SUPERFUND LAWS AND ANIMAL AGRICULTURE

HEARING

BEFORE THE

SUBCOMMITTEE ON 

SUBCOMMITTEE ON ENVIRONMENT AND 

HAZARDOUS MATERIALS

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

NOVEMBER 16, 2005

Serial No. 109–72

Printed for the use of the Committee on Energy and Commerce

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

SUPERFUND LAWS AND ANIMAL AGRICULTURE

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SUPERFUND LAWS AND ANIMAL AGRICULTURE

HEARING

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND 

HAZARDOUS MATERIALS

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

NOVEMBER 16, 2005

Serial No. 109–72

Printed for the use of the Committee on Energy and Commerce

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

(II)

COMMITTEE ON ENERGY AND COMMERCE

JOE BARTON, Texas, Chairman 

RALPH M. HALL, Texas 

MICHAEL BILIRAKIS, Florida 

Vice Chairman 

FRED UPTON, Michigan 

CLIFF STEARNS, Florida 

PAUL E. GILLMOR, Ohio 

NATHAN DEAL, Georgia 

ED WHITFIELD, Kentucky 

CHARLIE NORWOOD, Georgia 

BARBARA CUBIN, Wyoming 

JOHN SHIMKUS, Illinois 

HEATHER WILSON, New Mexico 

JOHN B. SHADEGG, Arizona 

CHARLES W. ‘‘CHIP’’ PICKERING, 

Mississippi, Vice Chairman 

VITO FOSSELLA, New York 

ROY BLUNT, Missouri 

STEVE BUYER, Indiana 

GEORGE RADANOVICH, California 

CHARLES F. BASS, New Hampshire 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE FERGUSON, New Jersey 

MIKE ROGERS, Michigan 

C.L. ‘‘BUTCH’’ OTTER, Idaho 

SUE MYRICK, North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

JOHN D. DINGELL, Michigan 

Ranking Member 

HENRY A. WAXMAN, California 

EDWARD J. MARKEY, Massachusetts 

RICK BOUCHER, Virginia 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, Jr., New Jersey 

SHERROD BROWN, Ohio 

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 

TED STRICKLAND, Ohio 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MIKE DOYLE, Pennsylvania 

TOM ALLEN, Maine 

JIM DAVIS, Florida 

JAN SCHAKOWSKY, Illinois 

HILDA L. SOLIS, California 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

BUD ALBRIGHT, Staff Director 

DAVID CAVICKE, Deputy Staff Director and General Counsel 

REID P.F. STUNTZ, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS

PAUL E. GILLMOR, Ohio, Chairman 

RALPH M. HALL, Texas 

NATHAN DEAL, Georgia 

HEATHER WILSON, New Mexico 

JOHN B. SHADEGG, Arizona 

VITO FOSSELLA, New York 

CHARLES F. BASS, New Hampshire 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO, California 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

C.L. ‘‘BUTCH’’ OTTER, Idaho 

SUE MYRICK North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

JOE BARTON, Texas, 

(Ex Officio) 

HILDA L. SOLIS, California 

Ranking Member 

FRANK PALLONE, Jr., New Jersey 

BART STUPAK, Michigan 

ALBERT R. WYNN, Maryland 

LOIS CAPPS, California 

MIKE DOYLE, Pennsylvania 

TOM ALLEN, Maine 

JAN SCHAKOWSKY, Illinois 

JAY INSLEE, Washington 

GENE GREEN, Texas 

CHARLES A. GONZALEZ, Texas 

TAMMMY BALDWIN, Wisconsin 

JOHN D. DINGELL, Michigan, 

(Ex Officio) 

(III)

C O N T E N T S 

Page

Testimony of: 

Breen, Barry, Deputy Assistant Administrator, Office of Solid Waste and 

Emergency Response, Environmental Protection Agency ......................... 16

Burch, Kelly Hunter, Chief of Environmental Protection Unit and Assistant Attorney General, Office of the Oklahoma Attorney General ............ 29

Connery, Robert T., Partner, Holland and Hart, on behalf of National 

Cattlemen’s Beef Association ....................................................................... 99

Kouplen, Steven, President, Oklahoma Farm Bureau .................................. 74

Lawrence, Robert S., Associate Dean for Professional Practice and Programs, and Edith Schoenrich, Professor of Preventive Medicine, Johns 

Hopkins Bloomberg School of Public Health Policy ................................... 120

Merkel, Michele M., Senior Counsel, Environmental Integrity Project ....... 128

Starkey, John, Vice President, Environmental Programs, U.S. Poultry 

and Egg Association ...................................................................................... 107

Stem, Wiley, III, Assistant City Manager, City of Waco ............................... 66

Weaver, Leon D., Managing Member, Bridgewater Dairy, Managing Partner, Bridgewater Farming, on behalf of Continental Dairy Products, 

Inc., and Select Milk Producers, Inc ............................................................ 113

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

Breen, Barry: 

Written response to questions from Hon. Paul E. Gillmor ........................... 143

Written response to questions from Hon. Heather Wilson ........................... 150

Written response to questions from Hon. John Sullivan .............................. 152

Written response to questions from Hon. Charles F. Bass ........................... 153

Written response to questions from Hon. Ralph M. Hall .............................. 154

Written response to questions from Hon. John D. Dingell and Hon. Hilda 

L. Solis ........................................................................................................... 155

Burch, Kelly Hunter: 

Written response to questions from Hon. Paul E. Gillmor ........................... 184

Written response to questions from Hon. John Sullivan .............................. 193

Written response to questions from Hon. Charles F. Bass ........................... 198

Written response to questions from Hon. John D. Dingell and Hon. Hilda 

L. Solis ........................................................................................................... 200

Updated and additional information on Arkansas’ Nutrient Management Regulations ................................................................................................................. 206

Connery, Robert T.: 

Written response to questions from Hon. Paul E. Gillmor ........................... 208

Written response to questions from Hon. Heather Wilson ........................... 222 

Written response to questions from Hon. Charles F. Bass ........................... 230

Written response to questions from Hon. John D. Dingell and Hon. Hilda 

L. Solis ........................................................................................................... 231

Kouplen, Steven: 

Written response to questions from Hon. Paul E. Gillmor ........................... 236

Written response to questions from Hon. John Sullivan .............................. 240

Written response to questions from Hon. Charles F. Bass ........................... 241

Written response to questions from Hon. John D. Dingell and Hon. Hilda 

L. Solis ........................................................................................................... 242

Lawrence, Robert S.: 

Written response to questions from Hon. Paul E. Gillmor ........................... 247

Written response to questions from Hon. Heather Wilson ........................... 249

Written response to questions from Hon. Ralph M. Hall .............................. 250

Page

IV

Lawrence, Robert S.—Continued

Written response to questions from Hon. John D. Dingell and Hon. Hilda 

L. Solis ........................................................................................................... 254

Merkel, Michele M.: 

Written response to questions from Hon. Paul E. Gillmor ........................... 257

Written response to questions from Hon. Charles F. Bass ........................... 260

Written response to questions from Hon. Ralph M. Hall .............................. 262

Written response to questions from Hon. John D. Dingell and Hon. Hilda 

L. Solis ........................................................................................................... 265

Starkey, John: 

Written response to questions from Hon. Paul E. Gillmor ........................... 269

Written response to questions from Hon. John D. Dingell and Hon. Hilda 

L. Solis ........................................................................................................... 274

Written response to questions from Hon. Charles F. Bass ........................... 278

Stem, Wiley: 

Written response to questions from Hon. Paul E. Gillmor ........................... 280

Written response to questions from Hon. Ralph M. Hall .............................. 288

Weaver, Leon D.: 

Written response to questions from Hon. Paul E. Gillmor ........................... 294

Written response to questions from Hon. Charles F. Bass ........................... 298

Written response to questions from Hon. John D. Dingell and Hon. Hilda 

L. Solis ........................................................................................................... 300

City of Tulsa v. Tyson Foods, Inc. and court orders ............................................. 302

(1)

SUPERFUND LAWS AND ANIMAL 

AGRICULTURE 

WEDNESDAY, NOVEMBER 16, 2005

HOUSE OF REPRESENTATIVES, COMMITTEE ON ENERGY AND COMMERCE, SUBCOMMITTEE ON ENVIRONMENT

AND HAZARDOUS MATERIALS, Washington, DC. 

The subcommittee met, pursuant to notice, at 2:13 p.m., at 2322 

Rayburn House Office Building, Hon. Paul Gillmor (chairman) presiding. 

Members present: Representatives Gillmor, Hall, Deal, Wilson, 

Bass, Otter, Sullivan, Murphy, Barton (ex officio), Solis, Pallone, 

Stupak, Inslee, Baldwin, and Dingell (ex officio). 

Also present: Representative Osborne. 

Staff present: Tom Hassenboehler, majority counsel; Jerry Couri, 

policy coordinator; Peter Kielty, legislative clerk; Dick Frandsen, 

minority senior counsel; and Lorie Schmidt, minority counsel. 

Mr. GILLMOR. The Committee will come to order. And, first, I 

would like to apologize for starting the committee late, which I 

hate to do, but I am also on the Financial Services Committee and 

we are dealing with a regulatory relief bill, a mark-up, today, and 

they had an amendment in which I was involved. And so we had 

to dispose of that first and that is done, so we should be okay. I 

would like to request unanimous consent for Congressman Tom 

Osborne, who is not a member of the committee, to sit on the dais 

for this hearing to observe. Is there objection? Chair hearing none, 

it is awarded. 

In his first message to Congress on December 8, 1801, the noted 

farmer, philosopher, and American statesman, and was President 

Thomas Jefferson, called agriculture one of the four pillars of our 

prosperity. And today’s hearing goes to the heart of Jefferson’s 

comments. We are focusing on an issue that is increasingly drawing farmers out of their barns and fields and into courtrooms based 

on a new theory of liability, of obligation, and recovery under 

Superfund, and the Superfund Amendments and Reauthorization 

Act of 1986. Specifically, the notion is whether the manure and 

flatulence of their livestock constitute Superfund-caliber pollutants 

or contaminants, and whether their production is legally defined 

release under the Law. And on top of that, if it is, should the U.S. 

Government be using Superfund Law to monitor this activity on 

farms. As I understand it, some of these questions are currently 

being litigated in our courts in Oklahoma and in Texas, and, in 

fact, there has been a slight up-check in the number of notices anVerDate 0ct 09 2002 15:16 Jun 12, 2006 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 F:\DOCS\27001.TXT HCOM1 PsN: JOEP
2

nouncing the intent to sue livestock manufacturers under this theory of recovery. 

Now, I grew up in rural Ohio and I grew up around farms, and 

I certainly have the greatest respect for the hours and hard work 

that America’s farmers put in, In fact, many of my family has been 

involved in farming, and some of my cousins are still actively engaged in farming. I think people sometimes forget that milk and 

beef do not just appear at the grocery store or the corner restaurant, and they sometimes forget that it has to come from a 

farmer somewhere. And U.S. producers are the envy of the world 

with the way that they ensure the safest, the least costly, and the 

most abundant food supply in the world. 

But I also know that production agriculture is no longer just a 

world of small family farms of times gone by. Consumer demands, 

market pressures, have forced major consolidations in agriculture, 

including the creation of many very large farms—in fact, in some 

areas, becoming more the norm than the exception. Which brings 

me to the focus and the point of this hearing: do livestock farms 

become Superfund sites by virtue of the biological processes of their 

animals, and are these processes already adequately regulated. 

Now, I think there are some people who may want to have this 

hearing veer off in certain areas—other areas, but I want to make 

it clear, even though we may be talking about chickens, this hearing has absolutely, flatly nothing to do with avian flu or any other 

kinds of disease. This is an environmental and emissions hearing. 

But I do want people to consider another point: if you support 

using organic farming practices instead of the ones that are driven 

by chemicals—which, in fact, are currently exempt from Superfund 

liability, would you want the same Superfund reporting and liability issues to attach themselves to manure in our organic farm fields 

in the same way that they are now causing problems for some livestock producers around the country? And while I am certainly willing to see some help extended to farmers for manure, I don’t believe that the industry should automatically get a blanket pass 

from Superfund. The Law is so focused on contaminants and their 

levels of concentration, not on industries, and no agricultural producers who has activities levels equal to or greater than a large industrial facility should be given an exemption simply by virtue of 

the identity of the work. 

Now, I also want to thank our witnesses on this panel and the 

next panel for being here today. Particularly, I want to thank, on 

the next panel, my constituent Leon Weaver from Williams County 

for being here and giving us his wisdom on this issue. Also, I want 

to mention that the subcommittee is acutely aware of interest by 

farm groups and environmental issues that are, in fact, under the 

jurisdiction of the House Energy and Commerce Committee, and 

we hope the farm groups will not be reluctant to engage our Committee in considering legislative action on this items, and with the 

reauthorization of the Farm Bill in the offing, we especially hope 

that we can have a collaborative rather than a confrontational position fostered as we move forward. 

And now I yield 5 minutes to the gentlelady from California, 

Ranking Member Solis. 

3

Ms. SOLIS. Mr. Chairman, if I could, I would like to recognize our 

ranking member on the Energy and Commerce Committee, and 

that is Congressman Dingell. 

Mr. DINGELL. Mr. Chairman, the gentlewoman is most gracious. 

I will wait my turn. Thank you. 

Ms. SOLIS. Thank you. Thank you, Mr. Chairman, and good 

afternoon to the witnesses and to those in attendance. I appreciate 

this hearing being held today on the Superfund Laws and Animal 

Agriculture. I want to also thank those witnesses that have come 

far to testify today. 

As a result of recent lawsuits, we are having this hearing to discuss environmental and public health impacts of proposals that 

would change our Superfund laws as they apply to the agricultural 

industry. Over the years, the livestock and agriculture industry has 

changed dramatically. Large livestock farms have steadily been replacing smaller family run farms. CAFOs are large super-sized factory farms that raise livestock, cattle, hogs or chickens in large 

numbers, in up to hundreds of thousands, often in crowded warehouses and like spaces. Because of patchwork regulation over these 

facilities, it is uncertain how many actually exist in my State of 

California. However, we do know that there are about 1.3 million 

cows. 

California is the No. 1 milk producer of the Nation, producing 1 

of every 5 gallons of milk consumed in the United States. California’s Center Valley is home to approximately 1,600 of the State’s 

2,400 dairies. Its 891,000 cows create as much waste as 21 million 

people, over 60 percent of California’s population. And as a result, 

California’s Central Valley is suffering severe surface and groundwater pollution from dairies. Pollution in the Central Valley affects 

much of the rest of the State because its rivers provide drinking 

water for cities nearby and as far south as Los Angeles. More than 

10,000 square miles of aquifers in California are polluted with nitrates, and cow waste is a major source of pollution. 

While the production of animal waste is natural, manure and 

other components of animal waste can pose substantial risk to the 

health and safety of the American public and the environment. Industrial farms, as we know, generate 500 million gallons of manure 

waste each year. This is three times the amount of waste the 

human population of the U.S. Nitrogen and phosphorous are the 

primary pollutants associated with animal waste. There are over 

150 pathogens in livestock manure, including E. coli and salmonella, which can result in infections of the skin, ears, eyes, nose, 

and throat. We know animal waste submits toxic odors, gasses 

such as sulfide and ammonia, and animal waste contaminates surface water and groundwater. 29 States have linked ground water 

contamination to CAFOs. 

Pollutants in animal waste also affect human beings. A variety 

of health problems faced by neighbors of huge industrial farms 

have been linked to the vast amounts of concentrated animal 

waste. People living near factory farms say their sickness rolls in 

the wind. Odor and gasses from factory farms are making people 

sick and destroying property values. It brings headaches that do 

not go away, and trips to the emergency room for children whose 

lungs suddenly close up. Large poultry industry farms have been 

4

linked with the spread of the bird flu. The bird flu in Indonesia 

originated in large commercial poultry farms. This is something we 

need to monitor in factory farms in this country. 

And in North Carolina, recent studies have found that hog farms 

in recent years that are concentrated in the eastern North Carolina, a relatively poor region of the State with a large rural African 

American population. This has led to a growing concern that the 

environmental health impacts of factory farms are disproportionately borne by poor, low-income, and minority communities. 

For these reasons, I am very concerned about the efforts to exempt CAFOs from the Superfund and the Emergency Planning and 

the Community Right-to-Know Act. Under Superfund and the Community Right-to-Know Act, livestock operations are required to notify Federal, state, and local agencies of releases of 100 pounds per 

day of ammonia and hydrogen-sulfide. Ammonia and hydrogen-sulfide are two toxic substances routinely released by large livestock 

operations. This reporting requirement provides local, state, and 

Federal agencies with critical information about potentially dangerous releases that affect our communities. 

States who respond to the release of hazardous substances have 

a mechanism under Superfund to recover their response costs. Attempts to exempt livestock operators from CERCLA and EPCRA 

will undermine current legal authority to protect our communities. 

I urge my colleagues not to weaken and waive, or roll back, Federal 

public health and environmental protections. And I look forward to 

hearing from our witnesses today. Yield back the balance. 

Mr. GILLMOR. Gentlelady yields back. The gentleman from Texas, 

Mr. Hall. 

Mr. HALL. Mr. Chairman, I also thank you for holding the hearing on this very important issue. It is an issue that absolutely 

threatens the United States agricultural industry. It is—agriculture, as all of us know, is an industry that is currently regulated 

by the Clean Water Act, the Clean Air Act, and State laws. It is 

important that we not place another unnecessary burden on this 

group by subjecting them to regulation and reporting requirements 

under a law that was never, never, ever intended to address their 

industry. 

Today, along with Representative Roy Blunt and numerous other 

colleagues from both sides of the aisle, we are introducing legislation that would clarify Congressional intent, and what that intent 

was when we passed Superfund laws. Chairman Dingell and several others were here at that time. I certainly was here when those 

laws were passed, and we know that this legislation that we are 

introducing today will define manure and ensures that the agricultural industry will not be subjected to regulation under Superfund 

laws, namely the Comprehensive Environmental Response Compensation and Liability Act of 1980, and/or the Emergency Planning and Community Right-to-Know Act. It does not change current law, and does not compromise the Clean Air Act and Clean 

Water Act which regulate agriculture. 

It is my hope that in holding a hearing on this issue, we will be 

able to develop an equitable compromise to protect agriculture. 

This hearing gives us an opportunity to hear from experts in the 

industry about the threats to the agricultural industry in this reVerDate 0ct 09 2002 15:16 Jun 12, 2006 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 F:\DOCS\27001.TXT HCOM1 PsN: JOEP
5

gard, and suggestions for clarification of the intent of the law. It 

will also give us an opportunity to have the proper entity from Congress protect the people. 

Mr. Chairman, I thank you again for scheduling this hearing, 

and I thank our panelists for being here today, and I thank you 

very much, sir, Mr. Breen. 

Mr. GILLMOR. The gentleman from Michigan, the distinguished 

ranking member. 

Mr. DINGELL. Mr. Chairman, you are most kind. I commend you 

and I thank you for holding this hearing. Mr. Chairman, there 

have been efforts recently to circumvent the expertise and jurisdiction of this Committee and of this distinguished subcommittee. And 

through inserting language in the Agriculture Appropriations Conference Report, which raised the issue of exempting large consecrated animal feed operations, or CAFOs as they are called, from 

the Superfund statute and the Emergency Planning and Community Right-to-Know Act (EPCRA), it is important that we get the 

accurate facts before the subcommittee before the Congress about 

these two statutes and the issues that they present to family farms 

as opposed to large industrialized CAFOs. 

I chaired the Conference Committee in 1986 that authorized the 

Superfund program and the Superfund amendments and Reauthorization Act of 1986, and I do not recall any discussion or attempt 

or intent to exempt manure from the definition of hazardous substances or pollutants or contaminants. Nor does the Conference Report discuss a manure exemption from the definition of hazardous 

substances. I would note that petroleum and natural gas are excluded in the definition of hazardous substances in those statutes. 

Congress knew how to create exclusions, and it is erroneous to say 

that the Congress intended to do so for manure. The statute does 

not include—rather, it does not exclude the normal application of 

fertilizer from the Superfund definition of release. 

There is also legislative history stating the term normal field application means the act of putting fertilizer on crop or cropland and 

does not mean any dumping, spilling, or emitting, whether accidental or intentional, in any other place, or significantly greater 

concentrations or amounts than are beneficial to crops. The determination of what is normal appears to be a fact-specific decision 

based on the circumstances of the application, and I think it is 

something into which we could well go at this particular time. 

Further, there is a defense to liability if the release is federally 

permitted release, such as permitted release under the Clean 

Water Act. Congress thus created a number of specific defenses to 

liability for agricultural operations in the Superfund statute. On a 

broader level, we can find only three cases where the response authorities of Superfund have attempted to be used with respect to 

agricultural operations. In two cases, the matters involved city governments—Waco, Texas, and Tulsa, Oklahoma—which brought actions to protect drinking water supplies from phosphorous pollutions related to dairy and poultry operations. The third case is an 

action by the State of Oklahoma for recovery of costs and natural 

resource damages in the Illinois River Watershed alleging injury 

and destruction of fish, wildlife, bio to groundwater and drinking 

water supplies from improper poultry waste disposal practices. We 

6

should also recognize that there is no citizen suit provision to enforce the response authorities’ natural resource damages or injunctive relief authorities of the statute. In addition, no civil penalties 

can be assessed since the core provisions of Superfund are remedial, not regulatory, in statute. 

There is, however, one reporting requirement in Section 103 of 

Superfund, and a similar reporting requirement in EPCRA, for releases of hazardous and extremely hazardous substances above reportable quantities established by EPA. Here, again, we can find 

only a handful of cases for failure to report releases of ammonia or 

hydrogen-sulfide above the reportable quantity of 100 pounds a 

day. I would note that some definition of this might be in order, 

and we might very well make inquiry into that matter in this particular hearing. I would note that the statute authorizes civil penalties, but no civil penalties were assessed for the Superfund or 

EPCRA reporting violations in these cases. 

I am interested in whether the reportable quantity limits would 

have a burdensome effect on family farms. What is the size of herd 

or flock that would likely trigger the reporting requirements for 

ammonia and hydrogen-sulfide as I mentioned earlier? Is EPA, 

which has administrative authority to adjust them, considering 

guidance to family farms to lessen anxieties that may have been 

created, or is EPA already considering adjustments to the reportable quantity limit? I look forward to hearing from them on this 

point. 

Finally, Mr. Chairman, although you did not want this hearing 

to explore this issue, this Committee, which has jurisdiction over 

public health, should examine the impact, if any, of large industrial-sized poultry CAFOs and the proximity of poultry CAFOs to 

industrial-sized hog farms on the spread of infectious diseases, including avian flu. 

Mr. Chairman, I thank you, and I look forward to the testimony 

of the witnesses. 

Mr. GILLMOR. Thank you. The gentlelady from New Mexico, Ms. 

Wilson. 

Ms. WILSON. Thank you, Mr. Chairman. I came early because I 

was looking forward to a few laughs from Ralph Hall’s opening 

statement, and I was amazed that he was so restrained, my colleague from Texas. 

The livestock industry is a very important part of——

Mr. GILLMOR. Do you want him to start again? 

Ms. WILSON. The livestock industry is a very important part of 

New Mexico’s economy, and there are nearly 200 dairy farms in 

New Mexico. Most folks are surprised that New Mexico is such a 

dairy state. I think we just recently passed Texas as the No. 8 

dairy producer in the Nation. Those dairies employ about 3,000 

people in our State, and they have—and we have the largest average herd size in the Nation, between 1,600 and 1,700 average size 

of a herd. And the interesting thing is that not one of them is corporate-owned. They are all owned by families, many of them several generations. It is about a $1.6 billion industry in New Mexico, and there are 

about almost 200 concentrated animal feeding operations in my 

State as well. These cattle operations and dairy farms are already 

7

regulated, both federally and by our State. And, in fact, in New 

Mexico, the State regulation seems to be pretty good. The dairy 

farmers and the cattlemen from my State are not asking to be exempt from regulation. They are just asking Congress to clarify that 

a dairy farm is not a Superfund. There is a significant difference, 

and it wasn’t intended to apply to animal agriculture. 

I think we also have the potential where, unless we act, we are 

going to have judges and courts deciding—or trying to decide—

what it was that the Congress intended when we passed the Superfund law, and we should just be clear up front, rather than having 

our dairy farmers and cattle operators fighting in court over what 

we thought we meant a whole long time ago. So rather than spending—have our folks spend a whole lot of money with litigation 

costs, we should just clarify this, and continue to regulate these operations under the Clean Water Act, the Clean Air Act, and State 

laws to protect the environment, not try to deal with the problem 

by redefining a set of statutes—the Superfund—that really wasn’t 

intended for this purpose. 

And I thank the Chairman for holding this hearing today, and 

I look forward to working with him. Thank you, Mr. Chairman. 

Mr. GILLMOR. Thank you. The gentleman from New Jersey, Senator Pallone. 

Mr. PALLONE. What did you just say? Senator Pallone—oh, 

please. 

Mr. GILLMOR. Mr. Pallone Mr. PALLONE. God, the abuse. That is 

all right. Thank you, Mr. Chairman. I am glad that you called this 

hearing so we can publicly discuss an issue that, so far, has been 

the subject of under-the-radar attempts to undermine critical environmental protections. It is important that we examine how 

CERCLA and EPCRA may apply to large industrial agricultural 

operations. I come from a State where we know well the consequences of toxic pollution. New Jersey has the dubious distinction of being home to more Superfund sites than any other State, 

and my constituents health continues to be threatened by serious 

contamination. 

It is my understanding that many of these mega-farms more 

closely resemble industrial operations than family farms, and can 

often create industrial levels of pollution. And that is why I don’t 

take lightly any efforts to change CERCLA or EPCRA, two laws 

that are critical for protecting our citizens’ health. EPCRA ensures 

that the public has access to information about large releases of 

toxic chemicals, and it is always disconcerting to hear of attempts 

to hide this sort of information from the public. CERCLA, for its 

part established a principle that polluters, not taxpayers, should 

pay to clean up our Nation’s most seriously contaminated sites. In 

instances where vast quantities of manure have contaminated waterways and caused taxpayers to pay for expensive cleanups, I 

think there is a legitimate interest to consider pursuing reimbursement from the polluters. 

It is also important to point out that CERCLA does not allow for 

incessant citizen lawsuits or impose undue regulatory burdens on 

farms. Citizens can only sue to recover cleanup costs, and only if 

the response action was done in accordance with the EPA’s national contingency plan. Injunctive relief is only available to the 

8

President, and natural resource damage suits are only available to 

State or Federal trustees. 

I look forward to hearing from the witnesses further about this 

issue. But since we have brought up the topic of Superfund, I 

would like to take this opportunity to suggest to the Chairman that 

there is another pressing, and related topic, in which I think we 

should at least hold a hearing. Reports from the EPA Inspector 

General, and others, have found a serious shortfall in funding for 

mediation of existing orphaned Superfund sites across the country. 

Our subcommittee should examine the current funding situation 

for the program, where the funding shortfalls have slowed down or 

prevented cleanup of specific sites, and whether Congress needs to 

reinstate the Superfund taxes to ensure that polluters, not taxpayers, pay for the cost of cleaning up our Nation’s worst toxic 

sites. 

And this issue hits close to home for me. A site in my district, Imperial Oil, is currently waiting more than $17 million from the 

EPA so that remediation work can begin. Given the EPA’s inability 

to adequately fund work at other sites in my district, I am skeptical that Imperial Oil, and many others like it in New Jersey, will 

be cleaned up in a timely fashion. 

Mr. Chairman, I look forward to working with you on this, and 

other issues before the subcommittee. Thank you. 

Mr. GILLMOR. Thank you. And the Chair recognizes the Chairman of the Full Committee, Mr. Barton. 

Chairman BARTON. Thank you, Chairman Gillmor, for holding 

this hearing on the application of Superfund laws to animal, agriculture, and farming operations. 

Today, your subcommittee begins the first Congressional look 

into whether these laws are the proper means for further environmental regulation of the agricultural community, and if so, how 

they should apply. I know there is a very heartfelt conviction on 

this issue, and we are going to hear from witnesses with their concerns on both sides of the issue. 

I understand that Superfund laws and the reporting have rarely—their reporting have rarely, if ever, been enforced against our 

farmers and ranchers in this country. I know that I have not 

thought of the farms and ranches in my Congressional District and 

in Texas as Superfund sites. Smelly, maybe, but not Superfund 

sites. That today’s agriculture producer faces a different world than 

the one which existed when the Superfund first became a Federal 

law. I know that in order to remain competitive, agriculture has 

begun to consolidate, just like so many other United States industries. Despite these pressures, the work of American farmers and 

ranchers continues. They produce the food we eat and the clothes 

we wear. I am not going to endorse anything that erodes the U.S. 

farm and ranch community ability to provide the safest, most affordable, and most abundant food supply and fiber supply in the 

world. I want rural America to be more than just a good place to 

live. I still want it to be a good place to raise a family and make 

a living. 

I also share a concern with many of my colleagues on this Committee about what happens when the courts begin to write public 

policy instead of the legislature, whether it be at the State level or 

9

the Federal level. It is our job, as Congress, to write the law, not 

a court somewhere. Since this Superfund application issue seems 

to take so many farmers, or beginning to take so many farmers out 

of their fields and put them in courtrooms, I think we as a Congress have an obligation to take the issue up. That is why we are 

here today. If we need to legislate and clarify exactly what a Superfund site is, then we need to get the facts first, and that is why 

we are here. 

If this Committee decides to move forward on legislation, I want 

to know what the facts are. Recognizing all the places that this 

Committee’s jurisdiction impacts America, and specifically farms 

and ranches, especially when a new farm bill is on the rise, and 

I hope that after today’s hearing, we can work on a bipartisan basis 

to decide if legislation is needed, and what that legislation is, and 

then move forward. 

With that, Mr. Chairman, I yield back the balance of my time. 

[The prepared statement of Hon. Joe Barton follows:]

PREPARED STATEMENT OF HON. JOE BARTON, CHAIRMAN, COMMITTEE ON ENERGY

AND COMMERCE

Thank you, Chairman Gillmor, for holding this hearing on the application of 

Superfund laws to animal agriculture and farming operations. Today, this subcommittee begins the first congressional look into whether these laws are the proper 

means for further environmental regulation of the agricultural community, and how 

they should apply. I know there is very heartfelt conviction on this issue and we 

will hear from witnesses with their concerns on both sides. 

I understand that Superfund laws and the reporting have rarely been enforced 

against farmers. I know that I’ve not thought of the farms and ranches in my congressional district as Superfund sites. Smelly maybe, but not Superfund sites. 

It is a fact, however, that where I see the cradle of civilization and the producers 

of America’s food and fiber, some just see toxic waste and a reason to sue. 

Today’s agricultural producer faces a different world than the one which existed 

when Superfund first became law. I know that in order to remain competitive, agriculture has begun to consolidate, just like so many other U.S. industries. Despite 

the pressures, the work of American farmers and ranchers continues to produce the 

food we eat and the clothes we wear. I will not endorse anything that erodes U.S. 

producers’ ability to provide the safest, least costly, and most abundant food supply 

in the world. 

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 also share a concern with many of my colleagues on this Committee about what 

happens when the Courts begin to write public policy. That’s our job. 

Since this Superfund application issue seems to take so many farmers out of their 

fields and put them into courtrooms, we have an obligation to take it up. That’s why 

we are here today. 

Now, regardless of my own sentiments, I am committed to a fair and open process 

as our Committee moves forward. Recognizing all the places our jurisdiction impacts 

farms and rural America, especially with a new farm bill on the horizon, I hope that 

we can work effectively with the farmers and ranchers s to solve this puzzle. 

With that I yield back the balance of my time.

Mr. GILLMOR. I thank the Chairman, and we recognize the gentleman from Michigan, Mr. Stupak. 

Mr. STUPAK. Thank you, Mr. Chairman, for holding today’s hearing, and welcome to our witnesses. 

I look forward to today’s hearing and an open discussion regarding animal feeding operations, or AFOs, as—and whether they 

should be exempt from certain environmental laws. There are questions that need to be answered, and while I don’t expect we will 

find all the answers today, I think this hearing is important so we 

can explore any potential environmental and public health risk 

10

that AFOs, and in particular CAFOs—the industrial-sized livestock 

farms—may pose to the workers and the surrounding communities. 

Animal feeding operations produce over 500 million tons of manure annually, and introduce substantial amounts of waste into the 

environment. The waste is associated with several pollutants including pathogens, antibiotics and arsenic, that pose serious public 

health and environmental risks. These contaminants can be harmful when they find their way into our surface water and groundwater, and also when significant amounts are emitted into the air 

that we breathe. 

I come from the great State of Michigan, and my Congressional 

District in northern Michigan is surrounded by the Great Lakes on 

three sides, so clean water is very important to the residents of my 

State as the Great Lakes are our source of drinking water, recreation, fishing, and through tourism, an integral part of our State’s 

economy. 

We have a number of CAFOs located in Michigan. If you take a 

look at this map here of lower Michigan, you all see that CAFOs 

noted, and in looking at the corresponding stars which indicate the 

beaches that have very high level of E. coli pollution. E. coli is a 

pathogen contained in CAFOs’ generated waste. The map shows 

connection between CAFOs and the pollution on our beaches. 

Waste from CAFOs run into creeks, rivers, making its way to the 

shores of our lakes where we experience contamination and numerous beach closings. 

Numerous studies have been performed regarding the effect of 

CAFO-generated waste on the public health, including the workers 

and the people who reside near these CAFOs. These studies have 

shown that many CAFO workers experience high rates of respiratory problems and other health ailments, and those residing 

near these locations have experienced similar adverse health effects. The American Public Health Association, Michigan State 

Medical Society, and the Canadian Medical Association have called 

for a moratorium on new CAFOs until sufficient additional scientific data on public health risk has been collected. 

We should be holding industry accountable for the pollution they 

emit. The CERCLA and EPCRA reporting requirements seem like 

a common sense approach so that we know where, when, and how 

much hazardous substances are released that could be dangerous 

to the public. And until the scientific data from the Consent Decree 

that the EPA and 2,700 farming companies have entered into is 

finished, I think it is premature to exempt the agriculture industry 

from such laws. We don’t exempt the factories or manufacturing 

plants in Detroit. The residents of Detroit and the residents of 

rural Michigan deserve the same public safeguards. 

The Great Lakes area drinking water—the Great Lakes area 

drinking, water source for over 30 million Americans, their health 

and their future is not something to be taken lightly. I have concerns about exemptions for certain industry from environmental 

laws that could have long-standing negative impacts on a natural 

resource that cannot be replaced. I look forward to hearing from 

our witnesses, and thank you for the time, Mr. Chairman. 

Mr. GILLMOR. The gentleman from New Hampshire, Mr. Bass. 

11

Mr. BASS. Thank you, Mr. Chairman. And I will just paraphrase 

my opening statement and submit it to the record. I want to thank 

you, all the witnesses, for being here today. I think it is imperative 

that, regardless of whether we are talking about an industrial 

plant, agricultural operation, or a small family farm, we have to be 

sure that these farms are being operated in an environmentally 

friendly manner and complying with Clean Air, Clean Water, and 

under other environmental regulations. 

