

a negative way. Instead, our focus is whether CAFOs with large 

concentrated waste facilities should meet the same hazardous reporting obligations as facilities in other sectors of the economy. 

With that, I will gladly yield 5 minutes to our ranking member, 

Congressman Shadegg. 

OPENING STATEMENT OF HON. JOHN B. SHADEGG, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA 

Mr. SHADEGG. Thank you, Mr. Chairman, and thank you for 

holding today’s hearing. Today we are discussing the role of concentrated animal feeding operations under the Comprehensive Environmental Response Compensation and Liability Act, CERCLA, 

and the Emergency Planning and Community Right-to-Know, 

EPCRA. We are also discussing Superfund sites more generally. 

While these topics are expansive and likely deserve separate 

hearings, I look forward to the testimony of our witnesses and to 

being further educated on the topic. 

According to 1997 census of agriculture, there are 1.2 million 

farms. Of these farms, 238,000 are defined as feeding operations. 

Of those 238,000 animal feeding operations, less than five percent 

4 

are classified as concentrated animal feeding operations. However, 

concentrated animal feeding operations raised more than 40 percent of U.S. livestock. 

As we all know, food prices have skyrocketed within the past few 

years. Between June 2005 and June 2008, the prices for eggs have 

increased 68.6 percent. Prices for whole milk have increased 20.9 

percent, and prices for chickens have increased 9.9 percent. And 

these prices affect the poorest 20 percent of Americans the most, 

those who can barely pay their grocery bills and who struggle to 

get by each month. 

In this context, we must carefully consider additional regulations 

on our agricultural industry that may increase costs for the consumers to be sure they are warranted. I would like to clarify that 

we are not here today discussing the removal of air quality standards, and we are not discussing allowing farms to emit more pollutants. We are not discussing the removal of clean air protections. 

What we are discussing is a proposed exemption from reporting 

requirements. I think it is also important to add that we are not 

addressing the reporting of emissions into the water but rather into 

the air, and we are discussing clean air protections, not the issues 

regarding clean water. 

As I understand it, the reporting requirements are mainly used 

for emergency response. However, we will hear from some other 

witnesses there are logistical questions about how you would appropriately respond to increased flatulence from livestock. Furthermore, as we will hear from EPA, the agency has never had to initiate a response from any notifications regarding hazardous substance released to the air where animal waste at farms was the 

source of that release. 

We must carefully examine the logic and policy implications of 

reporting and regulating—let me suggest—the natural bowel movements of all livestock. While it is important that we safeguard the 

quality of our air and that we focus our efforts in the most effective 

and logical areas. More generally, I am interested in the status of 

our Superfund program, and I would like assurances that our 

Superfund sites, including these sites, are being addressed with 

due diligence and with careful attention to both the cost of implementing the program and the burden proposed on the industry. I 

look forward to hearing the testimony of our witnesses on these 

subjects. 

Thank you, Mr. Chairman. I yield back. 

Mr. GREEN. Thank you. Next for an opening statement is Congressman Barrow. 

OPENING STATEMENT OF HON. JOHN BARROW, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA 

Mr. BARROW. Thank you, Mr. Chairman, and thank you for calling this hearing. This whole subject is particularly important to me 

because, believe it or not, I am the only member of the House of 

Representatives who serves on both the Agriculture Committee on 

the one hand and the Committee on Energy and Commerce on the 

other. For all 435, I am the only one who serves on both those committees. And I worked hard trying to secure election to those two 

5 

committees because they each deal with the same subject, and oftentimes they don’t talk to each other. 

And I thought somebody in this shop ought to be following the 

conversations in both that have something to do with the folks 

back home, because farmers back home and the folks who are producing food, they don’t care and they don’t understand jurisdictional differences. They don’t care whether the regulations coming 

at them is coming from the E and C Committee or coming from the 

Ag Committee. They don’t know or care about that, but if it affects 

them back home, they want to make sure somebody up in Washington is looking out for their interests and trying to follow the ball 

on both sides of the committee jurisdictional divide. 

This is what I understand about what we are going to talk about 

today, and the sense that I have is that something is in the air that 

we ought to just drop a reporting requirement either because it 

hasn’t been tried or because it was tried and found wanting. And 

there is some uncertainty about which of these two it is. 

The idea that we should drop a reporting requirement because 

we have never responded to one in the past and probably won’t respond to any one in the future seems to me to be sort of a backwards way of looking at this. What I would like the witnesses to 

address is whether there is a need for a monitoring requirement. 

And if so, how that should be allocated or imposed based on momand-pop operators on the one hand or big old CAFOs on the other. 

Should we distinguish between those when it comes to monitoring? 

And if there should be a monitoring requirement, should there be 

a reporting requirement? And again we should try to draw a common sense distinction between small operators that are de minimis 

in terms of the impact they have on the environment, and big operators that might be a legitimate subcommittee concern. That is 

what I want to have addressed today, and if you all can do that, 

it will help us carry on this conversation and also help me mediate 

between the concerns of the folks back home as their concerns are 

being addressed by both Energy and Commerce Committee folks on 

the one hand and Agriculture Committee folks on the other. 

With that, Mr. Chairman, I yield back. Thank you. 

Mr. GREEN. Thank you. Our next opening statement is Congressman Deal. 

Mr. DEAL. Thank you, Mr. Chairman. I will submit my opening 

statement for the record and add to my time for questions. 

Mr. GREEN. Thank you. Now our chair is pleased to recognize our 

vice chair of the subcommittee, Congresswoman Solis. 

OPENING STATEMENT OF HON. HILDA L. SOLIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Ms. SOLIS. Thank you, Mr. Chairman, for having a hearing 

today. I want to also welcome our witnesses that are here. According to the GAO, some large farms can produce more raw waste 

than the human population of a large U.S. city. As an example, a 

very large hog farm with as many as 800,000 hogs generates more 

than one and a half times the sanitary waste produced by 1.5 million residents of Philadelphia, Pennsylvania in one year. 

6 

This manure waste can pose significant risk to public health and 

to the environment. More than 29 states have linked groundwater 

contamination to CAFOs. Waste also emits toxic gases, such as hydrogen sulfide and ammonia, and contains more than 150 pathogens such as E. coli and salmonella. A variety of health problems 

faced by neighbors of huge, industrial farms has been linked to the 

vast amounts of concentrated animal waste. 

In 2004, EPA scientists reported that acute respiratory irritation 

and effects of the central nervous system could be caused in a 

downwind population subjected to hydrogen sulfide emissions from 

wastewater lagoons. In North Carolina, hog farms in recent years 

have been concentrated in eastern North Carolina, a relatively poor 

region in the state with a large rural African-American population. 

This has led to a growing concern that the environmental and 

health impacts of factory farms, large ones, are disproportionately 

born by poor, low-income, and minority communities. 

Just this summer, releases from the Excel Dairy in Minnesota 

forced the evacuation of residents near the dairy from their homes 

as emissions were deemed a public health hazard. I am concerned 

about EPA’s proposal to exempt CAFOs from reporting requirements included in the Superfund and the Emergency Planning and 

Community Right-to-Know Act. 

Without reporting requirements, first responders and health providers will be without critical information. The national association, which represents members and staff of state emergency response commissions, wrote that the EPA’s proposal, and I quote, 

‘‘endangers responders and the public by denying them information 

they would use to protect themselves from hazardous releases.’’ 

I am also concerned by the findings that will be presented today 

by the GAO. The GAO found that EPA lacks the information it 

needs to effectively regulate CAFOs and has yet to assess the extent to which these pollutants may be impairing human health and 

the environment. 

In addition to the risk posed to these first responders and public 

health officials, I have serious questions on the basis of this proposal to begin with. Under existing regulations, only those emissions exceeding 100 pounds must be reported. In 2005, the EPA offered animal feeding operations an opportunity to sign a voluntary 

consent agreement and final order. 

Under the agreement, animal feeding operations are required to 

report any releases above the reportable quantity once emission 

protocols have been established. In return participating operations 

will receive a limited release from enforcement for certain past and 

ongoing violations. 

Given the risk to public health and first responders from emissions and the existing flexibility, I believe a blanket exemption 

from reporting is irresponsible and an unnecessary risk. I look forward to hearing from our witnesses, and I yield back the balance 

of my time, Mr. Chairman. 

Mr. GREEN. I thank my colleague from California. Our next opening statement is from Congressman Butterfield. 

7 

OPENING STATEMENT OF HON. G.K. BUTTERFIELD, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH 

CAROLINA 

Mr. BUTTERFIELD. Thank you very much, Mr. Chairman. I apologize for being late, but you know what it is all about when you are 

multitasking. I thank you very much for holding this hearing. 

This subject is very important, Mr. Chairman, without a doubt. 

It is a subject that deserves attention and requires congressional 

oversight. The Environmental Protection Agency should play a role 

in the regulation of ammonia and hydrogen sulfide releases into 

the air. EPA entered into the air compliance agreement with close 

to 14,000 farms, and to roll back the environmental requirements 

intended to protect public health and the environment, in my humble opinion, would be a mistake. However, I am disappointed by 

the report from the GAO on the pork industry, and I feel the need 

to speak against what I view are some of the inaccurate characterizations of the environmental performance of my state, North Carolina, the state’s pork producers. 

North Carolina is the second largest pork producing state in the 

Nation, and our pork producers are good neighbors who care about 

the environment. We care about the animal well being in their 

communities and state. They have worked very hard to build a responsible industry. These farmers are major contributors to my 

state’s economy and are proud to produce high quality, safe food for 

people here and around the world. 

I agree with the need for Federal regulations, as do pork producers who supported the Air Compliance Agreement. However, 

contrary to the GAO report, North Carolina pork producers already 

comply with a very comprehensive and mandatory statewide livestock permitting program, which is one of the most aggressive in 

the nation. The permit application is 14 pages in length and contains detailed requirements for management of swine manure. 

Furthermore, by law each of our swine facilities must receive two 

onsite inspections each year, one by our Division of Water Quality 

and the other by the Division of Soil and Water Conservation. 

There are 2,200 swine farms in the state that have a comprehensive general permit, and I happen to have a copy of each and every 

one of these permits here with me today. We were able to obtain 

a copy of these permits simply by requesting this information from 

the Division of Water Quality. 

Relative to pork producers environmental performance in our 

state, several groups try to paint a scary picture of CAFOs simply 

on the basis of the quantity of manure our animals produce on a 

volume or pounds basis relative to cities and communities. I am not 

sure I got that right, but I am going to submit it for the record. 

GAO takes the same approach, and I am disappointed in their 

report as a result. These efforts fail to make a reasonable and accurate reflection of what modern manure management practices 

mean on our farms for environmental performance. How farmers 

manage and use animal manure is the most meaningful predictor 

of their environmental performance. I recognize and applaud the 

effort of this subcommittee to deal with the EPA’s rollback. I oppose a full-scale exemption for hazardous release reporting by 

CAFOs given the demonstrated health effects associated with their 

8 

releases of the hazardous substances ammonia and hydrogen sulfide. 

And we would be remiss if we did not recognize the great strides 

made by the pork industry to become a more responsible and responsive group of farmers. I only ran over by 13 seconds, Mr. 

Chairman. Thank you very much. 

[The prepared statement of Mr. Butterfield follows:] 

STATEMENT OF HON. G.K. BUTTERFIELD

The Environmental Protection Agency should play a role in the regulation of ammonia and hydrogen sulfide releases into the air. EPA entered into the Air Compliance Agreement with close to 14,000 farms, and to roll back the environmental requirements intended to protect public health and the environment would be a mistake. 

However, I am disappointed by the report from the Government Accountability 

Office on the pork industry, and I feel the need to speak against what I view as 

some of the inaccurate characterizations of the environmental performance of my 

state’s pork producers. North Carolina is the second largest pork producing state in 

the nation, and our pork producers are good neighbors who care about the environment, animal well-being and their communities and state. They have worked very 

hard to build a responsible industry. These farmers are major contributors to my 

state’s economy and are proud to produce high quality, safe food for people here and 

around the world. 

I agree with the need for federal regulations, as do pork producers who supported 

the Air Compliance Agreement. However, contrary to the GAO report, North Carolina pork producers already comply with a very comprehensive and mandatory 

state-wide livestock permitting program, which is one of the most aggressive nationwide. The current permit application is 14 pages in length and contains detailed requirements for management of the swine manure management system. Furthermore, by law, each of our swine facilities must receive two on-site inspections per 

year, one by our Division of Water Quality (the regulatory agency) and the other 

by our Division of Soil and Water Conservation (the technical resource agency). 

There are 2,239 swine farms in the state that have a comprehensive general permit, 

and I happen to have a copy of each and every one of these permits, more or less, 

here with me. I were able to obtain a copy of these permits simply by requesting 

this public information from the Division of Water Quality. 

Relative to pork producers’ environmental performance in our state, several 

groups try to paint a scary picture of CAFOs simply on the basis of the quantity 

of manure our animals produce on a volume or pounds basis relative to cities and 

communities. GAO takes this same approach and I am disappointed in their report 

as a result. These efforts fail to make a reasonable or accurate reflection of what 

modern manure management practices mean on farms for environmental performance. How farmers manage and use animal manure is the most meaningful predictor of their environmental performance. 

I take some issue with GAO’s attempt to characterize the 5-county region in our 

state as a regional cluster that has too much manure relative to the cropland in 

use by those pork farms. This is an old mischaracterization of manure nutrient use 

in the state, dating from the mid-1990’s and resulting from incorrect information 

about the types of hay grown. I believe that the natural resource professionals at 

the USDA have done their own more recent analysis that indicates GAO’s calculations are not correct. I would appreciate GAO working with USDA to review their 

own analysis and issue a correction to their final report should that prove necessary. 

I say this for several reasons: 

•Farmers’ nutrient management plans are certified by technical specialists (designated by the State of North Carolina) as having sufficient land available to the 

CAFO for the proper application for crop production. 

•Each operation must have land available to apply its nutrients on a fully agronomic basis - they have to do it right. 

•Furthermore, GAO fails to note that failure to use this manure properly, at 

sound agronomic rates, can mean Federal fines under the Clean Water Act CAFO 

rule of $32,500 a day, giving them further incentive to comply. 

They certainly have the land and crops to comply as well. Using North Carolina 

Department of Agriculture’s estimates of available hayed and grazed land in the five 

counties, the total potential for nitrogen uptake on this land is an estimated 25 milVerDate Nov 24 2008 14:26 Mar 10, 2009 Jkt 037690 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 C:\DOCUMENTS AND SETTINGS\CWELLS1\110-151 SCOM1 PsN: JIMC
9 

lion pounds. This far exceeds the approximately 13 million pounds produced by 

swine operations in this region. In addition, there are many thousands of acres of 

cropland utilizing crops such as corn and small grains, which have significant nitrogen needs to ensure they can effectively and profitably use all these nutrients. 

Lastly, I want to mention further attempts in the state to derive greater value 

from animals’ manure. During the 2007 session of the North Carolina General Assembly, the pork producers worked hard to get provisions incorporated in legislation 

that would promote renewable energy projects. The first was the provision that was 

placed in Senate Bill 1465 that established the ′′Swine Farm Methane Capture Pilot 

Program′′. The provision would provide that up to 50 farms could participate in the 

program which is setup to capture methane and generate electricity to sell to a public utility in the state. Currently over 200 farms in the state have registered as having an interest in participating in the program. In addition, a Renewable Energy 

and Energy Efficiency Portfolio Standard was passed during the 2007 session that 

provided for the use of swine manure to meet the new standard. 

I recognize and applaud the effort of this subcommittee to deal with the EPA’s 

rollback. I oppose a full-scale exemption for hazardous release reporting by CAFOs 

given the demonstrated health effects associated with air releases of the hazardous 

substances ammonia and hydrogen sulfide. However, we would be remiss if we did 

not recognize the great strides made by the pork industry to become a more responsible and responsive group of farmers. 

Mr. GREEN. I thank my colleague from North Carolina. That concludes the opening statements by members and now we will turn 

to our witness panel for today’s hearing. First up is Susan P. 

Bodine, Assistant Administrator of the U.S. Environmental Protection Agency for Solid Waste and Emergency Response. Next we will 

have Mark E. Rey, Under Secretary for Natural Resources and the 

Environment, U.S. Department of Agriculture. And for the Agency 

for Toxic Substances and Disease Registry, joining us is Mark 

Johnson, a Senior Environmental Health Scientist. And our final 

witness is from the Government Accountability Office, Ms. Anu 

Mittal, a lead author of today’s GAO report on concentrated animal 

feeding operations. 

We will now recognize each of our witnesses in turn for 5-minute 

statements summarizing their prepared testimony. The prepared 

testimony submitted in advance of the hearing will be made part 

of the record. 