I guess the real issue here today is to here opinions on whether 

recent cases brought against large livestock operations are because 

the farms are not performing best practices or are they being 

brought to court under frivolous claims or inappropriate application 

of current environmental laws. I hope that the subcommittee can 

ensure that normal farm practices, as a definition, is not incorrectly manipulated and turned against farmers doing all they can 

do to comply with environmental laws. And many of them, I might 

note, work closely with the resource—Natural Resource Conversation Service and other agencies to find best practices. I was amazed 

to discover that my home State of New Hampshire, I have over 

40,000 livestock, over 6,000 poultry, and over 6 million tons of—excuse me, not tons, 6 million pounds of manure a day. And I thought 

agriculture had all moved out to the Midwest, but it hasn’t. It is 

not a small amount, and it is a critical issue in my neck of the 

woods, and most notably over in Vermont, we share a common 

river, the Connecticut River. 

So I think this is an interesting hearing, Mr. Chairman, and I 

will look forward to hearing from our witnesses. And I yield back. 

[The prepared statement of Hon. Charles Bass follows:]

PREPARED STATEMENT OF HON. CHARLES BASS, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF NEW HAMPSHIRE

Thank you Chairman Gilmore. 

I would like to first thank all of the witnesses for being here today. It is imperative that regardless of the type of facility—an industrial plant or a farm—we must 

ensure that it is being operated in an environmentally-friendly manner and is complying with the Clear Air Act, the Clean Water Act, and other environmental regulations. 

Some may want to argue that this hearing today is the first attempt to exempt 

farmers from environmental laws and no longer hold them responsible for their 

emissions. I would have to disagree and I doubt anyone would want to see Congress 

give agricultural businesses an outright exemption from performing best practices 

to protect our air, water, and land. Many farmers are proud of their conservations 

efforts, especially since it does not serve the farmer well to contaminate his land 

to the point it will no longer be as productive. 

The real issue today is to hear opinions on whether the recent cases brought 

against large livestock operations are because the farms are not performing best 

practices or are they being brought to court under frivolous claims or inappropriate 

application of CERCLA and other environmental laws. It is important for this Subcommittee to ensure that the description of ′′normal farm practices′′ is not incorrectly manipulated and turned against farmers doing all that is possible to comply 

with environmental laws—many of whom work closely with Natural Resources Conservation Service and other federal agencies to find the best practices to protect 

their farmland and our watersheds. 

Many of my fellow colleagues have large livestock operations in their district with 

farmers who are fearful that they will be put out of business due to expensive court 

cost. My State of New Hampshire does not have these types of large operations, but 

similar concerns do extend to the New England small family farm. New Hampshire 

has 152 licensed dairy herds that produce about 330 million pounds of milk per 

year. In my district, there are 5,900 poultry, 4,037 cattle, 36,761 dairy cows, and 

several hundred other types of livestock. I am sure many of my colleagues here 

12

would assert these are definitely small operations and that my whole district could 

make up one of their facilities. However, the same issues from both the side of environment concerns and agricultural businesses still play out in New Hampshire. In 

one of our witness’s testimony, he will state that up to 115 pounds of manure is 

produced per day by a dairy cow. So from my calculations, the cattle and dairy cows 

in my district are releasing over 6 millions pound per a day—not a small amount 

of waste and definitely a critical issue that needs to be addressed in how the waste 

is handled and its affect on watersheds and air quality. On the other hand, many 

of my farmers are nervous that the small farmer may eventually be unfairly 

brought to court or that egregious laws will be applied to them making it impossible 

for them to stay in operation- destroying a very integral part of my State. A particular concern is a potential clash between agriculture and residential development. 

All over my state we are seeing housing developments being built on old farmland—

sometimes right up to an existing farm. It is not unrealistic for the farmer to be 

worried that the residential community next to his farm may complain about 

groundwater and clean air issues even though the farmer is working diligently to 

comply with emission regulations. Some of these farms have been in existence since 

the 1600s and would be put out of business by costly court fees on top of the large 

expense of running their farm as an environmentally-friendly operation. 

Therefore, this hearing is important to the entire agriculture industry whether it 

is a large corporate farm with a thousand head of dairy cows at one facility or the 

small family farm with a few hundred head of dairy cows. We need to ensure that 

the farmers that are performing best practices are not burden with an inappropriate 

application of Superfund laws, but yet ensuring that there is a mechanism in place 

to go after agriculture operations that are not complying with regulations. It is also 

important as Congress we ensure that the mechanisms to help the farmer to comply 

with environmental regulations continue in the 2007 Farm Bill—such as Environmental Quality Incentives Program. Without these types of technical assistance, 

small farmers in particular will be at a disadvantage in continuing to ensure they 

are in compliance with federal, state, and local environmental regulations. 

I’d like to thank the witnesses for being here and I look forward to their testimony.

Mr. GILLMOR. Gentleman yields back. The gentlelady from Wisconsin, Ms. Baldwin. 

Ms. BALDWIN. Thank you, Mr. Chairman. I am sure that it is no 

surprise when I say that agriculture has been the lifeblood of my 

home State of Wisconsin’s economy for well over a century. Today, 

Wisconsin’s farms and agricultural businesses generate more than 

$51.5 billion in annual economic activity, and provide jobs for more 

than 420,000 people. 

While agriculture has remained a vital component of Wisconsin’s 

economy, the very nature of farming has changed drastically in 

every State over the last few decades. Small family farms that had 

been the bedrock of rural communities have increasingly been replaced or consolidated into large corporate farms, often growing 

large enough to be classified as concentrated animal feeding organizations, or CAFOs. It is estimated that 54 percent of U.S. livestock are now concentrated on 5 percent of livestock farms, with a 

typical CAFO raising thousands of animals in confined areas. 

The growing—the growth of CAFOs is of concern to me. According to the Department of Agriculture, these mega-farms are already generating an estimated 575 billion pounds of animal manure every year. This amount of waste could pose serious threats 

to our environment and the public’s health. Manure can contain 

harmful byproducts, such as heavy metals, antibiotics, pathogen 

bacteria, a number of toxic gasses, and over 400 separate volatile 

compounds. In Wisconsin, 59 manure spills have been reported 

over the last year, 12 of which contaminated private wells, and 12 

more that killed fish in local streams. 

13

In 2004, a Kewaunee County family fell seriously ill when a 

CAFO near their home irresponsibly spread liquid manure on frozen and snow-covered ground, which led to a massive manure runoff and eventual contamination of their drinking water supply. The 

most dramatic fish kill in Wisconsin occurred in early spring of 

2005 when liquid manure spread over frozen ground ran off into 

the west branch of the Sugar River and killed a significant number 

of brown trout. Dane County, through which the Sugar River runs, 

had spent more than $1 million over several years restoring this 

once-prized trout stream before this spill. 

I certainly have concerns about CAFOs impact on our environment and the public’s health, however I also realize that our domestic food supply depends on a vibrant agricultural sector. I look 

forward to hearing from out witnesses today address the question 

of how we balance these interests. But, I must say that I have 

strong concerns about any effort to exempt CAFOs from the Superfund laws and the Emergency Planning and the Community Rightto-Know Act. I believe this would be a mistake. And, Mr. Chairman, I yield back the balance of my time. 

Mr. GILLMOR. I thank the gentlelady. The gentleman from Idaho, 

Mr. Otter. 

Mr. OTTER. Thank you, Mr. Chairman. Mr. Chairman, I am 

going to submit my remarks for the record and yield back my time. 

Mr. GILLMOR. I thank the gentleman. Gentleman from Washington, Mr. Inslee. 

Mr. INSLEE. Thank you, Mr. Chairman. Just one brief comment: 

I hope we might have some discussion about digesters and use of 

this material for energy as part of our discussion. Thank you. 

Mr. GILLMOR. Gentleman from Oklahoma, Mr. Sullivan? 

Mr. SULLIVAN. Thank you, Mr. Chairman. I appreciate you calling this hearing today to address the issue of Superfund laws and 

animal agricultural waste. This issue is of critical importance to 

my State of Oklahoma, and particularly northeastern Oklahoma. I 

would like to welcome two of our witnesses, Ms. Kelly Hunter 

Burch, Chief of the Environmental Protection Unit and Assistant 

Attorney General of Oklahoma, and Mr. Steve Kouplen, President 

of the Oklahoma Farm Bureau. I know that both of you have divergent positions on this issue, and I appreciate you being here to 

offer your views on how to address interstate agricultural waste, 

and specifically your views on the historical and current application 

of CERCLA to poultry waste. 

As a Congressional Representative for the 1st Congressional District of Oklahoma, I represent the city of Tulsa, Oklahoma. In 

2003, the city of Tulsa reached a settlement with Tyson Foods, and 

other poultry defendants, regarding excessive poultry waste in the 

Eucha and Spavinaw Watershed. This watershed is the principle 

source of water for the residents of Tulsa. The settlement is slowly 

producing results. The amount of poultry waste being applied to 

the land and the watershed has been cut by two-thirds, and the 

odor and taste of the water has improved, but the process is still 

ongoing and it will take years to know if the settlement has been 

successful. Unfortunately, politics and political pressures have 

muddied the waters on all sides of that issue. We need to get back 

14

on track toward dialog, and all parties need to come together to set 

principles for managing agricultural waste. 

While I have concerns about CERCLA litigation, few can state 

that the excess poultry waste is not having a negative effect on 

Oklahoma’s scenic waterways. The Oklahoma Attorney General 

has stated that the phosphorous from poultry waste from the Illinois River Watershed is equivalent to the waste that would be generated by 10.7 million people, a pollution greater than the State of 

Arkansas, Kansas, and Oklahoma combined. This is a problem. It 

is true that Oklahoma’s scenic waterways are suffering from excess 

out-of-state poultry waste, and that this waste is negatively impacting the quality of life of Oklahomans. 

The subcommittee has an opportunity today to ask several questions and look at the potential economic impact of these lawsuits. 

Currently, 508 Oklahoma poultry farms are located in the Illinois 

River Watershed, and they would be negatively impacted if animal 

manure is found by the courts to be a hazardous waste under 

CERCLA. If CERCLA is amended to exclude animal manure, we 

also need to look at what resource will the State and municipalities 

have to respond to environmental demands resulting from excess 

agricultural waste in the scenic waterways and the drinking water 

supply, and whether mechanisms under the Clean Water Act sufficiently address these environmental concerns. 

I look forward to the hearing, hearing the testimony from our 

panel of witnesses, and I yield back the balance of my time. Thank 

you. 

[The prepared statement of Hon. John Sullivan follows:]

PREPARED STATEMENT OF HON. JOHN SULLIVAN, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF OKLAHOMA

Mr. Chairman, I appreciate you calling this hearing today to address the issue 

of Superfund laws and Animal Agriculture waste. This issue is of critical importance 

to my state of Oklahoma, particularly Northeastern Oklahoma. 

I would like to welcome two of our witnesses, Ms. Kelly Hunter Burch, Chief of 

the Environmental Protection Unit and Assistant Attorney General of Oklahoma, 

and Mr. Steven Kouplen President of the Oklahoma Farm Bureau. I know that both 

of you have divergent positions on this issue and I appreciate you being here to offer 

your views on how to address interstate agriculture waste and specifically your 

views on the historical and current application of CERCLA to poultry waste. 

As the Congressional Representative for the First District of Oklahoma, I represent the City of Tulsa Oklahoma. In 2003, the city of Tulsa reached a settlement 

with Tyson Foods and other poultry defendants regarding excess poultry waste in 

the Eucha and Spavinaw watershed. This watershed is the principal source of water 

for the residents of Tulsa. The settlement is slowly producing results. The amount 

of poultry waste being applied to land in the watershed has been cut by two-thirds, 

and the odor and taste of the water has improved. But the process is still ongoing 

and it will take years to know if the settlement has been successful. 

Unfortunately, politics and political pressures have muddled the waters on all 

sides of this issue. We need to get back on track towards dialogue and all parties 

need to come together to set principles for managing agriculture waste. 

While I have concerns about CERCLA litigation, few can state that excess poultry 

waste is not having a negative effect on Oklahoma’s scenic waterways. The Oklahoma Attorney General has stated that the phosphorus from poultry waste from the 

Illinois River watershed is equivalent to the waste that would be generated by 10.7 

million people, a population greater than the states of Arkansas, Kansas and Oklahoma combined. This is a problem. It is true that Oklahoma’s scenic waterways are 

suffering from excess out of state poultry waste, and that this waste is negatively 

impacting the quality of life of Oklahomans. 

The Subcommittee has an opportunity today to ask several questions and look at 

the potential economic impact of these lawsuits. Currently, 508 Oklahoma poultry 

15

farms are located in the Illinois River watershed, and they would be negatively impacted if animal manure is found by the courts to be a hazardous waste under 

CERCLA. If CERCLA is amended to exclude animal manure, we also need to look 

at what recourse will states and municipalities have to respond to environmental 

damage resulting from excess agricultural waste in scenic waterways and in drinking water supplies, and whether mechanisms under the Clean Water Act sufficiently 

address these environmental concerns. 

I look forward to hearing the testimony from our panel of witnesses and I yield 

back the balance of the time.

Mr. GILLMOR. Gentleman yields back. The gentleman from Georgia, Mr. Deal. 

Mr. DEAL. Thank you, Mr. Chairman. Everybody comes to this 

hearing today with a point-of-view, I am sure, and we are looking 

forward to the point-of-view of the witnesses, and I welcome all of 

you here. My point-of-view is that my State of Georgia, for the 21st 

consecutive year at the end of 2004, was the No. 1 producer of 

broilers in this country. My County and my city of Gainesville, 

Georgia, calls itself the poultry capital of the world. We have about 

1.3 billion broilers produced in my State every year. Now, most of 

those are being produced on small family farms. Although the industry itself is integrated, the poultry houses and the land on 

which they are located are generally owned by small individual 

farm units, and the impact of legislation or extension of legislation 

such as extending Superfund liability to them, could have a disastrous effect. 

I think all of us are concerned about the issue of pollution. I 

think the agriculture industry has been more than responsive in 

that area. Not only do we have the protections of the total maximum daily load that they are complying with, we also have, of 

course, the provisions of the Clean Water Act that they are complying with along with State rules and regulations and laws that 

regulate them as well. So I believe that it is important that we get 

the facts and we get them correct. I am also pleased that—to be 

an original co-sponsor of the legislation that Mr. Hall referred to 

earlier, which hopefully will be a legislative clarification of the previous intents of Congress. 

But, I do look forward to this hearing, and I thank the witnesses, 

and I yield back my time. 

Mr. GILLMOR. Gentleman yields back. The gentleman from Pennsylvania, Mr. Murphy. 

Mr. MURPHY. Mr. Chairman, I will submit my comments to the 

record, but I do want to say on behalf of the many poultry farmers 

in Pennsylvania, and dairy farmers, I want to thank you for having 

this hearing. 

Mr. GILLMOR. Thank you very much. The bells you heard go off 

indicate that we have two votes, and we have 15 minutes from the 

first bell to vote. I want to ask you, Mr. Breen, if possible, I would 

like to get your testimony in, and you have been through this so 

many times, I am sure you can do it in 5 minutes. 

Mr. BREEN. Five minutes? 

Mr. GILLMOR. Thank you very much. 

16

STATEMENT OF BARRY BREEN, DEPUTY ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY 

Mr. BREEN. You are welcome. Good afternoon. My name is Barry 

Breen, and I am the Deputy—thank you. I appreciate it. 

I am Deputy Assistant Administrator for EPA’s Office of Solid 

Waste and Emergency Response. Thank you for inviting me to appear today to discuss the application of CERCLA and the Emergency Planning and Community Right-to-Know Act, EPCRA, on 

animal agricultural operations. I will summarize my testimony and 

ask that the entire written statement be submitted for the record. 

Mr. GILLMOR. Without objection. 

Mr. BREEN. What I have to report to you today is a status report 

on our work-in-progress. There are some things we know, and some 

things we don’t know. We are working to find out some of the 

things we don’t know. These are particularly true in the area of 

science and practical applications and implications, but we are 

mindful that this is an important issue, we need to move expeditiously. 

As background, CERCLA requires that any person in charge of 

a facility notify the National Response Center, the NRC, as soon 

as he or she has knowledge of the release of a hazardous substance 

from that facility at quantities equal to or greater than the reportable quantities, the RQs. Similarly, EPCRA requires that local 

emergency planning committees be notified, and that the State 

emergency response commissions likely to be affected of extremely 

hazardous substances also be notified. 

Neither CERCLA nor EPCRA limit the industry or commercial 

sectors that need to report. Any facility releasing more than an RQ 

must report. CERCLA and EPCRA release reporting requirements 

provide useful information for State and local planning committees 

and serve the public and the EPA in identifying facilities that release reportable quantities of hazardous substances. CERCLA and 

EPCRA authorize and enforcement for failure to report releases of 

hazardous substances that equal or exceed their RQs. However, 

with one exception that I know of where EPA and the Justice Department intervened in an already on-going private party Clean 

Water Act case, EPA has never relied on these authorities as the 

primary reason to take action against an animal feeding operation 

facility owner or operator, and in no case has any response been 

taken that I know of on an animal feeding operation related to releases of hazardous substances from manure. EPA has not targeted 

agricultural operations for CERCLA or EPCRA reporting actions, 

and as far as I know, we have no plans to do so. 

What EPA has done is develop voluntary enforcement agreements with animal feeding operations. Under the AFO Air Compliance Agreement, respondents pay a penalty to resolve potential 

civil liabilities and to fund an extensive national AFO air monitoring study. This study will specifically address some of the 

science that we need, the data, and the emission estimating methodology needs that the National Academy of Sciences has reported 

that we need. 

Approximately 2,700 proposed agreements have been submitted 

to EPA, covering more than 6,000 pork, poultry, and dairy farms. 

17

Last week, on November 9, EPA submitted the first set—approximately 20—of these agreements to the Environmental Appeals 

Board for approval. We are keenly aware that several recent court 

decisions have generated concern. However, EPA was not a party 

to that litigation, and we do not have positions on many of the 

issues in the litigation. We have received the National Chicken 

Council, National Turkey Federation, and U.S. Poultry and Egg Association petition for exemption from EPCRA and CERCLA. We are 

currently reviewing the petition and will soon make the petition 

available for public comment through a docket. A Federal register 

notice will announce the availability of the petition, along with a 

specific request for public comment. 

I would like to reiterate that the notification provisions of 

CERCLA and EPCRA allow the Federal Government and State 

governments to evaluate and appropriately respond to releases of 

hazardous substances. EPCRA specifically allows the public to participate through community involvement and the Community 

Right-to-Know provisions. EPA appreciates that there remain a 

number of issues of interest to the agricultural community, and 

that there is also significant Congressional and public interest in 

the outcome as well. We are actively working to resolve these 

issues, consistent with the mission of the EPA. 

That concludes my remarks, Mr. Chairman, and, at your convenience, I will be happy to respond to any questions. 

[The prepared statement of Barry Breen follows:]

PREPARED STATEMENT OF BARRY BREEN, DEPUTY ASSISTANT ADMINISTRATOR, OFFICE

OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION

AGENCY

Mr. Chairman and members of the Subcommittee, I am Barry Breen, Deputy Assistant Administrator for the Office of Solid Waste and Emergency Response at 

EPA. Thank you for inviting me to appear today to discuss environmental issues 

involving animal agricultural operations. My testimony will address issues regarding the application of the Comprehensive Environmental Response, Compensation, 

and Liability Act (CERCLA) and the Emergency Planning and Community RightTo-Know Act (EPCRA) to animal agricultural operations; or sometimes called animal feeding operations (AFOs). 

BACKGROUND

The Comprehensive Environmental Response, Compensation and Liability Act 

(CERCLA) section 103(a) requires that any person in charge of a facility notify the 

National Response Center (NRC), as soon as he has knowledge, of the release of a 

hazardous substance from that facility in quantities equal to or greater than those 

determined under section 102(b) of CERCLA. Those quantities are called the Reportable Quantities or RQs. Similarly, EPCRA section 304 requires that the local 

emergency planning committee (LEPC) for any area likely to be affected, and the 

State emergency response commission (SERC) of any State likely to be affected by 

the release of an extremely hazardous substance listed under EPCRA Section 302 

also be notified. Neither CERCLA nor EPCRA limit the industry or commercial sectors that need to report; therefore any facility releasing more than an RQ must report. With respect to AFOs, the CERCLA hazardous and EPCRA extremely hazardous substance most likely to trigger an RQ are (1) ammonia at 100 pounds per 

24 hours, and (2) hydrogen sulfide also at 100 pounds per 24 hours. Ammonia is 

most often used at a farm as fertilizer and thus, is stored in tanks and can be released. However, at AFOs, another likely release source of these hazardous substances is the agricultural waste that is either stored or placed on the facility. 

The National Contingency Plan (NCP) at 40 CFR 300.125, sets forth the requirements for notification and communications with the National Response Center 

(NRC). The NRC is located at the United States Coast Guard Headquarters and is 

the continuously manned national communications center for handling activities 

18

that may require an emergency response action. The NRC acts as the single point 

of contact for all pollution incident reporting. Notices of releases are made to the 

NRC by telephone and are immediately relayed to the appropriate predetermined 

federal on-scene coordinator (OSC). The telephone report is distributed to any interested National Response Team member agency or federal entity that has established 

a written agreement or understanding with the NRC. The NRC also evaluates incoming information and immediately advises the Federal Emergency Management 

Agency (FEMA) of a potential major disaster situation. 

As noted above, the purpose of the release reporting is to alert appropriate first 

responders and to keep state and local entities informed. However, not all chemical 

releases reported to the NRC are necessarily ‘‘emergencies.’’ In addition, there are 

times when an industrial facility will release a hazardous or extremely hazardous 

substance at quantities above the RQ but for a longer duration than what might 

be judged to be in an emergency situation. In such a case, CERCLA section 103(f)(2) 

provides for exemptions from notice and penalty provisions for continuous releases 

of hazardous substances. Releases may be reported less frequently than otherwise 

would be required, if they are ‘‘continuous’’ and ‘‘stable in quantity and rate,’’ and 

if notification has been given under section 103(a) ‘‘for a period sufficient to establish the continuity, quantity, and regularity’’ of the release. Hazardous substance releases that are continuous and stable in quantity and rate may be reported under 

a reporting scheme set forth in 40 CFR 302.8—Continuous releases. The basic structure for continuous release reporting requires the owner or operator of the facility 

to make an initial telephone call to the NRC stating that he intends to submit a 

continuous release report. That initial call is followed by a written report, within 

30 days, to the appropriate EPA Regional office where the release is occurring. Each 

year on the anniversary of that report, the facility owner or operator must review 

the release report to determine if changes have occurred in any of the previously 

submitted information. For example, the rate of release, source, composition, contact 

information, or facility ownership may have changed since the previous report. If 

so, then the facility owner or operator must provide a follow-up notification report 

within 30 days of the anniversary that updates the information submitted in the 

original notification. The continuous release reports should also be submitted to the 

appropriate SERC and LEPC to satisfy the EPCRA section 304(c) notification requirements. 

Section 109 of CERCLA and section 325 of SARA Title III authorizes EPA to assess civil penalties for failure to report releases of hazardous substances that equal 

or exceed their RQs. Section 103(b) of CERCLA, as amended, authorizes EPA to 

seek criminal penalties for failure to report releases of hazardous substances and 

for submitting false or misleading information in a notification made pursuant to 

CERCLA section 103. Except for the case described below where the Government 

settled with the nation’s second largest pork producer, Premium Standard Farms, 

Inc. (PSF), and Continental Grain Company, Inc. when it intervened in a private 

party CWA case, EPA has never relied on these authorities as the primary reason 

to take action against an AFO facility owner or operator and in no case has any 

response been taken on an AFO related to releases of hazardous substances from 

manure. 

Several recent court decisions have generated concern among some in the animal 

agricultural operations industry about the CERCLA and EPCRA notification and reporting requirements. However, EPA was not a party to the litigation. Further, EPA 

does not have positions on many of the issues in the litigation. The heightened attention has prompted the National Chicken Council, National Turkey Federation 

and U.S. Poultry & Egg Association to submit a petition for exemption from EPCRA 

and CERCLA reporting requirements for ammonia emissions from poultry operations. The Agency is currently reviewing this petition and will soon make this petition available for public comment through its docket. A Federal Register notice will 

announce the availability of the petition along with a specific request for public comment. 

EPA PROGRAM IMPLEMENTATION

Under CERCLA, the U.S. Environmental Protection Agency, must be notified 

when there was a release of a hazardous substance into the environment. CERCLA 

defines what those hazardous substances are by referring to several other environmental statutes but it also gives the Agency the authority to designate additional 

hazardous substances which when released into the environment may present substantial danger to the public health or welfare or the environment. The Agency was 

also required by CERCLA section 102(a) to promulgate regulations establishing the 

quantity of any hazardous substance that if released shall be reported pursuant to 

19

CERCLA section 103(a). Every year, the NRC receives thousands of reports of releases of hazardous substances. 

Section 300.130 of the NCP sets forth the requirements to determine whether to 

initiate a response. In the past, federal response has been limited to the release of 

ammonia or hydrogen sulfide to air from animal agricultural operations from chemicals stored on-site in tanks. EPA is examining whether changes should be made to 

reduce the burden on the industry. The CERCLA and EPCRA release reporting requirements provide useful information for State and local planning committees and 

serve the public and the Agency in identifying facilities that release reportable 

quantities of hazardous substances. 

To date, there has only been a single matter in which EPA has issued a finding 

of violation (FOV) against a farm for violations of CERCLA 103 and EPCRA 304, 

although the FOV primarily focused on CWA section 301 and CAA section 110 violations. In that case, the Government settled with the nation’s second largest pork 

producer, Premium Standard Farms, Inc. (PSF), and Continental Grain Company, 

Inc. The settlement resolved alleged violations of the Clean Water Act (CWA), CAA, 

CERCLA and EPCRA that occurred at a number of the companies’ factory farms 

in northwest Missouri. It is important to note that the Government intervened in 

a private party CWA case and the government did not initiate the action. 

After an NAS study found that that scientifically sound and practical protocols 

for measuring air emissions from AFOs needed to be developed, EPA concluded that 

the better course was developing the AFO Agreement, followed by emissions estimating methodology. EPA may use CERCLA authority to respond to certain catastrophic releases of hazardous substances or wastes such as from a lagoon failure 

near a public waterway. 

AFO AGREEMENT

In late 2001, discussions began between EPA and representatives from the AFO 

industry on the concept of a voluntary enforcement agreement that would ensure 

compliance with federal laws pertaining to air emissions. In December of 2001, EPA 

and the U.S. Department of Agriculture also asked the National Academy of 

Sciences (NAS) to review and evaluate the scientific basis for estimating emissions 

of various air pollutants from AFOs. The NAS issued a final report in February, 

2003 concluding that scientifically sound and practical protocols for measuring air 

emissions from AFOs needed to be developed. The NAS also found that existing 

methodologies for estimating air emissions from AFOs are generally inadequate because of the limited data and site specific factors on which they are based. In response to the 2003 NAS report, EPA began revising the conceptual enforcement 

agreement to specifically address the data and emission-estimating methodology 

needs, thus beginning to address the needs cited by the NAS, and determining AFO 

regulatory responsibility under the CAA, CERCLA, and EPCRA. Over the next two 

years, EPA sought input and comment on drafts of the enforcement agreement from 

many groups, including state officials, representatives from the agricultural industry, environmental organizations, and local citizen groups. 

On January 31, 2005, EPA published a notice in the Federal Register offering animal agricultural operations an opportunity to sign a voluntary Consent Agreement 

and Final Order. The deadline to sign the proposed Agreement was August 12, 

2005. Approximately 2,700 proposed Agreements have been submitted to EPA, covering over 6,000 pork, poultry, and dairy farms. In its January 31, 2005 notice, EPA 

also requested public comment on the proposed Air Compliance Agreement, and received over 600 unique comments. 

Under the AFO Air Compliance Agreements, Respondents pay a penalty to resolve 

potential civil liability and participate in funding an extensive, national AFO air 

monitoring study by contributing up to $2,500 per farm into an EPA-approved monitoring program. The civil penalties range from $200 to $1000 per farm covered, depending on the size of the farm, with an absolute penalty cap of $100,000 per Respondent regardless of how many farms are covered. 

The monitoring study will lead to the development of methodologies for estimating 

emissions from AFOs and will allow Respondents to determine and comply with 

their regulatory responsibilities under the CAA, CERCLA, and EPCRA. Once applicable emission-estimating methodologies have been published by EPA, the liability 

release in the proposed Agreement is contingent on the Respondent certifying that 

it is in compliance with all relevant requirements of the CAA, CERCLA, and 

EPCRA. In return, Respondents receive a release and covenant not to sue for the 

specific violations identified by applying the relevant emissions-estimating methodologies as long as the participating animal agricultural operations comply with all 

of their obligations under the Agreement. 

20

The AFO Air Compliance Agreement is an important part of EPA’s strategy to 

address air emissions from AFOs. In addition to resolving the compliance status of 

AFOs under the relevant statutes, it will provide critical data that will allow EPA 

to quantify emissions coming from AFOs and, if necessary, to identify appropriate 

regulatory and nonregulatory responses for controlling those emissions. 

On November 9, 2005, EPA submitted the first set of AFO Air Compliance Agreements to the Environmental Appeals Board for approval. We anticipate that the 

Board will consider the submitted Agreements within the next several months. Assuming Board approval, EPA has made a determination that there is adequate participation and representation to warrant proceeding with the national air monitoring study for egg-layer and swine AFOs. We are still processing and reviewing 

Agreements from the other animal sectors and have not made a decision yet of adequate participation and representation for dairy and meat-bird AFOs, but expect to 

do so soon. 

CONCLUSION

In conclusion, I would like to emphasize that the notification provisions under 

CERCLA and EPCRA allow for the Federal government to evaluate and appropriately respond to releases of hazardous substances. EPCRA specifically, allows the 

public to participate through its community involvement and community right-toknow provisions. EPA appreciates that there remain a number of issues of interest 

by the agricultural community yet to be addressed by the Agency and that there 

is also significant Congressional and public interest in the outcome as well. Let me 

assure you that EPA is actively working to resolve these issues consistent with the 

mission of the U.S. Environmental Protection Agency to be protective of human 

health and the environment.

Mr. GILLMOR. Thank you very much for your testimony. At this 

point, I think we will go into recess so that the members may vote, 

and as soon as the votes are over, we will come back and we will 

begin with a round of questions of Mr. Breen, and then we will go 

to the second panel. And to those on the second panel who haven’t 

testified before, I want to guarantee you we will not subject you to 

another round of opening statements. We will go straight to testimony and questions. 

Stand in recess. 

[Brief recess.] 

Mr. DEAL [presiding]. I will call the hearing back to order. Chairman Gillmor has a mark-up going in another Committee and requested that I preside in his absence, so he will be back before the 

next panel, I hope. 

Mr. Breen, I will—excuse me. I will begin the questioning, and 

we will not have long questioning if we don’t have some more members show up here. 

First of all, with regard to this issue, if we don’t consider that 

any of the so-called Superfund-type legislation applies, isn’t it true 

that you still have fairly substantial regulation that would apply 

to these large agricultural operations? 

Mr. BREEN. Mr. Chairman, I believe that is true, although Air 

and Water is a little beyond my regular ken so I couldn’t talk about 

that in detail. 

Mr. DEAL. Right. But you are, of course, familiar with the general requirements of total maximum daily load requirements, et 

cetera, that if violations of the permits that are granted are violated, that certain recourses could be had, both civil and criminal 

consequences, I believe? 

Mr. BREEN. Yes. Violations of a permit can often lead to a civil 

enforcement. Criminal probably involves a certain mental state of 

mind that I am less able to detail. 

21

Mr. DEAL. With regard to the agreements that you alluded to in 

your opening statement, would you repeat for me how many of 

those agreements have actually been entered into? 

Mr. BREEN. Yes. We have 2,700 companies that have submitted 

agreements, signed up for the agreements, representing somewhat 

over 6,000 separate farms. 

Mr. DEAL. And is the primary purpose of that to simply collect 

data and information? Is that the primary purpose of it? I know it 

does grant some immunity as a part of the agreement, but you are 

primarily trying to gather some data, is that correct? 

Mr. BREEN. That is right, Mr. Chairman. For a certain period of 

time, there is certain covenants not enforced during that period of 

time, but the benefit for the public is at least as much to get the 

scientific studies going that will take about 2 years to complete. 

But we hope to get data much faster than to have to wait the full 

2 years to get the data. 

Mr. DEAL. I recall conversations that I had with the poultry industry, which is the primary industry as I indicated in my opening 

statement in my Congressional District. I believe that there was 

some reluctance on the part of some within that industry, but I 

think that the National Chicken Council agreed that they would 

fund a study with the protocols that you had suggested, that they 

would self-fund a study to achieve that same kind of information. 

Am I correct? 

Mr. BREEN. I just can’t confirm or disagree with that. I just don’t 

know. 

Mr. DEAL. But if they were to do that and apply the same protocols and reporting information, that would be helpful, I suppose, in 

this information-gathering stage? 

Mr. BREEN. Yes. The science from any source would be helpful. 

Mr. DEAL. All right. I believe that will be all for me. And, Ms. 

Solis, I will recognize you. 

Ms. SOLIS. Thank you, Mr. Chairman. Mr. Breen, it appears to 

me that there is significant confusion and misinformation on this 

topic regarding the responsibilities and authorities of the Superfund’s implementation, and I would like to ask you some questions. 

And because I don’t have a lot of time, if you could give me a simple yes or no. So the first question I have is is it correct that the 

natural resource damage actions under Section 107 of Superfund 

can only be brought by Federal, tribal, or State Natural Resource 

trustees? 

Mr. BREEN. I will do my best to give you a yes and no as best 

it can be honest and fair. Section 107F provides that liability for 

natural resource damages is to state, Federal, and tribal governments. I am not aware of any successful citizen suit that has expanded that provision. 

Ms. SOLIS. Okay. Second question is is a citizen suit action available under Superfund for natural resource damages? 

Mr. BREEN. I am not aware of any successful action in that regard. 

Ms. SOLIS. So you are not clear on that at this time, okay. Is it 

correct that the injunctive relief and imminent and substantial 

endangerment authority under Section 106 can only be exercised 

by the President and not citizen suits under Superfund? 

22

Mr. BREEN. Section 106 Injunctive Relief is only available to the 

Federal Government. 

Ms. SOLIS. And can a city or an individual with a citizen suit 

force the President to list a site on the National Priorities List? 

Mr. BREEN. No, that is a discretionary function. 

Ms. SOLIS. Okay. And is it also correct that the Superfund definition of release excludes the normal application of fertilizer? 

Mr. BREEN. I will want to double-check, but I believe you are 

right. 

Ms. SOLIS. Yes. And manure qualifies as a fertilizer, is that correct? 

Mr. BREEN. I don’t know that we have a clear statement on that. 

Ms. SOLIS. And so will you get back to us to clarify that? 