And before we begin, I would like to make a unanimous consent 

request. I ask unanimous consent to include the following documents in the record. First the letter dated March 18, 2008, from 

Mr. Dingell and Ms. Solis to the EPA and EPA’s response dated 

April 17, 2008. Second, a letter dated March 27, 2008, from Timothy R. Gablehouse and the National Association of SARA Title III 

Program Officials to the EPA. And third, a January 28, 2008, Congressional Research Service memorandum to the House Energy and 

Commerce Committee, entitled Emergency Planning Committee 

Comments on Poultry Petition. And fourth, a letter dated September 19, 2008 from the Agency for Toxic Substances and Disease 

Registry and the Minnesota Department of Health to the EPA and 

the Minnesota Pollution Control Agency. Is there objection? 

[The information appears at the conclusion of the hearing.] 

Mr. SHADEGG. Mr. Chairman, I reserve the right to object and for 

now I will object because our staff has not been able to see and 

read all those documents. So pending their ability to do so, I would 

object to their inclusion in the record. 

10 

Mr. GREEN. I am aware we gave these to you about 15 minutes 

ago, but would be glad to hold off on introducing them into the 

record so you have a chance to review them. 

Mr. SHADEGG. We have lots of speed readers, but we have been 

using them for other purposes. 

Mr. GREEN. Okay, Assistant Administrator Bodine, we will begin 

with you. 

STATEMENT OF SUSAN P. BODINE, ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY 

Ms. BODINE. Thank you, Mr. Chairman and members of the subcommittee. I thank you for inviting me to appear today to talk 

about the requirements for notification of releases of hazardous 

substances under both CERCLA, the Comprehensive Environmental Response Compensation and Liability Act, as well as under 

EPCRA, which is the Emergency Planning and Community Rightto-Know Act, as well as EPA’s proposed rule to exempt air releases 

of hazardous substances from animal waste, that is manure, from 

these notification requirements. 

In addition, Mr. Chairman, pursuant to your question in your invitation letter to me, we have provided to you a summary of the 

status of EPA’s air compliance agreement, the status of NPL sites 

that were impacted by Hurricane Ike, and a chart of EPA’s Superfund construction completion since 1993. 

In addition, you had asked for the reports filed under CERCLA 

and EPCRA since the year 2000 for releases from animal feeding 

operations. What I have, and I would like to provide this for you 

right now, is a summary of reports since 2000 to the National Response Center. EPA doesn’t actually get reports that are filed 

under EPCRA. We don’t have those reports. But the National Response Center gets the CERCLA reports, and I have the summary 

to provide to you for the record. 

This summary is our best estimate—your question related to animal feeding operations. The staff had to look at the reports and 

look at the kind of release that is reported to determine whether 

it was from a farm or not a farm because the NRC doesn’t actually 

collect facility information. So I have that summary here. 

Now, back to discussing the reporting requirements. Under 

CERCLA, a person in charge of a facility has to report if a hazardous substance has been released into the environment in excess 

of a reportable quantity in a 24-hour period. That report goes to 

the Coast Guard headquarters. It is the National Response Center. 

The purpose of that report is to notify the Federal Government 

of the release so Federal emergency response personnel can decide 

whether an action is necessary to be taken. Now, under Section 304 

of EPCRA, a facility owner/operator has to report a release of an 

extremely hazardous substance. That report goes to local emergency planning committees as well as to the state emergency response commission. And again, for the same purpose. The report 

serves the purpose of letting those officials make a determination 

of whether a response is appropriate. 

As Congressman Shadegg noted, EPA has never initiated a response to any notice to the National Response Center of a release 

11 

of ammonia, hydrogen sulfide or any other hazardous substance 

from animal waste at farms. 

Back in December of 2007, the agency published a proposed rulemaking that proposed to exempt from both CERCLA, Section 103, 

as well as the EPCRA 304 requirements, releases to the air where 

the source is animal waste at farms. The rationale is explained in 

that proposal. The rationale is based on the purpose of those reporting requirements. It is an emergency response program. The 

purpose is to notify emergency response personnel of a release so 

they can determine whether to respond. The rationale also is based 

on information that we had about whether a response to that kind 

of a report would be very likely. 

Again, we are not talking about water. We are talking about releases to air. We are not talking about other sources of hazardous 

substances that may be present. We are talking about manure, and 

in addition, the proposal only would create an administrative reporting exemption. It doesn’t affect any of the EPA’s other authorities, whether it is our response authorities under 104, or liability 

that might occur under Section 107 of CERCLA. Again, any authorities that the Agency has to deal with an issue is retained, and 

the proposal deals just with the reporting requirement. 

There was a public comment period of 90 days. It closed on 

March 27. We are currently evaluating comments, and when we 

have a final proposal, we will have a response to comments document that will be in the record. 

And that concludes my statement. I would be happy to answer 

any questions. 

[The prepared statement of Ms. Bodine follows:] 

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Mr. GREEN. Dr. Johnson. 

STATEMENT OF MARK JOHNSON, SENIOR ENVIRONMENTAL 

HEALTH SCIENTIST, AGENCY FOR TOXIC SUBSTANCES AND 

DISEASE REGISTRY - REGION 5 

Mr. JOHNSON. Good morning, Mr. Chairman and members of the 

committee. Thank you for inviting me to testify today. My name is 

Mark Johnson. I am the Assistant Director for Science, in the division of regional operations for the Agency for Toxic Substances and 

Disease Registry, known as ATSDR. We are a Federal agency within the Department of Health and Human Services. Joining me 

today is Lieutenant Commander Michelle Colledge, who is an Environmental Health Scientist in the ATSDR regional office in Chicago. 

In this testimony, I will provide the committee with a summary 

of ongoing ATSDR assessments of community exposures to emissions from a concentrated animal feeding operation, CAFO. The 

Excel Dairy Farm is a CAFO that is located outside of Thief River 

Falls in northwest Minnesota. In May 2008, the Minnesota Pollution Control Agency (MPCA) and the Minnesota Department of 

Health received complaints about odors and health effects from the 

residents living near the Excel Dairy Farm. People were reporting 

nasal congestion, sore throats, itchy eyes, trouble breathing, headaches, and nausea that they associated with emissions from the numerous waste lagoons at the dairy. 

In early June 2008, a group of citizens reported to the state 

health department that they had used a portable hydrogen sulfide 

monitor to measure the concentrations in the areas around the 

Excel Dairy facility and nearby residences. Since early June, the 

state has been continuously monitoring the levels of hydrogen sulfide at two locations near the Excel property line. During that time, 

the concentration of hydrogen sulfide has frequently exceeded the 

Minnesota ambient air quality standard of 30 parts per billion 

averaged over 30-minute periods and frequently exceeded 90 parts 

per billion, the maximum concentration that the state’s instruments were able to measure. 

Based on this information, both the state of Minnesota and U.S. 

EPA Region 5 had taken enforcement actions against Excel Dairy. 

At the request of the U.S. EPA Region 5, ATSDR evaluated the existing data and determined that there was a need to collect more 

information about community exposures to better characterize 

health hazards. 

In early June, ATSDR staff initiated an exposure investigation to 

collect continuous sampling data for hydrogen sulfide at three residential locations that were in close proximity to the dairy. ATSDR 

there focused on hydrogen sulfide because of the volumes present 

in CAFO air emissions, its physical properties, and a toxicity associated with exposure to hydrogen sulfide. 

Stationary monitors were placed at both outdoor and indoor locations at two of these homes. Over the three-week period, the monitors detected a maximum hydrogen sulfide concentration in outdoor air of 480 parts per billion. To evaluate exposures for potential 

health impacts, ATSDR uses what is referred to as a minimum risk 

level, MRL, which is defined as an exposure level that is estimated 

24 

to be without health impact for any individual for a specific period 

of time. 

For hydrogen sulfide, the acute MRL is based on the demonstration of an airway constriction among individuals with asthma who 

were exposed to 2,000 parts per billion of hydrogen sulfide for 30 

minutes. From this study, we have derived an MRL value of 70 

parts per billion for screening purposes. 

The monitoring data at the residences nearest to the waste lagoons showed that the 30-minute average concentrations of hydrogen sulfide in outdoor air exceeded that value for a cumulative 

total of six to eight hours. Although ATSDR did not conduct a formal health study to evaluate the health of people living near the 

dairy, the symptoms described by the residents were consistent 

with the known acute health effects of hydrogen sulfide, including 

difficult breathing, eye irritation, dizziness, nausea, and headaches. 

Based on the concentrations that were detected, we have concluded that these conditions pose a public health hazard to residents near the dairy. We recommend taking immediate actions to 

reduce emissions from the facility, to establish a monitoring program to evaluate the effectiveness of those actions, and for Excel 

Dairy to restrict access to the waste lagoons onsite to reduce direct 

exposures to children who may be living there. 

ATSDR and the state health department communicated these 

findings, conclusions, and recommendations to the state, to the 

U.S. EPA, and to Excel Dairy owners in writing last Friday. Mr. 

Chairman, I would ask to submit this letter for the record, which 

I think you have already consented to that request. 

In conclusion, under certain conditions, exposure to chemicals 

emitted from CAFOs can result in adverse health effects. In the 

case of Excel Dairy, community exposures to periodic elevations of 

hydrogen sulfide levels were determined to be a public health hazard. Thank you for the opportunity to comment on this important 

public health issue. 

[The prepared statement of Mr. Johnson follows:] 

STATEMENT OF MARK JOHNSON

Mr. Chairman and Members of the Committee, thank you for inviting me to testify today. My name is Mark Johnson. I am the Assistant Director for Science, in 

the Division of Regional Operations at the Agency for Toxic Substances and Disease 

Registry (ATSDR). ATSDR is a federal agency within the United States Department 

of Health and Human Services. The mission of ATSDR is to serve the public by 

using the best science, taking responsive public health actions, and providing trusted health information to prevent harmful exposures and disease related to toxic substances. 

In this testimony, I will provide the committee with information regarding the 

current and past actions of ATSDR in evaluating potential health risks posed by 

Concentrated Animal Feeding Operations (CAFOs); describe what is known about 

emissions from this type of operation; describe the toxicity of and potential health 

effects from exposure to the primary constituents of CAFO emissions; provide a 

summary of ATSDR’s on-going public health activities and findings; and summarize 

our recommendations to protect the health of residents living around the Excel 

Dairy in Thief River Falls, Minnesota. 

CONCENTRATED ANIMAL FEEDING OPERATIONS (CAFOS) 

EPA estimates that animal feeding operations produce about 500 million tons of 

manure per year from over 250,000 feeding operations. Individuals who work at or 

live in close proximity to some CAFOs may face health concerns. 

25 

Emissions from animal waste are comprised of a complex mixture of chemicals 

and gases such as hydrogen sulfide and ammonia. Some residents who live in areas 

surrounding CAFOs report odors, respiratory symptoms, and neurological effects. 

Given the multiple pathways for release of contaminants from CAFOs, people may 

be exposed to these chemicals through inhalation of air or dust, direct contact with 

soil, ingestion of drinking water, or dermal contact with surface water. 

At CAFOs where ATSDR has conducted assessments, irritant contaminants such 

as hydrogen sulfide, ammonia, and reduced sulfides (known as mercaptans) have 

been detected in air emissions. In a recent assessment at a CAFO facility in southwest Minnesota, the Minnesota Department of Health and ATSDR concluded that 

exposure to hydrogen sulfide at the site was a public health hazard. Among the 

chemicals that are emitted from the storage, handling, and decomposition of animal 

wastes, hydrogen sulfide is of great concern for potential exposure. This is due to 

the volume of hydrogen sulfide emissions from some CAFOs, the physical properties 

of hydrogen sulfide, and the toxicity associated with hydrogen sulfide exposure. 

EFFECTS OF HYDROGEN SULFIDE EXPOSURE

Hydrogen sulfide is a colorless, flammable gas that is heavier than air and has 

the potential to accumulate close to the ground surface where people can be exposed. People can smell hydrogen sulfide at levels as low as 0.5 parts per billion 

(ppb). The odor is usually characterized as smelling like ′′rotten eggs′′ or ′′sewage.′′ 

Natural sources account for approximately 90 percent of the hydrogen sulfide in the 

atmosphere. Background concentrations of hydrogen sulfide in outdoor air are typically less than 1 ppb. 

Information about the health effects of chemical exposure is summarized in the 

ATSDR Toxicological Profile for a specific chemical (website: http:// 

www.atsdr.cdc.gov/toxpro2.html). Based on a review of the known toxicity of a 

chemical, a critical study is selected to represent the health effect that could occur 

at the lowest level of exposure or a level that is not associated with an effect. That 

information, in conjunction with the application of uncertainty factors, is used to determine a Minimum Risk Level (MRL), defined as an exposure level that is estimated to be without a health effect for any individual for a specific period of exposure. ATSDR develops MRLs for exposures that are of an acute duration (up to 14 

days), intermediate duration (14 days to 1 year) and chronic duration (greater than 

1 year). For hydrogen sulfide, the acute MRL of 70 ppb is based on the effect of 

airway constriction among asthmatic individuals who were exposed to 2,000 ppb hydrogen sulfide for 30 minutes. The intermediate MRL of 20 ppb is based on toxicity 

to olfactory neurons in exposed laboratory animals. This information is presented 

in ATSDR’s Hydrogen Sulfide Toxicological Profile, which was updated in 2006 

(http://www.atsdr.cdc.gov/toxprofiles/tp114.pdf). 

Adverse health effects associated with short-term exposures to hydrogen sulfide 

concentrations above the MRL include airway constriction in individuals who have 

asthma, decreased lung function, eye irritation, dizziness, nausea, and headache. 

Acute exposures to high concentrations (greater than 100,000 ppb) may result in 

pulmonary edema and physical collapse. 

The state of Minnesota has a health-based Ambient Air Quality Standard under 

their State Implementation Plan (SIP) that requires that there be no more than two 

30-minute periods of hydrogen sulfide above 30 ppb in 5 days, or no more than two 

periods of hydrogen sulfide above 50 ppb in any year. 

SUMMARY OF ATSDR INVESTIGATION AT THE EXCEL DAIRY

The Excel Dairy is a dairy farm, operating outside Thief River Falls in Marshall 

County in northwest Minnesota, which has a capacity for over 1,500 animals. The 

Minnesota Pollution Control Agency (MPCA) and the Minnesota Department of 

Health (MDH) received complaints in the past and most recently in early May 2008 

about odors and health effects from residents living near Excel Dairy farm. The 

health effects mentioned by residents included upper respiratory effects (such as 

nasal congestion and sore throats), itchy eyes, trouble breathing, headaches, and 

nausea. In early June 2008, the MDH received data from concerned citizens that 

included measurements of elevated levels of hydrogen sulfide in the ambient air in 

their community. The residents had rented a portable monitor to measure hydrogen 

sulfide at a residence near the Excel Dairy facility. They reported many periods of 

hydrogen sulfide readings in the hundreds of ppb, and some readings over 1,000 

ppb. 

Since early May 2008, the Minnesota Pollution Control Agency (MPCA) has been 

monitoring the levels of hydrogen sulfide at locations near the Excel Dairy property 

line. MPCA has been using stationary monitors for the measurement of hydrogen 

26 

sulfide concentrations in ambient air. The concentration of hydrogen sulfide has frequently exceeded the Minnesota Ambient Air Quality Standard of 30 ppb over 30 

minute periods, and frequently exceeded 90 ppb. Since the MPCA instruments only 

quantified the hydrogen sulfide concentrations in the air up to 90 ppb, the actual 

peak concentrations are not known. 

The Region 5 Office of the U.S. Environmental Protection Agency (USEPA) also 

received health and odor complaints from citizens, beginning in the second week of 

June 2008. USEPA requested assistance from the ATSDR Regional Office to interpret this data and to provide an evaluation of potential hazards posed by inhalation 

exposure to hydrogen sulfide for residents living near the Excel Dairy. 

At the request of MDH, ATSDR agreed to conduct an Exposure Investigation to 

evaluate the exposures that nearby residents were experiencing. An exposure investigation is one approach ATSDR uses to develop better characterization of past, current, and possible future human exposures to hazardous substances in the environment and to evaluate existing and possible health effects related to those exposures 

more thoroughly. ATSDR exposure investigations are not meant to substitute for a 

monitoring program that would be conducted for regulatory or operational management purposes. 

In July 2008, ATSDR staff initiated continuous sampling for hydrogen sulfide levels at three residential locations in close proximity to the Excel Dairy. Stationary 

monitors were placed at both outdoor and indoor locations at two of these locations. 

The monitors detected a maximum hydrogen sulfide concentration in outdoor air of 

480 ppb. Over a three-week period, the 30-minute average concentrations of hydrogen sulfide in ambient air exceeded the ATSDR acute minimum risk level (70 ppb) 

for a cumulative total of 6-8 hours at the residences closest to the facility (0.2-0.3 

miles from the nearest lagoon). 

On June 20, 2008, the Minnesota Attorney General and the MPCA filed a complaint seeking a temporary injunction against the Excel Dairy owner to address 

operational shortfalls contributing to these ambient releases of hydrogen sulfide. On 

July 18, 2008, the USEPA issued a Notice of Violation to the owner of the Excel 

Dairy farm for exceeding the state standard. 

The ATSDR evaluation is limited to the measurement of hydrogen sulfide in ambient and indoor air at only 3 locations, during a limited time period. Although 

ATSDR did not conduct a formal health study to evaluate the health of people living 

on or near Excel Dairy, the symptoms described by the residents to ATSDR and 

MDH staff were not inconsistent with the known acute health effects of hydrogen 

sulfide exposure. Based on the fact that the concentrations of hydrogen sulfide detected by ATSDR and MPCA frequently exceeded state air quality standards and 

ATSDR’s acute MRL, ATSDR and MDH concluded that these conditions pose a public health hazard to citizens living in the vicinity of Excel Dairy. ATSDR uses the 

′′public health hazard′′ conclusion for sites at which long-term exposures to hazardous substances or conditions could result in harmful health effects. No data have 

been provided to ATSDR or MDH to determine the concentration of hydrogen sulfide 

exposure that individuals who work or live on the Excel Dairy property may experience. 

Based on this assessment, ATSDR recommended that Excel Dairy should take action immediately to implement improved emission control measures that will significantly reduce the levels of exposure to hydrogen sulfide gas released from onsite operations. To verify the effectiveness of these emission control measures in reducing 

the release of hydrogen sulfide gas, MPCA and Excel Dairy should coordinate to implement an air monitoring program. Finally, Excel Dairy should restrict access to 

lagoons to reduce direct exposures to trespassers and children living on-site. 

CONCLUSIONS

In conclusion, chemicals emitted from CAFOs can result in public exposure and 

the potential for adverse health effects. Hydrogen sulfide is among the chemicals 

that pose the greatest concern for exposure. In the case of Excel Dairy, after receiving reports of health concerns from local residents, ATSDR and the state of Minnesota Pollution Control Agency conducted air sampling and found that levels of hydrogen sulfide in the air exceeded the ATSDR acute MRLs and the Minnesota Air 

Quality Standards. ATSDR communicated recommendations to the state, to USEPA, 

and to Excel Dairy owners to reduce exposures to hydrogen sulfide and to monitor 

the effectiveness of measures taken to reduce emissions. 

Thank you for the opportunity to testify on this important public health issue. 

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Mr. GREEN. Mr. Rey. 

STATEMENT OF MARK E. REY, UNDER SECRETARY FOR NATURAL RESOURCES AND THE ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE 

Mr. REY. Thank you for the opportunity to appear before the 

committee to describe the activities of the Department of Agriculture in providing assistance to farmers and ranchers in addressing air and water quality issues, particularly as it relates to livestock operations. 

EPA’s enforcement actions related to air emissions from CAFOs 

have been based on violations of the Clean Air Act and reporting 

requirements under CERCLA and EPCRA. Historically, CERCLA 

and EPCRA were implemented to address hazardous substances 

that, when released into the environment, may present substantial 

danger to the public health welfare or the environment. Application 

of these statutes to address air emissions from CAFOs is a recent 

phenomenon. 

One difficulty for the agricultural community with the application of these statutes to CAFOs is that in determining whether 

CAFO air emission thresholds have been exceeded. In the early 

part of this decade, EPA commissioned a National Academy of 

Sciences study on air emissions from animal feeding operations. 

NAS published a report in 2003, and the most significant recommendation of the NAS study was the need to develop a processbased model of CAFOs to more accurately estimate the air quality 

impacts of these operations. 

To support the conduct of this study, EPA and USDA held a joint 

meeting in November of 2003 with a number of scientists, CAFO 

representatives, and environmentalists. Meetings were held after 

the initial meeting to develop a scientifically-sound monitoring protocol. Following publication in the Federal register, EPA conducted 

signup opportunities in selected sites for the study. In 2007, the 

state-of-the-art mobile laboratories were positioned on selected 

CAFOs and began data collection. 

It is anticipated the data collection efforts will conclude in 2009 

and EPA will begin the development of their emissions estimation 

methodology. This methodology is the first step in the EPA’s process to develop a more comprehensive estimation technique recommended by the National Academy of Scientists, a processedbased model which will aid in the development of any needed air 

emission requirements from CAFOs which will thereafter be 

science-based requirements. 

Recently, relative to this area, USDA was sent a copy of a draft 

GAO report. USDA agriculture and air quality experts reviewed 

the draft report to determine its accuracy. Based on that review, 

a total of 14 pages of comments were drafted and submitted to 

GAO on the draft report. I will submit the entirety of those comments for the record of this hearing. They are summarized in our 

statement for the record, but fundamentally, the GAO analysis 

was, in our view, one, conducted over too short a time period, two, 

appears to be a relatively superficial investigation and analysis, 

three, did not adequately involve agriculture and air quality experts both within USDA and outside of government, and, four, fails 

37 

to allow for the inclusion of USDA’s comments that would have corrected some of the inaccuracies in the report. At best, these findings represent operations as they were conducted decades in the 

past. 

Today there are numerous programs at USDA that assist farmers and ranchers to ensure better management of all of our natural 

resources including the air and water quality implications of 

CAFOs. A summary of those programs, the investments that have 

been made at Congress’s direction, are provided in my statement 

for the record. 

USDA has enjoyed, over the last several years, a positive working relationship with EPA, working together to resolve regulatory 

challenges. With specific regard to CAFOs, we have been working 

together under a unified national CAFOs strategy throughout the 

past 10 years that directs a number of joint agency efforts to deal 

with air and water quality implications from CAFOs. I will submit 

a copy of that strategy for the record as well. 

Now, I think probably it is worthwhile to comment a little bit on 

the Excel Dairy situation, which is the only situation that has been 

identified thus far that released enough emissions that triggered a 

CERCLA or EPCRA requirement. What happened on the ground 

affected what happened in the air, and the things that happened 

on the ground at Excel Dairy should not have happened under a 

normally permitted CAFO. 

Essentially Excel Dairy went bankrupt. They were allowed by 

the state of Minnesota to leave manure in their pits. That manure 

festered in a straw-based solution for 3 to 5 years before a successor in interest reopened the dairy. That successor in interest 

was allowed to reopen the dairy without cleaning up the old manure or expanding the size of the pits to accommodate a twofold increase in the number of animals. 

The mixture of the old manure that had been fermenting for 3 

to 5 years and the new manure is what likely caused a spike in 

hydrogen sulfide emissions to the level that previous witness indicated. Had the state of Minnesota been properly operating the permitting process for the dairy, both before Excel went bankrupt and 

after a successor in interest took over, their likely wouldn’t have 

been that level of emission. 

Mr. GREEN. Mr. Rey, please conclude. 

Mr. REY. I am concluding. Thank you for the opportunity to offer 

my testimony. 

[The prepared statement of Mr. Rey follows:] 

STATEMENT OF MARK REY

Mr. Chairman and Members of the Committee: 

Thank you for the opportunity to appear before the Committee to describe the activities of the United States Department of Agriculture (USDA) in providing assistance to farmers and ranchers in addressing water quality, particularly as it relates 

to livestock operations. As Under Secretary overseeing the Natural Resources Conservation Service (NRCS), I have experienced firsthand some of the excellent conservation work that farmers, ranchers, and other private landowners are performing 

by working hand-in-hand with local NRCS staff and our many partners. 

Through the technical and financial assistance NRCS delivers, our employees 

work in partnership with private landowners to take proactive steps to improve 

38 

water quality and help them comply with local, State and federal regulatory requirements across the Nation. 

HELPING PEOPLE HELP THE LAND

For over 70 years, NRCS has been committed to working with America’s private 

landowners through a locally led, voluntary, cooperative conservation approach. Because of this ′′ground-up′′ approach to helping people, we describe NRCS as ′′helping 

people help the land.′′ Working closely with America’s agricultural producers requires a commitment to providing high quality service resulting in improved environmental benefits and a healthier landscape. 

CHALLENGES OF APPLYING CERCLA AND EPCRA TO CAFOS

While many of the initial complaints were driven by odor issues, EPA enforcement 

actions and the citizen suits related to air emissions from CAFOs (Concentrated 

Animal Feeding Operations) have been based on violation of the Clean Air Act 

(CAA) and the reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning 

and Community Right-To-Know Act (EPCRA). 

Historically, CERCLA and EPCRA were implemented to address hazardous substances that when released into the environment may present substantial danger 

to the public health, welfare or the environment. Application of these statutes to address air emissions from CAFOs is a recent phenomenon. One difficulty for the agricultural community with the application of these statutes to CAFOs is in determining whether CAFO air emission thresholds have been exceeded. 

In the early 2000s, EPA commissioned a National Academy of Sciences (NAS) 

study on air emissions from animal feeding operations. This analysis was commissioned because EPA understood the limits of its scientific knowledge of air emissions 

from these types of operations. NAS published its report, entitled ′′Air Emissions 

From Animal Feeding Operations: Current Knowledge, Future Needs,′′ in 2003. The 

most significant recommendation of the NAS study was the need to develop a process-based model of CAFOs to more accurately estimate the air quality impacts of 

these operations. 

Prior to the issuance of the NAS study, CAFO operators/farmers approached EPA 

about the enforcement of environmental laws governing air emissions, and the limits of EPA’s knowledge of their operations. These operators offered to participate in, 

and fund, a two-year study in exchange for a limited ′′covenant not to sue′′ for failure to report on-site quantities in excess of the reportable quantity. As a result of 

these discussions, over 2,600 CAFO operators entered into a Consent Agreement 

and Final Order, an administrative enforcement settlement with EPA, whereby they 

agreed to pay a civil penalty for violations of the CAA, CERCLA and EPCRA, and 

participate in and be responsible for funding a portion of the National Air Emissions 

Study (NAEMS) study. In exchange, EPA agreed not to bring civil enforcement actions against the participating CAFO owners/operators for past and ongoing violations of the CAA, CERCLA and EPCRA as long as they ultimately come into compliance under the terms of the Consent Agreement. 

To support the conduct of the NAEMS study, EPA and USDA held a joint meeting 

in November 2003 at the USDA Beltsville, MD, research facility. A number of scientists, CAFO representatives and environmentalists were in attendance. In addition, staffs from USDA and EPA with air quality and agricultural experience were 

also in attendance. Over the 2.5 days of the meeting, a strategy for developing the 

testing protocol was developed. Following this strategy, multiple conference calls 

and meetings were held with attendees from the initial meeting to develop a scientifically sound monitoring protocol. As a result of that effort, the Consent Agreement and the monitoring protocol were published in the Federal Register. 

Following publication in the Federal Register, EPA conducted sign-up opportunities and selected sites for the NAEMS study. In 2007, the state-of-the-art mobile 

laboratories were positioned on selected CAFOs and began data collection. It is anticipated that data collection efforts will conclude in 2009 and EPA will begin the 

development of their emission estimation methodology. This emission estimation 

method is the first step in EPA’s process to develop the more comprehensive (and 

more accurate) estimation technique recommended by NAS - a process-based model. 

It is our understanding that EPA will use additional information to help in their 

development of the process-based model, which will occur at a later date. 

It should be noted that USDA supports EPA’s effort to develop a sound scientific 

basis for accurately determining CAFO impacts on air quality. The use of sound 

science to determine agricultural impacts helps to sustain a viable agricultural economy and a healthy environment. 

39 

CAFOS AND THE GAO AUDIT

As part of the audit process, GAO conducted limited interviews with agriculture 

and air quality experts at USDA. For some reason, GAO sought information from 

unidentified experts not associated with CAFO programs conducted at USDA. 

Recently, USDA was sent a copy of the draft GAO report. USDA agriculture and 

air quality experts reviewed the draft report to determine its accuracy. Based on 

that review, a total of fourteen pages of comments were crafted and submitted to 

GAO on the draft report. These comments identified numerous incorrect statements 

and calculation errors that mischaracterize CAFO impacts and EPA’s efforts to 

gather sufficient information in the NAEMS study to more accurately characterize 

CAFO emissions. 

In general, GAO’s draft report suffers from many inaccuracies, including erroneous assumptions, faulty information and uncited references. Moreover, we believe 

that GAO missed an important opportunity to correctly present CAFO producers as 

environmentally responsible citizens - a fact demonstrated by the evidence to date. 

We believe that there should have been more time dedicated to preparing the draft 

report, as well as consistent input from experts at USDA and EPA and better use 

of the wide variety of written materials currently available. 

The draft report contains many factual errors. The following are a few examples: 

•GAO states that on any one day the hog population of the five North Carolina 

counties referenced in their draft report is over 9 million hogs producing almost 19 

million tons of manure per year. This is a factual error based on an inaccurate estimate of swine populations. The 19 million ton figure for yearly manure production 

is off by as much as 30 to 40 percent. According to our estimates, the actual amount 

of manure produced is 11.4 to 13.3 million tons per year. 

•The assertion that insufficient land exists in the five county area to utilize the 

nutrients from the manure produced by the swine industry which is leading to 

water quality degradation is incorrect. The Cape Fear River system in North Carolina drains three of the largest swine producing counties in the United States that 

constitute over 70% of the swine production in North Carolina. The Black and South 

rivers, part of the Cape Fear River system, are classified by the North Carolina environmental agencies as ′′Outstanding Resource Water,′′ a rating that signifies excellent water quality as defined by the North Carolina Division of Water Quality. 

•The draft report indicates that ′′the contamination may have occurred because 

the hog farms are attempting to dispose of excess manure but have little available 

cropland that can effectively use it.′′ In fact, every single permitted swine operation 

in North Carolina has a Certified Animal Waste Management Plan and waste treatment structure that has been certified as sufficient to treat the total volume of manure produced as well as account, by land application on growing crops, for all plant 

available nitrogen produced by the operation. 

•The GAO draft report characterizes USDA’s Agricultural Air Quality Task Force 

as a Federal agency rather than a Federal Advisory Committee that operates under 

the mandate established by Congress in the 1996 FAIR Act and is governed by the 

Federal Advisory Committee Act. The Agricultural Air Quality Task Force (AAQTF) 

is a Federal Advisory Committee (not an ′′agency′′) that makes recommendations to 

the Secretary of Agriculture. The AAQTF cannot enter into any MOU with EPA as 

has been indicated in the draft GAO report. 

The GAO analysis was: (1) conducted over too short a time period, (2) appears to 

be a poor investigation and analysis, (3) did not adequately involve agriculture and 

air quality experts at USDA and (4) fails to allow for inclusion of USDA’s comments 

that would correct the errors contained in the draft report. At best, these findings 

represent operations as they were conducted decades in the past. The vast majority 

of CAFOs are very well run from an environmental standpoint. 

Today, there are numerous programs at USDA that assist farmers and ranchers 

to ensure better management of all natural resources, including water and air quality. Below are a few examples of recent activities that we have undertaken that 

demonstrate our commitment to address these issues: 

•In 2007, NRCS helped farmers and ranchers develop over 5,100 and apply over 

4,400 Comprehensive Nutrient Management Plans (CNMPs) for livestock manure 

management, bringing the total CNMPs written with NRCS assistance since 2002 

to 33,600 and CNMPs applied to 21,400. 

•Developed United States Department of Agriculture (USDA) policy on marketbased incentives and signed a Partnership Agreement with the U.S. Environmental 

Protection Agency (EPA) to further the market-based approach. 

•Provided technical assistance to help farmers and ranchers treat over 47 million 

acres of working lands to improve or enhance soil quality, water quality, water management, wildlife habitat, and air quality. 

40 

•Provided conservation technical assistance to nearly 1 million customers 

throughout the Nation. 

These activities are a direct outcome of programs supported and authorized by 

Congress. These programs include, but are not limited to: 

•Conservation Technical Assistance (CTA) Program - a voluntary, incentive-based 

program of conservation activities where a producer identifies the unique resource 

concerns of his or her operation as a starting point and develops a conservation 

plan. This conservation plan is the foundation of locally-led, cooperative conservation. 

•Environmental Quality Incentives Program (EQIP) - a flagship working lands 

conservation program. The objective of EQIP is to optimize environmental benefits. 

The program provides technical and financial assistance to landowners that face serious natural resource challenges in their management of cropland, grazing lands, 

forestland, livestock, and wildlife habitat. 

In FY 2007, over 66 percent or $520 million of EQIP funds was obligated for assisting livestock producers. Of that amount, over one-fourth ($141 million) went to 

confined livestock operations. 

Figure 1 provides details about the confined livestock operations which benefited 

from EQIP funding in FY 2007. 

FIGURE 1 

Figure 2 demonstrates the broad range of natural resource issues that EQIP addresses, including 28 percent of funding going toward water quality improvement 

practices. 

FIGURE 2 

•Conservation Security Program (revised as the new Conservation Stewardship 

Program in the 2008 Farm Bill) - a voluntary program that provides financial and 

technical assistance for the conservation, protection, and improvement of natural resources on tribal and private working lands. The Conservation Stewardship Program is a working lands program that offers incentives for higher levels of conservation to those producers who have already achieved progressive stewardship throughout their operations. 