Mr. BREEN. One of the things we are doing is to try to look for 

ways that we need to be clearer in this area of considerable confusion, as you have said, and whether we can be clearer in that way 

in a way that is helpful—and there are several other ways we 

might be clearer—is something we are looking into. 

Ms. SOLIS. Okay. Then my next question is if manure—therefore 

manure would not be a release under the statute if it was normally 

applied? 

Mr. BREEN. Again, I expect that all those words have—freighted 

with meaning in particular factual circumstances, so I think we 

would need to see what each of those things mean on a certain set 

of facts each time. 

Ms. SOLIS. Okay. And have any companies in the farm community asked EPA and the Administration to issue guidance to further explain how the term ‘‘normal application of fertilizer’’ should 

be interpreted for the purpose of Superfund statute? 

Mr. BREEN. We have received requests for clarification. Whether 

that clarification request goes to that specific issue, I am just not 

personally familiar at the moment. 

Ms. SOLIS. Can you submit that information to our Committee? 

Mr. BREEN. Yes. 

Ms. SOLIS. Okay. And then also, Mr. Breen, is it correct that 

2,700 companies representing the various agricultural sectors who 

have signed the Air Compliance Consent Agreement have agreed to 

report releases of hazardous substances such as ammonia and hydrogen-sulfide over reportable quantities under Section 103 of 

Superfund and under the Emergency Planning and Community 

Right-to-Know Act once the proper methodology and procedures are 

determined and EPA promulgates the rules? 

Mr. BREEN. My understanding is that once the situation is clarified by some of the facts we hope to gather through the scientific 

study, that then entities that entered into a—would have 120 days 

to start reporting, if applicable. 

Ms. SOLIS. And then, last, are there any regulatory consequences 

after someone files a report stating releases of ammonia over 100 

pounds a day? 

Mr. BREEN. No regulatory consequences in the CERCLA area. I 

couldn’t speak to whether there are in any other—any other State 

law, for example. 

Ms. SOLIS. Okay. I yield back the balance of my time. 

Mr. DEAL. I thank the gentlelady. Mr. Sullivan? 

23

Mr. SULLIVAN. Thank you, Mr. Chairman. Thank you, Mr. Breen, 

for being here. And I have been in Congress about 4 years and the 

first meeting I had was with Christine Todd Whitman in my office 

right after I got sworn in, and we have a huge issue in my State 

about the poultry issue and other pollutants that get in the water 

affecting Tulsa, which is 82 percent of my Congressional District, 

and it has been very frustrating, I hate to say, with all due respect, 

dealing with the EPA. They are very effective at saying nothing 

and doing nothing, I think. 

Even some of the comments, I am sure, were written for you. It 

said here, ‘‘several recent court’’—this is a good example—‘‘several 

recent court decisions have generated concern among some of the 

animal agriculture operations industry about CERCLA and EPCRA 

notification and reporting requirements. However, EPA was not 

party to the litigation. Further, EPA does not have positions on 

many of the issues in the litigation.’’ And we have a hard time—

you know, with Arkansas and Oklahoma working and we always 

try to—EPA will come down, say, you know, they put on a show, 

and—but they don’t—nothing happens. They say, we want you 

guys to work it out, and it has been difficult. We have had some 

breakthroughs in some of the negotiations, but could you please detail for me EPA’s actions to encourage settlement in mediation—

you know, we don’t need lawsuits. We can do it through that way—

of water quality issues between Oklahoma and Arkansas and the 

poultry industry? Is there a role that you have? 

Mr. BREEN. Thank you. 

Mr. SULLIVAN. Because I want to tell you one other thing, too. 

In my district, I have home builders who have a silt fence, might 

fall over from a kid riding their bike over it in a neighborhood they 

are building, and the Region 6 people will come up and fine them. 

If someone spills some paint out there, they get fined. I mean, stuff 

like that happens, but no one is addressing this, and I just wanted 

to know what you have to say. 

Mr. BREEN. First of all, let me apologize on behalf of the Agency 

for the frustration that you feel. Certainly that would never be our 

intent, and I apologize. 

One of the things we are trying to do in this area is look for common ground, and one area of common ground might be to work 

with States in the near-term to look for ways to make the reporting 

obligations less burdensome. I don’t want to overcompensate in either direction, and I recognize—we all do—that States and local 

governments have an important role in this. And so one thing I 

hope that the Agency will do in the very term will be to reach out 

to states and local governments and find out how much need they 

have for this information, and what uses they put to it, and whether there are ways that we can use reports that are already submitted to State governments to do double job, that they can satisfy 

CERCLA and EPCRA obligations in addition to whatever State law 

obligations they serve. 

That kind of sort of search for ways that are win-win for everybody is something I think is useful in a first step, but I don’t know 

how far it will take us, and we would be happy to report back to 

you and others once we have gotten a certain way down that road 

as to how much we can accomplish. 

24

Mr. SULLIVAN. Well, if we have two parties, Oklahoma and Arkansas, wanting to work together with the poultry industry, they 

are kind of—they want to come together. It is very difficult because 

there are divergent views and it is tough and there is a lot at 

stake, what—I mean, can you come in and be some kind of—I 

guess I envision that you can, since you are the EPA of the Federal 

Government, come in and kind of corral everybody, kind of get 

them together to work. Is that not what the EPA would do? Is that 

not a role of a Federal agency to do that——

Mr. BREEN. Thank you. 

Mr. SULLIVAN. [continuing] in the United States? 

Mr. BREEN. Thank you. I want to be careful that we would only 

do so in a situation where we would add more light than heat, and 

not rile things up more just by being there. I am not aware in that 

particular situation that parties have asked us to join in in that 

way and mutually agreed that that would be helpful. Often it is a 

neutral that people that would seek, not a Federal agency. 

Mr. SULLIVAN. If I as a Congressman asked, and other members 

of my delegation asked, would that be appropriate to have you 

come in and help these parties figure something out without a lawsuit? 

Mr. BREEN. Congressman, naturally, your asking would be very 

important, but how we would react, I would have to take back and 

think through what the people closest to that issue. 

Mr. SULLIVAN. You said in this statement that you submitted 

that you have—the EPA, where it says here in your testimony, you 

state that ‘‘the EPA does not have positions on many of the issues 

involved in the litigation between the animal agriculture industry, 

states and the municipalities.’’ What issues in the litigation, if any, 

does the EPA have a position on? It says many. 

Mr. BREEN. Right. 

Mr. SULLIVAN. There may be some. 

Mr. BREEN. Thank you. I actually haven’t read all the briefs and 

all the complaints, so I can’t tell you what issues are raised that 

we have already dealt with and briefed on behalf of the United 

States. I have not gone through and catalogued in that way. 

Mr. SULLIVAN. Would you think the EPA would state a position 

on something in it? 

Mr. BREEN. I am not sure——

Mr. SULLIVAN. Doesn’t any——

Mr. BREEN. [continuing] that we would naturally wander into 

other litigation and state positions unless it had been something 

that we already had a position on because of some litigation we 

had been part of. 

Mr. SULLIVAN. Also, one more question, does the EPA have any 

plans to clarify what livestock producers’ obligations are, if any, 

under CERCLA? 

Mr. BREEN. Yes, we do hope to make some progress in that area, 

starting with getting some burdens reduced as much as we can and 

then seeing if further clarification will be helpful beyond that. 

Mr. SULLIVAN. Okay. Thank you, Mr. Chairman. 

Mr. DEAL. Thank you. Mr. Stupak? 

25

Mr. STUPAK. Thank you, and thank you, Mr. Breen. Are the reporting requirements and response requirements under CERCLA 

and EPCRA overly burdensome for the large CAFOs? 

Mr. BREEN. I suppose you would have to ask them that. 

Mr. STUPAK. Well, I am looking on page 3 of your testimony, you 

talked about Tyson’s Foods, the world’s largest meat producer, enjoyed $26.4 billion in sales, and realized $1.9 billion in gross profits 

in 2004. Smithfield Foods, the Nation’s largest hog producer, generated $9.3 billion in sales, and $227 million net income. And it 

goes on, it says, ‘‘revenue and profits continue to grow each year.’’ 

So I guess I am taking it from your testimony it is not overly burdensome then. 

Mr. BREEN. Actually, you may be reading somebody else’s testimony. 

Mr. DEAL. It is testimony from the second panel, one of the witnesses——

Mr. STUPAK. Somebody gave me the wrong testimony, so I can’t 

attribute it to you. Sorry. 

Mr. BREEN. I wish I were that smart. 

Mr. STUPAK. I was giving you all the credit. Let me ask you this 

one then, in January 2003, the GAO Report on Livestock/Agriculture used 11,500 as the estimated number of confined animal 

feeding operations in this country. How many are required to have 

a Clean Water National Pollutant Discharge Elimination System 

permit and how many have actually been permitted, do you know? 

Mr. BREEN. Let me get you that answer for the record, sir. I don’t 

know off the top of my head. 

Mr. STUPAK. Okay. Let me ask you this one then. If a discharge 

from an agriculture operation into surface water has a Clean Water 

Act permit, would it be exempt from CERCLA Section 103 and 

EPCRA Section 104 Notification Requirements? 

Mr. BREEN. This is the federally permitted release——

Mr. STUPAK. Right. 

Mr. BREEN. [continuing] exemption? Although I am familiar with 

the exemption, I have not tracked back whether it tracks to both 

the reporting or the response. Either or both, I don’t know. 

Mr. STUPAK. Okay. I am looking at your document here. This is 

the EPA Questions/Answers to Release Notification Requirements 

and Reportable Quantity Adjustments. 

Mr. BREEN. Okay. 

Mr. STUPAK. Okay. And I am looking on page 28, number 56. 

What is the scope of the federally permitted release exemption and 

such as Section 101-10 defines federally permitted release in terms 

of releases per minute, honoring a number of other environmental 

statutes, releases they are federally permitted or exempt, not only 

from CERCLA 103 and EPCRA Section 103 Notification Requirements, but from CERCLA liability as well. 

Mr. BREEN. Thank you. 

Mr. STUPAK. That answers that question then, right? 

Mr. BREEN. If it is in our fact sheet, I am sure it is right. 

Mr. STUPAK. Okay. Let me ask this question: some of the highest 

fugitive air emissions for ammonia reported in 2003 EPA Toxic Release Inventory were from poultry operations in Ohio. How many 

26

reports for ammonia in EPCRA has the EPA received in the last 

2 years from family farms and how many from COFAs? 

Mr. BREEN. Okay. I can help a little on that, although I don’t 

know if I can nail it down quite the way you framed it. We get—

we being the National Response Center, the NRC, which is actually 

staffed by the Coast Guard—gets approximately 32,000 to 34,000 

incidents reported per year of all types, and that is over the last 

5 years. I haven’t seen 2005 data. That is 2000 through 2004. Of 

that 32,000 to 34,000, about 11,800 to 13,000 per year are from 

fixed sources. So lots are from railroads, you know, pipelines, 

things that wouldn’t really be a part of the universe we are thinking of here. Of that 11,800 to 13,000, a little over 1,000 per year—

1,041—are from ammonia, and an average of 556 are from hydrogen-sulfide. And there is a split in there between episodic and continuous releases that I can get—go down, drill down further on 

that if you would like. 

We asked one of our best folks to go back for 1904 and look at 

which of those were confirmed from animal feeding operations. For 

2004 on the ammonia side, of the 1,041 ammonia reports received 

from fixed sources, we were able to confirm that 45 were from animal feeding operations, six episodic, and six continuous. On the hydrogen-sulfide side, of the average of 556 per year, in 2004, 25 were 

confirmed from animal feeding operations, none episodic, and 25, 

all 25, were from continuous releases. But, I ought to caution you 

two things in using these numbers. 

First, we don’t know what is unreported, we only know what is 

reported. And, second, it is not always clear from a preliminary review of the report whether we are able to confirm that the source 

is an animal feeding operation or not. Sometimes it is something 

like—or call in, I smell something in the air, and by looking at 

that, it is not clear where it came from. But I was able to tell you 

where we were able to confirm it, based on a preliminary review. 

Mr. STUPAK. Well, in these reports in the animal feeding lots 

there, has there been any regulatory consequences after they report? I mean, you have these reports coming in. Are there any regulatory consequences then? 

Mr. BREEN. Well, one thing I would like to help find out for you 

is what State governments needs for is in this information area. I 

don’t have that information available at the moment. 

Mr. STUPAK. Okay. So I’m looking here at your 2003 report, onsite, offsite. When I take a look at it on the fugitive air emissions 

number 8, number 10, number 20, and then they are ranked by the 

amount of emissions. The top three of 20 are from Ohio, and it 

looks like poultry producers in that State. Does that sound correct? 

Mr. BREEN. You are looking at the Toxic Release Inventory? 

Mr. STUPAK. Yes. 

Mr. BREEN. Actually, that is a separate provision. The Emergency Planning and Community Right-to-Know Act splits——

Mr. STUPAK. Correct. 

Mr. BREEN. [continuing] fairly neatly into two halves, and what 

I have been talking about up until now was the Emergency Planning half rather than the Community Right-to-Know half. I don’t 

have an ability to second-guess the numbers on the Toxic Release 

Inventory. 

27

Mr. STUPAK. Thank you. 

Mr. DEAL. We have two members who are close by. As Mr. Dingell is outside, we will recognize him next for questions. 

Mr. DINGELL. Mr. Chairman——

Mr. DEAL. You are recognized, Mr. Dingell. 

Mr. DINGELL. [continuing] thank you for your patience. Mr. 

Breen, I, first of all, will be submitting a letter to you asking a 

number of questions on this legislation that have not been included 

in your testimony or, I think, in the testimony of other witnesses. 

Mr. Chairman, I ask unanimous consent that that letter and the 

response that Mr. Breen sends on behalf of EPA be inserted in the 

record. 

Mr. DEAL. Without objection. 

Mr. DINGELL. Mr. Breen, referring to premium standard farms, 

they had 900,000 hogs under confinement, and they make application of 750 million gallons of animal waste to the surrounding acreage annually. Is it—does this have a potential for risk to the 

human health? 

Mr. BREEN. First, Mr. Dingell——

Mr. DINGELL. Just yes or no. 

Mr. BREEN. I am not sure I can fairly answer——

Mr. DINGELL. It does or it doesn’t? 

Mr. BREEN. [continuing] it with yes or no, sir. 

Mr. DINGELL. You are going to tell me that it is perfectly safe? 

Mr. BREEN. No. 

Mr. DINGELL. Are you going to tell me it is not safe? 

Mr. BREEN. What I wanted to do was make sure we had our 

numbers down right. 

Mr. DINGELL. All right. 900,000 hogs I got, 750 million gallons 

of annual waste. 

Mr. BREEN. The figures I have are 2 million hogs a year——

Mr. DINGELL. Two million hogs. 

Mr. BREEN. [continuing] at a dozen facilities. 

Mr. DINGELL. I apologize to you. And how much waste? 

Mr. BREEN. I don’t have that figure. 

Mr. DINGELL. Now——

Mr. BREEN. But not 2 million at one facility, sir. Two million at 

about a dozen facilities. 

Mr. DINGELL. Okay. Now, I have been out in Colorado where 

they have Montfort, you have heard of it? 

Mr. BREEN. Sorry? 

Mr. DINGELL. Montfort, M-o-n-t-f-o-r-t. You can smell it for 30 

miles up and down the front range. It is a huge cattle feed lot operation. Now, this—I found this in the EPA Fact Sheet in the Premium Farm Standard case. It says as follows, ‘‘Significant human 

health and environmental risks are generally associated with largescale concentrated animal feeding operations (CAFOs). Improper 

handling of manure from feedlots, lagoons, and improper land application can result in excessive nutrients (nitrogen and phosphorous); pathogens (fecal coliform); and other pollutants in the 

water. This pollution can kill fish, cause excessive algae growth, 

contaminate drinking water. In addition, pollution—emissions of 

air pollutants from very large CAFOs may result in significant 

health effects for nearby residents.’’ Do you agree with that? 

28

Mr. BREEN. I did not bring that fact sheet with me. I did bring 

the Agency’s——

Mr. DINGELL. But do you agree with it? 

Mr. BREEN. —Toxic Substances and Disease Registry Fact Sheets 

with me. 

Mr. DINGELL. Do you agree with it? 

Mr. BREEN. I would have to have it in front of me, sir, and be 

able to carefully read it. 

Mr. DINGELL. Sir, I’m reading out of the EPA Fact Sheet. 

Mr. BREEN. I will let it stand for what——

Mr. DINGELL. Maybe——

Mr. BREEN. [continuing] it says. 

Mr. DINGELL. Maybe you have differences with EPA on matters 

involving health. Am I correct on that? All right. Now, 2 million 

hogs, how much—they would produce fecal matter or animal waste 

in amounts that would approximately equal that of a city of what 

size? 

Mr. BREEN. I would have to get you that number for the record. 

Mr. DINGELL. Would it be a hick town or would it be a major 

metropolitan area? 

Mr. BREEN. I will find out. 

Mr. DINGELL. All right. Now, I have got a bunch of small farmers. I want to protect them. They have animal feeding operations 

that—and I want to try and figure out what amount of hogs, or size 

of herd or flock, would trigger the reporting requirements for ammonia and hydrogen-sulfide of 100 pounds per day. 

Mr. BREEN. Actually, that is one of the things we don’t know, 

and we hope that the science will help develop from our Consent 

Agreement. 

Mr. DINGELL. Now, have you—has the Administration provided 

any guidance to small farmers that have animal feeding operations? 

Mr. BREEN. We haven’t provided sufficient guidance. I think we 

can do better. 

Mr. DINGELL. When will you get around to that? 

Mr. BREEN. We are going to start by finding out what State and 

local governments need, and looking for areas we can make the 

burden less in reporting and see how far that takes us and go from 

there. 

Mr. DINGELL. Well, maybe you can help me with this question. 

Do you believe any small farm operations, as opposed to industrialsized CAFOs, would actually trigger the reporting requirements for 

ammonia and hydrogen-sulfide? 

Mr. BREEN. I am going to just have to let each set of facts stand 

on its own. What is small? What is large? I just couldn’t answer. 

Mr. DINGELL. Is there anybody in the room that you could turn 

to who might help you with that? 

Mr. BREEN. I don’t think so. I think a lot would depend on facts 

that we don’t have. 

Mr. DINGELL. Well, Mr. Chairman, I am going to yield you back 

8 seconds. 

Mr. DEAL. I thank the gentleman for his generosity. Mr. Gillmor 

was expected back but is not here, so Mr. Breen, thank you so 

much for your testimony and appearance here today, and I will call 

29

the second panel to the table, if they would come forward. Mr. Hall, 

did you want to question Mr. Breen? 

Mr. HALL. No. 

Mr. DEAL. Okay. Thank you. Thank you, ladies and gentlemen, 

for being here. I will introduce the panel, a very distinguished 

group, I might add. And thank you all for your time in being here. 

Ms. Kelly Hunter Burch, who is the Assistant Attorney General of 

the State of Oklahoma; Mr. Wiley Stem III, Assistant City Manager of the city of Waco, Texas; Mr. Steven Kouplen, President of 

the Oklahoma Farm Bureau, and here on behalf, I believe, of the 

American Farm Bureau Federation; Mr. Robert T. Connery, who is 

a partner in Holland and Hart, and also is appearing here on behalf of the National Cattlemen’s Beef Association; Mr. John 

Starkey, who is Vice President of Environmental Programs of U.S. 

Poultry and Egg Association; and Dr. Leon D. Weaver, Managing 

Member of Bridgeport Dairy, and is appearing on behalf of Continental Dairy Products, Incorporated, and Select Milk Producers, Incorporated; Dr. Robert Lawrence, Associate Dean for Professional 

Practice and Programs at Johns Hopkins Bloomberg School of Public Health; and Ms. Michele Merkel, Senior Counsel of the Environmental Integrity Project. 

And, ladies and gentlemen, each of you will be recognized for 5 

minutes. Your statements that are prepared in advance are already 

a part of our records, so recognizing that 5 minutes is not a very 

long time to talk, I would ask if you would try to summarize that. 

Ms. Burch, we will start with you. 

STATEMENTS OF KELLY HUNTER BURCH, CHIEF OF ENVIRONMENTAL PROTECTION UNIT AND ASSISTANT ATTORNEY 

GENERAL, OFFICE OF THE OKLAHOMA ATTORNEY GENERAL; WILEY STERN III, ASSISTANT CITY MANAGER, CITY OF 

WACO; STEVEN KOUPLEN, PRESIDENT, OKLAHOMA FARM 

BUREAU; ROBERT T. CONNERY, PARTNER, HOLLAND AND 

HART, ON BEHALF OF NATIONAL CATTLEMEN’S BEEF ASSOCIATION; JOHN STARKEY, VICE PRESIDENT, ENVIRONMENTAL PROGRAMS, U.S. POULTRY AND EGG ASSOCIATION; 

LEON D. WEAVER, MANAGING MEMBER, BRIDGEWATER 

DAIRY, MANAGING PARTNER, BRIDGEWATER FARMING, ON 

BEHALF OF CONTINENTAL DAIRY PRODUCTS, INC., AND SELECT MILK PRODUCERS, INC.; ROBERT S. LAWRENCE, ASSOCIATE DEAN FOR PROFESSIONAL PRACTICE AND PROGRAMS, AND EDITH SCHOENRICH, PROFESSOR OF PREVENTIVE MEDICINE, JOHNS HOPKINS BLOOMBERG SCHOOL OF 

PUBLIC HEALTH POLICY; AND MICHELE M. MERKEL, SENIOR 

COUNSEL, ENVIRONMENTAL INTEGRITY PROJECT 

Ms. BURCH. Thank you. Thank you for allowing me to be here 

with you today. The issue that I think—are of great importance to 

the State of Oklahoma, we are currently dealing with widespread 

pollution caused by the improper waste disposal practices of industrial-scale poultry operations. The impacts of these practices are 

seen across roughly the eastern third of our State. 

One of the areas most impacted by the release of hazardous substances is the Illinois River and Lake Tenkiller Watershed. This 

watershed also happens to be one of the most highly valued and 

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protected watersheds in the State. The Illinois River Watershed 

has historically been noted for its great beauty, its clear high-quality water, and its ecological diversity. Early travelers to the area 

called it one of the prettiest rivers on the continent. The State has 

designated the Illinois River and its tributaries as State scenic rivers, and Lake Tenkiller has been referred to as the Emerald Jewel 

in Oklahoma’s Crown of Lakes. As a result, tourism has been a 

major part of the region’s economy, and the watershed serves as a 

valuable source of drinking water for 22 public water supplies. 

This watershed is divided almost equally between Arkansas and 

Oklahoma. The Arkansas side is the center of Arkansas’ poultry industry, which ranks second in broiler production in the United 

States. As of 2002, confined poultry feeding operations in the Illinois River Watershed were estimated to produce an amount of 

phosphorous equivalent to the waste of 10.7 million people. This 

waste, in addition to phosphorous, includes nitrogen, arsenic, zinc, 

copper, hormones, antibiotics, and a myriad of pathogens. Phosphorous, arsenic, zinc and copper are designated hazardous substances under CERCLA. 

This waste is typically improperly stored and disposed of on 

lands within the watersheds, far in excess of any legitimate crop 

need or the capacity of the soil to retain them. The constituents of 

the waste have been released into the surface water, the groundwater, and the sediments of the Illinois River. The result has been 

widespread and well-recognized pollution of an entire watershed. 

The State first began negotiations to put an end to these practices with the poultry industry in November of 2001. In the years 

that followed, the State worked hard to avoid litigation, and employed every conceivable method for resolution, from informal negotiations with the assistance of EPA Region 6 and the Arkansas Attorney General, to formal mediation with a formal Federal—with 

a former Federal judge. All of these efforts failed to bring resolution. 

In June of this year, the State was forced to file litigation against 

responsible companies in Federal court. The litigation was filed 

under Section 107 of CERCLA as well as other State and Federal 

laws. The case was filed on behalf of the State of Oklahoma and 

the Oklahoma Secretary of Environment. The goal of the litigation 

is to stop the improper disposal and clean up the watershed. 

It is also important to note that the litigation is directed at the 

responsible companies, and it is not directed at any individual 

farmers upon who the companies often place the burden of waste 

disposal. As you can imagine, Oklahoma is strongly opposed to the 

proposal to exempt releases of hazardous substances by the poultry 

industry from CERCLA. CERCLA is a long-standing, important 

Federal law that provides a mechanism for states to protect their 

citizens and their environment from the dangers of hazardous substances. 

Make no mistake, such an exemption is asking—would be a substantial change in the Law. There is no animal agriculture industry exemption in CERCLA, nor is such an exemption justified. It 

is important to understand that the pollution caused by industrial 

animal agriculture is well-documented, serious, and of a Nationwide scope. In fact, the EPA has reported that the agriculture secVerDate 0ct 09 2002 15:16 Jun 12, 2006 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6602 F:\DOCS\27001.TXT HCOM1 PsN: JOEP
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tor is the leading contributor of pollutants to the Nation’s lake and 

rivers. 

The animal—the industrial animal feeding operations are not the 

family farm. We are talking about a multi-billion dollar industry 

that produces an enormous volume of waste. In 2003, it was estimated that animal feeding operations generated more than 500 

million tons of waste. Approximately three times more raw waste 

than is generated by humans. The overwhelming majority of these 

operations are not regulated under the Clean Water Act, and they 

are not adequately regulated in Arkansas. 

In addition, the hazardous substances found in poultry waste are 

not naturally occurring. There in the waste is the direct result of 

the industry’s addition of phosphorous, arsenic, copper and zinc to 

poultry feed. While CERCLA exempts the normal application of fertilizer, it does not exempt widespread surface disposal, nor the resulting releases of hazardous substances. 

In conclusion, the release of hazardous substances from the poultry industry’s waste disposal practices is a serious problem across 

the United States. CERCLA provides an important mechanism for 

the states to respond to the problem and hold the companies responsible rather than using taxpayer funds to clean up the industry’s pollution. The poultry industry should be subject to the same 

laws that apply to other industries in the country. Hazardous substance disposal and the resulting pollution should not be condoned 

by the creation of an exemption for the industry in Federal law. 

Thank you again for the opportunity to present our views on this 

issue to you. 

[The prepared statement of Kelly Hunter Burch follows:]

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Mr. GILLMOR. Thank you, Ms. Burch. And before I go to Mr. 

Stem, I want to thank Congressman Deal for so expeditiously handling the hearing while I had to be at another mark-up. Mr. Stem. 

STATEMENT OF WILEY STEM III 

Mr. STEM. Thank you, Mr. Chairman and members of the committee. I wanted to let you all know that I have worked for the city 

of Waco for 29 years and mostly in the Public Works area. I also 

wanted to tell you that since 1961, my family has owned and operated a cow/calf operation in Falls County, Texas, and for the past 

20 years, I have been a member of the Farm Bureau. 

Lake Waco represents the public drinking water supply of the 

city of Waco, and a significant source of drinking water for many 

surrounding communities, approximately 150,000 citizens. There is 

no viable alternative to this water source. Over the last 20 years, 

Lake Waco water has become impacted due to the flow of phosphorous from the North Bosque River into Lake Waco, which is directly attributable to the discharge of phosphorous from waste application fields on dairy CAFOs. 

The EPA and the Texas Commission on Environment Quality 

have identified the North Bosque River as impaired. In July of 

2004, the TCEQ issued a report stating that 90 percent of the controllable phosphorous in the North Bosque River comes from concentrated animal feeding operations, or CAFOs. The Texas Institute for Applied Environmental Research, located in the heart of 

dairy country in Stevenville, Texas, has been studying this issue 

for the past decade, and has concluded that 35 percent of the phosphorous in Lake Waco comes from dairy CAFO waste application 

fields. They also concluded that without substantial reducing, runoff of phosphorous from the dairy fields, the overloading of phosphorous in Lake Waco cannot be resolved. Scientific studies have 

shown that excess phosphorous floating in Lake Waco causes algae 

blooms, and those blooms cause taste and odor problems with 

water in our lake. It is unquestioned that the dairy CAFOs have, 

and will continue to be, the major source of overloading Lake Waco, 

causing taste and odor problems with the water from the lake. 

I think it would be helpful to go over some statistics regarding 

the waste generated by dairy cows in the North Bosque Watershed. 

A dairy cow generates up to 150 pounds of waste a day. Considering that there are over 50,000 permitted head of dairy cow in the 

watershed, the amount of waste produced each day would exceed 

5,750,000 pounds, which is 2,875 tons of waste each day. A single 

dairy cow may produce as much as 40 pounds of phosphorous per 

year, or more, which means permitted cows in our watershed would 

produce as much as 2 million pounds of phosphorous each year. 

Over the last 10 years, the city has worked with every stakeholder group to find a resolution to the issue. Our community is 

very sensitive to the agriculture industry, as it is such an important part of our economy. Being unable to get rules and standards 

for the dairy CAFOs that would give us some reasonable assurance 

that Lake Waco would be protected, and being unable to get the 

dairy industry to accept any responsibility or make any meaningful 

operational changes, we noticed 15 dairies in the watershed of our 

intent to sue under the Clean Water Act and CERCLA. 

67

We gave them a 60-day notice and invited them to discuss resolution with us. One of the 15 dairies contacted us. We did not sue 

that dairy and are still in discussions with that dairy. The other 

dairies didn’t contact us, so we filed suit against those 14 dairies. 

Over the course of the next year, we settled with eight of the 

dairies in a manner that allowed them to continue profitable operation while agreeing to changes that will protect our lake. 

As part of that lawsuit, the City included claims under CERCLA. 

Now there is an effort to amend CERCLA to exclude animal manure. I believe that such an amendment is unnecessary. However, 

the city of Waco would support language that would clarify protection for the family farm. We would not support language that 

would provide protection for CAFOs. 

To summarize, all credible scientists who have studied this problem have concluded that the dairy CAFOs are the latest single controllable source of phosphorous and pollution in the Lake Waco Watershed. In light of that fact, why should a law be passed that gives 

the dairy CAFOs an automatic pass and prevents them from having any accountability for their failure to properly handle their 

waste. Why should the taxpaying citizens of Waco have to bear all 

the costs of the waste being put into the lake when the dairies 

could buy grain, do some relatively simple modifications in their 

waste disposal practices, substantially minimize further pollution 

of our lake. 

In the face of the dairy CAFOs refusal to change their practices 

to prevent damage or to be held accountable in any way for the 

damage they have already caused, CERCLA is an appropriate remedy and a necessary statute. Thank you. 

[The prepared statement of Wiley Stem III follows:]

PREPARED STATEMENT OF WILEY STEM III, ASSISTANT CITY MANAGER, CITY OF

WACO, TEXAS

I. INTRODUCTION

My name is Wiley Stem. I have been an employee of the City of Waco for the past 

29 years. Over that time I have worked as a management analyst, assistant director 

of public works, water/wastewater supervisor, and director of water distribution and 

wastewater divisions. In 1999 I assumed a position as Assistant City Manager, 

which is the position I currently hold. As Assistant City Manager my responsibilities and duties include overseeing several different departments within our local 

government, including water utilities, environmental services, general services, public works, human resources and parks and recreation. 

I received a Bachelor of Business Administration degree from Baylor University 

in 1976. I am a member of the International City Management Association (ICMA), 

the Texas City Management Association (TCMA), American Water Works Association (AWWA), and Water Environment Federation, and for the past twenty years 

I have been a member of the Texas Farm Bureau. I currently serve on the Brazos 

G Regional Water Planning Group and am chair of the Waco Metropolitan Area Regional Sewerage System. I have also served on the United Way board. On a personal 

note, my family has had a farm in Falls County since 1961, and we continue to have 

a cow/calf operation there. 

I want to thank the Subcommittee on Environment and Hazardous Materials for 

allowing me to testify regarding proposed amendments to CERCLA that would exclude animal manure and anything in it from the list of hazardous substances covered by the statute. 

II. HISTORY AND CHARACTERISTICS OF LAKE WACO

Lake Waco is located in the southeastern portion of the Bosque River Watershed, 

Brazos River Basin, entirely within McLennan County, Texas, and on the northVerDate 0ct 09 2002 15:16 Jun 12, 2006 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6621 F:\DOCS\27001.TXT HCOM1 PsN: JOEP
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1Two maps of the North Bosque River Watershed and Lake Waco are attached as ‘‘Exhibit 

A’’

western edge of the Waco city limits. In or about 1928, construction of a dam to 

impound Lake Waco began and was completed around 1930. 

Lake Waco is fed by the North Bosque, the Middle Bosque, and the South Bosque 

rivers, and by Hog Creek. The contributing watershed to Lake Waco is approximately 1,652 square miles with about 1,260 square miles in the North Bosque River 

watershed. The North Bosque River and its tributaries flow downstream and terminate in Lake Waco, which means that pollutants dissolved and entrained in the waters of the North Bosque are carried into, and ultimately deposited in, Lake Waco.1

In or about 1958, the City of Waco, with the assistance and support of the U.S. 

Army Corp of Engineers, began construction of a second larger dam on Lake Waco 

to provide additional flood control and drinking water. That project was completed 

in or about 1965. 

III. USES OF AND IMPORTANCE OF LAKE WACO

Lake Waco represents the public drinking water supply for the City of Waco and 

a significant source of drinking water for many surrounding communities approximately 150,000 citizens. 

Additionally, Lake Waco is used for a wide variety of recreational activities, including fishing, boating, swimming, and water skiing. Lake Waco shores also provide recreational activities and amenities in the form of parks, picnic areas, boat 

docks and camping facilities. Lake Waco is also put to a variety of other municipal 

purposes, including irrigation and conservation. 

A clean and reliable source of drinking water is indispensable to the health and 

welfare of the citizens of Waco and is also essential to the existence and growth of 

business and industry in Waco. A substantial supply of clean water is also critical 

to the City’s ability to maintain and attract industrial enterprises. 

Lake Waco is the regional water supply. There is no viable alternative to the Lake 

as the regional water supply, and that will continue to be the case into the foreseeable future. 

IV. THE EFFECT OF DAIRY WASTE

In the later half of the 1980’s, large industrial dairy operators began moving into 

counties in the North Bosque River watershed. This influx of dairy operators into 

the watershed coincided with a massive increase in the amount of nutrients, and 

specifically phosphorus, which were being released into the North Bosque River and 

ultimately deposited into Lake Waco. The waste from these dairies is the single 

most important cause of the environmental problems that are occurring in the 

North Bosque River watershed and Lake Waco. 

A. Dairies Produce Huge Amounts of Waste 

A dairy cow generates up to 115 pounds of manure per day or more. If we look 

only at the fourteen dairies that either were or presently are involved in a lawsuit 

with the City of Waco, the permitted cows from those diaries would account for in 

excess of 1,600,000 pounds of manure per day. Considering that there are over 70 

dairies in the North Bosque River watershed that have over 50,000 permitted head 

of dairy cattle, the amount of manure produced each day would be in excess of 

5,750,000 pounds, or 2,875 tons of manure every day. In addition to the solid waste 

generated by the dairy cows, the cows produce large amounts of liquid waste. 