We have made significant progress in helping people help the land by providing 

technical and financial support to the Nation’s agricultural producers. But while we 

have excellent information about our program outputs, we still are working to quanVerDate Nov 24 2008 14:26 Mar 10, 2009 Jkt 037690 PO 00000 Frm 00046 Fmt 6633 Sfmt 6633 C:\DOCUMENTS AND SETTINGS\CWELLS1\110-151 SCOM1 PsN: JIMC

46863.146 46863.147
41 

tify our data on the environmental outcomes of our programs and improve our practices, where warranted. 

Starting in 2003, NRCS, in collaboration with other USDA and Federal agencies, 

initiated the Conservation Effects Assessment Project (CEAP) to scientifically assess 

the environmental and related outcomes from Farm Bill conservation programs at 

both the national and watershed scale. 

The national assessment initially focuses on water quality, soil quality, and water 

conservation benefits from cropland programs, including the Conservation Reserve 

Program. Using the National Resources Inventory data, supplemented by farmer 

surveys and verified by USDA computer models, CEAP will estimate national benefits from conservation practices and programs. In addition to the cropland component, CEAP includes wetlands, grazing lands and wildlife components in the assessment of conservation benefits from Farm Bill programs To date, the CEAP analysis 

discussed here assessed the land application of manure (regardless of the source of 

the manure). It assessed nutrient losses and soil enhancements from the application 

of manure. Other aspects of manure management that may occur on a CAFO were 

not assessed. 

In terms of outputs, farmers and ranchers are making important gains in conservation on working lands. They have applied conservation systems to over 57 million acres of cropland and over 108 million acres of grazing lands, and improved 56 

million acres of fish and wildlife habitat. We will use the CEAP data to more precisely measure the results and actual outcomes we are helping our customers 

achieve. 

In addition to our internal efforts to improve the environmental footprint of 

CAFOs, USDA and EPA staffs work collaboratively to ensure that EPA guidelines, 

policies and regulations are based on sound science. USDA staff work with EPA 

staff to provide them with a better understanding of current agricultural conservation systems and practices so that if regulation is warranted, the requirements will 

result in real environmental benefits. These are but a few examples of our work to 

ensure a healthy environment and a safe food supply for the public. 

CHALLENGES OF REGULATIONS

Mr. Chairman, USDA has enjoyed a positive working relationship with the United 

States Environmental Protection Agency (EPA) in recent years, working together to 

resolve regulatory challenges. 

USDA provided extensive consultation to EPA as they developed revised rules in 

response to the Second Circuit decision in Waterkeeper v. EPA. During the course 

of this assistance, USDA and EPA have developed a very effective partnership. The 

agencies have agreed to the same approaches for nutrient management plans so 

that they can be used for both USDA programs and EPA regulations. EPA has become a full partner with USDA and Purdue University in the development of the 

Manure Management Planner software that will enable faster and more accurate 

production of Comprehensive Nutrient Management Plans. 

EPA has also proposed to use two USDA software products in the revised rule 

to support a demonstration of ′′no discharge′′ from the production facility of a Concentrated Animal Feeding Operation. These software products are the Soil, Plants, 

Air and Water model and Agricultural Water Management model. These models are 

able to assess whether or not a discharge will occur from a CAFO under greater 

than 100-year frequency rainfall combined with a properly installed Comprehensive 

Nutrient Management Plan. 

USDA is updating internal technical policy on Comprehensive Nutrient Management Plans so that it reflects the streamlining efforts referenced above and coordinates terms with EPA. 

The messages and concerns of private agriculture producers are being heard and 

we have established the right kind of dialogue to ensure that both solid science and 

the day-to-day realities of farming operations are being heard in EPA’s regulatory 

actions. However, I want to take a moment to express a few concerns regarding 

some of the assertions that have been associated with further regulatory activities. 

While great strides have been made, there contiues to be a need to improve estimation of CAFO emissions so that they and potential environmental impacts are 

correctly characterized. USDA supports EPA’s NAEMS study as a step forward to 

develop methods to more accurately estimate CAFO emissions. Finally, there is a 

great need to establish agriculturally appropriate regulatory definitions for terms 

such as ′′source,′′ ′′contiguous property,′′ ′′discrete facilities,′′ and other terms used 

to determine the applicability of regulations. It is only through an appropriate characterization of agricultural emissions and a clear understanding of regulatory language that agricultural operations can fairly and appropriately be engaged to comVerDate Nov 24 2008 14:26 Mar 10, 2009 Jkt 037690 PO 00000 Frm 00047 Fmt 6633 Sfmt 6633 C:\DOCUMENTS AND SETTINGS\CWELLS1\110-151 SCOM1 PsN: JIMC
42 

ply with current and future regulations. With source appropriate regulatory requirements and a clear understanding of those requirements, farmers and ranchers can 

continue to provide the safest, most abundant, and reasonably priced food supply 

while meeting the commitment to conserve our natural resources. 

SUMMARY

I am proud of the work and the conservation ethic our people exhibit day in and 

day out as they go about the job of achieving conservation on the ground. Through 

Cooperative Conservation, we have achieved a great deal of success. We are sharply 

focusing our efforts and will work together with our partners to continue to make 

improvements to water and air quality. We are demonstrating that voluntary, incentive-based conservation program work and expansion of regulatory requirements is 

not always necessary. I look forward to working with you, as we move ahead in this 

endeavor. 

This concludes my statement. I will be glad to answer any questions that Members of the Subcommittee might have. 

Mr. GREEN. Thank you. Our next witness is Ms. Mittal. 

STATEMENT OF ANU MITTAL, DIRECTOR, NATURAL RESOURCES AND ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE 

Ms. MITTAL. Mr. Chairman and members of the subcommittee—— 

Mr. GREEN. You want to—yes. 

Ms. MITTAL. Sorry. Mr. Chairman and members of the subcommittee, thank you for inviting us to participate in your hearing 

today. At your request, my testimony will summarize the findings 

of the GAO’s report that you released today on air and water pollution associated with concentrated animal feeding operations, known 

as CAFOs. 

As you know, CAFOs can produce thousands of tons of manure 

a year, and if this manure is not properly managed, it can result 

in the release of a variety of harmful substances into the environment. Our report’s findings also provide important context for evaluating EPA’s recent proposal to exempt farms that have releases 

of hazardous substances from manure from CERCLA and EPCRA’s 

reporting requirements. 

First we tried to determine how many CAFOs are in operation 

and how much manure they actually produce. Unfortunately because no Federal agency collects data on CAFOs, no one knows exactly how many CAFOs are in operation. What we do know is that 

the number of large farms that raise animals increased by 230 percent between 1982 and 2002 and the number of animals raised on 

these farms has also increased. So we would expect that CAFOs 

have also experienced similar growth trends. 

What is more troubling, however, is that EPA does not have accurate, consistent, and complete data on the number, location, and 

size of those CAFOs that have been issued an NPDES permit even 

though we are not talking about the Clean Water Act today. Without this information, EPA cannot effectively regulate discharges 

from CAFOs. 

Although we do not know exactly how many CAFOs are in operation, we can estimate the amount of waste an individual operation 

can generate. As you would expect, the amount of manure produced 

43 

by a CAFO depends on a number of factors, including the type and 

number of animals raised and the feeding practices employed. 

A minimum-sized CAFO raising 82,000 layers, therefore, can 

produce about 2,800 tons of manure a year. While on the other extreme, a CAFO with 800,000 hogs can produce more than 1.6 million tons of manure a year. 1.6 million tons of manure, as has already been mentioned, is more than one and a half times the 

human sanitary waste produced by the city of Philadelphia. For 

CAFOs that produce such large amounts of manure, hazardous 

substance releases can become a real issue. 

We also looked at the research that has recently been completed 

linking pollutants released by CAFOs to impacts on human health 

and the environment. We identified at least 34 studies that have 

researched this linkage and found that the majority of these studies established either a direct or an indirect link between specific 

air and water pollutants released by CAFOs and human health and 

environmental impacts. Only 7 of the 34 studies that we looked at 

found no such linkage. 

EPA has been regulating CAFOs under the Clean Water Act for 

almost 30 years and has long recognized the potential impacts that 

CAFO water pollutants can have on human health and the environment. It is only recently that EPA has become concerned about 

similar impacts for air pollutants released by CAFOs. However, 

EPA has yet to assess the extent of these impacts for either water 

or air pollutants because it lacks data on the characteristics of 

CAFOs nationwide and the amount of pollutants they are actually 

releasing. 

EPA told us that it does not have the resources to collect the nationwide data that it needs for water pollutants, but for air pollutants, a 2-year monitoring study was recently initiated in 2007 that 

is being funded largely by the industry. 

We also found that with regard to CAFO air pollutants that may 

be regulated under the Clean Air Act and are subject to CERCLA 

and EPCRA requirements, EPA is still years away from having the 

air emissions protocols that it needs. The air emissions monitoring 

study was supposed to provide EPA with scientific and statistically 

valid data needed to develop air emissions protocols by 2011. However, we identified several concerns with how the study is structured and being implemented that, if not addressed immediately, 

may result in EPA not obtaining the data that it needs to develop 

these protocols. 

In this regard, the timing of EPA’s decision to exempt farms from 

EPCRA’s and CERCLA’s reporting requirements is a concern. Because the monitoring study has not been completed, EPA does not 

know the extent to which hazardous substances are actually being 

released by animal feeding operations. 

In addition, EPA has not yet decided if it will aggregate all of 

the emissions occuring on an animal feeding operation, or if the 

emissions will be considered separately to decide if an operation 

has exceeded allowable limits. 

In conclusion, Mr. Chairman, given the dramatic changes that 

have occurred in the structure of the animal production industry, 

it is disconcerting that EPA lacks reliable data on the number, location, and size of CAFOs and the amounts of pollutants that they 

44 

release. Without this information, EPA can neither effectively monitor the harmful substances released by these operations, nor can 

they conduct the necessary assessments of how these substances 

impact human health and the environment. 

This concludes my prepared statement. I would be happy to respond to any questions that you might have. 

[The prepared statement of Ms. Mittal follows:] 

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Mr. GREEN. Thank you. That concludes all our opening statements, and we will start off with our two rounds of questioning regarding the proposed CAFO air rule, and then move on—I will 

start with the CAFO air rule and move on to Superfund oversight. 

My first two questions on the CAFO air rule are for Ms. Mittal 

and GAO, and please answer yes or no. Is your opinion that the 

EPA’s proposed air emissions reporting rule is a departure from 

past regulatory enforcement actions including the air compliance 

agreement? 

Ms. MITTAL. Yes, we believe it is. 

Mr. GREEN. Do you think that EPA should obtain more data on 

CAFO emissions and potential human health effects before exempting them from hazardous air release? 

Ms. MITTAL. Yes, we believe they should. 

Mr. GREEN. My next question on the CAFO proposed air rule is 

for Assistant Administrator Bodine, and again please answer yes or 

no as well. Does EPA plan to seek more information on the potential health impacts of CAFO releases before finalizing the rule? 

Ms. BODINE. No. 

Mr. GREEN. Okay, has EPA submitted the final rule to the Office 

of Management and Budget? 

Ms. BODINE. No. 

Mr. GREEN. Okay, does the Administration intend to issue a final 

rule before November 1? 

Ms. BODINE. A decision on the final rule has not been made. It 

is still a proposal within EPA. 

Mr. GREEN. Okay, I know White House chief of staff Joshua 

Bolton issued a memo stating that federal agencies should not 

issue final rules after November 1. And do you know if EPA intends to follow that directive in this case? 

Ms. BODINE. I don’t know. We haven’t sent it to OMB yet. 

Mr. GREEN. Okay, I would like to ask some other Superfund-related questions because this is our last chance for this year, and 

these questions again are for our Assistant Administrator. Your office provided us with a chart of Superfund construction sites since 

1993, which we will distribute on the dais. 

And unfortunately the chart shows that a climb from 60 to 80 

completed cleanups in the 1990’s to 30 or less in the last 2 years. 

Do you know how many Superfund sites have reached construction 

complete status in 2008 compared to the goal of 30 provided in the 

administration’s budget? 

Ms. BODINE. The fiscal year is not over yet. Our goal this year 

is 30. We have 30 sites that are candidates, and I am very optimistic that we will reach that goal. There is at least one site I am 

aware of where we are doing the confirmatory sampling and so we 

can make sure that, in fact, everything is cleaned up as it is supposed to be. So it is going to come down to the last days of the fiscal year. So I don’t have a definitive answer for you right now, but 

I am very, very optimistic that we will have them. 

Mr. GREEN. The last day of the fiscal year is next week. 

Ms. BODINE. Yes, in fact, that is exactly right. 

Mr. GREEN. Do you have any idea of the number of the 30 that 

you have now? Do we have 20 or 10 or anything at all? 

71 

Ms. BODINE. We have the final reports from the region in for all 

30. But, as I mentioned, I am aware that there is some sampling 

that we are waiting for at least one site. So I can’t give you a dispositive answer at this point. 

Mr. GREEN. Okay, we will contact you after the close of this year. 

Does availability of funding have any impact on the number of 

sites that you can complete? 

Ms. BODINE. Each year, at least since 2004, the Agency has posted on its website the number of projects that we start in that year 

and if there are projects that we didn’t start because of availability 

of funding, we put that information up on the web as well. In FY 

2004 and 2005 and 2006 there were some unfunded projects. In FY 

2007, we were able to start them all, but you could assume that 

if a project isn’t started in a particular year, if the start moves to 

a later year that would then ultimately, 3 years later perhaps, impact when a project would be completed. 

So in terms of what we are providing funding for in this year and 

our construction completions this year, I don’t believe funding was 

an issue. The question is was there something that we didn’t start 

back in FY 2004 but that could have been done this year. 

Mr. GREEN. Could you provide our committee with a written response explaining why EPA is not able to achieve the greater results that addresses the impacts of funding availability and any 

cost increases that have been since, for example, 2004? 

Ms. BODINE. Yes. 

Mr. GREEN. Appreciate that. My time is almost over. I have another line of questions. I will wait until the second panel. The 

Chair recognizes our ranking member, Congressman Shadegg. 

Mr. SHADEGG. Thank you, Mr. Chairman. Mr. Rey, I am going 

to begin with you. I would like to learn a little bit more about the 

incident at the dairy that was referred to. As I understand it, you 

said that is the only incident that you are aware of in which there 

was an emission of either of these two pollutants from manure 

arising from a CAFO, that is the topic we are talking about? 

Mr. REY. The only instance that I am aware of where the emissions exceeded what would be the reportable quantity under 

CERCLA or EPCRA. 

Mr. SHADEGG. Ms. Mittal, are you aware of other emissions? 

Ms. MITTAL. We were not made aware of any other incident, and 

that is why the National Air Emissions Monitoring Study is so important for this effort because this study is going to provide EPA 

with that kind of information. 

Mr. SHADEGG. How long has the law required these kind of reports? 

Ms. MITTAL. Which kind of reports, sir? 

Mr. SHADEGG. The EPA is proposing to waive the current requirement for notification. 

Ms. MITTAL. Right. 

Mr. SHADEGG. Mr. Rey, maybe you know the answer. How long 

has the law required these kind of reports? 

Mr. REY. I think they have been required since some of the litigation over CERCLA and EPCRA about 2003. 

72 

Mr. SHADEGG. So we have 4 years—4 or 5 years of reports, and 

in that 5 years, the only one we know of is the one involving this 

dairy? 

Mr. REY. That is my understanding. 

Mr. SHADEGG. Dr. Johnson, do you know of others? 

Mr. JOHNSON. Our agency is not involved in reviewing CAFOs in 

general. We review assessments as they are presented to us for our 

opinions. We have only done three or four assessments over the 

past several years. 

Mr. SHADEGG. But your answer would be you don’t know of any 

others? 

Mr. JOHNSON. No, I don’t. 

Mr. SHADEGG. Okay, Ms. Bodine? 

Ms. BODINE. In response to the chairman’s request in the invitation letter, we have provided, and I have it for the record, a summary of reports that have been sent in to the National Response 

Center from facilities that we—by looking at what was being reported, we are estimating are coming from animal feeding operations or farms. And so, yes, there have been a number of reports 

that have been filed with respect to hydrogen sulfide and ammonia. 

And I have that. 

Mr. SHADEGG. Well, my question isn’t have there been reports 

filed on it. The law requires reports be filed. That is what you propose to exempt. My question is Mr. Rey says there has only been 

one that exceeds the standards. And is that correct, or is that incorrect? 

Ms. BODINE. I am going to assume that the people were reporting 

because they thought they had exceeded the reportable quantity. 

But I would have to actually look and see exactly what the report 

is. But if they had exceeded the reportable quantity, then the obligation to report would arise. 

Mr. SHADEGG. Okay, I want to clarify. One report goes to the 

Coast Guard? 

Ms. BODINE. Yes, under CERCLA Section 103, it goes to—the 

National Response Center is manned by the Coast Guard, correct. 

And then they send the reports out. Most of them they send out 

to EPA. 

Mr. SHADEGG. And the other report goes to local emergency agencies. Is that correct? 

Ms. BODINE. Under EPCRA, that is correct. It goes both to the 

local and to the state agencies. 

Mr. SHADEGG. And what you testified was that in no instance 

has a report to a local emergency agency resulted in a response? 

Ms. BODINE. I testified that no report that came through the 

Coast Guard to EPA has resulted in a response. We are not aware 

of any report to the locals that resulted in a response, but we don’t 

get those reports. 

Mr. SHADEGG. Mr. Rey, as I understood from your testimony, 

what happened at this dairy should never have happened if the 

state had been applying the law properly with regard to the operations of this dairy to begin with. Can you explain what reports—— 

Mr. REY. It is our judgment that in the water quality permitting 

process that the state uses, not just Minnesota but other states as 

73 

well, the dairy operator that went bankrupt should have been required to finish the cleanup of the pits. And in any event, even if 

that hadn’t happened, the new permitting for the successor in interest, the company that took over from Excel, should have been 

required to clean up those pits before the permit was granted to 

operate the dairy. 

So I think my point is that if the permitting process for water 

quality had worked properly, then our judgment is there wouldn’t 

have been a spike in hydrogen sulfide emissions because we think 

that spike was the result of the mixing of the older waste that had 

been fermenting for some time with the new waste of the new operator. 

Mr. SHADEGG. Are the operators of these facilities required to follow a management plan that is what they are going to do with this 

manure over time, sell it, process it? 

Mr. REY. A comprehensive nutrient management plan or a manure management plan is part of the requirements for their clean 

water permit. 

Mr. SHADEGG. And that plan should reveal quantities, disposal, 

whether or not these kind of buildups are going to occur? 

Mr. REY. Generally speaking. 

Mr. SHADEGG. One last question if I might, Mr. Chairman. Both 

Mr. Rey and Ms. Mittal referred to a study to be completed in 

2009. You are both referring to the same study? 

Ms. MITTAL. Yes. 

Mr. REY. Yes. 

Mr. SHADEGG. And, Ms. Mittal, you have concerns about its protocols? 

Ms. MITTAL. Yes. 

Mr. SHADEGG. Thank you. 

Mr. GREEN. The Chair recognizes Congressman Barrow for three 

minutes. 

Mr. BARROW. Thank you, Mr. Chairman. I am still trying to get 

a handle on whether or not what we are proposing to abandon here 

is something that has effectively been tried, been tried in a reasonably effective manner, or whether it has been tried and found 

wanting. And a part of the confusion arises out of the fact that we 

have reporting requirements fixed by law, by statute, affirmative 

requirement by law. And we have monitoring requirements, the 

best I can figure out, that are basically not enforceable as a matter 

of law but only as a result of contract, essentially what is an agreement to enter into a monitoring program, for purposes of trying to 

decide what kind of regulations are more appropriate in the future. 

But what I hear and what I am hearing from folks back home 

is that the monitoring requirements that a lot of folks felt kind of 

coerced to enter into as a result EPA’s efforts to beef up enforcement in this area are way over broad in the sense that it covers 

a lot of de minimis operations, a lot of operations that really probably aren’t as serious as others. 

What concerns me is we have a lot of CAFOs thrown in with a 

lot of mom-and-pop operations and apparently a monitoring requirement that is so burdensome and so troublesome that it causes 

more trouble than trying to get the useful information Ms. Mittal 

says we need to have in order to decide where to go from here. 

74 

And so I just want somebody on the panel to tell me if there is 

any effort being made to try and reassess the current monitoring 

program to decide whether or not we can focus its efforts or limit 

it just to CAFOs, operations that are big enough to worry about. 

Has any consideration been given to that? 

Ms. MITTAL. Well, I can definitely start. The concern that we are 

trying to raise through our report is that traditionally we have considered animal feeding operations or farms to be low sources of 

emissions. And what we are seeing is this dramatic shift in the industry, where you have larger farms, very large size farms with 

very large numbers of animals producing very large quantities of 

manure. 

And so our traditionally held belief that these farms are not a 

major source of emissions may no longer hold true. 

Mr. BARROW. But the trend you are describing though, to my 

way of thinking, suggests that a large number of small time producers aren’t a big deal. It is the huge concentrations in these big 

operations that are a big deal. 

Ms. MITTAL. And that—— 

Mr. BARROW. You have a 2-year-old monitoring program. We are 

halfway through it. It has a lot of small mom-and-pop operations 

thrown in with the big guys. And I could tell you the push back 

and the perceived lack of utility in the monitoring program for a 

lot of folks. That supports the EPA position we don’t need to do 

anything about this because we aren’t going to respond to these 

anyhow. We never have so far. 

Ms. MITTAL. Well, I think that is the concern we have with the 

exemption, that it is very broad and it covers all establishments, 

even the very large ones. And we don’t have information. We don’t 

have good complete information on how many emissions are actually occurring at these very large operations. So that is one of our 

concerns with the EPA exemption, that it may be premature since 

we don’t have data yet. The study is not completed yet, and we 

don’t know the extent to which emissions are actually occurring. 

Mr. BARROW. Anybody want to respond to that? Ms. Bodine, can 

you give us some feedback in response to that? 

Ms. BODINE. The rationale for our rule is based on the fact that 

these reporting requirements are for the purposes of managing an 

emergency response program—— 

Mr. BARROW. I recognize—— 

Ms. BODINE [continuing]. And not—— 

Mr. BARROW [continuing]. The difference between acute and 

chronic, between something that is released all of a sudden like 

and something that is just kind of constantly seeping and the difficulties of monitoring and the burdens of responding to both. But 

you got to recognize that something that builds up over a long time 

is just as much of a concern as something that comes out all at 

once. 

Ms. BODINE. And then the question is what purpose is served by 

reports versus whether or not the information that is being gathered under the air compliance monitoring study will be relevant for 

determining whether or not regulations, actual controls, would 

need to be required. And that would be information that would be 

relevant information coming out of the study. The reporting reVerDate Nov 24 2008 14:26 Mar 10, 2009 Jkt 037690 PO 00000 Frm 00080 Fmt 6633 Sfmt 6633 C:\DOCUMENTS AND SETTINGS\CWELLS1\110-151 SCOM1 PsN: JIMC
75 

quirements that are the subject of our proposed rule have nothing 

to do with controlling emissions. It is a report. They don’t have 

anything to do with monitoring. It is a report. 

Mr. BARROW. I know. I understand that, but the purpose of the 

report is to make it possible for folks to respond, if there is a need 

to—— 

Ms. BODINE. The purpose of the report—they go to the emergency response community, and the purpose is to determine whether a response is necessary. 

Mr. BARROW. Well, here is the concern that I have. Clearly, we 

have to make a common sense distinction between the mom-andpop operator, the small family farm, and the CAFO. And clearly we 

have to recognize that monitoring requirements that don’t lead to 

any kind of reporting when something is bad is worthless. And reporting requirements that don’t have the effect of monitoring are 

worthless because you report—something you don’t know about it, 

you can’t report it. So we have to apply some common sense and 

figure out how to do this. 

I am concerned though when a cop says because I don’t issue any 

citations, therefore there ought not be a law on speeding. That is 

a concern to me, and I don’t know how much folks are speeding or 

not speeding because you can’t tell that because we are not issuing 

any citations. If that is going to be the measure of whether or not 

there is speeding going on out there, you might have a lot of 

wrecks going on and still not have any effective means of dealing 

with it. 

Thank you. I yield back the balance of my time. 

Mr. GREEN. Our next questions are from Congressman Deal. 

Mr. DEAL. Thank you, Mr. Chairman. I want to follow up on the 

excellent analysis that my fellow Georgian, Mr. Barrow, has made 

because he and I both have small family farm operations. It my 

congressional district, it probably has the largest concentration of 

numbers of boiler producers in the entire country. We call ourselves the poultry capital of the world. 

And I want to direct this to you, Ms. Bodine. I am going to precede it with some statements of fact that we think are correct and 

then ask you to comment on a few things. First of all is that University of Georgia recently completed a study that measured the 

actual levels of ammonia in the air at a larger than average poultry farm. 

Research concluded that at very close distances to the poultry 

houses, even as close as 100 feet, the concentration of ammonia 

was around one part per million the great majority of the time. The 

highest level measured was only a few parts per million. Most important is that the level of airborne ammonia measured by the University of Georgia study was, first of all, far below the current 

OSHA workplace exposure limits for ammonia, and, two, even 

lower than the very conservative minimum risk level of 1.7 parts 

per million set by the Agency for Toxic Substances Disease Registry. 

The question is this: with these kinds of extremely low concentrations of naturally occurring, rapidly dispersing ammonia on 

poultry farms, should EPA be concerned that these farms, which 

76 

are mostly family-owned farms, are posing an emergency in the 

same way a chemical explosion or a hazardous spill might? 

Ms. BODINE. In our proposed rule, we looked at the kinds of 

emissions that were coming from farms and found the characterization as you depicted—they were constant, relatively constant emissions that, as you said, are dispersed. Then we looked at the history of response and whether or not we would expect there to be 

an emergency response akin to a derailment or an explosion. We 

determined that for the purposes of the proposed rule that no, in 

fact, there would be no response. And that is the basis, that is the 

rationale for the proposed rule. 

Mr. DEAL. And that leads us to a no conclusion on that, a conclusion of no, they don’t pose the same degree of hazards or concerns. 

Second question is should a poultry farm that generates near zero 

levels of ammonia in the air be required to notify emergency response officials at the state, local, and Federal level that their operations are posing a danger warranting a response under the same 

rules that would apply to the larger chemical or toxic spills? 

Ms. BODINE. I would again have to refer you back to our proposed rule. What the agency proposed was that we would provide 

an administrative reporting exemption for the hazardous substance 

emissions that were from animal waste. 

Mr. DEAL. And your proposal is on the premise that they don’t 

or should not justify that kind of emergency report. 

Ms. BODINE. That the reports aren’t necessary for our emergency 

response program—— 

Mr. DEAL. Yes. 

Ms. BODINE [continuing]. Is the rationale for the rule. 

Mr. DEAL. Have emergency responders overwhelmingly told the 

EPA that losing the 304 reports will cripple emergency response on 

farms? 

Ms. BODINE. Our own emergency responders have told us that 

they wouldn’t respond. In terms of comments that we have received, we did receive comments from Mr. Gablehouse, who is the 

president the National Association of SARA Title III officials, opposing the rule. His comments didn’t say that the reports were required for a response, but they opposed the rule. 

We also received some individual comments from a number of individuals, state and local entities, that supported the rule. So we 

had mixed comments—there is the association on the one hand and 

then the individuals on the other. We had mixed comment on that. 

Mr. DEAL. All right, my second question is, first of all, as you 

know, states and even local communities have legislated through 

state law or zoning ordinances requirements to change the set back 

requirements for animal operations so that there is a sufficient 

buffer between, say for example, a poultry house or turkey barn, 

and neighboring properties or residents. 

This, of course, can place additional burdens on the owners of the 

property and the operators of the poultry operations with respect 

to whether and how they can expand their operations. I am sure 

you are aware that some of these decisions regarding set back distances have been made at local and state levels. Have these requirements and the buffering role that play a factor, have they 

77 

played a factor in your decision as to how to address the emergency 

notification as it relates to poultry and other farming operations? 

Ms. BODINE. I don’t believe we did a systematic analysis of set 

back requirements, no. Again the rationale for our rule was these 

are reports for an emergency management program that we didn’t 

see were going to lead to an emergency response. 

Mr. DEAL. Based on the study I have just cited from the University of Georgia on the relatively low emissions and the fact that if 

they are separated by set back requirements from neighbors or residential communities, I believe that that is already playing a very 

large part in the fact that you are not receiving complaints in most 

of the areas that we see these poultry type operations in place. 

So I think they have played a positive role in trying to minimize 

any degree of concerns and any complaint process that might be 

otherwise activated. Mr. Chairman, I would yield back the balance 

of my time. 

Mr. GREEN. Thank you. Before we go forward with Congressman 

Solis, the ranking member brought up an issue earlier about the 

reporting requirements that were—they have been on the books 

since 1986, and EPA is enforcing them against CAFOs starting 

about 5 years ago. So it has actually been a law for a number of 

years. The Chair recognizes Congresswoman Solis. 

Ms. SOLIS. Thank you, Mr. Chairman. I just want to also clarify 

for the record when we had a subcommittee hearing in the House 

on November 16 of 2005, we asked EPA if they had any knowledge 

of any qualitative risks or studies that might have been done affecting health risks. And their answer was no, and that is noted 

on page 155. So I would draw the members’ attention to that. 

And on page 156, EPA was further asked if they had any information regarding triggering of reporting requirements and what 

that meant with respect to the operational size of these farms. And 

apparently at the time, they said they had no information. No information. And then 2 years later, on December 28, of 2007. They 

are proposing a rule that would disallow any reporting for the larger CAFOs. So I think that it seems as though the blind is leading 

the blind. There is no information on which to base this rulemaking. 

And I wanted to ask our GAO representative if she would elaborate on what some of the issues are here with data gaps. You kind 

of pointed that out, but what does that mean? I mean I clearly understand where Mr. Barrow is coming from with smaller facilities. 

And now to know that there really isn’t adequate information to assess any of this with any great degree, why are we rushing to this? 

And what implications does that have for us? 

Ms. MITTAL. That was one of the things that we heard throughout our study was that EPA does not have complete information on 

the number, size, and location of CAFOs and the amount of pollutants that they release, whether it is air or water. Obviously in this 

case, we are talking about air pollutants. So they do not have that 

information. They cannot therefore do the assessments that you 

just mentioned in terms of health and environmental impacts because they first need to know how many releases are actually occurring. 

78 

The other issue that I have already mentioned is the fact that 

the air emissions monitoring study was supposed to provide a significant amount of statistically valid and scientifically based data, 

so that the agency could know how many—what quantity and what 

types of air emissions are coming from CAFOs. So we would think 

at a minimum we would need that information from the air emissions monitoring study to be complete before proceeding with the 

proposed exemption. 

The other issue that I raised in my testimony was the fact that 

EPA has not yet decided what will be considered a source of an 

emission at an animal feeding operation, whether individual—— 

Ms. SOLIS. Her mike went off, Mr. Chairman. 

Ms. MITTAL. It says on. The green light is on. 

Ms. SOLIS. So can you see—I don’t want my time to run out. 

Mr. GREEN. Yeah, we will give you—did somebody turn the mike 

down? Okay, we need you to turn it just a little bit higher so we 

can hear. We don’t want the feedback, but we also don’t want the— 

we want to be able to hear the testimony. Okay, continue. 

Ms. MITTAL. The last issue that I mentioned was that EPA has 

still not made a decision about what is considered a source for an 

animal feeding operation. If you look at just one barn, you may 

have a certain amount of emissions. But when you look at all of 

the barns put together, you may have a completely different profile. 

Early indications that we have seen from preliminary data from 

the study that is ongoing is that some of the barns that EPA is 

monitoring do have emissions that exceed the reportable quantity. 

And if you add all of the emissions from all of the barns, you have 

500 times the reportable quantities. 

So we are very concerned about the timing of this proposal. 

Ms. SOLIS. My next question is for Mr. Johnson and your involvement in the incident that occurred out in—what you were just talking about in Minnesota. And what triggered your response? How 

did that happen? 

Mr. JOHNSON. Our involvement is about a number of situations 

either because we are involved from a Superfund involvement in 

which it provides our authority. But also we could be petitioned by 

citizens, by states, and by other EPA programs. In this case, it was 

a specific request from U.S. EPA and the Air Enforcement Program 

to review the data that had been assembled by the state environmental agency and also by the citizens and for us to render a public health hazard determination. 

Ms. SOLIS. So EPA notified you? 

Mr. JOHNSON. That is correct, and it became a collaboration between us and the Minnesota Department of Health to conduct that 

assessment. 

Ms. SOLIS. But is there any other incidents that might come up 

where EPA doesn’t tell you and you go out and find that there is 

hazardous exposure here in the air and you do not maybe notify 

EPA because you haven’t been prompted by them? What happens 

in those situations? 

Mr. JOHNSON. Right, and that situation is where we are petitioned by a community in which we conduct an assessment. We 

may, in certain cases, actually do our own sampling if we think 

there is a need to do that, to inform a decision about public health 

79 

hazards. In most cases though, if we feel there is a need for some 

intervention to occur, we need to work with an agency that can 

conduct that intervention since we have no regulatory authority. 

So in most cases if we think an action is needed, we will work 

with either U.S. EPA or state authorities to make sure that those 

actions are taken. 

Ms. SOLIS. So there could be actions that we are just not aware 

of that could have been given to state authorities? Because what 

I am concerned about here is that we are trying to point out that 

this the only case that we know of in Minnesota, and that is really 

hard for me to believe that there weren’t any other incidences that 

might have come up. And I just want to be clear on what that process is and what triggers EPA to get involved as opposed to the community’s right to know. 

Someone calls you and they say hey, we have a problem here. 