In addition to the milking cows and the waste they produce, some dairies maintain additional cows on their dairy which are not milked on a daily basis. Those 

‘‘dry cows’’, as they are called, can add another 7 to 15 percent to the overall size 

of the cow population on the dairy, and the amount of waste produced by those 

dairies. 

Best management practices indicate that to properly dispose of waste, a dairy operator should maintain 1.5 to 3 acres of land per dairy cow. For example, a 2,000 

cow dairy ought to have 3,000 to 6,000 acres of land to properly dispose of waste 

produced by their cows. The concentration of cows at dairies in the North Bosque 

River watershed is often far greater than that. In many instances, dairies in this 

region maintain less than 1⁄4 to 1⁄5 an acre per cow. One of the dairies in the lawsuit 

brought by the City of Waco has 396 permitted acres of waste application fields on 

which to dispose of the waste from 2,000 cows, and is seeking a permit amendment 

to increase herd size to 3,000 cows, without increasing the number of acres of permitted waste application fields. Another dairy involved in the City of Waco lawsuit 

69

is seeking to increase it’s permitted number of cows to 2,500, despite the fact that 

the dairy in question only has 83 acres of permitted waste application fields. 

The solid and liquid cow waste contains many pathogens and bacteria. Significantly, the huge amounts of solid and liquid waste generated by the dairy cows contain very high concentrations of phosphorus. A single dairy cow may produce as 

much as 40 pounds of phosphorus per year or more, which means permitted cows 

in our watershed would produce as much as 2,000,000 pounds of phosphorus each 

year. 

B. Dairies in the North Bosque River Watershed Have Failed To Properly 

Handle Liquid and Solid Waste 

The phosphorus being released by these dairies is a pollutant and is poisonous. 

Both CERCLA and the Clean Water Act recognize phosphorus as a hazardous substance. 

Because of the enormous amounts of waste generated on a daily basis by dairies, 

it is critical that the dairy operators dispose of such waste properly and in a way 

which ensures that the waste does not reach the water supply. Many of the dairies 

in the North Bosque River watershed have failed to properly manage and dispose 

of the waste from their large commercial dairy operations. Two photographs are attached as ‘‘Exhibit B’’, which show a dairy in the watershed where waste has been 

over-applied on a waste application field, and that waste is running directly into a 

tributary of the North Bosque River. Their continued failure to do so has resulted 

in the pollution of Lake Waco and substantial damage and injury to the citizens of 

central Texas who rely on Lake Waco. 

Liquid waste from cows and slurry resulting from washwater being combined with 

solid waste from cows is collected in ‘‘lagoons’’ located on the dairies. Because the 

lagoons are comprised of liquid waste, as well as some substantial percentage of 

solid waste, the contents of those lagoons is very high in phosphorus and other hazardous substances. Those lagoons are supposed to be specially and properly lined 

to ensure that the liquid waste is contained and does not leach into the ground and 

into the groundwaters and water supplies. Many of the dairies in this region have 

failed to construct and maintain their lagoons in a way which prevents leaching. 

Dairy operators are supposed to control the levels of the lagoons to ensure that 

they do not overflow during rain and other events. Those overflows, which are referred to as unauthorized discharges, are to be prevented because, when they do 

occur, the waste runs, in an uncontrolled manner, onto and over the land, off of the 

dairies and into the groundwaters and surface water supplies. Again, the large industrial dairies in the North Bosque River watershed have failed to control the levels of their lagoons and have improperly maintained their lagoons. These failures 

and omissions have resulted in wastewater running out of the lagoons and into the 

watershed. This runoff occurs not only in significant rains, but also at times when 

there is no or relatively small rainfall events. Such occurrences are in violation of 

these dairies’ permits and in violation of state and federal law. 

On those frequent occasions when the dairies have attempted to reduce the volume of materials in their lagoons by spreading it on their fields, they have frequently done so in a manner which results in contents of the lagoons entering the 

creeks, the watershed and the Lake Waco water supply. 

These large industrial dairies also generate and have to dispose of enormous 

amounts of phosphorus-containing dry manure. With their permitted cows, the fourteen dairies that were or are defendants in the City of Waco’s lawsuit alone would 

generate in excess of 800 tons of solid cow waste per day, which has to be disposed 

of on-site or is stored in piles while waiting to be transported off-site. 

The dairies routinely store large amounts of solid waste on their property in waste 

storage areas. The waste in the waste storage areas will be disposed on-site or 

transported off-site. The phosphorus in such manure waste is present at levels 

which are far greater than those present in normal agricultural operations. Several 

times a year, there are heavy rains which turn portions of this stored waste into 

liquid manure that runs off of dairy waste application fields and into the watershed 

which supplies Lake Waco. 

As a result of the conduct of some large industrial dairies in the North Bosque 

River watershed, large amounts of manure-laden waste make its way into the North 

Bosque River. This has dramatic detrimental effects on Lake Waco. 

Dairies also dispose of some of the waste they generate by spreading it on waste 

application fields on their facilities. Because the land they possess is so relatively 

small in comparison to the number of cows they have confined in their pens, many 

of the dairies long ago exceeded the natural capacity of the soils and vegetation on 

their facilities to absorb the phosphorus or for the soil to otherwise assimilate the 

phosphorus. 

70

Fields containing phosphorus at levels in excess of 60 to 80 parts per million 

(ppm) exceed the amount of phosphorus needed for optimal growth for any type of 

plant. At levels of 200 ppm and higher, not only is there far more phosphorus than 

can be used by plants, but there is also a very high risk that the phosphorus will 

run off of the fields and into the water supply at concentrations detrimental to the 

water supply. Once soil phosphorus reaches levels in excess of 200 ppm, the time 

required for the phosphorus levels to decline is considerable; that process can take 

years or even decades. Thus, the risk of runoff from fields with phosphorus levels 

in excess of 200 ppm is considerable and extended. 

Many of the dairies in the North Bosque River watershed have greatly over applied waste to their waste application fields and have thereby caused those fields 

to reach soil phosphorus levels that exceed 200 ppm. In fact, over the past five years 

over 50 dairies in the watershed have applied so much waste that one or more of 

their fields have exceeded 200 ppm according to annual soil samples taken by the 

Texas Commission on Environmental Quality (‘‘TCEQ’’). During that same five year 

period, there have been over 200 individual waste application fields on dairies in 

the watershed exceeding 200 ppm according to those same TCEQ samples. At the 

same time, these dairies have failed to properly maintain their waste application 

fields, and therefore the risk of runoff is even greater. These dairy CAFOs have 

crossed the line from beneficial use to waste disposal, and that disposal is adversely 

affecting our drinking water. 

Any application of manure and waste products containing phosphorus to a waste 

application field in excess of 80 ppm is not for agricultural purposes; instead, it is 

simply for the disposal of waste. Even the TCEQ has concluded that when a field 

gets to 200 ppm there is a significant risk of runoff from that field during rainfall 

events into the streams and rivers in the watershed. 

Large industrial dairies in the watershed have permits issued to them by the 

State of Texas which require them to conduct their operations in accordance with 

various laws, rules and regulations. Many of those dairies have operated their 

dairies and maintained their land in such a way as to have consistently and egregiously violated the applicable laws and regulations, and they continue to do so. 

Discharges by dairies into the North Bosque Watershed have caused the quality 

of the water in Lake Waco to deteriorate. The manure-laden waste entering the watershed from the large industrial dairies along the North Bosque River pollutes and 

fouls Lake Waco. Among the problems such pollution creates, is that the phosphorous contained in such waste causes the growth of algae, which generates substantial taste and odor problems with the water in Lake Waco. 

V. TASTE AND ODOR PROBLEMS

Prior to the late 1980’s the City of Waco experienced taste and odor problems with 

the water from Lake Waco only on a sporadic and episodic basis. Those sporadic and 

episodic taste and odor problems in the water were resolved without the City of 

Waco having to resort to special water treatment methods. 

In or about the late 1980’s, large industrial dairy operators began moving into 

Erath County and into the North Bosque River watershed. 

A. The Development of Taste and Odor Problems in Lake Waco 

In about 1988 there were very notable increases in the levels of algae in Lake 

Waco. The mass and volume of algae increased to levels which had never before occurred in Lake Waco. There was and is a direct correlation between the increased 

levels of phosphorus in Lake Waco resulting from dairy waste runoff, increased levels of algae in the Lake and the taste and odor problems with the water in Lake 

Waco. As the algae level in the lake increased, so did the taste and odor problems 

with the water. The problems became so bad and so greatly affected the quality of 

the water that the City began using a different and additional treatment process 

in order to make the water acceptable for human consumption. 

From about 1988 to December of 1996, the frequency and severity of the taste and 

odor problems with the water in Lake Waco continued to increase dramatically. 

There was a corresponding increase in the efforts and expense required of the City 

to reduce such taste and odor problems to an acceptable level. During that timeframe, those efforts increased in both frequency and degree. 

In about December of 1996, the City of Waco experienced a tremendous algae 

bloom and a severe episode of taste and odor problems in the water in Lake Waco. 

Since that time the City of Waco has had to continually employ treatment methods 

it would not otherwise use. Those treatment methods involve adding a substance to 

the water whose sole purpose is to reduce the substantial taste and odor problems 

of the water from Lake Waco. Unfortunately, the City’s increasing efforts are also 

71

2 Attached as ‘‘Exhibit C’’

becoming increasingly less effective while at the same time becoming increasingly 

more expensive. 

The City treats the taste and odor problems by putting additives into the water. 

The City is putting those additives into the water continually and at very high levels. Despite the high levels at which the additives are being put into the water, 

those additives are becoming much less effective at improving the taste and odor 

of water out of Lake Waco, and, over time, such problems with the City’s water 

source have continued to increase. Additionally, the City is reaching the upper limit 

of the level at which those additives can be put into the water, because, at very high 

levels, those additives cause adverse side effects by producing undesirable chemical 

byproducts and by adversely affecting other aspects of the treatment process. 

The water quality of Lake Waco is substantially impaired. The taste and odor 

problems with the water in Lake Waco are the result of the overabundance of bluegreen algae, which is caused by the high concentrations of phosphorus coming into 

Lake Waco from the high phosphorus level waste application fields and the overloaded lagoons on the dairies in the North Bosque watershed. 

The City of Waco has incurred substantial costs as a result of the inappropriate 

waste management practices of large industrial dairies in the watershed. Since 

1995, the City of Waco has spent close to $3.5 million to address taste and odor 

problems in Lake Waco. Those expenditures are in excess of those which would have 

otherwise been made for water treatment. Ongoing remedies for treatment of taste 

and odor problems which are caused by excessive phosphorus from dairies currently 

consume more than half (as much as 55 percent) of the City of Waco’s chemical 

water treatment budget. Prior to 1996, that figure was about 10 percent. 

Even though the City has been and continues to be very aggressive and diligent 

in its efforts to treat the taste and odor problems in Lake Waco’s water in an efficient and effective manner, its current treatment methods are only able to remove 

approximately 70 percent of the substance which causes the offending tastes and 

odors. Although greatly reduced, the remaining 30 percent is still at a level which 

causes the water from Lake Waco to be quite offensive in taste and smell to the 

average person. Further, because the City is currently unable to sufficiently reduce 

such taste and odor problems and because of concerns about this problem increasing 

in the future, the City has found it necessary to add additional, advanced water 

treatment equipment and facilities to its two existing water treatment plants. Projected costs of the new water treatment equipment and facilities to deal with the 

taste and odor problems exceed $80 million dollars. The equipment and facilities 

necessary to treat the taste and odor problems will do nothing to improve the quality of water in Lake Waco other than hopefully eliminate the taste and odor problems caused by the phosphorus from the dairies. It is clearly unfair for our citizens 

to bear the costs of cleaning up someone else’s waste. 

Phosphorus and the resulting taste and odor problems are just one of the problems which have developed with the water in Lake Waco as a result of pollution 

from the dairies. Runoff and pollution from the dairies have resulted in pathogens 

and pollutants, in addition to phosphorus, entering and imperiling the water of the 

North Bosque River and Lake Waco. The pathogens, which are borne in the cow manure and which enter Lake Waco, have created concern about the health of the citizens and the safety of the water to the citizens who fish, swim, ski and engage in 

other water activities in Lake Waco. If this pollution is allowed to continue 

unabated, there is the potential for substantial risk to the health and welfare of the 

users and consumers of Lake Waco water. 

B. Phosphorus Released from Dairy Cow Waste is the Single Most Significant Cause of Taste and Odor Problems in Lake Waco 

Segments of the North Bosque River upstream from Lake Waco have been placed 

on the national list of impaired waters after it was determined by both the TCEQ 

and the Environmental Protection Agency (‘‘EPA’’) that these waters were severely 

impaired due to high concentrations of nutrients, principally phosphorus. This data 

has been confirmed through many scientific and peer-reviewed studies. 

Two Total Maximum Daily Loads (TMDLs) for soluble reactive phosphorus in the 

North Bosque River were adopted by the TCEQ and approved by EPA in 2001. 

TCEQ approved a plan to implement these TMDLs. The TMDLs are designed to reduce the amount of phosphorus in the North Bosque River. 

TCEQ reported in its July 2004 Status Report 2 on implementing the TMDLs that 

approximately 90% of the controllable phosphorus entering the North Bosque River 

72

3 Attached as ‘‘Exhibit D’’ 

originates from concentrated animal feeding operations (CAFOs) located in the watershed. 

The Texas Institute for Applied Environmental Research (TIAER) at Tarleton 

State University in Stephenville, which performed much of the study supporting the 

TMDLs, has concluded that approximately 35-44% of the phosphorus in Lake Waco 

comes from dairy waste application fields.3 This is more remarkable given that 

those fields comprise only approximately 2% of the land use in the watershed. 

TIAER studies have concluded that high concentrations of phosphorus in Lake 

Waco cannot be corrected without substantially reducing runoff of phosphorus from 

the dairy waste application fields. Dairies in the North Bosque River watershed 

have caused and continue to cause pollution to Lake Waco through their wrongful 

discharge of waste and other pollutants into the North Bosque River watershed. 

The continued pollution caused by these large industrial dairies will result in future costs and expenses to investigate and treat the problem until a final remedy 

is developed and implemented. If this problem is not quickly addressed and the polluting conduct not abated, the current water supply may be irreparably damaged. 

VI. THE CITY OF WACO HAS ENGAGED IN CONSIDERABLE EFFORTS TO PROTECT WATER

QUALITY IN LAKE WACO

For the better part of the last decade, the City of Waco has been involved in several different efforts to resolve the impact of phosphorus loading in Lake Waco. The 

City of Waco has met with stakeholder groups, which included the Bosque River Advisory Committee, TIAER, the Texas Association of Dairymen, the Bosque River Authority, and the TCEQ, to try and find a meaningful and effective solution to the 

problems in the North Bosque River watershed. 

After eight years of attempting to resolve these issues by meeting and negotiating 

with dairy operators in the watershed, the City of Waco was unable to achieve any 

meaningful solution to the problem. In fact, the City of Waco was unable to get any 

of the dairies to even admit that they were contributing to the problem, despite the 

fact that every known public or private study that has examined these issues has 

concluded that the dairies are the most significant cause of the overloading of phosphorus into Lake Waco. 

As a result of the dairies unwillingness to resolve these issues, the City of Waco 

sent out letters to fifteen different dairies in the watershed notifying those dairies 

that a suit would be filed by the City of Waco against those dairies unless those 

dairies contacted the City of Waco within 60 days and sought to resolve the issue. 

Only one dairy responded to this letter, and the City has worked with that dairy 

to resolve the issues and has not sued that dairy. 

After these extensive efforts to resolve these issues failed to result in any meaningful agreements to improve water quality, the City of Waco brought suit against 

fourteen large industrial dairies in the North Bosque River watershed, based on the 

poor TCEQ regulatory compliance records of those dairies. This lawsuit is brought 

under both the federal Clean Water Act and the federal Superfund statute 

(CERCLA) and its goal is primarily to bring about improvements and modifications 

of waste handling practices of the concentrated animal feeding operations (‘‘CAFOs’’) 

in the watershed. CAFOs are large industrial agricultural operations that confine 

large numbers of animals in a manner that vegetation cannot be sustained in the 

confinement areas. Dairies are considered CAFOs if they confine more 200 mature 

dairy cows. 

Since the filing of the lawsuit against the fourteen dairies by the City of Waco 

as a last resort effort to try and clean up Lake Waco there have been numerous 

opportunities for citizens to come to Waco City Council meetings during the public 

comment agenda items and express their opposition to the continued prosecution of 

this lawsuit. There have been no complaints by the citizens of Waco about this suit. 

In addition, the local newspaper, the Waco Tribune-Herald, has afforded the opportunity for dairy representatives to write guest columns criticizing the lawsuit as an 

unnecessary waste of City funds, but we are not aware of any letters to the editor 

by Waco citizens complaining of the lawsuit. When a governmental body such as the 

City of Waco can take such action and receive no criticism from its citizens, this 

is a very strong indication that the citizens of Waco, who are the ones who have 

to drink and smell the water from Lake Waco, support the City’s actions on this 

matter. In addition, the editorial board of the Waco Tribune-Herald has on numerous occasions indicated that the lawsuit is justified in view of the problems being 

73

4See examples of editorials attached as ‘‘Exhibit E’’

5 City of Tulsa v. Tyson Foods, Inc., 258 F.Supp.2d 1263 (N.D. Okla. 2003) 6 42 U.S.C. 9601(22). 

caused by the dairies and the importance of Lake Waco as the drinking supply for 

150,000 local citizens.4

The City’s lawsuit to date has been highly effective. The City has settled with 

eight of the fourteen original dairy defendants. Under the settlements, the dairies 

have agreed to certain changes in their management practices which the City believes will let them continue agricultural operations and at the same time protect 

the river and the lake. None of the dairies that have settled with the City of Waco 

have paid money to settle the lawsuit. In one case, an insurance company for one 

of the dairies paid a cash settlement on behalf of that dairy, practically all of which 

the City of Waco then returned to the dairy operator in exchange for a conservation 

easement prohibiting the over polluted land on that dairy from ever again being 

used as a CAFO, but allowing it to be used for other agricultural purposes. The lawsuit is still pending in the United States District Court for the Western District of 

Texas—Waco Division, before Judge Walter Smith, against the six CAFOs that have 

not settled with the City. The lawsuit is set for trial in May 2006. 

In this lawsuit, the defendant dairies have contended that phosphorus in dairy 

manure and liquid waste is not a ‘‘hazardous substance’’ under CERCLA. This same 

argument was made by the poultry industry in response to a lawsuit filed by the 

City of Tulsa and the United States District judge in Oklahoma ruled that the phosphorus in manure, under the mixture rule, is a hazardous substance.5 The defendant dairies also sought dismissal of the City of Waco’s lawsuit under rule 12(b), Federal Rules of Civil Procedure, arguing that the phosphorus in dairy cattle manure 

is not a hazardous substance under CERCLA, but Judge Smith denied the dairies’ 

motion to dismiss and referenced the ‘‘mixture rule’’ as did the District Court in 

Oklahoma. 

VII. PROPOSED AMENDMENTS TO CERCLA

Having lost twice in court in attempts to argue that large quantities of phosphorus are not a hazardous substance under CERCLA, these large industrial polluters are attempting to get Congress to amend CERCLA to exempt ‘‘manure’’ from 

the definition of ‘‘hazardous substance’’, and mischaracterize the proposed amendment as one needed to ‘‘protect family farms’’ and the agricultural industry in general. This exemption would go far beyond just an effort to protect family farms or 

the agricultural industry in general but would instead exempt CAFOs, which are 

large industrial operations, or any other industry that pollutes with manure, from 

liability under CERCLA. If the amendment becomes effective, as it has been proposed, in all probability the dairies who remain defendants in the City of Waco lawsuit will argue that the Court must dismiss the City’s pending CERCLA claims. 

Further, the amendment will allow all other dairies in the watershed of Lake Waco 

to pollute free and clear of potential liability under CERCLA for the consequences 

of their actions. 

An amendment could easily be drafted to exempt routine agricultural operations 

that produce manure, but that would not exempt large industrial CAFOs. However, 

such an amendment is not necessary to protect family farms, or even the agricultural industry in general. CERCLA already includes an exemption from liability for 

the ‘‘normal application of fertilizer.’’ 6 When a family farm or a any agricultural operation applies manure to its fields in an amount necessary to support crops, that 

farm is not liable under CERCLA because of the already existing exemption in 

CERCLA for the normal application of fertilizer. It is only when manure is applied 

in amounts that exceed what is necessary to support crops that there is potential 

CERCLA liability. For example, some of the dairies involved in the City of Waco 

lawsuit have waste application fields that exceed 800 ppm of phosphorus when anything over 80 ppm is well beyond the amount necessary to facilitate the growing 

of corpse. The law as it currently exists strikes a balance by allowing lawsuits to 

be brought against those large industrial CAFOs that are not fertilizing their fields 

but are instead dumping waste on their fields and adversely impacting the environment by doing so, but still protects normal agricultural operators when applying 

manure or fertilizer to grow crops. 

In addition, the requirement under the current law that anyone suing for response costs under CERCLA must prove that their response action complies with 

the National Contingency Plan further protects agricultural operations, and even to 

some extent large industrial operations, from CERCLA lawsuits by disgruntled 

neighbors or from frivolous claims. It is only entities like cities, counties, or states 

74

that can reasonably show that they have completed the necessary studies and analysis’, considered other available remedies, elected reasonable cost alternatives, and 

taken the other steps necessary to comply with the national contingency plan. 

As further evidence that the proposed amendment to CERCLA is not needed to 

prevent a rash of litigation against family farms or other agricultural interests, the 

City of Waco, in researching for and preparing its lawsuit against these dairies, is 

aware of only a few lawsuits filed against large industrial agricultural operations 

under CERCLA and is not aware of any suit filed against family farms or other routine agricultural operations that are not already regulated as CAFOs. The fact that 

only a few lawsuits have been filed nationally, which only involve large commercial 

operations as defendants, is certainly not an indication that family farming or normal agricultural operations are being burdened with litigation costs or otherwise 

being threatened by CERCLA as it is presently written. 

CAFOs are a recognized source of potential pollution of the environment (by reason of their disposal of manure) and, for that reason, like other industries whose 

operations are a substantial risk of pollution, they cannot operate without a Federal 

or state issued permit. For the same reasons CAFOs are subject to permit requirements, whereas routine agricultural operations are not, CAFOs should also be subject to liability under CERCLA even though an exemption of routine agricultural 

disposal of manure would be appropriate. 

The City of Waco is not opposed to an amendment that would specifically exempt 

manure produced by traditional family farms or other routine agricultural operations from liability under CERCLA, even though such an amendment is not needed 

for the reasons above discussed. However, the City is opposed to the amendment, 

as it has been proposed, because it is so broad that it would exempt from liability 

large industrial CAFOs that spread manure for disposal purposes rather than in a 

manner intended for beneficial agricultural use. 

CERCLA is critical to ensuring a satisfactory outcome to not only the City of 

Waco’s lawsuit against dairies in the North Bosque River watershed, but to ensuring that any municipality or other governmental entity will be successful in protecting it’s citizens drinking water from the harmful over-application of phosphorus 

containing waste to waste application fields. It is true that the City of Waco could 

pursue its lawsuit under the Clean Water Act, but that piece of legislation does not 

afford the broad range of remedies that are available under CERCLA. Specifically, 

that statute does not allow for private recovery and thus does not afford the City 

of Waco an avenue to recover for its response costs. As can be seen from the City 

of Waco settlements with eight dairies, often just exposure to liability for response 

costs will cause industrial polluters, like the dairies in our watershed, to adopt better and more environmentally sound waste management practices. CERCLA lawsuits do not always result in monetary awards, sometimes they result in corrective 

action to clean up the environment. It is also not unreasonable or unfair for large 

industrial agricultural operations, like the dairies in our watershed, to be liable for 

the response costs that they actually cause others to incur in accordance with the 

National Contingency Plan, which is designed to ensure a proper and quality response to pollution. Put simply, without liability under CERCLA for the over-application of manure it will be nearly impossible for municipalities like Waco or other 

governmental entities to get effective and meaningful relief against large industrial 

operations that pollute our nations waters by adding large quantities of phosphorus 

and other nutrients to valuable water supplies. 

VIII. CONCLUSION

Based on the foregoing discussion, and because of all of the harmful effects that 

will result if large commercial dairies in the watershed are allowed to continue to 

over-apply manure without any risk of incurring liability under CERCLA, we ask 

that the members of this Subcommittee and of the United States House of Representatives oppose any amendment to CERCLA that would exclude manure from 

the definition of hazardous substance. Thank you for your time and your thoughtful 

consideration of this testimony.

Mr. GILLMOR. Thank you. Mr. Steven Kouplen? 

STATEMENT OF STEVEN KOUPLEN 

Mr. KOUPLEN. Thank you, Mr. Chairman. My name is Steven 

Kouplen. I am President of the Oklahoma Farm Bureau and a 

member of the American Farm Bureau—it is a pleasure to be here 

with you, Mr. Chairman. My name is Steve Kouplen. I am PresiVerDate 0ct 09 2002 15:16 Jun 12, 2006 Jkt 000000 PO 00000 Frm 00080 Fmt 6633 Sfmt 6602 F:\DOCS\27001.TXT HCOM1 PsN: JOEP
75

dent of the Oklahoma Farm Bureau and a member of the American 

Farm Bureau Board of Directors. I am a cow/calf producer and run 

approximately 250 cows in the town of Beggs, which is in 

Okmulgee County, just south of Tulsa. 

Quite frankly, I and my colleagues in the industry are greatly 

concerned at the prospect that animal manure could be regulated 

as a hazardous waste. Farm Bureau firmly believes that Congress 

never intended that animal manure be considered a hazardous 

waste and regulated under CERCLA, yet some people are attempting to get the courts to do something Congress never did. There are 

other members of the panel that will speak to that issue, but I 

would like to reinforce our hope that Congress will provide policy 

direction on this important matter. We ask that you affirm what 

we believe has been the consistent intent that animal manure is 

not a hazardous substance under Superfund. 

Animal manure has been safely used as a fertilizer and soil 

amendment by many cultures over the world for centuries. Where 

would the organic agriculture industry be without it? However, in 

recent years, we have seen litigation challenged to the use of animal manure as a fertilizer by claiming contamination and damaged 

natural resources. There are three lawsuits where CERCLA claims 

have been made or are being made. 

The first case, the city of Tulsa versus Tyson Foods, involved 

poultry companies with growers in the Lake Eucha Watershed. 

Lake Eucha is a drinking water source for the city of Tulsa. In that 

case, the U.S. District Court for the Northern District of Oklahoma 

stated in 2003 that ‘‘phosphate is found in all living cells, is safe, 

and is vital to life processes.’’ Yet the court then said that because 

phosphate is comprised of dangerous elemental phosphorous, phosphate in animal waste is a hazardous substance under CERCLA. 

How can phosphate be both life-giving on one hand and listed as 

a hazardous substance on the other? We disagree with the Tulsa 

court’s ruling as a matter of science and a matter of law. Fortunately, the ruling was later vacated under a settlement agreement 

and cannot be cited as a legal precedent. 

In the second case, the city of Waco versus Dennis Schouten, litigation was brought by the Texas city against 14 individual dairies 

in the Lake Waco Watershed. The city of Waco was alleging that 

the phosphorous in cow manure is a hazardous substance. The Federal judge in the case has not dismissed the issue. The Waco case 

is currently in its discovery phase and is expected to go to trial 

next year. 

In this connection, I would direct the subcommittee’s attention to 

an amicus brief in this case just last month by the Texas Department of Agriculture. It articulates in a thoughtful, straight-forward 

manner, what exactly why the law and the science dictate another 

conclusion. And I have copies I would like to submit for the record, 

Mr. Chairman. 

Mr. GILLMOR. Without objection. 

[The information referred to follows:]

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Mr. KOUPLEN. In my home State of Oklahoma, our Attorney General has filed a lawsuit, the State of Oklahoma versus Tyson Foods, 

asserting claims under CERCLA and the Federal Solid Waste Disposal Act, alleging natural resource damages in the Illinois River 

Watershed is the result of improper application of poultry litter as 

fertilizer within the watershed. This case is proceeding. 

Obviously, these developments are very troubling to farmers and 

ranchers. If normal animal manure is found, either in the proceeding Waco or Oklahoma case, to be a hazardous substance 

under CERCLA, then virtually every farm operation in the country 

could be potentially exposed to liabilities and penalties under the 

Act. We do not believe Congress ever intended such an outcome. 

To be more to the point, if the court decides in favor of the Oklahoma Attorney General, does that mean the entire Illinois River 

Watershed is a Superfund site? What about my small cow/calf operation? If cow manure is a hazardous substance, am I going to need 

a special permit and an incinerator to dispose of it? Would I need 

to utilize special hazardous waste transports to send it to an incinerator? If the phosphates in cow manure and chicken litter are hazardous, what about the phosphates used by people on their lawns? 

Could every green lawn in this country be considered a Superfund 

site? What about the natural levels of phosphates found in nature? 

What about the animals that excrete the phosphates? Would they 

be considered producers of hazardous substances? On this issue, 

the science and common sense are in agreement, the life-giving 

phosphates in manure are not now, nor have they ever been, equivalent to the benzenes and PCBs that CERCLA has been addressing 

for the last 25 years. 

It is disturbing to look at the impact of this litigation. In the 

Waco case, of the original 14 dairies, only five are left in the case. 

The others, with one exception, have settled with the city. Although 

the terms of those settlements are confidential, it is believed that 

the defendants either stopped operation of their dairies or agreed 

to the regulatory controls sought by the city. The city has been successful because of the difficulties these small businessmen have in 

engaging in a legal battle against an entity with almost unlimited 

resources to litigate. 

The State of Oklahoma now put farmers and ranchers in a similar situation. Our Attorney General signed a contingency contract 

with the same law firm that handled the multi-state tobacco settlement a few years ago. Some of the same local law firms in Oklahoma experienced a financial windfall from the tobacco settlement, 

including the firm of the former State Attorney General, that reportedly received $30 million in the tobacco settlement claim have 

signed onto the contingency contract. 

The Illinois River Watershed contains a little more than 1 million acres, and in his lawsuit under the CERCLA claim, the Attorney General is demanding damages for the cost to restore, replace, 

or acquire the equivalent of natural resources, the compensable 

value of lost services resulting from the injury to natural resources 

and the reasonable cost of assessing injury to natural resources 

and the resulting damages in the watershed. The contingency contract signed between the Attorney General and three outside firms 

entitles them to one-third of all the proceeds. 

97

The domestic livestock industry would be driven out of this country, and the grain industry would be crippled, and farm families 

and communities would be devastated if animal manure is considered a hazardous waste. Our Attorney General has insisted he can 

extract damages from the poultry companies without harming the 

growers——

Mr. GILLMOR. Let me ask you to try to wrap it up. 

Mr. KOUPLEN. Yes, okay. 

Mr. GILLMOR. We try to stay to under 5 minutes. 

Mr. KOUPLEN. In brief, or in closing, let me say that the Oklahoma Farm Bureau, the American Farm Bureau Federation, believe that it is a hazardous road or a dangerous path to go down 

to have animal manure considered hazardous waste, and we certainly hope that Congress will set a direction to see that this does 

not happen. 

[The prepared statement of Steven Kouplen follows:]

PREPARED STATEMENT OF STEVEN KOUPLEN, PRESIDENT, OKLAHOMA FARM BUREAU

ON BEHALF OF THE AMERICAN FARM BUREAU FEDERATION

Mr. Chairman and members of the subcommittee, my name is Steve Kouplen. I 

am president of the Oklahoma Farm Bureau (OFB) and a member of the board of 

directors of the American Farm Bureau Federation (AFBF), which represents the 

majority of the beef, hog and poultry producers in the country. Oklahoma Farm Bureau is the largest agriculture organization in our state with more than 162,000 

member families. I appreciate the opportunity to address you today on a critical 

issue to the livestock industry. 

I am a cattle rancher from Beggs in Okmulgee County in the eastern part of 

Oklahoma. I am a cow/calf producer running approximately 250 cows. Quite frankly, 

I and my colleagues in the industry are greatly concerned at the prospect that animal manure could be regulated as a hazardous waste. Farm Bureau firmly believes 

that Congress never intended that animal manure be considered a hazardous waste 

and regulated under the Comprehensive Environmental Response, Compensation 

and Liability Act or CERCLA. Yet some people are attempting to get the courts to 

do something Congress never did. There are other members of the panel that will 

speak to that issue, but I would like to reinforce our hope that Congress will provide 

policy direction on this important matter. We ask that you affirm what we believe 

has been the consistent intent that animal manure is not a hazardous substance 

under Superfund. 

Animal manure has been safely used as a fertilizer and soil amendment by many 

cultures all over the world for centuries. Where would the organic agriculture industry be without it? However, in recent years, we have seen litigation challenge the 

use of animal manure as a fertilizer by claiming contamination and damage to natural resources. 

There are three lawsuits where CERCLA claims have been made or are being 

made. The first case, the City of Tulsa versus Tyson Foods, et. al., involved poultry 

companies with growers in the Lake Eucha watershed. Lake Eucha is a drinking 

water source for the city of Tulsa. In that case, the U.S. District Court for the 

Northern District of Oklahoma stated in 2003 that ‘‘phosphate is found in all living 

cells, is safe and is vital to life processes.’’ Yet the court then said that because 

phosphate is comprised of dangerous elemental phosphorus, phosphate in animal 

waste is a hazardous substance under CERCLA. How can phosphate be both life 

giving on one hand and listed as a hazardous substance on the other? We disagree 

with the Tulsa court’s ruling as a matter of science and a matter of law. Fortunately, the ruling was later vacated under a settlement agreement and cannot be 

cited as a legal precedent. 

In the second case, the city of Waco versus Dennis Schouten, et. al., litigation was 

brought by the Texas city against 14 individual dairies in the Lake Waco watershed. 

The city of Waco is alleging that the phosphorus in cow manure is a hazardous substance. The federal judge in the case has not dismissed the issue. The Waco case 

is currently in the discovery phase and is expected to go to trial next year. In this 

connection, I would direct the subcommittee’s attention to an amicus brief filed in 

this case just last month by the Texas Department of Agriculture. It articulates in 

98

a thoughtful, straightforward manner exactly why the law and the science dictate 

another conclusion. 

In my own home state of Oklahoma, our attorney general has filed a lawsuit, the 

State of Oklahoma versus Tyson Foods, et. al., asserting claims under CERCLA and 

the federal Solid Waste Disposal Act, alleging natural resources damages in the Illinois River watershed as a result of the improper application of poultry litter as fertilizer within the watershed. This case is proceeding. 

Obviously, these developments are very troubling to farmers and ranchers. If normal animal manure is found, either in proceeding Waco or Oklahoma case, to be 

a hazardous substance under CERCLA, then virtually every farm operation in the 

country could be potentially exposed to liabilities and penalties under the act. We 

do not believe Congress ever intended such an outcome. 

To be more to the point, if the court decides in favor of the Oklahoma attorney 

general, does that mean the entire Illinois River watershed is a Superfund site? 