Then you go to, say itis our state EPA, and they then don’t notify 

the Federal EPA. That could very well happen. I would like to 

know if EPA has—is there any way to collect that data. And that 

is probably one of the bigger gaps that exist as well. That big gap 

where no one is telling Federal EPA about these incidences that 

have occurred, maybe on smaller farms or larger farms, I would 

imagine probably the larger ones, means that we are just not 

aware. And that really disturbs me. If we are moving so quickly 

down this path where we want to complete rulemaking here without having the right tools and information. 

So, Mr. Chairman, I just have to state that I am very, very reluctant to see that the administration would move forward, especially 

after November. I mean I just think it is outrageous. 

Mr. GREEN. I think that has been reflected in not only our line 

of questions but also in our statements. So thank you. Is there a 

response? Because obviously we need to have as quick as we can. 

We expect a vote in about 10 minutes. 

Mr. REY. Well, I think I would like to clarify a couple things for 

the committee. 

Mr. GREEN. As brief as possible please. 

Mr. REY. First of all, CAFOs aren’t all big. Under certain circumstances, a mom-and-pop operation with less than 300 cows has 

been and can be designated as a CAFO. So we are not talking 

about a reporting requirement that is only going to apply to large 

operations. 

Second, many of the data gaps and concerns that we have been 

hearing about are concerns related to emissions monitoring and 

control through the Clean Air Act, not concerns that are relevant 

to a release of a hazardous emission. 

To follow Mr. Barrow’s analogy, we are not arguing over speed 

limits here. We are arguing over a requirement that after you have 

a wreck, you call the ambulance company. Presently we are calling 

the ambulance company whether we have a wreck or not, and we 

have only had one wreck over 5 years. 

Mr. GREEN. The time has expired. Congressman Hall. 

Mr. HALL. Thank you, Mr. Chairman. I will try to be as brief as 

I can be. Ms. Bodine, I want to ask you, excuse me, a series of 

questions, and I would like for your answer to be a one-letter answer. And I would like for it to begin with a Y and end with an 

80 

E—with an S if possible, and not begin with an N and end with 

an O. So help me along if you can because I am up in years, and 

I don’t have much time. 

I am one of the few remaining members of Congress who served 

as a conferee on the 1986 amendments to CERCLA which created, 

as you know, the Emergency Planning and Community Right-ToKnow Act and the emissions reporting requirements that we are 

discussing right here today. So correct me if I am wrong, but didn’t 

we include in that legislation a list of hazardous substances for 

which emissions reporting is not required under CERCLA RFS? 

Ms. BODINE. Emissions reporting not required? 

Mr. HALL. Yes. 

Ms. BODINE. I know there is a list of hazardous substances for 

which emissions is required, and there are exemptions. But I—— 

Mr. HALL. But we included in the legislation a lot of hazardous 

substances for which emissions reporting is not required. 

Ms. BODINE. Okay. 

Mr. HALL. They are in there. 

Ms. BODINE. Okay. 

Mr. HALL. Will you stipulate a yes with me? 

Ms. BODINE. I would have to check and answer, but I am going 

to take your word for it. 

Mr. HALL. Not an irrebuttable yes, but just a soft yes. 

Ms. BODINE. Okay. 

Mr. HALL. And I am over the first one here. And didn’t we create 

several exemptions from the definition of the word or the term release that include one, any release that results in exposure to persons solely within the workplace, and emissions from the engine 

exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline, pumping station? And I am reading from the Act. 

Ms. BODINE. Yes. 

Mr. HALL. And that is good. And I want everyone to understand 

I am not trying to speak poorly of the automobile industry here because I agree with my friend, Mr. Dingell, on their exemptions. 

And it is a good thing that automobiles are exempt from CERCLA 

law, and I just think we need to make sure that our farmers are 

getting a fair deal here as well. I don’t want a yes to that. 

That being said, isn’t it true that there are many hazardous substances in automobile exhaust emissions that can make you very 

sick or even give you cancer or maybe kill you like carbon monoxide and oxides of nitrogen? 

Ms. BODINE. I don’t know the answer because I am not with the 

air program. 

Mr. HALL. I will stipulate a yes with you —— 

Ms. BODINE. You will stipulate a yes. 

Mr. HALL [continuing]. And give you a chance to correct it if you 

want to later. So we have exempted car and truck owners from reporting these emissions even though we know they can make you 

sick or kill you, in spite of the fact that in our cities, hundreds of 

thousands or even millions of these vehicles emitting these lethal 

substances may be concentrated in a very small geographic region 

and located very close to millions of people. Easy yes, right? 

Ms. BODINE. That—— 

Mr. HALL. All right, and do you—— 

81 

Ms. BODINE. There are exemptions from the definition of release. 

In the statute, yes. 

Mr. HALL. You are doing your best to be helpful. 

Ms. BODINE. Yes. 

Mr. HALL. And I appreciate it. Do you believe that these auto exhaust emissions contribute to air pollution in some areas of the 

United States where air quality does not meet Federal Clean Air 

Act standards? 

Ms. BODINE. I can’t speak on the clean air program. I would have 

to—— 

Mr. HALL. I will write a yes in there for that. That is good 

enough for me. Even though you admit autos pollute the air, 

threaten human health, and are now concentrated in very large 

numbers in relatively small numbers, do you see the need for us 

to modify Superfund and remove the exemptions so that auto owners would begin reporting their emissions to EPA? 

Ms. BODINE. No, I don’t see that. 

Mr. HALL. That is a no, and that is a good no. 

Ms. BODINE. Okay. 

Mr. HALL. Now, if your proposed rule moves forward to exempt 

large, confined animal feeding operations from reporting requirements on ammonia and hydrogen sulfide, do you believe this will 

weaken your ability in the future to regulate these emissions if the 

nationwide testing, now underway on these emissions, prove you 

need to regulate CAFO emissions? 

Ms. BODINE. No, it won’t affect that at all. 

Mr. HALL. So no, and I believe all the necessary authority under 

the Federal Clean Air Act to regulate as necessary, you believe you 

have it, don’t you? 

Ms. BODINE. The Clean Air Act provides authority. 

Mr. HALL. All right, I yield back my time, and I sure do thank 

you for those clear and concise answers that you have given. I yield 

back my time. 

Mr. GREEN. I thank my colleague from Texas, and I guess it is 

a difference between me driving my car and if I drive 1,000 cars 

and put them all in a barn and run them all day. Our next questioner is Congresswoman DeGette. 

Ms. DEGETTE. Thank you very much, Mr. Chairman. Just to 

refocus the hearing a little bit. We are talking about the reporting 

requirements under CERCLA and EPCRA for emissions on farms 

of reportable quantities of materials, which is 100 pounds per day. 

Correct, Ms. Bodine? 

Ms. BODINE. Yes. 

Ms. DEGETTE. Thank you. Now, I have in my hand the letter 

dated March 27, 2008 that the chairman tried to enter into the 

record, and I would hope that the minority would now allow this 

to be entered in because it is a letter from Tim Gablehouse, who 

is an old friend of mine back from my days of practicing law, who 

happens to be the president of the SARA Title III program officers, 

which is the state emergency response commissions, the tribal 

emergency response commissions, and the local emergency planning committees, various Federal agencies, and private industry. 

Mr. Chairman, for a long time, I thought Tim was a Republican, 

but I now think he might be a Democrat. But, you know, this is 

82 

a group of people—it is not a partisan group. It is a group of officials who are really concerned about the community’s right to 

know. And they are concerned, when there are emissions, that the 

local communities, Commerce City, Colorado, and some of these 

smaller communities, that their local emergency responders can 

figure out what is happening. 

And so therefore they very strongly support reporting, and what 

this letter says in the introduction is the NASTTPO organization 

doesn’t take a position on environmental compliance record of animal feeding operations, but what they think is that this proposed 

rule threatens the integrity of the accidental release reporting system. 

And what they say is EPA misses the point when it says that 

first responders rarely respond to releases from farms. They only 

respond when they know that the facilities are the source. And the 

point that this organization of local responders is making is that 

the 911 call that comes in from the member of the public in the 

dark of night, that is reporting a foul or chemical odor, rarely contains the information of the source. Somebody is sitting at home, 

they have this smell, and they call up 911. 

And then what happens is the responders are forced to guess at 

that source. Immediate release reporting by facilities under EPCRA 

provides crucial information to responders, and without information, responders are forced to blindly drive through an area, not 

knowing what they are looking for. Is it a vehicle accident? Is it 

a facility release? Or is it something worse? Is it bioterrorism? And 

that is why the local responders think it is so important that these 

amounts be reported. 

And so I guess my question, and anybody who wants to answer 

it, Ms. Bodine or Dr. Johnson, whoever. Here is my question. Don’t 

you think it is relevant that our first responders have some sense 

of the source of an odor? Especially if the odor could be a chemical 

that is a threat to public health? 

Ms. BODINE. I would like to respond to that, and Mr. 

Gablehouse’s comments are in the administrative record, and of 

course they are relevant. And we are considering all comments. 

The section that you just read from his comments are confusing but 

indicate to me that in fact if the local emergency responder knew 

that the source was manure that they wouldn’t respond and that 

it was the lack of information about the source that created the uncertainty that is referred to there. 

So, of course, if we went final with our proposal to exempt, then 

they would know that the source wasn’t manure and, in fact, was 

something else. These are confusing comments. 

Ms. DEGETTE. That is just absolutely Alice-in-Wonderland thinking because if somebody smells—if there, in fact, is an emission 

that is a reportable emission from a farm, which frankly, under the 

law, it is 100 pounds per day. So that is a lot. Then if you exempt, 

if the EPA exempts farms, then the local—but there is still the 

smell. Even though it is exempted, it doesn’t mean the smell goes 

away. 

So then the people are reporting there is a smell, but if you have 

no reporting requirement, then that smell—then the release hasn’t 

83 

been reported and therefore the local authorities have no idea 

where it is from. 

Ms. BODINE. Again, I found these comments confusing as to the 

point—— 

Ms. DEGETTE. Well, have I cleared it up at all? 

Ms. BODINE. Because the comments—— 

Ms. DEGETTE. If they don’t have to report the event, then the 

local responders do not know that there has been a release. So then 

if a community member calls up and says there is a smell, they 

don’t know because it hasn’t been reported. That is what Tim 

Gablehouse is trying to say. 

Ms. BODINE. And what is not in the comments is that the purpose of that report would then lead to a response to an air emission 

from manure. There is nothing in the comments that says that 

they would respond to release of an emission from manure. 

Ms. DEGETTE. The other thing, and maybe someone else can answer this question, is there is actually after that comment quite a 

long legal analysis which concludes that under these two statutes 

that this rulemaking exceeds the EPA’s rulemaking authority and 

that it would be arbitrary and capricious. And I am wondering if 

EPA or anybody else has had their attorneys look at this to see if, 

in fact, this is within the boundaries of EPA’s rulemaking authority. 

Ms. BODINE. Yes, of course, our proposed rule went through our 

general counsel’s office. 

Ms. DEGETTE. I am sorry? Your proposal what? 

Ms. BODINE. Our proposed rule went through our general counsel’s office. 

Ms. DEGETTE. And was there a legal opinion on that? 

Ms. BODINE. Our general counsels believe we have the authority 

to—— 

Ms. DEGETTE. Was there written legal opinion on that, Ms. 

Bodine? 

Ms. BODINE. I would have to—— 

Ms. DEGETTE. If you can please check. And if there was, can you 

please provide it to this committee within 20 days of this hearing? 

Thank you very much. Now—— 

Mr. REY. If I might try to—— 

Ms. DEGETTE. Sure. 

Mr. REY [continuing]. Elaborate a little bit on—— 

Ms. DEGETTE. Yes. 

Mr. REY [continuing]. The quandary I think you are having. 

Ms. DEGETTE. I am not having a quandary. 

Mr. REY. I think one of the things we are finding is that 100 

pounds may generate a smell, but it is not going to generate other 

significant human health effects. 

Ms. DEGETTE. Well, actually, Mr. Rey, 100 pounds could also 

generate particulate matter that might be hazardous to someone’s 

health. 

Mr. REY. Not on the basis of the data we have seen so far, and 

I will submit for the record—— 

Ms. DEGETTE. That would be great. 

Mr. REY [continuing]. The analysis on that. So what responders 

would be doing is saying, okay, there is a smell, but it is not the 

84 

kind of thing that suggests an imminent hazard that we are going 

to respond to—— 

Ms. DEGETTE. But if you don’t—— 

Mr. REY [continuing]. Unlike the Excel situation. 

Ms. DEGETTE. If you don’t make them report, then they don’t 

know if there is a problem or not because they don’t know where 

it is coming from. 

I just have one last question, and it is actually for you because 

you had testified earlier that these CAFOs are not big, that they 

are only 300 cows. So I am wondering if you can tell me for the 

record, since the reportable quantity amount for ammonia and hydrogen sulfide is 100 pounds per day, would that be generated by 

a farm with 300 cows? 

Mr. REY. It could be because—— 

Ms. DEGETTE. Well, what—— 

Mr. REY [continuing]. Size alone isn’t a function of—— 

Ms. DEGETTE [continuing]. Would the other considerations be? 

Mr. REY. The most—— 

Mr. GREEN. If you will finish very quickly. We have less than five 

minutes for a vote. 

Mr. REY. The most important consideration would be whether 

the facility is being operated properly. Excel wasn’t that big a facility, but it wasn’t operated properly. 

Ms. DEGETTE. So we should exempt them? 

Mr. REY. No, we shouldn’t exempt them. 

Mr. GREEN. Okay, Congressman Sullivan, we are going to take 

a recess while we can go vote and come back. Or you can do so 

right now. 

Mr. SULLIVAN. I can be quick. 

Mr. GREEN. Great. 

Mr. SULLIVAN. Ms. Bodine, we have met before, and you have 

been to Tulsa and everything. 

Ms. BODINE. Yes. 

Mr. SULLIVAN. And I have written letters to talk about getting 

the EPA involved. And we have a problem with the poultry litter 

has gotten in our streams and watershed and lakes. And the city 

of Tulsa, for example, has to spend upwards of $100 million just 

to treat it. 

I guess what my question is is that EPA won’t get involved in 

something because there is a lawsuit going on, and I guess it is 

hard for me to understand. I guess EPA—but your Environmental 

Protection Agency is for the nation, isn’t it, United States? 

Ms. BODINE. Yes, sir. 

Mr. SULLIVAN. Okay, and there are two states having a dispute 

right now. I guess it is hard—I guess what is the criteria—well, 

here is another example. I had a homebuilder call me not long ago 

and said that some people complained because the silt fences had 

holes in them and got some dirt in the stream. And the EPA people 

from Dallas came up and fined them. 

Ms. BODINE. Um-hum. 

Mr. SULLIVAN. If you entered into a lawsuit with those neighborhood association that did that, would you not get involved then in 

that? Or what kind of level does it take of polluting someone’s 

85 

water source to get the EPA to actually act and try to mediate the 

situation without a lawsuit? 

Ms. BODINE. In the instance of your construction facility, there 

are storm water requirements that, if the silt fence wasn’t there, 

weren’t being met. In the situation with the lawsuit by the Attorney General in the state of Oklahoma, it is my understanding— 

again this is pollution to water. This doesn’t have anything to do 

with our release reporting exemption. 

But the release is from what we call non-point sources of pollution, that means that they are not—they wouldn’t be subject to 

Federal regulatory authority. But because this is a water case, I 

am not the expert on this case. And I would like to—— 

Mr. SULLIVAN. But if someone is dumping tons of animal waste, 

chicken, poultry litter and renderings into our water supply, is that 

not something that is not considered bad or—— 

Ms. BODINE. If that is the fact pattern, then I would assume that 

would be a discharge. But I would have to go back, see what the 

facts are, and then respond. 

Mr. SULLIVAN. So if there wasn’t a lawsuit—so it is really a—— 

Ms. BODINE. So the question is is there a Federal regulation—— 

Mr. SULLIVAN. But the reason the EPA is not getting involved in 

this to mediate between the states in the United States is because 

of a lawsuit that is taking place right now? 

Ms. BODINE. No, if there was a Federal requirement that wasn’t 

being complied with, the agency could get involved. The question, 

I guess, this is a dispute between two states. 

Mr. SULLIVAN. Well, would contaminating a whole state’s water 

supply be considered something that—— 

Ms. BODINE. Depends on whether or not it is regulated, whether 

or not it would be from a point source. And that is the fact pattern 

that I would need to go back and check. 

Mr. SULLIVAN. But you think contaminating a state’s water supply would be more problematic than a silt fence not being properly 

put up? That the EPA would get involved in that but not in someone—I mean water is a basic—— 

Ms. BODINE. If the source is from a point source, then EPA regulations apply. If the source is from a non-point source, EPA regulations don’t apply. 

Mr. SULLIVAN. Do you understand that that would be hard for 

someone to understand? 

Ms. BODINE. I appreciate that, yes. 

Mr. SULLIVAN. And also, Doctor, what kind of health concerns 

are there with abundance of phosphorus and nitrogen in the water 

and poultry litter and renderings of chickens and things like that, 

blood, all that in the water? We have seen it causes a smell and 

all that, but can pfiesteria cause any problems with the humans? 