What about my small cow/calf operation? If cow manure is hazardous substance, am 

I going to need a special permit and an incinerator to dispose of it? Would I need 

to utilize special hazardous waste transports to send it to the incinerator? If the 

phosphates in cow manure and chicken litter are hazardous, what about the 

phosphates used by people on their lawns? Could every green lawn in this county 

be considered a Superfund site? What about the natural levels of phosphates found 

in nature? What about the animals that excrete the phosphates? Would they be considered producers of hazardous substance? On this issue, the science and common 

sense are in agreement. The life-giving phosphates in manure are not now, nor have 

they ever been, equivalent to the benzenes and PCBs that CERCLA has been addressing for the last 25 years. 

It is disturbing to look at the impact of this litigation. In the Waco case, of the 

original 14 dairies, only five are left in the case. The others, with one exception, 

have settled with the city. Although the terms of those settlements are confidential, 

it is believed that the defendants either stopped operation of their dairies or agreed 

to the regulatory control sought by the city. The city has been successful because 

of the insuperable difficulties these small businessmen have in engaging in a legal 

battle against an entity with almost unlimited resources to litigate. 

The state of Oklahoma has now put farmers and ranchers in a similar situation. 

Our attorney general signed a contingency contract with the same law firm that 

handled the multi-state tobacco settlement a few years ago. Some of the same local 

law firms in Oklahoma that experienced a financial windfall from the tobacco settlement, including the firm of a former state attorney general that reportedly received 

$30 million dollars in the tobacco settlement, have signed on to the contingency contract. 

The Illinois River watershed contains a little over one million acres. In his lawsuit 

under the CERCLA claim, the attorney general is demanding damages for the cost 

to restore, replace or acquire the equivalent of natural resources, the compensable 

value of lost services resulting from the injury to natural resources and the reasonable cost of assessing injury to the natural resources and the resulting damages in 

the watershed. A contingency contract signed between the attorney general and 

three outside law firms entitles the three firms to 33— percent of any monetary 

damages received in the suit by judgment or settlement and 33— percent of the 

value of any injunctive relief obtained. Those damages, however, are just for one watershed. The attorney general has threatened legal action in other eastern Oklahoma watersheds. If the attorney general is successful in this lawsuit, it could create an avalanche of copycat litigation across the nation. The domestic livestock industry would be driven from this country, the grain industry would be crippled and 

farm families and communities would be devastated. 

Our attorney general has insisted he can extract damages from the poultry companies without harming the growers and the industry. What he doesn’t understand 

is that poultry companies and poultry growers depend on one another. If the companies determine they must relocate to stay in business, the growers will be left with 

empty barns and millions of dollars in mortgages they cannot pay. 

Our attorney general has said several times in public meetings that it is appropriate for consumers to pay a few more cents for chicken so that the poultry companies can pass through those extra cents for environmental clean-up. That is a shortsighted view, and it shows very little appreciation for the world market economy in 

which we all compete. This CERCLA litigation has those of us involved in livestock 

production worried about our future economic viability. 

If you look past the sensationalism, you can see that there are already mechanisms in place to address environmental concerns. Those mechanisms can work—

when they are properly funded, when they are given the time to work and when 

they are not ignored by those engaged in a litigious frenzy. 

99

The state of Oklahoma has required animal waste management plans for poultry 

feeding operations since Jan. 1, 1999, or June 1, 1998, if the poultry feeding operation was in a ‘‘threatened’’ watershed. The plans are based on a phosphorus index 

adopted by our state USDA Natural Resources Conservation Service. The state of 

Arkansas requires that producers must have their nutrient management plans implemented by Jan. 1, 2006; it should be noted that many poultry companies required 

their growers to have nutrient management plans before the state of Arkansas 

made it mandatory. 

States can address issues of shared concern through interstate compacts, as pointed out by Arkansas Attorney General Mike Bebee in the petition he filed before the 

U.S. Supreme Court earlier this month. In fact, in the ‘‘Statement of Joint Principles and Action,’’ signed by representatives of Arkansas and Oklahoma in December 2003, the states agreed to work together in a partnership, acting through their 

environmental agencies, with the Arkansas-Oklahoma Arkansas River Compact 

Commission toward the goal of producing a watershed plan, meaning a Clean Water 

Act 319 plan. To my knowledge, the state of Oklahoma has not pursued a joint watershed plan, although watershed groups are organizing in Arkansas. However, the 

state of Arkansas has followed through with its commitment to pass regulations for 

nutrient management, per the 2003 agreement. 

The poultry companies have made offers to move so-called excess litter out of certain watersheds in Oklahoma, but those offers have been rejected by our attorney 

general. 

There are a couple of issues that have been overlooked in the Oklahoma litigation. 

The first issue is that no administrative actions have been brought against the poultry growers and the companies by the state regulating agency or by EPA. To my 

knowledge, the poultry growers in the Illinois River watershed have not violated the 

Oklahoma poultry feeding operation statutes. Oklahoma’s poultry operators, as most 

producers across the nation, understand that they must comply with the Clean 

Water Act and its regulations. They understand that they are liable for discharges 

not properly permitted under the Clean Water Act. 

The second issue that has been overlooked in the Oklahoma litigation is the fact 

that the poultry growers own their litter. If the growers lose the use of their litter, 

they will be economically damaged. You might wonder why the Oklahoma attorney 

general didn’t file CERCLA claims against the poultry growers in the Illinois River 

watershed. Perhaps it’s because it would be politically unpopular to sue farmers. 

Also, poultry growers don’t have the deep pockets that can be so attractive to law 

firms working on a contingency basis. 

Speaking for those of us involved in livestock production, we need Congress to act. 

We are not asking to be excused from meeting our environmental responsibilities 

under the Clean Water Act or any other applicable federal law or regulation—we 

are meeting them. We are simply asking Congress to clarify what some of us felt 

was quite clear from the beginning—animal manure is not considered a hazardous 

waste under CERCLA. We believe Congress never intended for animal manure to 

be regulated under CERCLA. Congress needs to reaffirm this now. We need some 

common sense that will protect us from those who would litigate us out of business. 

Thank you for attention. I would be happy to answer any questions.

Mr. GILLMOR. Thank you very much. Next, the Chair would like 

to recognize Robert Connery if the Chair can find him behind the 

pile of paper. Mr. Connery. 

STATEMENT OF ROBERT CONNERY 

Mr. CONNERY. Thank you, Mr. Chairman. And I would like to 

supplement my written testimony that has been accepted to the 

record with a letter to the chairman and ranking member on behalf 

of some 20-some agricultural organizations stating their position on 

the legislation that has been introduced by Representative Hall, if 

it could be——

Mr. GILLMOR. That’s a letter to me and Ms. Solis. Without objection? 

Mr. CONNERY. Thank you. 

Mr. GILLMOR. So hearing none, so ordered. 

[The information referred to follows:]

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November 16, 2005

The Honorable PAUL E. GILLMOR

Chairman 

Subcommittee on Environment and Hazardous Materials 

Committee on Energy and Commerce 

2125 Rayburn House Office Building 

Washington, DC 20515

The Honorable HILDA L. SOLIS

Ranking Member 

Subcommittee on Environment and Hazardous Materials 

Committee on Energy and Commerce 

2125 Rayburn House Office Building 

Washington, DC 20515

DEAR MR. CHAIRMAN AND MADAM RANKING MEMBER: Over the past couple of 

years, some state and local authorities have sought to extend Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980 and Emergency Planning and Community Right-To-Know Act (EPCRA) of 1986 liability to our 

nation’s livestock and poultry operations for emissions or discharges from manure 

produced in those operations. We do not believe such an interpretation is supported 

either by the science or legislative history. Because of these challenges, however, 

Congress must confirm that it never intended to regulate manure under CERCLA 

or EPCRA. Without such clarification, every livestock or poultry operation; or agricultural field or organic farming operation on which manure or manure compost is 

spread for fertilizer in this country could be subject to comprehensive and highly 

regulated cleanup under Superfund law. 

CERCLA was created to provide for cleanup of the worst industrial chemical toxic 

waste dumps and spills such as Love Canal and Times Beach. To this end, Congress 

created the Superfund to tax industries that create or utilize substances (such as 

petrochemicals, inorganic raw chemicals and petroleum oil) used to make all hazardous products and waste. Manure is clearly not among these materials. When enacted, the fee was levied on these chemicals when ‘‘sold’’ or ‘‘used’’ by a ‘‘manufacturer, producer or importer’’ which again do not apply to livestock or poultry operations. In addition, the definition of ‘‘release’’ under CERCLA specifically exempts 

‘‘the normal application of fertilizer’’. Because manure is beneficially recycled as a 

fertilizer, it fits squarely within this exemption. 

EPCRA was adopted in the wake of the 1984 Union Carbide disaster in Bhopal, 

India to force reporting of releases of hazardous chemicals and to enable emergency 

response from governmental authorities when appropriate. In EPCRA, Congress 

specifically exempted ‘‘Any substance to the extent that it is used in routine agricultural operations or is fertilizer held for sale by a retailer to the ultimate customer’ 

from the definition of hazardous chemical. Again, because manure is used as a fertilizer, it fits squarely within this exemption. 

Recently, municipal and state governments filed suit against livestock and poultry 

operations claiming Superfund liability in Texas and Oklahoma, arguing that manure is hazardous. If these two cases are successful, the effect will essentially be 

the outlawing of the use of manure-based fertilizer in this country. Livestock and 

poultry owners and operators, and perhaps financial lenders, simply will not be willing to accept CERCLA and EPCRA liability for manure. 

The animal agriculture industry has been regulated appropriately for years under 

the Clean Water Act, Clean Air Act, and various state laws to protect the environment. They have never been regulated under Superfund or EPCRA. It is unfair to 

require that even if animal agriculture does everything it can to protect the environment under the Clean Water Act, Clean Air Act and state laws, it may still be held 

liable under CERCLA or EPCRA. 

Livestock and poultry operators do not operate Superfund sites, and manure is 

not a Superfund waste. Fields on which manure is spread are not Superfund sites 

either. 

We urge Congress to confirm that it never intended to regulate manure under 

Superfund by supporting the attached legislation introduced by Representatives 

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Ralph Hall and Roy Blunt specifically excluding manure from such regulation. Also 

attached is a section-by-section analysis of the legislation. 

Sincerely, 

NATIONAL CATTLEMEN’S BEEF ASSOCIATION; TEXAS ASSOCIATION OF DAIRYMEN; 

COUNCIL OF NORTHEAST FARMER COOPERATIVES; CONTINENTAL DAIRY PRODUCTS, 

INC.; NATIONAL COUNCIL OF FARMER COOPERATIVES; DAIRY PRODUCERS OF NEW

MEXICO; NATIONAL TURKEY FEDERATION; SELECT MILK PRODUCERS, INC.; 

NATIONAL CHICKEN COUNCIL; ALLIED FEDERATED CO-OPS, INC.; NATIONAL PORK

PRODUCERS COUNCIL; IDAHO DAIRYMEN’S ASSOCIATION; AMERICAN FARM BUREAU

FEDERATION; CALIFORNIA DAIRIES, INC.; DAIRY FARMERS OF AMERICA; UTAH

DAIRYMEN’S ASSOCIATION; UNITED EGG PRODUCERS; MISSOURI DAIRY ASSOCIATION; 

NATIONAL MILK PRODUCERS FEDERATION; AGRI-MARK, INC.; ST. ALBANS

COOPERATIVE CREAMERY; DAIRYLEA COOPERATIVE, INC.; OREGON DAIRY FARMERS

ASSOCIATION; UPSTATE FARMS COOPERATIVE, INC.; AND THE WASHINGTON STATE

DAIRY FEDERATION.

Mr. CONNERY. I represent the National Cattlemen’s Beef Association, and I am not going to pretend to know everything about everything that has been discussed here. But, what I have over there 

on that TV monitor is a picture of a cattle feeding operation. That 

cattle feeding operation is the very largest in this country. It has 

150,000 cattle. 

Cattle feeding operations feed cattle that are generally raised 

elsewhere. What you see there is manure in those lots, and you see 

in the background a sprinkler keeping the dust down. This kind of 

operation does not have what is referred to as a lagoon. They have 

surface runoff, and surface runoff into those ponds can have trace 

amounts of manure—in them. The two pollutants that you have focused on that have been subject of all the concern and discussion 

that I know about are ammonia and hydrogen-sulfide. Those two 

pollutants come from this kind of operation. Certainly ammonia 

does. 

The ammonia comes from the—a little bit of potty talk here—the 

defecation, urination, the deposit of manure, and the key—the 

issue before you is whether or not Superfund regulates or should 

regulate manure. Manure doesn’t have ammonia in it. Manure 

doesn’t have hydrogen-sulfide in it. It is the bacterial decomposition 

of that, as well as nitrogen in soils. As you may know, half the national inventory of ammonia comes from soils and bio-mass. So 

you—we are talking about pollution, if you will, that is produced 

by natural and biological processes. The issue you are talking about 

is whether to subject this to Superfund, whether to attack Superfund liability to manure. And that has enormous implications. 

Attaching Superfund liability means that there will be joint and 

several—strict liability, retroactive liability, maybe imposed by 

order, as to which there is no judicial review, and troubled damages It is the heaviest artillery of the—in the arsenal, and was intended only for the most serious cases where the Clean Air Act and 

the Clean Water Act and the Resource Conservation Recovery Act, 

and the Toxic Substance Control Act, and FEFRA, and all the other 

laws that apply were inadequate and nothing else would work. 

When all of those had failed, then you were supposed to apply 

Superfund because nothing else was going to do the job. Well, I 

submit to you that this is not Hooker Chemical. This is not Love 

Canal. This is not Times Beach. And that the application of laws 

of that magnitude without a showing that there is a serious problem from this—certainly, the one I know about, the kind of cattle 

102

operation. I think it is a serious issue and that you need to address 

it. 

Now, these cattlemen asked me whether or not these laws applied to them. They didn’t ask me to come here and simply say—

tell them it doesn’t apply. Well, I looked at it. I spent months looking at it, reading every hearing, every Legislative Committee report, every law, every—all the—everything I could find. And all it 

talked about on the Superfund was synthetic, man-made, manufactured, produced chemicals. It never talked about natural or biological processes or this kind of waste. As you heard, EPA has never 

done that. Only very recently have people thought about it and 

suits been brought over whether or not it applies. Well, I looked at 

it and it talks about facilities that release hazardous substances 

into the environment. Well, those don’t comfortably or clearly fit 

defecation, urination, breakdown of manure. I don’t think they 

clearly do. 

So you look at the legislative history and you find that—does it 

mention agriculture at all? Could they have intended it to apply to 

animal waste? Could they have intended it to apply to cattle operations without even mentioning it? Without even providing for the 

financing of it? They tax petroleum and chemicals and they talked 

about chemical feed stocks. They thought about taxing ammonia, 

but they said ammonia will not be taxed when it is used for agricultural purposes or as a nutrient. So they thought about it. And 

in every case where they thought about it, they did not apply it. 

The thing that I want to mention that it has mentioned that 

there is no exemption for it, I think there is an exemption. I don’t 

think it was intended to apply to begin with, but there is an exemption from response action for naturally occurring releases 

and—here, this is from the Senate history—such as ‘‘diseases or 

contamination resulting from animal waste, e.g. beaver excrement’’—I don’t know why they gave that example—‘‘are excluded 

from the Response Program. Naturally occurring substances’’—

there is more to that. It is complicated. I don’t have time to g into 

it. But that exemption is in there, and it is said in the legislative 

history that it doesn’t apply to animal waste, that it does apply—

the exemption applies. So that—the normal application of fertilizer, 

the natural application of pesticides, that—to say that manure is 

covered, I think, is a stretch if you fairly look at the intention of 

the legislation. 

The second thing I want to cover has to do with the——

Mr. GILLMOR. You need to wrap up. You are going over the time 

limit. 

Mr. CONNERY. I am sorry, my apologies. What I have in front of 

me, the second topic I had wanted to address, was simply the adequacy of existing law to deal with this, which is what you really 

need to show the inadequacy of it before you apply. This green volume is the Pollution Prevention Program for one CAFO in Texas. 

This is what is required now for every CAFO that discharges what 

it is not allowed to discharged now—water and into the waters of 

the United States. These will become nutrient management plans 

that every significant discharger will have to have. 

Which, the other things in front of me are the State laws that 

apply to CAFOs. I would contend, and would be happy to discuss 

103

with you, the adequacy of those laws to do the job for manure. 

Thank you. 

[The prepared statement of Robert T. Connery follows:]

PREPARED STATEMENT OF ROBERT T. CONNERY ON BEHALF OF THE NATIONAL

CATTLEMEN’S BEEF ASSOCIATION

Honorable Ladies & Gentlemen of the Subcommittee, my name is Robert T. 

Connery, appearing on behalf of the National Cattlemen’s Beef Association 

(‘‘NCBA’’) to discuss the application of the existing Superfund Laws to manure from 

cattle operations, and the need, in view of pending and threatened litigation, to clarify that those laws do not apply to manure from cattle operations. In particular, this 

testimony will address:

• The lack of any demonstrated need to cover manure from cattle operations as a 

‘‘hazardous substance’’ under the Superfund laws. • The adequacy of existing environmental laws other than the Superfund laws to 

adequately regulate and control any potential adverse effects from manure from 

cattle operations. • The purpose of Superfund laws, fairly construed, to control synthetic, man-made, 

manufactured and produced chemicals, and hazardous wastes from modern 

chemical technology, not naturally-occurring substances such as manure from 

cattle operations. • As a matter of sound legislative policy and common sense, (1) the rejection of Superfund’s application to manure and (2) the reasonable requirement for a substantial showing to Congress of a severe toxic or hazardous problem from manure from cattle operations and other forms of animal agriculture before imposing the most coercive, burdensome and inequitable of the nation’s environmental laws on America’s cattle ranching and feeding operations. 

I. BACKGROUND

Livestock and other animal agricultural operators face growing concerns about potential CERCLA and EPCRA liability for emissions or discharges from manure produced in their operations. Congress, we respectfully submit, should clarify that it 

never intended to regulate manure under CERCLA or EPCRA. The ‘‘hazardous substances’’ that present issues regarding CERCLA and EPCRA applicability to livestock operations are ammonia and hydrogen sulfide. 

‘‘Cattle Operations’’ include operations that raise and feed cattle in open pastures 

and in open-air cattle feed lots. Grazing of cattle in open pastures is usually in 

fenced areas, and most feeding operations take place in fenced pens. Precipitation 

runoff from pastures and cattle feedlot surfaces is usually contained in runoff retention ponds. The precipitation runoff retention ponds that are part of Cattle Operations may, as described below, contain minor amounts of manure and urea from 

runoff, and as a result may produce some ammonia and hydrogen sulfide. These 

ponds are not waste lagoons, nor are they waste treatment facilities. The precipitation runoff retention ponds at Cattle Operations may contain small amounts of sulfur from the trace amounts of urea and manure reaching them as a result of precipitation runoff from pens. This sulfur originates in the soils and plants, grains and 

other feedstuffs, and in some cases, supplements, on which the cattle are fed. The 

sulfur in the ponds may produce some amounts of hydrogen sulfide by virtue of anaerobic decomposition. However, precipitation runoff retention ponds at Cattle Operations are designed to be aerobic, not anaerobic. Thus little, if any, hydrogen sulfide 

is expected to be generated from these ponds. 

The natural breakdown of nitrogen in grass and other feeds (primarily corn, but 

also including wheat, sorghum, and other grains and foods) during digestion by cattle results in some ammonia in flatulence, belching and exhalation. In addition, the 

bacterial decomposition of manure and urea excreted by cattle in pastures and feed 

pens produces ammonia over the weeks and months after it is excreted. 

NCBA’s exhaustive review of the statutes themselves, their legislative history, 

and their interpretation by EPA and the courts over the course of more than 20 

years, discovered no mention or indication that substances resulting from flatulence, 

belching, exhalation, or excretion of urine or manure or their bacterial decomposition, or substances resulting from runoff that encounters and carries relatively 

small amounts of manure or urea into precipitation runoff retention ponds are covered by CERCLA or EPCRA. The terms of the statutes themselves, which cover ‘‘facilities’’ that ‘‘release’’ ‘‘hazardous substances’’ into the environment (discussed 

below) do not clearly or comfortably cover the biological and natural processes that 

result in ammonia and hydrogen sulfide at Cattle Operations. It is not a matter of 

104

broad or narrow reading of the terms of the statute, but whether those terms cover 

the biological and natural processes responsible for generation of ammonia and hydrogen sulfide at Cattle Operations at all. Such coverage is, NCBA believes, ambiguous at best, while the exception for ‘‘naturally occurring substances,’’ 42 U.S.C.A. 

§ 9604(a)(3)(A) (discussed below) does seem to cover those processes. 

II. PURPOSE AND INTENT OF CERCLA

CERCLA was passed in the wake of Love Canal for the purpose of dealing with 

the ‘‘legacy of hazardous substances and wastes which pose a serious threat to 

human health and the environment.’’ S. Rep. No. 99-73, at 12 (1985), and ‘‘to clean 

the worst abandoned hazardous waster [sic] sites in the country . . .’’ H.R.Rep. No. 

99-253, Part 5, at 2 (1985). The legislative history contains a litany of references 

to ‘‘synthetic,’’ ‘‘man-made’’ chemicals, ‘‘chemical contamination,’’ and the results of 

‘‘modern chemical technology’’ as the problems CERCLA intended to address. S. 

Rep. No. 96-848 at 2-6, 12 (1980); S.Rep. No. 99-11 at 1-2 (1985); S. Rep. No. 99-

73, at 12 (1985); H.R. Rep. No. 99-253, part 5, at 2 (1985). It contains no reference 

to an intention to clean up manure or urea, or their byproducts, from cattle or any 

other animal agricultural operations. 

In addition to clean-up of hazardous waste sites such as Love Canal, the Senate 

committee stated that the legislation was intended to cover ‘‘spills and other releases of dangerous chemicals which can have an equally devastating effect on the 

environment and human health.’’ S. Rep. No. 96-848, at 5 (1980) and commented 

that such releases have resulted in the ‘‘loss of livestock and food products to contaminated drinking water and feed . . .’’ Id. It also noted that Superfund ‘‘may be 

used to compensate an agricultural producer...for loss’’ resulting from such releases 

of hazardous substances’’ id. at 78, and that such losses included injury to ‘‘livestock’’ id. at 79. Livestock operations were viewed as needing protection, not as a 

source against which others might need protection. 

Congress also indicated the scope of the activities it intended to cover in the provisions it made for funding the ‘‘Superfund’’ to pay for cleanup. The tax it imposed 

focused on ‘‘the type of industries and practices that have caused the problems that 

are addressed by Superfund;’’ Congress chose to impose the tax ‘‘on the relatively 

few basic building blocks used to make all hazardous products and wastes.’’ H.R. 

Rep. No. 99-253, Part 1, at 141 (1985); S. Rep. No. 96-848, at 19 (1980). These building blocks, or chemical ‘‘feedstocks,’’ are comprised of petrochemicals, inorganic raw 

materials, and petroleum oil because ‘‘virtually all hazardous wastes and substances 

are generated from these [substances].’’ See id. at 20; see also S. Rep. No. 99-73, 

at 3 (1985) (‘‘The taxable chemical feedstocks generally are intrinsically hazardous 

or create hazardous products or wastes when used.’’); H.R. Rep. No. 99-253, Part 

1, at 141 (1985). (‘‘[T]he problems addressed by CERCLA are byproducts of productions processes that use these raw materials.’’). Manure, urea, and their byproducts, 

are clearly not among these materials. 

The taxation provisions of CERCLA also indicate that substances like ammonia, 

when used for agricultural purposes, are not covered within the scope of CERCLA. 

Specifically, ‘‘nitric acid, sulfuric acid, ammonia, and methane used to produce ammonia, when used to produce or manufacture fertilizer,...[or] when used as a nutrient in animal feed,’’ are exempted from taxation. S. Rep. No. 99-11, at 69 (1985); 

see also S. Rep. No. 99-73, at 9 (1985). The exemption is based largely on the 

premise that ‘‘taxation of these compounds when used to supplement animal feed 

constitutes a burden on both the animal feed industry and the American agricultural sector which appears to be unnecessary.’’ Id. Like taxation, regulation of the 

agricultural sector in the form of reporting requirements for the release of ammonia 

or hydrogen sulfide from livestock manure and urea would constitute an ‘‘unnecessary burden’’ on Cattle Operations. 

III. RELEVANT EXEMPTIONS FROM CERCLA. 

In EPCRA, Congress, recognizing that ‘‘CERCLA response authorities are extremely broad . . .’’ excluded from the scope of the federal response authority the release or threat of release ‘‘of a naturally occurring substance in its unaltered form, 

or altered solely through naturally occurring processes or phenomena, from a location where it is naturally found.’’ 42 U.S.C. § 104(a)(3)(A); and see also S. Rep. No. 

99-11, at 16 (1985). The Senate committee report clarified this exception from EPA’s 

response authority, noting that naturally occurring releases, such as ‘‘diseases or 

contamination resulting from animal waste (e.g. beaver excrement),’’ are excluded 

from the response program. S. Rep. No. 99-11, at 16 (1985). Thus naturally occurring animal waste, such as urine, urea and manure, in its unaltered form, or altered 

105

solely through naturally occurring process or phenomena, are excluded from EPA’s 

response authority. 

The flatulence, urine, urea, and manure, and the releases that result from them 

at dry, open-air Cattle Operations fall, we believe, within the purpose and terms of 

this exemption from EPA’s response authority. Flatulence and the excretion of manure and urine from cattle are surely naturally occurring, and the location of that 

excretion is surely ‘‘where it is naturally found,’’ i.e. wherever the cattle happen to 

be, whether in a feed pen or a pasture. The manure and urine are unaltered. The 

precipitation and surface runoff affecting them are naturally occurring processes. 

The only change in the location of these animal wastes occurs when they are periodically removed from the cattle pens and recycled through composting and/or application to croplands. That movement does not materially affect the bacterial decomposition of the manure or urea, which occurs independent of its removal, transportation, sometimes composting, and application to croplands as fertilizer. The ‘‘normal application of fertilizer’’ is separately excluded from the definition of CERCLA 

‘‘releases’’. 42 U.S.C.A. § 101 (22). 

Some might argue that livestock are not ‘‘naturally’’ contained within fenced pens 

or in the large numbers involved in modern Cattle Operations. However, this ignores that the CERCLA exemption is directed at whether the substance is naturally 

occurring, not at the context or circumstances in which the substance might be released. 

For reasons that apply with equal force to livestock operations, EPA has exempted 

from release reporting under CERCLA several substances that are not considered 

to present risks that warrant regulation under CERCLA. The agency has found reporting of such releases not to be consistent with the purposes of CERCLA release 

reporting: 

‘‘This purpose, as the Agency has previously stated on numerous occasions, is 

to require ‘‘notification of releases so that the appropriate federal personnel can 

evaluate the need for a federal response action and undertake any necessary 

response (removal or remedial action) in a timely fashion.’’ [citation omitted] . . .Thus if the Agency determines that the federal government would never, 

or would only rarely, take a response action as a consequence of the harm posed 

by the release or because of the infeasibility of a federal response, a basis for 

an exemption from the section 103 reporting requirements may exist.’’

54 Fed. Reg. 22524, 22528. 

Based on this interpretation, EPA exempted release of ‘‘naturally occurring radionuclides from large, generally undisturbed land holdings, such as golf courses and 

parks, along with those activities that involve the disturbance of large areas of land, 

such as farming or building construction.’’ Id. 

With respect to disturbance of large areas of land, such as farming that caused 

releases of ‘‘reportable quantities’’ of radionuclides, EPA concluded that those ‘‘activities rarely would pose a hazard to the public health or welfare or the environment because releases would be dispersed widely in the environment at levels not 

much (if at all) above natural background. Id. 

In the same rulemaking EPA exempted ‘‘the dumping of coal and coal ash, as well 

as radionuclide releases to all media from coal and coal ash piles, at utility and industrial facilities with coal-fired boilers.’’ Id. EPA explained that it did so because 

‘‘the Agency believes that the submission of individual reports from each industrial 

and utility facility with coal and coal ash piles may not be consistent with the purposes of the section 103 reporting requirement.’’ Id. at 22529. (Emphasis added). It 

found that the concentration levels emitted from these piles 

‘‘will always be emitted continuously at low levels spread over large areas’ [and] 

‘‘never will be emitted at a high rate or in an unusually large amount as the 

result of a sudden episodic release...Perhaps more importantly, however, a response action (i.e., removal or remedial action) under CERCLA does not appear 

to be the most appropriate federal regulatory response to radiation releases that 

are (1) similar in amount and concentration across an entire sector of industry; 

(2) pose acceptable exposure risks; and (3) disperse quickly in the environment 

such that a response is not necessary to cleanup the accumulation of what has 

already been released.’’ 

Id. 

On March 19, 1998, EPA broadened these exemptions from release reporting requirements for radionuclides for land disturbance ‘‘to include land disturbance incidental to extraction activities at all mines except limited categories with elevated 

radionuclide concentrations. 63 Fed. Reg. 13460, 13462, col. 2. It stated its authority 

to do so as follows: 

CERCLA sections 102(a), 103, and 115 together provide EPA with authority to 

grant administrative reporting exemptions. Such exemptions may be granted for 

106

releases of hazardous substances that pose little or no risk or to which a Federal response is infeasible or inappropriate. Requiring reports of such releases 

would serve little or no useful purpose and could, instead, impose a significant 

burden on the Federal response system and on the persons responsible for notifying the Federal government of the release. Through such reporting exemptions, therefore, the Federal response system is able to more efficiently implement CERCLA and EPCRA and more effectively focus on reports of releases 

that are more likely to pose a significant hazard to human health and the environment. 

63 Fed. Reg. 13460 (Mar. 19, 1998). 

EPA’s interpretation of the scope of the naturally occurring substance exemption, 

and its authority to broaden it to cover other activities where response action is inappropriate, infeasible and unnecessary, have evident application and relevance to 

Cattle Operations. As noted above, manure is the kind of naturally-occurring substance Congress intended to exempt from CERCLA. And like radionuclides from golf 

courses, real estate development or mining, and utility coal piles, CERCLA response 

actions would be neither appropriate nor practical respecting emissions related to 

manure. 

The references to agriculture in the legislative history refer to Cattle Operations 

as a resource to be protected and compensated for loss rather than as operations 

which are a source of hazardous wastes to be regulated. To the extent there is mention or explicit treatment of agricultural activities or livestock, it is to exempt activities such as the ‘‘normal application of fertilizer,’’ 42 U.S.C. 9601(22)(D), and the reporting of ‘‘the application of a pesticide produce registered under Federal Insecticide, Fungicide, and Rodenticide Act,’’ 42 U.S.C. 9603(e). Normal agricultural activities were not intended to be covered under CERCLA. The legislative history of the 

fertilizer application exemption reflects Congressional awareness that chemical fertilizers did contain hazardous substances, but exempted them in normal use in agriculture. If it were the intent of Congress to make manure subject to CERCLA while 

it is located at livestock feeding operations, it would be anomalous for Congress to 

have exempted the CERCLA-regulated manure when it is located on croplands and 

used for fertilizer. 

IV. CONGRESS SHOULD CONSIDER THE ADEQUACY OF EXISTING ENVIRONMENTAL LAWS

BEFORE APPLYING THE EXTRAORDINARY REMEDIES OF SUPERFUND LAWS. 

Cattle and other animal agriculture operations are subject to a vast array of federal, state and local environmental laws and authority to deal with every conceivable environmental problem presented by them. They include the Clean Air Act, the 

Clean Water Act, the Resource Conservation and Recovery Act, the Toxic Substances Control Act, FIFRA, soil conservation, dust and odor control, as well as nuisance laws, apply broadly throughout the country to provide environmental protection from every conceivable aspect of cattle and animal agricultural operations. For 

example, under the Clean Water Act, all concentrated feeding operations (CAFOs) 

are required to obtain an NPDES permit if they discharge to waters of the United 

States. Discharges to water from beef cattle CAFOs are prohibited, with a limited 

exception for overflow from properly designed and constructed retention ponds during extraordinary rainfall events. CAFOs must comply with best management practices for land application of manure and prepare nutrient management plans. 40 

C.F.R. Sections 122.21, 122.23, 122.42, Part 412. There has been no indication that 

environmental laws such as these are inadequate. 

The Superfund Laws, by contrast, were adopted for the most serious and drastic 

environmental problems where all other environmental laws had proved inadequate, 

and extraordinary remedies were called for. Superfund provides strict (no showing 

of wrongdoing, fault, or negligence), joint and several (an insignificant contribution 

[one-quarter of one percent]) can make any contributor liable for the entire cleanup), retroactive (exposure exists for activities that were legal at the time) liability, 

that may be imposed by unilateral order from EPA that is not subject to judicial 

review and carries treble damages for failure to comply. Could Congress have intended to impose such liability on the hundreds of cattle operations across America’s 

heartland without even mentioning them? Of course not. In fact, in every instance 

where possible application of Superfund laws to biologic and natural process was 

discussed, Congress was clear to exclude those processes. That has not been enough 

to prevent litigation over applying the Superfund Laws to manure from animal agriculture, and decisions that they apply. We hope Congress will determine that such 

operations do not warrant the drastic and coercive remedies of Superfund and clarify that in an amendment excluding manure from animal agriculture as a CERCLA 

hazardous substance. 

107

V. COMMON SENSE AND LEGISLATIVE POLICY AND JUSTIFICATION. 

NCBA submits that a mere common sense consideration of the natural and biologic processes involved with cattle raising and feeding, and the recycling of the manure that results, are not and should not be within the purview of the Superfund 

Laws. Those laws were intended to apply when all else failed. All else has not failed 

in the regulation of cattle operations. Congress, we suggest, should require more 

than unproven assertions and suggestions prior to imposing the extraordinary, coercive remedies of CERCLA on farming, ranching and cattle feeding. There should, 

we strongly suggest, be a very substantial showing of a national problem of toxic 

and hazardous proportions in order to justify the imposition of government’s most 

drastic powers on its tens of thousands of cattle operations. 

VI. CONCLUSION

In conclusion, NCBA believes that the Superfund laws, when read fairly and in 

accordance with their purposes and consistent with the other provisions of the statute, were not intended to apply to manure from Cattle Operations However, even 

if the Superfund laws were intended to apply to cattle and other animal agriculture 

operations in some cases, NCBA believes that ammonia and hydrogen sulfide from 

Cattle Operations either fall within the naturally-occurring substances exemption 

from EPA’s response authority, or fit the criteria under which EPA has exempted 

other activities from release reporting requirement because response action is not 

appropriate or feasible, such as releases of reportable quantities of radionuclides 

from mines, farming and land disturbance or releases from the dumping of coal and 

coal ash at facilities with coal-fired boilers. Releases of these substances from manure at livestock operations are not like the chemical releases that CERCLA was 

intended to address and do not present the type of health risks that warrant 

CERCLA cleanups. Even if manure emissions did present a significant risk, a 

CERCLA response action would not be a feasible or practical method of mitigating 

the risk. 

We thank the Subcommittee for its consideration of NCBA’s comments and position.