Mr. JOHNSON. Again, our agency is assessing chemical exposure. 

Obviously pfiesteria and other types of exposures could be of a 

health concern. We would have to refer that to experts at CDC to 

provide a more formal response to that. 

Mr. SULLIVAN. But as a doctor, would you drink water that had 

chicken poop in it? 

Mr. JOHNSON. No. 

86 

Mr. SULLIVAN. No? Do you think that someone that drank water 

with chicken poop in it could get sick? 

Mr. JOHNSON. Yes. 

Mr. SULLIVAN. Okay, I appreciate that. Thank you. 

Mr. GREEN. I thank the gentleman. We will stand in recess. We 

have one vote in probably about 15 minutes. You can take a break. 

[Recess.] 

Mr. GREEN. The committee will come back into session, and I 

want to thank our witnesses. You know one of our jobs is also to 

vote on the floor, and every once in a while, we have to do that. 

But particularly today since we are considering the CR and we 

want to make sure we continue to fund our agencies in the future. 

Congressman Butterfield is not here, and was our last questioner, but if he comes in, we will obviously give him the courtesy. 

I have a few questions to our Assistant Administrator. In August 

I went with EPA Region six staff to visit the San Jacinto waste pits 

site by boat and received an update on the site status including a 

letter sent to potential responsible party and another party of interest. And I want to thank the EPA for doing that. Could you 

briefly provide an update on any progress since then as such, 

whether there has been any progress of the potentially responsible 

party? And if it is a lengthy response, could you please respond in 

writing and just summarize? 

Ms. BODINE. Yes, Mr. Chairman, I would like to respond in writing so I can make sure I am getting the most up-to-date information to you. 

Mr. GREEN. Great. Thank you. And I discussed in my opening 

statement the impact of Hurricane Ike on the Superfund sites is a 

serious concern. How many Superfund sites in Texas and Louisiana 

were impacted, potentially impacted by Hurricane Ike? 

Ms. BODINE. In Texas, it is 29 NPL sites. In Louisiana, I believe 

it is 17. Let me double check that. These are the facility sites that 

were in the path of the hurricane. 

Mr. GREEN. Okay, thank you. When will EPA investigate the 

sites both in Louisiana and Texas? 

Ms. BODINE. In Louisiana, all 17 sites have already been investigated. In Texas, we have investigated seven of the sites, and the 

remaining are scheduled to start actually today, the remaining investigation. So we expect that work to be done within the next 10 

days. 

Mr. GREEN. What would be the worst case scenario for a hurricane impact on a Superfund site, such as a hazardous waste dump 

impacted by a storm surge? 

Ms. BODINE. It is going to depend on how far along a remedy is 

at the site. Obviously what we are very concerned about is that we 

don’t have hazardous substances that have been in control moving 

off-site or moving in an uncontrolled situation. 

Mr. GREEN. Okay, when the results of these investigations are 

complete, can you provide our committee with a response on the 

findings including any recommendations for action to control the 

hazardous releases? 

Ms. BODINE. Yes, certainly. 

Mr. GREEN. Thank you. There are over 100 Superfund sites in 

the United States where human exposure to hazardous waste is 

87 

not under control. EPA has been subject to some criticism for the 

continued uncontrolled human exposure at these sites. Does EPA 

have a national plan to prioritize these sites and address these uncontrolled human exposures? 

Ms. BODINE. Definitely we place a priority on controlling human 

exposures. 

Mr. GREEN. Are there any certain types of sites such as groundwater mitigation or sites in urban areas that are more likely to be 

uncontrolled human exposure sites than others? 

Ms. BODINE. There are sites where it is easy to cut off human 

exposure. You could simply cap or put in a fence because the standard for whether human exposure is under control is whether there 

is exposure. That doesn’t mean you have cleaned the site up, but 

first and foremost you cut off the exposure. The sites that are the 

hardest to do that are sites where the reason for the human exposure is consumption of fish, and people are violating fish consumption advisory. 

Mr. GREEN. That brings up a great point, and my concern is 

when you instruct the EPA Region six to determine whether the 

San Jacinto waste pit site is a source of uncontrolled human exposure as quickly as possible. And I don’t know if you are familiar 

with that site. 

Ms. BODINE. I have some familiarity with it. I do understand 

that the issue there, dioxin and furans, has to do with the fact that 

there is fish consumption. And from the information that I read, 

which is that people are eating the fish notwithstanding a fish consumption advisory, that would be under our guidance not under 

control. It is the region that makes that determination. So we can 

follow up and make sure that they evaluate that and follow our 

guidance. 

Mr. GREEN. Okay, thank you, and I appreciate your following up. 

And again could you provide the committee with a written response 

of EPA’s actions in fiscal year 2008 to address the outstanding 

number of ongoing human exposure sites? 

Ms. BODINE. I would be happy to do that. 

Mr. GREEN. Is that possible? 

Ms. BODINE. Yes. 

Mr. GREEN. Ms. Mittal, is there anything else you would like to 

add on the proposed rule including whether the EPA should delay 

the rule? 

Ms. MITTAL. I think the points that I made earlier are the concerns that we have, that EPA should definitely wait until they 

have the national air emissions monitoring study completed, they 

know actually how many emissions are happening from these 

CAFOs, and they also have made some decisions about what is considered a source for air emissions. 

Mr. GREEN. Okay, USDA, any other comments before I lose my 

7 seconds? 

Mr. REY. Again I think the major comment is that question has 

just been raised, or questions that are more germane to regulating 

CAFO emissions under the Clean Air Act. What we are talking 

about here are reporting requirements under CERCLA and 

EPCRA, and I don’t think we lack the information that we need to 

make a determination there. We have 5 years of experience. 

88 

Mr. GREEN. Thank you. My time has expired, and I yield to the 

ranking member. 

Mr. SHADEGG. Thank you, Mr. Chairman. I have actually five 

written questions I would like to submit. Most of them are to Ms. 

Bodine. As a matter of fact, I think all of them are. And I will submit those for the record if I might. 

I just want to go over a couple of points that have come up in 

questioning by the witnesses. First of all, Ms. Bodine or Mr. Rey, 

how long is this report? How detailed is the report that you are 

proposing not be required to be filed? How detailed is that? How 

long is it? How long does it take to fill it out or could it take? 

Range of hours, range of minutes, range of days? 

Ms. BODINE. Yes, there is a reporting burden associated with 

these reports. It doesn’t require monitoring, but it does require an 

estimate based on best professional judgment. So the reporting burden is based on the number of hours, and per notice, it would be 

$166.99, so about $167 per notice if they are reporting. 

Mr. SHADEGG. And do they have to have equipment to monitor 

this? 

Ms. BODINE. No, we don’t require equipment. We don’t require 

monitoring. They can use best professional judgment. 

Mr. SHADEGG. Which is why you said the people who reported before may have believed they were over the reporting requirement 

without necessarily knowing it because they don’t have equipment 

to know precisely. Is that correct? 

Ms. BODINE. That is correct. 

Mr. SHADEGG. Mr. Rey, do you have a comment on that, on what 

is involved in the report? 

Mr. REY. Yeah, just a general comment. We are trying to bring 

these facilities into the best air and water quality compliance possible, and we are imposing a lot of new requirements on these facilities. So where we can target our efforts to engage farmers and 

ranchers in something that is meaningful, that is where we want 

to be putting our focus and not charging them a couple hundred 

bucks a pop for something that has proved largely meaningless 

over a five-year period. 

Mr. SHADEGG. Good point. Is there a penalty for not—if the rule 

EPA proposes is not passed or adopted and the reporting requirement for emissions from manure remains in place, is there a penalty for not complying with this report? 

Ms. BODINE. Yes. It actually goes up occasionally because it is 

adjusted. But yes, there are penalties of $27,000 plus a day. 

Mr. SHADEGG. $27,000 plus a day? 

Ms. BODINE. That would be the maximum. 

Mr. SHADEGG. Okay, there is a discussion here that no government agency knows the size, location or—I am sorry, the number, 

size, location of CAFOs. And the GAO report actually says no Federal agency collects reliable data on CAFOs. It could not determine 

the trend of these operations over the past 30 years. Is that correct, 

Mr. Rey? 

Mr. REY. No. In fact, had we had the opportunity to spend more 

time with GAO, we could have given and did give them in our written comments on their draft report the precise information that 

they desired. Moreover, much of that information is generated by 

89 

the National Agriculture Statistical Service. The next Ag census is 

going out in February, so if there is information that either EPA 

or GAO or HHS wants, we can include that in the next census. We 

know how many CAFOs there are. We know which ones are under 

permit. 

Mr. SHADEGG. Yes? 

Ms. BODINE. And I believe GAO’s criticism was that that wasn’t 

in a database. The CAFOs are regulated under the Clean Water 

Act. That information is in the permits, but right now, we don’t 

have a database with all of that information in it. 

Mr. SHADEGG. Fair enough. There is some discussion by Ms. 

DeGette about exempting farms and about exempting the Excel 

Dairy. I am sorry she is not still here, but no witness is proposing 

exempting farms or exempting dairies. You are proposing exempting emissions from manure piles. If, in fact, a farm or a dairy has 

an emission of these toxics or these materials from something else, 

they have a storage tank on their facility that emits this kind of 

pollutant, not an emission from a manure pile but from some sort 

of storage tank, your rule would not exempt the requirement that 

that be reported, correct? 

Ms. BODINE. Correct. 

Mr. SHADEGG. Mr. Rey, is that also correct? 

Mr. REY. That is correct. 

Mr. SHADEGG. So to the extent that Ms. DeGette was concerned 

that we were just going to exempt farms or dairies, at least, Mr. 

Rey, you were asked, and you said no, you wouldn’t do that. You 

wouldn’t propose doing that, and that is not what the rule proposes 

doing, correct? 

Mr. REY. Correct. 

Mr. SHADEGG. I have one last quick point. It is probably not a 

question. But in pursuing regulation—I think, Mr. Rey, this falls 

upon your point, if the burden of the regulated community with reporting what turns out to be useless or unnecessary information, 

isn’t there a danger that we burden the system? 

For example, I understand there are some 34,000 reports a year 

to the Coast Guard currently being filed and that enforcing this 

might result in thousands of additional reports of level exceedences 

from manure piles, which we would ascertain have little or no 

health effects. Would that be correct, Mr. Rey? 

Mr. REY. That would be correct. 

Mr. SHADEGG. Ms. Bodine? 

Ms. BODINE. Again it would depend on how many of those facilities were reporting, but yes, it is definitely a potential for many reports. And that is a cost to the government as well. Again the cost 

per notice to the government is about $40 per notice. 

Mr. SHADEGG. My last point is Ms. DeGette was also concerned 

that we would exempt these reports and that therefore we would 

not be forcing an emergency agency to respond. Nothing in the current law would force an agency to respond. If they get a report, as 

Ms. DeGette laid out, of an odor, they can call an agency, the local 

responder, local fire department, and say we have a toxic smell. In 

the presence of this report or the absence of this report, they have 

to make a decision whether to respond. If there were a report that 

said we filed a report, the odor came from manure, that might, in 

90 

fact, encourage them not to go respond because they are not worried about odor from manure piles. 

On the other hand, if they called and said you know there is no 

report that has been filed from this CAFO saying that they had an 

emission, they couldn’t rely on that as a reason not to respond because in point of fact, that might suggest there is even more danger. Am I not correct? Do you follow my point, Mr. Rey? 

Mr. REY. I think that is basically correct. 

Mr. SHADEGG. Maybe it was too complicated. The point is—— 

Mr. REY. No. 

Mr. SHADEGG [continuing]. If anything, a report that the odor is 

from a manure pile, I think is going to encourage at least a first 

responder type agency to say we are not going to go do that. We 

are not going to go look at the manure emission. Maybe that is Dr. 

Johnson’s problem, you know, and maybe he wants to know because maybe he wants to find out if there really are health effects. 

And it is not a problem that first responders, I would suggest, are 

going to run to. Dr. Johnson, you had—— 

Mr. JOHNSON. To add to that, I certainly—as an agency, when 

we do assessments, we value the information that the community 

needs to have to make their own decisions about their exposure 

and their health risks. So we would support those efforts to inform 

them. We don’t have a formal opinion about the specific regulations, but it is something we value a great deal. 

Mr. SHADEGG. Thank you very much. I yield back my time. 

Mr. GREEN. Ms. Mittal, do you have any quick response to the 

GAO? 

Ms. MITTAL. I do, sir. I continue to be concerned about how 

USDA mischaracterized the work that we did, and I want to put 

it on the record that we used USDA’s census of agriculture data 

when we determined the trends in CAFOs. USDA does not collect 

information on CAFOs. 

What they collect is information on large farms that raise animals, and we used that information. We worked with their analysts 

for over a year, and in the end we provided information that is a 

proxy for the number of CAFOs that are in the United States. 

There is no Federal database on CAFOs. 

Mr. GREEN. Thank you. Let me reiterate my unanimous consent 

request included earlier in the information we provided. 

Mr. SHADEGG. The only issue is the letter to which Ms. DeGette 

referred, which is the letter from Mr.—what is his name? 

VOICE. Gablehouse. 

Mr. SHADEGG. Right, National Association of SARA Title III Program Officials, a letter from Mr. Gablehouse. I have no problem 

putting that in the record. I am a little concerned that it is a part 

of all of the comments that were submitted in the record, and it 

seems to me if we put this document in the record—and I have no 

idea how those comments got—then maybe we are obligated to put 

in all of the comments, all the public comments in the record. If 

you will stipulate to that, that—— 

Mr. GREEN. Yes, just that letter is what I am requesting, not all 

the public comments. Ms. Bodine? 

Ms. BODINE. We received a lot of comments. That would be a lot 

of paper in your record. 

91 

Mr. GREEN. We don’t intend to put all the public comments in 

the record. 

Mr. SHADEGG. And I understand you don’t. You want to put in 

what you like. 

Mr. GREEN. Well, you can put in, and I will agree to put in what 

you like. 

Mr. SHADEGG. Well, why don’t we put in—why don’t we ask Ms. 

Bodine to write a summary of the comments and put that in the 

record so it tells us, you know—— 

Mr. GREEN. Okay, what I will do, you know, your statement is 

already in the record—— 

Ms. BODINE. Yes. 

Mr. GREEN. —the information. But if the second letter is a problem, we will pull that out, and I asked for the letter that both 

Chairman Dingell and Ms. Solis sent in the third and fourth and 

leave out the second. 

Mr. SHADEGG. I am proposing we put this in and that we put in 

a summary of the public comments from Ms. Bodine. 

Ms. BODINE. A response is also going to be extremely voluminous. If we could give your staff a list of comments and they could 

pick and choose. 

Mr. SHADEGG. Well, I will withdraw my objection. 

Mr. GREEN. Okay, no objection. I thank you, and the committee 

stands in recess. 

[Whereupon, at 12:37 p.m., the Subcommittee was adjourned.] 

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MARK JOHNSON, ANSWERS TO SUBMITTED QUESTIONS

QUESTION SUBMITTED BY HON. JOHN D. DINGELL

1. The Minnesota Department of Health (MDH) and the Minnesota Pollution Control Agency (MPCA) received complaints from citizens about odors 

and health effects believed to be related to hydrogen sulfide emission originating at the Excel Dairy, Thief River Falls, Minnesota. Self-reported 

health complaints include upper respiratory effects (such as nasal congestion and sore throats), itchy eyes, trouble breathing, nausea, and headaches. 

Are these health complaints consistent with Agency for Toxic Substances and Disease Registry’s findings for health effects of hydrogen sulfide in its Toxicological 

Profile for Hydrogen Sulfide and its Public Health Statement for Hydrogen Sulfide? 

ATSDR response: While these symptoms are not exclusive to hydrogen sulfide, 

these types of symptoms (i.e., irritation of mucous membranes, upper airway irritation) are characteristic of the effects of exposure to an irritant gas, such as hydrogen 

sulfide as addressed in ATSDR’s Toxicological Profile for Hydrogen Sulfide. ATSDR 

uses a weight of evidence approach in our health consultation that includes a review 

of the environmental sampling data and the reported health impacts to draw conclusions about health hazards. 

QUESTIONS SUBMITTED BY HON. JOE BARTON AND JOHN B. 

SHADEGG

1. In ATSDR’s September 19, 2008 letter to U.S. EPA and the Minnesota 

Pollution Control Agency, which you and one other person signed, three 

recommendations were made. First, Excel must engage in emissions control 

measures. Second, Minnesota and Excelshould coordinate on an air monitoring program - as part of Minnesota’s state airimplementation plan - to 

assure emissions control. Third, Execl should restrict access to lagoons 

trespassers and children living on-site of the dairy. No where, was there a 

comment that Excel needed to file EPCRA and CERCLA reporting with the 

National Response Center, or state and local emergency response planners? 

Why? 