Mr. GILLMOR. Thank you very much, Mr. Connery. Now we will 

go to John Starkey. 

STATEMENT OF JOHN STARKEY 

Mr. STARKEY. Thank you, Mr. Chairman. My name is John 

Starkey. I am Vice President, Environmental Programs, at U.S. 

Poultry and Egg, and I am making this presentation today on behalf of National Chicken Council, National Turkey Federation. I 

thank you for the opportunity to present testimony outlining the 

environmental practices of our Nation’s approximately 35,000 broiler and turkey growers, their impact on air and water media, the 

regulation of these farms under media specific laws such as Clean 

Air Act, and the confusion and problems caused by the attempts of 

some to apply the CERCLA/EPCRA requirements to these facilities’ 

norms. 

Broiler and turkey production in this country is almost exclusively a family owned, family operated small farm enterprise. We 

conducted a survey in 2001 where we focused on farm size and litter management techniques at those farms, and found that—and 

the data is actually in the—in my written testimony—but found 

that the growers were already using litter, in 2001, at an 

agronomically and environmentally sound rate. 

For the poultry grower, there are five tiers of regulation or oversight that they have to look at to make—to ensure they have the 

agronomic use of litter. The first tier is a Federal tier, the CAFO 

permit. A discharger would require such a permit. The Second tier, 

as Mr. Connery just alluded to, is an extensive network of State 

regulations. The third tier, based on what is surprising, integrates 

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us today in your contract require that the grower have a nutrient 

management plan. The fourth tier is the bank also requires—the 

lending institution for the facility also requires that you have a developed and implemented nutrient management plan to ensure the 

continuation of your loan. And then finally, in watersheds with a 

water quality impairment, EPA has provided those states under 

the Clean Water Act a total maximum daily load program, which 

will holistically address the contributors to a specific water quality 

problem. 

Recently, of course, CERCRA and EPCRA has been utilized in 

the alleged release of phosphorous and litter in a particular watershed, which was the sole cause of water pollution concerns. Those 

conflict with the facts. In virtually any State that you want to look 

at, there is commercial fertilizer is eight times greater than in all 

the litter in that state, and about five times more phosphorous in 

commercial fertilizer than in poultry litter in major poultry states. 

And I am not trying to condemn or attack agricultural fertilizer 

users, but I am trying to expose a fallacy and ultimately the failure 

of attacking only one nutrient source in addressing these watershed nutrient issues, rather than using the TMDL Program that 

Congress provided in the Clean Water Act. 

On the Clean Air Act’s side, there has been allegations as well 

that we are not complying with the Clean Air Act, or the reporting 

requirements of CERPRA and EPCRA. Quite equivocally, I can say 

broiler and turkey farms are not violating Clean Air Act permitting 

requirements or standards. 

The natural breakdown of organic nitrogen, again, as was alluded to a moment ago, in poultry litter, can create ammonia. But, 

right now, the facts are that given the uncertainty of the available 

data, the day-to-day variation on a farm, you start off with a bird 

that doesn’t weigh anything. You end up with a bird that weighs 

five pounds. You have an awful lot of variability: temperature, ventilation, a whole lot of things. It is impossible for a farmer to know, 

or a grower to know, on a specific day, did or did not, he go over 

100 pounds of ammonia. 

Now, if a farmer does know, then he has to control ammonia in 

the house, because broilers and turkeys are more sensitive to ammonia than humans are. And so we have an extensive ventilation 

system that would exhaust the house, and in doing so, the ammonia levels that are there should—and, actually, if you use one of 

the EPA models for modeling air pollution releases, a release of 100 

pounds per day, our reporting threshold, would result in the concentration of about 1 part per million of ammonia 100 feet away 

from the house, and the occupational standard for 8-hour exposure 

standard for ammonia is 50 parts per million. 

I guess, just kind of to wrap up, if—you know, so, if you look at 

that level, 50 parts per million is the occupational standard, one 

part per million is going to be the actual concentration 100 feet 

away from the houses. There is not going to be a response from the 

Emergency Response Center to that type of release, and also it is 

well below—obviously, well below the human health standards that 

are established for ammonia. So we ask the—we ask you to support 

the legislation introduced by Congressman Hall. Thank you. 

[The prepared statement of John E. Starkey follows:]

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PREPARED STATEMENT OF JOHN E. STARKEY, VICE PRESIDENT-ENVIRONMENTAL PRO- GRAMS, U.S. POULTRY AND EGG ASSOCIATION ON BEHALF OF THE NATIONAL CHICK- EN COUNCIL, NATIONAL TURKEY FEDERATION, AND U.S. POULTRY AND EGG ASSO- CIATION

Good afternoon. My name is John Starkey, and I serve as Vice President—Environmental Programs for the U.S. Poultry & Egg Association (USPOULTRY). I am 

making this presentation on behalf of the National Chicken Council (NCC) and the 

National Turkey Federation (NTF). It is an honor to have this opportunity to 

present this testimony outlining the environmental practices, procedures, regulations and impact of our nation’s approximately 35,000 broiler and turkey growers. 

By way of introduction, USPOULTRY is a trade organization dedicated to three 

tenets—research, education and communication. For example, USPOULTRY was a 

founding member and partner with EPA, USDA and TVA in the Poultry Water 

Quality Consortium. We sponsor the International Poultry Exposition each year, the 

world’s largest poultry and egg trade show with approximately 20,000 attendees. We 

provide numerous industry-wide training classes in industry-specific terms for poultry wastewater treatment facility operators, and HAACP, a program to further enhance food safety. We offer seminars on virtually every aspect of poultry production 

and processing, including an annual environmental management seminar. We 

award grants for approximately $1 million/year in poultry related research. These 

grants have included almost $2 million in environmental research related to poultry 

production and processing in recent years; much of this research is being used today 

as the basis of enhanced nutrient management efforts such as the inclusion of phytase to poultry feeds to enhance phosphorus utilization. We sponsor the Family 

Farm Environmental Excellence Award and the Clean Water Award, awards designed to recognize exemplary environmental stewardship at poultry farms and at 

processing facilities, respectively. Our membership consists of integrators, processors, producers and allied industries in all poultry (broiler, duck, layers, turkeys) 

species. 

USPOULTRY works very closely with our industry’s Washington-based commodity trade organizations, National Chicken Council and the National Turkey Federation, to ensure the research, education and technology needs of our industry are 

met. 

The National Chicken Council is a nonprofit member organization representing 

companies that produce and process over 95 percent of the broiler/fryer chickens 

marketed in the United States. NCC promotes the production, marketing and consumption of safe, wholesome and nutritious chicken products both domestically and 

internationally. NCC serves as an advocate on behalf of its members with regard 

to the development and implementation of federal and state programs and regulations that affect the chicken industry. 

The National Turkey Federation is the national advocate for all segments of the 

turkey industry. NTF provides services and conducts activities which increase demand for its members’ products by protecting and enhancing their ability to profitably provide wholesome, high-quality, nutritious products. 

Today, I am going to address some of the environmental practices at broiler and 

turkey farms and their impact on air and water media; the regulation of these farms 

under media specific laws such as the Clean Air Act and Clean Water Act, and the 

confusion and problems caused by the recent application of CERCLA/EPCRA requirements, heretofore reserved for industrial facilities, to farms, despite exceptions 

in each law to various aspects of normal agricultural operations. 

Broiler and turkey production at the farm level in the United States consists of, 

almost exclusively, family-owned and family-operated relatively small farms. We 

conducted, in concert with NCC and NTF, a survey of poultry growers in 2001, 

which focused on farm size and litter management techniques. Litter, at a poultry 

farm, is the combination of bedding material—such as rice hulls or pine shavings—

and bird manure. Over 16,000 growers (or almost half of all U.S. poultry growers) 

participated in the survey, giving us a very robust data set from which to view our 

industry’s nutrient management techniques. The survey indicated that average 

poultry farm size was as follows:

Table I 

Typical Poultry Farm Size 

Average # of poultry 

houses # of birds 

Broiler ...................................................................................................................... 157 3.21 63,799

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Table I—Continued

Typical Poultry Farm Size 

Average # of poultry 

houses # of birds 

Turkey ...................................................................................................................... 226 3.05 27,004

Given the relatively smaller acreage of poultry farms makes it clear that the cash 

income these families derive from growing poultry is vital to the survival of these 

farms. Indeed, poultry producers have thrived in rural areas of the country that 

were not competitive in traditional row crop farming, and have brought a steady, 

reliable source of farm income dollars to these areas. When combined with the investment of processors in feed mills, hatcheries, and processing plants—typically 

with more than 1,000 jobs per plant—poultry production has been an economic anchor to many rural areas from Pennsylvania to Texas, from Minnesota to Florida 

and along the West Coast. 

Commercial broilers and turkeys are raised in well-lit, well-ventilated comfortable 

‘‘houses’’—typically 40 feet long x 400 to 500 feet long, with an eave height of about 

13 feet. They have free movement to readily available water and feed in the house, 

and temperature is carefully controlled for bird comfort. The floor of the houses are 

covered with 8 inches or so of an absorbent bedding material such as pine shavings 

or rice hulls which also provide a comfortable, and sanitary, environment for the 

bird. Bird manure is absorbed into the litter. Periodically, the litter is removed from 

the house and most commonly used as a natural organic fertilizer. We need to be 

clear broiler and turkey litter is not a waste by definition, because it is a commodity 

that is bought and sold or traded every day in this country. Since it is dry, it can 

efficiently be transported considerable distances—truckloads of north Georgia litter, 

for example, are sold to south Georgia row crop farms as an organic fertilizer. 

As a fertilizer, litter will provide nutrients to crops and pasture to enhance productivity. But it offers some very unique advantages in providing these nutrients. 

First, the natural forms of nitrogen and phosphorus in litter have been shown to 

be less likely to ‘‘runoff’’ in storm water than the inorganic nutrients available in 

commercial fertilizer. Litter also provides soils organic matter to improve soil tilth 

and structure, thereby reducing erosion and compaction and enhancing a soil’s resistance to drought. The salt build-up noted with long term used of commercial fertilizer is not only avoided but is actually counter-acted by the use of litter, restoring 

soils to their former productivity. Poultry litter contains many micronutrients so essential to maximizing crop production; its use also reduces how much natural gas 

this country must consume to produce commercial fertilizer. Like any nutrient 

source, it must be managed properly. However, applied at agronomic rates it is 

clearly environmentally superior to the use of commercial fertilizer. 

Poultry growers are using litter in an agronomically and environmentally sound 

manner. In our 2001 survey, we also learned how much litter growers were utilizing 

on their own crops and pastures, versus how much they sold, traded or otherwise 

used. Growers also supplied information on the crops or forage they produced on 

their farms. From this data, we calculated an overall nutrient application rate for 

poultry growers, as well as the average nutrient uptake rate for the crops raised. 

Those results are provided in Figure I. 

This data indicates that as early as 2001, the industry had shifted from a nitrogen 

based application rate to phosphorus based rate. This is significant because, historically, litter had been applied to fields closer to its nitrogen uptake rate, which led 

to a slow build-up of relatively insoluble phosphorus in the soils. Indeed, a grower 

going into an NRCS office in the late 1990’s for a nutrient management plan would 

have received a nitrogen based plan. The slow build-up of phosphorus that resulted 

from such a plan was viewed as environmentally benign given the unlikelihood it 

would run off; farmers were simply ‘‘banking’’ phosphorus on their soils against the 

day they no longer raised poultry and would have to purchase commercial fertilizer. 

Since phosphorus is commonly the most expensive nutrient in fertilizer, the farmer 

was avoiding that future expense. However, in the last decade, and in particular in 

areas where there is a substantial conversion of farm land to other uses—concerns 

were raised regarding the levels of phosphorus accumulating in soils. The ag departments of many universities, and USDA Extension Service and other USDA offices, 

and the growers and the processors worked together to develop and implement nutrient management plans to address the conversion to phosphorus based plans—and 

indeed, the results from the 2001 survey confirmed those actions have been successful. 

111

For the poultry grower, there are four tiers of regulation and/or oversight they are 

subject to ensure agronomic use of litter. The first tier, of course, is the federal tier 

under the CAFO NPDES permits. Any poultry grower with a discharge is required 

to have an NPDES permit, including the preparation and implementation of a nutrient management plan. The second tier is state regulation to ensure agronomic application rates. Many states have instituted permits or nutrient management requirements for poultry producers. Examples include (but not necessarily limited to) Alabama, Delaware, Indiana, Kentucky, Maryland, Minnesota, Missouri, Ohio, Pennsylvania, Texas and Virginia. Generally speaking, these programs emphasize development and implementation of nutrient management programs, and focus more heavily on larger growers—125,000 birds or more for broilers, 65,000 birds or more for 

turkeys. 

The third tier is the processor—or integrator. Today’s production contracts include 

language requiring the grower utilize litter in an agronomically sound manner, and 

to obtain and follow a nutrient management plan prepared with the help of experts 

such as NRCS, or extension service or similarly qualified personnel. 

Note, the integrator stipulation applies to all growers—even those who would be 

too small to be subject to a federal or state permit. This holistic approach to nutrient management planning is intended to ensure the continued use of an excellent 

organic fertilizer indefinitely; and produce environmental benefits vis-a`-vis the use 

of commercial fertilizer. Today, close to 100% of all broiler and turkey growers—not 

just defined CAFO’s—have nutrient management plans in place. 

In watersheds with a water quality impairment, a fourth level of regulation is 

available to EPA and the states under the Clean Water Act to ensure reduction of 

loads in the watershed so water quality goals can be achieved. Through the Total 

Maximum Daily Load—or TMDL—program, all inputs are evaluated, and the necessary steps to allow achievement of water quality goals are apportioned amongst 

all contributors to pollutant loads—point source and non-point source alike. 

There are some areas of the country where there are nutrient-water quality 

issues, and where poultry farms are located. Poultry producers—the small family 

farms whose families have often lived in the regions for generations—recognize the 

value of improved water quality. They have been willing to adopt additional best 

management practices in order to further reduce any environmental impact from 

the operations. Poultry farmers are no different from other farmers in that they realize their livelihood is based upon the land and water, and want to preserve the 

value of their communities in general, and their farms in particular, for future generations. 

In some situations recently, however, CERCLA/EPCRA have been utilized to allege the release of phosphate in animal manure results in the release of elemental 

phosphorus regulated by these statutes. This causes almost exclusive emphasis on 

reduction of poultry-related nutrients, to the exclusion of other sources of these nutrients. This is an egregious error, and in the end, the water quality issue may be 

made worse by only addressing poultry nutrients, rather than the whole universe 

of potential contributors to nutrients in streams as was intended under the TMDL 

program under the Clean Water Act. In Figure 2, I have provided comparison of nutrients available in poultry litter in Georgia and Virginia compared to the nutrients 

available in commercial fertilizer. 

The results for these states are pretty typical of what you would see for any poultry state: there is 7-10 times more nitrogen and 4-6 times more phosphorus available from commercial fertilizer sold in the state than in all the poultry litter generated. And, remember, poultry litter is already subject to up to four tiers of regulation or oversight, including the TMDL program. For example, a nutrient management plan at a poultry farm will require a buffer zone—usually 35 feet to 100 feet—

around a drainage channel on an agricultural field. With commercial fertilizers, 

there is no such oversight or regulation, theoretically the fertilizer spreader truck 

could drive right through the drainage area to avoid the lost time of diverting 

around it. 

Even where properly applied, nutrients in commercial fertilizers are generally 

more soluble than in litter, i.e., more prone to runoff. Yet, when litter is solely targeted as the source of nutrients, and subject to an even higher level of regulatory 

scrutiny, many may choose to forego the ‘‘hassle’’ factor and switch to commercial 

fertilizers. Often these are non-poultry farmers who have previously bought litter 

for their nutrient needs. Not only does this reduce poultry farmer income, and cause 

more consumption of natural gas for commercial fertilizer production, it also causes 

nutrients that are, pound for pound, more likely to runoff in a storm event to be 

placed in the watershed, exacerbating the nutrient problem, rather than solving it. 

I am not trying to point a finger at agricultural commercial fertilizer users. 

Whether commercial fertilizer or poultry litter, supplying nutrients to crops is a cost 

112

for the farmer. A farmer must be efficient in order to compete and remain a viable 

operation, so I believe farmers as a whole judiciously use either source of nutrients. 

Further, with nitrogen in multiple forms all around us and phosphorus being the 

sixth most common element on earth—there is no lack of nutrient sources completely outside agriculture, from septic tanks to sewage plants, from fallen leaves 

to homeowners desperately trying to win ‘‘yard of the month.’’ The point here is not 

to blame others, but rather expose the fallacy, and ultimately the failure, of attacking only one nutrient source—a comparatively minor one that is already subject to 

regulation and oversight—in addressing these watershed nutrient issues. Utilizing 

CERCLA/EPCRA to increase requirements despite the agricultural exemptions Congress wrote into these laws, on to the agronomic use of litter will stigmatize its 

usage, and increase the use of—and pollution from—commercial fertilizers. Congress 

provided the TMDL program under the Clean Water Act to holistically solve these 

type of watershed wide water quality issues. Where the CERCLA/EPCRA enforcement focuses solely on phosphorus from animal agriculture—a significantly smaller 

piece of nutrient loading—the TMDL easily accommodates, and allows EPA and the 

states to address all sources of nutrients, be it agricultural or urban, from a specific 

source or from multiple soil sources. 

In recent years, also, there have been several enforcement actions alleging an animal agriculture facility was not in compliance with permitting aspects of the Clean 

Air Act, or release reporting requirements of CERCLA and EPCRA. Unequivocally, 

broiler and turkey farms are not violating Clean Air Act standards, or Clean Air 

Act permitting requirements. The fact is that the levels of VOC’s, particulate matter 

and PM10, etc. in broiler and turkey exhaust air are significantly below the permitting thresholds in the Clean Air Act. Certainly, standards change and evolve over 

time, and it is conceivable that at some point, for some pollutant, a broiler or turkey 

farm will be subject to Clean Air Act requirements. We will vigorously participate 

in the process of proposed changes to these standards, basing our presentations on 

sound scientific principles. And, of course, we recognize the obligation to comply 

with the potential regulatory revisions. But today; we are fully in compliance, and 

any allegation that broiler or turkey houses are avoiding or not complying with 

Clean Air Act rules and regulations is simply false and without basis. 

The natural breakdown of organic nitrogen deposited by poultry in litter in a 

broiler or turkey house can create ammonia. This has led to enforcement action 

under CERCLA and EPCRA against a few broiler farms alleging they have exceeded 

release of the 100 lb/day reportable quantity for ammonia, and should have notified 

the National Response Center and others concerning this release. 

For a moment, consider the family farmer trying to determine whether or not the 

broiler or turkey farm has exceeded a CERCLA/EPCRA release threshold. Assume 

the farmer has assembled the appropriate sections of the Code of Federal Regulations, the National Academy of Science report questioning the accuracy and applicability of emissions estimates in previous studies, the court opinions from the Denver 

and Kentucky courts concerning the release of ammonia from animal housing, EPA 

CERCLA/EPCRA report guidance documents and recent studies listing emission 

rates for various other farms, who may or may not follow some of the same production practices. 

The first thing the farmer will notice is that the published emission rates vary 

by almost two orders of magnitude. So the farmer must decide which to use—the 

highest, the lowest, the average, the one with the most similar production practices, 

or perhaps the most similar climate, or bird size? On the heels of that decision, the 

farmer must decide if the release standard is applicable ‘‘per house’’ or per farm. 

Twenty-five years of regulatory history and published EPA guidance says it should 

be quantified per house, yet two recent court cases might suggest to the farmer he 

should aggregate the release. The farmer then decides to call the environmental 

manager at the processor’s poultry plant and ask whether the release should be calculated per house or per farm. The environmental manager does not know either, 

but the processor had requested—almost two years ago—clarification from EPA on 

this exact subject, and had not yet received a response. 

The farmer returns to trying to determine an emission rate. The studies available 

on broilers and turkeys show that the release of ammonia increased as the birds 

got bigger. But, on a day to day basis, many other factors came into play—the type 

of bedding material, the number of flocks previously raised on the litter, the temperature in the house, the moisture level in the house, the use of litter treatments, 

and many other variables rarely described—let alone quantified in these research 

reports. 

There are other questions the farmer could ask like: ‘‘Won’t some of the ammonia 

be converted to an aerosol ammonia hydroxide prior to release, given house conditions are ideal for this to occur.’’ And if so, what percent will be converted, for this 

113

is an important issue as the RQ for ammonia hydroxide is 1000 lb/day—10 times 

greater than the anhydrous ammonia RQ. Yet, not a single study before the farmer 

addresses this fundamental question. 

Ultimately, the studies conducted under the Air Consent Agreement—which the 

broiler industry is participating in—may provide the farmer with some of the answers necessary to determine if the farm is subject to release reporting requirements. 

But at some point, the farmer has to wonder: ‘‘Why am I having to do this?’’ 

CERCLA and EPCRA are intended to advise emergency response personnel and the 

public about threats to human health and the environment. The entire farm family 

goes into each and every one of their broiler or turkey houses everyday, and have 

for years, and they are as healthy as can be. The farmer knows it is vital to keep 

the house properly ventilated, and has invested substantial amount of capital in ensuring this. The farmer knows that ammonia levels in the house should average 10 

ppm or less. While certainly there may be short term increases in ammonia concentration above 10 ppm depending on the computer controlled ventilation system 

program, the farmer knows the houses should not reach the NIOSH 8-hour ammonia occupational standard for ammonia of 50 ppm. Poultry is more sensitive to ammonia than humans, and reaching that type of ammonia plateau would affect the 

growth performance of the bird. And a decrease in performance leads to a decrease 

in pay, so the farmer is very motivated to manage ammonia levels. 

The ventilation system moves large quantities of air through the houses—at 5 

mph when the birds are biggest and temperature warmest (and hence, release of 

ammonia is greatest). This leads to a rapid dilution of ammonia in the exhaust, and 

the wind speed also enhances dispersion outside the house. In fact, the release of 

50 lb/day from a house—or about what the highest level most studies suggest would 

come from one house—would result in a concentration of only 0.5 ppm ammonia 100 

feet from the exhaust fan according to the EPA SCREEN3 model. This is far below 

any suggested health standard or occupation standard for exposure to ammonia. 

And so again, the farmer asks ‘‘Why must I do this, with all the uncertainty about 

how to properly account for and measure ammonia release?’’ Because even if the 

farmer does so, and calculates on a given day that reporting is required, there will 

be no emergency response, and there will be no impact on human health, starting 

first with the farmer’s family. 

We ask you to support the legislation introduced by Congressman Ralph Hall to 

re-affirm it was not the intent of Congress to require the farmer to report release 

information that does not impact emergency response or human health.

Mr. GILLMOR. Thank you very much. Dr. Leon Weaver. 

STATEMENT OF LEON D. WEAVER 

Mr. WEAVER. Thank you, Mr. Chairman. My name is Leon Weaver. I am a dairy farmer and a veterinarian. And I have been involved in dairy veterinary medicine and dairy management consulting and dairy production for over 30 years. Before I became a 

full-time dairyman 7 years ago, I served on the faculty and was director of the University of California’s Veterinary Medicine Teaching and Research Center at the University of California, Davis. 

Today, my testimony is given on behalf of my dairy farm, Bridgewater Dairy, the dairy cooperative that we are a member of, Continental Dairy Products, and a sister cooperative, Select Milk Producers. I am also on the board of directors of the Ohio Dairy Producers, and while this hearing was not a subject of our discussion, 

I am familiar with the views and attitudes of many Ohio dairy producers and unaware of any who have views at variance of what I 

am going to express today. 

Bridgewater Dairy milks 4,000 cows, and our farming company, 

Bridgewater Farming, raises crops on over 2,800 acres of land. In 

that respect, we are a large farming operation, but I want to share 

with you that we are a family farm. Our farm and our dairy is 

owned by my wife and my son and myself, and a partner and his 

114

wife who are also dairymen, and we alone are the management 

team, hands-on, day-to-day, it is our money at risk. 

Dairy farming is a very capital-intensive business. Cows today can cost over $2,000 each. Land can cost $2,000-5,000 an acre. So 

it is easy to see that even a small farm, much smaller than mine, 

can soon have millions of dollars in capital at risk. That is what 

I want to share with you about my concern for these requirements 

that we are discussing today. 

The uncertainty that is introduced into my environment has awesome consequences for a family farm like ours. We are all interested in the science, and we are all interested in the environment, 

and, fortunate for us as dairy producers, we recognize that good 

stewardship and good care of our animals and our land and environment, are essential to running a profitable enterprise. We simply can’t have healthy cows and high productivity and profits if we 

are not taking care of the environment. We survive because the 

health of our animals and the quality of the feed and water that 

we produce are essential to the productivity of our cows. 

To that end, many of us go far beyond what is required by the 

Law. Members of our coop and other dairymen that we know are 

installing things like methane digesters for alternative energy production and the treatment of manure. We establish buffer zones to 

protect repairian areas and waterways. For example, a manure digester for my dairy would cost over $5 million. Several of our coop 

members have installed those, and we are making plans—not finalized—to install one ourselves. Not required by Law, but to be responsible to the environment and the cattle that we raise. 

I want to mention as an aside when I described our farm being 

a family farm, that Continental Dairy Products membership is 

about 25 dairymen, are all of a similar size of us, and every single 

one of them is a family farm just like I described our Bridgewater 

Dairy. And Select Dairy Producers, which is much larger in Southwestern United States, they are all family farms, they are husbands and wives and children. And I am going to come back to that 

later. 

As has been stated, the issue is whether we should be subject 

and our manure should be subject to EPCRA and CERCLA regulation. I think we have to be careful and watch out for some unintended consequences. The first thing that has been stated is that 

there are no civil suits available. Well, indeed there are civil suits 

available under the Failure to Report Act, and that can cost as 

much as $27,000 per day. $27,000 per day is $750,000 a month. 

What lender would want to loan me money with that potential liability? 

The second intended consequence—several people have mentioned how much manure large livestock, and how much phosphorous a large livestock operation might produce. Another way to 

say what has already been said is that the manure from one cow 

produces the amount of phosphorous necessary to grow corn on one 

acre of land per year. At Bridgewater Dairy, we distribute our manure over more acres than we have cows, just like the 20 or 30 or 

50 or 100 cow dairy that you might have I your mind’s eye. We are 

required by the regulatory authorities that we function under to 

show that we plan for the nutrient requirements for our crop, that 

115

we document the soil content—the mineral contents of the soil, and 

that we not put more fertilizer, organic or inorganic, on our fields 

than that crop requires. And those records are reviewed not less 

than twice a year by my regulatory authority. What neighbor of 

mine would appreciate using manure, a renewable resource, for fertilizer if he or she might come under the EPCRA/CERCLA reporting requirements? An unintended consequence—one unintended 

consequence is to make less land-space available to concentrate the 

application of manure in smaller areas. 

When I grew up on a farm in Pennsylvania and was active in 4-

H and FFA, I was told that if I got a good education and I worked 

hard and I adopted the best management practice and technology 

available, that agriculture could be a sustainable enterprise for me 

and the next generation. I have done those things, and I have been 

successful in enabling my generation to farm when we are one 

child out of six. And I believe that if the requirements that are 

being proposed were to be enacted today, that for my son, and certainly my grandson, to continue in animal production would probably require him to move to another continent for no other reason 

than the risk the lenders will not be willing to take. Thank you. 

[The prepared statement of Leon D. Weaver follows:]

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Mr. GILLMOR. Thank you, Dr. Weaver. Dr. Robert Lawrence. 

STATEMENT OF ROBERT S. LAWRENCE 

Mr. LAWRENCE. Thank you, Mr. Chairman and members of the 

committee. It is a privilege to be here today. I come from a public 

health background after doing 25 years of clinical work as a general internist, and the public health perspective is one of harm reduction. In the School of Public Health, we often talk about the fact 

that our genes cock the gun and environment pulls the trigger. 

What you are dealing with our issues related to how can we continue to protect the environment so that our genes do not 

unintendedly create disease because of consequences of concentration. 

There has been a lot of discussion so far about the fact that there 

are a lot of natural products in manure. What is unnatural is the 

enormous the concentration that occurs with CAFOs. There are 

four basic public health issues that you should be considering as 

you contemplate whether or not to alter the EPCRA rule. 

First, current methods of industrial animal production harm the 

environment and threaten the health of the public. CAFOs introduce huge amounts of waste into the environment, as you have already heard. By one measure, about 1.4 billion tons of waste, equal 

to about five tons of animal waste per person. So Congressman 

Dingell’s question earlier about a two million hog facility would be 

equivalent to about a 10 million—excuse me, a 2,000 hog facility 

would be about a 10,000 population town with no modern sewage 

treatment or modern sanitation facilities. 

Second point, industrial animal production results in the release 

of high levels of gasses, odors, nutrients, pathogens and antibioticresistant bacteria into air, water, and soil. In swine CAFOs, there 

have been identified more than 160 compounds in three categories 

in airborne emissions. These include gasses and vapors, bioaerosols, and non-biologic aerosols. The gasses of primary concern 

are ammonia, hydrogen-sulfide, carbon monoxide, and methane. 

The presence of bacterial and protozoan pathogens in groundwater 

intended for drinking water can cause mild to severe bouts of 

gastroenteritis depending on the immune system and the age of the 

affected individual. Contracting antibiotic-resistant bacterial infections can pose additional treatment challenges. Manure that is 

spread in excess of the lands absorptive capacity leads to excess nitrogen and phosphorous in the soil, nitrification of surface waters, 

algae overgrowth including some such as Fisteria facida that 

produce compounds toxic to fish and to humans. 

Third, our current waste management practices in CAFOs 

threaten the environment. We have about 287 million dry tons of 

waste produced each year, more than 270 million dry tons of which 

is applied to land without any prior treatment except for drying. 

In contrast, the population of almost 300 million people in the U.S. 

produces about 6.9 million dry tons of treated waste in municipal 

treatment facilities, and about 3.6 million dry tons of that is applied to land as sewage sludge. The results of this over-application 

of so much animal waste are that an estimated 48,000 of the 

300,000 miles of impaired U.S. rivers and streams are directly attributable to animal feeding operations. There are high levels of esVerDate 0ct 09 2002 15:16 Jun 12, 2006 Jkt 000000 PO 00000 Frm 00126 Fmt 6633 Sfmt 6602 F:\DOCS\27001.TXT HCOM1 PsN: JOEP
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trogens that—in the effluent from some animal feeding operations. 

Arsenicals used in poultry production for growth promotion and for 

controlling intestinal parasites lead to2 million pounds, or 2,000 

tons of arsenic being introduced into the environment each year 

from U.S. poultry operations alone. And we all know that arsenic 

is a proven carcinogen. 25 million pounds of antibiotics are used in 

U.S. food animal production in sub-therapeutic doses in an experiment to produce antibiotic resistance. The 3 million pounds of antibiotics used to treat human disease are increasingly under assault 

because of the crossover of these antibiotic-resistant genes. And 

about 1.3 million households in the U.S. now have water supplies 

with nitrate levels above the maximum contaminant level of 10 

milligrams per liter. 

And finally, fourth, the feed ingredients used in industrial animal production are undermining the antibiotics used in human 

medicine. Resistant strains of bacteria that develop in CAFO animals undermines the usefulness of these same antibiotics for treating human infection. The antibiotics are added to animal feed, so 

animal feed increasingly contains a number of things that are not 

natural organic materials, also includes scrapings from iron foundries, which has cadmium and lead and other heavy metals, all of 

which can get into the food chain and harm the human population. 

According to the Union of Concerned Scientists, more than 70 percent of all antibiotics produced in the U.S. now are used in animal 

production. 

We have, with these enormous threats to the health of the public, this is not the time to relax expectations and standards for the 

regulatory attention that CAFOs need in order to protect the safety 

of the American people. In 2003, the American Public Health Association, representing 80,000 public health professionals, felt there 

was sufficient documented harmful effects of CAFOs to warrant 

passage of a resolution calling for a moratorium on the building of 

new CAFOs until additional data can be gathered and policies implemented to protect public health. The evidence continues to build 

since then that these are dangerous and harmful operations to the 

health of people living in and around the CAFOs. 

Thank you, Mr. Chairman. 

[The prepared statement of Robert S. Lawrence follows:]

PREPARED STATEMENT OF ROBERT S. LAWRENCE, EDYTH SCHOENRICH PROFESSOR OF

PREVENTIVE MEDICINE, PROFESSOR OF HEALTH POLICY AND ENVIRONMENTAL

HEALTH SCIENCES, DIRECTOR, CENTER FOR A LIVABLE FUTURE, JOHNS HOPKINS

BLOOMBERG SCHOOL OF PUBLIC HEALTH

INTRODUCTION

Over the past 50 years, food animal production in the US has undergone a transformation. First developed in the poultry industry during the 1930s and 1940s, the 

industrial procedures of growing and processing large numbers of animals in heavy 

concentration has been adopted by the beef cattle, hog, dairy and some other industries. In today’s industrial animal production (IAP) system, most animals grow to 

market weight in facilities know as concentrated animal feeding operations 

(CAFOs). The US EPA criteria for CAFO designation are species-specific and indicate the minimum numbers of animals per operation. CAFOs now dominate US livestock and poultry production. To illustrate this trend toward greater concentration 

of production, consider that in 1966, 57 million hogs were raised on one million US 

farms. In 2001 approximately the same number of hogs was raised on 80,000 farms 

(more than half were raised in just 5,000 facilities). The total production of hogs is 

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now about 100 million per year. (USDA National Agriculture Statistics Service and 

US Census of Agriculture) 

Today, animal production in the US is dominated by vertically integrated industries managing production from genetics of the breeding stock to finished products 

ready to be cooked for the table. High throughput is achieved through intensive operations under confined conditions that harm the environment and threaten public 

health in many ways. These factors led the American Public Health Association in 

2003 to adopt a resolution calling for a moratorium on the building of new CAFOs 

until additional data can be gathered and policies implemented to protect public 

health. (APHA, 2004) 

1. CURRENT METHODS OF INDUSTRIAL ANIMAL PRODUCTION (IAP) AND CAFOS HARM THE

ENVIRONMENT AND THREATEN THE PUBLIC’S HEALTH. 

Harm to the Environment 

CAFOs generate and introduce huge amounts of waste to the environment. As of 

1997, animal production in the US created approximately 1.4 billion tons of waste. 

This amount is the equivalent to about 5 tons of animal waste for each person in 

the country (Horrigan, 2002). Another way to look at this problem is to consider that 

since a hog produces about four times as much solid waste as an average person, 

a typical CAFO raising 10,000 hogs is equivalent to a small city of 40,000 people 

with no sewage treatment or modern sanitation facilities. 

CAFOs generally produce more waste than can be utilized as fertilizer on nearby 

fields, and transportation costs prohibit shipping the waste to more distant croplands. These wastes are difficult to store because of the sheer volume produced and 

the expense associated with transporting. Storage cesspits for hog waste or poultry 

waste piles leak and pollute groundwater and streams. Waste from storage pits that 

is land applied can pollute the air, surface water, and shallow aquifers (Wing, 2002). 