ATSDR response: Since ATSDR and the Minnesota Department of Health are not 

regulatory agencies, we are not involved in evaluating the need to meet the legal 

requirements under EPCRA and CERCLA. Our health evaluation is independent of 

whether the emissions from Excel may have been determined to have triggered reporting requirements under those regulations. 

2. You testify that mUltiple pathways for release of contaminants from 

CAPOs, may expose people to these chemicals through inhalation of air or 

dust, direct contact with soil, ingestion of drinking water, or dermal contact with surface water. EPA is being accused of somehow trying to let polluters of the hook. However, EPA is testifying today that it is not proposing 

to diminish its ability to respond to these very threats. In light of the fact 

that Excel Dairy first came to Minnesota’s attention as a state and federal 

Clean Air Act law violator, rather than a CERCLA or EPCRA violator, is 

the Federal government loosing its ability to respond to these kinds of 

issues by removing a paperwork requirement? 

ATSDR response: It is ATSDR’s understanding that the reporting requirements 

under CERCLA and EPCRA are not based on predictions of human exposure levels 

or potential health impacts. While disclosure of CERCLA or EPCRA violations may 

be a factor to trigger further health evaluations, ATSDR does not use this regulatory criteria as the basis for determining whether there is or is not a public health 

hazard. 

3. Your testimony admits that ATSDR only performed an exposure investigation instead of monitoring people in the community. In addition, your 

testimony admits that you did not conduct a formal health study of persons 

living on or near the dairy. Simply’put, you base your assertions about the 

impacts of Excel’s emissions on the description of symptoms your testimony calls ′′not inconsistent′′ with known acute health affects as well as 

other assumptions that mayor may not be relevant - like cloud cover and 

temperature impacts on air deposits. In a court oflaw, this kind 

oftestimony would be inadmissible as hearsay. Why shouldn’t we assume 

that you made a leap from one cause to the other effect based solely on air 

level data rather than on hard evidence that ATSDR itself collected? 

218 

ATSDR response: The ATSDR Exposure Investigation based its conclusion that a 

public health hazard existed on our air sampling results. These results showed that 

potential hydrogen sulfide exposures to people living close to the Excel Dairy exceeded our acute screening value (70 ppb) and were in the range of concentrations that 

have been associated with health impacts reported in the scientific literature. These 

findings justified our conclusions and recommendations. We did include in the report the fact that community members self-reported symptoms that are consistent 

with hydrogen sulfide exposure. However, our report was not based on a scientific 

evaluation of health effects due to exposures from the dairy. Self-reported health 

complaints, while relevant to the overall situation, were not used as the basis of our 

conclusions. 

4. According to Minnesota Public Radio, one explanation for the high levels of hydrogen sulfide readings from based on a dispute between Excel 

Dairy and the Minnesota Pollution Control Agency in which the dairy 

claims the state is forcing repair work on one of its manure basins but 

won’t inspect it form compliance. In you opinion, is this a plausible explanation as to why the levels are as high? Doesn’t it seem logical that having 

properly managed manure system operating is the surest way to drive 

down emissions levels? 

ATSDR response: ATSDR does not have the information necessary to respond to 

these questions. While we understand that there is a disagreement between Excel 

and MPCA about what triggered the releases, we would agree that the solution is 

to use best management practices to control the emissions from the manure treatment system. 

5. Five studies -- (1) 2008 Texas A&M study of hydrogen sulfide emissions 

on 2,000 head open-lot dairy operation, (2) 2008 Texas A&M study of hydrogen sulfide emissions from a 18,000 head beef cattle lot, (3) 2002 Iowa Department of Natural Resources assessment of hydrogen sulfide at the 

state’s largest swine feeding operations, (4) 2004 Iowa State University 

study of downwind hydrogen sulfide emissions at six (6) swine finishing 

sites, and (5) 2004 American Society of Agricultural and Biology Engineers 

hydrogen sulfide study of a 50,000 beef feedlot - each showed that large 

livestock operations were not producing amounts of hydrogen sulfide in excess of state or Federal law or of regulatory The Honorable Joe Barton and 

John B. Shadegg (continued) concern. When you consider the range and 

the statistically higher amount of animals involved in the operations sampled for the five (5) studies cited, is it possible that Excel is an outlier or 

an example of poor practices in handling hydrogen sulfide rather than the 

norm? 

ATSDR response: We approached this assessment the same way we would for any 

other chemical emissions from an industrial source. As stated in our testimony, 

ATSDR has limited experience in the assessment of CAFOs. Therefore, we would 

not be able to draw conclusions as to how operations at the Excel Dairy compare 

to other CAFOs. 

6. You mention ′′restricting access′′ to Excel’s manure lagoons to prevent 

on-site children from getting close to them. Yet, this will not stop air emissions from reaching them. If you were to dispatch an emergency responder 

to Excel Dairy to address high levels of hydrogen sulfide on site, what specific thing should that responder do to eliminate the harmful impacts of 

elevated hydrogen sulfide levels for that child? 

ATSDR response: Our recommendation was for Excel to take action that would 

prevent children from accessing areas near the source of the emissions. If a hazardous condition were identified by an emergency responder, we would expect that 

the most appropriate action would be to relocate the child, or any other exposed individual, to an unimpacted area until the hazard was mitigated. 

7. ATSDR has been involved with assessments at four (4) other CAFOs 

and only a few of those had EPCRA implications. How much hard data 

does ATSDR have to makeunequivocally statements about CAFOs and 

EPCRA? 

ATSDR response: ATSDR has not made any statements regarding CAFOs and 

EPCRA. Our health assessments have evaluated available environmental data to 

determine whether a health hazard is present. 

8. To what extent do local common law nuisance actions resolve much of 

this or if we’ve gone totally Federal in this area? 

ATSDR response: This question requests information that is outside the scope of 

ATSDR’s investigation. 

9. Do you have any information you can share with our subcommittee regarding the relative volumes of manure livestock produce when compared 

219 

to the volume of sewage that is produced in our cities wastewater treatment facilities? 

ATSDR response: ATSDR does not collect or possess information regarding the 

volumes of livestock manure and human sewage produced in the United States. 

QUESTIONS SUBMITTED BY HON. BART STUPAK

1. In your testimony it was stated that hydrogen sulfide concentration in 

outdoor air reached 480 parts per billion (Ppb). At what level does the 

agency believe exposure poses a risk to human health? 

ATSDR does not have a bright line that defines a health hazard. We evaluate the 

data on a site-specific basis and apply a weight-of-evidence approach in drawing 

conclusions about the presence of a health hazard. This approach is intended to 

characterize actual exposures, which includes the consideration of factors such as 

the profile of chemical concentrations, the frequency and duration of exposure, and 

the presence of individuals who may be sensitive to the effects of that exposure. Our 

initial screening evaluation is a comparison to the ATSDR Minimal Risk Levels 

(MRLs). The acute MRL for short-term exposure (up to 14 days) is 70 ppb. The intermediate MRL for durations greater than 14 days is 20 ppb. The acute effects of 

exposure to hydrogen sulfide (i.e., irritation of upper respiratory system and mucous 

membranes) can be triggered within a few minutes of exposure. Our conclusion of 

a public health hazard was based on the magnitude and frequency of the exceedance 

of our health-based criteria, in comparison to health impact data in the scientific 

literature. 

2. Has the ATSDR issued sample data on what the hydrogen sulfide concentration level was measured at for its indoor monitors? 

ATSDR and the Minnesota Department of Health are preparing a Health Consultation report that will summarize all of the data that ATSDR collected during 

the exposure investigation, including the indoor sampling results, as well as other 

environmental sampling data collected by the Minnesota Pollution Control Agency 

(MPCA). ATSDR will provide the Committee with a copy of that document. 

3. Does ATSDR have any ideas on what the sources of hydrogen sulfide 

were in regards to Excel Dairy? 

ATSDR did not have access to the Excel Dairy property to perform an independent evaluation of the specific areas of hydrogen sulfide emissions. However, we 

know that hydrogen sulfide gas is generated under anaerobic conditions. It was reported to us by MPCA that one of the lagoons was highly anaerobic and did not 

have an adequate ′′crust′′ to prevent air releases. Therefore, this lagoon was likely 

to be a significant source of emissions. 

4. What actions need to be taken by EPA and Excel Dairy to reduce the 

exposure of Hydrogen Sulfide? 

ATSDR is a public health agency that advises EPA, other regulatory agencies, and 

facility owners about health concerns associated with exposure to environmental 

contaminants. Our recommendation was to take actions that would result in a reduction in community exposures to emissions from Excel Dairy. We would rely on 

EPA, MPCA, and Excel Dairy to utilize their technical expertise and authorities to 

develop and implement a strategy that would define the specific actions needed to 

achieve that goal. 

STATEMENT OF HON. JOHN D. DINGELL

Mr. Chairman, I commend you and thank you for holding this hearing. On March 

18, I wrote the Environmental Protection Agency (EPA) about the proposed reporting exemption for air releases from farms that, among other things, would deprive 

local emergency responders and communities of knowledge of significant releases of 

ammonia and hydrogen sulfide from large industrialized animal feeding operations. 

At that time, I indicated that the proposed exemption appeared to be ill-considered 

and contrary to the public interest. Today, after reviewing the Government Accountability Office’s (GAO) report and the comments EPA received from the national association representing Local Emergency Planning Committees and State Emergency 

Response Commissions, I can say with certainty that the Bush Administration’s 

plan to exempt industrial-sized animal feeding operations from air emissions reporting requirements is nothing more than a favor to Big Agribusiness at the expense 

of the public health and communities living near these facilities. 

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porate concentrated animal feeding operations. The answer from EPA was that ′′the 

Agency’s basis or rationale for proposing the exemption is not dependent on the size 

of the farm.′′ EPA also informed me that it was not aware of any small farm operations that have triggered the reporting requirements for ammonia and hydrogen 

sulfide. 

Clearly, EPA is not concerned about small farms that most likely would not have 

releases of ammonia or hydrogen sulfide above the reportable quantity limit anyway. This exemption from long-standing regulations is clearly designed for big industrialized animal feeding operations such as the ones identified by GAO that 

produce more manure annually than the sanitary waste produced by cities like 

Philadelphia and Houston. 

EPA, in its own risk assessment for CAFO’s in March 2004, stated that ′′a dairy 

CAFO with 1,000 animal units is equivalent to a city of 164,500 people.′′ We should 

keep in mind that human waste is treated before discharge into the environment, 

but animal waste is either not treated at all or minimally treated by virtue of the 

storage methods used before disposal. 

As its rationale for the exemption, EPA has taken the position that it could not 

foresee any response action being taken as a result of a notification of a release of 

ammonia or hydrogen sulfide above 100 lbs/day and that requiring monitoring or 

recommendations to local officials regarding evacuations and shelter-in-place would 

not be a necessary or an appropriate response to the release of hazardous substances to the air from animal waste at farms. 

The public evacuation of residents living near Excel Dairy in Minnesota this summer due to hydrogen sulfide releases entirely undermines EPA’s rationale for the 

exemption. Further, the national association representing State Emergency Response Commissions and the Local Emergency Planning Committees told EPA in 

March that the proposed exemption ′′endangers responders and the public by denying them information they would use to protect themselves from hazardous chemical 

releases.′′ 

We should let the first responders on the ground make the judgment whether a 

response is necessary after a notification is filed -- not political officials sitting in 

Washington who want to do favors for Big-Agribusiness. 

I look forward to the testimony of our witnesses. 

STATEMENT OF HON. JOE BARTON

Mr. Chairman, thank you for recognizing me for the purposes of an opening statement and let me congratulate you for an exceptionally informative and educational 

hearing on carbon capture and sequestration. I hope this hearing will be equally enlightening. 

As I listen to the testimony and analyze the issue before us today, the most important thing to me is not whether we have multiple laws and regulations covering 

a specific area, but that the law we have works and helps protect people. We need 

to ensure that the target audience that the law is addressing is not confused or unnecessarily burdened with activities that sideline their efforts, especially when certain requirements make busy work for bureaucrats and do not enhance the ability 

to respond to or contain these releases. 

I think we all agree that the intention of EPCRA is to have communities ready 

to respond and abate environmental releases of hazardous substances. However, it’s 

equally important that we understand who the primary audience is that these laws 

speak to and that is the state and local emergency planning commissions. We must 

make sure these folks have practical information to know what is on site so they 

have a plan to handle an unplanned, finite release of a hazardous substance. 

I applaud EPA for taking the very narrow and targeted steps that it has in its 

rulemaking to lift a CERCLA and EPCRA administrative reporting requirement 

from livestock farms whose source of hazardous air emissions - as defined in law 

- is solely from animal waste at that farm. This proposal does not alter, affect or 

diminish U.S. EPA’s authorities to respond to hazardous substances, cleanup or 

compel cleanup of hazardous waste sites, relieve anyone of liability for environmental damage caused by these releases, or change any other provisions of the 

CERCLA or EPCRA. 

I understand that GAO is going to argue that well-managed manure on a farm 

is not a threat to the environment or public health and poorly managed manure is 

a problem EPA’s proposed rule allows it to combat. In fact, I am not aware of a single CERCLA or EPCRA enforcement case against a farm where some other environmental violation was not implicated - whether the Solid Waste Disposal Act, the 

Clean Water Act, or the Clean Air Act. This includes Excel Dairy, for which EPA 

221 

filed a Notice of Violation under the Clean Air Act long before EPCRA and CERCLA 

reporting issues were raised. 

I know some of my colleagues think that we should not be absolving farms of a 

paperwork requirement whose burden, in this circumstance, does nothing to clean 

the environment or improve public health. I only ask them to consider to what end 

this report is necessary? 

First, the National Response Center, who is charged with taking these phone 

calls, already fields more than 33,000 calls per year for releases in which there is 

a defined way to abate the threat - or more than 92 calls per day. If you add large 

livestock operations on the assumption that they have lots of manure and flatulence 

- this call center would be getting more than 8,000 calls per day. Second, once it 

gets these calls -- or the local or State emergency planning official receives the repeated filings, they have to consider how to respond. I am an engineer, but short 

of outsourcing our milk and meat to others, I have no idea what the proper remedy 

is for removing the smell of livestock flatulence from the open atmosphere. As I said 

at our November 2005 hearing on this subject, folks don’t need to phone call or a 

stack of forms to know that livestock eat and create wastes, all they need is their 

nose. 

I want rural America to be more than just a good place to live. I want it to be 

a good place to make a living. I understand that there are serious health issues involved when bad actors are allowed to free-lance. I want to hear from our witnesses 

what gaps in public health protection exist if the EPA proposal is adopted. We must 

make sure that our environment is safe and clean and that our businesses are good 

neighbors to each other. But, as we heard in our first subcommittee hearing this 

Congress, we should also use common sense with our programs and make decisions 

that achieve results, not just squander public resources in the name-only of the 

public’s good. 

I want to thank the witnesses for coming to testify today and yield back my time. 

STATEMENT OF HON. BART STUPAK

Thank you, Chairman Green, for holding this hearing on the Environmental Protection Agency’s (EPA) proposed reporting exemption for air releases of hazardous 

substances, including ammonia and hydrogen sulfide, from animal waste. 

This proposed rule has raised a number of concerns in regards to whether the proposed exemption would significantly weaken the EPA’s capability to enforce effective 

air quality standards for Concentrated Animal Feeding Operations (CAFO). 

In addition, the Government Accountability Office report issued to the Committee 

for this hearing, states ′′no federal agency collects consistent, reliable data on 

CAFOs.′′ 

Before the EPA moves forward on a proposed exemption for reporting, it is important that this issue of consistent reliable data gathering is resolved first. 

The regulatory authorities must work with accurate and up to date information. 

That way, should we consider exemptions to reduce the burdens of compliance, we 

know exactly what the implications can be. 

In addition, consistent and reliable data made available to the public will provide 

them the tools they need to stay informed about potential public health safety risks. 

I look forward to learning how the EPA arrived at its 2007 proposed rulemaking 

on exemptions for air releases of hazardous substances from animal waste under the 

Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA) and the Emergency Planning and Community Right-to-Know Act 

(EPCRA). 

I understand the need to ensure regulations are flexible for small businesses. 

Often regulations enacted here in DC need to be modified after implementation to 

address the unique needs of rural communities like those in Northern Michigan. 

However, the proposed rule making is much broader in its scope. It appears that 

the EPA is seeking to exempt the industry from compliance before it actually has 

to comply. 

What methodology did the agency use when crafting this rulemaking? What 

thresholds were met for the agency to consider exemptions? 

Exempting any industry from reporting the release of any hazardous substance 

that is a human toxin sets a precedent. While this hearing is focused on reporting 

requirements for air quality, I am personally concerned on what the future may 

hold for reporting requirements with water quality. 

Strict water quality regulations and reporting requirements are essential to maintaining the health of the Great Lakes. 

222 

I am also concerned with the timing of finalizing this proposed rulemaking being 

as how we are nearing the end of this Administration’s term. 

Chairman Green, thank you again for holding today’s hearing. I look forward to 

learning more about the EPA’s proposal. 

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