The amount of phosphorus and nitrogen in the waste usually exceeds what crops 

can utilize or the soil can retain. Surface water can become contaminated and lead 

to algal blooms, eutrophication (Osterberg, 2004, APHA, 2004) and serious public 

health risks of pathogenic micro-organisms (Wing, 2000, Hamscher, 2003). 

The experiences of large swine-producing states, such as North Carolina and 

Iowa, have shown that deep CAFO cesspits can leak and overflow into ground waters and nearby surface waters. A report produced by the Iowa State University Extension, in collaboration with the Iowa Department of Natural Resources, noted that 

from 1992-1998, 86 uncontrolled discharges into surface waters were reported, with 

20 discharges associated with formed cesspits (Lorimor, 1999). These discharges, 

along with runoff from areas where manure is land applied, can contaminate both 

ground waters and surface waters with pathogenic microbes and nutrients that can 

cause human illnesses. 

Threats to the Public’s Health 

In addition to the environmental impacts mentioned above, CAFO-generated 

wastes create many public health risks. (Wing, 2000, APHA 2004) A key issue is 

that animal feeds used in CAFOs may also include animal wastes, animal tissues 

and animal by-products, and other additives that can contaminate human food or 

the environment. Many feed ingredients used in CAFOs pass through the animal 

directly into manure, including heavy metals such as arsenic, antibiotics, nitrogen 

and phosphorus (Arai, 2003; Lasky, 2004; Silbergeld, 2004). 

CAFO-generated wastes also contain pathogens that can cause disease in humans, 

including Salmonella, Campylobacter, and Cryptosporidium, and can pollute drinking water with nitrates in concentrations potentially fatal to infants. The presence 

of excessive nitrates in drinking water has been associated with blue-baby syndrome 

or methemoglobinemia, a cause of both illness and death in infants (Fan, 1996; 

Johnson, 1990). Some studies also suggest that the development of blue-baby syndrome is more likely when the nitrate-containing water supply is also contaminated 

with bacteria—a situation that may be expected when groundwater is contaminated 

with animal feces (Cole, 2000; Fan, 1996). In addition, animal studies and some 

human studies suggest that developmental defects in the central nervous system, 

as well as miscarriages, also may occur as a result of exposures to excessive levels 

of nitrates (Fan, 1996; Kramer, 1996). 

Organic dust, bacterial endotoxins and manure-generated compounds such as ammonia and hydrogen sulfide are also found in CAFO-generated wastes (Schiffman, 

2001). Many of the exposures to pollutants from CAFOs are intensified for employees and the people living in neighboring communities. Air polluted with ammonia, 

hydrogen sulfide, and dust from CAFOs is harming the health of both workers and 

residents living downwind from these operations. 

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Several published studies have documented a range of contaminants, microbial 

agents and health effects in workers exposed to swine (Wing, 2000; Hamscher, 2003; 

Chapin, 2005; Cole, 2000; Merchant, 2005). These studies provide the groundwork 

for an increasing body of research to evaluate possible community health effects. 

Similar to the way second-hand smoke affects not only the smoker but also impacts 

the health of those nearby, industrial animal production procedures can impact the 

health of not only workers, but also their families and community members. 

Numerous studies describing the adverse respiratory effects occurring among 

swine CAFO workers and producers have been published in the U.S., Sweden, Canada, the Netherlands and Denmark (Donham, 1989; Holness, 1987; Zejda, 1993; Von 

Essen, 1998). Results of these investigations concur that approximately 50% of 

swine workers experience one or more of the following health outcomes: bronchitis, 

toxic organic dust syndrome (TODS), hyper-reactive airway disease, chronic mucous 

membrane irritation, occupational asthma, and hydrogen sulfide intoxication. These 

studies also have shown increased risks of exposure to bacterial and viral infectious 

agents among swine workers and producers compared to other agricultural cohorts 

(Thomas, 1994), as well as higher incidences of antibiotic-resistant bacterial infections (Saida, 1981; Nijsten, 1994). 

Adverse health outcomes experienced among neighbors of large-scale animal production facilities have been reported in three published, peer-reviewed epidemiological studies. One study evaluated the effect of swine odors on mood in 44 people living near a swine facility (Schiffman, 1995). The results of the study indicated that 

people living near the swine facility had significantly more depression, tension, 

anger, fatigue and confusion than control subjects who did not live near a swine facility. In another study, the mental and physical health of 18 people living near a 

large-scale swine facility was evaluated (Thu, 1997). The results of this study suggested that people living near the facility had significantly elevated rates of physical 

symptoms that were consistent with symptoms reported in occupational studies of 

swine workers. A third study compared physical symptoms and quality of life among 

155 individuals from 3 different rural communities (Wing, 2000). The community 

living within 2 miles of a large-scale swine facility reported significantly greater frequency of headaches, runny nose, sore throat, coughing, burning eyes, and diarrhea. 

Although no published studies have investigated the effects of large-scale poultry 

operations on the health of nearby neighbors, it is likely that similar health effects 

could be observed since swine and poultry facilities emit many of the same airborne 

contaminants. 

People living near CAFOs experience serious impacts to water quality such as 

contaminated wells. (Flora, 2002; Stull, 2004). Community residents living near 

CAFOs and children of CAFO operators are also exposed to pollutants. A University 

of Iowa study found that people living near large-scale hog facilities reported higher 

incidence of head aches, respiratory problem, eye irritation, nausea, weakness, and 

chest tightness (Thu, 1997). Children of CAFO operators in Iowa have higher rates 

of asthma than do other farm children (Merchant, 2005). Several studies have also 

documented increased rates of physical and mental illness among people living near 

CAFOs (Wing, 2000). 

Should Avian Flu take hold among the poultry CAFOs in the U.S. that currently 

produce about 8 billion chickens, turkeys, and ducks per year for human consumption, the workers involved in feeding, watering, catching, transporting, processing, 

and cleaning the barns for the next batch of 25-30 thousand birds would likely be 

at significant risk for bird-to-human movement of the H5N1 virus. 

The need for greater public health scrutiny of IAP animal feed composition is well 

illustrated by the cases of bovine spongiform encephalopathy (BSE or mad cow disease). Animal feed that includes BSE-contaminated tissue (i.e., brain, spinal cord, 

etc.) is a prime way for the disease to spread. Chicken litter (feces, feathers, spilled 

feed) is still used in cattle feed, and the controls for monitoring the inclusion of 

‘‘downer’’ cattle and slaughterhouse offal in poultry feed are inadequate to assure 

that prions (the abnormally folded proteins responsible for BSE) don’t enter the feed 

supply for poultry and, subsequently, the poultry litter used for cattle feed. 

2. INDUSTRIAL ANIMAL PRODUCTION RESULTS IN THE RELEASE OF HIGH LEVELS OF

GASES, ODORS, NUTRIENTS, PATHOGENS AND ANTIBIOTIC RESISTANT BACTERIA INTO

THE AIR, WATER, AND SOIL. 

Air 

More than 160 compounds have been identified in airborne emissions from swine 

CAFOs (Spoelstra, 1980). These compounds can be grouped into 3 categories: gases 

and vapors; bioaerosols; and non-biologic aerosols (Cole, 2000; Donham, 1977; Olsen, 

1996; Pickrell, 1991). 

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The gases associated with CAFOs of primary concern to public health are ammonia, hydrogen sulfide, carbon monoxide and methane. The main sources of these 

gases include poultry and swine facilities, windrows of stored poultry litter, cesspits 

adjacent to swine barns, and land-applied poultry litter and swine wastes. At high 

concentrations, ammonia and hydrogen sulfide adversely affect the respiratory system, and cause eye and skin irritation. The swine-related bioaerosols of concern to 

public health are endotoxins. Endotoxins are fragments of gram-negative bacteria 

that are generally present in high concentrations at a swine production facility. 

When endotoxins are inhaled, chronic respiratory symptoms such as coughing and 

wheezing, pulmonary impairment, and fever can result (Douwes, 1997). 

Bioaerosols present in and around CAFOs include (but are not limited to) bacteria, antibiotic-resistant bacteria and endotoxins. Recent studies have shown that 

98% of airborne bacteria present in large-scale swine and poultry operations are resistant to multiple antibiotics that are used in both animal production and human 

medicine (Chapin, 2005; McCarthy, in preparation). 

Water 

The presence of bacterial and protozoan pathogens in ground water intended for 

drinking water can cause mild to severe bouts of gastroenteritis, depending on the 

immune status and age of the affected individual. Contracting antibiotic-resistant 

bacterial infections can pose serious challenges in treatment. Studies published in 

the New England Journal of Medicine have shown an association between the use 

of antibiotics in animal production operations and antibiotic-resistant bacterial infections in humans (Molbak, 1999; Smith, 1999). Other studies of poultry, poultry 

farmers and poultry slaughterers have documented the spread of antibiotic-resistant 

Enterococcus sp. and Escherichia coli from poultry to humans (van den Bogaard, 

2001; van den Bogaard, 2002). 

In 1998, the Centers for Disease Control and Prevention, the U.S. government’s 

lead agency for protecting the safety and health of Americans, conducted a pilot investigation of the microbial and chemical constituents of water and other environmental media affected by poultry litter around large poultry operations (Karpati, 

1998). Results from this study indicated that ground water and/or surface waters 

near large-scale poultry operations were contaminated with the following:

• Nutrients, including nitrite, nitrate, ammonia and Kjeldahl nitrogen 

• Solutes, including chloride, barium and copper 

• Pesticides, including atrazine, methoxychlor, alachlor, metolachlor and cyanazine 

• Antibiotic residues, including tetracyclines and fluoroquinolones 

• Bacterial pathogens, including, Escherichia coli, Salmonella sp., and Enterococcus 

sp. 

• Antibiotic-resistant Escherichia coli, Salmonella sp., and Enterococcus sp. 

The CDC also investigated the microbial and chemical constituents of ground and 

surface water near a swine CAFO (Campagnolo, 1998). This study revealed that 

ground water and surface waters near the swine CAFO were contaminated with the 

following:

• Nutrients, including phosphate, nitrate and nitrite 

• Common ions, including arsenic 

• Trace elements 

• Antibiotics 

• Parasitic oocysts of Cryptosporidium parvum 

• Bacteria, including E. coli, Enterococcus, and Salmonella, all demonstrated antibiotic-resistance to antibiotics that are commonly used as feed additives in 

swine production. Most of these antibiotics are also used in human medicine to 

treat clinical disease. 

Soil 

Manure land application in excess of the land’s absorptive capacity also can lead 

to excess nitrogen and phosphorus in soil, eutrophication of surface waters and 

algae overgrowth—including some algae that produce compounds that are toxic to 

fish and humans. 

3. CURRENT WASTE MANAGEMENT PRACTICES IN INDUSTRIAL ANIMAL PRODUCTION

THREATEN THE ENVIRONMENT AND PUBLIC HEALTH. 

Before industrial methods were adopted in animal agriculture, the amount of 

waste produced by small numbers of animals on family farms was applied to pasture and cropland in amounts that maintained the balance of soil fertility. Coupled 

with crop rotation and open pasturing of animals most farms were able to maintain 

an ecologic balance. With the emergence of CAFOs and the associated production 

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in concentrated areas of huge quantities of untreated solid and liquid wastes, the 

ecologic balance was upset. Current animal production in the U.S. yields 287 million 

dry tons of waste, more than 270 million dry tons of which is applied to land without any prior treatment. 

In contrast, the population of almost 300 million people in the U.S. produces 

about 6.9 million dry tons of treated waste in municipal treatment facilities, 3.6 million dry tons of which is applied to land as sewage sludge. 

Impacts from waste: Rivers and streams

• An estimated 48,000 of the 300,000 impaired U.S. river and stream miles are due 

to animal feeding operations (USEPA, 2003) 

• High levels of estrogens are in effluent from animal feeding operations 

Drugs used in CAFOs end up in waste

• Arsenicals used in poultry production for growth promotion and for controlling intestinal parasites lead to 2 million pounds or 2,000 tons of arsenic being introduced into the environment each year from U.S. poultry operations alone. 

• 25 million pounds of antibiotics are used in U.S. food animal production in subtherapeutic doses. About 75% of these antibiotics are excreted into CAFO 

wastes. 

Impacts from waste: Drinking Water

• 1.3 million households have water supplies with nitrate levels above the maximum contaminant level of 10 mg/L. (USEPA, 2002) 

In many states, it is legal for CAFO storage cesspits (or what are referred to as 

‘‘lagoons’’) to leak millions of gallons of liquid waste, (Simpkins, 2002; Huffman, 

1995; Schulte, 1998). Moreover, CAFO cesspits overflow or breech (Mallin, 2000; 

Wing, 2002). It is also important to note that these cesspits are often located on 

floodplains, extend below the water table or are sited over alluvial aquifers (valuable drinking water sources but vulnerable microbial contamination) (Simpkins, 

2002). 

4. FEED INGREDIENTS USED IN INDUSTRIAL ANIMAL PRODUCTION ARE UNDERMINING

THE EFFECTIVENESS OF ANTIBIOTICS IN MEDICAL CARE. 

Antibiotics are used extensively at sub-therapeutic levels in CAFOs. The antibiotics are added to animal feeds in addition to arsenic and other metal compounds 

for growth promotion purposes (Barza, 2002; Sommers, 2002; Momplaisir, 2001). According to the Union of Concerned Scientists, more than 70% of all antibiotics produced in the U.S. are used in animal production. It is estimated that 23 million 

pounds of antibiotics are used annually in U.S. animal production, as compared to 

3 million pounds of antibiotics prescribed for humans. (Mellon, 2002). Most of these 

medicines are either identical to or very similar to human medicines. There is 

strong scientific evidence that the antibiotics used in CAFOs contributes to antibiotic resistance transmitted to bacterial pathogens that affect human disease. 

(Barza, 2002; WHO, 2001). Resistant strains of bacteria that develop in CAFO animals undermine the usefulness of antibiotics in treating humans (Mellon, 2001). 

The World Health Organization recognizes that resistant strains of human pathogens have been identified in animal production facilities and has recommended putting an end to the non-therapeutic use of antibiotics in animal husbandry, (WHO, 

1997). The American Public Health Association adopted Resolution 2004-13, ‘‘Helping Preserve Antibiotic Effectiveness by Stimulating Demand for Meats Produced 

Without Excessive Antibiotics’’ thereby recognizing the threat to public health posed 

by non-therapeutic use of antibiotics in CAFOs (APHA, 2004). 

All uses of antibiotics inevitably lead to the selection of resistance organisms. In 

human medicine this problem is approached by selective use of antibiotics for confirmed bacterial infections, encouraging patients to complete the full course of treatment to eradicate the infection, and to educate patients and doctors alike that overprescribing of antibiotics for such things as viral upper respiratory infections contributes to the emergence of antibiotic-resistant organisms. Antibiotic resistant bacteria, especially in hospital-acquired infections, are an increasingly serious clinical 

problem. The same classes of drugs are used in food animal production as in clinical 

medicine. 

How is antibiotic use in industrial animal production related to human health?

• Animals are given antibiotics in their feed throughout their life 

• Antibiotic resistant bacteria are selected out in the gut of the animal 

Antibiotic resistant bacteria in animal waste ends up on the meat and in the environment. Human exposure to antibiotic resistant bacteria then occurs from ingesting contaminated foods, breathing air containing bacteria, and drinking contaminated water. 

126

CDC recognizes that virtually all important bacterial pathogens in the U.S. are 

becoming resistant to currently available antibiotics. In 1998, the National Academy 

of Sciences estimated that antibiotic resistant bacteria costs the US $4—5 billion 

each year in hospitalizations for protracted infections, loss of work, and premature 

death or disability. 

Total Burden of Foodborne Illnesses (CDC, Emerging Infectious Diseases, 1999)

• Illnesses: 76,000,000

• Hospitalizations: 323,000

• Deaths: 5,200

A global problem needs global leadership: bacteria without borders

• Drug resistant salmonella, originating in Japanese fish farms, reached US in 3 

years 

• Bacteria move by wind from Africa to the US 

• Wild birds carry bacterial and viral diseases across oceans 

• Antibiotic resistance genes are picked up and transferred among bacterial populations, from non-pathogenic to pathogenic strains 

The rate of spread of these antibiotic resistant genes and organisms is a function 

of how many hosts (people or food animals) are exposed to sub-therapeutic doses of 

antibiotics. 

Summary 

The public health threat of CAFOs reflects the multiple exposure routes through 

air, water, and soil of harmful gases, pollutants such as sulfur dioxide and nitrates, 

and pathogenic micro-organisms. 

Gases, odors and nutrients are problematic but are not the only public health concern. 

Antibiotic resistant bacteria are a major public health threat. 

These real and urgent public health issues associated with CAFOs warrant 

strengthening rather than lowering the standards regarding air and water quality. 

To date, no swine producing state has been able to control adequately manure 

waste and airborne emissions from swine CAFOs, such that potential environmental 

health problems and public health problems among neighboring landowners are 

eliminated. 

Given the current situation and the efforts by large producers to introduce CAFOs 

to new areas of the U.S., now is not the time to be reducing the regulatory attention 

that CAFOs receive. 

The documented harmful health effects of CAFOs motivated the American Public 

Health Association in 2003 to adopt a resolution calling for a moratorium on the 

building of new CAFOs until additional data can be gathered and policies implemented to protect public health. 

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Mr. GILLMOR. Thank you very much, Dr. Lawrence. You heard 

the bells again. That means we are going to have another series 

of votes. But I want to be sure we get the panel concluded, so let 

me go to Ms. Merkel. 

STATEMENT OF MICHELE M. MERKEL 

Ms. MERKEL. Okay. Thank you, Mr. Chairman and members of 

the subcommittee for the opportunity to testify today. My name is 

Michele Merkel, and I am senior counsel of the Environmental Integrity Project, which is a non-profit organization that advocates 

for the effective enforcement of environmental laws. I am testifying 

today on behalf of 19 other organizations and individuals who are 

concerned about recent Congressional interest in exempting all 

hazardous releases associated with manure from the notification 

and reporting requirements under CERCLA and EPCRA. 

We ask you to continue to require reporting under these statutes 

from large agricultural operations that release hazardous substances at levels that may jeopardize public health. In addition, we 

ask you to maintain authority under CERCLA to require livestock 

operations to clean up their un-permitted releases of hazardous 

waste. Without these statutes, the government is left powerless to 

protect critical natural resources like public drinking water supVerDate 0ct 09 2002 15:16 Jun 12, 2006 Jkt 000000 PO 00000 Frm 00134 Fmt 6633 Sfmt 6602 F:\DOCS\27001.TXT HCOM1 PsN: JOEP
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plies, and the public is unwittingly exposed to potentially dangerous quantities of hazardous pollutants. 

As we have heard today, the face of animal agriculture has 

changed dramatically in recent years. The traditional practices of 

the independent farmer have yielded to an industrial paradigm 

that rests on economies of scale. The new system more closely represents manufacturing than it does farming. Now we have thousands, or even millions, of animals confined in buildings, and these 

mega-facilities can produce thousands of tons of waste every year, 

and are capable of releasing significant, even dangerous quantities, 

of toxic gasses to nearby communities. 

For example, Threemile Canyon Farms in Boardman, Oregon, recently reported that its 52,300-head dairy cow operation emits 

15,500 pounds of ammonia per day. This is 5,675,000 pounds per 

year. That is 75,000 pounds more than the Nation’s No. 1 manufacturing source of ammonia air pollution. 

Unless properly regulated, corporate agriculture presents serious 

threats to human health. As Dr. Lawrence just mentioned, the 

risks to public health is so great that the American Public Health 

Association, the Michigan State Medical Society, the Canadian 

Medical Association, as well as local boards of health, have all 

called for a moratorium on new construction of concentrated animal 

feeding operations. 

CERCLA and EPCRA provide an essential safety net for protecting water supplies and protecting the air that we breathe. The 

reporting requirements under these statutes provide local, State 

and Federal agencies with critical information about potentially 

dangerous releases of hazardous substances that could affect communities. And if a reported release demands a response, the government may act to respond to that release. And if the government 

acts, it may recoup the cost of its action. CERCLA upholds the 

principle that polluters, not the public, should bare the cost and responsibility for remedying the harmful conditions that they create. 

Now, we have heard industry representatives today assert that 

livestock operations should be exempt for a number of reasons. 

First, we often hear that the environmental community wants to 

use these laws to shut down agriculture, and that citizen suit litigation threatens to impose high penalties in natural resources danger. But this could—nothing could be further from the truth. There 

have only been a couple of citizen suits ever brought against 

CAFOs that have had CERCLA and EPCRA claims. These suits 

were brought by rural residents, including family farmers, against 

some of the largest operations in the country. In both Sierra Club 

cases, the industry did not pay a single penny in penalties. Furthermore, natural resource damages may only be recovered by a 

designated Federal, State or tribal trustee. 

Another myth that we hear is that livestock operations are already over-regulated by Federal Law. First, CERCLA and EPCRA 

require the reporting of only non-federally permitted releases. If an 

operation’s emissions are authorized by a permit under another 

Federal statute, they do not have to report these emissions. And releases that are federally permitted, are exempt not only from the 

notification requirements, but from CERCLA liability as well. However, health threats and pollution from factory farms has been 

130

poorly controlled by other Federal laws. States have never issued 

a single Clean Air Act permit to an operation to date, and although 

the Clean Water Act has required large livestock operations to obtain permits for more than 30 years, non-compliance has been 

widespread. 

In 2001, EPA estimated that at least 13,000 operations were required to have Clean Water Act permits, but EPA and States had 

issued just 2,520 permits. 

Industry also asserts that Congress never intended to apply 

CERCLA and EPCRA requirements to animal agriculture. However, they cite no authority for this claim. If Congress had intended 

such a result, it could have and would have excluded animal production facilities from the reporting requirements. Instead, they 

chose only to exempt the normal application of fertilizer, and provide an exemption for regulated substances used in routine agricultural operations. No one has tried to take these exemptions away. 

What industry has a problem with is that Federal courts have declined to apply these exemptions to corporate agriculture. But this 

is only happening in cases where the specific facts of the case have 

shown that the operation over-applied its waste to fields or vented 

dangerous quantities of hazardous pollutants from buildings. 

Finally, industry argues that releases of hazardous substances 

from animal production facilities like ammonia and hydrogen-sulfide, should be exempt because these are naturally occurring. But 

there is nothing natural about amassing millions of animals in 

buildings and flushing their waste into pits that can be several 

football fields big, nor is there anything natural about over-applying the animal waste to crops that can’t use the nutrients. This exemption is meant to apply only to releases of background levels of 

chemicals, or releases that occur naturally without any human interference, not to hazardous substances that are added to the environment and disposed of during the improper storage and handling 

of waste. 

I am here today not because environmentalists or family farmers 

want to shut down agriculture. Rather, this is about holding all industries accountable for pollution that threatens public health and 

the environment, whether you are a manufacturing plant, a chemical plant, or an industrial agricultural operation. There is no compelling reason to exempt livestock facilities from these statutes, 

particularly when Congress has already put exemptions in place to 

cover those operations that farm responsibly. Like everyone else, 

rural residents have a right to know what toxins are being dumped 

into their air and water. 

In closing, before you consider any amendments to current law, 

we request that you hold field hearings so that citizens who are affected by pollution from these large operations have an opportunity 

to testify as well. Thank you. 

[The prepared statement of Michele M. Merkel follows:]

PREPARED STATEMENT OF MICHELE M. MERKEL, SENIOR COUNSEL, ENVIRONMENTAL

INTEGRITY PROJECT

Thank you Mr. Chairman and Members of the Subcommittee for the opportunity 

to testify today. My name is Michele Merkel, and I am senior counsel of the Environmental Integrity Project (EIP), a nonprofit organization that advocates for effective enforcement of environmental laws. I am testifying this morning on behalf of 

131

EIP, Center on Race, Poverty & the Environment, Clean Water Action Alliance of 

Minnesota, Conservation Council of North Carolina, Family Farms for the Future, 

Idaho Conservation League, Illinois Stewardship Alliance, Institute for Agriculture 

and Trade Policy, Iowa Citizens for Community Improvement, Iowa Environmental 

Council, Izaak Walton League of America, Land Stewardship Project, Natural Resources Defense Council, Northwest Environmental Defense Center, Savannah 

Riverkeeper, Inc., Sierra Club, Southern Environmental Law Center, Sustainable 

Agriculture Coalition, Waterkeeper Alliance, Melody Torrey on behalf of Missouri 

Stream Team #714, Rolf Christen, and Robert E. Rutkowski. 

We are concerned about recent Congressional interest in exempting all hazardous 

releases associated with manure, including ammonia and hydrogen sulfide, from the 

notification and reporting requirements under the Comprehensive Environmental 

Response, Compensation and Liability Act (CERCLA) and the Emergency Reporting 

and Community Right to Know Act (EPCRA). We urge you to continue to require 

hazardous release reporting under these statutes from large agricultural operations 

that release ammonia or other hazardous substances at levels that may jeopardize 

public health. In addition, we urge you to maintain authority under CERCLA to require livestock operations to clean up their unpermitted releases of hazardous waste 

to the environment. Without these statutes, the government is powerless to protect 

critical natural resources like public drinking water supplies, and the public is unwittingly exposed to potentially dangerous quantities of hazardous pollutants. 

STRUCTURE OF THE LIVESTOCK INDUSTRY

The Animal Feeding Operation (AFO) industry is a multi-billion dollar business. 

Most AFOs do not resemble the livestock farms of years past. Instead, many AFOs 

are industrialized operations that confine thousands of animals at a single location, 

often generating the waste equivalent of a small city.1 Unlike traditional livestock 

farms where the animals grazed on pastureland, AFOs confine thousands, or even 

millions, of the animals in closed buildings for most of their lives, where they are 

fed a regimented diet in a closely controlled indoor environment.2

In the swine industry, for example, large confinement operations dominate production.3 Hog AFOs typically confine approximately 5,000 hogs at any given time 

in totally closed buildings.4 Such large AFOs are highly specialized operations which 

do not resemble traditional farming. They are more akin to manufacturing processes, in which the operator closely regulates the animals’ environment, food source, 

and water supply.5

Animal production is also becoming consolidated in the hands of a few giant agribusinesses. In the broiler industry, for example, production has shifted away from 

small family farms to industrial production facilities controlled by large agribusinesses. Between 1982 and 1992, roughly 20% of broiler operations across the 

country shut down, yet the number of chickens raised increased considerably. Industrial-sized operations have replaced the traditional small producers that went out 

of business.6

Over 90% of all chickens are raised under a contractual relationship with ‘‘integrated’’ production and processing companies. Under this arrangement, the agribusiness ‘‘integrator’’ contracts with a ‘‘grower’’ to produce chickens for slaughter by 

the integrator. The integrator owns the chickens throughout the production process 

and supplies the bulk of the necessary inputs including feed and medication. The 

integrator also monitors the production operation and provides growers with detailed instructions regarding the day-to-day activities at the site.7

Consolidation and agribusiness control is not limited to the broiler industry. The 

trend in hog production is also toward fewer, larger confinement operations. In the 

last decade alone, the number of hog operations nationwide plummeted 50% while 

domestic hog production increased considerably. As with the broiler industry, the 

smaller, family-run hog farms have given way to large industrial-scale AFOs, where 

many of the hogs are raised under contract with an integrator. The dairy industry 

is becoming consolidated as well. Since 1998, over 40% of all dairies have vanished, 

but the number of larger operations has increased.8

The AFO industry is big business. The poultry industry alone generated over $21 

billion in on-farm revenue in 1997, with much of the production coming from corporate producers operating large AFOs.9 Similarly, the swine industry generates 

roughly $10 billion per year at the production level; revenue from consumer sales 

often exceeds $20 billion.10 Large agribusinesses realize the lion’s share of the profits. For instance, Tyson Foods, the world’s largest meat producer, enjoyed $26.4 billion in sales and realized $1.9 billion in gross profits in 2004.11 Smithfield Foods, 

the nation’s largest hog producer, generated $9.3 billion in sales and $227 million 

in net income in the same year.12 Revenues and profits continue to grow each year. 

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The face of animal agriculture has changed dramatically in recent years. The traditional practices of the independent farmer have yielded to an industrial paradigm 

that rests on economies of scale and externalization of pollution control costs. Largescale ‘‘factory farms’’ are rapidly taking over the meat industry, and production 

practices that involve animals grazing on pasture are quickly disappearing. A new 

system of animal agriculture has taken hold, one that more closely resembles manufacturing than it does farming. Unless properly regulated, this new form of agriculture has the potential to do unthinkable damage to the environment. 

ENVIRONMENTAL AND HUMAN HEALTH IMPACTS OF AFO POLLUTION

Animal feeding operations present enormous threats to the environment. These 

operations produce about 500 million tons of manure annually or three times more 

waste than humans generate each year in the United States.13 The pollutants associated with AFO waste include: (1) nutrients such as nitrogen and phosphorous; (2) 

organic matter; (3) solids, including the manure itself and other elements mixed in 

with it such as spilled feed, bedding and litter materials, hair, feathers and corpses; 

(4) pathogens; (5) salts; (6) trace elements such as arsenic; (7) volatile compounds 

such as carbon dioxide, methane, hydrogen sulfide, and ammonia; (8) antibiotics; 

and (9) pesticides and hormones.14

These pollutants often impair water quality in the nation’s rivers and lakes when 

manure overflows from storage ‘‘lagoons’’ or when pollutants released to the air redeposit on waterways. For example, in 1995, approximately 25 million gallons of 

manure were discharged from a single hog AFO in North Carolina.15 Similarly, discharges of thousands of gallons of animal waste have been reported in Iowa, Illinois, 

Minnesota, Missouri, Ohio and New York.16 These discharges wreak havoc on the 

receiving waters, often killing hundreds of thousands of fish per event. 

Perhaps the most common way that pollutants reach surface waters or leach into 

groundwater is through improper land application. AFOs frequently overapply animal waste to nearby fields, where it mixes with rainwater and runs off into rivers 

and lakes. The nutrient-rich runoff alters the chemical composition of receiving waters, and triggers a surge in algae and other aquatic vegetative growth. This vegetative growth can choke out fish and other marine life, and lead to increased treatment requirements for drinking water supplies. According to the EPA, ‘‘over-enrichment of waters by nutrients (nitrogen and phosphorous) is the biggest overall source 

of impairment of the nation’s rivers and streams, lakes and reservoirs, and estuaries.’’ 17

This contamination poses serious risks to human health. Manure-related microbes 

in water can cause severe gastrointestinal disease, complications and even death.18

In May 2000 in Walkerton, Ontario, an estimated 2,321 people became ill and seven 

died after drinking water from a municipal well contaminated with E.coli and 

Camplyobacter from runoff resulting from manure spread onto fields by a nearby 

livestock operation.19 Manure can also carry arsenic and other toxic metal compounds, as well as antibiotics, into water contributing to antibiotic resistance.20 Finally, pollution from animal confinements can cause nitrate contamination of drinking water supplies, which can result in significant human health problems including 

methemoglobinemia in infants (‘‘blue baby syndrome’’), spontaneous abortions and 

increased incidence of stomach and esophageal cancers.21

AFO air emissions also cause significant health problems in workers and in nearby residents. AFOs emit significant amounts of particulate matter (fecal matter, 

feed materials, skin cells, bioaerosols, etc.), ammonia, hydrogen sulfide, sulfur dioxide, volatile organic compounds, and other harmful contaminants into the air.22 Adverse human health effects associated with air pollution from AFOs are manifold 

and may include respiratory diseases (asthma, hypersensitivity pneumonitis, industrial bronchitis), cardiovascular events (sudden death associated with particulate air 

pollution), and neuropsychiatric conditions (due to odor as well as delayed effects 

of toxic inhalations.).23 Other problems include increased headaches, sore throats, 

excessive coughing, diarrhea, burning eyes, and reduced quality of life for nearby 

residents.24 AFO air pollution is especially problematic, because neighboring communities are exposed on a near constant basis.25

Ammonia is a human toxin that EPA lists alongside arsenic, cyanide, and benzene 

as a hazardous substance under CERCLA. 40. C.F.R. § 302.4. The livestock sector 

produces roughly 73% of all ammonia emissions nationwide.26 Some of the largest 

facilities produce staggering quantities of ammonia gas—comparable to pollution 

from the nation’s largest manufacturing plants.27 For example, Threemile Canyon 

Farms in Boardman, Oregon, reported that its 52,300 dairy cow operation emits 

15,500 pounds of ammonia per day, more than 5,675,000 pounds per year.28 That 

is 75,000 pounds more than the nation’s number one manufacturing source of amVerDate 0ct 09 2002 15:16 Jun 12, 2006 Jkt 000000 PO 00000 Frm 00138 Fmt 6633 Sfmt 6621 F:\DOCS\27001.TXT HCOM1 PsN: JOEP
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monia air pollution (CF Industries of Donaldson, Louisiana).29 Buckeye Egg Farm’s 

facility in Croton, Ohio reported ammonia emissions of over 4,300 pounds per day—

43 times the reporting threshold under CERCLA and EPCRA.30

Human exposure to ammonia triggers respiratory problems, causes nasal and eye 

irritation, and in extreme circumstances, is fatal.31 AFOs expose downwind neighbors are exposed to elevated ammonia levels, as well as other pollutants. For example, the Missouri Department of Health and Senior Services documented ambient 

ammonia levels downwind of a swine operation ranging from 153 to 875 ppb. The 

EPA submitted comments on the Missouri study, comparing the ambient ammonia 

levels to recommended exposure limits and noted that ‘‘the conclusion could be 

drawn that a public health hazard did exist at the time the... data was acquired.’’ 32

Ammonia also contributes to the development of fine particulate matter. Fine particulate matter causes significant health problems, including aggravated asthma, 

difficult or painful breathing, chronic bronchitis, decreased lung function, and premature death.33 Fine particulate matter has been linked to increased hospital emissions and emergency room visits for people with heart and lung disease, and decreased work and school attendance.34

In addition to ammonia, EPA also lists hydrogen sulfide as a hazardous pollutant 

under CERCLA. High-level exposures of hydrogen sulfide, an asphyxiate, can cause 

loss of consciousness, coma and death. At least 19 AFO workers have died from sudden hydrogen sulfide exposure during liquid manure agitation. 35 Epidemiological 

studies of communities exposed to hydrogen sulfide reported symptoms such as 

asthma, chronic bronchitis, shortness of breath, eye irritation, nausea, headaches 

and loss of sleep.36

These risks to public health led the American Public Health Association to call 

for a moratorium on new concentrated animal feeding operations ‘‘until scientific 

data on the attendant risks to public health have been collected and uncertainties 

resolved.’’ 37 The Michigan State Medical Society, the Canadian Medical Association, 

as well as local boards of health, have also called for moratoria on new concentrated 

animal feeding operation construction.38

EPCRA AND CERCLA REQUIREMENTS

CERCLA has two main policy objectives. First, Congress intended to give the federal government the necessary tools for a prompt and effective response to problems 

of national magnitude resulting from hazardous waste disposal.39 Second, Congress 

intended that the polluters bear the costs and responsibility for remedying the 

harmful conditions that they created.40

Specifically, section 103 of CERCLA provides that any person in charge of a facility from which a hazardous substance has been released in a reportable quantity 

(RQ) must immediately notify the National Response Center (‘‘NRC’’).41 For example, releases of ammonia and hydrogen sulfide that exceed 100 pounds per day must 

be reported under section 103.42 Section 103(f)(2) of CERCLA further provides for 

relaxed reporting requirements for substances that are classified as a continuous release.43 If a reported release demands a response, the government may act, pursuant to section 104, to respond to that release.44 And if the government acts, it may 

recoup the costs of the recovery action under CERCLA section 107.45

In addition to the reporting requirements under CERCLA, owners and operators 

of facilities must also provide immediate notice of the release of an extremely hazardous substance under EPCRA. Section 304(a) requires an owner or operator of a 

facility to report the release of an extremely hazardous substance to designated 

state and local officials, if ‘‘such release requires notification of section 103(a) of the 

Comprehensive Environmental Response, Compensation, and Liability Act of 

1980.’’ 46 The EPCRA emergency reporting requirements, therefore, track the 

CERCLA requirements and ensure that federal, state and local authorities are notified of potentially dangerous chemical releases. 

The right-to know provisions of CERCLA and EPCRA not only empower government but also citizens. Information about chemical releases enables citizens to hold 

companies and local governments accountable in terms of how toxic chemicals are 

managed. Transparency also often spurs companies to focus on their chemical management practices since they are being measured and made public. In addition, the 

data serves as a rough indicator of environmental progress over time. 

ANIMAL PRODUCTION OPERATIONS SHOULD NOT BE EXEMPTED FROM EPCRA/CERCLA

The AFO industry argues that Congress never intended to apply CERCLA and 

EPCRA requirements to animal agriculture. However, they cite to no authority for 

this claim. If Congress had intended such a result, it could have excluded animal 

production facilities, like hog or poultry facilities, from the reporting requirements 

134

of CERCLA.47 Instead, Congress only chose to exempt ‘‘the normal application of fertilizer’’ from the CERCLA definition of release,48 and provided an exemption under 

EPCRA for reporting releases when the regulated substance ‘‘is used in routine agricultural operations or is a fertilizer held for sale by a retailer to the ultimate consumer.’’ 49

Both of these exemptions were considered by a federal district court in Kentucky 

which held that neither of the exemptions should apply to Tyson’s poultry production operations. Tyson did not qualify for the routine agricultural use exemption, because it did not store ammonia in the chicken houses for agricultural use, nor did 

it use the ammonia in an agricultural operation.50 Rather, it used exhaust fans and 

vents to release the ammonia to the environment so that it would not kill the chickens. Tyson did not qualify for the normal application of fertilizer exemption, because 

they were not applying ammonia to farm fields as fertilizer when they vented it into 

the atmosphere.51

A federal court in Texas also considered the normal application of fertilizer exemption. The court ruled that the exemption does not apply if Plaintiffs prove that 

the Defendants improperly stored and maintained large amounts of waste on their 

property, causing hazardous releases of phosphorous and other pollutants to nearby 

sources of drinking water.52

Industry representatives also argue that the CERCLA exclusion for ‘‘naturally occurring substances’’ should apply to livestock operations. Section 104(a)(3)(A) of 

CERCLA prohibits the President [through EPA] from ordering a remedial or response action ‘‘in response to a release or threat of release . . . of a naturally occurring substance in its unaltered form, or altered solely through naturally occurring 

processes or phenomena, from a location where it is naturally found . . .’’ Industry 

argues that CERCLA should not apply to farming operations because ‘‘[s]ubstances, 

such as orthophosphate, ammonia and hydrogen sulfide, occur naturally in the environment in the same forms as they occur as byproducts of biological processes on 

farming operations.’’ However, releases of hazardous substances from agribusinesses 

would not qualify for the exemption, because they occur as a result of activities associated with milk or meat production.53 For example, as discussed below, in both 

of the response actions taken to date, the governments’ actions were not based on 

releases of naturally occurring phosphorous or orthophosphate undisturbed by 

human activity. Rather, the governments sought to remove hazardous substances 

that were added to the environment and disposed of by the operations during the 

improper storage and handling of waste. 

CERCLA/EPCRA FILL IMPORTANT GAPS IN PERMITTING STATUTES

CERCLA and EPCRA require the reporting of only non-federally permitted releases. Therefore, if a AFO’s emissions are authorized by a permit under another 

federal statute, they do not have to report these emissions. Releases that are federally permitted are exempt not only from CERCLA and EPCRA notification requirements but from CERCLA liability as well.54

Although EPA and the States have permitted some AFOs under other federal 

statutes, CERCLA is still necessary to fill critical gaps. For example, under pressure 

from citizens and EPA, the California legislature overturned an exemption for agricultural operations and recently became the first state to require large animal operations to apply for Clean Air Act permits.55 Although the Clean Water Act has required large livestock operations to obtain permits for more than 30 years, noncompliance has been widespread. In 2001, EPA estimated that at least 13,000 concentrated animal feeding operations were required to have Clean Water Act permits, 

but EPA and States had issued just 2,520 permits.56

Even if a facility were to have a federal permit, the permit would not necessarily 

address all of the releases of hazardous chemicals. A Clean Water Act permit, for 

example, would not address releases of hazardous chemicals to the air and, conversely, a Clean Air Act permit would not address releases of hazardous chemicals 

to water. Furthermore, not all statutes regulate the same chemicals. For example, 

the Clean Air Act does not regulate ammonia or hydrogen sulfide as hazardous air 

pollutants. Although CERCLA’s list of hazardous substances were first identified 

under other statutes, including the Clean Water Act, the Clean Air Act and the Resource Conservation and Recovery Act, CERCLA authorizes the Administrator of 

EPA to add to this list ‘‘substances [like ammonia and hydrogen sulfide] which, 

when released to the environment may present a substantial danger to public health 

or welfare or the environment . . .’’ 57 Thus, EPCRA and CERCLA are necessary complements to federal permitting statutes to address hazardous pollutants that would 

not otherwise be regulated. 

135

CERCLA/EPCRA CASES AGAINST AGRIBUSINESSES, NOT FAMILY FARMS

There have only been a handful of cases filed against AFOs for violations of 

CERCLA and EPCRA. In most of the cases, the defendants have been large corporate agribusinesses, not family farmers, and the releases of hazardous chemicals 

have been significant. Courts have consistently held that CERCLA and EPCRA reporting requirements apply to agricultural operations if releases of regulated hazardous substances meet regulatory thresholds. 

Premium Standard Farms—In November 2001, the United States and Citizens 

Legal Environmental Action Network, Inc. settled a case against Premium Standard 

Farms, Inc. (PSF), the nation’s second largest pork producer and Continental Grain 

Company. PSF’s and Continental’s operations in Missouri consist of more than 1,000 

hog barns, 163 animal waste lagoons and 1.25 million hogs, primarily located on 21 

large-scale farms in five counties. The settlement resolved numerous claims of violations under the CWA,58 CAA,59 CERCLA and EPCRA.60

PSF exposed downwind neighbors to elevated ammonia levels, as well as other 

pollutants.61 Recent measurements taken pursuant to the settlement agreement reveal that PSF releases 3 million pounds of ammonia annually from the cluster of 

barns and lagoons at its Somerset facility.62 These emissions make PSF the fifth 

largest industrial emitter of ammonia in the United States. This data does not include the ammonia gases released when liquid manure is sprayed on the company’s 

nearby fields. 

Seaboard Corporation—On January 7, 2003, the Sierra Club reached partial settlement of a lawsuit against the Seaboard Corporation, concerning pollution at one 

of the largest hog factories in North America. The settlement resolved all claims, 

except for Sierra Club’s CERCLA and EPCRA claims.—CERCLA requires a person 

to report releases of a hazardous substance from a ‘‘facility.’’ In an effort to avoid 

regulation, Seaboard argued that each pit and building should be counted separately. An appellate court found Seaboard’s arguments ′′unconvincing.′′ The Court 

held that the entire 25,000-head hog operation was a single ′′facility′′ and that Seaboard must report the combined emissions from all its waste pits and confinement 

buildings.63 Seaboard estimates that the total average daily emissions of ammonia 

are from its Dorman Sow Facility is 192 pounds per day, almost double the 100 

pound per day reporting threshold under CERCLA. 

Tyson Foods, Inc.—On January 26, 2005, the Sierra Club entered into a settlement agreement with Tyson Foods. Tyson is the number one poultry producer in 

the nation, and each of its four facilities that were involved in the case could confine 

approximately 600,000 chickens at one time. Under the decree, Tyson agreed to 

study and report on emissions from its chicken operations and mitigate ammonia 

emissions that have been plaguing rural residents for years. The settlement came 

in the wake of a court decision in 2003, when a federal judge ruled that the term 

‘‘facility’’ should be interpreted broadly, including facilities operated together for a 

single purpose at one site, and that the whole farm site is the proper regulated entity for purposes of the CERCLA and EPCRA reporting requirements.64

City of Tulsa—The City of Tulsa filed suit against some of the largest poultry producers in the nation including Tyson, Simmons and Cargill.65 The City alleged that 

the Defendants’ growers polluted Lakes Eucha and Spavinaw, from which Tulsa 

draws its water supply, by applying excess litter to land application areas. As of 

September 1, 2002, just one of the Defendant’s growers produced approximately 

40,715,200 birds and an estimated 39,859 tons of litter in the affected watershed.66

The City’s complaint included claims for cost recovery and contribution under 

CERCLA. A federal court ruled that phosphorous contained in the poultry litter in 

the form of phosphate is a hazardous substance under CERCLA.67

City of Waco—In 2004, the City of Waco filed suit against fourteen commercial 

dairies for failure to properly manage and dispose of waste. The complaint alleges 

that hazardous pollution from these dairies contaminated Lake Waco, which is the 

sole source of drinking water for the City of Waco and a significant source of drinking water for surrounding communities.68 The City’s complaint includes claims for 

cost recovery and contribution costs under CERCLA. The Court denied the dairies’ 

Motion to Dismiss and held, among other things, that the type of phosphorous that 

was released by the dairies was a hazardous substance under CERCLA.69 The Court 

also held that the normal application of fertilizer exemption would not apply if 

Plaintiffs could prove that the releases of hazardous substances were caused by the 

dairies’ improper handling of animal waste.70

State of Oklahoma—On June 18, 2005, the Oklahoma Attorney General’s Office 

filed a lawsuit against some of the nation’s largest producers of chickens, turkeys 

and eggs for water pollution in the Illinois River watershed caused by the improper 

dumping and storage of poultry waste.71 The watershed contains elevated levels of 

136

a number of pollutants found in poultry waste. For example, the phosphorous from 

the poultry waste dumped into the Illinois River watershed is equivalent to the 

waste that would be generated by 10.7 million people, a population greater than the 

states of Arkansas, Kansas and Oklahoma combined.72 The watershed also serves 

as the source of drinking water for 22 public water supplies in eastern Oklahoma.73

The Attorney General’s complaint alleges violations of state and federal nuisance 

laws, trespass, as well as other violations of state environmental regulations. The 

State also seeks to recover the costs that it has had to incur, and will incur, to respond to the pollution. These costs include ‘‘the costs of monitoring, assessing and 

evaluating water quality, wildlife and biota in the [Illinois River Watershed].’’ 74 The 

State also seeks to recover Natural Resource Damages for the injury to, destruction 

of, and loss of natural resources.75

CITIZENS CANNOT RECOVER NATURAL RESOURCES DAMAGES OR PENALTIES UNDER THE

RESPONSE SECTIONS OF CERCLA

Industry representatives have incorrectly asserted that citizen suits threaten to 

impose natural resource damage liability under CERCLA.76 In fact, natural resource 

damages may only be recovered by a designated federal, state or tribal trustee.77

Industry has also raised alarms about high penalties from citizen suits and cases 

brought by municipal and state governments. Again, there is no rational basis for 

this assertion. Tyson and Seaboard did not pay a single penny in their cases 

brought by Sierra Club for failure to report their hazardous air emissions under 

CERCLA and EPCRA. Furthermore, penalties are unavailable under CERCLA for 

removal or remedial actions, regardless of whether they are initiated by government 

or by a private party.78

Finally, citizens are even limited in their cost recovery actions. A private party 

must prove as part of its prima facie case that the cleanup activities for which it 

incurred response costs were consistent with the National Contingency Plan.79

EXEMPTING AGRIBUSINESSES FROM EPCRA/CERLA REQUIREMENTS WOULD PREVENT EPA

FROM GATHERING CRITICAL DATA

The National Academy of Sciences (NAS) issued a report in 2003 in which it expressed concern over AFO air pollution and criticized EPA and USDA for not devoting the necessary technical or financial resources to estimate air emissions and to 

develop mitigation technologies.80 In response to NAS concerns, EPA negotiated an 

Air Compliance Agreement with industry that establishes an emissions monitoring 

program.81 2,700 participants have signed up for this agreement.82 The stated purpose of the Agreement is to ensure that AFOs comply with applicable environmental 

requirements—including CERCLA and EPCRA requirements—and to gather scientific data that the Agency needs to make informed regulatory and policy determinations. Exempting AFOs from CERCLA/EPCRA liability will not only remove incentives for facilities to participate in the monitoring study, but will also prevent 

government and citizens from having access to critical information about potentially 

dangerous releases that could affect communities. 

CONCLUSION

CERCLA and EPCRA provide an essential safety net for protecting water supplies 

and for protecting the air that we breathe. There is no compelling reason to exempt 

livestock facilities from these statutes when communities have been exposed to potentially dangerous quantities of hazardous pollutants from some large operations. 

Before you consider any amendments to current law, we urge you to hold field hearings so that citizens who are affected by pollution from livestock operations have 

an opportunity to testify. 

End Notes 

1 EPA, Environmental Assessment of Proposed Revisions to the National Pollutant Discharge 

Elimination System Regulation and the Effluent Guidelines for Concentrated Animal Feeding 

Operations, EPA—821-B-01-001 at 2-2 (2001) (‘‘Environmental Assessment’’), http://epa.gov/ost/

guide/cafo/envir.html. 2 EPA, Development Document for the Final Revisions to the National Pollutant Discharge 

Elimination System Regulation and the Effluent Guidelines for Concentrated Animal Feeding 

Operations, EPA—821-R-03-001 at 4-3 (2002) (‘‘Development Document’’), http://cfpub2.epa.gov/

npdes/afo/cafodocs.cfm. 3Development Document at 4-3. 

4Development Document at 4-3. 

5Development Document at 4-13. 

6See Development Document at 4-37. 7See Development Document at 4-36; see also 70 Fed. Reg. 4960. 8See generally Development Document. 

137

9Development Document at 4-35. 

10Development Document at 4-2. 11Tyson, Annual Report 2004, http://media.corporate-ir.net/media—files/irol/65/65476/reports/

ar04.pdf. 12Smithfield, Annual Report 2004, http://www.rkconline.net/AR/SmithfieldAR2004/. 13 USEPA, National Pollutant Discharge Elimination System Permit Regulation and Effluent 

Limitation Guidelines and Standards for Concentrated Animal Feeding Operations (CAFOs), 68 

Fed. Reg. 7176, 7180 (2003) [hereinafter USEPA, CAFO Final Rule]. 14Preamble to USEPA, CAFO Final Rule at 7181. 15 Environmental Assessment at 2-17. 16 Id. at 2-18; see also The New York Times, How to Poison a River, (Aug. 19, 2005) (commenting on a 3 million gallon spill from a 3,000 head dairy in New York) 17 USEPA and USDA, Clean Water Action Plan: Restoring and Protecting America’s Waters at 

56 (Feb. 1998). 18David Wallinga, M.D., Institute for Agriculture and Trade Policy, Concentrated Animal 

Feeding Operations: Health Risks from Water Pollution (Aug, 2004). 19 Id. 20 Id.; see e.g., Chapin et al., Airborne Multidrug-Resistant Bacteria Isolated from a Concentrated Swine Feeding Operation, 113 Environmental Health Perspectives 137 (2005). 21 EPA, CAFO Final Rule, at 7238. See also, U.S. Environmental Protection Agency, Office of 

Children’s Health Protection, Drinking Water Contaminants—America’s Children and the Environment: A First View of Available Measures, http://yosemite.epa.gov/ochp/ochpweb.nsf/content/

drinking-water-contam.htm; Centers for Disease Control and Prevention, Spontaneous Abortions 

Possibly Related to Ingestion of Nitrate-Contaminated Well Water-La Grange County, Indiana 

1991-1994, Morbidity and Mortality Weekly, Report 45 (26) (1996), at 569-571 (linking high nitrate levels in Indiana well water near confinement operations to spontaneous abortions in humans), http://www.cdc.gov/mmwr/preview/mmwrhtml/0042839.htm. 22 Iowa State University and The University of Iowa Study Group, Iowa Concentrated Animal 

Feeding Operations, Air Quality Study, Final Report (2002) (‘‘Iowa Air Quality Study’’), http/

/www.publichealth.uiowa.edu/ehsrc/CAFOstudy.htm. 23 Iowa Air Quality Study at 122; see also Minnesota Planning Agency Environmental Quality 

Board, Final Animal Agriculture Generic Environmental Impact Statement (2002), (‘‘Minnesota 

EIS for Animal Agriculture’’), http://www.eqb.state.mn.us/geis/ for information concerning health 

impacts of particular AFO air pollutants. 24S. Wing & S. Wolf, Intensive Livestock Operations, Health, and Quality of Life Among Eastern North Carolina Residents, 108 Envtl. Health Persp. 223-38 (2000); see also K. Thu et al., 

A Control Study of the Physical and Mental Health of Residents Living Near a Large-Scale 

Swine Operation, 3 J. Agric. Safety & Health 1, 13-26 (1997). 25 Iowa Air Quality Study at 122. 26 EPA, Ammonia Emission Factors from Swine Finishing Operations, http://www.epa.gov/ttn/

chief/conference/ei10/ammonia/harris.pdf. 27 EPA, National Emission Inventory—Ammonia Emissions from Animal Husbandry Operations, Draft Report, http://www.epa.gov/ttn/chief/ap42/ch09/related/nh3inventorydraft—

jan2004.pdf. 28Letter from Tom Lindley on behalf of Threemile Canyon Farms to EPA Region X, April 18, 

2005. 29 U.S. EPA, Toxics Release Inventory, 2003. Search performed at: <http://www.epa.gov/

triexplorer/>. 30 U.S. Department of Justice, Ohio’s Largest Egg Producer Agrees to Dramatic Air Pollution 

Reductions from Three Giant Facilities, http://www.usdoj/opa/pr/2004/February/04—enrd—

105.htm. 31Schiffman, S.S., et al., Health Effects of Aerial Emissions from Animal Production and 

Waste Management Systems, http://www.cals.ncsu.edu/waste—mgt/natlcenter/summary.pdf. 32Memo from Mario Jorquera to Scott Clardy (December 2, 2002). 33 EPA, Health and Environmental Impact of PM, http://www.epa.gov/air/urbanair/pm/

hlthl.html. 34 EPA, Chief Causes for Concern, http://www.epa.gov/air/urbanair/pm/chf.html. 35 Iowa State University and The University of Iowa Study Group, Iowa Concentrated Animal 

Feeding Operations Air Quality Study (February 2002), at 132. 36 United States Public Health Service (1964). 37 American Public Health Association, Precautionary Moratorium on New Concentrated Animal Feed Operations, 2003-7, http://www.alpha.org/legislative/policy/2003/2003-007.pdf. 38 Id. 39 U.S. v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 1112 (D. Minn. 1982); see also 

Walls v. Waste Resource Corp., 823 F. 2d 977, 980 (6th Cir. 1987); Dedham Water Co. v. Cumberland Farms Dairy, Inc. 805 F.2d 1074, 1081 (1st Cir. 1986). 40 Id. 41 42 U.S.C. § 9603(a). 42 42 U.S.C. § 9603; 40 C.F.R. § 302.4. 43 42 U.S.C. § 9603(f). 44 42 U.S.C. § 9604(a). 45 42 U.S.C. § 9607(a)(4)(A). 46 42 U.S.C. § 11004(a); 40 C.F.R. § 355.40(b)(1). 47Sierra Club v. Tyson Foods, et al, 299 F. Supp. 2d 693, 706 (W.D.Ky. 2003). 48 42 U.S.C. § 9601(22)(D). 49 42 U.S.C. § 11021(e)(5). 50Sierra Club v. Tyson Foods, et al, 299 F. Supp. 2d 693, 714 (W.D.Ky. 2003). 51 Id. 

138

52 City of Waco v. Dennis Schouten, et. al., No. W-04-CA-118, slip op. at 9 (W.D. Tx. 2005). 53See, e.g., U.S. v. Iron Mountain Mines, et.al., 987 F. Supp. 1244 (E.D. Cal. 1997). (exemption 

held not apply to releases of metals altered by mining); U.S. v W.R. Grace and Co.-Conn., 280 

F. Supp. 2d 1149 (D. Mont. 2003) (exemption held not to apply to releases of asbestos and asbestos-contaminated vermiculite that was a by-product of vermiculite processing). 54 USEPA, Office of Solid Waste and Emergency Response, Questions and Answers on Release 

Notification Requirements and Reportable Quantity Adjustments, EPA/540/R-94/005 (Jan. 1995). 55 Congressional Research Service, Air Quality Issues and Animal Agriculture: A Primer (June 

10, 2005). 56 USEPA, National Pollutant Discharge Elimination System Permit Regulation and Effluent 

Limitation Guidelines and Standards for Concentrated Animal Feeding Operations, Proposed 

Rule (CAFOs), 66 Fed. Reg. 2960, 2968 (2001) [hereinafter USEPA, CAFO Proposed Rule]. 57 42 U.S.C. § 9602 (a). 58Department of Justice, News Release, Nation’s Second Largest Hog Producer Reaches Settlement with U.S. and Citizen’s Group (Nov. 20, 2001), http://yosemite.epa.gov/opa/admpress.nsf/

bf92f4e7d755207d8525701c005e38d7/db8bd3f214a2406d85256b0a0079a7ee!OpenDocument. 59 Id., see also EPA, Notice of Violation issued to Premium Standard Farms (April 2000); EPA, 

Clarification of Notice of Violation (September 2000). 60 Id., see also EPA, Finding of Violation issued to Premium Standard Farms (May 2000). 61Memo from Mario Jorquera to Scott Clardy (December 2, 2002). 62Premium Standard Farms, Air Emissions Monitoring Completion Report (Nov. 17, 2004). 63Sierra Club v. Seaboard Farms, 387 F. 3d 167 (10th Cir. 2004). 64Sierra Club v. Tyson Foods, et al, 299 F. Supp. 2d 693 (W.D.Ky. 2003). 65 City of Tulsa v. Tyson Food Inc., et. al., 258 F. Supp. 2d 1263 (N.D. Okla. 2003). 66 Id. at1272. 67 Id. at 1285. Although the Court’s ruling was vacated as part of a settlement agreement, the 

Court’s reasoning may still be persuasive to other Courts. 68 City of Waco v. Dennis Schouten et. al., Civil Action No. W-04-CA-118 (W.D. Texas), First 

Amended Complaint (May 27, 2004). 69 City of Waco v. Dennis Schouten et. al., Civil Action No. W-04-CA-118 (W.D. Texas), Memorandum Opinion and Order at 8 (March 29, 2005). 70 Id. at 9. 71State of Oklahoma v. Tysons Foods, Inc. et.al., Civil Action No. 05CV0329 JOE-SAJ (N.D. 

Okla.), Complaint (June 18, 2005). 72Oklahoma Attorney General’s Office, News Release, AG Sues Poultry Industry for Polluting 

Oklahoma Waters (June 13, 2005). 73 Id. 74 Complaint at ¶ 76. 75 Complaint at ¶ 89. 76Southern Association of State Departments of Agriculture, Clarifying CERCLA and EPCRA 

Do Not Apply to Animal Agriculture. 77 42 U.S.C. § 9607 (f)(1). 78See 42 U.S.C. § 9607. 79 42 U.S.C. § 9607 (a)(4)(B). 80 National Academy of Sciences, Air Emissions from Animal Feeding Operations: Current 

Knowledge, Future Needs (2003). 81 USEPA, Animal Feeding Operations Consent Agreement and Final Order; Notice 70 Fed. 

Reg. 4958 (Jan. 31, 2005). 82 USEPA, Proposed Amendment to Section 118 of Superfund Amendments (Oct. 2005) (Not Official Agency Position—Technical Assistance Only).

Mr. GILLMOR. Thank you very much, Ms. Merkel. We have 7 

minutes until we are over there—supposed to be other there to 

vote. Let me ask both of the panel and to the members up here and 

the alternative. We are going to be gone a little while because there 

are three votes. I want to ascertain one thing from the members, 

one thing from the panelists. From the members, I want to know 

if you are actually going to come back and ask questions, and do 

you want me to ask the panel to wait. Second, I would like to ask 

the panelists if members have questions to submit to you in writing 

at a later date, would you be willing to respond in that manner? 

And everyone indicates in the affirmative. And I know, for example, Mr. Kouplen has a 7 p.m. plane, so we won’t see you regardless, I presume. But do the members want to submit in writing, 

or——

Ms. SOLIS. But I do want to bring something up before we go. 

Mr. GILLMOR. All right. I think Ms. Solis has one thing she does 

want to bring up, if you would do that——

Ms. SOLIS. Yes. 

Mr. GILLMOR. [continuing] and then we can go. 

139

Ms. SOLIS. Yeah. And I apologize, but I, you know, want to—I 

have empathy for many of you who have come out here, and I know 

that we are looking at some very important issues here. Small 

farming versus large industrial farms, and I would just say that we 

definitely need to have—it would be great to have some field hearings. I think that would be quite interesting. I am very concerned 

about what is going on in my own State of California in the Central 

Valley. But, I would like to ask the Chairman, since we have already agreed to put an amicus brief in the Waco case into the 

record, I would request unanimous consent that all other pleadings 

and orders of the court be placed in the record for the Waco case 

and the State of Oklahoma case, and ask for unanimous consent 

to the District Court Order dated March 14, 2003, in the Tulsa case 

also be placed into the record. 

Mr. GILLMOR. All right. Let me ascertain, what is the volume 

that you are talking about? You know, we routinely let short things 

in, which I did, and your staff complained. 

Ms. SOLIS. Is there a——

Mr. GILLMOR. And I am not going to get into a situation where 

we are entering large volumes of material, so I want to know what 

it is specifically you are asking for. 

Mr. FRANDSEN. The Court Orders and the complaints that were 

filed? 

Mr. GILLMOR. How big are they? How long? 

Mr. FRANDSEN. They are not that big. I mean, we have got them 

over here if you want to see them. 

Mr. GILLMOR. Let me see them. But, you know, I am trying to 

be open as I can, but I don’t want to get back in this tit for tat 

about all this stuff we are going to be——

Ms. SOLIS. Does it look——

Mr. GILLMOR. [continuing] bearing in the record. 

Mr. DINGELL. Mr. Chairman, with all respect, this is the first 

time I can recall this kind of situation occurring where the Chair 

said that Chair didn’t want an adequate record. 

Mr. GILLMOR. It is not a matter of an adequate record, Mr. Dingell. It is a matter of cluttering up the record. So, to me, it is a 

matter of the issue of the volume of stuff, and all the stuff is already probably in the record, including what Mr. Kouplen submitted, so I will not make an objection this time. But I sure will 

state for the benefit of my colleagues that I am not going to permit 

huge volumes to be put into the record on a——

Mr. DINGELL. Mr. Chairman, would you——

Mr. GILLMOR. [continuing] regular basis. 

Mr. DINGELL. [continuing] yield to me? 

Mr. GILLMOR. I would be happy to yield. 

Mr. DINGELL. It certainly is not my purpose to inflict that kind 

of situation that on the Chair, and it certainly is not my purpose 

to lard the record with a lot of useless information, but other members do have a concern on this and I would hope the Chair would 

be kind to the members in the way Chair approaches these questions because from time to time, I like to put stuff in the record 

too, and I—it comforts me when I can read it and see it was there. 

140

Mr. GILLMOR. Well, we normally do let materials in, and that 

would be the intent, but it is a matter of, I think, simply of good 

judgment on both sides. 

Mr. DINGELL. If the Chair would yield further, I just hope that 

the Chair would be kind to us on this. This is very important. 

Mr. GILLMOR. We certainly have an objective here, so, yes, Mr. 

Sullivan? 

Mr. SULLIVAN. Thank you, Mr. Chairman, and I appreciate everyone for being here today. I will submit some questions, in particular to Mr. Kouplen and the Assistant Attorney General Ms. 

Hunter Burch, but I do want to state that this is very important, 

the Arkansas-Oklahoma situation. It is at a crisis and we want to 

make sure that we can work this out. I would like to see us do it 

without a lawsuit. I would like to see us do it where we can bring 

all parties together and get this done. I mean, there are problems, 

and we got to make sure that the watersheds are protected. And 

I hope that we can come together and get this resolved. I mean, 

it has been a long time coming, and I think we can get it done. We 

just need to start working, and I wish the EPA would be stronger 

in what they do, trying to get everybody together, but they obviously won’t do that. And so I just want to make sure that we can 

get together. I will give you guys both questions and put it in the 

record and ask you to respond in writing. And I hope you make 

your plane. 

Mr. GILLMOR. Mr. Dingell? 

Mr. DINGELL. Mr. Chairman, I just wanted to ask just a couple 

of questions. I would like to have the permission of the Chair to 

submit questions to the panel members. 

Mr. GILLMOR. Sure. 

Mr. DINGELL. And for inclusion—and that the response be included in the record. Mr. Kouplen, I have listened to your comments with a great deal of interest. I have got a lot of small farms 

in my district and I want to protect them. But, by the same token, 

I don’t feel that I have a particular need to support or to help these 

massive industrial farms to compete with my people, and to dispose 

of their waste in a way which constitutes a hazard. My question 

to you is you raise, you say, 250 cattle? Is that right? 

Mr. KOUPLEN. That is right, sir. 

Mr. DINGELL. Now, 250, are you under threat of any sort from 

the proposals that we are discussing with regard to either Oklahoma or Texas? 

Mr. KOUPLEN. Not currently. 

Mr. DINGELL. Not currently. Why do you say not currently? That 

you mean you just not under any threat for those things, and is 

there anything that makes you apprehensive that you will be? 

Mr. KOUPLEN. It is my fear, Congressman, that if, you know, animal manure gets classified as hazardous waste—and I know that 

there is a big concern here from everyone about the size of operations—but it is my concern that if that ever gets——

Mr. DINGELL. Let us go into it. You use your animal waste for 

fertilizer, right? 

Mr. KOUPLEN. No, sir. 

Mr. DINGELL. No? What do you use it for? 

Mr. KOUPLEN. My cattle, I have about 2,500 acres——

141

Mr. DINGELL. Okay. 

Mr. KOUPLEN. [continuing] and I do not feed them——

Mr. DINGELL. So essentially fertilizer? 

Mr. KOUPLEN. [continuing] in a feedlot. No, sir. 

Mr. DINGELL. You apply it. 

Mr. KOUPLEN. No. 

Mr. DINGELL. You don’t? What do you do with it? 

Mr. KOUPLEN. It just falls where it falls. 

Mr. DINGELL. Oh, so you just raise your cattle. It is a free range. 

Mr. KOUPLEN. I do not fall under the CEFLAC regulations. 

Mr. DINGELL. So I was just trying to figure out—so you really 

have, at this particular time, no great concern about your situation, 

because I have got—as I repeat, I have a bunch of small farmers 

up there, I want to protect. But, again, I don’t want to take care 

of Montfort, and I don’t want to take care of those good-hearted 

folks that caused so much trouble at Lake Waco, nor do I want to 

take particular concern about those wonderful folks that caused 

trouble in Oklahoma. They seem to be doing just fine, and, quite 

honestly, they are producing for a lot less than my people are producing. They are running some of them out of business, and they 

are polluting the waters. And I wonder, what are we going to do 

about that? Is it—where is—are you here to advocate for the family 

farmer, or are you here to advocate for Montfort or for some of the 

big folks? Which——

Mr. KOUPLEN. Well, look, I don’t think any of us——

Mr. DINGELL. [continuing] side of this gate do you fall? 

Mr. KOUPLEN. [continuing] in this room can deny that the dynamics of agriculture is changing. The dynamics of all industry in 

this country is changing, and——

Mr. DINGELL. I——

Mr. KOUPLEN. industries are getting bigger and bigger, and you 

have to—the economies of scale aren’t what they used to be, and 

you have got to be—to be quite honest, a 250 cow/calf——

Mr. DINGELL. Well, just——

Mr. KOUPLEN. [continuing] herd is just big enough to survive. 

Mr. DINGELL. Just to help me understand, are you talking here 

for the small farmer or are you talking here for the guy that has 

the great big huge corporate farm? 

Mr. KOUPLEN. Well, a lot of the large farms are family farms. 

Mr. DINGELL. Well, at what point do you get to be a farm that 

should be protected, and at what point are you a farm that you 

shouldn’t be protected? 

Mr. KOUPLEN. Well, there are——

Mr. DINGELL. How many animals? 

Mr. KOUPLEN. There are——

Mr. DINGELL. How many tons of waste? What kinds of agriculture practices? 

Mr. KOUPLEN. At certain numbers of livestock, you reach the 

limit where you become CAFOs, and every operation, whether it is 

a family operation or otherwise, once they meet those limits, they 

are already being regulated. 

Mr. DINGELL. Mr. Chairman, I am using the time of the Committee. I thank you for your courtesy to me. 

Mr. GILLMOR. Thank you, Mr. Dingell. Mr. Deal had——

142

Mr. DEAL. I would like to——

Mr. GILLMOR. [continuing] a question and then we will recess. 

Mr. DEAL. I would like to briefly follow up that line of thought 

because it is all tied together. Mr. Stem, you said you had a cow/

calf operation. I am sort of like Dr. Weaver. I grew up in FFA and 

4H, et cetera. Cow/calf operation, to me, means that you sell the 

calf to somebody else. 

Mr. STEM. Yes, sir. 

Mr. DEAL. And I assume Mr. Kouplen does the same thing. 

Mr. STEM. Yes, sir. 

Mr. DEAL. Do you retain ownership in that feed out operation of 

your calves, or do you just simply sell the calf and they go to somebody else to feed them out? 

Mr. STEM. We take them to the auction. 

Mr. DEAL. And, so therefore, what you produce will wind up in 

a CAPO more than likely, is that right? 

Mr. STEM. Yes, sir, it could. 

Mr. DEAL. Do you think you ought to be assessed so much per 

head for any costs that are associated with these regulations that 

people are trying to impose on the people who buy your cattle? 

Mr. STEM. Well, I believe that if the—whatever it is, beef cattle 

feed lot, whatever, if it is causing others to have cost, they wouldn’t 

have otherwise. Yes, sir, I do. 

Mr. DEAL. Well, that is a good volunteer right there to start with. 

I will end with that one. Thank you, Mr. Chairman. 

Mr. GILLMOR. Thank you very much, Nathan, and I thank the 

panel for your patience in a long day. 

[Whereupon, at 5:15 p.m., the subcommittee was adjourned.] 

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